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WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

C. L. Curtis,

Plaintiff,

v. 

Commissioner of Social Security 

Administration,

Defendant.

No. CV-18-00649-PHX-DGC

ORDER 

Plaintiff C.L. Curtis seeks review under 42 U.S.C. § 405(g) of the final decision of 

the Commissioner of Social Security (“the Commissioner”), which denied her disability 

insurance benefits and supplemental security income under sections 216(i), 223(d), and 

1614(a)(3)(A) of the Social Security Act. Because the decision of the Administrative Law 

Judge (“ALJ”) is not supported by substantial evidence and is based on legal error, the 

Commissioner’s decision will be vacated, and the matter remanded for further 

administrative proceedings. 

I. Background. 

Plaintiff is a fifty-eight-year-old female who previously worked as a server, a 

stocker, and a housekeeper. A.R. 54. On March 5, 2014, Plaintiff applied for disability 

insurance benefits and supplemental security income, initially alleging disability beginning 

February 2, 2011. She later amended the onset date to January 1, 2014. A.R. 15. Plaintiff 

was last insured for SSDI benefits on June 30, 2015. A.R. 15. On February 13, 2017, she 

appeared with her attorney and testified before an ALJ. A.R. 15. A vocational expert also 
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testified. A.R. 15. On March 27, 2017, the ALJ issued a decision that Plaintiff was not 

disabled within the meaning of the Social Security Act. A.R. 15. The Appeals Council 

denied Plaintiff’s request for review, making the ALJ’s decision the Commissioner’s final 

decision. A.R. 1. 

II. Legal Standard. 

The Court reviews only those issues raised by the party challenging the ALJ’s 

decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). The Court may set 

aside the Commissioner’s disability determination only if the determination is not 

supported by substantial evidence or is based on legal error. Orn v. Astrue, 495 F.3d 625, 

630 (9th Cir. 2007). Substantial evidence is more than a scintilla, less than a 

preponderance, and relevant evidence that a reasonable person might accept as adequate to 

support a conclusion. Id. In determining whether substantial evidence supports a decision, 

the Court must consider the record as a whole and may not affirm simply by isolating a 

“specific quantum of supporting evidence.” Id. As a general rule, “[w]here the evidence 

is susceptible to more than one rational interpretation, one of which supports the ALJ’s 

decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 

(9th Cir. 2002) (citations omitted). 

Harmless error principles apply in the Social Security Act context. Molina v. 

Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012). An error is harmless if there remains 

substantial evidence supporting the ALJ’s decision and the error does not affect the 

ultimate nondisability determination. Id. The claimant usually bears the burden of 

showing that an error is harmful. Id. at 1111. 

III. The ALJ’s Five-Step Evaluation Process. 

To determine whether a claimant is disabled for purposes of the Social Security Act, 

the ALJ follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears the 

burden of proof on the first four steps, and the burden shifts to the Commissioner at step 

five. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). To establish disability, the 

claimant must show that (1) she is not currently working, (2) she has a severe impairment, 
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and (3) this impairment meets or equals a listed impairment or (4) her residual functional 

capacity (“RFC”) prevents her performance of any past relevant work. If the claimant 

meets her burden through step three, the Commissioner must find her disabled. If the 

inquiry proceeds to step four and the claimant shows that she is incapable of performing 

past relevant work, the Commissioner must show at step five that the claimant is capable 

of other work suitable for her RFC, age, education, and work experience. 20 C.F.R. 

§ 404.1520(a)(4).

At step one, the ALJ found that Plaintiff meets the insured status requirements of 

the Social Security Act through June 30, 2015, and that she has not engaged in substantial 

gainful activity since January 1, 2014. A.R. 17. At step two, the ALJ found that Plaintiff 

has the following severe impairments: cervical degenerative disc disease with stenosis, 

lumbar degenerative disc disease, and bilateral carpal tunnel syndrome status post right 

release. A.R. 17. At step three, the ALJ determined that Plaintiff does not have an 

impairment or combination of impairments that meets or medically equals an impairment 

listed in Appendix 1 to Subpart P of 20 C.F.R. pt. 404. A.R. 20. At step four, the ALJ 

found that Plaintiff has the RFC to perform:

[L]ight work as defined in 20 C.F.R. 404.1567(b) except that 

the claimant can never climb ladders, ropes, or scaffolds; 

frequently climb ramps or stairs; frequently balance, stoop, 

crouch, kneel, and crawl; frequently handle, or feel bilaterally; 

and the claimant can have only occasional exposure to 

dangerous machinery with moving mechanical parts, as well as 

unprotected heights that are high or exposed.. 

A.R. 21. The ALJ further found that Plaintiff is unable to perform any of her past relevant 

work. A.R. 28. Considering Plaintiff’s age, education, work experience, and RFC, the 

ALJ found at step five that jobs exist in significant numbers in the national economy that 

Plaintiff could perform, such as hostess. A.R. at 29. 
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IV. Analysis. 

Plaintiff argues that the ALJ’s decision is defective for two reasons: (1) the ALJ 

improperly weighed Plaintiff’s examining physician’s medical opinions, and (2) the ALJ 

improperly rejected Plaintiff’s symptom testimony. The Court will address each argument. 

A. Weighing of Medical Source Evidence. 

Plaintiff argues that the ALJ improperly weighed the medical opinions of Dr. 

Garrison and the state’s nonexamining physicians, Drs. Keer and Khan. 

1. Legal Standard

The Commissioner is responsible for determining whether a claimant meets the 

statutory definition of disability and need not credit a physician’s conclusion that the 

claimant is “disabled” or “unable to work.” 20 C.F.R. § 404.1527(d)(1). But the 

Commissioner generally must defer to a physician’s medical opinion, such as statements 

concerning the nature or severity of the claimant’s impairments, what the claimant can do, 

and the claimant’s physical or mental restrictions. § 404.1527(a)(1), (c). 

The Ninth Circuit distinguishes between the opinions of treating physicians, 

examining physicians, and non-examining physicians. See Lester v. Chater, 81 F.3d 821, 

830 (9th Cir. 1995). Generally, an ALJ should give greatest weight to a treating physician’s 

opinion and more weight to the opinion of an examining physician than to one of a nonexamining physician. See Andrews v. Shalala, 53 F.3d 1035, 1040-41 (9th Cir. 1995); see 

also 20 C.F.R. § 404.1527(c)(2)-(6) (listing factors to be considered when evaluating 

opinion evidence, including length of examining or treating relationship, frequency of 

examination, consistency with the record, and support from objective evidence). If it is not 

contradicted by another doctor’s opinion, the opinion of a treating or examining physician 

can be rejected only for “clear and convincing” reasons. Lester, 81 F.3d at 830 (citing 

Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988)). A contradicted opinion “can only 

be rejected for specific and legitimate reasons that are supported by substantial evidence in 

the record.” Lester, 81 F.3d at 830-31 (citing Andrews, 53 F.3d at 1043).
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An ALJ can meet the “specific and legitimate reasons” standard “by setting out a 

detailed and thorough summary of the facts and conflicting clinical evidence, stating his 

interpretation thereof, and making findings.” Cotton v. Bowen, 799 F.2d 1403, 1408 (9th 

Cir. 1986). But “[t]he ALJ must do more than offer [her] conclusions. [She] must set forth 

[her] own interpretations and explain why they, rather than the doctors’, are correct.” 

Embrey, 849 F.2d at 421-22. 

2. Dr. Garrison.

Dr. Garrison provided two medical opinions. He provided the first opinion as an 

examining doctor, and the second after he became Plaintiff’s treating physician. See

A.R. 515 (examining physician, September 2, 2014), 525 (treating physician, May 13, 

2016). The ALJ did not expressly find that other medical opinions in the record 

contradicted Dr. Garrison’s, but the Court can infer from the record that Dr. Garrison’s 

assessments differed from those of agency nonexamining physicians on Plaintiff’s ability

to lift or carry, stand or walk, and sit. See A.R. 69; see also Trevizo v. Berryhill, 871 F.3d 

664, 676 (9th Cir. 2017) (the Court may infer from the record that an opinion is 

contradicted). 

a. Dr. Garrison’s First Opinion. 

On September 2, 2014, Dr. Garrison opined that the claimant could lift less than ten 

pounds occasionally and carry less than ten pounds frequently. A.R. 521. Plaintiff had no 

limitations sitting, standing, or walking, and she had some postural and environmental 

limitations. A.R. 521. The ALJ described all of Dr. Garrison’s examination findings, 

outside of Plaintiff’s reduced grip, to be essentially normal. Id. For example, Plaintiff 

could sit in a chair without discomfort, stand, walk, and get on and sit on the examination 

table with no assistance. A.R. 26. Moreover, Plaintiff had normal gait and was able to 

stoop without difficulty, lift each foot off the ground, and stand without assistance. Id. 

The ALJ assigned partial weight to the September 2, 2014 opinion to the extent it supported 

the ALJ’s RFC. A.R. 26. The ALJ discredited the opinion because (1) the opinion was 

based primarily on Plaintiff’s subjective complaints, (2) Dr. Garrison’sfindings on reduced 
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grip were not corroborated by later treatment records, and (3) Dr. Garrison based Plaintiff’s 

lifting and carrying limitations on his reduced grip finding. A.R. 26. Because it is a 

contradicted opinion of an examining physician, Dr. Garrison’s opinion may be rejected 

only for specific and legitimate reasons. Lester, 81 F.3d at 830-31.

The ALJ’s first reason is not a specific and legitimate reason for discrediting Dr. 

Garrison’s opinion. An ALJ may reject a treating physician’s opinion if it is based to a 

large extent on a claimant’s self-reports that have been properly discounted as not credible. 

See Tommasetti v. Astrue, 533 F.3d 1035, 1041-42 (9th Cir. 2008). As discussed below, 

however, Plaintiff’s testimony was improperly discounted. Further, Dr. Garrison 

performed an exam, and there is no evidence that his opinion was based on anything other 

than his exam. See Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 199 (9th Cir. 2008) (“[A]n 

ALJ does not provide clear and convincing reasons for rejecting an examining physician’s 

opinion by questioning the credibility of the patient’s complaints where the doctor does not 

discredit those complaints and supports his ultimate opinion with his own observations”). 

The Court addresses the ALJ’s second and third reasons together. The ALJ stated

that the lifting and carrying limitations appear to be based upon the doctor’s finding of 

reduced grip, and the ALJ is unable to give any weight to Dr. Garrison’s finding of reduced 

grip because “later treatment notes do no reveal similar decreased strength in the hands.” 

A.R. 26 (citing A.R. 537). It is unclear what “reduced-grip” finding the ALJ is referring 

to. Dr. Garrison’s opinion notes that he assessed Plaintiff’s grip strength and it was normal. 

A.R. 518. Dr. Garrison then indicated that Plaintiff’s strength was assessed in the hand 

detailed exam and it was 3/5. A.R. 519. The ALJ determined that Plaintiff’s lift and carry 

limitations were based on the reduced-grip finding because all of Dr. Garrison’s other 

findings were normal. A.R. 26. But Dr. Garrison’s opinion notes several abnormal 

findings, including decreased cervical extension; decreased cervical flexion; positive 

Spurling test on the right; tenderness to palpitation on cervical C5 and C6; limited active 

and passive range of motion of the wrist; severe pain with palpitation to both wrists and 

hands; Bouchard nodes in each hand; abnormal sensation to light touch, vibration, and pain 
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on the bilateral C6 dermatome; and positive Phalen and Tinel tests bilaterally. A.R. 518-

19. Considering these findings, it does not appear that Dr. Garrison’s limitations on lifting 

and carrying were based on Plaintiff’s grip strength. Thus, although the ALJ’s reason for 

discounting Dr. Garrison’s opinion is specific, it is not legitimate because it does not 

accurately reflect the doctor’s findings. 

This error would be harmless if the Court could “conclude from the record that the 

ALJ would have reached the same result absent the error.” Molina, 674 F.3d at 1115. Dr. 

Garrison opined that Plaintiff could occasionally lift up to ten pounds and frequently carry 

up to ten pounds. A.R. 521. The vocational expert testified that an individual who could 

only lift ten pounds would not be able to do any work. See A.R. 71. Thus, the Court cannot 

conclude the ALJ’s error was harmless.

b. Dr. Garrison’s Second Opinion. 

On May 16, 2016, after Dr. Garrison became Plaintiff’s treating physician, he 

opined that Plaintiff could sit for a total of four hours in an eight-hour work day and stand 

or walk for a total of three hours. A.R. 26, 525. He noted that Plaintiff suffered from 

fatigue, generalized pain, and generalized tenderness due to fibromyalgia. A.R. 26, 525. 

After examination, he reported that Plaintiff had eighteen out of eighteen tender points and 

that her symptoms had persisted since January 20, 2004. A.R. 26, 528. Dr. Garrison 

opined that Plaintiff had severe limitations in activities and extreme limitations in all areas 

of mental functioning due to fatigue and pain. A.R. 26, 529. Plaintiff would be off task 

due to fatigue three hours a day, and absent from work eight to ten days a month. A.R. 529. 

The ALJ gave this opinion little weight for several reasons. First, it was rendered 

almost one year after the claimant’s date of last insured. A.R. 26. Second, the Doctor’s 

notation that Plaintiff’s symptoms persisted since January of 2004 was inconsistent with 

his September 2014 opinion, which indicated that the claimant “had subjective complaints 

of pain with no obvious pathology on physical exam, and that no pain or tenderness was 

elicited at tender points.” A.R. 26, 521. Third, it was inconsistent with treatment records 

that do not reflect such severe limitations. A.R. 26. The ALJ was required to provide 
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“specific and legitimate reasons supported by substantial evidence in the record.” Lester, 

81 F.3d at 830-31.

Plaintiff argues that the ALJ’s first reason is not a specific and legitimate reason for 

discounting Dr. Garrison’s opinion. The Ninth Circuit has held that medical evaluations 

made after the expiration of a claimant’s insured status are relevant to an evaluation of the 

pre-expiration condition. Smith v. Bowen, 849 F.2d 1222, 1225 (9th Cir. 1988). To the 

extent Dr. Garrison’s opinion addresses symptoms Plaintiff experienced prior to June 30, 

2015, the ALJ should consider it. See Messinger v. Comm’r of Soc. Sec. Admin., No. CV16-02529-PHX-DGC, 2017 WL 2351663, at *4 n.1 (D. Ariz. May 31, 2017) (such a delay 

is not irrelevant but, without more explanation, it is not a specific and legitimate reason for 

discounting an opinion). But if the opinion does not relate back to conditions during the 

relevant time period, the ALJ may assign it little weight. See Baker v. Astrue, No. CV-08-

101—PHX-DGC, 2009 WL 43868, at *3 (D. Ariz. Feb. 23, 2009) (the opinion must “relate 

back” to the relevant time period). 

Dr. Garrison’s opinion outlined Plaintiff’s limitations in relation to fibromyalgia 

symptoms, which started in January 2004. A.R. 525-27. The ALJ did not identify 

fibromyalgia as one of the Plaintiff’s impairments during the relevant time period, and

Plaintiff did not challenge this determination. A.R. 19. Because the opinion relates to a 

condition other than a pre-expiration condition, the ALJ properly discounted its weight. 

Plaintiff argues that Dr. Garrison’s note that fibromyalgia symptoms have persisted 

since January of 2004 is a typographical error that actually meant January 2014. Because 

Plaintiff’s disability onset date is January 2014, she argues, Dr. Garrison’s opinion is 

consistent with the record. Doc. 12 at 17. Regardless of the date of disability onset, Dr. 

Garrison’s first report indicated, as of September 2, 2014, that there was no obvious 

pathology on physical exam of subjective complaints of pain, and no pain or tenderness at 

tender points. This is an internal inconsistency in Dr. Garrison’s medical records. The 

ALJ properly rejected Dr. Garrison’s second opinion on this basis. 
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The ALJ’s final reason for discrediting Dr. Garrison’s second report was that his 

opinion was inconsistent with treatment records that do not reflect such severe limitations. 

An ALJ can reject a treating physician’s statement if it is “unsupported by the record as a 

whole or by objective medical findings.” Burrell v. Colvin, 775 F.3d 1133, 1140 (9th Cir. 

2014). But specific evidence must support this finding. Id. at 1138; Spendlove v. Comm’r, 

No. CV-17-08157-PCT-DGC, 2018 WL 3633744, at *3 (D. Ariz. July 31, 2018) (ALJ did 

not properly reject doctor’s opinion where he did not identify any specific inconsistency 

within the notes). Here, the ALJ cites to several medical records to support her statement. 

See A.R. 26 (citing A.R. 671, 685, 703, 716, 730, 735, 793). It is unclear how these records 

contradict Dr. Garrison’s opined limitations. All of them are from examinations with 

treating physicians and represent findings and other treatment notes, such as medication 

lists. See A.R. 685, 793. Although, there are indications of some “normal” findings in 

these notes, (A.R. 671 (“exam normal hands left . . . right”), 735 (normal range of motion, 

no pain, strength testing was 5/5)), there is no indication that these findings change

Plaintiff’s underlying abilities. Further, many of the records also indicate abnormal 

findings. See A.R. 703 (finding muscle spasms and moderately reduced range of motion), 

716 (moderate pain with motion, moderately reduced range of motion in elbow), 730 

(moderately reduced range of motion in cervical spine). While the ALJ has set out a

summary of the facts and evidence, she failed to state her interpretation of the evidence 

and make findings. Embrey, 849 F.2d at 421-22. This is not a specific and legitimate 

reason for rejecting Dr. Garrison’s second opinion. 

In summary, the ALJ properly rejected Dr. Garrison’s second opinion because it 

related to a post-expiration condition and was inconsistent with his 2014 examination. The 

ALJ improperly rejected Dr. Garrison’s opinion for inconsistencies with the medical 

record. This case is a close call, but where inferences can be drawn on either side, the 

Court must defer to the ALJ. Thomas, 278 F.3d at 954. The Court will affirm the ALJ’s 

opinion regarding Dr. Garrison’s second opinion. 
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3. Crediting Non-Examining Physician. 

The ALJ accorded great weight to the opinions of the state agency’s nonexamining 

physicians, Dr. Keer and Dr. Khan. These doctors opined that Plaintiff could occasionally 

lift or carry twenty pounds and frequently lift or carry ten pounds. A.R. 69, 81. They also 

opined that Plaintiff is limited in handling, fingering, and feeling in both hands due to 

carpel tunnel syndrome. A.R. 70, 82. The ALJ found these opinions substantiated by the 

medical evidence. A.R. 26. She also noted that Drs. Keer and Khan are “well versed in 

the assessment of functionality as it pertains to the disability provisions of the Social 

Security Act and Regulations.” A.R. 26. She further identified diagnostic testing that 

supported these opinions, including that Plaintiff had no evidence of bilateral cervical 

neuropathy, Plaintiff underwent carpel tunnel syndrome surgery, and during one exam had 

decreased range of motion of the cervical spine on the right with a positive Spurling test, 

but range of motion of the cervical spine was normal with no weakness or pain noted. 

A.R. 26-27. (citing A.R. 518, 719, 784).

The opinion of a nonexamining physician cannot by itself constitute substantial 

evidence that justifies the rejection of the opinion of either an examining physician or a 

treating physician. Lester, 81 F.3d at 831. But the nonexamining opinion may constitute 

substantial evidence when it is supported by independent clinical findings. See Thomas, 

278 F.3d at 957. 

The ALJ provided specific evidence to support the weight she assigned to the state

physician. Findings of carpal tunnel syndrome support the state examiner’s conclusion 

that Plaintiff is limited by carpal tunnel syndrome, but the ALJ did not explain why the 

lack of cervical radiculopathy supports the state examiner’s vocational limitations.1

 The 

ALJ cited Dr. Garrison’s opinion regarding normal cervical range of motion, which 

supported her conclusion that Plaintiff can participate in light work, but the ALJ ignored

other parts of Dr. Garrison’s opinion, indicating that Plaintiff had “decreased cervical 

flexion, decreased cervical extension,” and tenderness “to palpitation on cervical C5 and 

 1 The ALJ’s opinion states “bilateral cervical neuropathy,” but the cited record states 

“bilateral cervical radiculopathy.” See A.R. 719. 
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C6 vertebral levels bilaterally.” See A.R. 518; see also Doc. 12 at 18. Dr. Garrison’s 

opinion also noted an April 2014 MRI that revealed Plaintiff had “significant foraminal 

stenosis at C5-C7.” See A.R. 515, 696; see also Ghanim v. Colvin, 763 F.3d 1154, 1164 

(9th Cir. 2014) (The ALJ may not select normal findings from a test or assessment while 

ignoring abnormal findings). 

Nor does the ALJ’s conclusion address the several examples identified by the Court 

above, which contradict that Plaintiff had a normal range of motion of the spine. See, e.g., 

A.R. 703, 716, 730. The Court cannot conclude from the ALJ’s discussion that the 

nonexamining opinions are supported by independent clinical findings when the record is 

reviewed as a whole. As a result, the ALJ erred in relying on those opinions to reject the 

opinions of Dr. Garrison. 

B. The ALJ Erred in Evaluating Plaintiff’s Credibility. 

In evaluating a Plaintiff’s symptom testimony, the ALJ must engage in a two-step 

analysis. First, the ALJ must determine whether the claimant presented objective medical 

evidence of an impairment that could reasonably be expected to produce the symptoms 

alleged. Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). The claimant is not 

required to show that her impairment could reasonably be expected to cause the severity of 

the symptoms she has alleged, only that it could reasonably have caused some degree of 

the symptoms. Id. Second, if there is no evidence of malingering, the ALJ may reject the 

claimant’s symptom testimony only by giving specific, clear, and convincing reasons. Id. 

at 1015. 

First, the ALJ found that Plaintiff’s medically determinable impairments could 

reasonably be expected to cause the alleged symptoms. A.R. 22. Second, the ALJ found 

Plaintiff’s statements regarding the intensity, persistence, and limiting effects of the 

symptoms “not entirely consistent with the medical evidence and other evidence in the 

record for the reasons explained in this decision.” A.R. 22. 

At the hearing Plaintiff testified that she cannot work due to fibromyalgia, arthritis, 

neuropathy, and carpel tunnel syndrome. A.R. 43. She testified that she cannot sleep, her 
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hands are constantly numb, tingling, or in pain, and she has lower back pain if she stands 

too long. A.R. 44. She cannot stay in any position for a very long period of time without 

feeling a lot of pain. A.R. 48. Further, she testified that she is unable to lift anything heavy 

with her hands. A.R. 44. She stated that she has felt no relief since her right carpel tunnel 

surgery. A.R. 44. She testified it takes a lot of energy to shower and get dressed, and if 

she needs to go somewhere during the day she will rest beforehand and bring her own 

pillow. A.R. 46. She testified to pain in her hands all the way up to her neck. A.R. 47. 

The pain is consistently at a level of four to six on most days. A.R. 51. She stopped driving 

after a recent injection in her neck and can spend up to weeks in bed if her fibromyalgia is 

bad. A.R. 47, 51. Plaintiff also testified to memory and concentration problems, and she 

has trouble reading or watching television for extended periods of time. A.R. 51-52. 

Plaintiff stated that she plans on having a left carpal tunnel release, and she is currently in 

physical therapy. A.R. 52. 

The ALJ gave the following reasons for finding Plaintiff’s testimony not fully 

credible: (1) the medical evidence does not support the alleged level of limitation arising 

from these impairments (A.R. 22); (2) findings in the record suggest that Plaintiff may not 

have been entirely forthcoming with respect to the limitations imposed by her impairments;

and (3) Plaintiff’s daily activities contradict her alleged limitations. A.R. 22-24.

1. The ALJ’s First Reason. 

The ALJ’s first reason – the medical evidence does not support the alleged level of 

limitation arising from these impairments – is not clear and convincing evidence to reject 

Plaintiff’s testimony. An ALJ may rely on contradictory medical evidence to discredit 

symptom testimony so long as she “make[s] specific findings justifying [her] decision.” 

Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008). “‘General 

findings are insufficient; rather, the ALJ must identify what testimony is not credible and 

what evidence undermines the claimant’s complaints.’” Brown-Hunter v. Colvin, 806 F.3d 

487, 493 (9th Cir. 2015) (quoting Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998)). 
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The ALJ cites numerous medical records to support her credibility findings. For 

example, the ALJ notes one examination where Plaintiff had positive Tinel’s and Phalen’s 

maneuver of both hands, but her radial, ulnar, and median nerves were grossly intact; no 

significant atrophy was noted within the thenar musculature, and her elbow motion was 

unremarkable. A.R. 27. A nerve conduction test showed evidence of bilateral moderate 

median nerve neuropathy at the wrists, but no cervical radiculopathy. A.R. 27. On another 

occasion, Plaintiff reported pain radiating down her legs and defuse paraspinal tenderness 

to lumbar spine, but she had a normal range of motion of all four extremities and images 

of the lumbar spine revealed only degenerative disc space narrowing at the L4 interspace. 

A.R. 22. Later, an exam revealed muscle spasms and tenderness to palpation of the 

cervical region, as well as decreased range of motion of the neck, but her gait and sensation 

were normal. A.R. 23. 

The Court finds that the ALJ’s cited evidence does not amount to the clear and 

convincing evidence necessary for discounting Plaintiff’s general pain testimony. Most of 

the records indicate normal or moderate medical findings combined with abnormal 

findings. But the ALJ fails to explain why the abnormal findings do not support Plaintiff’s 

general pain testimony or why the normal findings should be given more weight than the 

abnormal findings. See Garrison, 59 F.3d at 1009 (must view record as a whole). And 

some of the evidence cited by the ALJ was in complete. For example, regarding Plaintiff’s 

improvement after carpel tunnel surgery, the ALJ cited pre-exam records that showed 

atrophy and post-exam records that showed an absence of atrophy. A.R. 25. The ALJ 

noted records that showed continued improvement following surgery, including motor 

testing with 5/5 strength except for right deltoid, right wrists flexors, right wrist extensors, 

and right triceps, which were all 4/5. A.R. 25 (citing A.R. 537). But the ALJ omitted the 

portion of the record that stated Plaintiff’s deep tendon reflexes were 0/4 for right 

brachioradialis, 1/4 for right biceps, 0/4 for right triceps, and 2/4 in the same distribution 

on the left side. A.R. 537. Garrison, 759 F.3d at 1017 n.23 (the ALJ cannot cherry-pick 

sentences or phrases while ignoring the greater context). 
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The ALJ did provide clear and convincing evidence to discredit Plaintiff’s testimony 

that she can only stand and sit up to fifteen minutes at a time. The ALJ cited treatment 

notes that show “normal strength and sensation in her bilateral lower extremities with a 

normal gait” (A.R. 25) and a February 2014 exam that showed a normal range of motion, 

muscle strength, and stability in all extremities (id. (citing A.R. 735)). During her 

consultation with Dr. Garrison, Plaintiff was able to sit in the chair without discomfort for 

the duration of the exam. A.R. 518. She was able to stand, walk to the examination table, 

and get onto and sit on the table without assistance. A.R. 518. Her gait was normal, she 

could stoop without difficulty, and she was observed standing from a sitting position and 

sitting from a standing position without assistance. A.R. 24. The ALJ concluded that these 

findings did not support Plaintiff’s reported limitations and were consistent with an ability 

to stand and walk six hours in an eight-hour day. A.R. 25. Although Plaintiff’s ability to 

walk and get on an exam table does not necessarily mean her pain testimony was incorrect, 

the fact that she could sit through an entire appointment and appeared to have no trouble 

walking is sufficiently clear and convincing evidence to undermine her testimony. See

A.R. 48; see also Thomas, 278 F.3d at 954 (when inferences can be drawn on either side, 

the Court must defer to the ALJ). 

The Court concludes that the ALJ’s first reason provided a clear and convincing 

reason to discredit Plaintiff’s testimony that she could sit and stand only for fifteen minutes 

at a time, but the ALJ did not provide clear and convincing evidence for discounting 

Plaintiff’s remaining general pain testimony.

2. ALJ’s Second Reason. 

The ALJ’s second reason – Plaintiff was not forthcoming with respect to limitations 

imposed by her impairments – is a clear and convincing reason to discount her testimony. 

An ALJ may consider “ordinary techniques of credibility evaluation, such as a plaintiff’s 

reputation for lying, prior inconsistent statements concerning the symptoms, and other 

testimony by the claimant that appears less than candid.” See Smolen, 80 F.3d at 1284. 

The ALJ may also consider observations by treating physicians regarding the frequency, 
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nature, and severity of Plaintiff’s symptoms. Id. 

The ALJ first noted that in May 2014, Plaintiff’s physician discharged her after her 

urine drug screen tested positive for morphine, which she was not prescribed. A.R. 23. In 

the discharge letter, Plaintiff’s doctor stated that Plaintiff first explained the presence of 

morphine by saying that she took some of her father’s medications, but then said she 

received it during a hospital visit. A.R. 497. After checking with the local hospital, the 

doctor concluded that Plaintiff had not gone to the hospital. A.R. 497. Further, Plaintiff 

had presented four days early for her appointment, stating that she had run out of 

medications. A.R. 23. A second drug screen tested positive for morphine and Oxycodone, 

although Plaintiff did not have a prescription for either. A.R. 23. The second test was also 

positive for marijuana. A.R. 23. Inconsistent or dishonest statements related to Plaintiff’s 

use of illegal drugs can reflect on Plaintiff’s general candor. See Thomas, 278 F.3d at 959

(proper to discredit testimony where Plaintiff gave inconsistent statements about drug and 

alcohol history); Lopez v. Colvin, 194 F. Supp. 3d 903, 912-13 (D. Ariz. 2016) (same). 

The ALJ also noted that during one exam a treating physician found that Plaintiff’s 

lack of effort made it difficult to assess her motor strength accurately. The physician had 

to distract Plaintiff to obtain accurate measurements. A.R. 24, 537. An ALJ may consider 

observations from physicians when evaluating the severity of Plaintiff’s symptoms. Lack 

of effort provides a basis for discrediting a plaintiff’s testimony. See Chaudhry v. Astrue, 

688 F.3d 661, 671 (9th Cir. 2012) (noting that an ALJ’s rejection of claimant’s symptom 

testimony was supported by evidence that claimant “appeared not to exert adequate effort 

during testing”). 

Plaintiff’s lack of candor about her illegal drug use and lack of effort in a medical 

examination constitute clear and convincing reasons to question her general credibility. 

The ALJ provided sufficient evidence to support her second reason.2

 

 2 The ALJ also cited Dr. Garrison, who noted that Plaintiff arrived with a cane, but that no 

assistive device was used in any of the exam maneuvers and she obtained the cane over the 

counter. A.R. 27. Plaintiff never testified to needing a cane or an assistive device. Thus, 

this evidence is not clear and convincing evidence that discredits Plaintiff’s testimony. 

Brown-Hunter, 806 F.3d at 493.
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3. The ALJ’s Third Reason. 

The ALJ found that “treatment notes further reflect that the Plaintiff was able to care 

for her sick father, which is inconsistent with her allegations of totally disabling symptoms 

and limitations.” A.R. 27. An ALJ may reject a claimant’s symptom testimony if it is 

inconsistent with the claimant’s daily activities. See Burch v. Barnhart, 400 F.3d 676, 681 

(9th Cir. 2005). She may only do so if the activities contradict the claimed limitations or 

she shows the Plaintiff “spend[s] a substantial part of [her] day engaged in pursuits 

involving the performance of physical functions that are transferable to a work setting.” 

Orn, 495 F.3d at 639. 

It is unclear what treatment records the ALJ is referring to. The Plaintiff did not 

testify to caring for her father, nor did she include such information in her function report. 

See A.R. 197-99. The ALJ provided no citations to support her assertion, and the Court 

will not “comb the record” to find supporting evidence. See cf. Burrell, 775 F.3d. at 1138. 

The ALJ has similarly failed to show how this alleged activity contradicts Plaintiff’s 

claimed limitations or that Plaintiff spends a substantial part of her day performing these 

activities. The Court cannot conclude this is a clear and convincing reason to reject 

Plaintiff’s symptom testimony. 

4. Conclusion.

The ALJ provided sufficient clear and convincing evidence to question Plaintiff’s

testimony that she cannot sit or stand for more than fifteen minutes. And the ALJ 

reasonably concluded that Plaintiff’s credibility was undermined by her use of illegal drugs

and lack of effort as reported in Plaintiff’s examination. 

C. Remand. 

The ALJ erred in discrediting Dr. Garrison’s first opinion and in crediting the 

nonexamining physicians’ opinion. Plaintiff contends that, crediting these opinions as true, 

the Court must remand for an award of benefits. Docs 18 at 25. 

“When the ALJ denies benefits and the Court finds error, the Court ordinarily must 

remand to the agency for further proceedings before directing an award of benefits.” Leon 
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v. Berryhill, 880 F.3d 1041, 1045 (9th Cir. 2017). Under a “rare exception” to this rule, 

the Court may remand for an immediate award of benefits after conducting a three-part 

inquiry:

First, the Court asks whether the ALJ failed to provide legally sufficient 

reasons for rejecting evidence, whether claimant testimony or medical 

opinion. Next, the Court determines whether there are outstanding issues 

that must be resolved before a disability determination can be made, and 

whether further administrative proceedings would be useful. When these 

first two conditions are satisfied, [the Court] will then credit the discredited 

testimony as true for the purpose of determining whether, on the record taken 

as a whole, there is no doubt as to disability.

Id. (internal quotation marks and citations omitted). Leon emphasized that the Court has 

discretion to remand for further proceedings even if it reaches the third step in the process. 

Id. “Where an ALJ makes a legal error, but the record is uncertain and ambiguous, the 

proper approach is to remand the case to the agency.” Id. (quotation marks omitted).

The ALJ erred in discrediting Dr. Garrison’s first opinion, but not his second 

opinion, and she failed to cite sufficient evidence to support her acceptance of the 

examining doctor opinions. The ALJ did, however, identify clear and convincing reasons

for discounting Plaintiff’s symptom testimony. 

The Court concludes that there are outstanding issues that must be resolved before 

a disability determination can be made, including the proper weighing of the experts’ 

opinions. The Court also concludes that Plaintiff’s lack of credibility raises doubt as to her 

disability. Further proceedings before the ALJ are warranted.

IT IS ORDERED that the final decision of the Commissioner of Social Security is 

vacated and this case is remanded for further proceedings consistent with this opinion. 

The Clerk shall enter judgment accordingly and terminate this action.

Dated this 6th day of December, 2018.