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WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Joanna Reis, 

Plaintiff, 

v. 

Nancy A. Berryhill, 

Defendant.

No. CV-17-0594-TUC-LCK

ORDER 

 Plaintiff Joanna Reis filed this action pursuant to 42 U.S.C. § 405(g) seeking judicial 

review of a final decision by the Commissioner of Social Security (Commissioner). (Doc. 

1.) In response, Defendant requested a remand for further proceedings, to which Plaintiff 

replied seeking a remand for payment of benefits. (Docs. 22, 23.) The parties have 

consented to Magistrate Judge jurisdiction. (Doc. 14.) Based on the pleadings and the 

administrative record, the Court remands this matter for benefits. 

PROCEDURAL HISTORY 

 Reis filed an application for Disability Insurance Benefits (DIB) in March 2014. 

(Administrative Record (AR) 187.) She alleged disability from September 20, 2013. (Id.) 

Reis’s application was denied upon initial review (AR 60-80) and on reconsideration (AR 

81-102). A hearing was held on June 9, 2016. (AR 41-59.) Subsequently, the ALJ found 

that Reis was not disabled. (AR 20-31). The Appeals Council denied Reis’s request to 

review the ALJ’s decision. (AR 1.) 
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FACTUAL HISTORY 

 Reis was born on June 23, 1976, making her 37 years of age at the onset date of her 

alleged disability. (AR 187.) Reis has a college degree and worked most recently in a 

clinical position with COPE Community Services from 2007 to 2013. (AR 210.) 

 The ALJ found that Reis had the severe impairments of other disorders of the 

nervous system, obesity, cervical disorders, tardive dyskinesia, chronic pain, obstructive 

sleep apnea, affective disorders, and anxiety disorders. (AR 22.) The ALJ determined Reis 

had the Residual Functional Capacity (RFC) to perform light work but could balance and 

stoop only frequently; climb ramps/stairs, kneel, crouch, and crawl occasionally; and never 

climb ladders/ropes/scaffolds. (AR 24.) The ALJ stated that Reis could understand, 

remember, and carry out simple instructions, respond appropriately to supervisors, 

coworkers, and work situations, and maintain concentration, persistence, and pace for twohour periods without a break. (AR 24-25.) The ALJ concluded at Step Five, based on the 

testimony of a vocational expert, that Reis could perform work available in the national 

economy. (AR 30-31.) 

STANDARD OF REVIEW 

 The Commissioner employs a five-step sequential process to evaluate DIB claims. 

20 C.F.R. § 404.1520; see also Heckler v. Campbell, 461 U.S. 458, 460-462 (1983). To 

establish disability the claimant bears the burden of showing she (1) is not working; (2) has 

a severe physical or mental impairment; (3) the impairment meets or equals the 

requirements of a listed impairment; and (4) claimant’s RFC precludes her from 

performing his past work. 20 C.F.R. § 404.1520(a)(4). At Step Five, the burden shifts to 

the Commissioner to show that the claimant has the RFC to perform other work that exists 

in substantial numbers in the national economy. Hoopai v. Astrue, 499 F.3d 1071, 1074 

(9th Cir. 2007). If the Commissioner conclusively finds the claimant “disabled” or “not 

disabled” at any point in the five-step process, she does not proceed to the next step. 20 

C.F.R. § 404.1520(a)(4). 
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 “The ALJ is responsible for determining credibility, resolving conflicts in medical 

testimony, and for resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th 

Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989)). The findings 

of the Commissioner are meant to be conclusive if supported by substantial evidence. 42 

U.S.C. § 405(g). Substantial evidence is “more than a mere scintilla but less than a 

preponderance.” Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (quoting Matney v. 

Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)). The court may overturn the decision to 

deny benefits only “when the ALJ’s findings are based on legal error or are not supported 

by substantial evidence in the record as a whole.” Aukland v. Massanari, 257 F.3d 1033, 

1035 (9th Cir. 2001). This is so because the ALJ “and not the reviewing court must resolve 

conflicts in the evidence, and if the evidence can support either outcome, the court may not 

substitute its judgment for that of the ALJ.” Matney, 981 F.2d at 1019 (quoting Richardson 

v. Perales, 402 U.S. 389, 400 (1971)); Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 

1190, 1198 (9th Cir. 2004). The Commissioner’s decision, however, “cannot be affirmed 

simply by isolating a specific quantum of supporting evidence.” Sousa v. Callahan, 143 

F.3d 1240, 1243 (9th Cir. 1998) (citing Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 

1989)). Reviewing courts must consider the evidence that supports as well as detracts from 

the Commissioner’s conclusion. Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975). 

DISCUSSION 

 Reis argues the ALJ committed three errors: (1) he failed to provide clear and 

convincing reasons for rejecting her credibility; (2) he erred in giving reduced weight to 

treating and examining physician opinions; and (3) he failed to include all of Reis’s 

limitations in the RFC. 

Credibility 

 Reis argues the ALJ failed to provide clear and convincing reasons to reject her 

testimony. In general, “questions of credibility and resolution of conflicts in the testimony 

are functions solely” for the ALJ. Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007) 

(quoting Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982)). However, “[w]hile an 
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ALJ may certainly find testimony not credible and disregard it . . . [the court] cannot affirm 

such a determination unless it is supported by specific findings and reasoning.” Robbins v. 

Soc. Sec. Admin., 466 F.3d 880, 884-85 (9th Cir. 2006); Bunnell v. Sullivan, 947 F.2d 341, 

345-346 (9th Cir. 1995) (requiring specificity to ensure a reviewing court the ALJ did not 

arbitrarily reject a claimant’s subjective testimony); SSR 96-7p. “To determine whether a 

claimant’s testimony regarding subjective pain or symptoms is credible, an ALJ must 

engage in a two-step analysis.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 

2007). 

 Initially, “the ALJ must determine whether the claimant has presented objective 

medical evidence of an underlying impairment ‘which could reasonably be expected to 

produce the pain or other symptoms alleged.’” Id. at 1036 (quoting Bunnell, 947 F.2d at 

344). The ALJ found Reis had satisfied part one of the test by proving an impairment that 

could produce the symptoms alleged. (AR 29.) Next, if “there is no affirmative evidence 

of malingering, the ALJ can reject the claimant’s testimony about the severity of her 

symptoms only by offering specific, clear and convincing reasons for doing so.” 

Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (quoting Smolen v. Chater, 80 

F.3d 1273, 1281, 1283-84 (9th Cir. 1996)). Here, the ALJ did not make a finding of 

malingering. Therefore, to support his discounting of Reis’s assertions regarding the 

severity of her symptoms, the ALJ had to provide clear and convincing, specific reasons. 

See Garrison v. Colvin, 759 F.3d 995, 1014-15 (9th Cir. 2014); Vasquez v. Astrue, 572 

F.3d 586, 591 (9th Cir. 2008) (quoting Lingenfelter, 504 F.3d at 1036). 

 The ALJ discounted Reis’s credibility because he found that her asserted limitations 

were inconsistent with activities described to caregivers and her actions during a camping 

trip. (AR 29.) Reis was filmed in March 2014, in relation to a disability application, while 

at a reenactment called the Estrella War event. The ALJ summarized the video as showing 

her cooking, cleaning dishes, walking, interacting with other people, and moving items into 

her vehicle, including bending at the waist to do so. (AR 26.) The ALJ also referenced 

Reis’s August 2014 statements that she was an SCA (Society for Creative Anachronism) 
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reenactor, enjoyed crocheting, cross-stich, embroidery, cooking, camping, games, and 

spending time with family; and Reis’s 2015 statements to a therapist that she had been 

going to MeetUp events twice a month (playing card games) (AR 1410), had done some 

events with the SCA, and was spending time with a friend and her children (AR 1407). 

(AR 26.) 

 The ALJ found these reported activities inconsistent with Reis’s limitations as stated 

in October 2014 and June 2016, that she could not read or sit at a computer for more than 

15 minutes; her pain was 8-9 out of 10; she could lift a gallon of milk but would use both 

hands; on a typical day, she ate, went to a medical appointment (or left the house once per 

day), did one chore and/or dishes, rested, lay down, watched television, tried to prepare 

dinner, and slept; she spent half her day laying down; she could do activities only for short 

periods of time; vacuuming and mopping aggravated her pain; she could stand and sit for 

30 to 60 minutes at a time; her conditions impacted her ability to lift, squat, bend, stand, 

reach, walk, sit, kneel, talk, hear, stair-climb, see, complete tasks, concentrate, follow 

instructions, use her hands, get along with others, and her memory; she drove when able; 

she failed in her 2014 work attempt because she could not type, hold the phone to her ear, 

read the computer, or write; and her head would become locked in a position during the 

day and moving it caused headaches. (AR 25-26.) 

If a claimant’s activities contradict her testimony, or the claimant spends a 

substantial portion of her day at activities that involve skills transferable to a work setting, 

those circumstances can form the basis for an adverse credibility determination. See Orn 

v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). Here, the ALJ found that Reis’s activities of 

daily living were not consistent with her allegations of complete disability. The Court 

concludes the ALJ’s finding was error. There was no contradiction between Reis’s ability 

to socialize periodically by playing cards, going to one (or more) reenactment events, or 

meeting a friend, and her statements that she can be active for only short periods of time. 

She reported trying to get out of the house once a day, including doctor’s appointments. 

Similarly, the fact that she enjoys crafts is not inconsistent with her reported limitations. 
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Because Reis’s activities did not contradict her symptom testimony that did not provide a 

clear and convincing reason to reject her credibility. 

Further, there is not substantial evidence to support the ALJ’s summary of Reis’s 

activities. The investigator’s narrative for the week-long Estrella War event covered 

February 25 to March 2, 2014. (AR 1126-30.) During those days, Reis was observed 

interacting with people, eating, riding in a golf cart, sitting in a chair, visiting merchant 

tents for 23 minutes, using the bathroom, showering once, wiping her plate clean once, 

making two sandwiches, wiping down plates and pans and using cooking utensils over the 

course of 24 minutes, bending at the waist several times, carrying various items around the 

event, and packing items into her car. (Id.) Reis’s observed “cooking” and “cleaning” was 

quite limited given her presence at the event for six days. In a post-hearing letter, Reis 

explained that others were assigned kitchen duty at the same time, which allowed her to 

take breaks as needed. (AR 344.) Additionally, there is no evidence to document the weight 

of any items she was seen carrying; Reis acknowledged she could lift items that were not 

too heavy, and she explained that she needed assistance with her tent and loading/unloading 

her vehicle. (Id.) Additionally, in a May 2014 function report (2 months after the Estrella 

War event) and in the post-hearing letter to the ALJ, Reis stated that she had sold her tent 

because the physical exertion and pain involved in tent camping was too great. (AR 230, 

344.) 

Next, when Reis stated: “I am an SCA Renaissance reenactor, I like to crochet, 

cross-stich, embroider, cook, camp, play games, be with family,” it was to summarize her 

interests and skills during an intake assessment with CODAC. (AR 907.) It was not a 

statement of how she spent her time. At the same appointment, she reported that she would 

try to do a craft “but it usually doesn’t happen,” and that pain impeded her ability to do 

craft activities. (AR 906, 914.) 

The ALJ cited only one reason to discount Reis’s credibility and it falls short of 

being a clear and convincing reason and it is not supported by substantial evidence. 

Therefore, the ALJ erred in rejecting Reis’s symptom testimony. 
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Medical Opinions 

 Reis argues the ALJ failed to provide specific legitimate reasons to reject the 

opinion of treating physicians Dr. David Siegel and Dr. Sudeshna Bose and examining 

physician Dr. Scott Sherman. The opinions of treating and examining physicians generally 

are afforded more weight than a non-examining or reviewing physician’s opinion. Lester 

v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). The opinions of Drs. Sherman, Siegel, and 

Bose were contradicted by that of reviewing physicians Drs. Martha Goodrich and Lloyd 

Anderson. (AR 75-77, 96-99.) When there are contradictory medical opinions, to reject a 

treating or examining physician’s opinion, the ALJ must provide “specific and legitimate 

reasons that are supported by substantial evidence.” Lester, 81 F.3d at 830-31; Bayliss v. 

Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 

On January 31, 2014, Dr. Sudeshna Bose, a treating physician, determined that 

Reis’s tardive dyskinesia and dystonia were unlikely to resolve because they had persisted 

for more than one year. (AR 644.) Dr. Bose noted that Reis’s multiple medications had 

cognitive side effects and that her depression was poorly controlled. (Id.) She concluded 

Reis could not work and should continue on short-term disability “because of the cognitive 

slowing from polypharmacy, her pain syndrome, and psychiatric condition.” (Id.) The ALJ 

discounted the opinion of Dr. Bose because the doctor accepted Reis’s complaints and her 

report was inconsistent with Reis’s actions at the Estrella War event. (AR 28.) 

 Dr. David Siegel examined Reis on October 22, 2014. He noted her head tilted right 

at rest and returned to that position 30 seconds after rotation to the left. (AR 1345.) She 

had tenderness in the cervical muscles, decreased range of motion to the left, and pain with 

neck movement. (AR 1345.) Dr. Siegel diagnosed spondylosis of cervical region; 

cervicalgia, headache, and cervical dystonia. (AR 1345-46.) He opined that she had a 

“refractory disabling problem.” (AR 1346.) Before offering his opinion, Dr. Scott Sherman 

examined Reis in May 2016, and reviewed “voluminous” records. (AR 1428, 1436.) He 

diagnosed tardive dyskinesia, including severe tardive dystonia. (AR 1430.) Dr. Sherman 

evaluated Reis as having “marginal or no ability to perform domestic responsibilities”; 
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found that all activities of daily living were impaired and some impossible; activities 

outside the home were limited with some impossible; and reading was limited to a few 

sentences. (AR 1431.) He noted that patients with the level of severity exhibited by Reis 

are “rarely, if ever” able to perform competitive employment. (Id.) Dr. Sherman identified 

Reis as having difficulty with fine motor control and coordination. (AR 1433.) He recorded 

her need for treatment because the condition was disabling. (AR 1434.) Dr. Sherman 

opined that Reis’s impairments were of physical not psychological origin. (AR 1436.) The 

ALJ gave little weight to the opinions of Drs. Siegel and Sherman because they “apparently 

relied quite heavily on the subjective report of symptoms and limitations” and “seemed to 

uncritically accept as true . . . what the Claimant reported.” (AR 27, 28.) Because the ALJ 

found Reis not credible, he gave little weight to these doctors’ opinions. (AR 27, 28.) 

 Defendant conceded that the ALJ erred in his evaluation of the opinions of Drs. 

Bose and Siegel. Defendant did not mention the opinion of Dr. Sherman. However, it was 

rejected by the ALJ on the identical basis as Dr. Siegel’s opinion; therefore, Defendant’s 

concession necessarily applies to his opinion as well. Discounting a doctor’s opinion 

because it is based on a claimant’s symptom report is only legitimate if a claimant’s selfreports are not credible. See Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th 

Cir. 2009). Because the ALJ’s credibility finding was not valid, it was error for the ALJ to 

reject Dr. Sherman’s opinion (and the opinions of Drs. Siegel and Bose) because it was 

based on Reis’s self-reports. Additionally, Dr. Bose was a treating physician, and Drs. 

Siegel and Sherman examined Reis and reviewed prior medical records; therefore, they did 

not rely solely on Reis’s self-reports. (AR 1345, 1428.) As conceded in part by Defendant, 

the ALJ erred in rejecting the opinions of Drs. Bose, Siegel, and Sherman without 

providing specific, legitimate reasons supported by substantial evidence. 

CONCLUSION 

 A federal court may affirm, modify, reverse, or remand a social security case. 42 

U.S.C. ' 405(g). When a court finds that an administrative decision is flawed, the remedy 

should generally be remand for “additional investigation or explanation.” INS v. Ventura, 
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537 U.S. 12, 16 (2006) (quoting Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 

(1985)); see also Moisa v. Barnhart, 367 F.3d 882, 886 (9th Cir. 2004). However, a district 

court should credit as true physician opinions and a claimant’s testimony that was 

improperly rejected by the ALJ and remand for benefits if: 

(1) the ALJ failed to provide legally sufficient reasons for rejecting the testimony; (2) there are no outstanding issues that must be resolved before a 

determination of disability can be made; and (3) it is clear from the record 

that the ALJ would be required to find the claimant disabled were such 

evidence credited. 

Benecke, 379 F.3d at 594; Garrison, 759 F.3d at 1021 (precluding remand for further 

proceedings if the purpose is solely to allow ALJ to revisit the medical opinion he rejected). 

The Ninth Circuit holds that application of the credit as true rule is mandatory unless the 

record creates serious doubt that the claimant is disabled. Garrison, 759 F.3d at 1021. 

 Here, all the requirements of the credit-as-true rule are satisfied. The Court found 

the ALJ rejected the opinions of Drs. Bose, Siegel, and Sherman without specific, 

legitimate reasons supported by substantial evidence and Reis’s symptom testimony 

without clear and convincing reasons. There are no outstanding issues that require 

resolution before the question of disability can be resolved. 

 The Court first looks at Reis’s symptom testimony. Reis testified that she could sit 

or stand for a maximum of 60 minutes at a time and needed to lay down during the day. 

(AR 49, 257.) Reis reported an inability to lift more than ten pounds (AR 49, 231) or to use 

her hands bilaterally (AR 51). The vocational expert testified that a person with those 

limitations could not meet the requirements of competitive employment. (AR 58.) 

Additionally, in function reports, Reis stated she could pay attention for no more than 30 

consecutive minutes. (AR 231, 259.) The vocational expert testified that a person was not 

employable if they could not concentrate for two hours at a time. (AR 57.) 

 Next, the Court looks at the opinions of Drs. Sherman, Siegel, and Bose. Dr. 

Sherman found Reis’s condition disabling and opined that she would not be able to sustain 

employment. Similarly, Dr. Bose concluded Reis was unable to work. Dr. Siegel 

determined Reis had a “refractory disabling problem,” meaning her impairments were 
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disabling and had not responded to treatment. Crediting these doctors’ opinions as true, it 

is clear the ALJ would be required to find Reis disabled. For these reasons, Reis is 

necessarily disabled when her symptom testimony and the opinions of Drs. Sherman, 

Siegel, and Bose are credited as true. 

 Defendant argues the credit-as-true rule does not apply because there are 

“significant factual conflicts” in the record. In support of that argument, Defendant cites 

an examining physician who found Plaintiff could perform the physical requirements of 

work. While true, that same doctor concluded Reis was unable to work due to 

psychological impairments. (AR 1137-38.) Defendant also cites a non-examining, 

reviewing physician that concluded Reis could work without restriction. (AR 1266-71.) 

She fails to acknowledge the ALJ found that opinion entitled to little weight. (AR 28.) The 

remaining conflicting evidence is the opinions of the State agency medical consultants, 

upon which the ALJ relied. But, the opinions of non-examining physicians are not, by 

themselves, substantial evidence to reject the opinions of examining or treating physicians. 

Lester, 81 F.3d at 831. The opinions from doctors that treated or examined Reis were in 

accord that she was unable to maintain employment. 

 Next, Defendant argues there is an unresolved conflict between Reis’s symptom 

testimony and her observed activities. The Court found the ALJ’s reliance on that alleged 

conflict was error. Defendant implicitly acknowledged that the ALJ’s credibility finding 

was erroneous, when she stated that the ALJ erred in his rejection of Dr. Siegel’s opinion. 

(Doc. 22 at 2.) The only basis cited by the ALJ for rejecting Dr. Siegel’s opinion was that 

Reis’s subjective complaints were not credible. When the Defendant acknowledged that 

was not a valid basis to reject Dr. Siegel’s opinion, she tacitly conceded that the ALJ’s 

credibility finding also was invalid. Cf. Bray, 554 F.3d at 1228 (finding it legitimate to 

discount a doctor’s opinion because it is based on a claimant’s symptom report only if the 

self-reports are not credible). Therefore, in arguing that this matter should be remanded for 

further proceedings, it was disingenuous for Defendant to rely upon the ALJ’s erroneous 
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conclusion that Reis’s actions conflicted with her testimony. Regardless, the Court 

concluded there was no such conflict. 

Finally, Defendant suggests the ALJ could obtain a consultative exam upon remand; 

however, she does not argue that the record has not been fully developed. In fact, the record 

is extensive at over 1500 pages, with no critical evidence absent. (Doc. 16.) What 

Defendant seeks is a remand to allow the ALJ to reevaluate the medical testimony and 

Reis’s symptom testimony. (Doc. 22 at 2 ll. 15-18.) This is contrary to governing law, 

which holds that the Commissioner is not entitled to a second chance to justify his improper 

rejection of claimant symptom testimony and medical opinions. See Garrison, 759 F.3d at 

1021-22 (rejecting argument that a remand to allow ALJ to reconsider testimony he 

improperly rejected qualifies as “useful purpose”); Moisa, 367 F.3d at 887 (“The 

Commissioner, having lost this appeal, should not have another opportunity to show that 

Moisa is not credible any more than Moisa, had he lost, should have an opportunity for 

remand and further proceedings to establish his credibility.”); Varney v. Sec’y Health & 

Human Servs., 859 F.2d 1396, 1399 (9th Cir. 1988) (finding it is “reasonable and desirable” 

for an ALJ to articulate any legitimate reasons to find a claimant untruthful in his original 

decision). 

 After considering the entire record, the Court does not have serious doubt as to 

whether Reis is disabled.1

 Accordingly, 

IT IS ORDERED that the decision of the Commissioner is REVERSED AND 

REMANDED for an award of benefits. The Clerk of Court should enter judgment and 

close this case. 

 Dated this 14th day of March, 2019. 

 

1

 Reis raised a third claim, that the ALJ erred in formulating her RFC. Because the case is fully resolved on the other two claims, the Court does not reach that argument.