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WO

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Harold Newton, 

Plaintiff, 

v. 

Commissioner of Social Security 

Administration, 

Defendant. 

No. CV-17-08247-PCT-DGC 

ORDER 

 Plaintiff Harold Newton seeks review under 42 U.S.C. § 405(g) of the final 

decision of the Commissioner of Social Security, which denied him disability insurance 

benefits and supplemental security income under §§ 216(i), 223(d), and 1614(a)(3)(A) of 

the Social Security Act. The Court finds that the administrative law judge’s (“ALJ”) 

decision is based on reversible legal error, and will remand for further proceedings. 

I. Background. 

 Plaintiff is a 48 year old male who previously worked as an industrial cleaner, 

construction apprentice, warehouse worker, and grounds keeper. A.R. 33-34. Plaintiff 

applied for disability insurance benefits and supplemental security income in September 

and October 2013, alleging disability beginning on January 30, 2013. A.R. 20. On 

February 23, 2016, Plaintiff testified at a hearing before an ALJ. Id. A vocational expert 

also testified. Id. On September 20, 2016, the ALJ issued a decision that Plaintiff was 

not disabled within the meaning of the Social Security Act. A.R. 20-36. This became the 
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Commissioner’s final decision when the Appeals Council denied Plaintiff’s request for 

review on September 26, 2017. A.R. 1-5. 

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 determination only if it 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.

(citation omitted). 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). 

 Harmless error principles apply in the Social Security 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 burden is on the party claiming error to 

demonstrate not only the error, but also that it affected [her] substantial rights.” Ludwig 

v. Astrue, 681 F.3d 1047, 1054 (9th Cir. 2012). 

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) he is not currently working, (2) he has a severe 

impairment, and (3) this impairment meets or equals a listed impairment or (4) his 

residual functional capacity (“RFC”) prevents his performance of any past relevant work. 
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If the claimant meets his burden through step three, the Commissioner must find him 

disabled. If the inquiry proceeds to step four and the claimant shows that he is incapable 

of performing past relevant work, the Commissioner must show at step five that the 

claimant is capable of other work suitable for his RFC, age, education, and work 

experience. 20 C.F.R. § 404.1520(a)(4). 

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

Social Security Act through December 31, 2018, and had not engaged in substantial 

gainful activity since January 30, 2013. A.R. 22. At step two, the ALJ found that 

Plaintiff had the following severe impairments: degenerative disc disease of the lumbar 

spine, type-two diabetes mellitus, and obesity. A.R. 23. At step three, the ALJ 

determined that Plaintiff did not have an impairment or combination of impairments that 

meets or medically equals a listed impairment. A.R. 25. At step four, the ALJ found that 

Plaintiff had the RFC to perform sedentary work with some additional limitations, but 

that Plaintiff was unable to perform his past relevant work as an industrial cleaner, 

construction apprentice, warehouse worker, or grounds keeper. A.R. 26, 33-34. At step 

five, the ALJ concluded that, considering Plaintiff’s age, education, work experience, and 

RFC, he was able to perform the requirements of occupations like call-out operator, 

document preparer, and addressing clerk. A.R. 34-35. 

IV. Analysis. 

 Plaintiff makes three arguments: (1) the ALJ erroneously weighed the medical 

opinion evidence, (2) the ALJ erroneously relied on vocational expert testimony that 

conflicted with the Dictionary of Occupational Titles, and (3) the ALJ erroneously 

discredited Plaintiff’s symptom testimony. Doc. 12 at 11-25. 

A. Medical Opinion Evidence. 

 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 
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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). 

 In determining how much deference to give a physician’s medical opinion, 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 the greatest weight to a treating physician’s 

opinion and more weight to the opinion of an examining physician than a non-examining 

physician. See Andrews v. Shalala, 53 F.3d 1035, 1040-41 (9th Cir. 1995); see also 20 

C.F.R. § 404.1527(c)(1)-(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 a treating or examining physician’s medical opinion is not contradicted by 

another doctor, the opinion can be rejected only for clear and convincing reasons. 

Lester, 81 F.3d at 830. Under this standard, the ALJ may reject a treating or examining 

physician’s opinion if it is “conclusory, brief, and unsupported by the record as a whole 

or by objective medical findings,” Batson v. Comm’r Soc. Sec. Admin., 359 

F.3d 1190, 1195 (9th Cir. 2004) (citation omitted), or if there are significant 

discrepancies between the physician’s opinion and her clinical records, Bayliss v. 

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

 When a treating or examining physician’s opinion is contradicted by another 

doctor, it can be rejected for “specific and legitimate reasons that are supported by 

substantial evidence in the record.” Lester, 81 F.3d at 830-31. To satisfy this 

requirement, the ALJ must set out “a detailed and thorough summary of the facts and 

conflicting clinical evidence, stating his interpretation thereof, and making findings.” 

Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) (quotation marks and citation 

omitted). Under either standard, “[t]he ALJ must do more than offer [her] conclusions. 

[She] must set forth [her] own interpretations and explain why they, rather than the 
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doctors’, are correct.” Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (quotation 

marks and citation omitted). 

1. Dr. Ohman. 

 Dr. Valerie Ohman is a treating physician who offered multiple opinions regarding 

Plaintiff’s ability to work. A.R. 30-32. Plaintiff challenges only the ALJ’s rejection of 

her July 2013 opinion that Plaintiff “was unable to do [desk work] because he was unable 

to stand or sit for greater than 15 minutes.” A.R. 31. Because this opinion is inconsistent 

with those of multiple other physicians (A.R. 31-32), it can be rejected for “specific and 

legitimate reasons supported by substantial evidence in the record,” Lester, 81 F.3d 

at 830-31. 

 The ALJ discredited Dr. Ohman’s opinion for three reasons. The ALJ first noted 

that “treatment records from July and August 2013[] only noted numbness in [Plaintiff’s] 

feet due to back pain, but no other objective evidence to support these restrictions.” 

A.R. 31. “Objective medical evidence is medical signs, laboratory findings, or 

both[.]” 20 C.F.R. § 404.1513(a)(1). Plaintiff contends that the ALJ ignored Plaintiff’s 

report of right leg weakness to a physician in July 2013 and the fact that Dr. Ohman had a 

long treating relationship. Doc. 12 at 12. But a subjective report of weakness and long 

treatment history do not amount to medical signs or laboratory findings. Plaintiff also 

notes that “the doctor’s file contains numerous records that document [Plaintiff] was 

suffering from lumbar radiculopathy.” Id. But this conclusory assertion, made without 

citations to the record, is insufficient to establish error. Plaintiff finally notes that Dr. 

Ohman’s opinion is consistent with Plaintiff’s use of opioid medication. Id. Defendant 

contends that medication prescriptions do not amount to objective evidence (Doc. 17 

at 4), and the Court agrees. Opioid prescriptions are not medical signs or laboratory 

findings. See 20 C.F.R. § 404.1513(a)(1). These medications reflect a method of 

treatment that certainly supports Plaintiff’s allegations of pain, but they are not objective 

test results that support Dr. Ohman’s opined limitations. Plaintiff’s citation to Social 

Security regulations is unavailing. Doc. 18 at 4 (quoting 20 C.F.R. 
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§§ 404.1529(c)(3), 416.929(c)(3) (describing how the Commissioner, not a physician, 

evaluates a claimant’s symptoms)). The Court accordingly finds that this is a specific 

and legitimate reason to undermine Dr. Ohman’s opinion. 

 The ALJ next noted in a single sentence that Dr. Ohman’s opinion “is inconsistent 

with the opinion that was rendered just three days prior.” A.R. 31. That opinion, 

rendered by Physician’s Assistant (“P.A.”) Sandra Murphy, concludes that Plaintiff 

required significant work restrictions, but was capable of sedentary desk work. A.R. 418. 

The ALJ’s one-sentence citation to a conflicting opinion from a different medical source 

is insufficient to undermine Dr. Ohman’s opinion. The ALJ provides no explanation of 

why the opinion from P.A. Murphy undermines Dr. Ohman’s opined limitations. 

 The ALJ finally reasoned, in another single sentence, that Plaintiff “testified that 

he worked a[s] a janitor, with significant walking and lifting, which was demonstrative of 

his physical capacity.” A.R. 31. Again, the ALJ does not explain how this testimony 

undermines Dr. Ohman’s opined limitations. Nor does it acknowledge that Plaintiff’s 

work was only part-time from February to July 2013 and that Plaintiff quit when he could 

no longer perform the physical requirements of the job. See A.R. 58-59.1

 Even if the ALJ committed error in improperly weighing a medical opinion, that 

error will be harmless if the Court can “conclude from the record that the ALJ would 

have reached the same result absent the error.” Molina, 674 F.3d at 1115; see also Marsh 

v. Colvin, 792 F.3d 1170, 1172 (9th Cir. 2015). Two of the ALJ’s three reasons to 

discredit Dr. Ohman’s opinion fall well short of the “detailed and thorough” analysis the 

Ninth Circuit requires. Revels, 874 F.3d at 654. Although one reason is specific and 

legitimate, the Court cannot find that the ALJ would have reached the same conclusion 

had she properly evaluated Dr. Ohman’s opinion. The ALJ’s error was not harmless. 

 

 

1

 Plaintiff also contends that the ALJ undermined Dr. Ohman’s opinions by relying on her short-term work releases and the opinion of Dr. Trotter. Doc. 12 at 14, 17. 

These arguments mischaracterize the ALJ’s decision. The ALJ separately considered these opinions without linking them to any of Dr. Ohman’s opinions. A.R. 30-31. 
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2. Dr. Trotter. 

 Dr. David Trotter is a non-examining physician who opined in August 2013 that 

Plaintiff “had some restrictions and limitations, but was not precluded from full-time 

work place capacity.” A.R. 31, 419. The ALJ gave this opinion great weight “because it 

[is] supported by a thorough medical evidence evaluation” and Plaintiff’s “physical 

examinations support that he had normal strength, gait, and range of motion throughout 

the record.” A.R. 31. Plaintiff contends that the ALJ erred by assigning great weight to 

the opinion of a non-examining physician. Doc. 12 at 14. 

 Plaintiff first contends that the ALJ assigned great weight to Dr. Trotter’s opinion 

based on a mistaken belief that he performed a physical examination of Plaintiff. Doc. 12 

at 14. The ALJ did misclassify Dr. Trotter as an examining physician, but she did not 

rely on any examination he allegedly performed. A.R. 31. The ALJ instead emphasized 

that Dr. Trotter’s opinion is “supported by a thorough medical evidence evaluation” and 

physical examinations performed by other physicians. A.R. 31. Because the ALJ did not 

rely on this mistaken classification to assign great weight to Dr. Trotter, the Court does 

not find error. 

 Plaintiff next contends that the ALJ should have “articulate[d] her reasons for 

giving greater weight to a nonexamining physician’s opinion than a treating or examining 

physician’s opinion.” Doc. 12 at 15-16 (citing Morgan v. Comm’r of Soc. Sec. 

Admin., 169 F.3d 595, 600-01 (9th Cir. 1999)). But Morgan imposes no such 

requirement. 169 F.3d at 600-01 (describing standards for rejecting medical opinions). 

Plaintiff contends that Dr. Ohman was better positioned to render an accurate opinion 

(Doc. 12 at 16), but does not argue that the ALJ’s decision to assign weight to Dr. 

Trotter’s opinion lacks support in the record. The Court finds that the ALJ’s decision 

was supported by substantial evidence (A.R. 31 (citing A.R. 438, 442, 451, 475, 663, 

785)), and therefore finds no error. 

 
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3. Dr. Hales. 

 Dr. David Hales is an orthopedic physician who evaluated Plaintiff in 2013 

and 2014 for possible back surgery. A.R. 607, 738-42. Plaintiff contends that the ALJ 

failed to address two of his opinions. Doc. 12 at 18-19. The Court finds no error. 

 Plaintiff first contends that the ALJ failed to address Dr. Hales’ June 2013 opinion 

that Plaintiff could not work for one month and would be subject to functional limitations 

upon his return. Doc. 12 at 18-19 (citing A.R. 607). But the cited record describes the 

opinion of Dr. Ohman, not Dr. Hales. A.R. 606-07. Defendant identifies this issue 

(Doc. 17 at 5-6), and Plaintiff does not respond (Doc. 18 at 6). 

 Plaintiff next contends that the ALJ failed to address Dr. Hales’ September 2014 

opinion that Plaintiff “can only walk for 5-10 minutes or stand in one place before []he 

has to [lie] down because of the back pain.” A.R. 738; see Doc. 12 at 18. But the quoted 

language is merely a recitation of Plaintiff’s symptoms as he reported them. See

A.R. 738. The relevant medical impression section from the same office visit offers no 

such opinion. A.R. 741. The Court therefore finds no error. 

4. Dr. Patel. 

 Dr. Sanjay Patel is an examining physician who opined in May 2015 and 

January 2016 that Plaintiff had numerous physical limitations that restricted his ability to 

work. A.R. 32-33. Dr. Patel identified significant limitations with respect to Plaintiff’s 

ability to sit, stand, walk, bend, squat, climb, concentrate, and operate in a stressful work 

environment. A.R. 32-33. Because this opinion is inconsistent with those of multiple 

other physicians (A.R. 31-32), it can be rejected for “specific and legitimate reasons 

supported by substantial evidence in the record,” Lester, 81 F.3d at 830-31. The ALJ 

gave little weight to this opinion: 

In regard to the [RFC] provided by Dr. Patel, there is no evidence that 

[Plaintiff] is this limited. [Plaintiff’s] physical examinations reflect 

tenderness and limited motion of the lumbar spine, but good overall 

mobility and use of the extremities. He has no neurological deficits. 
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A.R. 33 (internal citations omitted). 

 Plaintiff contends that this reasoning is insufficient (Doc. 12 at 19), and the Court 

agrees. Although the ALJ provided multiple record citations, she did not explain how the 

clinical findings in those records conflict with any of the specific limitations identified in 

Dr. Patel’s opinion. The ALJ’s explanation falls short of the “detailed and thorough” 

analysis the Ninth Circuit requires. Revels, 874 F.3d at 654. Because the ALJ offered 

this single reason to discredit Dr. Patel’s opinion, the Court cannot conclude that this 

error was harmless.2

5. Dr. Mayer. 

 Dr. David Mayer is a treating primary-care physician who offered this brief 

opinion in April 2015: 

This patient is under my care for [diabetes], Hypertension, back pain, left 

shoulder tendinitis, [and] sleep disorder. He is awaiting back surgery. 

Currently [Plaintiff] is unable to do work of any kind including sedentary 

work. His pain and sedating medications are limiting his ability to do even 

sedentary work. It is hoped that surgery will reduce the need for the 

sedating medication and improve his function to the point that he can return 

to work in some capacity. 

A.R. 730. 

 The ALJ assigned little weight to this opinion for two reasons (A.R. 32), and 

Plaintiff does not challenge them (Doc. 12 at 20). Plaintiff instead contends that the ALJ 

mistook Dr. Mayer’s opinion “as suggesting the reason for [it] was solely because of 

[Plaintiff’s] pain and the sedating effects of his medications.” Id. Because Dr. Mayer 

was a treating physician with access to Plaintiff’s entire medical history, Plaintiff argues, 

this opinion is rooted on a comprehensive consideration of his impairments. Id.

 Granted, Dr. Mayer’s opinion notes that Plaintiff has diabetes, hypertension, left 

shoulder tendinitis, sleep disorder, and a spinal condition that requires surgery. A.R. 730. 

But when offering his disability determination, Dr. Mayer states only that Plaintiff’s 

2

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“pain and sedating medications are limiting his ability to do even sedentary work.” 

A.R. 730. “Where 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, 278 F.3d at 954. Plaintiff may disagree with the ALJ’s reading of Dr. Mayer’s 

opinion, but the Court concludes the ALJ’s interpretation of this somewhat vague opinion 

is reasonable. The Court cannot find error. 

6. State Agency Reviewing Physicians. 

 Plaintiff argues that the ALJ “rejected the opinions of the treating physicians by 

giving great weight to the opinions of State Agency consultants who never examined 

[him].” Doc. 12 at 21. The ALJ addressed each medical opinion in the same section of 

her decision (A.R. 30-33), but Plaintiff does not cite any language from the decision to 

suggest that the ALJ actually relied on the non-examining physicians to reject the treating 

physician opinions (Doc. 12 at 21). 

 Dr. Bendheim is an examining physician who opined in February 2014 that 

Plaintiff “did not have impairments that would impose limitations [for a] continuous 12 

months[.]” A.R. 31. Plaintiff contends that the “ALJ erred by failing to provide an 

adequate explanation for her reasons for giving greater weight to a non-treating physician 

. . . who only had limited records and saw [Plaintiff] early on after the onset of his 

disability[.]” Doc. 12 at 21. The ALJ offered reasoning (A.R. 31) that Plaintiff does not 

address (see Doc. 12 at 20-21). Nor does Plaintiff cite authority for the proposition that 

an ALJ commits error merely by crediting a physician’s opinion. The Court finds no 

error. 

B. Vocational Expert Testimony. 

 Plaintiff contends that the ALJ erred by relying on vocational expert (“VE”) 

testimony without first resolving a conflict between the testimony and the Dictionary of 

Occupational Titles (“DOT”). Doc. 12 at 21-22. The VE testified that a hypothetical 

individual with the RFC formulated by the ALJ could perform three specific occupations 

by freely alternating between standing and sitting. A.R. 87-88. But because the DOT 
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does not describe this sit/stand option for the three occupations, Plaintiff argues, the VE’s 

testimony conflicted with the DOT. Doc. 12 at 21-22. Defendant concedes that the DOT 

is silent on whether such an accommodation can be made, but contends that silence 

cannot be the basis for a conflict. Doc. 17 at 9. 

 “If the expert’s opinion that the applicant is able to work conflicts with, or seems 

to conflict with, the requirements listed in the [DOT], then the ALJ must ask the expert to 

reconcile the conflict before relying on the expert to decide if the claimant is disabled.” 

Lamear v. Berryhill, 865 F.3d 1201, 1205 (9th Cir. 2017) (brackets omitted). To trigger 

this obligation, “the conflict must be obvious or apparent.” Id. (internal quotation marks 

omitted). “This means that the testimony must be at odds with the [DOT’s] listing of job 

requirements that are essential, integral, or expected.” Gutierrez v. Colvin, 844 

F.3d 804, 808 (9th Cir. 2016). 

 Cases within the Ninth Circuit conflict on whether the DOT’s mere silence on 

sit/stand accommodations can create a conflict that meets the “obvious or apparent” 

standard. See McDaniel v. Colvin, No. 5:16-CV-00869, 2017 WL 1399629, at *4-5 

(C.D. Cal. Apr. 18, 2017) (collecting cases). In unpublished decisions from 2011 

and 2016, the Ninth Circuit assumed that this situation creates a conflict and held only 

that the ALJ adequately reconciled the discrepancy by discussing it with the VE on the 

record. See Ruiz v. Colvin, 638 F. App’x 604, 606-07 (9th Cir. 2016); Buckner-Larkin v. 

Astrue, 450 F. App’x 626, 628-29 (9th Cir. 2011). But in a more recent unpublished 

decision, the Ninth Circuit squarely addressed this issue: 

The hypothetical posed to the [VE] was complete and did not conflict with 

the [DOT]. A conflict must exist between the VE’s testimony and the DOT 

in order to trigger the ALJ’s responsibility to resolve the conflict. Here, the 

DOT is silent on whether the jobs in question allow for a sit/stand option. 

There is no conflict. The ALJ complied with the requirements of Social 

Security Ruling 83-12 in this case. Specifically, he properly consulted a 

VE, who indicated that there were jobs that Claimant could perform even 

though he required a sit/stand option and use of a cane to ambulate. The 

ALJ also confirmed that the VE’s testimony did not deviate from the DOT. 

The ALJ did not err by relying upon the VE’s testimony. 
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Dewey v. Colvin, 650 F. App’x 512, 514 (9th Cir. 2016) (internal citations omitted). 

 This case is similar to Dewey. The VE testified that Plaintiff could work as a callout operator, document preparer, and addressing clerk with a sit/stand option. 

A.R. 87-88. The DOT is silent on whether such an accommodation is permissible for 

these occupations, but the VE confirmed that her testimony was consistent with the DOT. 

A.R. 88. The Court accordingly finds no “obvious or apparent” conflict. 

C. Plaintiff’s Symptom Testimony. 

 In evaluating a claimant’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. Revels, 874 F.3d at 655 (citing Garrison, 759 F.3d at 1014). The claimant is not 

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

of her alleged symptoms, 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.

 The ALJ described Plaintiff’s symptom testimony: 

The claimant testified at the hearing and alleged disability due to back pain, 

right leg pain, and diabetes. The claimant testified that he had a lumbar 

fusion surgery in 2002 and was able to return to work. He testified that he 

still experienced lower back pain and in January 2013, he twisted the wrong 

way and started experiencing low back and leg pain. The claimant testified 

that injections and physical therapy did not alleviate his symptoms. He 

testified that he was told that he needed back surgery, but he needed to 

bring blood sugar levels down prior to surgery. 

The claimant testified that he lives with his wife and 13-year-old son. He 

testified that he has to sit and rest after 15-20 minutes of walking. He also 

testified that he has problems sitting, he cannot sit normally in a chair, 

because [his] right leg goes numb, and his lower back and hips hurt. The 

claimant testified that he cannot lift a gallon of milk and can only carry 

light items like chips or bread. He reported problems with bending and 

daily back spasms. He testified that his pain medications provide some 

relief, but cause side effects of nausea and sleepiness. He testified that his 

pain medication reduces his pain level to 4/10. 
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A.R. 26-27. 

 The ALJ found that Plaintiff’s medically determinable impairments could 

reasonably be expected to cause the alleged symptoms, but that Plaintiff’s statements 

concerning the intensity, persistence, and limiting effects of these symptoms were not 

entirely consistent and credible. A.R. 27. The ALJ provided two reasons for this finding, 

and Plaintiff disputes both. 

1. First Reason. 

 The ALJ reasoned that Plaintiff’s “allegations are inconsistent with treatment 

notes that suggest that he is functional.” A.R. 27. To support this conclusion, the ALJ 

described Plaintiff’s medical records over four pages. A.R. 27-30. The ALJ did not link 

these medical records in any way to Plaintiff’s alleged symptoms. A.R. 27-30. The ALJ 

then concluded: “while [Plaintiff] may experience some level of pain, the treatment 

evidence shows that he has responded such that any symptoms that he might experience 

would be accommodated were he to perform sedentary exertional work with the postural 

and environmental limitations noted above.” A.R. 30. 

 Plaintiff contends that this reason is not sufficiently specific to justify an adverse 

credibility finding. Doc. 12 at 22-23. Defendant disagrees and offers its own 

interpretation of the medical evidence, but does not explain how the ALJ decision, as 

written, meets the specific, clear, and convincing standard. See Doc. 17 at 2-3. The 

Court agrees with Plaintiff. The Ninth Circuit has held “that an ALJ does not provide 

specific, clear, and convincing reasons for rejecting a claimant’s testimony by simply 

reciting the medical evidence in support of his or her residual functional capacity 

determination.” Brown-Hunter v. Colvin, 806 F.3d 487, 489 (9th Cir. 2015). BrownHunter considered an ALJ decision with similar reasoning: 

Our review of the ALJ’s written decision reveals that she did not 

specifically identify any such inconsistencies; she simply stated her noncredibility conclusion and then summarized the medical evidence 

supporting her RFC determination. This is not the sort of explanation or 

the kind of “specific reasons” we must have in order to review the ALJ’s 
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decision meaningfully, so that we may ensure that the claimant’s testimony 

was not arbitrarily discredited. 

Id. at 494. The ALJ committed the error identified in Brown-Hunter. A.R. 27-30. This 

was not a clear and convincing reason to reject Plaintiff’s symptom testimony. 

2. Second Reason. 

 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). 

But “ALJs must be especially cautious in concluding that daily activities are inconsistent 

with testimony about pain, because impairments that would unquestionably preclude 

work and all the pressures of a workplace environment will often be consistent with 

doing more than merely resting in bed all day.” Garrison, 759 F.3d at 1016. Thus, an 

ALJ may use a claimant’s daily activities to discredit symptom testimony only if the 

activities contradict the claimed limitations, or the claimant “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 (emphasis added). 

 The ALJ accorded “some weight” to a daily living questionnaire completed by 

Plaintiff’s adolescent son. A.R. 33. That questionnaire describes Plaintiff’s daily and 

weekly activities, including driving, cooking, cleaning, shopping, bill paying, and social 

interactions. A.R. 33. The ALJ concluded that the statements in the questionnaire are 

worthy of “some weight, as they show that [Plaintiff] is more functional than he alleges.” 

A.R. 33. Plaintiff contends that this is insufficient to undermine his credibility (Doc. 12 

at 24), and the Court agrees. The ALJ did not find that Plaintiff spent a substantial part of 

his day performing these activities. Nor did the ALJ explain why Plaintiff’s activities 

were inconsistent with his claimed limitations. The Court therefore cannot conclude that 

this is a clear and convincing reason to reject Plaintiff’s symptom testimony. 

3. Whether Error was Harmless. 

 Because neither of the ALJ’s reasons is clear and convincing, the ALJ erred in 

discrediting Plaintiff’s testimony regarding the severity of his symptoms. See Revels, 874 
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F.3d at 655. Given that Plaintiff’s testimony clearly conflicts with the physical RFC 

determination on which the ALJ based his ultimate finding of nondisability, the Court 

cannot deem this error harmless. 

V. Scope of Remand. 

 “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 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 threepart inquiry: 

The three-part analysis . . . is known as the “credit-as-true” rule. First, we 

ask whether the ALJ failed to provide legally sufficient reasons for 

rejecting evidence, whether claimant testimony or medical opinion. Next, 

we determine 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, we 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). 

 Although the ALJ erred in discounting Plaintiff’s testimony and the medical 

opinions of Drs. Ohman and Patel, the record contains conflicting medical opinions of 

Drs. Trotter, Bendheim, Goodrich, and Combs, and P.A. Murphy. This state of the 

record creates doubt as to Plaintiff’s disability, and further administrative proceedings to 

weigh these conflicting opinions would be useful. This case therefore does not present 

the rare circumstance in which an immediate award of benefits might be appropriate. 
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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 10th day of August, 2018.