1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Cindy Leigh Pickett,

Plaintiff,

v. 

Commissioner of Social Security 

Administration,

Defendant.

No. CV-18-00065-PHX-SMB

ORDER 

At issue is the denial of Plaintiff Cindy Leigh Pickett’s Application for Disability 

Insurance Benefits by the Social Security Administration (“SSA”) under the Social 

Security Act (“the Act”). Plaintiff filed a Complaint (Doc. 1) with this Court seeking 

judicial review of that denial, and the Court now addresses Plaintiff’s Opening Brief (Doc. 

16, “Pl.’s Br.”) and Defendant Social Security Administration Commissioner’s Opposition 

(Doc. 17, “Def.’s Br.”), and Plaintiff’s Reply (Doc. 18, “Reply”). The Court has reviewed 

the briefs and Administrative Record (Doc. 12, R.) and now reverses the Administrative 

Law Judge’s decision (R. at 20–36) as upheld by the Appeals Council (R. at 1–3).

I. BACKGROUND

Plaintiff filed an application for Disability Insurance Benefits on July 24, 2013 for 

a period of disability beginning May 5, 2012. (R. at 21.) Plaintiff’s claim was denied 

initially on January 17, 2014 (R. at 21), and on reconsideration on August 13, 2014 (R. at 
- 2 -

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

21). Plaintiff then testified at a hearing held before an Administrative Law Judge (“ALJ”) 

on February 2, 2016. (R. at 21.) On September 29, 2016, the ALJ denied Plaintiff’s 

Application. (R. at 36.) On November 9, 2017, the Appeals Council denied a request for 

review of the ALJ’s decision. (R. at 1–3.) On January 8, 2018, Plaintiff filed this action 

seeking judicial review of the denial.

The Court has reviewed the medical evidence in its entirety and finds it unnecessary 

to provide a complete summary here. The pertinent medical evidence will be discussed in 

addressing the issues raised by the parties. In short, upon considering the medical records 

and opinions, the ALJ evaluated Plaintiff’s disability based on the following alleged 

impairments: neuropathy of both feet; headaches; unspecified myositis, myalgia, and 

arthralgia; lumbargo; cervicalgia; obesity; anxiety; depression; diabetes mellitus; 

insomnia; and radial nerve palsy. (R. at 22–23, 24.)

Ultimately, the ALJ determined that Plaintiff “did not have an impairment or 

combination of impairments that met or medically equaled the severity of one of the listed 

impairments in 20 CFR Part 404.” (R. at 23.) The ALJ then found that Plaintiff has the 

residual functional capacity (“RFC”) to “perform light work as defined in 20 CFR 

404.1567(b)” in a role such as booth cashier, companion, or gate guard. (R. at 25, 35.)

II. LEGAL STANDARD

In determining whether to reverse an ALJ’s decision, the district court reviews only 

those issues raised by the party challenging the 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, but less than a preponderance; it is relevant evidence that a reasonable 

person might accept as adequate to support a conclusion considering the record as a whole. 

Id. To determine 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 
- 3 -

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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).

To determine whether a claimant is disabled for purposes of the 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, but the burden shifts to the Commissioner at step five. Tackett 

v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At the first step, the ALJ determines whether 

the claimant is presently engaging in substantial gainful activity. 20 C.F.R. § 

404.1520(a)(4)(i). If so, the claimant is not disabled and the inquiry ends. Id. At step two, 

the ALJ determines whether the claimant has a “severe” medically determinable physical 

or mental impairment. 20 C.F.R. § 404.1520(a)(4)(ii). If not, the claimant is not disabled 

and the inquiry ends. Id. At step three, the ALJ considers whether the claimant’s 

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

in Appendix 1 to Subpart P of 20 C.F.R. Part 404. 20 C.F.R. § 404.1520(a)(4)(iii). If so, 

the claimant is automatically found to be disabled. Id. If not, the ALJ proceeds to step four.

Id. At step four, the ALJ assesses the claimant’s RFC and determines whether the claimant 

is still capable of performing past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). If so, the 

claimant is not disabled and the inquiry ends. Id. If not, the ALJ proceeds to the fifth and 

final step, where he determines whether the claimant can perform any other work in the 

national economy based on the claimant’s RFC, age, education, and work experience. 20 

C.F.R. § 404.1520(a)(4)(v). If so, the claimant is not disabled. Id. If not, the claimant is 

disabled. Id.

III. ANALYSIS

Plaintiff raises two arguments for the Court’s consideration: (1) the ALJ erred by 

rejecting the opinion of Plaintiff’s primary care physician, Dr. Carl Ferguson; and (2) the 

ALJ erred by rejecting Plaintiff’s symptom testimony. (Pl.’s Br. at 1–2.) 
- 4 -

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

A. The ALJ Erred in Rejecting the Opinion of Plaintiff’s Primary Care 

Physician

While “[t]he ALJ must consider all medical opinion evidence,” there is a hierarchy 

among the sources of medical opinions. Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 

2008). Those who have treated a claimant are treating physicians, those who examined but 

did not treat the claimant are examining physicians, and those who neither examined nor 

treated the claimant are nonexamining physicians. Lester v. Chater, 81 F.3d 821, 830 (9th 

Cir. 1995). “As a general rule, more weight should be given to the opinion of a treating 

source than to the opinion of doctors who did not treat the claimant.” Id.

Given this hierarchy, if the treating physician’s evidence is controverted by a 

nontreating or nonexamining physician, the ALJ may disregard it only after “setting forth 

specific, legitimate reasons for doing so that are based on substantial evidence in the record.” 

Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983). “The ALJ can meet this burden by 

setting out a detailed and thorough summary of the facts and conflicting clinical evidence, 

stating his interpretation thereof, and making findings.” Magallanes v. Bowen, 881 F.2d 747, 

751 (9th Cir. 1989). “Substantial evidence means more than a mere scintilla, but less than a 

preponderance.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). 

Here, the ALJ rejected the opinion of Dr. Carl Ferguson—who served as Plaintiff’s 

primary care physician for twenty years—after finding it was “not consistent with the 

medical evidence of record, including [Dr. Ferguson’s] own treatment notes.” (R. at 32.) For 

the following reasons, the ALJ failed to provide specific and legitimate reasons for rejecting 

Dr. Ferguson’s opinion. 

The record does not support the ALJ’s conclusion that Dr. Ferguson’s opinion was 

inconsistent with his own treatment notes. Over the course of Dr. Ferguson’s treatment 

relationship with Plaintiff, he diagnosed Plaintiff with, among other things, chronic 

neuropathy pain in her feet, uncontrolled diabetes, neck and back pain, fibromyalgia, anxiety, 

fatigue, insomnia, and depression. (R. at 1115.) Dr. Ferguson prescribed a number of drugs 

to treat these ailments, including Percocet (R. at 2178), MS Contin (R. at 2160, 2178), 
- 5 -

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Lorazepam (R. at 1398), and Soma (R. at 1329). Despite his efforts to relieve Plaintiff’s

symptoms, Dr. Ferguson opined that Plaintiff could sit less than two hours and stand between 

four and six hours during an eight-hour workday. (R. at 1115.) Further, Plaintiff would need 

to alternate between sitting, standing, and walking every twenty minutes and rest fifteen 

minutes after every position change. (R. at 1115, 2199.)

In concluding that Dr. Ferguson’s opinion was inconsistent with his own treatment 

notes, the ALJ noted only that Dr. Ferguson’s physical examinations of Plaintiff revealed 

“low back tenderness, some diminished sensation in the [Plaintiff’s] lower extremities, and 

occasional joint pain, but normal strength, tone, and normal range of motion.” (R. at 32.) The 

ALJ fails to explain how findings of normal strength, tone, and range of motion were 

inconsistent with Dr. Ferguson’s opinion, and he fails to consider the positive signs and 

symptoms that led Dr. Ferguson to diagnose Plaintiff with chronic back pain—other 

physicians came to a similar diagnosis (R. at 326, 1202, 2173–74, 2186)—and prescribe 

Percocet, MS Contin, Lorazepam, and Soma to treat it. Moreover, Dr. Ferguson diagnosed 

Plaintiff with numerous pain-causing ailments, like fibromyalgia, and his opinion regarding 

Plaintiff’s limitations accounted for the symptoms associated with each of his diagnoses. 

Accordingly, the ALJ’s conclusion that Dr. Ferguson’s opinion was inconsistent with his 

own treatment notes was not a specific and legitimate reason based on substantial evidence 

in the record for rejecting Dr. Ferguson’s opinion.

Likewise, the record does not support the ALJ’s conclusion that Dr. Ferguson’s 

opinion was inconsistent with the medical evidence of record. (R. at 32–33.) The ALJ, in so 

concluding, noted only that “imaging studies reflected cervical and lumbar disc bulges 

without nerve encroachment, and physical exams documented her decreased lower extremity 

sensation, but normal strength and tone.” (R. at 32–33.) Again, the ALJ not only fails to 

explain how normal strength and tone and the absence of nerve encroachment undermine Dr. 

Ferguson’s opinion, but also disregards substantial evidence that Plaintiff’s lower back 

caused her chronic pain (R. at 326, 1202, 2173–74, 2186), for which surgery was the 
- 6 -

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

recommended treatment (R. at 1134). Accordingly, this was not a valid reason for rejecting 

Dr. Ferguson’s opinion. 

B. The ALJ Erred in Rejecting Plaintiff’s Symptom Testimony

While credibility is the province of the ALJ, an adverse credibility determination 

requires the ALJ to provide “specific, clear and convincing reasons for rejecting the 

claimant’s testimony regarding the severity of the claimant’s symptoms.” Treichler v. 

Comm’r of Soc. Sec., 775 F.3d 1090, 1102 (9th Cir. 2014) (citing Smolen, 80 F.3d at 1281)).

Here, the ALJ rejected Plaintiff’s symptom testimony after reciting Plaintiff’s medical 

history (R. at 26–31); noting two instances in which Plaintiff’s symptoms momentarily 

subsided while she was distracted or outside the presence of doctors (R. at 28–29, 30);

finding Plaintiff did not suffer a stroke (R. at 26), as Plaintiff alleged (R. at 56); and 

concluding Plaintiff did not require an assistive device at all times since May 2012 for 

ambulation (R. at 33–34). This assessment did not provide clear and convincing reasons 

for rejecting Plaintiff’s symptom testimony. 

“[A]n ALJ does not provide specific, clear, and convincing reasons for rejecting a 

[Plaintiff’s] testimony by simply reciting the medical evidence in support of his or her 

[RFC] determination.” Brown-Hunter v. Colvin, 806 F.3d 487, 489 (9th Cir. 2015). Rather, 

the ALJ is required to “specify which testimony she finds not credible, and then provide 

clear and convincing reasons, supported by evidence in the record, to support that 

credibility determination.” Id. Lastly, “[A]ssessments of an individual’s testimony by an 

ALJ are designed to ‘evaluate the intensity and persistence of symptoms after [the ALJ] 

find[s] that the individual has a medically determinable impairment(s) that could 

reasonably be expected to produce those symptoms,’ and not to delve into wide-ranging 

scrutiny of the claimant’s character and apparent truthfulness.” Trevizon v. Berryhill, 871 

F.3d 664, 678 n.5 (9th Cir. 2017) (alteration in original) (quoting SSR 16–3p (2016)). 

Here, a majority of the ALJ’s decision was devoted to reciting Plaintiff’s medical history, 

and what little specific testimony the ALJ did cite was irrelevant to Plaintiff’s complaints 
- 7 -

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

of chronic pain. Accordingly, the ALJ failed to provide convincing reasons for rejecting 

Plaintiff’s symptom testimony. 

C. Credit-as-True Rule Does Not Apply

Plaintiff asks that the Court apply the “credit-as-true” rule, which would result in 

remand of Plaintiff’s case for payment of benefits rather than further proceedings. (Pl.’s 

Br. at 29–30.) The credit-as-true rule only applies in cases that raise “rare circumstances” 

that permit the Court to depart from the ordinary remand rule under which the case is 

remanded for additional investigation or explanation. Treichler, 775 F.3d at 1099–1102. 

These rare circumstances arise when three elements are present. First, the ALJ must fail to 

provide legally sufficient reasons for rejecting medical evidence. Id. at 1100. Second, the 

record must be fully developed, there must be no outstanding issues that must be resolved 

before a determination of disability can be made, and further administrative proceedings 

would not be useful. Id. at 1101. Further proceedings are considered useful when there are 

conflicts and ambiguities that must be resolved. Id. Third, if the above elements are met, 

the Court may “find[] the relevant testimony credible as a matter of law . . . and then 

determine whether the record, taken as a whole, leaves ‘not the slightest uncertainty as to 

the outcome of [the] proceeding.’” Id. (citations omitted).

The Court has reviewed the record and agrees with Defendant that the record is not 

fully developed and that uncertainty remains as to whether Plaintiff is disabled under the 

Act. The reasons the ALJ provided for rejecting Dr. Ferguson’s opinion and Plaintiff’s 

symptom testimony were not legitimate. In light of this, the ALJ must reanalyze each. 

According, the Court will remand this matter to the ALJ for further development of 

the record and a disability determination.

IT IS THEREFORE ORDERED remanding this matter to the Social Security 

Administration for further proceedings consistent with this Order. Specifically, the ALJ 

must reanalyze Dr. Ferguson’s opinion and Plaintiff’s symptom testimony.
- 8 -

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

IT IS FURTHER ORDERED directing the Clerk of the Court to enter judgment 

accordingly and close this case. 

Dated this 27th day of August, 2019.