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NOT FOR PUBLICATION 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Kimberly Sue Muirhead, 

Plaintiff, 

v. 

Commissioner of Social Security 

Administration, 

Defendant. 

No. CV-18-00840-PHX-DJH 

ORDER 

Plaintiff seeks judicial review of the Social Security Administration 

Commissioner’s decision denying her application for Social Security Disability Insurance 

(“SSDI”) benefits and Supplemental Security Income (“SSI”) benefits (Doc. 14). Plaintiff 

filed an Opening Brief, Defendant filed a Response, and Plaintiff filed a Reply. (Docs. 14, 

15, and 16). After review of the record, the parties’ briefs, and applicable law, the decision 

of the Commissioner is reversed and remanded for further proceedings consistent with this 

Order. 

I. BACKGROUND 

 Plaintiff filed an application for SSDI benefits under Title II of the Social Security 

Act on June 7, 2013, and application for SSI benefits under Title XVI of the Social Security 

Act on September 30, 2013. (AR1

 31). Both applications initially alleged an onset of 

disability date of September 11, 2008. (Id.) After state agency denials, the Administrative 

Law Judge (“ALJ”) held a hearing on September 13, 2016. (AR 55-105). During the 

 

1

 Citations to “AR” are to the administrative record. 
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hearing, Plaintiff moved to amend her onset of disability date to July 3, 2013, which the 

ALJ granted. (AR 31). Following the hearing, the ALJ issued an unfavorable decision on 

December 29, 2016, which was adopted by the Social Security Administration Appeals 

Council as the agency’s final decision. (AR 8-13, 31-58). On March 13, 2018, Plaintiff 

filed her Complaint, pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3), requesting judicial 

review and reversal of the Commissioner’s decision. (Doc. 1). 

Plaintiff was 39 years old at the time of her alleged amended onset of disability. 

(AR 50). Plaintiff graduated high school, attended college, and graduated with two 

associate’s degrees. (AR 63). Her past relevant employment included a job as surgical 

technician. (Id.) Plaintiff claims she is unable to work due to cervical degenerative disc 

disease, or spondylosis, with residuals of spinal surgeries in 2007 and 2014; lumbar 

degenerative disc disease; migraine headaches; and fibromyalgia. (Doc. 14). 

 II. LEGAL STANDARDS 

In Garrison v. Colvin, 759 F.3d 995 (9th Cir. 2014), the Ninth Circuit Court of 

Appeals reiterated the well-settled standards governing judicial review of an ALJ’s 

disability determination. “An ALJ’s disability determination should be upheld unless it 

contains legal error or is not supported by substantial evidence.” Id. at 1009 (citing Stout 

v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006); 42 U.S.C. §§ 405(g), 

1383(c)(3)). “‘Substantial evidence’ means more than a mere scintilla, but less than a 

preponderance; it is such relevant evidence as a reasonable person might accept as adequate 

to support a conclusion.” Id. (internal quotation marks and citation omitted). In 

determining whether substantial evidence supports the ALJ’s decision, a district court 

considers the record as a whole, weighing both the evidence that supports and that which 

detracts from the ALJ’s conclusions. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); 

Tylitzki v. Shalala, 999 F.2d 1411, 1413 (9th Cir. 1993). The ALJ is responsible for 

resolving conflicts, ambiguity, and determining credibility. Andrews v. Shalala, 53 F.3d 

1035, 1039 (9th Cir. 1995); Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). 

“Where the evidence is susceptible to more than one rational interpretation, one of which 
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supports the ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 

278 F.3d 947, 954 (9th Cir. 2002). “Long-standing principles of administrative law require 

[the Court] to review the ALJ’s decision based on the reasoning and factual findings 

offered by the ALJ—not post hoc rationalizations that attempt to intuit what the adjudicator 

may have been thinking.” Bray v. Commissioner of Social Security Admin., 554 F.3d 1219, 

1225 (9th Cir. 2009). Put another way, the ALJ must “set forth the reasoning behind its 

decisions in a way that allows for meaningful review.” Brown-Hunter v. Colvin, 806 F.3d 

487, 492 (9th Cir. 2015). 

 A district court considers 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). Similarly, the Court 

can “review only the reasons provided by the ALJ . . . and may not affirm the ALJ on a 

ground upon which he did not rely.” Garrison, 759 F.3d at 1010 (citing Connett v. 

Barnhart, 340 F.3d 871, 874 (9th Cir. 2003)). 

III. ALJ’s Five–Step Evaluation Process 

To be eligible for Social Security benefits, a claimant must show an “inability to 

engage in any substantial gainful activity by reason of any medically determinable physical 

or mental impairment which can be expected to result in death or which has lasted or can 

be expected to last for a continuous period of not less than 12 months.” 42 

U.S.C. § 423(d)(1)(A); see also Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). The 

ALJ follows a five-step evaluation process to determine whether an applicant is disabled 

under the Social Security Act: 

The five-step process for disability determinations begins, at the first and 

second steps, by asking whether a claimant is engaged in “substantial gainful 

activity” and considering the severity of the claimant’s impairments. See 20 

C.F.R. § 416.920(a)(4)(i)-(ii). If the inquiry continues beyond the second 

step, the third step asks whether the claimant’s impairment or combination 

of impairments meets or equals a listing under 20 C.F.R. pt. 404, subpt. P, 

app. 1 and meets the duration requirement. See id. § 416.920(a)(4)(iii). If so, 

the claimant is considered disabled and benefits are awarded, ending the 

inquiry. See id. If the process continues beyond the third step, the fourth and 

fifth steps consider the claimant’s “residual functional capacity” in 

determining whether the claimant can still do past relevant work or make an 
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adjustment to other work. See id. § 416.920(a)(4)(iv)-(v). 

Kennedy v. Colvin, 738 F.3d 1172, 1175 (9th Cir. 2013). 

Applying the five-step evaluation process, the ALJ here found that Plaintiff was not 

disabled and not entitled to benefits. (AR 46). At step one, the ALJ concluded Plaintiff 

did not engage in substantial gainful activity since July 3, 2013, the alleged amended 

disability onset date. (AR 33). The ALJ noted that Plaintiff did earn a small amount of 

income in 2014 from a legal settlement and that Plaintiff had an ongoing online business 

trying to sell vitamin supplements, but the earnings from that endeavor were below 

substantial gainful activity levels. (Id.) At step two, the ALJ determined that Plaintiff had 

the following severe impairments: “combined severity of cervical degenerative disc 

disease/spondylosis, status post surgeries in 2007 and 2014; post laminectomy syndrome; 

lumber degenerative disc disease; migraine headaches; fibromyalgia; mood disorder not 

otherwise specified; major depressive disorder; dependent personality disorder; anxiety 

disorder not otherwise specified; and obesity.” (AR 34) (emphasis in original)). 

Additionally, the ALJ found Plaintiff’s GERD, asthma, and sleep apnea to be non-severe 

impairments. (AR 34-35). At step three, the ALJ held that Plaintiff “does not have an 

impairment or combination of impairments that meets or medically equals the severity of 

one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 . . . .” (AR 35). 

At step four, the ALJ determined that Plaintiff had 

the residual functional capacity to perform sedentary work . . . except the 

[Plaintiff] can frequently lift and carry less than ten pounds and occasionally 

lift and carry ten pounds. She can stand and walk for a total of two hours in 

an eight-hour workday. She can sit for more than six hours. She can 

occasionally climb ramps and stairs. She can occasionally kneel[,] crouch 

and crawl. She can frequently balance and can perform work that requires no 

climbing of ladders, ropes, or scaffolds. She can frequently reach overhead 

bilaterally. She can perform work that avoids concentrated exposure to loud 

noise environments, pulmonary irritants, and hazards such as moving 

machinery and unprotected heights. She can perform simple, routine, and 

repetitive tasks and simple unskilled work. She can perform work with that 

occasional superficial interaction with the public co-worker, and supervision 

that is direct and concrete with changes in the workplace gradually 

introduced. 
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 (AR 37). The ALJ further found that Plaintiff was unable to perform any past relevant 

work. (AR 44). At step five, the ALJ found that “[c]onsidering the [Plaintiff’s] age, 

education, work experience, and residual functioning capacity, there are jobs that exist in 

significant numbers in the national economy that the [Plaintiff] can perform.” (AR 45). 

The ALJ concluded that Plaintiff “has not been under a disability, as defined in the Social 

Security Act, from July 3, 2013, through the date of this decision.” (AR 46).

IV. DISCUSSION 

 Plaintiff argues that the ALJ erred by (1) rejecting the assessments of Plaintiff’s 

treating physician, Dr. Feldman; (2) discrediting Plaintiff’s symptom testimony, and (3) 

giving little weight to lay witness observations. (Doc. 14 at 1-2). Plaintiff asks this Court 

to remand for an award of benefits, or in the alternative to remand for further proceedings. 

(Id. at 21). Defendant argues that the ALJ’s decision should be affirmed because it was 

free from harmful error. (Doc. 17). 

A. Medical Opinions 

In weighing medical source opinions in Social Security cases, there are three 

categories of physicians: (1) treating physicians, who actually treat the claimant; (2) 

examining physicians, who examine but do not treat the claimant; and (3) non-examining 

physicians, who neither treat nor examine the claimant. 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 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)(2)-(6). 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)). “Even if the treating doctor’s opinion is contradicted by another doctor, 

the Commissioner may not reject this opinion without providing ‘specific and legitimate 

reasons’ supported by substantial evidence in the record for so doing.” Id. “The ALJ can 

meet this burden by setting out a detailed and thorough summary of the facts and 
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conflicting clinical evidence, stating his interpretation thereof, and making findings.” 

Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). “The ALJ must do more than 

offer his conclusions. He must set forth his own interpretations and explain why they, rather 

than the doctors’, are correct.” Embrey, 849 F.2d at 421-22. 

Here, the ALJ gave little weight to the opinions of Dr. Feldman’s, Plaintiff’s treating 

physician. (AR 42). The only reason articulated by the ALJ for affording little weight to 

Dr. Feldman’s opinions was that his opinions “were not supported by the objective medical 

evidence and not consistent with the acknowledge activity level.” (Id.) Defendant argues 

that “the ALJ considered the medical evidence at length and gave reasons for the weigh 

given.” (Doc. 15 at 12). The Court agrees that the ALJ gave a thorough recitation of the 

medical evidence in the record, however, the Court finds that the ALJ did not provide a 

connection between the discussion of the medical evidence and his conclusion that Dr. 

Feldman’s opinions were only entitled to little weight. See Bray v. Comm’r of Soc. Sec. 

Admin., 554 F.3d 1219, 1225 (9th Cir. 2009) (“Long-standing principles of administrative 

law require us to review the ALJ’s decision based on the reasoning and factual findings 

offered by the ALJ—not post hoc rationalizations that attempt to intuit what the adjudicator 

may have been thinking.”). The ALJ failed to cite to specific evidence that contradicted 

Dr. Feldman’s opinions or explain how Dr. Feldman’s assessments of Plaintiff’s activity 

level was inconsistent with medical evidence. In other words, while the ALJ did 

summarize the medical evidence, he did not state his interpretations that support his 

findings. 

Additionally, the Court finds it troubling that the only opinion the ALJ gave great 

weight to was the opinion of Don Johnson, Ph.D, who apparently is not a physician. 

(AR 43). Moreover, Dr. Johnson was a non-examining consultant; therefore, the ALJ 

should have afforded more weight to the opinions by treating physicians and examining 

physicians than to Dr. Johnson’s opinions. Maydanis v. Colvin, 119 F. Supp. 3d 969, 974 

(D. Ariz. 2015) (“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 non-
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examining physician.”). Thus, at the very least, the ALJ should have acknowledged the 

physician opinion hierarchy and explained his rational for departing from it. 

Although the ALJ recounted much of the medical evidence (AR 38-44), he failed to 

explain what evidence supported his conclusions. For example, the ALJ rejected a treating 

physician’s opinion in favor of a non-examining state consultant without first providing 

specific and legitimate reasons that were supported by substantial evidence. In short, the 

ALJ erred in failing to weigh all relevant factors and in rejecting the opinions of Dr. 

Feldman, Plaintiff’s treating physician, without adequate explanation supported by 

substantial evidence. See Burrell v. Colvin, 775 F.3d 1133, 1140 (9th Cir. 2014) (ALJ 

erred in rejecting treating physician’s opinion and adopting the consensus view where the 

ALJ failed to give specific and legitimate reasons for the rejection); Embrey, 849 F.2d at 

421-22 (noting that it is not enough for the ALJ to simply recount the medical evidence in 

seriatim fashion and then reach unexplained conclusions). Therefore, the Court finds the 

ALJ erred in affording little weight to Dr. Feldman’s opinions. 

B. Plaintiff’s Symptom Testimony 

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

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

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

alleged. Garrison, 759 F.3d at 1014. “In this analysis, the claimant is not required to show 

‘that her impairment could reasonably be expected to cause the severity of the symptom 

she has alleged; she need only show that it could reasonably have caused some degree of 

the symptom.’” Id. (quoting Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996)). 

Second, if there is no evidence of malingering, the ALJ may reject the Plaintiff’s symptom 

testimony only by giving specific, clear, and convincing reasons. Id. at 1015. “A finding 

that a claimant’s testimony is not credible ‘must be sufficiently specific to allow a 

reviewing court to conclude the adjudicator rejected the claimant’s testimony on 

permissible grounds and did not arbitrarily discredit a claimant’s testimony regarding 

pain.’” Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (citation omitted). 
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 Here, the ALJ found that Plaintiff’s “medically determinable impairments could 

reasonably be expected to cause the alleged symptoms; however, the [Plaintiff’s] 

statements concerning the intensity, persistence, and limiting effects of these symptoms are 

not entirely consistent with the medical evidence and other evidence in the record for the 

reasons explained in this decision.” (AR 41). Because the ALJ made no finding of 

malingering, he was required to give clear and convincing reasons for his adverse 

credibility finding. “This is not an easy requirement to meet: ‘The clear and convincing 

standard is the most demanding required in Social Security cases.’” Garrison, 759 F.3d at 

1015 (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). 

For reasons explained below, the ALJ has not met this high burden. 

The ALJ found Plaintiff’s activity level was inconsistent with the alleged degree of 

limitation described by Plaintiff. (AR 40). Even though the ALJ provided several reasons 

for this finding, the Court finds that none of the proffered reasons have merit. To support 

his conclusion, the ALJ cited that Plaintiff was running an online business, she attended a 

business conference in Florida for five days in February 2016, she took a trip to Las Vegas 

in September 2015, she drove a vehicle occasionally, she performed some household 

chores, she spent time on the computer and her smartphone, and she was occasionally able 

to go out to eat. (Id.) 

The ALJ claimed that Plaintiff’s ability to “run[] an online business” was support 

for his conclusion that Plaintiff’s daily activities were inconsistent with her alleged degree 

of limitations. (Id.) However, Plaintiff’s so-called “online business” consisted of Plaintiff 

posting on social media about vitamins to see if anyone was interested in buying them. 

(AR 64). Plaintiff testified that she posts on social media, from her smart phone, three to 

five times a day about the availability of the vitamins, and each post only takes a minute 

or two. (AR 67). Thus, Plaintiff’s activity running her “online business” consisted of, at 

most, posting on social media for ten minutes a day. The ALJ fails to explain how that 

amount of activity was inconsistent with Plaintiff’s alleged degree of limitations. 

Regarding Plaintiff’s trips to Florida and Las Vegas, the ALJ fails to acknowledge 
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that Plaintiff specifically testified about her activity level during both of those trips. For 

example, Plaintiff testified that while in Las Vegas she saw one show and that “[she] 

actually wasn’t able to do a lot” with her friends because she had to take naps in the hotel 

room. (AR 80). And while she was in Florida, she kept falling asleep during the seminars, 

had to leave an event that had no seating, and by the end of the trip she had to use a 

wheelchair. (AR 80-85). Thus, even though Plaintiff did take two trips, the ALJ failed to 

acknowledge Plaintiff’s activity level while on those trips was very limited. See Moreno 

v. Colvin, 174 F. Supp. 3d 1112, 1120 (D. Ariz. 2016) (finding that the ALJ failed to explain 

how plaintiff’s trip contradicted any of plaintiff’s specific symptom testimony). 

Furthermore, the ALJ fails to explain how Plaintiff’s ability to occasionally drive a 

vehicle, perform some household chores, spend time on the computer and her smartphone, 

and occasionally go out to eat was inconsistent with her alleged limitations. The Ninth 

Circuit “has repeatedly asserted that the mere fact that a plaintiff has carried on certain 

daily activities . . . does not in any way detract from her credibility as to her overall 

disability.” Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (quoting Vertigan v. Halter, 

260 F.3d 1044, 1050 (9th Cir. 2001)). Rather, the ALJ must make specific findings relating 

to Plaintiff’s activities and their transferability to a work setting to conclude that they 

warrant an adverse credibility determination. See id. Therefore, the Court finds that the 

ALJ failed to meet the demanding clear and convincing standard for his adverse credibility 

finding. 

C. Lay Witness Observations 

Plaintiff contends that the ALJ improperly evaluated the third-party function reports 

provide by Plaintiff’s mother and letter written by Plaintiff’s father. (Doc. 14 at 20-22). 

When an ALJ discounts the testimony of lay witnesses, “he [or she] must give reasons that 

are germane to each witness.” Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 694 

(9th Cir. 2009) (quoting Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993) (alteration in 

original)); see also Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001) (“Lay testimony as to 

a claimant’s symptoms is competent evidence that an ALJ must take into account, unless 
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the ALJ expressly determines to disregard such testimony and gives reasons germane to 

each witness for doing so.”). 

Plaintiff’s mother completed three third-party function reports on Plaintiff’s behalf 

(AR 445-52, 484-91, 548-55), and Plaintiff’s father wrote a letter concerning Plaintiff’s 

impairments. (AR 1605-06). The ALJ considered the reports and letter but concluded that 

“the extreme limitations contained therein [were] not support by the evidence of the 

record.” (AR 44). Thus, the ALJ afforded little weight to the reports and letter. (Id.) 

However, “[a] lack of support from medical records is not a germane reason to give ‘little 

weight’” to the lay witness observations. Diedrich v. Berryhill, 874 F.3d 634, 640 (9th 

Cir. 2017). Although a finding that the observations of a lay witness is inconsistent with 

medical evidence is a germane reason. See Bruce v. Astrue, 557 F.3d 1113, 1116 (9th Cir. 

2009). Put differently, a finding that a lay witness observation is inconsistent with the 

medical evidence is a germane reason, but a finding that the lay witness observation is 

unsupported by the medical evidence is not a germane reason. Here, the ALJ found the 

reports completed by Plaintiff’s mother and the letter written by Plaintiff’s father were not 

supported by the medical evidence; thus, the ALJ did not provide a germane reason for 

affording little weight to these lay witness observations. See Smolen v. Chater, 80 F.3d 

1273, 1289 (9th Cir. 1996). 

V. REMAND 

Having decided to reverse the ALJ’s decision, the Court has discretion to remand 

the case for further development of the record or for an award of benefits. See Reddick, 

157 F.3d at 728. Remand for further administrative proceedings is appropriate if 

enhancement of the record would be useful. See Harman v. Apfel, 211 F.3d 1172, 1178 

(9th Cir. 2000). Conversely, where the record has been developed fully and further 

administrative proceedings would serve no useful purpose, the district court should remand 

for an immediate award of benefits. See Smolen, 80 F.3d at 1292; Varney v. Sec’y of Health 

and Human Servs., 859 F.2d 1396, 1399 (9th Cir. 1988). 

Here, the Court finds that it is not clear from the record that the ALJ would be 
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required to find Plaintiff disabled if all the evidence were properly evaluated. The Court 

finds that further evaluation of the medical evidence consistent with this Order, along with 

further analysis of Plaintiff’s subjective symptom testimony and lay witness observations 

are necessary before a proper determination of Plaintiff’s disability can be made. 

Therefore, the Court, in its discretion, finds that a remand for further proceedings is 

appropriate here. 

 Accordingly, 

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

case REMANDED to the ALJ for further proceedings consistent with this order. 

IT IS FURTHER ORDERED that the Clerk of Court is directed to enter judgment 

accordingly. 

Dated this 28th day of March, 2019. 

Honorable Diane J. Humetewa 

United States District Judge