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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Ivy Johnson,

Plaintiff,

v. 

Commissioner of Social Security 

Administration,

Defendant.

No. CV-17-04793-PHX-SMB

ORDER 

At issue is the denial of Plaintiff Ivy Johnson’s Application for Disability Insurance 

Benefits by the Social Security Administration (SSA) under the Social Security Act. 

Plaintiff filed a Complaint (Doc. 1), and an Amended Complaint (Doc. 14), with this Court 

seeking judicial review of that denial, and the Court now addresses Plaintiff’s Opening 

Brief (Doc. 24, Pl. Br.), Defendant Social Security Administration Commissioner’s 

Response Brief (Doc. 28, Def. Br.), and Plaintiff’s Reply Brief (Doc. 29, Reply). The Court 

has reviewed the briefs and Administrative Record (Doc. 18, R.) and now affirms the 

Administrative Law Judge’s decision (R. at 15–33) as upheld by the Appeals Council (R. 

at 1–6).

I. BACKGROUND

Plaintiff filed an application for Disability Insurance Benefits on February 21, 2012 

for a period of disability beginning on February 17, 2011. (R. at 67.) On January 23, 2013, 

Plaintiff appeared and testified before an Administrative Law Judge (ALJ). (R. at 99.) The 
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ALJ denied her claim but the Appeals Council remanded the case for a reassessment of 

Plaintiff’s residual functional capacity (RFC) showing full consideration of Plaintiff’s 

mental impairments. (R. at 119.) Plaintiff’s second hearing before the ALJ was on October 

18, 2016. (R. at 15.) The same ALJ denied her claim on January 4, 2017. On November 

17, 2017, the Appeals Council denied Plaintiff’s Request for Review of the ALJ’s decision. 

(R. at 1.) 

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. At the second hearing, upon considering the 

medical records and opinions, the ALJ evaluated Plaintiff’s disability based on the 

following severe impairments: cardiac arrhythmia with pacemaker implant and 

hypertension. (R. at 20.) Unlike at the first hearing, the ALJ did not consider Plaintiff’s

affective disorder a severe impairment. (R. at 20, 101.) 

Ultimately, the ALJ evaluated the medical evidence and testimony and concluded 

that Plaintiff is not disabled. (R. at 27.) The ALJ determined 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 C.F.R. Part 404, Subpart P, Appendix 1.” (R. at 22.) 

The ALJ found that Plaintiff has the RFC to perform “light work,” except that she would 

be prevented from “climbing ladders, ropes or scaffolds, frequent climbing ramps and stairs 

and frequent balancing, stooping, kneeling, crouching, and crawling.” (R. at 22.) 

Furthermore, the ALJ found that Plaintiff should not be exposed to “dust, fumes, gases, or 

other respiratory irritants,” and that she has “the ability to understand, remember and carry 

out detailed instructions.” (R. at 22.) Consequently, the ALJ concluded that Plaintiff “was 

capable of performing past relevant work as a social worker and social worker (mental).” 

(R. at 26.) 

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, 
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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, 495 F.3d at 630. 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 supporting evidence.”

Id. Generally, “[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 she 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 
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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 three arguments for the Court’s consideration. (Pl. Br. at 1.) First, 

Plaintiff argues that the ALJ erred by giving minimal weight to the opinion of Dr. Kevin 

Berman, Plaintiff’s treating cardiologist. (Pl. Br. at 1.) Next, Plaintiff argues that the ALJ 

improperly weighed medical opinions concerning Plaintiff’s mental impairments. (Pl. Br. 

at 1.) Finally, Plaintiff argues that the ALJ did not properly credit Plaintiff’s testimony 

regarding the severity of her symptoms. (Pl. Br. at 1.) The Court disagrees with all three of 

Plaintiff’s arguments. To the extent the ALJ erred, such error was harmless because

substantial evidence supports the ALJ’s non-disability determination. 

A. The ALJ did not err by giving Dr. Berman’s opinion minimal weight.

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). “The medical opinion of a claimant’s treating physician is given ‘controlling 

weight’ so long as ‘it is well-supported by medically acceptable clinical and laboratory 

diagnostic techniques and is not inconsistent with other substantial evidence in [the record].”’ 

Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 1995) (citing 20 C.F.R. § 404.1527(c)(2)). 

If a treating physician’s opinion is not given controlling weight, then the ALJ must consider 

the relevant factors listed in 20 C.F.R. § 404.1527(d)(2)–(6) and determine the appropriate 

weight to give the opinion. Orn, 495 F.3d at 632. However, if a treating physician’s opinion 

is contradicted by another doctor’s opinion, the ALJ can reject the treating physician’s 

opinion by “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).

On August 5, 2011, Dr. Berman completed an Attending Physician’s Statement of 
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Disability for Plaintiff. (R. at 338.) Dr. Berman diagnosed Plaintiff with syncope, 

hypertension, left bundle branch block, and symptoms of vertigo. (R. at 338.) He opined 

that Plaintiff had various functional limitations including, an ability to sit, stand, and walk 

for only one hour per day. (R. at 338.) He also found that Plaintiff could occasionally bend, 

stoop, climb, push, pull, lift, and carry up to 20 pounds. (R. at 338.) Conversely, Dr. 

Berman found that Plaintiff had no limitations in cardiac functioning. (R. at 339.) 

The ALJ gave Dr. Berman’s opinion minimal weight for two reasons. (R. at 25.) 

The first reason was that Dr. Berman’s opinion was internally inconsistent with other 

records from Cardiovascular Consultants, the clinic where Dr. Berman treated Plaintiff. (R. 

at 25.) The second reason was that Dr. Berman’s opinion was inconsistent with other 

medical evidence in the record. (R. at 25.) Both are specific and legitimate reasons to reject 

Dr. Berman’s opinion and they are supported by substantial evidence in the record. See 

Murray, 722 F.2d at 502.

Dr. Berman’s opinion was inconsistent with other medical records from 

Cardiovascular Consultants. In June 2012, Plaintiff was essentially normal during an 

appointment with Dr. Berman following a right-ventricle lead revision. (R. at 497.) 

Plaintiff denied palpitations, irregular heartbeats, dizziness, and syncope. (R. at 497.) Her 

physical examination results were normal, and Dr. Berman found her “to be stable from a 

cardiovascular standpoint.” (R. at 499.) In March 2013, Plaintiff presented with dyspnea 

with exertion, shortness of breath, and only mild chest pain. (R. at 731.) Plaintiff

complained of chest pain, shortness of breath, and dizziness in May, August, September, 

and October 2013. (R. at 715, 721, 724, 728.)

However, these medical records do not indicate that Plaintiff was suffering from 

significant symptoms or limitations. Nor are they consistent with the level of impairment 

opined by Dr. Berman. The ALJ was correct in noting that Dr. Berman’s treatment notes 

fail to explain the impairments he opined to. (R. at 25.) Plaintiff misinterprets the ALJ’s 

critique as Dr. Berman’s failure to explain the symptoms underlying the impairments. (Pl. 

Br. at 7.) Instead, the ALJ gives Dr. Berman’s opinion minimal weight because it does not 
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explain why Plaintiff’s limitations are supported by her diagnosed impairments. Since the 

ALJ is responsible for resolving conflicts in the medical evidence, his decision is entitled 

to deference. Carmickle v. Comm’r of Soc. Sec., 533 F.3d 1155, 1164 (9th Cir. 2008). 

Consequently, the ALJ did not err by finding that the level of impairment found by Dr. 

Berman was inconsistent with other records from the same provider. 

Similarly, the ALJ did not err by finding that Dr. Berman’s opinion was inconsistent 

with the rest of the record. The record contains evidence that indicates Plaintiff has 

experienced some symptoms and impairments. Still, the relevant analysis is whether 

substantial evidence supports the ALJ’s finding that the record is inconsistent with 

impairments of the magnitude found by Dr. Berman. And substantial evidence does support 

that finding. 

Hospital stays and emergency room visits generally indicate that Plaintiff 

experienced some symptoms and impairments but not to the magnitude opined by Dr. 

Berman. During an emergency room visit in February 2012, Plaintiff was “stable from a 

cardiac perspective,” had “no symptoms whatsoever,” and had “absolutely no pain or 

discomfort.” (R. at 402.) Hospital and emergency room visits during May of 2012 featured 

complaints of temporary chest pain that quickly resolved. (R. at 450, 537.) In June 2013, 

Plaintiff was admitted to the hospital with chest pain, but was released the next day after 

doctors observed she was stable and asymptomatic. (R. at 675.) It was noted that her chest 

pain was noncardiac in nature. (R. at 674.) Finally, in April 2014, Plaintiff reported to 

Arizona Heart Institute with no chest discomfort or any “symptoms attributable to valvular 

heart disease.” (R. at 822.)

Ultimately, substantial evidence supports the ALJ’s finding that the record 

contradicts the magnitude of limitations opined by Dr. Berman. Although some evidence 

in the record is consistent with the limitations opined by Dr. Berman, the weight of the 

evidence does not support his opinion. Because substantial evidence supports the ALJ’s 

weighing of Dr. Berman’s opinion, the Court defers to the ALJ’s judgment. See Batson v. 

Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1194 (9th Cir. 2004) (declaring that when 
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competing rational inferences can be drawn from the record, the ALJ’s decision should be 

upheld). Consequently, the ALJ did not err by giving Dr. Berman’s opinion minimal 

weight.

B. The ALJ did not err by giving little weight to the opinions of Dr. Marcel 

Van Eerd, Plaintiff’s examining psychologist, and Elliot Salk, Ph.D., 

Plaintiff’s reviewing doctor. 

Even though Plaintiff has never undergone psychiatric treatment, two doctors 

offered opinions on whether she has any psychological impairments. On July 5, 2013, Dr. 

Van Eerd conducted a mental status exam on Plaintiff and diagnosed her with an 

adjustment reaction with depressed mood. (R. at 594.) He opined that Plaintiff appeared 

capable of a variety of functional tasks, though she would occasionally perform slowly or 

become distracted. (R. at 595–597.) On July 11, 2013, Elliot Salk Ph.D., on review, opined 

that Plaintiff has an affective disorder—a mental impairment that does not precisely satisfy 

the diagnostic criteria for other listed disorders. (R. at 87.) He opined that Plaintiff has mild 

limitations in the activities of daily living and maintaining social functioning, but moderate 

limitations in maintaining concentration, persistence, or pace. (R. at 87.) 

An examining physician’s opinion is generally entitled to greater weight than the 

opinion of a nonexamining physician. Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir. 1990). 

An ALJ must provide clear and convincing reasons for rejecting the uncontradicted opinion 

of an examining physician. Id. Even if the opinion of an examining physician is contradicted 

by the opinion of another doctor, the examining physician’s opinion can only be rejected for 

specific and legitimate reasons supported by substantial evidence. Andrews v. Shalala, 53 

F.3d 1035, 1043 (9th Cir. 1995). Conversely, a nonexamining physician’s opinion can serve 

as substantial evidence supporting an ALJ’s opinion only when it is supported by, and 

consistent with, other evidence in the record. Id. at 1041. 

The ALJ gave both opinions little weight for a sufficient reason—their 

inconsistency with the facts of the case. (R. at 22.) Though Dr. Van Eerd and Elliot Salk, 

Ph.D., opined that Plaintiff has mental impairments, the ALJ was justified in concluding 
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that the record does not support either opinion. Specifically, the ALJ noted that the record 

contains no evidence of Plaintiff undergoing formal mental health treatment. (R. at 22.) An 

absence of evidence due to conservative or nonexistent treatment is a justifiable reason for 

an ALJ to reject a doctor’s opinion. Batson, 359 F.3d at 1195. It is noteworthy that neither 

Dr. Van Eerd, nor Elliot Salk, Ph.D., are Plaintiff’s treating physician, and the record does 

not indicate that Plaintiff has a treating mental health doctor. Plaintiff denied mental health 

treatment history during her consultation with Dr. Van Eerd. (R. at 593.)

Consequently, the ALJ did not err in giving little weight to their opinions. The lack 

of evidence in the record supporting either opinion is a specific and legitimate reason for 

rejecting Dr. Van Eerd’s opinion. See Andrews, 53 F.3d at 1043. And Elliot Salk’s opinion 

cannot serve as substantial evidence because it is not supported or consistent with the rest 

of the record. See Id. at 1041. 

Plaintiff also argues that the ALJ erred by finding that Plaintiff’s affective disorder 

is not a severe impairment. (Pl. Br. at 7.) Plaintiff claims that because the first ALJ that 

denied her claim found that her affective disorder was a severe impairment, the second ALJ 

was bound to that finding. (Pl. Br. at 8.) The Court agrees with Plaintiff, however, the 

ALJ’s error was harmless. 

The law of the case doctrine applies in Social Security cases. Stacy v. Colvin, 825 

F.3d 563, 567 (9th Cir. 2016). The doctrine provides that courts are generally prohibited 

from considering an issue that has been decided by the same court or a higher court in the 

same case. Hall v. City of Los Angeles, 697 F.3d 1059, 1067 (9th Cir. 2012). The doctrine 

is discretionary and concerned with efficiency. It will not apply if the evidence on remand 

is substantially different than the evidence presented in the first decision. Stacy, 825 F.3d 

at 567. 

Here, the doctrine applies and the ALJ should not have reconsidered whether 

Plaintiff’s affective disorder is a severe impairment. This is because the first ALJ (the same 

court) had already considered the exact same evidence (Dr. Van Eerd’s and Elliot Salk’s 

opinions) related to Plaintiff’s mental impairments. Therefore, the ALJ’s finding that 
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Plaintiff’s affective disorder was not a severe impairment was error. 

Nevertheless, it was a harmless error. An error is harmless where it does not affect 

the ALJ’s ultimate disability determination. Molina v. Astrue, 674 F.3d 1104, 1115 (9th 

Cir. 2012). The Court looks to the entire record to determine whether the ALJ’s error was 

harmless. Id. 

Here, the ALJ’s error was harmless. On remand from the Appeals Council, the ALJ 

was instructed to calculate Plaintiff’s RFC with full consideration of Plaintiff’s mental 

impairments as indicated by the record. (R. at 119.) The ALJ was further instructed to 

obtain evidence from a vocational expert considering Plaintiff’s limitations as indicated by 

the whole record. (R. at 119.) Nothing in the record indicates that the ALJ did not perform 

the assigned tasks or that the ALJ’s disability determination would have changed if he 

considered Plaintiff’s affective disorder a severe impairment. 

The ALJ accepted Plaintiff’s affective disorder as a medically determinable 

impairment—an impairment established by medical evidence. See Ukolov v. Barnhart, 420 

F.3d 1002, 1005 (9th Cir. 2005.) But the ALJ’s review of the actual functional limitations 

stemming from the impairment demonstrates that his disability determination would not 

have changed if Plaintiff’s affective disorder was considered a severe impairment. Based 

on the evidence in the record, the ALJ found that Plaintiff had only mild limitations in (1) 

activities of daily living, (2) social functioning, (3) concentration, persistence, or pace. (R. 

at 21.) He further found that Plaintiff had no episodes of decompensation. (R. at 22.) Since 

the record does not indicate that the ALJ’s errant treatment of Plaintiff’s affective disorder 

as a non-severe impairment would have changed the nondisability determination, the ALJ’s 

error was harmless. 

C. The ALJ did not err by finding that Plaintiff’s testimony regarding the 

severity of her symptoms was unsupported by the record. 

On October 18, 2016, Plaintiff testified before the ALJ regarding her limitations due 

to her impairments. (R. at 49–65.) She testified that her impairments prevent her from 

performing the tasks and responsibilities of her past employment. (R. at 53.) Plaintiff also 
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described her symptoms and their severity. In particular, she described dizziness leading 

to unconsciousness, high-pressure chest pain, depression due to her physical ailments, and 

short-term memory issues. (R. at 54, 55, 58.) 

An ALJ performs a two-step analysis to evaluate a claimant’s testimony regarding 

pain and symptoms. Garrison, 759 F.3d at 1014. First, the ALJ evaluates whether the 

claimant has presented objective medical evidence of an impairment “which could 

reasonably be expected to produce the pain or symptoms alleged.” Liegenfelter, 504 F.3d 

1028, 1035–36 (9th Cir. 2007) (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 

1991) (en banc) (internal quotation marks omitted)). If the claimant presents such evidence 

then “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.” Garrison, 759 F.3d at 

1014–15 (citing Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)). Additionally, if 

the ALJ rejects a Plaintiff’s symptom testimony for a single permissible purpose, then the 

ALJ’s errant rejection of the testimony for other additional reasons is harmless. See 

Carmickle, 533 F.3d at 1162.

Here, the ALJ rejected Plaintiff’s symptom testimony for two reasons. The first 

reason was that Plaintiff’s testimony regarding the severity of her symptoms is inconsistent 

with the rest of the record. (R. at 23.) The second reason was that Plaintiff’s daily activities 

could not be objectively verified. (R. at 23.) The first reason is valid, but the second is 

invalid. Nevertheless, the ALJ’s error was harmless. 

As discussed in sections A and B, supra, the record substantially supports the ALJ’s 

finding that the severity of Plaintiff’s described symptoms is inconsistent with the 

evidence. With respect to Plaintiff’s physical impairments, the record indicates that the 

Plaintiff’s symptoms improved after her pacemaker surgery in June 2011 and her right 

ventricular lead revision in February 2012. (R. at 675, 731, 743, 822.) The ALJ supported 

his conclusions with this evidence of improvement. (R. at 23, 24.) As for Plaintiff’s mental 

impairments, the ALJ correctly noted that the absence of mental health treatment in the 

record contradicts Plaintiff’s testimony regarding the severity of mental health
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impairments. (R. at 22, 593.)

The ALJ’s rejection of Plaintiff’s testimony regarding the severity of her symptoms 

was not error. Plaintiff’s testimony was inconsistent with the rest of record and the ALJ’s 

rejection on that basis is a specific, clear and convincing reason for doing so. See Garrison, 

759 F.3d at 1014–15. Furthermore, that reasoning is supported by substantial evidence. 

Plaintiff also argues that the ALJ rejected Plaintiff’s testimony for a separate, 

impermissible purpose. The Court agrees. The ALJ’s rejection of Plaintiff’s testimony 

because her daily activities are not verifiable is not a valid reason for rejecting her 

testimony. See SSR 16-3p(2)(d). Nevertheless, when an ALJ offers a sufficient reason 

supported by substantial evidence for rejecting Plaintiff’s testimony alongside invalid 

reasons, the ALJ’s error is harmless. See Carmickle, 533 F.3d at 1162. Thus, the Court will 

not disturb the ALJ’s rejection of Plaintiff’s symptom testimony or the ALJ’s ultimate 

finding of non-disability. 

IT IS THEREFORE ORDERED affirming the January 4, 2017 decision of the 

Administrative Law Judge, (R. at 15–33), as upheld by the Appeals Council on November 

17, 2017 (R. at 1–6.).

IT IS FURTHER ORDERED directing the Clerk to enter final judgment 

consistent with this Order and close this case.

Dated this 4th day of November, 2019.