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WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Lisa Jo England, 

Plaintiff, 

v. 

Acting Commissioner of the Social Security 

Administration, 

Defendant.

No. CV-18-08050-PCT-ESW 

ORDER 

 

 Pending before the Court is Lisa Jo England’s (“Plaintiff”) appeal of the Social 

Security Administration’s (“Social Security”) denial of her claim for disability insurance 

benefits and supplemental security income. The Court has jurisdiction to decide 

Plaintiff’s appeal pursuant to 42 U.S.C. §§ 405(g), 1383(c). Under 42 U.S.C. § 405(g), 

the Court has the power to enter, based upon the pleadings and transcript of the record, a 

judgment affirming, modifying, or reversing the decision of the Commissioner of Social 

Security, with or without remanding the case for a rehearing. Both parties have 

consented to the exercise of U.S. Magistrate Judge jurisdiction. (Doc. 12). 

After reviewing the Administrative Record (“A.R.”) and the parties’ briefing 

(Docs. 18, 22, 23), the Court finds that the Administrative Law Judge’s (“ALJ”) decision 

contains harmful legal error. For the reasons explained in Section II below, the decision 
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is reversed and the case is remanded to the Commissioner of Social Security for an 

immediate award of benefits. 

I. LEGAL STANDARDS 

 A. Disability Analysis: Five-Step Evaluation 

 The Social Security Act (the “Act”) provides for disability insurance benefits to 

those who have contributed to the Social Security program and who suffer from a 

physical or mental disability. 42 U.S.C. § 423(a)(1). The Act also provides for 

supplemental security income to certain individuals who are aged 65 or older, blind, or 

disabled and have limited income. 42 U.S.C. § 1382. To be eligible for benefits based 

on an alleged disability, the claimant must show that he or she suffers from a medically 

determinable physical or mental impairment that prohibits him or her from engaging in 

any substantial gainful activity. 42 U.S.C. § 423(d)(1)(A); 42 U.S.C. § 1382c(A)(3)(A). 

The claimant must also show that the impairment is expected to cause death or last for a 

continuous period of at least 12 months. Id. 

To decide if a claimant is entitled to Social Security benefits, an ALJ conducts an 

analysis consisting of five questions, which are considered in sequential steps. 20 C.F.R. 

§§ 404.1520(a), 416.920(a). The claimant has the burden of proof regarding the first four 

steps:1

 

Step One: Is the claimant engaged in “substantial gainful 

activity”? If so, the analysis ends and disability benefits are 

denied. Otherwise, the ALJ proceeds to step two. 

Step Two: Does the claimant have a medically severe 

impairment or combination of impairments? A severe 

impairment is one which significantly limits the claimant’s 

physical or mental ability to do basic work activities. 20 

C.F.R. §§ 404.1520(c), 416.920(c). If the claimant does not 

have a severe impairment or combination of impairments, 

disability benefits are denied at this step. Otherwise, the ALJ 

proceeds to step three. 

                                                            

1

 Parra v. Astrue, 481 F.3d 742,746 (9th Cir. 2007). 
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Step Three: Is the impairment equivalent to one of a number 

of listed impairments that the Commissioner acknowledges 

are so severe as to preclude substantial gainful activity? 20 

C.F.R. §§ 404.1520(d), 416.920(d). If the impairment meets 

or equals one of the listed impairments, the claimant is 

conclusively presumed to be disabled. If the impairment is 

not one that is presumed to be disabling, the ALJ proceeds to 

the fourth step of the analysis. 

Step Four: Does the impairment prevent the claimant from 

performing work which the claimant performed in the past? 

If not, the claimant is “not disabled” and disability benefits 

are denied without continuing the analysis. 20 C.F.R. §§ 

404.1520(f), 416.920(f). Otherwise, the ALJ proceeds to the 

last step. 

 If the analysis proceeds to the final question, the burden of proof shifts to the 

Commissioner:2

 

Step Five: Can the claimant perform other work in the 

national economy in light of his or her age, education, and 

work experience? The claimant is entitled to disability 

benefits only if he or she is unable to perform other work. 20 

C.F.R. §§ 404.1520(g), 416.920(g). Social Security is 

responsible for providing evidence that demonstrates that 

other work exists in significant numbers in the national 

economy that the claimant can do, given the claimant’s 

residual functional capacity, age, education, and work 

experience. Id. 

B. Standard of Review Applicable to ALJ’s Determination

 The Court must affirm an ALJ’s decision if it is supported by substantial evidence 

and is based on correct legal standards. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 

2012); Marcia v. Sullivan, 900 F.2d 172, 174 (9th Cir. 1990). Although “substantial 

evidence” is less than a preponderance, it is more than a “mere scintilla.” Richardson v. 

Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison v. NLRB, 305 U.S. 197, 

                                                            

2 Parra, 481 F.3d at 746. 
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229 (1938)). It means such relevant evidence as a reasonable mind might accept as 

adequate to support a conclusion. Id. 

 In determining whether substantial evidence supports the ALJ’s decision, the 

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

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). If there is sufficient 

evidence to support the ALJ’s determination, the Court cannot substitute its own 

determination. See Morgan v. Comm’r of the Social Sec. Admin., 169 F.3d 595, 599 (9th 

Cir. 1999) (“Where the evidence is susceptible to more than one rational interpretation, it 

is the ALJ’s conclusion that must be upheld.”); Magallanes v. Bowen, 881 F.2d 747, 750 

(9th Cir. 1989). This is because the ALJ, not the Court, is responsible for resolving 

conflicts and ambiguities in the evidence and determining credibility. Magallanes, 881 

F.2d at 750; see also Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). 

 The Court also considers the harmless error doctrine when reviewing an ALJ’s 

decision. This doctrine provides that an ALJ’s decision need not be remanded or 

reversed if it is clear from the record that the error is “inconsequential to the ultimate 

nondisability determination.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) 

(citations omitted); Molina, 674 F.3d at 1115 (an error is harmless so long as there 

remains substantial evidence supporting the ALJ’s decision and the error “does not 

negate the validity of the ALJ’s ultimate conclusion”) (citations omitted). 

II. PLAINTIFF’S APPEAL 

 A. Procedural Background 

Plaintiff, who was born in 1968, has worked as a fast food worker, housekeeping 

cleaner, usher, cashier, sales attendant, and fish packer. (A.R. 42-43, 47, 1917). At issue 

are Plaintiff’s August 2013 application for disability insurance benefits and December 

2015 application for supplemental security income. (A.R. 136-37, 1884-93). Plaintiff 

alleged that on August 15, 2012, Plaintiff became unable to work due to 

psychosis, anxiety, post-traumatic stress disorder (“PTSD”), chronic obstructive 
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pulmonary disease, asthma, and depression. (A.R. 47). Social Security denied the 

application for disability insurance benefits in December 2013. (A.R. 47-62). In 

September 2014, upon Plaintiff’s request for reconsideration, Social Security affirmed the 

denial of benefits. (A.R. 64-83). Plaintiff sought further review by an ALJ. (A.R. 96-

97). On December 3, 2015, Plaintiff filed an application for supplemental security 

income. (A.R. 1884-93). An ALJ conducted a hearing on May 24, 2016. (A.R. 1894-

1922). In an October 31, 2016 decision, the ALJ found that Plaintiff is not disabled 

within the meaning of the Social Security Act. (A.R. 29-44). The Appeals Council 

denied Plaintiff’s request for review, making the ALJ’s decision the final decision of the 

Social Security Commissioner. (A.R. 5-7). On March 12, 2018, Plaintiff filed a 

Complaint (Doc. 1) requesting judicial review and reversal of the ALJ’s decision. 

 B. The ALJ’s Application of the Five-Step Disability Analysis 

 The ALJ completed all five steps of the disability analysis before finding that 

Plaintiff is not disabled and entitled to disability benefits. 

 1. Step One: Engagement in “Substantial Gainful Activity” 

 The ALJ determined that Plaintiff has not engaged in substantial gainful activity 

since August 15, 2012, the alleged onset disability date. (A.R. 31). Neither party 

disputes this determination. 

2. Step Two: Presence of Medically Severe Impairment/Combination 

of Impairments 

The ALJ found that Plaintiff has the following severe impairments: status post 

right shoulder repair; chronic obstructive pulmonary disease, asthma, history of bunion 

surgeries, gastroesophageal reflux disease, anxiety, PTSD, and psychotic disorder not 

other specified. (A.R. 32). The ALJ’s step two determination is undisputed. 

 3. Step Three: Presence of Listed Impairment(s) 

The ALJ determined that Plaintiff does not have an impairment or combination of 

impairments that meets or medically equals an impairment listed in 20 C.F.R. Part 404, 
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Subpart P, Appendix 1 of the Social Security regulations. (A.R. 32-34). Neither party 

disputes the ALJ’s determination at this step. 

 4. Step Four: Capacity to Perform Past Relevant Work 

The ALJ found that Plaintiff has retained the residual functional capacity (“RFC”) 

to perform the full range of light work as defined in 20 C.F.R. §§ 404.1567(b) and 

416.967(b), subject to the following restrictions: 

[T]he claimant could occasionally climb. She could 

frequently balance, stoop, kneel, and crouch. The claimant 

could occasionally crawl. She should avoid concentrated 

exposure to extreme cold, extreme heat, humidity, odors, 

dusts, fumes, gases, or poor ventilation. The claimant should 

not be exposed to hazards such as moving machinery and 

unprotected heights. The claimant is able to perform simple, 

routine, and repetitive work tasks involving simple work 

related decisions and simple instructions with occasional 

contact with the public, coworkers and supervisors. With the 

right dominant upper extremity, the claimant is able to engage 

in frequent overhead reaching. 

(A.R. 34). After considering the testimony of a vocational expert (“VE”) and Plaintiff’s 

RFC, the ALJ determined that Plaintiff is able to perform her past relevant work. (A.R. 

42-43). In challenging this determination, Plaintiff asserts that the ALJ improperly 

weighed the opinions of certain medical sources and discredited Plaintiff’s subjective 

complaints. 

 5. Step Five: Capacity to Perform Other Work 

 Even though the ALJ determined at Step Four that Plaintiff is able to perform her 

past relevant work as generally performed, the ALJ made alternative findings at Step 

Five. (A.R. 43-44). 

At the administrative hearing, a vocational expert (“VE”) testified that based on 

Plaintiff’s RFC, Plaintiff would be able to perform the requirements of representative 

occupations such as silver wrapper. (A.R. 44). The ALJ found that the VE’s testimony 

was consistent with the information in the Dictionary of Occupational Titles and that the 

jobs identified by the VE existed in significant numbers in the national economy. (Id.). 
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After considering the VE’s testimony, Plaintiff’s age, education, work experience, and 

RFC, the ALJ determined that Plaintiff can make a successful adjustment to other work 

and is therefore not disabled. (Id.). 

C. Plaintiff’s Challenge at Step Four 

1. The ALJ Failed to Give Clear and Convincing Reasons for Rejecting 

Plaintiff’s Symptom Testimony Regarding Plaintiff’s Alleged Mental 

Impairments 

 When evaluating the credibility of a claimant’s testimony regarding subjective 

pain or symptoms, the ALJ must engage in a two-step analysis. Vasquez v. Astrue, 572 

F.3d 586, 591 (9th Cir. 2009). In the first step, the ALJ must determine whether the 

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

could reasonably be expected to produce the pain or other symptoms alleged.” 

Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). The claimant does not have 

to show that the impairment could reasonably be expected to cause the severity of the 

symptoms. Rather, a claimant must only show that it could have caused some degree of 

the symptoms. Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996). 

If a claimant meets the first step, and there is no evidence of malingering, the ALJ 

can only reject a claimant’s testimony about the severity of his or her symptoms by 

offering clear and convincing reasons that are supported by substantial evidence in the 

record. Lingenfelter, 504 F.3d at 1036. The ALJ cannot rely on general findings. The 

ALJ must identify specifically what testimony is not credible and what evidence 

undermines the claimant’s complaints. Berry v. Astrue, 622 F.3d 1228, 1234 (9th Cir. 

2010). In weighing a claimant’s credibility, the ALJ can consider many factors 

including: a claimant’s reputation for truthfulness, prior inconsistent statements 

concerning the symptoms, unexplained or inadequately explained failure to seek 

treatment, and the claimant’s daily activities. Smolen, 80 F.3d at 1284; see also 20 

C.F.R. § 404.1529(c)(4) (Social Security must consider whether there are conflicts 

between a claimant’s statements and the rest of the evidence). In addition, although the 

lack of medical evidence cannot form the sole basis for discounting pain testimony, it is a 
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factor that the ALJ can consider in his or her credibility analysis. Burch v. Barnhart, 400 

F.3d 676 (9th Cir. 2005); see also 20 C.F.R. 404.1529(c); Rollins v. Massanari, 261 F.3d 

853, 857 (9th Cir. 2001). 

As the ALJ’s decision acknowledges, Plaintiff has alleged disability primarily due 

to her psychiatric impairments. (A.R. 37). At the administrative hearing, Plaintiff 

testified that she has daily auditory and visual hallucinations, suffers from anxiety and 

has panic attacks, has a poor memory, and has an impaired “ability to stay focused on 

things focusing on things.” (A.R. 1910-12, 1915). Plaintiff also testified that she isolates 

herself as she has difficulty being around people. The ALJ found that Plaintiff’s 

medically determinable impairments could reasonably be expected to cause her alleged 

symptoms. However, the ALJ’s decision concludes that Plaintiff’s “objective medical 

evidence, the effectiveness of treatment, and [Plaintiff’s] activities of daily living, 

illustrate greater functional abilities than alleged.” (Id.). As discussed below, the Court 

finds that this conclusion is not supported by reasons that satisfy the clear and convincing 

standard. 

i. Objective Medical Evidence 

Plaintiff has received mental health treatment at The Guidance Center, Inc. (A.R. 

303-53, 463-551, 831-72). As one reason for discounting Plaintiff’s symptom testimony, 

the ALJ stated that Plaintiff “has consistently denied depression and anxiety to treating 

medical professionals, which is inconsistent with information provided to the Guidance 

Center.” (A.R. 37). The ALJ’s decision then references certain records from Plaintiff’s 

physical examinations that indicate that Plaintiff denied depression, anxiety, and other 

mental conditions. (Id.) (citing A.R. 410, 416). However, the cited records reflect that 

Plaintiff’s chief complaints at those examinations concerned physical ailments. The 

Court does not find that those records provide a clear and convincing reason for 

discounting Plaintiff’s testimony concerning her mental impairments. 

First, “[c]ycles of improvement and debilitating symptoms are a common 

occurrence [in mental illness], and it is error for an ALJ to pick out a few isolated 
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instances of improvement over a period of months or years and to treat them as a basis 

for concluding a claimant is capable of working.” Garrison v. Colvin, 759 F.3d 995, 

1017 (9th Cir. 2014); see also Attmore v. Colvin, 827 F.3d 872, 877 (9th Cir. 2016) (ALJ 

may not focus on isolated periods of improvement without examining broader context of 

claimant’s condition); Diedrich v. Berryhill, 874 F.3d 634, 642 (9th Cir. 2017) (“The fact 

that [the disability claimant] was not exhibiting certain symptoms at the time of her 

appointment on a particular day does not indicate that Diedrich was not experiencing 

those symptoms generally or at other pertinent times.”). Second, the Court finds it 

unreasonable to expect Plaintiff’s physical medicine providers to engage in a thorough 

evaluation of Plaintiff’s mental health impairments as Plaintiff’s chief complaints at the 

physical examinations concerned physical ailments. See Widmark v. Barnhart, 454 F.3d 

1063, 1068 (9th Cir. 2006) (“It is reasonable, based on these facts, to expect that 

Widmark’s examining physicians focused their attention on the subject of his complaint, 

i.e., his neck and back. But just as no reasonable person would expect a podiatrist seeing 

a patient who complains of foot problems to thoroughly examine the full range of that 

patient's hearing, it is unreasonable to expect Widmark’s examining physicians undertook 

a thorough range of motion evaluation of Widmark’s right thumb.”). 

The ALJ also found that “there is no evidence of signs of psychosis or difficulty 

concentrating for any 12 month time period.” (A.R. 38). Plaintiff accurately observes 

that the record reflects otherwise. (Doc. 18 at 22). For instance, treatment records from 

The Guidance Center, Inc. reflect that Plaintiff was diagnosed with PTSD, psychotic 

disorder, and generalized anxiety disorder. (A.R. 333). Treating mental health providers 

consistently recorded that Plaintiff displayed anxious mood, fearfulness, confusion, 

psychomotor retardation, and tearfulness. (See, e.g., A.R. 341, 343, 506, 512, 760, 797, 

833-34, 859, 864-65, 868, 939). As another district court has explained, ALJs “must 

review the whole record; they cannot cherry-pick evidence to support their findings.” 

Bostwick v. Colvin, No. 13-cv-1936-LAB, 2015 WL 12532350, at *2 (S.D. Cal. Mar. 30, 

2015); see also Holohan v. Massanari, 246 F.3d 1195, 1207 (9th Cir. 2001) (holding that 
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an ALJ erred by selectively considering some entries in the medical record while 

ignoring others); see Garrison, 759 F.3d at 1017 n.23 (“The ALJ was not permitted to 

‘cherry-pick’ from those mixed results to support a denial of benefits.”). 

ii. Effectiveness of Plaintiff’s Mental Health Treatment 

The ALJ’s decision also states that the “record indicates [Plaintiff’s] impairments 

improved with treatment.” (A.R. 39). Yet when “a person who suffers from severe panic 

attacks, anxiety, and depression” improves, that “does not mean that the person's 

impairments no longer seriously affect her ability to function in a workplace.” Holohan 

v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001); see also Lester v. Chater, 81 F.3d 

821, 833 (9th Cir. 1995) (“Occasional symptom-free periods—and even—the sporadic 

ability to work—are not inconsistent with disability.”). The ALJ’s decision does not 

adequately explain how apparent improvement or stabilization of Plaintiff’s mental 

impairments renders Plaintiff able to sustain gainful employment.

iii. Plaintiff’s Activities of Daily Living 

The ALJ found that Plaintiff’s “activities of daily living illustrates a person more 

able bodied than alleged.” (A.R. 39). “[D]isability claimants should not be penalized for 

attempting to lead normal lives in the face of their limitations.” Reddick, 157 F.3d at 722. 

The ALJ’s decision does not adequately explain how Plaintiff’s daily activities translate 

to the ability to sustain competitive employment on a full-time basis. See Garrison, 759 

F.3d at 1016 (stating that the Ninth Circuit has “repeatedly warned that 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”); Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) 

(explaining that “the mere fact that a plaintiff has carried on certain daily activities, such 

as grocery shopping [and] driving a car, . . . does not in any way detract from her 

credibility as to her overall disability. One does not need to be ‘utterly incapacitated’ in 

order to be disabled.”) (quoting citing Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). 
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“The clear and convincing standard is the most demanding required in Social 

Security cases.” Moore v. Comm'r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 

2002). “Sheer disbelief” of the severity of a claimant’s symptoms “is no substitute for 

substantial evidence.” Benecke v. Barnhart, 379 F.3d 587, 594 (9th Cir. 2004). The 

Court finds that the ALJ failed to provide specific, clear, and convincing reasons 

supported by substantial evidence for discounting Plaintiff’s symptom testimony 

regarding her impairments. This error is harmful and alone requires remand. 

2. Remand for An Award of Benefits is Appropriate 

Ninth Circuit jurisprudence “requires remand for further proceedings in all but the 

rarest cases.” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1101 n.5 (9th Cir. 

2014). The Ninth Circuit, however, has adopted a test to determine when a case should 

be remanded for payment of benefits in cases where an ALJ has improperly rejected 

claimant testimony or medical opinion evidence. Id. at 1100-01; Garrison, 759 F.3d at 

1020. This test is commonly referred to as the “credit-as-true” rule, which consists of the 

following three factors: 

1. Has the ALJ failed to provide legally sufficient reasons for 

rejecting evidence, whether claimant testimony or medical 

opinion? Treichler, 775 F.3d at 1100-01. 

2. Has the record been fully developed, are there outstanding 

issues that must be resolved before a disability 

determination can be made, or would further administrative 

proceedings be useful? Id. at 1101. To clarify this factor, the 

Ninth Circuit has stated that “[w]here there is conflicting 

evidence, and not all essential factual issues have been 

resolved, a remand for an award of benefits is 

inappropriate.” Id. 

3. If the improperly discredited evidence were credited as true, 

would the ALJ be required to find the claimant disabled on 

remand? Id.; Garrison, 759 F.3d at 1020. 

Where a court has found that a claimant has failed to satisfy one of the factors of 

the credit-as-true rule, the court does not need to address the remaining factors. 
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Treichler, 775 F.3d at 1107 (declining to address final step of the rule after determining 

that the claimant has failed to satisfy the second step). Moreover, even if all three factors 

are met, a court retains the discretion to remand a case for additional evidence or to 

award benefits. Id. at 1101-02. A court may remand for further proceedings “when the 

record as a whole creates serious doubt as to whether the claimant is, in fact, disabled 

within the meaning of the Social Security Act.” Garrison, 759 F.3d at 1021. In 

Treichler, the Ninth Circuit noted that “[w]here an ALJ makes a legal error, but the 

record is uncertain and ambiguous, the proper approach is to remand the case to the 

agency.” 775 F.3d at 1105. 

After examining the record, the Court finds no outstanding issues of fact to be 

resolved through further proceedings. At the administrative hearing, the VE testified that 

an individual would not be able to sustain employment if 

the individual would struggle with concentration, would have 

difficulty—would only have intermittent sustained 

concentration. Would have difficulty with promptness, would 

have significant distress of authority so supervision, things of 

that nature would be difficult, but would also require 

redirection. And then would have greater than the average 

time to adapt to changes in the workplace. 

(A.R. 1920-21). The VE’s testimony establishes that if Plaintiff’s testimony was 

credited-as-true, the ALJ would be required to find that Plaintiff is disabled. The Court 

does not find any material evidence in the record that creates serious doubt that Plaintiff 

is in fact disabled. Therefore, based on the record, the Court finds it inappropriate to 

remand the case for further proceedings. See Benecke v. Barnhart, 379 F.3d 587, 595 

(9th Cir. 2004) (“Allowing the Commissioner to decide the issue again would create an 

unfair ‘heads we win; tails, let's play again’ system of disability benefits adjudication.”); 

Moisa v. Barnhart, 367 F.3d 882, 887 (9th Cir. 2004) (“The Commissioner, having lost 

this appeal, should not have another opportunity to show that Moisa is not credible any 

more than Moisa, had he lost, should have an opportunity for remand and further 

proceedings to establish his credibility.”) (citation omitted). The Court will remand the 
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case for an immediate award of benefits effective August 15, 2012 (the disability onset 

date). 

III. CONCLUSION

Based on the foregoing, 

IT IS ORDERED reversing the decision of the Commissioner of Social Security 

and remanding this case to the Commissioner for an immediate award of benefits 

effective August 15, 2012.

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

accordingly. 

Dated this 15th day of July, 2019.