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WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Margaret Marquis, 

Plaintiff, 

v. 

Commissioner of Social Security 

Administration, 

Defendant. 

No. CV-18-00706-PHX-JJT

ORDER 

At issue is the denial of Plaintiff Margaret Marquis’s Application for Disability 

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

Security Act (“the Act”). Plaintiff filed a Complaint seeking judicial review of that denial, 

and the Court now addresses Plaintiff’s Opening Brief (Doc. 12, Pl.’s Br.), Defendant SSA 

Commissioner’s Opposition (Doc. 13, Def.’s Br.), and Plaintiff’s Reply (Doc. 14, Reply). 

The Court has reviewed the briefs and the Administrative Record (Doc. 11, R.) and affirms 

the Administrative Law Judge’s decision (R. at 29–41) as upheld by the Appeals Council 

(R. at 1–3). 

I. BACKGROUND 

 Plaintiff filed her Application for Disability Insurance Benefits on March 16, 2014 

for a period of disability beginning March 2, 2014. Plaintiff’s claim was denied initially on 

October 21, 2014, and upon reconsideration on May 7, 2015. Plaintiff then testified at a 

hearing held before an Administrative Law Judge (“ALJ”) on November 9, 2016. (R. at 

48–76.) On February 8, 2017, the ALJ denied Plaintiff’s Applications. (R. at 29–41.) On 

January 29, 2018, the Appeals Council upheld the ALJ’s decision. (R. at 1–3.) 
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 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 found that Plaintiff has severe impairments of affective disorder; 

cervical degenerative disc disease (“DDD”); and lumbar DDD. (R. at 31.) The ALJ 

concluded that Plaintiff has the residual function capacity (“RFC”) to perform her past 

relevant work as a cook helper, such that she was not disabled under the Act. (R. at 40–

41.) 

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 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, 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. 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, 
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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 to determine 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 in 

giving more weight to the assessment of the nonexamining state agency physician on 

reconsideration than that of the nonexamining state agency physician on initial evaluation 

with regard to Plaintiff’s physical RFC; and (2) the ALJ erred in determining that Plaintiff’s 

testimony was not entirely credible. (Pl.’s Br. at 2.) 

A. The ALJ Properly Weighed the Nonexamining State Agency Physician 

Assessments 

 In the initial review of Plaintiff’s Application for Disability Insurance Benefits, 

Dr. Schofield, the nonexamining state agency physician, determined among other things 

that Plaintiff has the physical RFC to lift 20 pounds occasionally and 10 pounds frequently. 

(R. at 86.) In the reconsideration phase of review of Plaintiff’s Application, Dr. Alberty, 

the nonexamining state agency physician, determined that Plaintiff has the physical RFC 

to lift 50 pounds occasionally and 25 pounds frequently. (R. at 101.) The ALJ gave more 

weight to the latter assessment because it was completed more recently, when additional 
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records were available, and consistent with Plaintiff’s activities of daily living and the 

records of conservative treatment for her conditions. (R. at 39; see also R. at 34–38.) 

 The ALJ is responsible for resolving conflicts in the medical evidence. Carmickle 

v. Comm’r of Soc. Sec., 533 F.3d 1155, 1164 (9th Cir. 2008) (citing Lester v. Chater, 81 F. 

3d 821, 830–31 (9th Cir. 1996)). Where a medical opinion is contradicted by another, “it 

may be rejected for specific and legitimate reasons that are supported by substantial 

evidence in the record.” Id. “Where evidence is susceptible to more than one rational 

interpretation, it is the ALJ’s conclusion that must be upheld.” Burch v. Burnhart, 400 F.3d 

676, 679 (9th Cir. 2005). 

 The ALJ found Dr. Alberty’s RFC assessment merited more weight because it was 

more recent and made after consideration of additional medical evidence, which by itself 

is a specific and legitimate reason supported by medical evidence in the record to 

substantiate the ALJ’s resolution of the conflict between Dr. Alberty’s and Dr. Schofield’s 

assessments. The ALJ also noted that Plaintiff received conservative treatment for the right 

shoulder pain she reported, and she improved with physical therapy such that the pain did 

not produce physical limitations beyond those determined by Dr. Alberty. (R. at 39; see 

also R. at 36–37 (ALJ noting reports of Plaintiff’s right shoulder improvement with 

treatment and the lack of any records indicating that Plaintiff went to the last two authorized 

appointments for shoulder treatment).) The ALJ provided sufficiently specific and 

legitimate reasons to give more weight to Dr. Alberty’s assessment than Dr. Schofield’s, 

and the Court must thus uphold the ALJ’s conclusion. 

B. The ALJ Properly Considered Plaintiff’s Symptom Testimony 

 Plaintiff also argues that the ALJ erred in her consideration of Plaintiff’s symptom 

testimony. (Pl.’s Br. at 18–24.) 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)). “In evaluating the credibility of pain testimony after a claimant 
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produces objective medical evidence of an underlying impairment, an ALJ may not reject 

a claimant’s subjective complaints based solely on a lack of medical evidence to fully 

corroborate the alleged severity of pain.” Burch, 400 F.3d at 680. This is because “pain 

testimony may establish greater limitations than can medical evidence alone.” Id. But the 

ALJ may properly consider that the medical record lacks evidence to support certain 

symptom testimony. Id. at 681. The ALJ may also properly consider inconsistencies in the 

claimant’s testimony, including inconsistencies between the claimant’s testimony of daily 

activities and symptom testimony. Id. 

 As the ALJ noted, Plaintiff testified that she could only lift 20 pounds because she 

sustained a right shoulder injury while lifting 200-pound shelves in mid-2013, but she did 

not seek a shoulder evaluation until early 2014. (R. at 36.) X-rays of Plaintiff’s shoulder 

showed no acute change, and an examination revealed normal rotator cuff strength and no 

significant atrophy or asymmetry. (R. at 36.) The ALJ also noted Plaintiff received 

conservative treatment with physical therapy (R. at 424, 426–27) and improved with 

treatment. (R. at 36–37.) The ALJ properly considered that the medical records lacked 

evidence to support Plaintiff’s reports of continued right shoulder pain. See id. 

The ALJ also found that Plaintiff’s self-reported RFC limitations were inconsistent 

with a medical report that she is “active and athletic,” another report that she was working 

on a ladder in her garden in 2016—two years after the alleged onset date—and testimony 

that she hikes and walks, cleans one room at a time, and goes grocery shopping. (R. at 34–

37, 40.) The ALJ thus properly concluded that Plaintiff does have limitations resulting from 

her impairments, but not to the extent she testified. See Turner v. Comm’r, Soc. Sec. 

Admin., 613 F.3d 1217, 1224–25 (9th Cir. 2010); Burch, 400 F.3d at 680–81. 

 In sum, Plaintiff raises no error on the part of the ALJ, and the SSA’s decision 

denying Plaintiff’s Application for Disability Insurance Benefits under the Act was 

supported by substantial evidence in the record. 
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IT IS THEREFORE ORDERED affirming the February 8, 2017 decision of the 

Administrative Law Judge, (R. at 29–41), as upheld by the Appeals Council on January 29, 

2018, (R. at 1–3). 

 IT IS FURTHER ORDERED directing the Clerk to enter final judgment consistent 

with this Order and close this case. 

 Dated this 19th day of March, 2019. 

Honorable John J. Tuchi 

United States District Judge