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WO NOT FOR PUBLICATION 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

John Joseph Sahlberg, 

Plaintiff, 

v. 

Commissioner of Social Security 

Administration, 

Defendant. 

No. CV-15-01815-PHX-JJT

ORDER 

 At issue is the denial of Plaintiff John Joseph Sahlberg’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. 15, “Pl.’s Br.”), Defendant Social Security Administration Commissioner’s 

Opposition (Doc. 19, “Def.’s Br.”), and Plaintiff’s Reply (Doc. 20, “Reply”). The Court 

has reviewed the briefs and Administrative Record (Doc. 11, R.) and now reverses the 

Administrative Law Judge’s decision (R. at 23-42) as upheld by the Appeals Council 

(R. at 1-7). 

I. BACKGROUND

 Plaintiff filed an application for Disability Insurance on June 30, 2011, for a 

period beginning May 8, 2008. (R. at 177-78.) Plaintiff’s claims were denied initially on 

November 8, 2011 (R. at 59-73), and on reconsideration on May 8, 2012 (R. at 76-94). 

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

Case 2:15-cv-01815-JJT Document 21 Filed 03/27/17 Page 1 of 9
- 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 

March 20, 2014. (R. at 43-58.) On April 4, 2014, the ALJ denied Plaintiff’s claims. (R. at 

23-42.) On July 14, 2015, the Appeals Council upheld the ALJ’s decision. (R. at 1-7.) 

The present appeal followed. 

 The Court has reviewed the voluminous 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 

medical records and opinions from Dr. Anup Rai, Dr. Girolamo Arpino, Dr. Jose 

Pierrend, Dr. Hadi Najatian, Dr. Savitha Kayla, non-examining state agency reviewers 

Dr. Elliott Goytia and Dr. Maritja Orenstein, and state agency consulting examiner 

Dr. Brian Biggs, the ALJ found that Plaintiff has severe impairments that include chronic 

kidney disease with a history of kidney stones, obesity, osteoarthritis of the hips, history 

of diverticulitis, and obstructive sleep apnea. (R. at 28.) 

II. ANALYSIS 

 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 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 

Case 2:15-cv-01815-JJT Document 21 Filed 03/27/17 Page 2 of 9
- 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 

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 residual 

functional capacity (“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. 

 Plaintiff alleges two primary ALJ errors: (1) improperly rejecting the medical 

assessment of a treating physician, Dr. Arpino, and (2) improperly rejecting Plaintiff’s 

symptom testimony without clear and convincing reasons. (Pl.’s Br. at 1.) 

 A. The ALJ Erred in Rejecting Dr. Arpino’s Opinions 

Plaintiff alleges that each of the five reasons the ALJ provided for rejecting 

Dr. Arpino’s opinion were insufficient. (Pl.’s Br. at 13.) Specifically, Plaintiff alleges that 

the ALJ’s reasons were conclusory, cherry-picked—rather than holistic—

mischaracterized the relevant evidence, or were otherwise legally improper or illogical. 

(Pl.’s Br. at 13-18.) In response, Defendant either conclusorily states that the ALJ’s 

Case 2:15-cv-01815-JJT Document 21 Filed 03/27/17 Page 3 of 9
- 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 

reasoning is sufficient or reiterates much of the limited reasoning the ALJ provided. 

(Def.’s Br. at 9-10.) For various reasons, the Court agrees with Plaintiff. 

An ALJ “may only reject a treating or examining physician’s uncontradicted 

medical opinion based on clear and convincing reasons.” Carmickle v. Comm’r of Soc. 

Sec., 533 F.3d 1155, 1164 (9th Cir. 2008) (citation and quotation omitted). “Where such 

an opinion is contradicted, however, it may be rejected for specific and legitimate reasons 

that are supported by substantial evidence in the record.” Id. Even when contradicted, a 

treating physician’s opinion is still owed deference and may be “entitled to the greatest 

weight . . . even if it does not meet the test for controlling weight.” Garrison v. Colvin, 

759 F.3d 995, 1012 (9th Cir. 2014) (quoting Orn, 495 F.3d at 633). 

 Although the parties devote substantial portions of their filings to the applicable 

standard, it is clear that Dr. Arpino’s assessment was at least partially contradicted by 

state agency doctors. (See R. at 789-93.) Accordingly, the ALJ must provide specific and 

legitimate reasons for rejecting Dr. Arpino’s assessment and support those reasons with 

substantial evidence in the record. See Carmickle, 553 F.3d 1164. 

 While the ALJ stated that Dr. Arpino’s opinion was not supported by his own 

clinical findings or other objective evidence, he did not cite to any portion of the record 

or illustrate any inconsistencies therein. (R. at 34); Montoya v. Colvin, 649 F. App’x 429, 

430 (9th Cir. 2016) (noting that ALJ did not provide any examples or cite any part of the 

record to support assertion that opinion was not substantiated by clinical findings but was 

required to provide a thorough summary of conflicting facts and clinical evidence); 

Binford v. Colvin, 113 F. Supp. 3d 1067 (W.D. Wash. 2015) (finding the ALJ failed to 

provide specific and legitimate reasoning for its conclusion by stating that the provider’s 

opinions were inconsistent with the medical evidence and providing little to no further 

detail). While the ALJ noted that Dr. Arpino did not “explain what objective evidence he 

relied on in reaching the specific conclusion that the Plaintiff needs to lie down during 

the work day,” the lack of evidence is generally not evidence itself. Moreover, the 

primary purpose of medical records is not to document a disability, and a physician, 

Case 2:15-cv-01815-JJT Document 21 Filed 03/27/17 Page 4 of 9
- 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 

unlike an ALJ, is not required to provide specific citation for each opinion, particularly 

those supported by the record as a whole. See Orn, 495 F.3d at 634 (“The primary 

function of medical records is to promote communication and recordkeeping for health 

care personnel—not to provide evidence for disability determinations. We therefore do 

not require that a medical condition be mentioned in every report to conclude that a 

physician’s opinion is supported by the record.”). Even when the ALJ provided 

specificity—only citing to two instances wherein the record contradicted Dr. Arpino’s 

assessment—he only found that the cited instances belied Dr. Arpino’s assessment of 

pain precipitated by movement/overuse that would interfere with attention and 

concentration, not Dr. Arpino’s entire assessment. (R. at 34.) The ALJ’s limited 

references to the medical record and conclusory statements are insufficient to reject 

Dr. Arpino’s opinion, giving it lesser weight. While unclear if Plaintiff alleges further 

mistake by the ALJ regarding Dr. Arpino’s opinion, the Court only finds error as set forth 

above. 

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

Plaintiff argues that the ALJ erred by failing to provide clear and convincing 

reasons for rejecting portions of Plaintiff’s symptom testimony. (Pl.’s Br. at 18-22.) 

Defendant argues that the ALJ’s finding that Plaintiff was not entirely credible was 

supported by the evidence, primarily due to Plaintiff’s work and travel history, internal 

inconsistencies, and lack of medical support. (Def.’s Br. at 4-7.) Again, the Court agrees 

with Plaintiff. 

 “[U]nless an ALJ makes a finding of malingering based on affirmative evidence 

thereof, he or she may only find an applicant not credible by making specific findings as 

to credibility and stating clear and convincing reasons for each.” Robbins v. Soc. Sec. 

Admin., 466 F.3d 880, 883 (9th Cir. 2006). “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). When evaluating a claimant’s pain testimony 

where the claimant has produced objective medical evidence of an underlying 

Case 2:15-cv-01815-JJT Document 21 Filed 03/27/17 Page 5 of 9
- 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 

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 v. 

Barnhart, 400 F.3d 676, 680 (9th Cir. 2005). “General findings are insufficient; rather, 

the ALJ must identify what testimony is not credible and what evidence undermines the 

claimant’s complaints.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (quoting 

Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1996)). 

 At the outset, the Court must address the most glaring insufficiency that the ALJ 

provided in rejecting Plaintiff’s symptom testimony—that Plaintiff continued to work 

until August 2009, long after his May 8, 2008 alleged onset date. (R. at 31.) The ALJ 

provided no citation to the record in support of this statement and Plaintiff affirmatively 

alleges—and provides evidence—that it is inaccurate. (Pl.’s Br. at 19; Reply at 7.) 

Plaintiff testified that he stopped working as a medical assistant in May 2008, which 

coincides with his alleged onset date. (R. at 47.) Indeed, Plaintiff had no earnings in 

2009. (R. at 182.) While the ALJ contradictorily acknowledged that Plaintiff was not 

substantially gainfully employed during the alleged disability period, the ALJ’s reliance 

and citation to an incorrect employment date, alone, warrants remand for a correct 

determination of disability based on Plaintiff’s actual employment history. Curiously, 

Defendant fails to respond to this mistake in its Response. (See Def.’s Resp. at 4-5.) 

Instead, Defendant simply states that Plaintiff “continued to work as a medical assistant 

in August 2009,” without at all addressing the discrepancy. (Def.’s Resp. at 4.) 

Accordingly, Plaintiff’s incorrect employment history cannot serve as a reason to 

discredit Plaintiff’s symptom testimony under any standard. 

 The ALJ also failed to provide citation to the record or any specific reasoning in 

rejecting Plaintiff’s symptom testimony. (See R. at 30 (“the claimaint’s statements 

concerning the intensity, persistence and limiting effects of these symptoms are not 

entirely credible for the reasons explained in this decision” without providing those 

explanations).) Although the ALJ does address Plaintiff’s limited work activity and 

ability to travel (R. at 31), neither provide clear and convincing reasons for rejecting 

Case 2:15-cv-01815-JJT Document 21 Filed 03/27/17 Page 6 of 9
- 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 

Plaintiff’s testimony. See, e.g, Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (“The 

Social Security Act does not require that claimants be utterly incapacitated to be eligible 

for benefits . . . and many home activities are not easily transferable to what may be the 

more grueling environment of the workplace, where it might be impossible to 

periodically rest or take medication.”). Plaintiff’s sporadic work, which the ALJ admitted 

was “well below” substantial gainful activity (R. at 31), does not suggest the ability to 

perform substantial gainful activity, nor is it at odds with any of Plaintiff’s symptom 

testimony. Intermittent cleaning of a church bathroom once a week or occasional random 

handyman assignments do not belie any of Plaintiff’s testimony and the ALJ fails to 

explain the conflict. See Lester, 81 F.3d at 833 (“even the sporadic ability to work [is] not 

inconsistent with disability”) Nor did the ALJ explain how Plaintiff’s daily activities—

cooking or shopping for two hours, or a singular trip to Illinois during the disability 

period—contradicts Plaintiff’s alleged symptoms. Although Defendant argues that these 

activities are at odds with the testimony that Plaintiff could not stand or walk for more 

than short periods of time, it is unclear if or how those activities would require activity in 

contravention of either stated limitation. (Def.’s Br. at 6; R. at 31, 52-54, 225-26.) The 

ALJ equally fails to provide medical evidence that would serve to discount Plaintiff’s 

testimony. While the ALJ summarized portions of the medical records that were alleged 

to contradict Plaintiff’s testimony, several of those portions support Plaintiff’s claims. 

Elsewhere, the ALJ has discounted that very same treatment. Simultaneous reliance on 

and rejection of certain evidence can result in circular analysis impossible for any 

claimant to meet. Binford, 113 F. Supp. 3d at 1075. Thus, Plaintiff’s employment history, 

travel, reported daily activities, and medical treatment do not provide clear and 

convincing evidence for discounting his symptom testimony. 

Finally, the ALJ also seemingly rejected Plaintiff’s testimony because he “came to 

the hearing wearing supplemental oxygen,” for which there is no medical 

recommendation. (R. at 31.) Once again, Plaintiff alleges—and provides evidence—that 

the statement is inaccurate. (Pl.’s Br. at 21.) Plaintiff testified that the device was a “med 

Case 2:15-cv-01815-JJT Document 21 Filed 03/27/17 Page 7 of 9
- 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 

back pump” used in response to complications from surgery. (R. at 51-52.) In his brief, 

Plaintiff asserts that the device was used in conjunction with in-home care with a special 

ostomy nurse post-surgery, which is also reflected in the medical record. (Pl.’s Br. at 21 

(citing R. at 932).) Any discrediting of Plaintiff or Plaintiff’s testimony based on this 

erroneous observation is also error. 

The ALJ’s finding that Plaintiff’s symptoms testimony conflicted with the medical 

evidence and work history is unsupported by specific, clear, and convincing reasons. 

Instead, the ALJ mischaracterized the record in describing Plaintiff’s employment 

history, medical records, daily activities, and testimony. Each cited instance, as is evident 

from the record, does not conflict with Plaintiff’s testimony, and thus does not provide a 

basis for discounting Plaintiff’s symptom testimony. 

C. The 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 remand for further 

proceedings. (Pl.’s Br. at 22.) The credit-as-true rule only applies in cases that raise “rare 

circumstances” which permit the Court to depart from the ordinary remand rule under 

which the case is remanded for additional investigation or explanation. Treichler v. 

Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099–1102 (9th Cir. 2014). These rare 

circumstances arise when three elements are present. First, the ALJ fails 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). 

Case 2:15-cv-01815-JJT Document 21 Filed 03/27/17 Page 8 of 9
- 9 - 

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 

 Here, the ordinary remand rule applies. Plaintiff’s claims involve evidentiary 

conflicts that must be resolved, particularly in light of this Court’s determination that the 

ALJ erred in rejecting Plaintiff’s symptom testimony and assigning little weight to the 

treating physician’s opinion. Given these outstanding issues, it is evident that there is still 

uncertainty as to the outcome of the proceeding and the ALJ must re-determine Plaintiff’s 

status based on, inter alia, Plaintiff’s accurate employment and medical history and 

giving proper weight (or sufficient citation to the contrary) to Plaintiff’s treating 

physician’s opinion. Accordingly, the ordinary remand rule, not the credit-as-true rule, 

applies. 

IT IS THEREFORE ORDERED reversing the April 4, 2014, decision of the 

Administrative Law Judge, (R. at 23-42), and remanding this matter for further 

proceedings consistent with this Order. 

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

accordingly and close this matter. 

 Dated this 27th day of March, 2017. 

Honorable John J. Tuchi

United States District Judge 

Case 2:15-cv-01815-JJT Document 21 Filed 03/27/17 Page 9 of 9