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WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Daniel Zur, 

Plaintiff, 

v. 

Commissioner of Social Security 

Administration, 

Defendant. 

No. CV-15-01821-PHX-GMS

ORDER 

 Pending before the Court is the appeal of Plaintiff Daniel Zur (“Zur”), which 

challenges the Social Security Administration’s decision to deny benefits. (Doc. 1.) For 

the reasons set forth below, this Court remands the case for further administrative 

proceedings. 

BACKGROUND 

 On May 30, 2013, Daniel Zur filed an application for disability insurance benefits, 

alleging a disability onset date of May 1, 2012. (Tr. 70, 72.) His claim was initially 

denied on October 23, 2013, and it was denied again upon reconsideration on March 19, 

2014. (Tr. 83, 118.) Zur then filed a written request for a hearing, and he testified before 

ALJ Thomas Cheffins on March 19, 2015. (Tr. 11.) On April 16, 2015, the ALJ issued a 

decision finding Zur not disabled. (Tr. 11–20.) 

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 In evaluating whether Zur was disabled, the ALJ undertook the five-step 

sequential evaluation for determining disability.1

 (Tr. 12.) At step one, the ALJ found 

that Zur had not engaged in substantial gainful activity since the alleged onset date. (Tr. 

13.) At step two, the ALJ determined that Zur suffered from the following severe 

impairments: obesity, hypertension, and gout. (Tr. 13–14.) He also found that Zur 

suffered from nonsevere impairments, including autoimmune disorder, 

hyperalimentation, Crohn’s disease, back pain, acid reflux, chronic renal disease, bipolar 

disorder, and PTSD. (Tr. 14.) At step three, the ALJ determined that none of these 

impairments, either alone or in combination, met or equaled any of the Social Security 

Administration’s listed impairments. (Id.) 

 At that point, the ALJ reached step four and made a determination of Zur’s 

residual functional capacity (“RFC”),2

 concluding that Zur could “perform light work as 

defined in 20 CFR 404.1567(b), with no climbing ladders, ropes or scaffolds, frequent 

climbing ramps and stairs, and frequent crouching, kneeling and crawling.” (Tr. 14–15.) 

In making this finding, the ALJ found that Zur’s subjective testimony was “not entirely 

 1

 The five-step sequential evaluation of disability is set out in 20 C.F.R. § 404.1520 (governing disability insurance benefits) and 20 C.F.R. § 416.920 (governing supplemental security income). Under the test: 

A claimant must be found disabled if she proves: (1) that she 

is not presently engaged in a substantial gainful activity[,] (2) that her disability is severe, and (3) that her impairment meets or equals one of the specific impairments described in the regulations. If the impairment does not meet or equal one of 

the specific impairments described in the regulations, the 

claimant can still establish a prima facie case of disability by 

proving at step four that in addition to the first two 

requirements, she is not able to perform any work that she has done in the past. Once the claimant establishes a prima facie 

case, the burden of proof shifts to the agency at step five to demonstrate that the claimant can perform a significant 

number of other jobs in the national economy. This step-five determination is made on the basis of four factors: the 

claimant’s residual functional capacity, age, work experience and education. 

Hoopai v. Astrue, 499 F.3d 1071, 1074–75 (9th Cir. 2007) (internal quotation marks and citations omitted). 

2

 RFC is the most a claimant can do despite the limitations caused by his impairments. See S.S.R. 96–8p (July 2, 1996). 

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credible.” (Tr. 15.) The ALJ gave little to no weight to the treating physicians, Drs. 

Merritt, Cohen, and Quershi. (Tr. 15–20.) He also gave little weight to Dr. Geary, an 

examining physician. (Tr. 19.) Instead, he relied on the testimony of state agency’s 

reviewing physicians. (Id.) Likewise, the ALJ rejected the testimony of Zur’s licensed 

social worker/physician assistant, Ms. Monachelli. (Tr. 19.) 

 The Appeals Council declined to review the decision. (Tr. 1–5.) Zur filed the 

complaint underlying this action on September 9, 2015, seeking this Court’s review of 

the ALJ’s denial of benefits. (Doc. 1.) The matter is now fully briefed before this Court. 

(Doc. 14, 15, 19.)

ANALYSIS 

I. Standard of Review 

 A reviewing federal court will only address the issues raised by the claimant in the 

appeal from the ALJ’s decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 

2001). A federal court may set aside a denial of disability benefits only if that denial is 

either unsupported by substantial evidence or based on legal error. Thomas v. Barnhart, 

278 F.3d 947, 954 (9th Cir. 2002). Substantial evidence is “more than a scintilla but less 

than a preponderance.” Id. (quotation omitted). “Substantial evidence is relevant 

evidence which, considering the record as a whole, a reasonable person might accept as 

adequate to support a conclusion.” Id. (quotation omitted). 

 The ALJ is responsible for resolving conflicts in testimony, determining 

credibility, and resolving ambiguities. See Andrews v. Shalala, 53 F.3d 1035, 1039 (9th 

Cir. 1995). “When the evidence before the ALJ is subject to more than one rational 

interpretation, we must defer to the ALJ’s conclusion.” Batson v. Comm’r of Soc. Sec. 

Admin., 359 F.3d 1190, 1198 (9th Cir. 2004). This is so because “[t]he [ALJ] and not the 

reviewing court must resolve conflicts in evidence, and if the evidence can support either 

outcome, the court may not substitute its judgment for that of the ALJ.” Matney v. 

Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992) (citations omitted). 

/ / / 

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II. Analysis 

 A. The ALJ Erred In Rejecting the Treating Physicians’ Testimony 

 “As a general rule, more weight should be given to the opinion of a treating source 

than to the opinion of doctors who do not treat the claimant.” Lester v. Chater, 81 F.3d 

821, 830 (9th Cir. 1995), as amended (Apr. 9, 1996). Therefore, if a treating physician’s 

opinion is “not contradicted by another doctor, it may be rejected only for clear and 

convincing reasons.” Id. If the treating physician’s opinion is contradicted by another 

doctor, the Commissioner still cannot reject the treating physician’s opinion unless he 

provides “specific and legitimate reasons supported by substantial evidence in the 

record.” Id. (internal quotations omitted). 

 The ALJ erred in rejecting the testimony of treating physicians Drs. Merritt, 

Qureshi, and Cohen without sufficiently explained reason for doing so. 

 1. Dr. Brock Merritt 

 Dr. Merritt was Zur’s primary care physician for over eight years. (Tr. 49.) Dr. 

Merritt examined Zur on four separate occasions. In May of 2012 Dr. Merritt opined that 

Zur “does not qualify for any physical problems for disability, but may at least partially 

qualify through psychiatry,” and from fall of 2013 to winter 2014, Dr. Merritt found that 

Zur could not maintain a full-time job due to his illnesses, specifically due to his Crohn’s 

disease and his bipolar disorder. (Tr. 697–98, 888–90, 1005–6, 1248–49, 1250–52.) The 

ALJ gave Dr. Merritt’s opinion no weight because he claimed that it was “completely 

unsupported by the record,” relied too heavily on the claimant’s subjective testimony and 

was beyond the scope of a primary care physician. (Tr. 19.) The ALJ went on to note 

that Dr. Merritt’s opinion was contradicted by his internal opinions as well as the state 

agency’s reviewing and consulting opinions, and objective test records. 

 The ALJ did not provide “specific and legitimate reasons supported by substantial 

evidence in the record” to justify disregarding Dr. Merritt’s testimony, and thus he 

committed legal error. Lester, 81 F.3d at 830. Early on in the opinion, the ALJ provided 

a list of citations to the record to support the assertion that the “[m]ental and physical 

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exam findings do not support” Zur’s allegations. (Tr. 16.) However, the ALJ failed to 

provide any explanation, parenthetical or otherwise, as to how the cited medical records 

established inconsistency between Merritt’s findings and the objective medical data. The 

ALJ also did not provide any explanation for declaring that Dr. Merritt’s opinions were 

based on the “claimant’s subjective complaints” and that his opinion was “outside the 

scope of his medical specialty.” (Tr. 19.) Furthermore, the ALJ did not adequately 

support his claim that Dr. Merritt’s opinions are internally inconsistent. The ALJ cites to 

Dr. Merritt’s July 2012 opinion that Zur did not qualify for disability to support this 

claim. (Id.) However, this is not, in and of itself, inconsistent with Dr. Merritt’s later 

assertions that Zur did qualify for disability based on physical ailments.3

 (Id.) Likewise, 

the ALJ failed to cite to specific examples establishing that Dr. Merritt’s opinion was 

contradicted by the state agency reviewing and examining physicians, and he did not 

provide a single example demonstrating how Zur’s daily activities contradicted Dr. 

Merritt’s findings. (Id.) The ALJ’s reasoning was too generalized “to allow the agency’s 

path to be reasonably discerned,” and thus he erred. Molina v. Astrue, 674 F.3d 1104, 

1121 (9th Cir. 2012). 

 2. Dr. Junaid Qureshi 

 Dr. Qureshi is Zur’s treating nephrologist. (Tr. 50.) He has treated Zur for three 

years, and Zur has seen him every couple of months during this time. (Id.) In September 

of 2014, Dr. Qureshi opined that Zur is precluded from work-related activities due to 

frequent urination, coupled with nausea and fatigue. (Tr. 1230.) The ALJ dismissed Dr. 

Qureshi’s medical opinion in the same paragraph that he dismissed Dr. Cohen’s medical 

opinion. (Tr. 19.) While the ALJ includes a list of citations to the record, these citations 

are too generalized to provide any explanation for which aspect of the medical report led 

 

3

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year’s time. Thus, while Dr. Merritt’s 2012 observations might support the ALJ’s conclusion that Dr. Merritt’s 2013 observations are internally inconsistent with his 2012 

observations, it does not, absent further explanation, provide a substantial basis on which 

to reject Dr. Merritt’s opinion, although it may be relevant to determining whether the claimant’s alleged onset date is accurate. 

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the ALJ to dismiss Dr. Qureshi’s opinion. (Tr. 19.) 

 Generally, “even when an agency explains its decision with less than ideal clarity, 

we must uphold it if the agency's path may reasonably be discerned.” Molina, 674 F.3d 

at 1121 (internal citations and quotations omitted). However, the ALJ did not provide 

any explanation linking the exhibits he listed to his reasoning for dismissing Dr. 

Qureshi’s opinion, and this lack of explanation prevents this Court from finding that the 

ALJ’s logic can be reasonably discerned from his opinion. Id. (Tr. 19.) While the 

Commissioner offers some analysis on the opinion in her briefing, “[l]ong-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.” Bray v. Comm'r of Soc. 

Sec. Admin., 554 F.3d 1219, 1225 (9th Cir. 2009). Therefore, the ALJ’s inadequate 

explanation for dismissing the findings of Dr. Qureshi constituted legal error. 

 3. Dr. Murray Cohen 

Dr. Cohen treated Zur for eight years for his gastrointestinal problems. (Tr. 44.) 

In February of 2015, he opined that Zur’s irritable bowel syndrome as well as his kidney 

dysfunction would limit his ability to work. (Tr. 1379.) 

 The ALJ rejected Dr. Cohen’s opinion because he determined that it was based on 

the claimant’s subjective complaints, and “appeared sympathetic to the claimant.” (Tr. 

19.) He also stated that the opinion was not supported by “these doctors”4

 own objective 

clinical and exam findings and it was contradicted by the state agency’s examining 

physicians. (Id.) Furthermore, the ALJ stated that Dr. Cohen’s opinion was contested 

with the objective testing of record. (Id.) However, as above with both Dr. Merritt’s and 

Dr. Qureshi’s opinions, the ALJ failed to explain how the exhibits he listed supported his 

findings. The ALJ’s logic cannot be reasonably discerned from his opinion, and thus he 

committed error. Molina, 674 F.3d at 1121. 

 

4

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 4. The ALJ’s Error was Prejudicial. 

 Once it has been determined that an ALJ made an error during the review of a 

claimant’s file, the next step is to determine whether the error was harmless. See

Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008) (applying 

the harmless error standard after determining that two of the ALJ’s reasons supporting his 

adverse credibility finding were invalid). Ninth Circuit precedents “do not quantify the 

degree of certainty needed to conclude that an ALJ’s error was harmless.” Marsh v. 

Colvin, 792 F.3d 1170, 1173 (9th Cir. 2015). The general rule is that an error is harmless 

where a court is can “conclude from the record that the ALJ would have reached the same 

result absent the error.” Molina, 674 F.3d at 1115.. Furthermore, “the more serious the 

ALJ's error, the more difficult it should be to show the error was harmless.” Id.

 The ALJ in this case either discredited or wholly rejected the opinions of the three 

treating physicians in Zur’s case. (Tr. 19.) Given that treating physicians are generally 

entitled to more weight than state agency reviewing physicians, this Court cannot 

“conclude from the record that the ALJ would have reached the same result absent the 

error.” Molina, 674 F.3d at 1115. Therefore, the ALJ committed prejudicial error by 

discrediting or entirely rejecting the opinions of Drs. Merritt, Qureshi, and Cohen. 

 B. The Commissioner Erred in Weighing the Psychological Findings 

 The Commissioner gave little weight to examining physician Dr. Geary and no 

weight to licensed social worker/physician assistant, Ms. Monachelli. For the following 

reasons, the Court finds that the ALJ erred in rejecting Dr. Geary’s findings, but he did 

not err in rejecting Ms. Monachelli’s findings. 

 

 1. Dr. Brent Geary 

 The general rule is that the “opinion of an examining physician is. . .entitled to 

greater weight than the opinion of a nonexamining physician.” Lester v. Chater, 81 F.3d 

821, 830 (9th Cir. 1995), as amended (Apr. 9, 1996). “As is the case with the opinion of 

a treating physician, the Commissioner must provide ‘clear and convincing’ reasons for 

rejecting the uncontradicted opinion of an examining physician.” Id. Furthermore, “the 

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opinion of an examining doctor, even if contradicted by another doctor, can only be 

rejected for specific and legitimate reasons that are supported by substantial evidence in 

the record,” and “generally, the more consistent an opinion is with the record as a whole, 

the more weight” that opinion is given. Id. at 830–31. 

 The ALJ in this case failed to provide an explanation for disregarding Dr. Geary’s 

opinion. To justify the dismissal, he stated that 1) Dr. Geary only examined Zur once and 

2) his opinion “found for more than mild limitations in concentration, persistence, and 

pace, which is otherwise unsupported by the greater objective record.” (Tr. 19.) The 

“opinion of an examining physician is. . .entitled to greater weight than the opinion of a 

nonexamining physician.” Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995), as 

amended (Apr. 9, 1996). Although he only examined Zur once, Dr. Geary still saw him 

more often than the nonexamining physicians that the ALJ credited over him. Therefore, 

in the absence of any supportive citation to facts contradicting Dr. Geary’s opinion, this is 

not a legitimate reason for discrediting Dr. Geary’s findings. 

 And, in fact, the ALJ failed to cite to any aspect of the record to support the 

assertion that Dr. Geary’s findings were “otherwise unsupported by the greater objective 

record,” and instead merely cited to Dr. Geary’s findings. It is unclear from his analysis if 

he intended to assert that Dr. Geary’s findings were contradicted by the state agency’s 

reviewing physicians or not, but at any rate, this lack of specificity constitutes error. See 

Garrison, 759 F.3d at 1012 (“Where an ALJ does not explicitly reject a medical opinion 

or set forth specific, legitimate reasons for crediting one medical opinion over another, he 

errs.”). 

 This error was not harmless under the standard articulated in Molina. Dr. Geary 

found that Zur had more than mild limitations caused by his psychological conditions. As 

a physician that examined Zur, his opinion was entitled to more weight than the 

nonexamining physicians that contradicted him. This Court cannot “conclude from the 

record that the ALJ would have reached the same result absent the error,” and thus the 

ALJ committed harmful error in rejecting Dr. Geary’s opinion. Molina, 674 F.3d 

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at 1115. 

 2. Jane H. Monachelli 

 Social Security regulations consider physician assistants and mental health 

counselors as “other sources” of medical evidence. 20 C.F.R. § 404.1513(d). These 

sources are not entitled to the same deference as “acceptable medical sources,” such as 

licensed physicians or psychologists. Molina, 674 F.3d at 1111. Therefore, an ALJ may 

properly reject the findings of an “other source” of medical evidence as long as the ALJ 

“gives reasons germane to each witness for doing so.” Turner v. Comm'r of Soc. Sec., 

613 F.3d 1217, 1224 (9th Cir. 2010). 

 The ALJ rejected Ms. Monachelli’s, Zur’s licensed social worker and physician 

assistant, testimony for several reasons, including that it was contradicted by the state 

agency reviewing physicians. (Tr. 19.) An ALJ may properly credit the opinion of an 

“acceptable medical source” over that of an “other source.” See Molina, 674 F.3d at 

1111 (upholding an ALJ’s decision to credit a licensed psychiatrist’s opinion over that of 

a physician’s assistant.) Therefore, the ALJ may have acted within his discretion to 

properly discredit the testimony of Ms. Monachelli, to the extent that, upon 

reexamination he still determines that her opinions are inconsistent with those opinions 

he appropriately credits that are held by an “acceptable medical source.” 

 C. Rejecting Symptom testimony 

 If an ALJ finds that a claimant is not malingering, and the claimant “provided 

objective medical evidence of an underlying impairment which might reasonably produce 

the pain or other symptoms alleged, the ALJ may ‘reject the claimant’s testimony about 

the severity of her symptoms only by offering specific, clear and convincing reasons for 

doing so.’ ” Brown-Hunter v. Colvin, 806 F.3d 487, 492–93 (9th Cir. 2015) (quoting 

Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007)). This standard is not met by 

the ALJ “simply stat[ing] [his] non-credibility conclusion and then summariz[ing] the 

medical evidence.” Brown-Hunter, 806 F.3d at 494. Rather, an ALJ must identify which 

testimony he considers not credible, and “link that testimony to the particular parts of the 

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record supporting her non-credibility determination.” Id. The ALJ’s opinion “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.” Bunnell v. Sullivan, 947 F.2d 341, 345–46 (9th Cir. 1991) 

(internal quotations and citations omitted). 

 When determining credibility, an ALJ may consider a variety of factors, including: 

the treatment the claimant sought and received, the type of medication he takes, the 

measures he’s taken to relieve his pain, and the location, duration, frequency, and 

intensity of his pain. 20 C.F.R. § 404.1529(c)(3). An ALJ may also consider why a 

claimant left his last place of employment, and “[c]ontinued receipt of unemployment 

benefits” after the alleged onset date “does cast doubt on a claim of disability, as it shows 

that an applicant holds himself out as capable of working.” Ghanim v. Colvin, 763 F.3d 

1154, 1165 (9th Cir. 2014); see Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001), 

as amended (Nov. 9, 2001) (permitting an ALJ to consider the fact that the claimant 

stated the “he left his job because he was laid off, rather than because he was injured” as 

a relevant factor in the credibility determination). However, “it is error to reject a 

claimant's testimony merely because symptoms wax and wane in the course of 

treatment.” Garrison, 759 F.3d at 1017. 

 1. Specificity of Limitations 

 In order to reject a claimant’s symptom testimony, the ALJ must “identify 

specifically which of [the claimant’s] statements she found not credible and why,” while 

also providing “sufficiently specific reasons for rejecting the testimony, supported by 

evidence in the case record.” Brown-Hunter, 806 F.3d at 493. Here, the ALJ stated that 

he found Zur’s complaints relating to his back pain unreliable because the objective 

medical evidence did not support the severity of the pain he reported. (Tr. 19.) The ALJ 

similarly found that Zur’s reports of gastrointestinal distress were inconsistent with his 

colonoscopy labs and other clinical evidence. (Id.) The ALJ further noted that while 

Zur claimed that he suffered from “frequent and/or severe diarrhea and need to use the 

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restroom,” Zur himself admitted that he only wore protective diapers occasionally and 

had not experienced any weight loss. (Id.) Finally, the ALJ noted that despite Zur’s 

claims that his conditions debilitated him, Zur denied “disabling symptoms and signs on 

exam.” (Id.) Therefore, the ALJ did specifically identify which aspects of Zur’s 

testimony he found to not be credible, and he “link[ed] that testimony to the particular 

parts of the record supporting [his] non-credibility determination.” Brown-Hunter, 806 

F.3d at 494. 

2. Zur’s Non-Medical Departure and Receipt of 

Unemployment Benefits 

 “It does not follow from the fact that a claimant tried to work for a short period of 

time and, because of his impairments, failed, that he did not then experience pain and 

limitations severe enough to preclude him from maintaining substantial gainful 

employment.” Lingenfelter v. Astrue, 504 F.3d 1028, 1038 (9th Cir. 2007). However, 

evidence that the claimant “left his job because he was laid off, rather than because he 

was injured” can be weighed by an ALJ during the credibility determination. Bruton, 268 

F.3d at 828. Accepting unemployment benefits after an alleged onset date also “cast[s] 

doubt on a claim of disability, as it shows that an applicant holds himself out as capable 

of working.” Ghanim, 763 F.3d at 1165. 

 Zur was fired from his last place of employment for allegedly stealing coffee. He 

does not allege that he quit due to his symptoms. The ALJ considered that fact, and 

found that the “[t]he fact that the claimant’s work ended due to nonmedical reasons 

suggests he could have kept working despite his impairments alleged restrictions and 

limitations, and is inconsistent with his disability.” (Tr. 15.) This consideration is similar 

to the reasoning in Bruton, and thus the ALJ did not err in considering Zur’s reasons for 

leaving his last place of employment during the credibility analysis. Bruton, 268 F.3d at 

828. 

 The ALJ also found that Zur’s receipt of unemployment benefits weighed against 

his credibility, because “receipt of such benefits is commensurate with being able to work 

and actively seeking work.” (Tr. 16–17.) Contrary to Zur’s protests, this is in line with 

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Ninth Circuit jurisprudence. In Ghanim, the Ninth Circuit held that continuing to receive 

unemployment benefits after an alleged onset date does cast doubt on a claim of 

disability. Ghanim, 763 F.3d at 1165. Zur alleged an onset date of May 1, 2012, but he 

received unemployment benefits between March 2012 and March 2013. (Tr. 11, 16.) 

Therefore, the ALJ’s consideration of his receipt of unemployment benefits was proper. 

 3. Gaps in Treatment and Improvements with Medication 

 “[I]t is error for an ALJ to pick out a few isolated 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, 759 F.3d at 1017. However, “evidence of ‘conservative 

treatment’ is sufficient to discount a claimant's testimony regarding severity of an 

impairment.” Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007). 

 The ALJ discredited Zur’s credibility because his treatment for his conditions has 

been “intermittent.” (Tr. 16.) The ALJ cited the fact that he is not currently in formal 

mental health therapy, that he has no history of psychiatric hospitalizations since his 

alleged onset date, and the fact that he only spent a total of three months in formal 

therapy as evidence that his condition is not disabling. (Tr. 16.) He also cited to one 

instance in June of 2013, where Zur claimed that he did not need to follow up with his 

treating therapist because “things were going well.” (Tr. 16.) As outlined in Parra, 

“evidence of ‘conservative treatment’ is sufficient to discount a claimant’s testimony 

regarding severity of an impairment.” Parra, 481 F.3d 751. The ALJ’s opinion 

discredited Zur’s testimony on the grounds that it appeared to be controlled through 

conservative means, and thus his consideration of Zur’s treatment history was proper. 

 The ALJ also discredited Zur’s testimony because he determined that Zur’s 

prescribed medications improved his condition, and his symptom testimony was 

inconsistent with the medical record reflecting this improvement. However, Zur’s GAF 

ratings fell from the 80’s to the 50’s between July 2012 and November 2013. (Tr. 16.) 

The ALJ supported his statement claiming that Zur improved through medication by 

citing to a string of moments in the record indicating improvement. (Tr. 16.) However, 

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“symptoms wax and wane in the course of treatment.” Garrison, 759 F.3d at 1017. It is 

therefore improper for an ALJ “to pick out a few isolated 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.” Id. The ALJ in this case engaged in cherry picking a few instances 

from the record illustrating improvement to discredit Zur, and thus erred in considering 

Zur’s improvement with medication in his credibility assessment. However, this error 

“does not negate the validity of the ALJ's ultimate conclusion that [claimant’s] testimony 

was not credible,” and thus it was harmless. Batson, 359 F.3d at 1197. 

D. Remand for Further Administrative Proceedings is the Appropriate 

Remedy in This Case 

Upon a finding that harmful error occurred, a court must then determine what 

remedy is appropriate. Generally, district courts should remand social security cases “to 

the agency for additional investigation or explanation.” Treichler v. Comm’r of Soc. Sec. 

Admin., 775 F.3d 1090, 1099 (9th Cir. 2014) (internal citations and quotations omitted). 

However, in rare instances, the “credit-as-true rule” applies, and remand for computation 

of benefits is appropriate. Id. at 1100. 

 For the credit-as-true rule to apply, three conditions must be met. First, the district 

court must determine whether the “ALJ has failed to provide legally sufficient reasons for 

rejecting evidence, whether claimant testimony or medical opinion.” Garrison, 759 F.3d 

at 1020. Second, the court must question whether “the record has been fully developed.” 

Id. Notably, “[w]here there is conflicting evidence, and not all essential factual issues 

have been resolved, a remand for an award of benefits is inappropriate.” Treichler, 775 

F.3d at 1101. Finally, the court must also determine that “no outstanding issues remain 

and further proceedings would not be useful.” Id. All three of these elements must be met 

in order for a court to “depart from the ordinary remand rule” and remand for a 

computation of benefits. Id.

 As detailed above, this Court finds that the ALJ made harmful errors by rejecting 

and/or discrediting the medical opinions of treating physicians Drs. Merritt, Qureshi, and 

Cohen as well as consulting physician Dr. Geary without sufficient explanation. The 

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only issue remaining is what form of relief is appropriate in this case. 

 Application of the credit-as-true rule is only appropriate in rare instances, and “an 

ALJ’s failure to provide sufficiently specific reasons for rejecting the testimony of a 

claimant or other witness does not, without more, require the reviewing court to credit the 

claimant’s testimony as true.” Treichler, 775 F.3d at 1106. In this case, while the ALJ 

cited to specific medical records as justification for his conclusions, he did not adequately 

explain his conclusions from these medical records sufficient for this court to determine 

his reasoning and thus to conclude whether or not the claimant has a disability in this 

case. Further, as indicated by the ALJ and discussed in the preceding section, evidence in 

the record calls into question Zur’s testimony, and thus there are “inconsistences between 

the claimant’s testimony and the medical evidence in the record” that precludes 

application of the credit-as-true rule in this case. Dominguez v. Colvin, 808 F.3d 403, 407 

(9th Cir. 2015) (internal citations and quotations omitted). Therefore, the appropriate 

remedy in this case is remand for further administrative proceedings. 

CONCLUSION 

 For the foregoing reasons, this Court finds that the ALJ in this case committed 

prejudicial error by wholly disregarding or discrediting the testimony of the treating 

physicians as well as the examining physician, Dr. Geary. 

IT IS THEREFORE ORDERED that this case be REMANDED for further 

administrative proceedings in accordance with this order. 

 Dated this 7th day of February, 2017. 

Honorable G. Murray Snow

United States District Judge

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