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WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Sharon Louise Gilbert, 

Plaintiff, 

v. 

Carolyn W Colvin, 

Defendant. 

No. CV-15-02130-PHX-DLR

ORDER 

 Plaintiff Sharon Gilbert seeks review under 42 U.S.C. § 405(g) of the final 

decision of the Commissioner of Social Security (“the Commissioner”) denying her 

application for disability insurance benefits. For the reasons stated below, this matter is 

remanded for further proceedings. 

I. Background 

 A. Factual Background

 Gilbert is 67 years old and has a high school education. (Doc. 14 at 2.) She 

previously worked as an insurance clerk, fund trader, loan officer, and billings collection 

representative. (Id.) In 1991, Gilbert was diagnosed with multiple sclerosis (“MS”). (Id.

at 4.) She quit working in 2011. 

B. Procedural History 

 On March 6, 2012, Gilbert applied for disability insurance benefits, alleging 

disability beginning December 8, 2011. (A.R. 17.) On July 22, 2014, she appeared with 

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her attorney and testified at a hearing before the ALJ. A vocational expert also testified. 

 On October 1, 2014, the ALJ issued a decision that Gilbert was not disabled within 

the meaning of the Social Security Act. The Appeals Counsel denied Gilbert’s request 

for review of the hearing decision, making the ALJ’s decision the Commissioner’s final 

decision. On October 22, 2015, Gilbert sought review by this Court. 

II. Legal Standard 

 The district court reviews only those issues raised by the party challenging the 

ALJ’s 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, less than a 

preponderance, and relevant evidence that a reasonable person might accept as adequate 

to support a conclusion considering the record as a whole. Id. In determining 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). 

III. Five-Step Sequential Evaluation Process 

To determine whether a claimant is disabled for purposes of the Social Security 

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 at step five, the burden shifts to the 

Commissioner. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). 

 At the first step, the ALJ determines whether the claimant is 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. 

§ 404.1520(a)(4)(ii). If not, the claimant is not disabled and the inquiry ends. Id. At step 

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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. Pt. 404. § 404.1520(a)(4)(iii). If so, the claimant is automatically found to 

be disabled. Id. If not, the ALJ proceeds to step four. 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. § 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 based on the 

claimant’s RFC, age, education, and work experience. § 404.1520(a)(4)(v). If so, the 

claimant is not disabled. Id. If not, the claimant is disabled. Id.

At step one, the ALJ found that Gilbert meets the insured status requirements of 

the Social Security Act through December 31, 2014, and that she has not engaged in 

substantial gainful activity since December 8, 2011. (A.R. 19.) At step two, the ALJ 

found that Gilbert has the following severe impairments: MS and obesity. (Id.) At step 

three, the ALJ determined that Gilbert does not have an impairment or combination of 

impairments that meets or medically equals an impairment listed in Appendix 1 to 

Subpart P of 20 C.F.R. Pt. 404. (Id. at 30.) 

 At step four, the ALJ found that Gilbert has the RFC to perform: 

less than the full range of sedentary work as defined in 20 CFR 

404.1567(a). The claimant can lift/carry 10 pounds occasionally and less 

than 10 pounds frequently. She can stand 2 hours in an 8-hour workday. 

She can walk 2 hours in an 8-hour workday. She can sit 6 hours in an 8-

hour workday. The claimant can push/pull as much as she can lift/carry. 

The claimant can engage in handling, fingering and feeling with the left and 

right extremities frequently. The claimant can occasionally kneel, crouch, 

crawl, and climb ramps/stairs. She can never climb ladders and scaffolds. 

The claimant can only occasionally be exposed to unprotected heights, 

moving mechanical parts, extreme cold and extreme heat. 

(Id. at 21.) Accordingly, given her RFC, the ALJ concluded that Gilbert is capable of 

performing her past relevant work as a patient insurance clerk, fund trader, and loan 

officer. (Id. at 24.) 

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IV. Analysis 

 Gilbert argues the ALJ’s decision is unsupported by substantial evidence because 

(1) the ALJ improperly discounted the medical opinion of Dr. David Marzulo, and (2) the 

ALJ improperly discounted Gilbert’s credibility regarding the severity of her symptoms. 

(Doc. 14 at 12, 16.) The Court will address each in turn. 

A. The ALJ Erred in Evaluating the Medical Source Evidence 

 The ALJ is responsible for resolving conflicts in medical testimony. Andrews v. 

Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). Generally, more weight should be given to 

the opinion of a treating physician than to the opinions of non-treating physicians. Lester 

v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Where a treating physician’s opinion is not 

contradicted by another physician, it may be rejected only for “clear and convincing” 

reasons, and where it is contradicted, it may not be rejected without “specific and 

legitimate reasons” supported by substantial evidence in the record. Id. Likewise, an 

examining physician’s opinion generally must be given greater weight than that of a nonexamining physician. Id. at 830. As with a treating physician, there must be clear and 

convincing reasons for rejecting the uncontradicted opinion of an examining physician, 

and specific and legitimate reasons, supported by substantial evidence in the record, for 

rejecting an examining physician’s contradicted opinion. Id. at 830-31. 

 Dr. David Marzulo, an examining neurologist, submitted two medical source 

statements in support of Gilbert’s claim. The first, dated June 19, 2013, stated that 

Gilbert could sit for two hours in an eight-hour workday, stand or walk for one hour, and 

lift ten pounds occasionally. (A.R. 260.) Marzulo noted that Gilbert can occasionally use 

her right hand for grasping, pushing/pulling of controls, and fine manipulation. (Id. at 

262.) In addition, she could not use her right foot for repetitive movements. (Id.) Last, 

he noted that Gilbert suffered from moderate fatigue, which would result in being 10% 

off task during the workday. (Id. at 264.) 

 The second statement, dated July 9, 2014, stated that Gilbert would be off task two 

hours during the workday due to her fatigue. (Id. at 267.) Dr. Marzulo further opined 

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that Gilbert could sit for two hours per workday, stand/walk for only fifteen minutes at a 

time, occasionally lift/carry up to twenty pounds, grasp with both hands frequently, 

occasionally push/pull controls with both hands, and occasionally engage in fine 

manipulation with both hands. (Id. at 267, 269.) In addition, Gilbert could not use her 

feet for repetitive movements and suffered severe postural limitations. (Id. at 269.) Last, 

Dr. Marzulo noted that Gilbert suffered from moderate fatigue. (Id. at 270.) 

 Dr. Marzulo’s opinion was contradicted by the opinions of consultative examiners 

Dr. Palmer, (Id. at 210-15), and Dr. Levison, (Id. at 217-22), and non-examining state 

agency reviewing physicians Dr. Mikhail Bargan, (Id. at 69-71), and Dr. Martha 

Goodrich, (Id. at 78-79). These physicians assessed lesser limitations than Dr. Marzulo. 

Therefore, the ALJ was required to provide specific and legitimate reasons supported by 

substantial evidence discounting Dr. Marzulo’s opinion.1

 

 The ALJ discounted Dr. Marzulo’s opinion because it was unsupported by the 

medical evidence in the record. (Id. at 23.) She stated: 

The objective evidence does not demonstrate gross pathological findings to 

support the marked limitations found by Dr. Marzulo. Specifically, as 

described above, the claimant’s musculoskeletal conditions and carpal 

tunnel syndrome are non-severe. Although the claimant may have elevated 

blood pressure and fatigue, these conditions do not account for the severe 

and marked limitations given by Dr. Marzulo. 

(Id.) 

 The Court finds that the ALJ provides no basis for determining that fatigue does 

not account for the severe limitations assessed by Dr. Marzulo. The ALJ cites to no 

evidence in support of this statement, and thus there is no basis to find that Dr. Marzulo’s 

findings regarding Gilbert’s fatigue are inconsistent with the record. It appears that the 

ALJ focuses on Dr. Marzulo’s findings regarding Gilbert’s physical limitations, 

specifically, use of her hands and legs. But Gilbert claims fatigue is her primary 

 

1

 Gilbert argues the clear and convincing standard applies because the ALJ did not assess full weight to the conflicting opinions. But Gilbert cites no authority for her position, nor does she dispute that those medical source statements conflict with Dr. 

Marzulo’s assessment. 

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disabling symptom, and the ALJ treats it as an afterthought in her analysis. The ALJ 

does not address Dr. Marzulo’s conclusion that Gilbert would be off task for two hours 

per day because of fatigue. Because this limitation is not accounted for in the RFC, the 

ALJ must have discounted this portion of Dr. Marzulo’s opinion. The ALJ did not 

address this evidence, and therefore the Court cannot conclude that the ALJ provided 

specific and legitimate reasons for discounting Dr. Marzulo’s opinion.2

 

B. The ALJ Erred in Evaluating Gilbert’s Credibility 

 In evaluating credibility, the ALJ is required to engage in a two-step analysis: (1) 

determine whether the claimant presented objective medical evidence of an impairment 

that could reasonably be expected to produce some degree of the pain or other symptoms 

alleged; and, if so with no evidence of malingering, (2) reject the claimant’s testimony 

about the severity of the symptoms only by giving specific, clear, and convincing reasons 

for the rejection. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). “In reaching a 

credibility determination, an ALJ may weigh inconsistencies between the claimant’s 

testimony and his or her conduct, daily activities, and work record, among other factors.” 

Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009). 

 At the hearing, Gilbert testified that she left her last job at an insurance company 

because it “was just exhausting.” (A.R. 36.) She stated that she could not remember all 

of the different insurance plans, and thus she “couldn’t do it anymore.” (Id. at 36-37.) 

Gilbert stated that she is “pretty much non-functional physically” and mentally. (Id. at 

40.) She remarked that she once was able to read and analyze large annual reports, but 

she now has difficulty balancing her checkbook. (Id.) She stated that her legs and hands 

“don’t work as well as they used to.” (Id.) Specifically, Gilbert has trouble writing 

 

2

 Gilbert argues the ALJ substituted her own opinion in formulating the RFC and that she was required to substantially rely on at least one medical source opinion as a basis for the RFC. But the ALJ is ultimately responsible for formulating the RFC, and she need not rely on discounted medical source evidence or testimony. See Batson v. 

Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004). In addition, “there is 

no requirement in the regulations for a direct correspondence between and RFC finding and a specific medical opinion on the functional capacity in question.” Chapo v. Astrue, 682 F.3d 1285, 1288 (10th Cir. 2012). Gilbert’s arguments are unpersuasive. 

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because her hands “cramp up.” (Id. at 40-41.) Gilbert asserts this is due to her MS and 

carpal tunnel syndrome. (Id. at 41.) She has trouble staying focused for more than a 

couple hours at a time. (Id.) She claims her exhaustion is “horrific” and that she naps for 

an hour or two a day. (Id. at 42.) Gilbert also has trouble sleeping. (Id.) 

 Gilbert stated that she previously took betaseron for her MS, which she had to 

inject “every other day in the stomach.” (Id. at 43.) However, she stopped using it 

because she “constantly looked like a truck had run over [her].” (Id.) She noted that this 

caused her to hesitate when her doctor recommended another prescription to treat her 

MS. (Id.) Gilbert stated that her doctor is investigating the new medication, but that she 

has not taken it yet. (Id.) 

 When questioned by her attorney, Gilbert stated that she takes lots of naps, has to 

lie down constantly, has trouble buttoning clothes, drops things frequently, and does not 

have control of her legs. (Id. at 44-45.) She also has balance issues and can only stand 

for ten to fifteen minutes. (Id. at 45-46.) Gilbert has trouble concentrating, as well as 

short-term memory loss. (Id. at 47.) She denied having pain in her arms and legs, and 

instead attributed her difficulties to fatigue. (Id. at 46.) Citing her fatigue and “loss of 

mental acuity,” she testified that she could not work a full-time job. (Id. at 50.) 

 The ALJ concluded that Gilbert was not fully credible for four reasons: (1) 

inconsistency with the medical evidence, (2) inconsistency with activities of daily living, 

(3) failure to seek medical treatment, and (4) inconsistency with Gilbert’s reports that she 

quit work when asked to work overtime. (Id. at 24.) But, as noted above, Gilbert asserts 

her “primary disabling symptom [is] severe fatigue.” (Doc. 14 at 17.) Here, it appears 

the ALJ focused on discrediting Gilbert’s pain testimony and failed to address fatigue. 

(See A.R. 24 (“As indicated above, the objective evidence does not supports the 

claimant’s allegations of severity of pain.”).) 

 The ALJ noted that she “incorporated the claimant’s subjective complaints 

[regarding fatigue] into the [RFC].” (Id. at 23.) But had she fully incorporated them, the 

RFC would have included a limitation that Gilbert required napping one to two hours per 

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workday, or in other words, that she was unable to complete an eight-hour workday. This 

would preclude any work. Therefore, even if the ALJ did incorporate some of Gilbert’s 

complaints regarding her fatigue, the RFC indicates she did not fully credit Gilbert’s 

testimony. 

 In evaluating a claimant’s credibility, the ALJ must “link that testimony to the 

particular parts of the record supporting her non-credibility determination.” BrownHunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015). Here, the ALJ failed to summarize 

Gilbert’s testimony regarding the severity of her fatigue and identify which statements 

she concludes are credible and those that she finds incredible, thus precluding meaningful 

review by the Court. Id. Instead, it appears she focused on Gilbert’s pain testimony. 

This was error, and the ALJ is directed to reevaluate the credibility of Gilbert’s testimony 

regarding her fatigue and adjust the RFC accordingly. 

CONCLUSION

 In conclusion, the Court finds that the ALJ erred in weighing the medical opinion 

evidence concerning the limiting effects of Gilbert’s fatigue and in discrediting her 

symptom testimony regarding the same. Therefore, the Court must determine whether to 

remand for further proceedings or for an award benefits. 

 The credit-as-true rule requires an award of benefits if (1) the record has been fully 

developed, (2) the ALJ failed to provide legally sufficient reasons for rejecting evidence, 

and (3) if the improperly discredited evidence were credited as true, the ALJ would be 

required to find the claimant disabled on remand. Garrison v. Colvin, 759 F.3d 995, 

1020 (9th Cir. 2014). If the ALJ erred, “the district court must consider whether there are 

‘inconsistencies between [the claimant’s] testimony and the medical evidence in the 

record.’” Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) (quoting Treichler v. 

Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1101 (9th Cir. 2014)). “Unless the district 

court concludes that further administrative proceedings would serve no useful purpose, it 

may not remand with a direction to provide benefits.” Id. 

 Here, the ALJ misinterpreted Gilbert’s disabling symptom as pain, and thus did 

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not evaluate the credibility of Gilbert’s testimony regarding fatigue. Further 

administrative proceedings are necessary to determine the veracity of this testimony. In 

addition, the Court concludes that Dr. Marzulo’s opinion may not support a finding of 

disability. The most recent assessment indicates that Gilbert’s fatigue moderately impairs 

her ability to respond appropriately to work pressures in a usual work setting. (A.R. 

267.) It further states that Gilbert is moderately distracted from tasks by malaise or 

muscle pain. (Id.)

3

 “Moderately” is defined as 10-14% off task. (Id.) Nonetheless, Dr. 

Marzulo indicated that Gilbert would be off task due to fatigue for two hours in an eighthour workday, or 25% of the time. (Id.) On its face, this assessment appears inconsistent 

as two hours off task would warrant “extreme” limitations resulting from fatigue. (Id.) 

Given this ambiguity in the medical evidence and the fact that the ALJ did not evaluate 

the veracity of Gilbert’s statements regarding fatigue, the Court finds remand with an 

award of benefits is not appropriate. See Dominguez, 808 F.3d at 407 (noting that “the 

proper course, except in rare circumstances, is to remand to the agency for additional 

investigation or explanation”). Therefore, the Court remands this case for further 

proceedings. On remand, the ALJ shall reassess and resolve the conflicting medical 

opinion evidence, assess the credibility of Gilbert’s symptom testimony, and if necessary, 

adjust the RFC accordingly. 

// 

// 

// 

// 

// 

// 

// 

// 

 

3

 Dr. Marzulo indicates that Gilbert’s fatigue only “slightly” affects her ability to understand and remember simple instructions, carry out simple instructions, and understand and remember detailed instructions. (A.R. 267.) 

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 IT IS ORDERED that the final decision of the Commissioner of Social Security 

is REMANDED for further proceedings consistent with this order. The Clerk shall enter 

judgment accordingly and terminate this case. 

 Dated this 31st day of May, 2016. 

Douglas L. Rayes 

United States District Judge 

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