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

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Lucy M Aguayo, 

Plaintiff, 

vs.

Commissioner of the Social Security

Administration, 

Defendant. 

)

)

)

)

)

)

)

)

)

)

)

CIV 15-2224-PHX-MHB

ORDER

Pending before the Court is Plaintiff Lucy M. Aguayo’s appeal from the Social

Security Administration’s final decision to deny her claim for disability insurance benefits

and supplemental security income. After reviewing the administrative record and the

arguments of the parties, the Court now issues the following ruling.

I. PROCEDURAL HISTORY

On May 21, 2012 and October 23, 2013, respectively, Plaintiff filed applications for

disability insurance benefits and supplemental security income alleging disability beginning

March 1, 2011. (Transcript of Administrative Record (“Tr.”) at 29, 149-51, 163-73.) Her

applications were denied initially and on reconsideration. (Tr. at 68-92.) Thereafter, Plaintiff

requested a hearing before an administrative law judge. A hearing was held on April 17,

2014, (Tr. at 44-67), and the ALJ issued a decision finding that Plaintiff was not disabled on

June 6, 2014 (Tr. at 26-42). The Appeals Council denied Plaintiff’s request for review (Tr.

at 1-7), making the ALJ’s decision the final decision of the Commissioner. Plaintiff then

sought judicial review of the ALJ’s decision pursuant to 42 U.S.C. § 405(g).

Case 2:15-cv-02224-MHB Document 23 Filed 03/24/17 Page 1 of 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

- 2 -

II. STANDARD OF REVIEW

The Court must affirm the ALJ’s findings if the findings are supported by substantial

evidence and are free from reversible legal error. See Reddick v. Chater, 157 F.3d 715, 720

(9th Cir. 1998); Marcia v. Sullivan, 900 F.2d 172, 174 (9th Cir. 1990). Substantial evidence

means “more than a mere scintilla” and “such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401

(1971); see Reddick, 157 F.3d at 720.

In determining whether substantial evidence supports a decision, the Court considers

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

evidence that detracts from the ALJ’s conclusion. See Reddick, 157 F.3d at 720. “The ALJ

is responsible for determining credibility, resolving conflicts in medical testimony, and for

resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995); see

Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). “If the evidence can reasonably

support either affirming or reversing the [Commissioner’s] conclusion, the court may not

substitute its judgment for that of the [Commissioner].” Reddick, 157 F.3d at 720-21.

III. THE ALJ’S FINDINGS

In order to be eligible for disability or social security benefits, a claimant must

demonstrate an “inability to engage in any substantial gainful activity by reason of any

medically determinable physical or mental impairment which can be expected to result in

death or which has lasted or can be expected to last for a continuous period of not less than

12 months.” 42 U.S.C. § 423(d)(1)(A). An ALJ determines a claimant’s eligibility for

benefits by following a five-step sequential evaluation:

(1) determine whether the applicant is engaged in “substantial gainful activity”;

(2) determine whether the applicant has a medically severe impairment or

combination of impairments;

(3) determine whether the applicant’s impairment equals one of a number of listed

impairments that the Commissioner acknowledges as so severe as to preclude the

applicant from engaging in substantial gainful activity;

Case 2:15-cv-02224-MHB Document 23 Filed 03/24/17 Page 2 of 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

1

 “Residual functional capacity” is defined as the most a claimant can do after

considering the effects of physical and/or mental limitations that affect the ability to perform

work-related tasks.

- 3 -

(4) if the applicant’s impairment does not equal one of the listed impairments,

determine whether the applicant is capable of performing his or her past relevant

work;

(5) if the applicant is not capable of performing his or her past relevant work,

determine whether the applicant is able to perform other work in the national

economy in view of his age, education, and work experience.

See Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987) (citing 20 C.F.R. §§ 404.1520,

416.920). At the fifth stage, the burden of proof shifts to the Commissioner to show that the

claimant can perform other substantial gainful work. See Penny v. Sullivan, 2 F.3d 953, 956

(9th Cir. 1993).

At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful

activity since March 1, 2011 – her alleged onset date. (Tr. at 31.) At step two, she found that

Plaintiff had the following severe impairments: diabetes mellitus type II, neuropathy,

coronary artery disease, and high blood pressure. (Tr. at 31-33.) At step three, the ALJ stated

that Plaintiff did not have an impairment or combination of impairments that met or

medically equaled an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 of the

Commissioner’s regulations. (Tr. at 33.) After consideration of the entire record, the ALJ

found that Plaintiff retained “the residual functional capacity to sit 6 hours out of an 8-hour

day; stand 6 hours out of an 8-hour day; walk 6 hours out of an 8-hour day; occasionally lift

and carry 20 pounds; frequently lift and carry 10 pounds; occasionally climb stairs; never

climb ladders; occasionally balance, stoop, kneel, crouch and crawl; do gross handling, fine

feeling and fingering on a frequent basis only bilaterally; should avoid concentrated exposure

to heights, moving machinery, dust, fumes, smoke and temperature extremes; occasional is

defined as very little to one-third of the time; frequent is defined as one-third to two-thirds

of the time.”1

 (Tr. at 34-35.) The ALJ determined that Plaintiff was unable to perform any

past relevant work, but based on her age, education, work experience, and residual functional

capacity, there were jobs that existed in significant numbers in the national economy that

Case 2:15-cv-02224-MHB Document 23 Filed 03/24/17 Page 3 of 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

- 4 -

Plaintiff could perform. (Tr. at 36-37.) Therefore, the ALJ concluded that Plaintiff has not

been under a disability from March 1, 2011, through the date of her decision. (Tr. at 37-38.)

IV. DISCUSSION

In her brief, Plaintiff contends that the ALJ erred by: (1) failing to properly consider

her subjective complaints; (2) failing to properly assess her “nosebleeds” and alleged mental

impairments as “severe” impairments; and (3) failing to properly represent Plaintiff’s

“physical limitations regarding her feet and ankles” in the residual functional capacity

assessment.

The Court first addresses the ALJ’s consideration of Plaintiff’s subjective complaints.

To determine whether a claimant’s testimony regarding subjective pain or symptoms

is credible, the ALJ must engage in a two-step analysis. “First, 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.’ The

claimant, however, ‘need not show that her impairment could reasonably be expected to

cause the severity of the symptom she has alleged; she need only show that it could

reasonably have caused some degree of the symptom.’” Lingenfelter v. Astrue, 504 F.3d

1028, 1036-37 (9th Cir. 2007) (citations omitted). “Second, if the claimant meets this first

test, and there is no evidence of malingering, ‘the ALJ can reject the claimant’s testimony

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

for doing so.’” Id. at 1037 (citations omitted). General assertions that the claimant’s

testimony is not credible are insufficient. See Parra v. Astrue, 481 F.3d 742, 750 (9th Cir.

2007). The ALJ must identify “what testimony is not credible and what evidence undermines

the claimant’s complaints.” Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)).

In weighing a claimant’s credibility, the ALJ may consider many factors, including,

“(1) ordinary techniques of credibility evaluation, such as the claimant’s reputation for lying,

prior inconsistent statements concerning the symptoms, and other testimony by the claimant

that appears less than candid; (2) unexplained or inadequately explained failure to seek

treatment or to follow a prescribed course of treatment; and (3) the claimant’s daily

Case 2:15-cv-02224-MHB Document 23 Filed 03/24/17 Page 4 of 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

2

 With respect to the claimant’s daily activities, the ALJ may reject a claimant’s

symptom testimony if the claimant is able to spend a substantial part of her day performing

household chores or other activities that are transferable to a work setting. See Fair v. Bowen,

885 F.2d 597, 603 (9th Cir. 1989). The Social Security Act, however, does not require that

claimants be utterly incapacitated to be eligible for benefits, and many home activities may

not be easily transferable to a work environment where it might be impossible to rest

periodically or take medication. See id.

- 5 -

activities.” Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996); see Orn v. Astrue, 495

F.3d 624, 637-39 (9th Cir. 2007).2

 The ALJ also considers “the claimant’s work record and

observations of treating and examining physicians and other third parties regarding, among

other matters, the nature, onset, duration, and frequency of the claimant’s symptom;

precipitating and aggravating factors; [and] functional restrictions caused by the symptoms

... .” Smolen, 80 F.3d at 1284 (citation omitted).

At the April 17, 2014 hearing, Plaintiff testified that she became disabled in March

2011, because she had always worked jobs requiring ten to twelve hours of standing and she

could no longer do this. (Tr. at 49.) She reported that she gets nose bleeds three to four times

a day and that she falls three to four times a week. (Tr. at 58, 60.) Plaintiff said she spends

all day sleeping and watching television. (Tr. at 52.) She testified that her pain is the ten out

of ten – with ten being the worst level – even with medication. (Tr. at 57.) Plaintiff reported

she could sit for up to twenty minutes, stand for up to twenty minutes, and lift up to five

pounds. (Tr. at 56.) She also said she has difficulty using her hands. (Tr. at 61.)

In her decision, the ALJ concluded that Plaintiff’s medically determinable

impairments could reasonably be expected to produce the alleged symptoms, but found that

Plaintiff’s statements concerning the intensity, persistence and limiting effects of these

symptoms are not entirely credible. In addressing and ultimately discounting Plaintiff’s

credibility, the ALJ relied solely on her objective medical findings.

Although objective medical evidence is a relevant factor in determining the severity

of a claimant’s pain and its disabling effects, a claimant’s subjective pain testimony cannot

be rejected solely on the ground that it is not fully corroborated by objective medical

Case 2:15-cv-02224-MHB Document 23 Filed 03/24/17 Page 5 of 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

- 6 -

evidence. See Rolling v. Massanari, 261 F.3d 853, 957 (9th Cir. 2001). See also Reddick, 157

F.3d at 723 (“Once the claimant produces medical evidence of an underlying impairment, the

Commissioner may not discredit the claimant’s testimony as to the severity of symptoms

merely because the are unsupported by objective medical evidence.”). Instead, “the absence

of objective medical evidence supporting an individual’s statements about the intensity and

persistence of pain or other symptoms is only one factor that the adjudicator must consider

in assessing an individual’s credibility and must be considered in the context of all the

evidence.” SSR 96-7p. Accordingly, in the instant matter, the Court finds that the ALJ erred

in that the credibility determination cannot be based solely on objective medical evidence.

Further, since there was no finding of malingering, the ALJ’s reasons for discrediting

Plaintiff’s testimony must be “clear and convincing.” Here, the ALJ took into account only

one factor: the objective medical evidence. This reason alone is not clear and convincing.

Therefore, in light of the fact that the Court finds that the ALJ’s reason for

discrediting Plaintiff’s subjective symptom testimony was legally insufficient, the Court

declines to reach Plaintiff’s remaining arguments. The Court will order that the decision of

the ALJ be vacated and the case be remanded.

“[R]emand for further proceedings is appropriate where there are outstanding issues

that must be resolved before a determination can be made, and it is not clear from the record

that the ALJ would be required to find claimant disabled if all the evidence were properly

evaluated.” Hill v. Astrue, 698 F.3d 1153, 1162 (9th Cir. 2012) (citing Vasquez v. Astrue,

572 F.3d 586, 593 (9th Cir. 2009)). “[T]he proper course, except in rare circumstances, is

remand to the agency for additional investigation or explanation.” INS v. Ventura, 537 U.S.

12, 16 (2002) (per curiam). The Ninth Circuit has held that when “additional proceedings

can remedy defects in the original administrative proceeding, a social security case should

be remanded.” Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir. 1990) (remanding “to the

Secretary for proper consideration of step three equivalence”). Here, the record contains

evidentiary conflicts that make an award of benefits inappropriate and require further

Case 2:15-cv-02224-MHB Document 23 Filed 03/24/17 Page 6 of 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

- 7 -

evaluation on remand. Specifically, remand is appropriate for a renewed residual functional

capacity assessment, which accurately addresses Plaintiff’s credibility.

V. CONCLUSION

For the reasons discussed in this Order, the Commissioner’s decision will be vacated

and this matter will be remanded for further administrative proceedings consistent with this

Order.

Accordingly,

IT IS ORDERED that the Commissioner’s decision is VACATED and this matter

is REMANDED to the Commissioner for further administrative proceedings as set forth in

this Order;

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

accordingly.

DATED this 24th day of March, 2017.

Case 2:15-cv-02224-MHB Document 23 Filed 03/24/17 Page 7 of 7