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WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Jon Brian McConnell, 

Plaintiff, 

v. 

Commissioner of Social Security, 

Defendant.

No. CV-15-02386-PHX-BSB

ORDER 

 Pro se Plaintiff Jon Brian McConnell seeks judicial review of the final decision of 

the Commissioner of Social Security (the Commissioner) denying his application for 

benefits under the Social Security Act (the Act). The parties have consented to proceed 

before a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b) and have filed 

briefs in accordance with Local Rule of Civil Procedure 16.1. For the following reasons, 

the Court reverses the Commissioner’s decision and remands for a determination of 

benefits. 

I. Procedural Background 

 On July 25, 2012, Plaintiff filed an application for a period of disability and 

disability insurance benefits under Title II of the Act. (Tr. 13.)1

 Plaintiff alleged 

disability beginning October 14, 2007. (Id.) After the Social Security Administration 

(SSA) denied Plaintiff’s initial application and his request for reconsideration, he 

requested a hearing before an administrative law judge (ALJ). (Id.) During the hearing, 

 

1

 Citations to Tr. are to the certified administrative transcript of record. (Doc 10.) 

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Plaintiff amended the alleged disability onset date to March 2011. (Tr. 33-34.) After 

conducting a hearing, the ALJ issued a decision finding Plaintiff not disabled under the 

Act. (Tr. 13-25.) This decision became the final decision of the Commissioner when the 

Social Security Administration Appeals Council denied Plaintiff’s request for review. 

(Tr. 1-6; see 20 C.F.R. § 404.981 (explaining the effect of a disposition by the Appeals 

Council).) Plaintiff now seeks judicial review of this decision pursuant to 

42 U.S.C. § 405(g). 

II. Administrative Record 

 The record before the Court establishes the following history of diagnoses and 

treatment related to Plaintiff’s alleged impairments. The record also includes opinions 

from Plaintiff’s treating physician and state agency physicians who reviewed the records 

related to his impairments, but who did not examine Plaintiff or provide treatment. 

A. Treatment History 

 The parties do not discuss Plaintiff’s treatment history in detail. (Docs. 11, 12.) 

Rather, they rely on the ALJ’s discussion of Plaintiff’s treatment history. The record 

reflects that Plaintiff received ongoing treatment for chronic back pain before and after he 

had back surgery in 2006. (Tr. 227-36; Tr. 363, Tr. 382-401, Tr. 404-43, Tr. 452-70.) 

Plaintiff had lumbar fusion surgery at L3-4 and L4-5 on January 6, 2006. (Tr. 454.) 

Plaintiff reported that surgery helped his pain until 2010, when his symptoms began to 

recur. (Tr. 458.) Plaintiff also had chiropractic treatment, physical therapy, and epidural 

injections. (Tr. 382, 387, 392-401, 454.) Plaintiff saw Kenneth Fisher, M.D. regularly 

for his chronic back pain. (Tr. 404-43, 534-46, 606-14.) 

 Plaintiff was treated for depression at West Valley Behavioral Health. (Tr. 475-

94) Plaintiff was assessed with depression and assessed a Global Assessment of 

Functioning (GAF) score of 54. (Tr. 479, 567.) An April 4, 2013 treatment note states 

that Plaintiff was angry with the world and felt hopeless and frustrated. (Tr. 561.) 

 

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 B. Opinion Evidence 

 1. Dr. Fisher’s Opinions 

 a. March 4, 2013 Opinion 

 On March 4, 2013, Dr. Fisher completed a medical source statement. (Tr. 562-

65.) He stated that he had been Plaintiff’s primary care physician since December 18, 

2002, and had treated Plaintiff for back issues and other primary care needs. He 

identified Plaintiff’s diagnoses as “failed back syndrome with associated fatigue, sleep 

disturbance, and depression of a chronic nature.” (Tr. 563.) Dr. Fisher stated that 

Plaintiff had pain in his lumbar, sacral, and thoracic spine. (Tr. 562.) He also stated that 

Plaintiff was always in pain and that “simple activities” exacerbated his pain. (Id.) 

Dr. Fisher opined that Plaintiff’s condition had declined over the past two years and that 

he was unable to perform gainful work due to chronic back pain. (Id.) 

 Dr. Fisher further opined that Plaintiff could not stand continuously for six hours. 

(Tr. 563.) If Plaintiff were stationary, pain would set in within about ten to fifteen 

minutes of standing. (Id.) Plaintiff’s pain would persist, but be more tolerable with mild 

activity and he could tolerate up to an hour of standing under those conditions. (Id.) 

Dr. Fisher opined that Plaintiff could sit for one to two hours “until his pain level 

[reached] a 9 or 10 on a scale of 1 to 10.” (Tr. 564.) He opined that changing positions 

from sitting to standing seemed to help, but Plaintiff could not endure sitting or standing 

for the length of time required for “adequate job performance.” (Id.) 

 Dr. Fisher opined that Plaintiff had to lie down during the day. (Id.) He also 

opined that some days Plaintiff could walk several blocks, and other days he could not 

walk at all depending on his level of pain and fatigue. Dr. Fisher opined that Plaintiff 

could frequently lift ten to twenty pounds and could frequently carry eleven to twenty 

pounds. (Id.) Dr. Fisher found that Plaintiff was unable to push or pull “anything that 

has resistance.” (Id.) He found Plaintiff “severely limited” in his abilities to bend, squat, 

kneel, and to perform “torsional movements of his body.” (Id.) Dr. Fisher stated that 

Plaintiff “was constantly observed getting up, sitting down, and moving in a deliberate 

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and paced manner that is consistent with chronic back pain.” (Tr. 565.) Dr. Fisher 

concluded that Plaintiff could not return to his past job because it required seventy miles 

of travel each way and Plaintiff could not safely drive or travel as a passenger that 

distance without requiring a period of rest such as lying down or napping. (Id.) He also 

explained that Plaintiff would have trouble sitting or standing more than thirty minutes to 

an hour before having to change positions. (Id.) Dr. Fisher did not expect Plaintiff’s 

condition to change. (Id.) 

 b. April 4, 2013 Opinion 

 On April 4, 2013, Dr. Fisher completed a Medical Source Statement of Ability to 

do Work-Related Activities (Physical). (Tr. 530-32.) He identified Plaintiff’s diagnoses 

as chronic lumbago, sciatica, and spondylosis. (Tr. 530.) Dr. Fisher opined that Plaintiff 

could occasionally and frequently lift or carry ten pounds. (Id.) He opined that because 

of his chronic back pain and sciatica, Plaintiff could stand or walk less than two hours in 

an eight hour even if the “activity may be intermittent throughout the day.” (Tr. 531.) 

Dr. Fisher opined that Plaintiff could sit for less than six hours in an eight hour day and 

specified that Plaintiff could sit for thirty minutes during that time period. (Id.) He stated 

that Plaintiff was unable to sit and unable to drive “due to pain that is immediate and that 

increases with duration.” (Id.) Dr. Fisher further found that Plaintiff could occasionally 

balance, stoop, kneel, crouch, crawl, and climb ramps, stairs, ladders, ropes and scaffolds. 

(Tr. 532.) He found that Plaintiff could occasionally reach, handle, finger, and feel. (Id.) 

Dr. Fisher opined that Plaintiff should avoid working around excessive noise. (Id.) 

 c. February 11, 2014 Opinion 

 On February 11, 2014, Dr. Fisher completed a Treating Physician’s Statement. 

(Tr. 599.) He stated the he continued to treat Plaintiff and opined that his limitations 

were “essentially the same as in March/April 2013 when [he] previously provided 

functional information” about Plaintiff. (Id.) He opined that Plaintiff needed to lie down 

periodically throughout the day to relieve his pain, Plaintiff’s symptoms would likely 

increase in a sustained working environment for eight hours a day, and Plaintiff’s 

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impairments would produce better days and worse days. (Tr. 599.) Dr. Fisher estimated 

that Plaintiff would be absent, tardy, or need to leave work early more than three times a 

month. (Id.) He indicated that Plaintiff’s condition had declined over the past two years 

and stated that Plaintiff had been unable to sustain work since 2011, “definitely since his 

reinjury [of his back] in 2012.” (Id.) 

 2. D. Rowse, M.D., and Ernest Griffith, M.D. 

 On December 8, 2012, state agency physician Dr. Rowse reviewed the record and 

completed a medical source statement. (Tr. 91-96.) Dr. Rowse opined that Plaintiff 

could occasionally lift or carry twenty pounds, frequently lift or carry ten pounds, stand 

or walk (with normal breaks) for six hours in an eight hour day, and sit (with normal 

breaks) for a total of six hours. (Tr. 93.) She opined that Plaintiff’s need to alternate 

sitting and standing could be accommodated by a brief stretch break every hour. (Tr. 93-

94.) On May 28, 2013, Ernest Griffith, M.D., reviewed the record and concurred in 

Dr. Rowse’s assessment. (Tr. 105.) 

 3. Nicole Lazorwitz, Psy.D 

 On May 23, 2013, Dr. Lazorwitz reviewed the record and completed a medical 

source statement. (Tr. 105-17.) Dr. Lazorwitz opined that Plaintiff could carry out 

simple instructions, follow simple work-like procedures, and make simple work-like 

decisions. (Tr. 115.) She opined that Plaintiff had a fair ability to sustain attention up to 

two hours at a time, and a fair ability to perform at a consistent pace if he were engaged 

in a simple, repetitive task. (Id.) She opined that Plaintiff had an adequate ability to 

maintain a regular work schedule and a fair ability to respond to basic work setting 

changes. (Id.) Plaintiff also had a fair to good ability to organize himself independently 

and set goals. (Id.) 

 4. James Tuggle, M.D. 

 On February 6, 2014, Dr. Tuggle wrote a letter on Plaintiff’s behalf. (Tr. 644.) 

He stated that he was treating Plaintiff at Desert Sierra Medical. He stated that a sleep 

study indicated that Plaintiff had sleep apnea and low oxygen saturation throughout the 

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night. (Id.) He opined that these issues could exacerbate Plaintiff’s pain. (Id.) He did 

not assess Plaintiff’s functional abilities. (Id.) 

III. Administrative Hearing Testimony 

 Plaintiff was in his early fifties at the time of his amended alleged disability onset 

date and on the date his insurance coverage expired. (Tr. 15, 197.) He had a high school 

education and had attended but not completed college. (Tr. 38.) He had past relevant 

work as a sales person. (Tr. 15-25.) 

 Plaintiff testified at the administrative hearing that he stopped working in 2007 

due to low and mid back pain. (Tr. 42) Plaintiff had spinal fusion in 2006 that had 

helped his pain for a period of time. (Tr. 43-44.) However, his job at that time required 

a long commute and he was having increased back pain. (Tr. 45, 51, 61.) In 2011, 

Plaintiff’s back went out when he was doing “core strengthening.” (Tr. 45.) Plaintiff 

testified that he tried various treatment modalities including physical therapy, 

chiropractic care, traction, acupuncture, epidural injections, and hot yoga. (Tr. 46.) 

Plaintiff, however, continued to have pain. (Tr. 46, 49.) In April 2012, Plaintiff’s back 

went out again when he was doing some painting for a friend. (Tr. 47-48.) 

 Plaintiff testified that hydrocodone helped his pain, but that his symptoms varied 

from day to day even when taking the medication. (Tr. 50.) He stated that medication 

“take[s] the edge off, but [the pain] doesn’t completely go away.” (Tr. 55, 62. 65.) 

Plaintiff testified that even with pain medication, he had trouble performing at a 

persistent pace or completing projects. (Tr. 62.) He testified that he lies down in a zero 

gravity chair throughout the day to relieve his pain. (Tr. 51, 53, 65.) Plaintiff testified 

that he could not sit or stand for eight hours a day even if he were allowed to alternate 

positions. (Tr. 54.) He explained that he gets some pain relief the first time he changes 

positions, but the pain builds over time. (Id.) Plaintiff stated that he gets pain after about 

fifteen or twenty minutes of standing. (Tr. 64.) Plaintiff testified that he is 

uncomfortable sitting. (Tr. 56.) He testified that he can sit at a computer for thirty 

minutes at a time, but just a few times throughout the day. (Tr. 52-53.) He testified that 

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he can drive, but not for very long because the pain builds the longer he sits. (Tr. 61.) As 

an example, Plaintiff stated that during a trip he took with his wife, he was uncomfortable 

“every five minutes,” and had pain in thirty minutes, “bad pain” in an hour, and had to 

pull over to take medication after two hours. (Tr. 61-62.) Plaintiff testified that his low 

and mid back pain is “not going away,” and that it is a “365-day-a-year thing.” (Id. at 54, 

56.) Plaintiff testified that he has sleep problems. (Tr. 56-57.) Plaintiff also testified that 

he had depression and became agitated. (Tr. 59-60.) 

 Plaintiff testified that he was self-employed as a singer, but that it had “gotten to 

be too much” because of his back pain. (Tr. 38-39, 55.) Plaintiff testified that he did 

some grocery shopping, mowed his lawn with a power mower for a duration of five to six 

minutes, and did other light yard work with his wife’s help. (Tr. 68-69.) 

 A vocational expert testified that an individual with the residual functional 

capacity (RFC) that the ALJ assessed could not perform Plaintiff’s past work.2

 (Tr. 18, 

76-77.) However, such an individual could perform work as a cashier, marker, or routing 

clerk, (Tr. 77-78.) The vocational expert testified that a person with the RFC the ALJ 

assessed, who would also be absent more than three times a month, or tardy, or have to 

leave work early more than three times a week, would not be able to sustain employment. 

(Tr. 79-80.) The vocational expert also testified that there would be no work for an 

individual who had to lie down during the work day. (Tr. 81.) The vocational expert 

further testified that a person who would be off-task for ten percent of a workday would 

be unable to sustain employment. (Tr. 85.) 

IV. The ALJ’s Decision

 A claimant is considered disabled under the Social Security Act if he is unable “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); see also 42 U.S.C. § 1382c(a)(3)(A) (nearly identical standard 

 

2

 See infra p. 9. 

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for supplemental security income disability insurance benefits). To determine whether a 

claimant is disabled, the ALJ uses a five-step sequential evaluation process. 

See 20 C.F.R. §§ 404.1520, 416.920. 

A. The Five-Step Sequential Evaluation Process 

 In the first two steps, a claimant seeking disability benefits must initially 

demonstrate (1) that he is not presently engaged in a substantial gainful activity, and 

(2) that his medically determinable impairment or combinations of impairments is severe. 

20 C.F.R. §§ 404.1520(b) and (c), 416.920(b) and (c). If a claimant meets steps one and 

two, there are two ways in which he may be found disabled at steps three through five. 

At step three, he may prove that his impairment or combination of impairments meets or 

equals an impairment in the Listing of Impairments found in Appendix 1 to Subpart P of 

20 C.F.R. Part 404. 20 C.F.R. §§ 404.1520(a)(4)(iii) and (d), 416.920(d). If so, the 

claimant is presumptively disabled. If not, the ALJ determines the claimant’s RFC. 

20 C.F.R. §§ 404.1520(e), 416.920(e). At step four, the ALJ determines whether a 

claimant’s RFC precludes him from performing his past relevant work. 

20 C.F.R. §§ 404.1520(f), 416.920(f). If the claimant establishes this prima facie case, 

the burden shifts to the government at step five to establish that the claimant can perform 

other jobs that exist in significant numbers in the national economy, considering the 

claimant’s RFC, age, work experience, and education. 20 C.F.R. §§ 404.1520(g), 

416.920(g). If the government does not meet this burden, then the claimant is considered 

disabled within the meaning of the Act. 

 B. The ALJ’s Application of the Five-Step Evaluation Process

 Applying the five-step sequential evaluation process, the ALJ found that Plaintiff 

had not engaged in substantial gainful activity since the amended disability onset date, 

March 2011. (Tr. 15.) At step two, the ALJ found that Plaintiff had the following severe 

impairments: “lumbar degenerative disc disease; failed back syndrome; depression; 

obesity; and thoracic spine degenerative disc disease (20 CFR § 404.1520(c)).” (Id.) At 

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step three, the ALJ found that Plaintiff did not have an impairment or combination of 

impairments that met or equaled the severity of a listed impairment. (Tr. 16.) 

 The ALJ found that Plaintiff had the RFC to “perform light work as defined in 

20 CFR 404.1567(a),” subject to several limitations. (Tr. 18.) The ALJ clarified that 

Plaintiff could “frequently lift and carry weights of ten pounds [and] occasionally lift and 

carry weights of 20 pounds.” (Id.) He could stand or walk for a total of six hours in an 

eight hour day, “sit for a total of six out of eight hours; he must change positions of 

sitting and standing and could not be in either position for more than 30 minutes at one 

time.” (Id.) The ALJ also found that Plaintiff had no limits on pushing and pulling 

within the assessed weight limits. (Id.) He could “frequently balance; frequently climb 

ramps and stairs; occasional[ly] climb[] ladders, ropes and scaffolds; occasional[ly] 

stoop[], kneel[], crouch[] and crawl[].” (Id.) He should “avoid concentrated exposure to 

hazards.” (Id.) Additionally, the ALJ concluded that Plaintiff could “understand, 

remember and carry out simple work tasks.” (Id.) 

 The ALJ found that Plaintiff could not perform his past relevant work, but could 

perform other work that existed in significant numbers in the national economy. (Tr. 22-

24.) She concluded that Plaintiff was not under a disability as defined in the Act from 

October 14, 2007 through September 30, 2013, his date last insured. (Tr. 25.) Therefore, 

the ALJ denied Plaintiff’s application for a period of disability and disability insurance 

benefits. (Id.) 

V. Standard of Review 

 The district court has the “power to enter, upon the pleadings and transcript of 

record, a judgment affirming, modifying, or reversing the decision of the Commissioner, 

with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). The district 

court reviews the Commissioner’s final decision under the substantial evidence standard 

and must affirm the Commissioner’s decision if it is supported by substantial evidence 

and it is free from legal error. Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); 

Ryan v. Comm’r of Soc. Sec. Admin., 528 F.3d 1194, 1198 (9th Cir. 2008). Even if the 

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ALJ erred, however, “[a] decision of the ALJ will not be reversed for errors that are 

harmless.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 

 Substantial evidence means more than a mere scintilla, but less than a 

preponderance; it is “such relevant evidence as a reasonable mind might accept as 

adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) 

(citations omitted); see also Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005). In 

determining whether substantial evidence supports a decision, the court considers the 

record as a whole and “may not affirm simply by isolating a specific quantum of 

supporting evidence.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (internal 

quotation and citation 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, [the court] must defer to the ALJ’s conclusion.” 

Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1198 (9th Cir. 2004) (citing 

Andrews, 53 F.3d at 1041). 

VI. Plaintiff’s Claims 

 Plaintiff’s opening brief includes the following claims: (1) there is new evidence 

of Plaintiff’s conditions and the Court should remand for consideration of the evidence; 

(2) the ALJ erred by assigning little weight to the opinions of Plaintiff’s treating 

physician; and (3) the ALJ erred by discounting Plaintiff’s credibility.3

 (Doc. 11.) The 

Commissioner argues that the alleged new evidence does not require a remand and that 

the ALJ’s decision is free from harmful error and is supported by substantial evidence. 

(Doc. 12.) The Court considers Plaintiff’s claims below. 

A. New Evidence 

Plaintiff alleges that he was diagnosed with somatoform disorder and pudendal 

neuralgia after his date last insured and that these diagnoses require a remand because he 

 

3

 Plaintiff asserts several other errors. (Doc. 11.) Because the Court can resolve 

this matter based on the issues discussed in the order, the Court does not consider these 

other issues. 

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likely had these impairments before his disability insurance coverage expired. (Doc. 11 

at 8.) 

 “‘[I]n cases involving submission of supplemental evidence subsequent to the 

ALJ’s decision, the record includes that evidence submitted after the hearing and 

considered by the Appeals Council.” Bergmann v. Apfel, 207 F.3d 1065, 1068 (8th Cir. 

2000) (emphasis added); see also Harman v. Apfel, 211 F.3d 1172, 1180 (9th Cir. 2000) 

(“We properly may consider the additional materials because the Appeals Council 

addressed them in the context of denying Appellant’s request for review.”) Here, 

Plaintiff provided the 2014 and 2015 letters to the Appeals Council, but they were not 

included in the administrative record and, therefore are new evidence. (Tr. 2, 6.) 

Plaintiff argues that the Court should remand this matter for consideration of the new 

evidence. 

 In accordance with Mayes v. Massanari, 276 F.3d 453, 460-62 (9th Cir. 2001), 

and sentence six of § 405(g), the court may remand to the Commissioner for 

consideration of additional evidence only if a plaintiff shows that: (1) new evidence is 

material to his disability; and (2) he has good cause for failing to submit the evidence 

earlier. See Burton v. Heckler, 724 F.2d 1415, 1417 (9th Cir. 1984) (applying same test 

to records that were submitted to the Appeals Council, but which the Appeals Council did 

not appear to consider). To satisfy the materiality requirement, a plaintiff must show 

“that the new evidence is material to and probative of his condition as it existed at the 

relevant time — at or before the disability hearing.” Sanchez v. Sec’y of Health and 

Human Servs., 812 F.2d 509, 511 (9th Cir. 1987). “[T]he new evidence offered must 

bear directly and substantially on the matter in dispute.” Burton v. Heckler, 724 F.2d 

1415, 1417 (9th Cir. 1984) (new evidence was material when the issue had been 

expressly considered by the ALJ and was “squarely before the Appeals Council”). 

 1. Evidence of Somataform Disorder (2014 and 2015 Letters) 

 As evidence of a somatoform disorder diagnosis, Plaintiff has submitted letters 

from two treatment providers dated December 19, 2014 (letter from Kim DiRE LPC, 

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SEP, DBH with Healthy Futures), and January 8, 2015 (letter from Dr. Denise 

Glassmoyer, Psy.D. with Pinnacle Peak Psychology). (Doc. 11 at 23-25.) These letters 

are dated after the ALJ’s decision, but before the Appeals Council’s September 25, 2015 

decision. The Appeals Council “looked at” those letters but did not make them part of 

the administrative record and did not consider them. (Tr. 2, 6); See Rocha v. Astrue, 

2012 WL 748260, at *4 (D. Ariz. Mar. 7, 2012) (stating that the Appeals Council did not 

“consider” evidence when it stated that it looked at evidence but did not make it part of 

the administrative record). The Appeals Council explained that the ALJ decided 

Plaintiff’s case through September 30, 2013, the date Plaintiff was last insured for 

disability benefits, but the “new information [was] about a different time. Therefore, it 

does not affect the decision about whether [Plaintiff] was disabled at the time [he] was 

last insured for disability benefits.” (Tr. 2.) 

 Plaintiff has not shown that the 2014 or 2015 letters are material. First, in the 

December 19, 2014 letter, treatment provider Kim DiRe stated that Plaintiff had been her 

patient for the past several months. (Doc. 11 at 25.) She stated that Plaintiff came to her 

for “information and therapy regarding somatic disorders, due to issues that stem from 

years of injuries, surgeries, and chronic pain.” (Id.) She noted that Plaintiff 

“complain[ed] of symptoms including gastrointestinal [issues], sleep disturbances, 

lethargy and fatigue problems, which can all be tied to somatization and/or pain 

disorders.” (Id.) She concluded that Plaintiff’s “issues and symptoms [were] consistent 

with those of a somatization disorder.” (Id.) She opined that Plaintiff “is at a level of 

disability where he is incapable of participating in the workforce.” (Id.) She further 

stated that “[g]iven his history, it is likely that the condition has existed for some time, 

and could persist indefinitely.” (Id.) 

 As the Appeals Council noted, the ALJ considered whether Plaintiff was disabled 

at any time from the alleged onset date through September 30, 2013, the date last insured. 

(Tr. 2, 25.) Ms. Di Re’s December 2014 letter does not specifically address that period. 

Rather, it pertains to the time of the letter (Doc. 11 at 25 (concluding that Plaintiff “is at a 

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level of disability . . . .)), and opines that Plaintiff’s “condition” has likely “existed for 

some time.” (Doc. 11 at 25.) Other than speculating that Plaintiff’s conditions has likely 

existed for “some time,” the 2014 letter does not further describe the temporal reach of 

Plaintiff’s somatization disorder. To satisfy the materiality requirement, a plaintiff must 

show “that the new evidence is material to and probative of his condition as it existed at 

the relevant time — at or before the disability hearing.” Sanchez v. Sec’y of Health and 

Human Servs., 812 F.2d 509, 511 (9th Cir. 1987). Because the 2014 letter does not 

specifically address the time period at issue in the ALJ’s decision, it is not material to that 

decision. Moreover, the 2014 letter concludes that Plaintiff could not “participat[e] in the 

workforce,” but does not assess any specific work-related functional limitations. 

 Similarly, Plaintiff has not shown that the 2015 letter is material. In that letter, 

Dr. Glassmoyer discussed her psychological evaluation of Plaintiff. (Doc. 11 at 23-24.) 

She observed that Plaintiff had difficulty sitting for the fifty-minute session, he was 

tearful at times, and appeared hopeless. (Id. at 23.) She administered two psychological 

assessments. (Id.) Dr. Glassmoyer concluded that Plaintiff had “significant emotional 

symptoms of Major Depression including sadness, tearfulness, hopelessness, sleep 

disturbances, fatigue, and concentration and memory problems.” (Id.) She found that 

Plaintiff’s “profile suggest[ed] that he suffer[ed] from various somatic symptoms 

including gastrointestinal distress as well as chronic pain.” (Id.) Dr. Glassmoyer did not 

assess any specific functional limitations, but opined that it “was unlikely that Plaintiff 

could maintain consistent employment now or for the foreseeable future.” (Id.) 

 Dr. Glassmoyer’s 2015 letter does not address the period that the ALJ considered, 

October 14, 2007 through September 31, 2013. Rather, it pertains to the time of the letter 

and to the “foreseeable future.” (Doc. 11 at 23 (stating that Plaintiff’s “chronic pain and 

emotional distress would make it unlikely that [Plaintiff] could maintain consistent 

employment now or for the foreseeable future.”).) Because the 2015 letter does not 

address the time period at issue in the ALJ’s decision, it is not material to that decision. 

See Sanchez, 812 F.2d at 511. 

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 In addition to containing opinions that are not specific to the time period under 

consideration in the ALJ’s decision, the 2014 and 2015 letters contain information that is 

similar to information that was before the ALJ. The administrative record did not include 

a statement from a treatment provider assessing Plaintiff with somatoform disorder. 

However, the non-examining physicians who reviewed the medical record on behalf of 

the Agency recognized that the record contained evidence that Plaintiff had somatic 

issues. For example, the reviewing physicians considered whether Plaintiff met “any 

somatic listing” at step three of the sequential evaluation process. (Tr. 95, 113.) The 

reviewing physicians conducted a “somatic review” of the medical record. (Tr. 108.) 

The reviewing physicians note a history of “somatic concerns.” (Tr. 110.) When 

evaluating Dr. Treegoob’s opinion, the reviewing physicians noted that Dr. Treegoob did 

not separate somatic issues from other psychological concerns.4

 (Tr. 111, 116.) The 

opinions of the state agency physicians indicate that they were aware of evidence of 

somatic issues even in the absence of a diagnosis of somatoform disorder. 

 Plaintiff does not allege that somatoform disorder resulted in functional limitations 

beyond those that are included in the administrative record. Plaintiff has not shown that 

evidence of a diagnosis of somatoform disorder in the 2014 and 2015 letters would create 

a “reasonable probability” of changing the outcome of the administrative decision and 

therefore these letters do not warrant remand. See Mayes, 276 F.3d at 462. 

 2. Evidence of Diagnosis of Pudendal Neuralgia 

 Plaintiff claims that he has new evidence that shortly after his date last insured for 

disability benefits he was diagnosed with pudendal neuralgia, which he describes as a 

“debilitating sitting disorder that causes considerable chronic pain and discomfort.” 

(Doc. 11 at 8.) Plaintiff states that if the matter is remanded to the Agency, he can 

provide medical evidence of a diagnosis of pudendal neuralgia in the form of a medical 

report from Dr. Michael Castillo. (Id. at 9.) Plaintiff has not provided that report to the 

 

4

 Mark Treegoob PHd provided an opinion for the Agency on reconsideration of the initial denial of Plaintiff’s application for benefits. (Tr. 111.) 

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Court or submitted other evidence to support his assertion that he was diagnosed with 

pudendal neuralgia. (Doc. 11.) There is no indication in the record that Plaintiff 

submitted evidence of that diagnosis to the Appeals Council. (Tr. 1-6.) 

 Plaintiff claims that evidence of a diagnosis of pudendal neuralgia indicates that 

his “symptoms and complaints” that were thought to relate to his spine also relate to 

pudendal neuralgia. (Doc. 11 at 8.) Plaintiff, however, has not shown that evidence of a 

diagnosis of pudendal neuralgia is material. Plaintiff does not allege that pudendal 

neuralgia resulted in functional limitations other than those limitations that are already 

included in the administrative record. Plaintiff alleges that pudendal neuralgia is a sitting 

disorder. During the administrative hearing, Plaintiff testified that he could not sit for 

longer than thirty minutes at a time. (Tr. 62.) He also testified that he could not sit for 

eight hours a day even if allowed to change positions. (Tr. 54.) The ALJ partially 

credited this testimony and assessed an RFC finding that Plaintiff could not sit for longer 

than thirty minutes at one time and must be able to change positions of sitting and 

standing. (Tr. 18.) Plaintiff does not explain how a diagnosis of pudendal neuralgia 

would alter the assessed RFC or the outcome of the administrative proceedings. 

 Therefore, Plaintiff has not shown that an alleged diagnosis of pudendal neuralgia 

is material because he has not shown a “reasonable probability” that the new evidence 

would have changed the outcome of the administrative hearing. See Mayes, 276 F.3d at 

462. Accordingly, new evidence of a diagnosis of pudendal neuralgia does not require 

remand. 

B. Weight Assigned Medical Source Opinions 

 Plaintiff argues that the ALJ erred by assigning little weight to the opinions of 

treating physician Kenneth Fisher, M.D. (Doc. 11 at 7.) In weighing medical source 

opinion evidence, the Ninth Circuit distinguishes between three types of physicians: 

(1) treating physicians, who treat the claimant; (2) examining physicians, who examine 

but do not treat the claimant; and (3) non-examining physicians, who neither treat nor 

examine the claimant. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Generally, 

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more weight is given to a treating physician’s opinion. Id. The ALJ must provide clear 

and convincing reasons supported by substantial evidence for rejecting a treating or an 

examining physician’s uncontradicted opinion. Id.; see also Reddick v. Chater, 157 F.3d 

715, 725 (9th Cir. 1998). An ALJ may reject the controverted opinion of a treating or an 

examining physician by providing specific and legitimate reasons that are supported by 

substantial evidence in the record. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 

2005); Reddick, 157 F.3d at 725. 

 Opinions from non-examining medical sources are entitled to less weight than 

opinions from treating or examining physicians. Lester, 81 F.3d at 831. Although an 

ALJ generally gives more weight to an examining physician’s opinion than to a nonexamining physician’s opinion, a non-examining physician’s opinion may nonetheless 

constitute substantial evidence if it is consistent with other independent evidence in the 

record. Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). When evaluating 

medical opinion evidence, the ALJ may consider “the amount of relevant evidence that 

supports the opinion and the quality of the explanation provided; the consistency of the 

medical opinion with the record as a whole; [and] the specialty of the physician providing 

the opinion . . . .” Orn, 495 F.3d at 631. 

 1. Dr. Fisher’s Opinions 

 On March 4, 2013, Dr. Fisher opined that Plaintiff could not stand continuously 

for six hours. (Tr. 563.) If Plaintiff were stationary, pain would set in within about ten to 

fifteen minutes of standing. (Id.) Plaintiff’s pain would be present, but more tolerable 

with mild activity and he could tolerate up to an hour of standing under those conditions. 

(Id.) Dr. Fisher also opined that Plaintiff could sit for one to two hours “until his pain 

level [reached] a 9 or 10 on a scale of 1 to 10.” (Tr. 564.) He opined that changing 

positions from sitting to standing seemed to help, but Plaintiff could not endure sitting or 

standing for a length of time required for “adequate job performance.” (Id.) In April 

2013, Dr. Fisher opined that Plaintiff could stand or walk less than two hours in an eight 

hour day, and that Plaintiff could only sit for thirty minutes a day. (Tr. 530-31.) In 

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February 2014, Dr. Fisher opined that Plaintiff needed to lie down periodically 

throughout the day and that he would be absent, tardy, or need to leave work early more 

than three times a month.5

 (Tr. 599.) 

 2. The ALJ’s Assessment of Dr. Fisher’s Opinions 

 The ALJ gave Dr. Fisher’s March 2013 opinion “little weight” because it was 

based on Plaintiff’s subjective complaints. (Tr. 21.) The ALJ gave Dr. Fisher’s April 

2013 and February 2014 opinions little weight because they were completed on checkbox forms. (Tr. 21.) Finally, the ALJ gave little weight to all three of Dr. Fisher’s 

opinions because she concluded that they were overly restrictive because the limitations 

were inconsistent with the medical evidence. (Id.) Plaintiff challenges only the ALJ’s 

conclusion that Dr. Fisher’s opinions were inconsistent with the medical record. 

(Doc. 11.) The Commissioner responds to Plaintiff’s argument, but does not defend the 

ALJ’s other reasons for rejecting Dr. Fisher’s opinions. (Doc. 12.) Accordingly, the 

Court only considers whether the ALJ erred by rejecting Dr. Fisher’s opinions as 

inconsistent with the medical record.6

 

 To support the conclusion that Dr. Fisher’s opinions were not supported by the 

treatment record, the ALJ cited Dr. Fisher’s March 21, 2013 treatment note and an April 

2, 2013 treatment note from Physician Assistant (PA) Michael Peterik. (Tr. 21 (citing 

Admin. Hrg. Exs. 11F at 9, 12; 10F at 4).) The ALJ stated that during the March 21, 

 

5

 Dr. Fisher also opined that Plaintiff was unable to drive. (Tr. 531.) The Court 

does not need to consider that limitation because the vocational expert testified that Plaintiff could perform jobs that did not involve driving. (Tr. 77-78.) 

6

 Although the Court does not need to resolve this issue, the ALJ improperly rejected Dr. Fisher’s opinions on the ground that his April 2013 and February 2014 were completed on check-box forms because those opinions were based on his multi-year treatment history with Plaintiff and his treatment notes. See Mansour v. Astrue, 2009 WL 

272865, at *6 n.14 (C.D. Cal. Feb. 2, 2009) (rejecting contention that a treating physician’s opinion on a “check-the-box” form lacked supporting evidence to substantiate the responses on the form because the physician’s treatment notes in the record supported his finding on the opinion form). The ALJ also improperly rejected Dr. Fisher’s opinions based on her conclusion that those opinions were based on Plaintiff’s subjective complaints because the ALJ did not provide legitimate reasons for discounting Plaintiff’s subjective complaints, and Dr. Fisher did not question Plaintiff’s credibility. 

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2013 appointment, Plaintiff had a normal examination of his spine, normal range of 

motion in his extremities, and denied neck pain, back pain, myalgias, arthralgias, gait 

abnormality, and muscle weakness. (Tr. 21.) The ALJ stated that the April 2, 2013 

treatment note indicated that Plaintiff had grossly normal strength and tone. (Id.) 

 Plaintiff asserts that the ALJ erred by rejecting Dr. Fisher’s opinions as 

inconsistent with these two treatment notes. Plaintiff argues that Dr. Fisher did not 

conduct a physical examination during the March 21, 2013 appointment. (Doc. 11 at 5.) 

Plaintiff states that he saw Dr. Fisher on that day for a medication refill and Dr. Fisher’s 

treatment notes for that day are a “template” of a normal examination, but do not reflect 

findings from an actual physical examination. (Id.) Dr. Fisher’s March 21, 2013 

treatment note states that Plaintiff “presented with ~ generic. Pt. [patient] here for RX 

refills.” (Tr. 536.) The Commissioner does not dispute Plaintiff’s assertion that the 

March 21, 2013 treatment note is a template and that it does not indicate that Dr. Fisher 

conducted a physical examination on that date. (Doc. 12 at 9.) Rather, she asserts that it 

was reasonable for the ALJ to rely on that medical record. (Id.) 

 An ALJ may reject the controverted opinion of a treating or an examining 

physician by providing specific and legitimate reasons that are supported by substantial 

evidence in the record. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). The 

ALJ properly rejects a treating or examining physician’s opinion when it “is not wellsupported” or “is inconsistent with other substantial evidence in the record.” Orn v. 

Astrue, 495 F.3d 625, 631 (9th Cir. 2007.) Dr. Fisher’s treatment note from March 21, 

2013 appears to be a form that does not include specific examination findings and 

therefore it does not constitute substantial evidence to support the ALJ’s rejection of 

Dr. Fisher’s March 4, 2013 opinion. 

 The ALJ also discounted Dr. Fisher’s opinions because she found them 

inconsistent with an April 2, 2013 treatment note indicating that Plaintiff had grossly 

normal strength and tone. (Tr. 21.) The record reflects that Dr. Fisher referred Plaintiff 

to PA Peterik at Arizona Arthritis & Rheumatology Associates for an evaluation of back 

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pain in April 2013. (Id. (citing Tr. 510-13).) During an April 2, 2013 appointment, 

PA Peterik performed a physical examination and found that Plaintiff had grossly normal 

strength and tone. (Doc. 12 at 9 (citing Tr. 511-12).) Plaintiff argues that the ALJ erred 

by relying on this treatment note to reject Dr. Fisher’s opinions because the April 2, 2013 

treatment note was completed by PA Peterik, not Dr. Fisher. (Doc. 11 at 6.) The 

Commissioner argues that the ALJ properly considered PA Peterik’s medical findings 

when assigning weight to Dr. Fisher’s opinions and that PA Peterik’s April 2, 2013 

treatment note constitutes substantial evidence to support the ALJ’s conclusion that 

Dr. Fisher’s opinions was “overly restrictive” and not supported by objective medical 

evidence. (Doc. 12 at 9.) 

 As the Commissioner argues, because an ALJ must consider the record as a whole, 

the ALJ did not err by considering PA Peterik’s findings when determining how much 

weight to afford Dr. Fisher’s opinions. See Batson v. Comm’r of Soc. Sec. Admin., 359 

F.3d 1190, 95 (9th Cir. 2004) (affirming the ALJ’s rejection of a treating physician’s 

opinions based on a conclusion that they conflicted with a consulting physician’s 

examination findings). However, a single treatment note does not constitute substantial 

evidence to support the ALJ’s rejection of Dr. Fisher’s opinions. Additionally, the ALJ 

did not explain how PA Peterik’s findings of grossly normal strength and tone detracted 

from Dr. Fisher’s opinions regarding Plaintiff’s limited ability to sit due to pain, his need 

to lie down during the day, and the number of times he would be absent, tardy, or leave 

work early. Therefore, the Court determines that the ALJ’s reasons for discounting 

Dr. Fisher’s opinions are not supported by substantial evidence. 

C. The ALJ’s Credibility Determination 

 Plaintiff also asserts that the ALJ erred by discounting his credibility without 

providing clear and convincing reasons. (Doc. 11 at 7.) An ALJ engages in a two-step 

analysis to determine whether a claimant’s testimony regarding his pain or other 

symptoms is credible. See Treichler v. Comm’r of Soc. Sec., 775 F.3d 1090, 1102 (9th 

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Cir. 2014); see also Garrison v. Colvin, 759 F.3d 995, 1014-15 (9th Cir. 2014) (citing 

Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007)). 

 “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.’” Lingenfelter, 504 F.3d at 1036 (quoting 

Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). The claimant is not 

required to show objective medical evidence of the pain itself or of a causal relationship 

between the impairment and the symptom. Smolen, 80 F.3d at 1282. Instead, the 

claimant must only show that an objectively verifiable impairment “could reasonably be 

expected” to produce his pain. Lingenfelter, 504 F.3d at 1036 (quoting Smolen, 80 F.3d 

at 1282); see also Carmickle v. Comm’r of Soc. Sec., 533 F.3d at 1160B61 (9th Cir. 2008) 

(“requiring that the medical impairment ‘could reasonably be expected to produce’ pain 

or another symptom . . . requires only that the causal relationship be a reasonable 

inference, not a medically proven phenomenon”). 

 Second, if a claimant shows that he suffers from an underlying medical 

impairment that could reasonably be expected to produce her pain or other symptoms, the 

ALJ must “evaluate the intensity and persistence of [the] symptoms” to determine how 

the symptoms, including pain, limit the claimant’s ability to work. 

See 20 C.F.R. § 404.1529(c)(1). In making this evaluation, the ALJ may consider the 

objective medical evidence, the claimant’s daily activities, the location, duration, 

frequency, and intensity of the claimant’s pain or other symptoms, precipitating and 

aggravating factors, medication taken, and treatments for relief of pain or other 

symptoms. See 20 C.F.R. § 404.1529(c); Bunnell, 947 F.2d at 346. 

 At this second evaluative step, the ALJ may reject a claimant’s testimony 

regarding the severity of his symptoms only if the ALJ “makes a finding of malingering 

based on affirmative evidence,” Lingenfelter, 504 F.3d at 1036 (quoting Robbins v. Soc. 

Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006)), or if the ALJ offers “clear and 

convincing reasons” for finding the claimant not credible. Carmickle, 533 F.3d at 1160 

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(quoting Lingenfelter, 504 F.3d at 1036). Because the ALJ did not specifically find 

evidence of malingering, the ALJ was required to provide clear and convincing reasons 

for concluding that Plaintiff’s subjective complaints were not wholly credible. 

The ALJ discounted Plaintiff’s symptom testimony because she found that: 

(1) the severity of Plaintiff’s reported symptoms was not supported by normal findings in 

the medical record; (2) Plaintiff’s “daily activities were not as limited as one would 

expect considering the complaints of disabling symptoms”; (3) treatment was “generally 

successful” in controlling Plaintiff’s symptoms; (4) Plaintiff worked after the alleged 

disability onset date; and (5) Plaintiff took computer animation classes. (Tr. 22-23.) 

 1. Not Supported by the Medical Evidence 

 The ALJ discounted Plaintiff’s credibility because she found that the medical 

record included “normal findings on examination,” which did not support his reported 

symptoms. (Tr. 22.) The absence of fully corroborative medical evidence cannot form 

the sole basis for rejecting the credibility of a claimant’s subjective complaints. See 

Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986) (it is legal error for “an ALJ to 

discredit excess pain testimony solely on the ground that it is not fully corroborated by 

objective medical findings”), superseded by statute on other grounds as stated in Bunnell 

v. Sullivan, 912 F.2d 1149 (9th Cir. 1990); see also Burch, 400 F.3d at 681 (explaining 

that the “lack of medical evidence” can be “a factor” in rejecting credibility, but cannot 

“form the sole basis”); Rollins v. Massanari, 261 F.3d 853, 856–57 (9th Cir. 2001) 

(same). Thus, absent some other stated legally sufficient reason, this ground for the 

ALJ’s credibility determination cannot stand. As discussed below, although the ALJ 

provided several other reasons for discrediting Plaintiff’s subjective complaints that could 

constitute clear and convincing reasons in support of a credibility determination, these 

reasons are not supported by substantial evidence in the record and, therefore, do not 

support the ALJ’s credibility determination in this case. 

/ / / 

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 2. Daily Activities 

 In discounting Plaintiff’s credibility, the ALJ noted that Plaintiff runs errands, 

goes to the grocery store, uses an elliptical machine, does light yard work, cares for a pet 

dog, drives a car, took a trip, does yoga, goes to movies, sings at restaurants, has gone out 

to dinner, checks email, and can manage his own finances. (Tr. 22.) An ALJ may rely 

on activities that “contradict claims of a totally debilitating impairment” to find a 

claimant less than credible. Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012). 

 Plaintiff asserts that the ALJ incorrectly stated that Plaintiff did hot yoga 

throughout the period of his disability claim. (Doc. 11 at 6.) When assessing Plaintiff’s 

credibility, the ALJ referred to a March 31, 2011 treatment note which states that Plaintiff 

was “doing hot yoga.” (Tr. 22 (citing Admin. Hrg. Ex. 22F at 1); Tr. 645.) That 

treatment note does not indicate how frequently Plaintiff did hot yoga and the ALJ did 

not cite any other record evidence indicating that Plaintiff continued doing hot yoga after 

March 2011. During the administrative hearing, Plaintiff testified that one of his doctors 

recommend he try hot yoga for his back pain. (Tr. 46.) Plaintiff testified that yoga 

helped for a little bit, but later made his pain worse so he stopped doing it. (Tr. 46-47.) 

The ALJ did not discuss these details about Plaintiff’s participation in hot yoga. (Tr. 22.) 

A single treatment note indicating that Plaintiff did hot yoga in March 2011 does not 

constitute a clear and convincing reason for discounting Plaintiff’s credibility. 

 Plaintiff also asserts that the ALJ erred by relying on evidence that he took a trip 

to discount his credibility because the ALJ referred to a 2008 trip. (Doc. 11 at 5, Tr. 23 

(citing Admin. Hrg. Ex. 5F at 2).) A January 21, 2008 treatment note states that Plaintiff 

was going to Europe. (Tr. 452.) Plaintiff does not dispute that he went to Europe, but 

argues that the 2008 trip is not relevant because it was before the amended disability 

onset date. As the ALJ noted, a trip to Europe requires “long intercontinental travel.” 

(Tr. 23.) Evidence that Plaintiff took such a trip is inconsistent with his reported inability 

to sit for extended periods of time. However, because evidence of the trip is from 2008 

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and the record indicates that Plaintiff’s condition worsened in subsequent years (Tr. 563), 

the 2008 trip is not a clear and convincing reason for discounting Plaintiff’s credibility. 

 Plaintiff does not challenge the ALJ’s determination that he participated in the 

other activities identified in her opinion. (Tr. 22.) The Commissioner argues that even if 

yoga and the trip to Europe are excluded from Plaintiff’s activities, “the ALJ’s finding 

that Plaintiff’s activities of daily living were inconsistent with his claims of disability 

from back pain and depression is supported by substantial evidence.” (Doc. 12 at 13.) 

As set forth below, the Court disagrees. The Ninth Circuit “has repeatedly asserted that 

the mere fact that a plaintiff has carried on certain daily activities, such as grocery 

shopping, driving a car, or limited walking for exercise, does not in any way detract from 

[his] credibility as to [his] overall disability. One does not need to be ‘utterly 

incapacitated’ in order to be disabled.” Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 

2001) (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). However, a 

claimant’s reported daily activities can form the basis for an adverse credibility 

determination if they consist of activities that “contradict [the claimant’s] other 

testimony,” or that are “transferable work skills.” Orn, 495 F.3d at 639; Smolen v. 

Chater, 80 F.3d 1273, 1284 n. 7 (9th Cir. 1996). 

 The ALJ’s decision lists Plaintiff’s daily activities and concludes that he is not 

credible because the extent of these activities “is not as limited as one would expect 

considering the complaints of disabling symptoms.” (Tr. 22.) But the ALJ fails to 

identify any specific contradictions between Plaintiff’s reported symptom testimony and 

his activities. But see Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (concluding 

that the ALJ properly found claimant’s claimed inability to “tolerate even minimal human 

interaction was inconsistent with her daily activities . . . including walking her two 

children to and from school, attending church, shopping, and taking walks . . . .”). 

 Additionally, the ALJ did make any findings on the transferability of the activities 

at issue to a work setting, which is the only other acceptable grounds for using daily 

activities to form the basis of an adverse credibility determination. See Orn, 495 F.3d at 

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639. The ALJ must make “specific findings relating to [the daily] activities” and their 

transferability to conclude that a claimant’s daily activities warrant an adverse credibility 

determination. Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). Because the ALJ 

did not identify inconsistencies between Plaintiff’s symptom testimony and his activities, 

or make any findings on the transferability of Plaintiff’s activities to a work setting, 

Plaintiff’s daily activities do not constitute a clear and convincing reason to discount his 

credibility. 

 3. Symptoms Controlled by Treatment 

 The ALJ also discredited Plaintiff’s subjective complaint testimony based on her 

conclusion that the record reflected that treatment had been “generally successful in 

controlling [Plaintiff’s] symptoms.” (Tr. 22.) The ALJ noted that on May 16, 2012, 

Plaintiff reported that “Vicodin worked” and he testified that he did not have side effects 

from his medications. (Id.) The ALJ further noted that on July 15, 2013, Plaintiff 

“denied depression, anxiety, or panic attacks . . . .” (Id.) 

 Evidence that treatment can effectively control an impairment may be a clear and 

convincing reason to find a claimant less credible. See 20 C.F.R. §§ 404.1529(c)(3)(iv), 

416.929(c)(3)(iv); Warre v. Comm’r, of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 

2006) (stating that “[i]mpairments that can be controlled effectively with medication are 

not disabling for purposes of determining eligibility for SSI benefits.”). Here, however, 

substantial evidence in the record does not support the ALJ’s conclusion. Although a 

single treatment note indicates that Vicodin “still work[ed]” in May 2012, (Tr. 486), other 

treatment records reflect that Plaintiff consistently reported chronic back pain (Tr. 363, 

382, 385, 387, 388-89, 391, 404-05, 411-12, 417-18, 423-24, 431-33, 441, 510, 532, 546, 

566, 606, 610, 646), and in December 26, 2012, Plaintiff reported that Vicodin was no 

longer working. (Tr. 546.) See Lankford v. Astrue, 2013 WL 416221, at *5 (N.D. Cal. 

Jan. 31, 2013) (concluding that the ALJ’s finding that a claimant’s pain was controlled 

did not support his credibility assessment because the ALJ failed to recognize that the 

medication did not resolve the problem and claimant continued to complain of chronic 

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pain). Considering the consistent evidence of Plaintiff’s back pain, a single notation that 

Vicodin worked is not a clear and convincing reason to discount Plaintiff’s credibility.

 The ALJ also concluded that treatment controlled Plaintiff’s symptoms related to 

depression because he denied depression, anxiety, or panic attacks on July 15, 2013. 

(Tr. 22 (citing Admin. Hrg. Ex.19F at 12).) Plaintiff asserts that Dr. Fisher’s July 15, 

2013 treatment note is on a template that includes standard findings that Dr. Fisher did 

not change because he was not treating Plaintiff for depression. (Doc. 11 at 6.) The 

Commissioner responds that Dr. Fisher’s treatment notes regularly note such denials and 

that the ALJ reasonably relied upon those treatment notes. (Doc. 12 at 10 (citing Tr. 412, 

424, 441, 535, 537, 542, 547, 602, 607).) The Court agrees that the ALJ reasonably 

relied on Dr. Fisher’s treatment notes indicating that Plaintiff denied depression. 

Accordingly, the ALJ gave a legally sufficient reason for concluding that Plaintiff’s 

depression was controlled with treatment. However, the ALJ did not indicate which 

portion of Plaintiff’s subjective complaints she discredited based on this conclusion. 

(Tr. 22.) 

 4. Work after Disability Onset Date 

 The ALJ also discounted Plaintiff’s credibility because there was evidence that he 

worked as a singer after the disability onset date. (Tr. 17 (citing Admin. Hrg. Ex. 14E at 

5); Tr. 22, 23.) The ALJ concludes that singing “involves considerable physical and 

mental activity” but does not cite any evidence indicating the amount of physical or 

mental effort required for Plaintiff’s singing engagements. (Tr. 23.) In making this 

determination, the ALJ cited a Function Report that Plaintiff completed in April 2013. 

(Tr. 17 (citing Admin. Hrg. Ex. 14E at 5); Tr. 302-310). In that report, Plaintiff stated 

that “I used to sing at restaurants but it has become a challenge.” (Tr. 306.) He 

explained that he planned to “fulfill a couple of commitments this year, but [was] not 

accepting new gigs. I have up to four nights I am hoping to do all year.” (Id.) The ALJ 

stated that Plaintiff performed for two to three hours (Tr. 17), but the portion of the 

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record that ALJ references does not indicate the duration of Plaintiff’s singing 

engagements. (Tr. 306.) 

 However, during the 2014 administrative hearing Plaintiff testified that since 2011 

he has been self-employed as a singer and his performances usually lasted two to three 

hours. (Tr. 38-39.) He testified that the performances used to be therapeutic for him, but 

that recently after thirty minutes of singing his back burned and he took medication. 

(Tr. 39.) Plaintiff also testified that his wife drove him to his performances and helped 

with the equipment. (Id.) The ALJ did not discuss Plaintiff’s testimony regarding his 

singing engagements and did not cite any evidence regarding the frequency of the singing 

engagements. (Tr. 17, 22, 23.) 

 The Function Report that the ALJ cites states that Plaintiff planned to do four 

singing engagements in 2013 and that he was not accepting further engagements. 

(Tr. 305.) During the administrative hearing, Plaintiff testified that he did about six 

singing engagements in 2013. (Tr. 38-39.) Evidence that Plaintiff engaged in about six 

singing engagements in 2013 that lasted two to three hours is not a clear and convincing 

reason to discount his credibility because this work was intermittent. See McBriety v. 

Colvin, 2014 WL 3778552, at *6 (D. Or. Jul. 30, 2014) (concluding that the ALJ erred by 

discounting the plaintiff’s credibility based on her “intermittent, less-than full time” 

work.) 

 5. Computer Animation Classes 

 The ALJ also discounted Plaintiff’s credibility because he “had taken classes in 

computer animation.” (Tr. 23.) To support his conclusion, the ALJ cites an April 2012 

progress note from Dr. Treegoob stating that Plaintiff “took classes on computer 

animation, which he can do at home, loves it.”7

 (Tr. 489-90.) That same progress notes 

indicates that Plaintiff had severe back pain, was “rapidly deteriorating,” was stressed, 

and depressed. (Tr. 490.) Plaintiff does not dispute that he took computer animation 

classes. (Doc. 11.) However, the ALJ did not cite any evidence regarding the frequency 

 

7

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or duration of these classes. (Tr. 23.) Plaintiff’s apparent attempt to find an activity he 

could do at home despite his reported symptoms, see Tr. 490 (stating that Plaintiff “trying 

things he was passionate about”), does not undermine his credibility considering the lack 

of evidence that taking computer animation classes contradicted any of Plaintiff’s 

specific reported symptoms. 

 Based on the Court’s review of the record, with the exception of her conclusion 

the Plaintiff’s depression was controlled with treatment, the ALJ did not provide legally 

sufficient reasons that are supported by substantial evidence to support her adverse 

credibility determination. Therefore, the ALJ erred in discounting Plaintiff’s subjective 

complaints related to his back pain. 

VII. Summary and Remedy 

 Considering the record as a whole, the Court concludes that the ALJ erred in 

rejecting Dr. Fisher’s opinions and Plaintiff’s subjective complaints. These errors were 

not harmless because the vocational expert testified that an individual with the limitations 

that Dr. Fisher and Plaintiff identified would be unable to sustain work. (Tr. 79-81.) 

Therefore, the Court reverses the Commissioner’s disability determination. 

 Because the Court has decided to vacate the Commissioner’s decision, it has the 

discretion to remand the case for further development of the record or for an award 

benefits. See Reddick v. Chater, 157 F.3d 715, 728 (9th Cir. 1998). Plaintiff asks the 

Court to remand for a determination for benefits, or in the alternative, for further 

proceedings. (Doc. 11 at 10-11.) The Commissioner does not address this issue. 

(Doc. 12.) 

 The decision to remand for benefits is controlled by the Ninth Circuit’s “three-part 

credit-as-true standard.” Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). Under 

that standard, evidence should be credited as true and an action remanded for an 

immediate award of benefits when each of the following factors are present: “(1) the 

record has been fully developed and further administrative proceedings would serve no 

useful purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting 

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evidence, whether claimant’s testimony or medical opinion; and (3) if the improperly 

discredited evidence were credited as true, the ALJ would be required to find the 

claimant disabled on remand.” Id. (citing Ryan v. Comm’r Soc. Sec., 528 F.3d 1194, 

1202 (9th Cir. 2008)); see also Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004). 

As discussed below, Plaintiff has satisfied all three factors of the credit-as-true standard. 

 On the first factor, there is no need to further develop the record. See Garrison, 

759 F.3d at 1021 (citing Benecke, 379 F.3d at 595) (“Allowing the Commissioner to 

decide the issue again would create an unfair ‘heads we win; tails, let’s play again’ 

system of disability benefits adjudication.”)). On the second factor, the Court has 

concluded that the ALJ failed to provide legally sufficient reasons that are supported by 

substantial evidence in the record for rejecting the Dr. Fisher’s opinions and failed to 

provide legally sufficient reasons for rejecting Plaintiff’s subjective complaints. On the 

third factor, if the discredited evidence were credited as true, the ALJ would be required 

to find Plaintiff disabled on remand because the vocational expert testified that a person 

with the limitations that Dr. Fisher identified and to which Plaintiff testified, would be 

incapable of sustained full-time work. Therefore, based on this evidence, Plaintiff is 

disabled. See Garrison, 759 F.3d at 1022, n.28 (stating that when the vocational expert 

testified that a person with the plaintiff’s RFC would be unable to work, “we can 

conclude that [the plaintiff] is disabled without remanding for further proceedings to 

determine anew her RFC.”). 

 Having concluded that Plaintiff meets the three criteria of the credit-as-true 

standard, the Court considers “the relevant testimony [and opinion evidence] to be 

established as true and remand[s] for an award of benefits[,]” Benecke, 379 F.3d at 593 

(citations omitted), unless “the record as a whole creates serious doubt as to whether the 

claimant is, in fact, disabled with the meaning of the Social Security Act.” Garrison, 759 

F.3d at 1021) (citations omitted). Considering the record as a whole, there is no reason 

for serious doubt as to whether Plaintiff is disabled. See Garrison, 759 F.3d at 1021 

(stating that that when the court conclude “that a claimant is otherwise entitled to an 

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immediate award of benefits under the credit-as-true analysis, [the court has] flexibility to 

remand for further proceedings when the record as a whole creates serious doubt as to 

whether the claimant is, in fact, disabled within the meaning of the Social Security Act.”). 

The ALJ failed to set forth specific and legitimate reasons supported by substantial 

evidence for rejecting Dr. Fisher’s opinions and failed to provide clear and convincing 

reasons for discounting Plaintiff’s credibility. When a hypothetical question was posed 

to the vocational expert incorporating the limitations included in Dr. Fisher’s opinions 

and Plaintiff’s testimony, the vocational expert testified that such limitations would 

preclude an individual from sustained work activity. (Tr. 79-81.) On the record before 

the Court, Dr. Fisher’s opinions and Plaintiff’s subjective complaints should be credited 

as true and the case remanded for an award of benefits. 

 Accordingly, 

IT IS ORDERED that the Commissioner’s decision denying benefits is reversed 

and this matter is remanded for a determination of benefits. 

IT IS FURTHER ORDERED that the Clerk of Court shall enter judgment in 

favor of Plaintiff and terminate this case. 

 Dated this 22nd day of June, 2016. 

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