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WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Daniel Frank Saul,

Plaintiff,

v. 

Acting Commissioner of the Social Security 

Administration,

Defendant.

No. CV-15-02378-PHX-ESW

ORDER

Pending before the Court is Daniel Frank Saul’s (“Plaintiff”) appeal of the Social 

Security Administration’s (“Social Security”) denial of his application for disability 

insurance benefits. The Court has jurisdiction to decide Plaintiff’s appeal pursuant to 42 

U.S.C. § 405(g). Under 42 U.S.C. § 405(g), the Court has the power to enter, based upon 

the pleadings and transcript of the record, a judgment affirming, modifying, or reversing 

the decision of the Commissioner of Social Security, with or without remanding the case 

for a rehearing. Both parties have consented to the exercise of U.S. Magistrate Judge 

jurisdiction. (Doc. 14). 

The parties do not dispute that this case should be remanded to the Commissioner 

of Social Security as the Administrative Law Judge’s (“ALJ”) decision contains harmful 

legal error. The parties, however, dispute whether the case should be remanded for 

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further proceedings or for an immediate award of benefits. After reviewing the 

Administrative Record (“A.R”) and the parties’ briefing (Docs. 23, 27, 28), the Court 

finds that it is appropriate to remand the case for an immediate award of benefits. 

I. DISCUSSION

A. Procedural Background

Plaintiff, who was born in 1965, has been employed as a floor layer, floorcovering salesperson, and salesperson for horticultural and nursery products. (A.R. 56, 

65). In October 2012, Plaintiff filed an application for disability insurance benefits. 

(A.R. 65). Plaintiff’s application alleged that on September 22, 2011, he became unable 

to work due to (i) spinal stenosis; (ii) degenerative joint disease; (iii) arthritis; (iv) 

cervical stenosis; (v) right leg injury; (vi) right hip injury; (vii) right ulnar nerve 

disability; (viii) hypertension; (ix) depression; (x) anxiety; and (xi) thyroid disease. (Id.). 

Social Security denied the applications on February 6, 2013. (A.R. 100-07). In August 

2013, upon Plaintiff’s request for reconsideration, Social Security affirmed the denial of 

benefits. (A.R. 108-10, 111). Plaintiff sought further review by an ALJ, who conducted 

a hearing in June 2013. (A.R. 32-63, 112-13). 

In his June 10, 2014 decision, the ALJ found that Plaintiff is not disabled within 

the meaning of the Social Security Act. (A.R. 9-31). The Appeals Council denied 

Plaintiff’s request for review, making the ALJ’s decision the final decision of the Social 

Security Commissioner. (A.R. 1-6, 7-8). On November 21, 2015, Plaintiff filed a 

Complaint (Doc. 1) pursuant to 42 U.S.C. § 405(g) requesting judicial review and 

reversal of the ALJ’s decision.

B. The ALJ’s Decision Contains Harmful Legal Error 

In his Opening Brief (Doc. 23), Plaintiff contends that the ALJ (i) improperly 

rejected the opinion of Plaintiff’s treating psychiatrist, Dr. S. Patel, and (ii) failed to 

provide specific, clear, and convincing reasons supported by substantial evidence when 

rejecting Plaintiff’s symptom testimony. Although Defendant concedes that the ALJ’s 

decision is not supported by substantial evidence, Defendant appears to dispute Plaintiff’s 

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contention that the ALJ improperly rejected Dr. Patel’s opinion, asserting that “the ALJ’s 

rejection of Dr. Patel’s opinion is based on appropriate reasoning, and well-supported by 

the record.” (Doc. 27 at 7). The Court need not resolve the dispute, however, as the 

following discussion explains that the ALJ committed harmful error by failing to provide 

specific, clear, and convincing reasons supported by substantial evidence for discounting 

Plaintiff’s symptom testimony. 

The parties do not dispute the ALJ’s finding that Plaintiff's “medically 

determinable impairments could reasonably be expected to cause the alleged symptoms.” 

(A.R. 18). Where, as here, there is no affirmative evidence of malingering, the ALJ may 

reject the claimant’s testimony regarding the severity of his pain “only if he makes 

specific findings stating clear and convincing reasons for doing so.” Smolen v. Chater, 

80 F.3d 1273, 1283-84 (9th Cir. 1996). Appropriate considerations for determining a 

claimant’s credibility include:

(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 

activities.

Id. at 1284.

In explaining why he found Plaintiff’s testimony not credible, the ALJ stated that 

Plaintiff “has not generally received the type of medical treatment one would expect for a 

totally disabled individual” and that Plaintiff’s treatment records “reveal the claimant 

received routine, conservative and non-emergency treatment.” (A.R. 18). Yet the record 

shows that Plaintiff has received several surgeries, including a 2012 cervical fusion, and 

has regularly been prescribed narcotic pain medication. (See, e.g., A.R. 518, 924, 931-

32, 935, 939, 1056). The ALJ’s finding that Plaintiff has received routine, conservative 

treatment is not supported by substantial evidence in the record. See Lapeirre-Gutt v. 

Astrue, 382 F. App’x 662, 664 (9th Cir. 2010) (reversing ALJ’s adverse credibility 

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finding as unsupported by substantial evidence based on plaintiff’s history of cervical 

fusion surgery in an attempt to relieve her pain symptoms followed by narcotic pain 

medications, occipital nerve blocks, and trigger point injections); Tunstell v. Astrue, No. 

CV 11-9462-SP, 2012 WL 3765139, at *4 (C.D. Cal. Aug. 30, 2012) (rejecting the ALJ’s 

finding that plaintiff received only conservative treatment where the plaintiff was using 

narcotic pain medication as prescribed and was found to be a candidate for neurosurgical 

intervention); Oldham v. Astrue, No. CV 09-1431-JEM, 2010 WL 2850770, at *9 (C.D. 

Cal. July 19, 2010) (noting that epidural steroid injections are “performed in operationlike settings” and not a form of conservative treatment). Further, a claimant’s own 

testimony of disabling pain cannot be discredited “merely because [it is] unsupported by 

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

In explaining why he found Plaintiff’s testimony not credible, the ALJ cited 

evidence regarding Plaintiff’s daily activities. The ALJ found that Plaintiff “has engaged 

in a somewhat normal level of daily activity and interaction,” stating that “claimant 

admitted activities of daily living including he lives with family, and goes shopping with 

his daughter.” (A.R. 17). The ALJ stated that “[i]n function reports [Plaintiff] 

acknowledged he maintains his area, does light cleaning chores, feeds and walks pets, 

goes out daily, goes out alone, uses public transportation, walks, shops in stores 

biweekly, can handle his finances, watches television, socializes . . . .” (Id.). However, 

Plaintiff’s function reports state that (i) Plaintiff’s sister assists Plaintiff in caring for his 

dog; (ii) pain makes it difficult for Plaintiff to complete daily activities; and (iii) Plaintiff 

is “heavily medicated thru out [sic] the day.” (A.R. 216-23, 251-59). Moreover, a

claimant “need not be completely bedridden or unable to perform any household chores 

to be considered disabled.” Easter v. Bowen, 867 F.2d 1128, 1130 (8th Cir. 

1988) (citing Yawitz v. Weinberger, 498 F.2d 956, 960 (8th Cir. 1974)). The Court does 

not find a material contradiction between Plaintiff’s daily activities and his subjective 

pain testimony. Based on the record, the Court finds that the ALJ improperly relied on 

evidence of Plaintiff’s daily activities for discounting Plaintiff’s symptom testimony.

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Regarding ordinary techniques for evaluating Plaintiff's credibility, the ALJ does 

not cite any evidence indicating that Plaintiff has a reputation for lying and does not cite 

any inconsistent statements Plaintiff has made about his symptoms. “Sheer disbelief” of 

the severity of a claimant’s symptoms “is no substitute for substantial evidence.”

Benecke v. Barnhart, 379 F.3d 587, 594 (9th Cir. 2004). 

The Court finds that the ALJ failed to provide specific, clear, and convincing 

reasons supported by substantial evidence for discounting Plaintiff’s testimony regarding 

his symptoms. This error is harmful and requires the Court to remand the case to the 

Commissioner.

C. The Case Will Be Remanded for an Award of Benefits 

Ninth Circuit jurisprudence “requires remand for further proceedings in all but the 

rarest cases.” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1101 n.5 (9th Cir. 

2014). The Ninth Circuit, however, has adopted a test to determine when a case should 

be remanded for payment of benefits in cases where an ALJ has improperly rejected 

claimant testimony or medical opinion evidence. Id. at 1100-01; Garrison, 759 F.3d at 

1020. This test is commonly referred to as the “credit-as-true” rule, which consists of the 

following three factors: 

1. Has the ALJ failed to provide legally sufficient reasons for 

rejecting evidence, whether claimant testimony or medical 

opinion? Treichler, 775 F.3d at 1100-01. 

2. Has the record been fully developed, are there outstanding 

issues that must be resolved before a disability 

determination can be made, or would further administrative 

proceedings be useful? Id. at 1101. To clarify this factor, 

the Ninth Circuit has stated that “[w]here there is 

conflicting evidence, and not all essential factual issues 

have been resolved, a remand for an award of benefits is 

inappropriate.” Id. 

3. If the improperly discredited evidence were credited as true, 

would the ALJ be required to find the claimant disabled on 

remand? Id.; Garrison, 759 F.3d at 1020.

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Where a court has found that a claimant has failed to satisfy one of the factors of 

the credit-as-true rule, the court does not need to address the remaining factors. 

Treichler, 775 F.3d at 1107 (declining to address final step of the rule after determining 

that the claimant has failed to satisfy the second step). Moreover, even if all three factors 

are met, a court retains the discretion to remand a case for additional evidence or to 

award benefits. Id. at 1101-02. A court may 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.” Garrison, 759 F.3d at 1021. In 

Treichler, the Ninth Circuit noted that “[w]here an ALJ makes a legal error, but the 

record is uncertain and ambiguous, the proper approach is to remand the case to the 

agency.” 775 F.3d at 1105.

After examining the record, the Court finds no outstanding issues of fact to be 

resolved through further proceedings. Plaintiff has consistently reported severe pain 

since the alleged disability onset date.1

 (See, e.g., A.R. 565, 800, 978, 1061, 1077, 1092). 

If Plaintiff's testimony regarding the severity of his pain is credited-as-true, the ALJ 

would be required to find that Plaintiff is disabled. The Court does not find any material 

evidence in the record that creates serious doubt that Plaintiff is in fact disabled. 

Therefore, based on the record, the Court finds it inappropriate to remand the case for 

further proceedings. See 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.”); Moisa v. Barnhart, 367 F.3d 882, 887 (9th 

Cir. 2004) (“The Commissioner, having lost this appeal, should not have another 

opportunity to show that Moisa is not credible any more than Moisa, had he lost, should 

have an opportunity for remand and further proceedings to establish his credibility.”)

(citation omitted). The Court will remand the case for an immediate award of benefits 

effective September 22, 2011 (the disability onset date). 

 

1 Although Plaintiff reported some pain relief after his cervical fusion, the record 

indicates that the relief was short-lived. (A.R. 978, 1092).

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II. CONCLUSION

Based on the foregoing, 

IT IS ORDERED reversing the decision of the Commissioner of Social Security 

and remanding this case to the Commissioner for an immediate award of benefits 

effective September 22, 2011. 

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

accordingly. 

Dated this 27th day of February, 2017. 

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