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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Tamara Demia Jones, 

Plaintiff, 

vs.

Commissioner of Social Security

Administration, 

Defendant. 

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CIV 15-02528-PHX-MHB

ORDER

Pending before the Court is Plaintiff Tamara Demia Jones’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

Plaintiff filed applications for disability insurance benefits and supplemental security

income alleging disability beginning January 1, 2007 (Transcript of Administrative Record

(“Tr.”) at 173-74, 185-90.) Her applications were denied initially and on reconsideration.

(Tr. at 72-89, 90-106.) Thereafter, Plaintiff requested a hearing before an administrative law

judge. (Tr. at 122-23.) A hearing was held on June 16, 2014, (Tr. at 40-72), and the ALJ

issued a decision finding that Plaintiff was not disabled (Tr. at 20-39.) The Appeals Council

denied Plaintiff’s request for review (Tr. at 1-6.), 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).

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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;

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(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 January 1, 2007 – the alleged onset date. (Tr. at 25.) At step two, she found

that Plaintiff had the following severe impairments: diabetes mellitus; asthma; peripheral

neuropathy of lower extremities; mild degenerative disc disease of the cervical spine; mild

sclerosis of the lumbar spine; obesity; affective disorder; anxiety disorder and purported

dyslexia. (Tr. at 25.) 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 26.)

After consideration of the entire record, the ALJ found that Plaintiff retained “the residual

functional capacity to perform less than a full range of sedentary work as defined 20 CFR

404.1567(a) and 416.967(a). The claimant can lift and carry ten pounds occasionally and ten

pounds frequently. She can stand and/or walk two hours out of an eight-hour workday. She

can sit six hours out of an eight-hour workday. She must use a cane as needed. She can

frequently climb stairs, but is precluded from climbing ladders, ropes or scaffolds. She is

precluded from balancing. She can frequently stoop and crouch. She is precluded from

kneeling and crawling. She is precluded from overhead work with the right upper extremity.

She can frequently perform gross manipulation with right upper extremity. She must avoid

concentrated exposure to fumes, odors, dust and other pulmonary irritants. She is limited to

simple routine tasks and only non-intense interaction with the public and co-workers. She is

precluded from jobs requiring teamwork and hypervigilance. She cannot be responsible for

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 “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.

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the safety of others. She is limited to only low stress jobs, which are defined as having only

occasional changes in the work setting and work-related decisions. She is limited to jobs

requiring only basic reading levels.” (Tr. at 26-27.) The ALJ determined that Plaintiff was

unable to perform any past relevant work. (Tr. at 33.) The ALJ concluded that Plaintiff has

not been under a disability from January 1, 2007, through the date of her decision. (Tr. at 35.)

IV. DISCUSSION

In her brief, Plaintiff contends that the ALJ erred by failing to properly weigh medical

source opinion evidence; Plaintiff claims that neither (A) the physical RFC1

 nor (B) the

mental RFC are supported by substantial evidence.

“The ALJ is responsible for resolving conflicts in the medical record.” Carmickle v.

Comm’r, Soc. Sec. Admin., 533 F.3d at 1164. Such conflicts may arise between a treating

physician’s medical opinion and other evidence in the claimant’s record. In weighing

medical source opinions in Social Security cases, the Ninth Circuit distinguishes among three

types of physicians: (1) treating physicians, who actually 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. See Lester v. Chater, 81 F.3d 821, 830 (9th Cir.

1995). The Ninth Circuit has held that a treating physician’s opinion is entitled to

“substantial weight.” Bray v. Comm’r, Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir.

2009) (quoting Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988)). A treating physician’s

opinion is given controlling weight when it is “well-supported by medically accepted clinical

and laboratory diagnostic techniques and is not inconsistent with the other substantial

evidence in [the claimant’s] case record.” 20 C.F.R. § 404.1527(d)(2). On the other hand,

if a treating physician’s opinion “is not well-supported” or “is inconsistent with other

substantial evidence in the record,” then it should not be given controlling weight. Orn v.

Astrue, 495 F.3d 624, 631 (9th Cir. 2007).

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If a treating physician’s opinion is not contradicted by the opinion of another

physician, then the ALJ may discount the treating physician’s opinion only for “clear and

convincing” reasons. See Carmickle, 533 F.3d at 1164 (quoting Lester, 81 F.3d at 830). If

a treating physician’s opinion is contradicted by another physician’s opinion, then the ALJ

may reject the treating physician’s opinion if there are “specific and legitimate reasons that

are supported by substantial evidence in the record.” Id. (quoting Lester, 81 F.3d at 830).

Plaintiff contends that the ALJ erred by failing to properly weigh medical source

opinion evidence. Specifically, Plaintiff argues that the ALJ improperly rejected the opinion

of treating physician, Edward Sayegh, M.D., relying instead upon the opinions from state

agency doctors who completed assessment forms as part of the initial and reconsideration

determinations that were based on limited record reviews.

Since the opinion of Dr. Sayegh was contradicted by consultative and reviewing

doctors’ opinions, as well as other objective medical evidence, the specific and legitimate

standard applies.

Historically, the courts have recognized the following as specific, legitimate reasons

for disregarding a treating or examining physician’s opinion: conflicting medical evidence;

the absence of regular medical treatment during the alleged period of disability; the lack of

medical support for doctors’ reports based substantially on a claimant’s subjective complaints

of pain; and medical opinions that are brief, conclusory, and inadequately supported by

medical evidence. See, e.g., Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005); Flaten

v. Secretary of Health and Human Servs., 44 F.3d 1453, 1463-64 (9th Cir. 1995); Fair v.

Bowen, 885 F.2d 597, 604 (9th Cir. 1989).

The ALJ considered the following objective medical evidence of Plaintiff’s

impairments in her determination of Plaintiff’s RFC assessment. 

In November 2012, consultative examiner Angel Gomez, M.D. examined the Plaintiff

(Tr. 319-27.) He noted that Plaintiff was obese but overall appeared to perform well. Plaintiff

appeared to be slightly weaker in the right upper and right lower extremities. Dr. Gomez

diagnosed asthma and diabetic neuropathy. Dr Gomez completed an opinion of Plaintiff’s

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work-related activities in which he opined that Plaintiff could lift or carry 20 pounds

occasionally and frequently; stand and walk at least two hours but less than six hours per

eight-hour workday; frequently able to kneel, crouch, crawl and feel with the right hand;

occasionally stoop, and kneel; no limitations on climbing, reaching, handling and ability to

finger. He also noted Plaintiff’s minimal to no limp with use of a cane for balance. (Tr. 319-

27.)

Also in November 2012, state agency physician Stephen A. Whaley, M.D., reviewed

Plaintiff’s medical record and submitted a Physical RFC Assessment form. Dr. Whaley

opined that Plaintiff could lift and carry 20 pounds occasionally and 10 pounds frequently;

stand and walk six hours per eight-hour work day; had no limitations pushing or pulling with

hands or feet; should avoid concentrated exposure to extreme cold, extreme heat, wetness,

humidity, fumes, odors, dusts, gases, poor ventilation; and should limit exposure to

environmental conditions which exacerbate respiratory symptoms. (Tr. at 81-83.)

Furthermore, state agency physician Donald Robins, M.D., also reviewed Plaintiff’s medical

records. Dr. Robins opined that Plaintiff could lift and carry twenty pounds occasionally and,

lift and carry ten pounds frequently; stand and walk about four hours in an eight-hour work

day; sit about six hours in an eight-hour workday; and must avoid concentrated exposure to

extreme cold, extreme heat, wetness, humidity, fumes, odors, dusts, gases, poor ventilation.

(Tr. at 101-03.) Additionally, state agency physician Arvin Klein, M.D., reviewed the

claimant’s medical records and testified at the hearing. Dr. Klein opined that Plaintiff could

lift and carry ten pounds occasionally and, lift and carry ten pounds frequently; can stand and

walk up to six hours in an eight-hour workday; can sit up to six hours in an eight-hour

workday; is precluded from balancing and climbing ladders, ropes and scaffolds; is precluded

from performing overhead reaching the right upper extremity; can frequently perform gross

manipulation wight the right upper extremity; and is precluded from working around

solvents, fumes, dusts, heights and heavy machinery. (Tr. at 40-72.)

Lastly, in March 2013, treating physician Edward Sayegh, M.D., submitted a medical

source statement regarding Plaintiff’s abilities. Dr. Sayegh opined that Plaintiff could sit one

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hour; stand and walk one hour; lift and carry less than ten pounds; has limitations in doing

repetitive reaching, handling and fingering with her right arms, hands and fingers; is limited

to less than a full range of sedentary exertion and would miss more than four workdays a

month. Dr. Sayegh concluded that Plaintiff was not physically capable of working an eight

hour day for five days a week on a sustained basis. (Tr. at 343-44.)

In her evaluation of the objective medical evidence, the ALJ addressed state agency

physician Dr. Gomez’s opinion that Plaintiff’s ability to finger with her right hand. (Tr. 319-27.) The

ALJ gave reduced weight because it was inconsistent with nerve conduction studies showing only

mild peripheral neuropathy in upper extremities, as well as Plaintiff’s testimony that she has normal

use and feeling in her hand. (Tr. at 32.) However, the ALJ gave significant weight to Dr. Gomez’s

remaining opinion because it is generally consistent with the medical record as a whole. (Tr. at 32);

see 20 C.F.R. § 416.927(d)(2)(i) (state agency medical consultants “are highly qualified

physicians, psychologists, and other medical specialists who are also experts in Social

Security disability evaluation”); Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (“The

opinions of non treating or non examining physicians may also serve as substantial evidence

when the opinions are consistent with independent clinical findings or other evidence in the

record.” (citations omitted)). 

The ALJ also considered the opinions from Dr. Whaley and Dr. Robbins. (Tr. at 32.)

Dr. Robbins largely agreed with Dr. Whaley’s opinion. The ALJ gave reduced weight to their

opinions regarding the Plaintiff’s ability to work around extreme temperatures and wetness

because the Plaintiff’s diabetes mellitus is under good control. However, the ALJ gave

significant weight to their remaining opinions because they are consistent with Plaintiff’s

positive response to conservative care and clinical examinations documenting normal gait

and good strength.(Tr. at 32.) Additionally, the ALJ gave great weight to Dr. Klein’s opinion

because it is consistent with the medical record as a whole, including Plaintiff’s positive

response to conservative care, the mild x-ray studies of her spine, generally mild peripheral

neuropathy and clinical examinations documenting normal gait, full range of motion of her

right shoulder and occasional right shoulder pain. (Tr. at 33.)

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The ALJ then discussed treating physician Dr. Sayegh’s opinion that the Plaintiff is

limited to less than a full range of sedentary exertion and would miss more than four

workdays per month. (Tr. at 32.) The ALJ discounted the opinion because it was overly

restrictive given Plaintiff’s positive response to conservative treatment and clinical

examination documenting mild neuropathic symptoms, normal gait and generally full

strength. (Tr. at 32.) 

The Court finds that the ALJ properly weighed the medical source opinion evidence

related to Plaintiff’s physical impairments, and gave specific and legitimate reasons, based

on substantial evidence in the record, for discounting Dr. Sayegh’s opinion. See Molina v.

Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (“In order to reject the testimony of a medically

acceptable treating source, the ALJ must provide specific, legitimate reasons based on

substantial evidence in the record.” (citation omitted)). An ALJ provides specific and

legitimate reasons to discount a treating physician’s opinion when she expressly relies on the

contrary opinions of an examining physician. See Tonapetyan v. Halter, 242 F.3d 1144, 1149

(9th Cir. 2001). Here, the ALJ gave significant weigh to the majority of Dr. Gomez’s opinion

that Plaintiff could perform the demands of sedentary work, with certain postural and

environmental limitations. (Tr. at 32; 322-24.) The opinion of Dr. Gomez is substantial

evidence for the RFC assessment and the rejection of the treating physician’s opinion. Id.

Furthermore, an ALJ may discount a treating physician’s opinion because it is unsupported

by treatment notes and conflicts with examination results and Plaintiff’s positive response

to treatment. Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 599, 601-03 (9th Cir. 1999).

The ALJ explained with citations to the record that Plaintiff’s treatment has been routine,

without spinal injections or surgery, that her asthma, diabetes and right shoulder have been

controlled with medication, and that objective medical evidence is inconsistent with the

treating physicians’s assessment of extreme limitations. (Tr. at 31.) An X-ray of Plaintiff’s

spine shows mild and minimal changes (Tr. at 406-07.) A nerve conduction study showed

mild and moderate abnormalities. (Tr. at 395-98.). Dr. Gomez’s exam revealed normal

muscle tone, full range of motion in all extremitites, slight weakness in the right extremities,

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full sensory findings, and normal spirometry. (Tr. at 321.) The evidence the ALJ relied upon

was substantial, and therefore, the Court finds no error.

Plaintiff next contends that the mental RFC is not supported by substantial evidence

because the ALJ erred in rejecting the opinion from consultative examiner Robin Potter, Psy.

D.

In November 2012, Dr. Potter examined Plaintiff. (Tr. at 328-42.) Dr. Potter observed

Plaintiff in a depressed manner, and observed that Plaintiff needed reminders to take her

medication, needed transportation assistance, and had been in special education in school.

Additionally, Dr. Potter noted that Plaintiff was quiet, not a good historian, presented at times

as immature by rolling her eyes during the exam, appeared hesitant, and had to reposition and

move around during the exam. Dr. Potter found that Plaintiff exhibited symptoms of

depression and anxiety. Plaintiff’s symptoms of depression included depressed mood most

days for several years, hypersomnia, decreased appetite, diminished interest in previously

enjoyable activities, and passive suicidal ideation. There was no current suicidal intent or

plan. Plaintiff’s anxiety symptoms included constant worry and rumination. However,

anxiety did not seem to meet criteria for diagnosis based on Plaintiff’s reporting. The results

of the MMSE revealed no gross cognitive impairments such as delirium or dementia. The

results of the WAIS-IV revealed that Plaintiff’s overall intelligence quotient is in the

extremely low range. Based on Plaintiff’s varied level of effort and motivation, Dr. Potter

stated that the results should be viewed with caution. Plaintiff did not appear to meet the

criteria for Mild Mental Retardation based on her daily living skills. According to Dr. Potter,

examination of Plaintiff’s previous school records could shed light on whether Plaintiff has

exhibited cognitive problems over time. In light of the evidence Dr. Potter concluded that a

diagnosis of borderline intellectual functioning appeared appropriate. (Tr. at 328-42.)

Dr. Potter also completed a medical assessment of Plaintiff’s ability to perform

work-related activities. (Tr. at 340-41.) Dr. Potter opined that Plaintiff’s difficulty with

comprehension and processing speed appeared likely to interfere with Plaintiff’s ability to

follow instructions in a work environment. Additionally, Plaintiff exhibited issues with

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sustained concentration and persistence which would likely impact Plaintiff’s attention and

concentration at work and ability to maintain regular attendance. Furthermore, Plaintiff had

limitations with social interaction that would likely interfere in a work like setting. Lastly,

Dr. Potter opined Plaintiff’s difficulty adapting to changes and difficulty with interpersonal

relationships are likely to interfere with her ability to maintain employment. (Tr. at 340-41.)

The ALJ discussed Dr. Potter’s opinion that Plaintiff would have difficulty following

instructions in a work environment; moderate difficulty carrying out even simple

instructions; difficulty maintaining attention, concentration and regular attendance at work;

would have social functioning limitations of an unspecified degree; and had poor ability to

adapt, cope or handle changes. (Tr. at 340-41.) The ALJ gave reduced weight to Dr. Potter’s

opinion because it was inconsistent with Plaintiff’s poor effort during the examination as well

as the Plaintiff’s general lack of mental health treatment and unremarkable mental status

examinations during routine office visits. (Tr. at 33.)

The Court having reviewed the ALJ’s evaluation of the objective medical evidence

finds that the ALJ did not mention the opinions or treatment record of psychological

consultants Alvin Smith, Ph. D., and Stephen Fair, Ph. D. (Tr. at 20-39.) Dr. Potter is the only

source in the record whose opinion the ALJ discussed or weighed. The ALJ did not discuss

or indicate what degree of weight she afforded to the opinions of Dr. Smith (Tr. at 84-85),

and Dr. Fair (Tr. at 104-05). Even if the non-examining opinions support the ALJ’s decision,

the ALJ has not provided any explanation whether the evidence supports those opinions

sufficiently for the ALJ to properly rely on them. See Garrison v. Colvin, 795 F.3d 995, 1012

(9th Cir. 2014) (noting differences in treatment of opinions from different sources and

indicating that “the opinion of an examining physician is entitled to greater weight than that

of a non-examining physician”); Bain v. Astrue, 319 Fed.Appx. 543, 546 (9th Cir.

2009)(“Evidence from state agency consultant physicians must be treated as ‘expert opinion

evidence;’ thus, the ALJ ‘may not ignore these opinions and must explain the weight given

to these opinions in their decisions’”) (quoting SSR 96-6p). Additionally, the justification for

the rejection that was given by the ALJ was not supported by substantial evidence. Instead,

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the ALJ gave reduced weight because it was inconsistent with Plaintiff’s poor effort during

the examination as well as Plaintiff’s general lack of mental health treatment and

unremarkable mental status examinations during routine office visits. (Tr. at 33.) The focus

on Plaintiff’s poor effort during the examination ignored evidence to the contrary. An ALJ

is not permitted to rely on evidence supporting her conclusions while ignoring evidence

contrary to those conclusions. See Maydanis v. Colvin, 119 F.Supp.3d 969, 976 (D. Ariz.

2015); Provencio v. Astrue, 2012 U.S. Dist. LEXIS 85294, at *48 (D. Ariz., June 20, 2012)

(finding “[i]t was improper for the ALJ to selectively reference plaintiff’s treatment records

to support her conclusion, while ignoring other treatment records contradicting that

conclusion”). Moreover, the lack of formal mental health treatment cannot serve as evidence

that mental health issues are not disabling. See Rivera v. Colvin, 2013 U.S. Dist. LEXIS

161035, *9-10 (D. Or., Nov. 12, 2013). 

Therefore, in light of the fact that the Court finds that the ALJ failed to provide

specific, legitimate reasons based on substantial evidence in the record for giving reduced

weight to Dr. Potter’s opinion, 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”). 

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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.

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