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WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Rita Kaduchak, 

Plaintiff, 

v. 

Carolyn W. Colvin, Acting Commissioner 

of Social Security, 

Defendant. 

No. CV-15-02211-PHX-NVW 

ORDER 

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

decision of the Commissioner of Social Security (“the Commissioner”), which denied her 

disability insurance benefits and supplemental security income under sections 216(i), 

223(d), and 1614(a)(3)(A) of the Social Security Act. Because the decision of the 

Administrative Law Judge (“ALJ”) is not supported by substantial evidence and is based 

on legal error, the Commissioner’s decision will be vacated and the matter remanded for 

calculation and award of benefits. 

I. BACKGROUND 

Plaintiff was born in May 1963 and was 47 years old on the alleged disability 

onset date. She completed four years of college and is able to communicate in English. 

She worked as a receptionist, customer service clerk, hospital admitting clerk, and policy 

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holder information clerk. She has degenerative joint disease, myofascial pain syndrome, 

osteoarthritis of the joints, and celiac disease. 

On December 19, 2011, Plaintiff applied for disability insurance benefits and on 

October 29, 2013, she applied for supplemental security income, alleging disability 

beginning June 7, 2010. On December 20, 2013, she appeared with her attorney and 

testified at a hearing before the ALJ. A vocational expert also testified. On February 28, 

2014, the ALJ issued a decision that Plaintiff was not disabled within the meaning of the 

Social Security Act. The Appeals Council denied Plaintiff’s request for review of the 

hearing decision, making the ALJ’s decision the Commissioner’s final decision. On 

November 3, 2015, Plaintiff sought review by this Court. 

II. STANDARD OF REVIEW 

A court may set aside the Commissioner’s disability determination only if the 

determination is not supported by substantial evidence or is based on legal error. Orn v. 

Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is more than a scintilla, 

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

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

whether substantial evidence supports a decision, the court must consider the record as a 

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

evidence.” Id. Generally, when the evidence is susceptible to more than one rational 

interpretation, courts must uphold the ALJ’s findings if they are supported by inferences 

reasonably drawn from the record. Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 

2012). 

III. FIVE-STEP SEQUENTIAL EVALUATION PROCESS 

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

Act, the ALJ follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears 

the burden of proof on the first four steps, but the burden shifts to the Commissioner at 

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

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At the first step, the ALJ determines whether the claimant is engaging in 

substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not 

disabled and the inquiry ends. Id. At step two, the ALJ determines whether the claimant 

has a severe medically determinable physical or mental impairment. § 404.1520(a)(4)(ii). 

If not, the claimant is not disabled and the inquiry ends. Id. At step three, the ALJ 

considers whether the claimant’s impairment or combination of impairments meets or 

medically equals an impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Pt. 404. 

§ 404.1520(a)(4)(iii). If so, the claimant is automatically found to be disabled. Id. If 

not, the ALJ proceeds to step four. At step four, the ALJ assesses the claimant’s residual 

functional capacity and determines whether the claimant is still capable of performing 

past relevant work. § 404.1520(a)(4)(iv). If so, the claimant is not disabled and the 

inquiry ends. Id. If not, the ALJ proceeds to the fifth and final step, where he determines 

whether the claimant can perform any other work based on the claimant’s residual 

functional capacity, age, education, and work experience. § 404.1520(a)(4)(v). If so, the 

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

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

the Social Security Act through December 31, 2015, and that she has not engaged in 

substantial gainful activity since June 7, 2010. At step two, the ALJ found that Plaintiff 

has the following severe impairments: degenerative joint disease of the hand, myofascial 

syndrome, and osteoarthritis in joints. At step three, the ALJ determined that Plaintiff 

does not have an impairment or combination of impairments that meets or medically 

equals an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. 

At step four, the ALJ found that Plaintiff: 

has the residual functional capacity to perform light work as defined in 20 

CFR 404.1567(a) and 416.967(a) except the claimant can only perform 

occasional reaching, handling and fingering. 

The ALJ further found that Plaintiff is unable to perform any past relevant work. At step 

five, the ALJ concluded that, considering Plaintiff’s age, education, work experience, and 

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residual functional capacity, Plaintiff has acquired work skills from past relevant work 

that are transferable to other occupations with jobs existing in significant numbers in the 

national economy. 

IV. ANALYSIS 

A. Legal Standard 

If a claimant’s statements about pain or other symptoms are not substantiated by 

objective medical evidence, the ALJ must consider all of the evidence in the case record, 

including any statement by the claimant and other persons, concerning the claimant’s 

symptoms. SSR96-7p. Then the ALJ must make a finding on the credibility of the 

claimant’s statements about symptoms and their functional effects. Id. 

In evaluating the credibility of a claimant’s testimony regarding subjective pain or 

other symptoms, the ALJ is required to engage in a two-step analysis: (1) determine 

whether the claimant presented objective medical evidence of an impairment that could 

reasonably be expected to produce some degree of the pain or other symptoms alleged; 

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

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

rejection. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). “This is not an easy 

requirement to meet: ‘The clear and convincing standard is the most demanding required 

in Social Security cases.’” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) 

(quoting Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). 

To ensure meaningful review, the ALJ must specifically identify the testimony 

from a claimant the ALJ finds not to be credible and explain what evidence undermines 

the testimony. Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 

2014). “General findings are insufficient.” Id. The ALJ must make findings 

“sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily 

discredit claimant’s testimony.” Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002); 

accord Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). 

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In making a credibility determination, an ALJ “may not reject a claimant’s 

subjective complaints based solely on a lack of objective medical evidence to fully 

corroborate the claimant’s allegations.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 

1219, 1227 (9th Cir. 2009). But “an ALJ may weigh inconsistencies between the 

claimant’s testimony and his or her conduct, daily activities, and work record, among 

other factors.” Id. Further, the claimant is not required to produce objective medical 

evidence of the symptom or its severity. Garrison, 759 F.3d at 1014. The ALJ must 

consider all of the evidence presented, including the claimant’s daily activities; the 

location, duration, frequency, and intensity of the pain or other symptoms; factors that 

precipitate and aggravate the symptoms; effectiveness and side effects of any medication 

taken to alleviate pain or other symptoms; treatment other than medication; any measures 

other than treatment the claimant uses to relieve pain or other symptoms; and any other 

factors concerning the claimant’s functional limitations and restrictions due to pain or 

other symptoms. SSR 96-7p. 

B. The ALJ Did Not Provide Clear and Convincing Reasons for 

Discrediting Plaintiff’s Symptom Testimony. 

First, the ALJ found that Plaintiff’s “medically determinable impairments could 

reasonably be expected to cause the alleged symptoms.” Second, the ALJ found 

Plaintiff’s “statements regarding the intensity, persistence, and limiting effects of the 

symptoms not entirely credible to the extent they are inconsistent with the residual 

functional capacity assessment.” 

The ALJ identified many of the subjective symptom statements Plaintiff made at 

the hearing on December 20, 2013, and in an exertional daily activities questionnaire 

dated May 11, 2012, but failed to specifically identify which statements the ALJ found 

not to be credible and what evidence undermined the credibility of those statements. 

Plaintiff testified that every day she gets extreme pain and numbness in her arms 

and hands whenever she uses her fingers, hands, and arms. She further testified that the 

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pain and numbness increases the more she uses her fingers, hands, and arms. She said 

she would not be able to push and pull with her hands for at least 21⁄2 hours per day. She 

testified that she is able to sit for 30 minutes at a time, stand/walk for 30 minutes at a 

time, sit for a total of 2 hours in an 8-hour work day, and stand/walk for a total of 1 hour 

in an 8-hour work day. She said she spends the rest of her time resting in a recliner or 

lying down. Plaintiff testified that she has difficulty focusing her attention, 

concentrating, and finishing tasks. 

On the May 11, 2012 exertional daily activities questionnaire, Plaintiff noted that 

on an average day she reads, watches television, goes for a walk, and rests. She said 

some days she does very little, but some days she walks slowly around the block once or 

twice. She stated she is able to do small loads of laundry, put dishes in the dishwasher, 

and carry light items as needed, but her pain level increases with activity. She said she 

can drive one to five miles, but her mother drives her to medical appointments, grocery 

shopping, etc. 

The ALJ summarized the objective medical evidence, but did not clearly identify 

which objective evidence undermined Plaintiff’s credibility. Some of her conditions are 

described as mild, but the ALJ found that Plaintiff’s “medically determinable 

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

many other things, the ALJ noted that Plaintiff’s upper extremity muscle testing was 

within normal limits, but she had pain in both hands with grip strength testing. 

The ALJ said, “Several other factors serve to undermine the claimant’s 

credibility.” One “factor” was that Plaintiff listed chronic sinus problems among her 

impairments in 2012, and she was treated for it in 2004 while still able to work. The ALJ 

also noted that in August 2013 Plaintiff had some improvement in nasal secretions. 

Plaintiff’s sinus condition is irrelevant to the credibility of Plaintiff’s hearing testimony 

and her May 11, 2012 statement. Neither claims that her chronic sinus problems limit her 

ability to work. 

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A second “factor” was that Plaintiff injured her left hand in 2013, from which the 

ALJ illogically concluded that Plaintiff’s left hand must not have been “as severe” until 

after the fall. 

A third “factor” demonstrates the ALJ’s misunderstanding of Plaintiff’s testimony 

and medication history. Plaintiff testified that she applies Voltaren gel on her arms and 

hands to reduce pain. Sometimes she uses heat or cold to treat the pain. She said she 

occasionally takes over-the-counter Tylenol or Aleve, but no other oral pain medication 

because of her celiac disease. Plaintiff tried to explain that celiac disease is an 

autoimmune disorder, and medications that are processed through Plaintiff’s 

gastrointestinal tract have not been effective. For example, in the past she has needed a 

longer course of antibiotics than would ordinarily be prescribed. She also avoids oral 

medications that may contain gluten. The ALJ expressly found that Plaintiff’s celiac 

disease was not a severe impairment because Plaintiff has remained on a gluten-free diet 

with good results. During the hearing, the ALJ expressly referred to Plaintiff’s 

medication list, which shows no medication for celiac disease. Nevertheless, the ALJ 

stated: 

The claimant alleged at the hearing that due to the slow reaction from 

medication, which is from celiac disease she chooses not to take medication 

at all. She alleged she only takes medication for celiac disease, Tylenol as 

needed and multivitamins. This statement seems contradictory due to the 

amount of pain the claimant indicates she has. The undersigned has 

considered the claimant’s testimony at the hearing and the exertional daily 

activities questionnaire completed by the claimant. Based on numerous 

inconsistencies the undersigned finds the claimant is not entirely credible. 

Plaintiff’s choosing external pain treatment over oral prescription pain medication that 

may be ineffective and trigger adverse reactions due to her celiac disease is not 

inconsistent with Plaintiff’s pain testimony. 

Therefore, the ALJ failed to provide clear and convincing reasons for rejecting 

Plaintiff’s subjective symptom testimony. 

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C. Remand 

If the ALJ’s decision is not supported by substantial evidence or suffers from legal 

error, the district court has discretion to reverse and remand either for an award of 

benefits or for further administrative proceedings. Smolen v. Chater, 80 F.3d 1273, 1292 

(9th Cir. 1996); Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987). “Remand for 

further proceedings is appropriate if enhancement of the record would be useful.” 

Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004). “Conversely, where the record 

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

purpose, the district court should remand for an immediate award of benefits.” Id. (citing 

Smolen, 80 F.3d at 1292). To remand for immediate award of benefits, the Court must 

find: 

(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 evidence, whether claimant 

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. 

Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). When these three conditions are 

satisfied, the case should be remanded for immediate award of benefits except when “an 

evaluation of the record as a whole creates serious doubt that a claimant is, in fact, 

disabled.” Id. at 1021. 

Here, the record is fully developed and further administrative proceedings would 

serve no useful purpose. The ALJ has failed to provide legally sufficient reasons for 

rejecting Plaintiff’s subjective symptom evidence. The vocational expert testified that if 

Plaintiff’s testimony was true and accurate, Plaintiff would be unable to do any work. An 

evaluation of the record as a whole does not create serious doubt that Plaintiff is, in fact, 

disabled. 

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IT IS THEREFORE ORDERED that the final decision of the Commissioner of 

Social Security is vacated and this case is remanded for calculation and award of benefits. 

The Clerk shall enter judgment accordingly and shall terminate this case. 

Dated this 21st day of July, 2016. 

Neil V. Wake

Senior United States District 

Judge

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