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WO NOT FOR PUBLICATION 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Donna Palermo, 

Plaintiff, 

v. 

Commissioner of Social Security 

Administration, 

Defendant.

No. CV-15-02553-PHX-JJT

ORDER 

 At issue is the denial of Plaintiff Donna Palermo’s Application for Disability 

Insurance Benefits and Supplemental Security Income by the Social Security 

Administration (“SSA”) under the Social Security Act (“the Act”). Plaintiff filed a 

Complaint (Doc. 1) with this Court seeking judicial review of that denial, and the Court 

now addresses Plaintiff’s Opening Brief (Doc. 17, “Pl.’s Br.”), Defendant Social Security 

Administration Commissioner’s Opposition (Doc. 18, “Def.’s Br.”), and Plaintiff’s Reply 

(Doc. 24, “Reply”). The Court has reviewed the briefs and Administrative Record 

(Doc. 14, R.) and now reverses the Administrative Law Judge’s decision (R. at 16-31) as 

upheld by the Appeals Council (R. at 1-7). 

I. BACKGROUND

 Plaintiff filed applications for Disability Insurance and Supplemental Security 

Income Benefits on August 8, 2011, for a period beginning March 5, 2009. (Doc. 14, R. 

at 216-33.) Plaintiff’s claims were denied initially on August 1, 2012 (R. at 88-89), and 

on reconsideration on March 5, 2013 (R. at 90-117). Plaintiff then testified via video 

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conference at a hearing held before an Administrative Law Judge (“ALJ”) on October 17, 

2013. (R. at 41-87.) On February 14, 2014, the ALJ denied Plaintiff’s claims. (R. at 16-

31.) The present appeal followed. 

 The Court has reviewed each page of the medical evidence in its entirety. As such, 

it is unnecessary to provide a full or abridged recitation here. The record is voluminous 

and the pertinent medical evidence will be discussed in addressing the issues raised by 

the parties. The Court notes that the ALJ found that Plaintiff has severe impairments of 

fibromyalgia, disc herniation of the lumbar spine, degenerative joint disease of the 

bilateral hips, left knee, and bilateral thumbs, obesity, bipolar disorder, and posttraumatic 

stress disorder (R. at 19) after considering medical records and opinions primarily from 

treating physician Dr. Devin Mikles,1

 treating psychiatrist Dr. Francis S. Gagliardi, state 

agency examining physician Dr. Lucia McPhee, state agency reviewing physician 

Dr. Clarence Ballard, examining psychiatrist Dr. Brent B. Geary, state agency reviewing 

psychologist Dr. Christal Janssen, and state agency reviewing physician Dr. Evette 

Burdich. 

II. ANALYSIS 

 In determining whether to reverse an ALJ’s decision, the district court reviews 

only those issues raised by the party challenging the decision. See Lewis v. Apfel, 236 

F.3d 503, 517 n.13 (9th Cir. 2001). The 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, but less than a preponderance; it is relevant evidence 

that a reasonable person might accept as adequate to support a conclusion considering the 

record as a whole. Id. To determine whether substantial evidence supports a decision, the 

court must consider the record as a whole and may not affirm simply by isolating a 

 

1

 Throughout the ALJ’s opinion, Plaintiff’s primary physician’s name is apparently misspelled as “Mickles.” (R. at 26.) While Defendant corrected this in its 

filing, Plaintiff vacillates between proper and improper spelling throughout her briefs (compare Pl.’s Br. at 10, with Pl.’s Br. at 11). Given the variation, the Court will use the 

spelling consistent with the entirety of the medical record. (E.g., R. at 1034-42.) 

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“specific quantum of supporting evidence.” Id. As a general rule, “[w]here the evidence 

is susceptible to more than one rational interpretation, one of which supports the ALJ’s 

decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 

(9th Cir. 2002) (citations omitted).

To determine whether a claimant is disabled for purposes of the 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). At the first step, the ALJ 

determines whether the claimant is presently 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. 20 C.F.R. § 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. Part 404. 20 C.F.R. 

§ 404.1520(a)(4)(iii). If so, the claimant is automatically found to be disabled. Id. If not, 

the ALJ proceeds to step four. Id. At step four, the ALJ assesses the claimant’s residual 

functional capacity (“RFC”) and determines whether the claimant is still capable of 

performing past relevant work. 20 C.F.R. § 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 in the national 

economy based on the claimant’s RFC, age, education, and work experience. 20 C.F.R. 

§ 404.1520(a)(4)(v). If so, the claimant is not disabled. Id. If not, the claimant is disabled. 

Id. 

 Plaintiff alleges two primary ALJ errors: (1) improperly rejecting or discounting 

the medical opinions of treating physicians, and (2) improperly rejecting Plaintiff’s 

reported symptoms and the observations of her friends. (Pl.’s Br. at 9-10.) 

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 A. The ALJ Erred in Weighing the Examining Physicians’ Opinions 

An ALJ “may only reject a treating or examining physician’s uncontradicted 

medical opinion based on clear and convincing reasons.” Carmickle v. Comm’r of Soc. 

Sec., 533 F.3d 1155, 1164 (9th Cir. 2008) (citation and quotation omitted). “Where such 

an opinion is contradicted, however, it may be rejected for specific and legitimate reasons 

that are supported by substantial evidence in the record.” Id. Even when contradicted, a 

treating physician’s opinion is still owed deference and may be “entitled to the greatest 

weight . . . even if it does not meet the test for controlling weight.” Garrison v. Colvin, 

759 F.3d 995, 1012 (9th Cir. 2014) (quoting Orn, 495 F.3d at 633). 

 1. Dr. Devin Mikles 

The ALJ discounted Dr. Mikles’s opinion, giving it little weight, because she 

found it inconsistent with the medical record. (R. at 26.) Plaintiff argues this was 

improper as the ALJ failed to suitably cite to the record or explain the alleged 

discrepancies. (Pl.’s Br. at 10-15.) Defendant responds that the ALJ supplied sufficient 

citation. (Def.’s Br. at 3-5.) The Court disagrees with Defendant. 

 Broadly, the Court does not find the ALJ’s reasons for rejecting Dr. Mikles’s 

opinion are specific and legitimate and supported by substantial evidence. The ALJ’s lack 

of specificity in identifying what opinion is inconsistent with which portion of the 

medical record belies any claim that specific and legitimate reasons were given. The 

ALJ’s bare assertion that Dr. Mikles’s opinion was not sufficiently supported by the 

treatment record or objective medical findings is not a proper reason, by itself, for 

rejection. See Embrey v. Bowen, 849 F.2d 418, 421–23 (9th Cir. 1988) (“To say that 

medical opinions are not supported by sufficient objective findings or are contrary to the 

preponderant conclusions mandated by the objective findings does not achieve the level 

of specificity our prior cases have required . . . . The ALJ must do more than offer his 

conclusions. He must set forth his own interpretations and explain why they, rather than 

the doctors’, are correct.”). Although the ALJ provided a few examples, she failed to 

tether those examples to specific portions of the record. (See R. at 26-27.) Without such 

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specificity, it is impractical—if not impossible—for the Court to determine whether the 

ALJ’s reasoning can be demonstrated by substantial evidence. Accordingly, the Court 

finds inadequate reasoning was supplied. In its place, the ALJ provided broad statements 

which are often at odds with the medical record, and as addressed below. 

 a. The ALJ’s Improper Reasoning 

 Where the ALJ has supplied specific examples, they are unavailing. For instance, 

the ALJ noted that Plaintiff’s examination revealed “little more than tenderness related to 

fibromyalgia and degenerative changes in her back and joints and intermittently reduced 

range of motion.” (Def.’s Br. at 4.) However, the records show far more than 

“tenderness.” There is ample evidence to support Dr. Mikles’s opinion, and the ALJ fails 

to illustrate how that evidence supports another conclusion. (See, e.g., R. at 453-55, 524-

25, 607, 792-96, 798, 800, 802, 807-09, 812, 827, 939-40, 945, 975-77, 1009, 1028, 

1235, 1243-46, 1288, 1293-1302, 1307-19, 1321-25, 1452.) Similarly, the ALJ observed 

that Plaintiff’s gait was “usually classified as normal and she just once seemed somewhat 

uncomfortable while seated.” (Def.’s Br. at 4.) The assessment of Plaintiff’s gait, 

however, varied and is not a direct symptom or limitation related to fibromyalgia. The 

ALJ also claimed a lack of a range of motion abnormalities—a symptom not associated 

with fibromyalgia—conflicted with Dr. Mikles’s stated postural limitations. (R. at 27.) 

The ALJ does not cite to any medical opinion—whether that of a treating, examining, or 

reviewing physician—that suggests that such symptoms or effects should be present 

given Plaintiff’s allegations. Without any such citations, the Court can only conclude that 

the ALJ substituted her own opinion for that of a medical professional, which is 

improper. See, e.g., Lapierre-Grut v. Astrue, 382 Fed. App’x 662, 665 (9th Cir. 2010). 

 As to the ALJ’s assessment that Plaintiff did not demonstrate the need to sit or 

change positions during her hearing, which would reflect Dr. Mikles’s opinion, Plaintiff’s 

hearing was not an eight-hour workday in a competitive environment on a sustained 

basis. As noted by the Ninth Circuit, the “sit and squirm” jurisprudence “has been 

condemned,” Perminter v. Heckler, 765 F.2d 870, 872 (9th Cir. 1985), and the denial of 

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Social Security benefits cannot be based on an ALJ’s observations that a claimant sat 

comfortably during an administrative hearing when the claimant’s statements to the 

contrary are supported by substantial evidence. Id. Moreover, Dr. Mikles often noted 

visible pain (R. at 1010, 1013, 1241, 1244, 1247, 1450) and Plaintiff had to stand up 

during the hearing (R. at 64). The ALJ failed to provide an explanation of how these 

findings contradicted Dr. Mikles’s opinion. 

 The Court also discards the ALJ’s conclusion that Dr. Mikles’s opinion was 

inconsistent with Plaintiff’s activities of daily living. Again, the ALJ failed to cite to any 

specific activity that conflicts with Dr. Mikles’s opinion. Defendant argues that 

Dr. Mikles’s opinion that Plaintiff can “sit, stand and walk less than 4 hours total” is 

contravened by Plaintiff’s work as a “companion once a week for 5-6 hours” and caring 

“for an autistic child once a week for 4 hours,” which they argue indicates “she has been 

regularly appearing at her jobs.” (Def.’s Br. at 5; R. at 27.) Further, Defendant and the 

ALJ cite to Plaintiff’s participation in a women’s AA group at a jail 1-2 times per month, 

care of a dog, leisure walks, swims, and some household chores as reasons to discredit 

Dr. Mikles’s estimation. (Def.’s Br. at 5.) However, neither the ALJ nor Defendant has 

explained how any of these activities require Plaintiff to sit, stand, and walk for more 

than four hours. Indeed, Plaintiff’s testimony and treatment notes show that her activities 

are punctuated by rest and last less than four hours, and Defendant points to no 

contradicting evidence. (R. at 47-51, 70, 1114-15, 1439.) Although Plaintiff’s companion 

work lasts five-to-six hours, this activity is completed in a home setting where Plaintiff’s 

need for rest, change of position, and leg repose is specifically accommodated. (See R. at 

47, 60, 70, 71.) Moreover, none of these activities demonstrate that Plaintiff is able to 

maintain a work schedule or otherwise contravene Dr. Mikles’s opinion. 

 To the degree the ALJ discounted Dr. Mikles’s opinion due to contradictions 

found in other opinions, the ALJ also failed to properly educe those incongruities. In 

stating that she was granting greater weight to the opinions of Dr. McPhee’s over that of 

Dr. Mikles’s, the ALJ did not cite to contradicting statements in the two opinions. (R. at 

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25.) Instead, the ALJ thought that Plaintiff’s report of limitation conflicted with 

Dr. McPhee’s opinion. (R. at 25.) Similarly confounding, while the ALJ gave little 

weight to Dr. Ballard’s opinion, which included that Plaintiff could stand and walk for six 

hours in an eight hour day, the ALJ granted significant weight to Dr. McPhee’s opinion, 

which included the same. (R. at 25-26.) Regardless, the ALJ has cited to no reason why 

Dr. McPhee’s opinion—or any other of the physician opinions—serves as adequate 

reasoning to discount Dr. Mikles’s diagnosis. 

 b. Defendant’s Justification 

 In various instances, Defendant has attempted to fill the gaps where the ALJ’s 

opinion lacks the requisite specificity to grant less weight to Dr. Mikles’s opinion. For 

example, Defendant notes that Dr. Mikles recorded that IV therapy injections had been 

“quite helpful” in treating fatigue and fibromyalgia. (Def.’s Br. at 4.) This observation is 

not present in the ALJ’s opinion and therefore the Court cannot know whether it was 

relied on by the ALJ. As such, Defendant cannot assert that it provides specific and 

legitimate reasoning or substantial evidence. Long-standing principles of administrative 

law require the Court to review the ALJ’s decision based on the factual findings and 

reasoning offered by the ALJ—not post hoc rationalizations that attempt to intuit what 

the ALJ may have thought. See SEC v. Chenery Corp., 332 U.S. 194, 196 (1947) (“[I]n 

dealing with a determination or judgment which an administrative agency alone is 

authorized to make, [courts] must judge the propriety of such action solely by the 

grounds invoked by the agency. If those grounds are inadequate or improper, the court is 

powerless to affirm the administrative action by substituting what it considers to be a 

more adequate or proper basis.”); Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014) 

(“[T]he government identifies other alleged inconsistencies between Claimant’s hearing 

testimony and her reported daily activities, such as knitting and lace work. But the ALJ 

did not identify those inconsistencies.”); Snell v. Apfel, 177 F.3d 128, 134 (2d Cir. 1999) 

(“The requirement of reason-giving exists, in part, to let claimants understand the 

disposition of their cases . . . .”). Like in Burrell, “we are constrained to review the 

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reasons the ALJ asserts.” Burrell, 775 F.3d at 1138. “Our decisions make clear that we 

may not take a general finding—an unspecified conflict between Claimant’s testimony 

about daily activities and her reports to doctors—and comb the administrative record to 

find specific conflicts.” Id. Defendant’s line of reasoning is not apparent from the ALJ’s 

decision. Even if Defendant has accurately captured the ALJ’s thinking, it is the ALJ that 

must explain her decision, not this Court. Accordingly, the Defendant’s attempt to 

rationalize the ALJ’s decision on Dr. Mikles’s opinion post hoc is unavailing. 

 c. Other Errors 

 The Court also finds error in the ALJ’s rejection of Dr. Mikles’s opinion on 

Plaintiff’s mental limitations. (See R. at 1353-54.) Like the ALJ’s rejection of 

Dr. Mikles’s other opinions, she provides little citation to support contradicting evidence. 

(See R. at 27.) Moreover, Defendant argues that the rejection of Dr. Mikles’s psychiatric 

assessments is proper because he is a primary care physician, not a psychiatric specialist. 

(Def.’s Br. at 7.) Despite this, Dr. Mikles’s opinion must still be afforded some weight 

and deference. Lester v. Chater, 81 F.3d 821, 833 (9th Cir. 1995) (treating physician’s 

opinion may not be discredited on the ground that he is not a psychiatrist). As 

Defendant’s own regulations recognize, treating physicians like Dr. Mikles bring a 

“unique perspective to the medical evidence.” 20 C.F.R. § 404.1527(d)(2).

 The ALJ also criticized Dr. Mikles’s opinion because it was on an issue reserved 

for determination by the Commissioner (R. at 27.) However, Dr. Mikles’s conclusions 

regarding Plaintiff’s abilities in spite of impairments are not a determination of disability. 

Even if they were, that is not, in itself, a legitimate reason for rejecting his entire opinion. 

See, e.g., Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (explaining that the 

Commissioner is not relieved of the obligation to state specific and legitimate reasons for 

rejecting a treating physician’s opinion even if the treating physician rendered an opinion 

on the ultimate issue of disability); Embrey, 849 F.2d at 421–22.

 Finally, the ALJ erred in discrediting Dr. Mikles’s opinion because it was “based 

largely on [Plaintiff’s] statements regarding her abilities rather than his own 

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observations.” (See R. at 27.) It is improper for an ALJ to discredit a physician’s opinion 

because the physician relied in part on a claimant’s subjective complaints when the 

physician did not personally cast any doubt on the validity of those complaints. 

Regenitter v. Comm’r of Soc. Sec., 166 F.3d 1294, 1300 (9th Cir. 1998). As the ALJ 

acknowledged, Dr. Mikles has treated Plaintiff for “several years.” (R. at 27.) Never 

during any of those visits did Dr. Mikles suggest that Plaintiff was “malingering or 

deceptive.” Regenitter, 166 F.3d at 1300. As such, the ALJ had no basis for substituting 

her own opinion for that of Plaintiff’s treating physician. 

 In sum, the Court finds that none of the ALJ’s reasons for rejecting Dr. Mikles’s 

opinion were specific and legitimate or supported by substantial evidence, and any 

attempt by Defendant to provide post hoc rationale cannot remedy this error. Tommasetti 

v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (when rejecting the opinion of a treating 

physician, the ALJ can meet his/her “burden by setting out a detailed and thorough 

summary of the facts and conflicting clinical evidence, stating [her] interpretation 

thereof, and making findings”) (internal citation and quotation omitted).2

 Accordingly, 

the ALJ erred in giving Dr. Mikles’s opinion less weight. 

 2. Dr. Francis S. Gagliardi 

As with Dr. Mikles’s opinion, Plaintiff argues that the ALJ provided insufficient 

citation and reasoning for assigning Dr. Gagliardi’s opinion “little weight.” (Pl.’s Br. at 

15-18.) Defendant again responds that adequate citation is present in the ALJ’s opinion. 

(Def.’s Br. at 5-6.) For the reasons that follow, the Court agrees with Plaintiff. 

 The ALJ again acknowledged that Dr. Gagliardi treated the Plaintiff “many times” 

but rejected his opinion on the grounds that it was inconsistent with the medical evidence. 

(R. at 28.) While Dr. Gagliardi found that Plaintiff has a moderately severe limitation to 

 

2

 The Court notes that it is far from clear that the ALJ’s cited contradictory sources—the medical record and Plaintiff’s reported activities—do in fact controvert 

Dr. Mikles’s opinion at all. Accordingly, the ALJ would be required to provide clear and convincing reasons, rather than merely specific and legitimate ones. It is clear, though, that Dr. Mickles’ opinion is at least partially contradicted by other opinions. Nonetheless, the ALJ in further proceedings should be cognizant of this discrepancy. 

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respond to customary work procedures, the ALJ stated that Plaintiff’s mental health 

examinations do not corroborate that claim and that Plaintiff’s daily activities, hobbies, 

interactions with others, and grooming contradict Dr. Gagliardi’s opinion. (R. at 28-29.) 

The ALJ failed, however, to provide specific citations or more detailed description of 

which activities or medical evidence contradicted which portion of Dr. Gagliardi’s 

opinion. Simply stating that no evidence supports the opinion is not enough, nor is listing 

activities without further explanation. While Defendant cites to Plaintiff’s mental status 

examinations, consultation examination, and the notation that Plaintiff was “fairly stable” 

when medicated, (Def.’s Br. at 6), these were not cited by the ALJ and it is unclear how 

these contradict Dr. Gagliardi’s opinion. (See R. at 28-29.) Further, the ALJ stated that 

there was no objective evidence regarding Dr. Gagliardi’s opinion on Plaintiff’s stress, 

but there are multiple findings of psychological exacerbation when stressed and other 

similar findings. (See, e.g., R. at 514-16, 520-23, 712-13, 828-29, 1458.) Similarly, the 

ALJ stated that Dr. Gagliardi’s opinion on social limitations was contradicted by the 

evidence that Plaintiff was well groomed and maintained personal habits. However, 

Dr. Gagliardi only found mild deterioration of such habits and there are ample notations 

in the record consistent with those findings. (See, e.g., R. at 336, 514-16, 1075-76, 1154-

55, 1220-21.) Moreover, these findings were wholly consistent with other opinions, 

including those which the ALJ gave “significant weight” (R. at 27-28) and Dr. Mikles’s 

improperly rejected assessment (R. at 29.) The ALJ also found no evidence of 

psychomotor slowing, but all examinations note slowed pace. (R. at 790-91, 911, 1003.) 

Ultimately, the ALJ erred by failing to provide specific and legitimate reasons for 

rejecting Dr. Gagliardi’s opinion, and to sufficiently substantiate the reasons she gave. 

B. The ALJ Erred in Analyzing Plaintiff’s Credibility and Testimony 

Plaintiff also argues that the ALJ erred in rejecting Plaintiff’s testimony as only 

partially credible without citing “clear and convincing reasons” for doing so and 

supporting that finding with substantial evidence to explain what undermined the 

testimony. (Pl.’s Br. at 20.) Defendant responds that the inconsistencies between 

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Plaintiff’s allegations and the medical evidence, conservative treatment, and daily 

activities provide adequate reasoning and evidence to find Plaintiff only partially 

credible. (Def.’s Br. at 7.) Plaintiff also faults the ALJ’s discounting of lay witness 

testimony for the same reason. (Pl.’s Br. at 21.) On both points, the Court agrees with 

Plaintiff. 

 1. Plaintiff’s Testimony 

 When evaluating a claimant’s pain testimony where the claimant has produced 

objective medical evidence of an underlying impairment, “an ALJ may not reject a 

claimant’s subjective complaints based solely on a lack of medical evidence to fully 

corroborate the alleged severity of pain.” Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 

2005). Unless there is evidence that the claimant is malingering, the ALJ must provide 

clear and convincing reasons for rejecting pain testimony. Id. The ALJ made no finding 

of malingering and appears to have concluded that Plaintiff’s impairments may 

reasonably be expected to cause her alleged symptoms. (See R. at 23.) Accordingly, the 

ALJ was obligated to provide clear and convincing reasons for rejecting Plaintiff’s 

testimony. Burch, 400 F.3d at 680. The Court acknowledges that the ALJ cites specific 

evidence in the record and does give some weight to Plaintiff’s pain testimony. But the 

Court does not find that the ALJ provides clear and convincing reasons for finding 

Plaintiff not fully credible, nor does she adequately cite which testimony was rejected or 

what contradictions substantiated that rejection.

 The ALJ found that Plaintiff’s testimony is contradicted by the fact that her 

physical examinations were “largely normal”—other than “persistent tender points and 

carpometacarpal joint deformities, as well as intermittent pain in lumbar region, bilateral 

hips, and left knee.” (R. at 24.) Of course, all claimants’ examinations would be largely 

normal if discounting their medical conditions. Moreover, this portion of the ALJ opinion 

apparently fails to consider some of Plaintiff’s most pertinent diagnoses and the 

symptoms thereof—fibromyalgia and mental illness—further suggesting that Plaintiff’s 

testimony is not inconsistent with the medical record. (R. at 24.) The ALJ cannot reject 

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Plaintiff’s subjective complaints solely because the medical evidence only partially 

supports her complaints. See Burch, 400 F.3d at 680. The medical record may be open to 

interpretation as to Plaintiff’s pain symptoms. But this is almost always the case, as pain 

is subjective and the “amount of pain caused by a given physical impairment can vary 

greatly from individual to individual.” Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 

1996). This is particularly true with some of Plaintiff’s diagnoses. See, e.g., Benecke v. 

Barnhart, 379 F.3d 587 (9th Cir. 2004). Although credibility determinations are the 

province of the ALJ, the Court finds that the ALJ here did not provide adequate reasoning 

for rejecting Plaintiff’s testimony vis-a-vis the medical record. 

 Plaintiff also argues that the ALJ’s statement that “conservative care impugns 

symptom credibility” is also error. (Pl.’s Br. at 22-23; Reply at 13.) The Court agrees. 

The ALJ does not provide any support for this finding and fails to cite any evidence that 

Plaintiff declined to comply with any recommended treatment by a physician. Even were 

such refusals present in the ALJ’s opinion, only in some circumstances can refusal to 

comply with recommended treatment indicate that a claimant is not as impaired as 

alleged. If an impairment does not lend itself to aggressive treatment, however, faulting a 

claimant for not obtaining aggressive treatment is not logical. See Sarchet v. Chater, 78 

F.3d 305, 306 (7th Cir. 1996) (fibromyalgia’s “causes are unknown, there is no cure, and, 

of greatest importance to disability law, its symptoms are entirely subjective”). The 

record demonstrates that Plaintiff has been prescribed many medications to treat her 

impairments and symptoms. (See, e.g., R. at 1220-21, 1348-50, 1069-70.) Further, the 

ALJ’s statement that Plaintiff’s pain treatment consists largely of “oral pain medications” 

(R. at 24) does not, by itself, connote conservative care, particularly when such 

medication includes oxycodone. (R. at 1069-70.) Plaintiff also detailed 17 separate, 

invasive injection procedures, of which the ALJ only cited five.3

 (Compare R. at 24 with 

Pl.’s Br. at 22-23 (citing R. at 600, 607, 648, 524-25, 823, 827, 1028, 1243-48, 1287-92, 

 

3

 The ALJ seems to cumulatively acknowledge up to eight total injections, which nonetheless significantly discounts the number Plaintiff presents. 

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1293-1310, 1311-14, 1321-25, 1452-53).) This treatment plan is entirely consistent with 

the conclusion that Plaintiff’s management is not the most conservative, even where her 

impairment may not lend itself to more aggressive treatment. 

 Similarly, the ALJ improperly rejected Plaintiff’s testimony on the grounds it was 

at odds with her reported daily activities. The Ninth Circuit “has repeatedly asserted that 

the mere fact that a plaintiff has carried on certain daily activities . . . does not in any way 

detract from her credibility as to her overall disability.” Orn, 495 F.3d at 639 (quotation 

omitted). The Ninth Circuit specified “the two grounds for using daily activities to form 

the basis of an adverse credibility determination:” (1) whether or not they contradict the 

claimant’s other testimony and (2) whether or not the activities of daily living meet “the 

threshold for transferable work skills.” Orn, 495 F.3d at 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.” Id. at 639 

(quotation omitted). However, the ALJ cited the fact that Plaintiff took part in daily 

activities at home and worked about ten hours a week as a caregiver as contradictory to 

Plaintiff’s pain testimony. (R. at 24). The ALJ did not make any precise finding that any 

of Plaintiff’s specific activities were not commensurate with her symptom testimony and 

did not make any finding that her activities of daily living were transferable to a work 

setting. Therefore, the ALJ was required to demonstrate that Plaintiff’s activities 

contradicted her other testimony in order to rely on her daily activities as a basis to not 

fully credit her testimony. See Orn, 495 F.3d at 639. The ALJ did not do so. 

 2. Plaintiff’s Friends’ Observations 

 The ALJ also erred in rejecting the lay witness testimony. While an ALJ need only 

provide “arguably germane reasons” for dismissing such testimony, Lewis v. Apfel, 236 

F.3d 503, 512 (9th Cir. 2001), the sole reason the ALJ (and Defendant) provided for 

discounting that testimony is that it echoed Plaintiff’s, which the ALJ found incredible. 

(R. at 25.) The Court has already found that the ALJ’s rejection of Plaintiff’s credibility 

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was error. Thus, the ALJ’s sole reason for discounting the testimony is not a germane 

one. 

 C. The Credit-As-True Rule Does Not Apply

 Plaintiff asks that the Court apply the “credit-as-true” rule which would result in 

remand of Plaintiff’s case for payment of benefits rather than remand for further 

proceedings. (Pl.’s Br. at 19.) The credit-as-true rule only applies in cases that raise “rare 

circumstances” which permit the Court to depart from the ordinary remand rule under 

which the case is remanded for additional investigation or explanation. Treichler v. 

Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099–1102 (9th Cir. 2014). These rare 

circumstances arise when three elements are present. First, the ALJ fails to provide 

legally sufficient reasons for rejecting medical evidence. Id. at 1100. Second, the record 

must be fully developed, there must be no outstanding issues that must be resolved before 

a determination of disability can be made, and further administrative proceedings would 

not be useful. Id. at 1101. Further proceedings are considered useful when there are 

conflicts and ambiguities that must be resolved. Id. Third, if the above elements are met, 

the Court may “find[] the relevant testimony credible as a matter of law . . . and then 

determine whether the record, taken as a whole, leaves ‘not the slightest uncertainty as to 

the outcome of [the] proceeding.’” Id. (citations omitted). 

 In this case, the ordinary remand rule applies. This case still involves evidentiary 

conflicts that must be resolved, particularly in light of this Court’s determination that the 

ALJ erred in finding Plaintiff not credible and assigning little weight to the treating 

physician’s opinion. Given these outstanding issues, it is evident that there is still 

uncertainty as to the outcome of the proceeding. Accordingly, the ordinary remand rule, 

not the credit-as-true rule, applies. 

IT IS THEREFORE ORDERED reversing the February 14, 2014, decision of 

the Administrative Law Judge, (R. at 16-31), and remanding this matter for further 

proceedings consistent with this Order. 

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

accordingly and close this matter. 

 Dated this 15th day of February, 2017. 

Honorable John J. Tuchi

United States District Judge 

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