Vazquez v. Saul

Filing 23

MEMORANDUM DECISION AND ORDER Petitioner's Petition for Review (Dkt. 1 ) is GRANTED, the decision of the Commissioner is REVERSED, and this action is REMANDED to the Commissioner of Social Security under sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this opinion. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO
Case No.: 1:19-cv-00240-REB

JEAN V.,
Petitioner,

MEMORANDUM DECISION AND
ORDER

vs.
ANDREW SAUL,
Commissioner of Social Security,
Respondent.

Pending is Petitioner Jean Vazquez’s Petition for Review (Dkt. 1), appealing the Social
Security Administration’s final decision finding her not disabled and denying her claim for
disability insurance benefits. See Pet. for Review (Dkt. 1). This action is brought pursuant to 42
U.S.C. § 405(g). Having carefully considered the record and otherwise being fully advised, the
Court enters the following Memorandum Decision and Order.
I. ADMINISTRATIVE PROCEEDINGS
On May 18, 2016, Petitioner Jean Vazquez (“Petitioner”) protectively applied for Title II
disability and disability insurance benefits. (AR 15.) Petitioner alleged disability beginning
June 1, 2016. (Id.) Her claims were denied initially on October 20, 2016 and then again on
reconsideration on January 31, 2017. (Id.) On March 15, 2017, Petitioner timely filed a written
request for hearing before an Administrative Law Judge (“ALJ”). (Id.) Petitioner testified at a
hearing held on February 15, 2018 in Boise, Idaho. (Id.) Impartial vocational expert Anne T.
Arrington also appeared and testified at the hearing. (Id.)
On July 26, 2018, ALJ David Willis issued a decision denying Petitioner’s claim, finding
that Petitioner was not disabled within the meaning of the Social Security Act during the period
from her alleged onset date through the date of his decision. (AR 24.) Petitioner timely

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requested review from the Appeals Council on September 18, 2018. (AR 154). On April 30,
2019, the Appeals Council denied Petitioner’s Request for Review, making the ALJ decision the
final decision of the Commissioner of Social Security. (AR 1.)
Having exhausted administrative remedies, Petitioner filed this case. She contends that
“[t]he decision denying Petitioner’s claim is not in accordance with the purpose and intent of the
Social Security Act, nor is it in accordance with the law, nor is it in accordance with the
evidence, but contrary thereto and to the facts and against the evidence, in that Petitioner is
disabled from performing substantial gainful activity.” Pet. for Review 2 (Dkt. 1). Petitioner
argues that the ALJ erred by ignoring and improperly weighing objective medical evidence, by
improperly discounting Petitioner’s credibility, and by assigning an RFC unsupported by the
record. See generally Pet.’s Mem. (Dkt. 18). Petitioner asks that the case be reversed and
remanded for a direct award of benefits. See id. at 19–20.
II. STANDARD OF REVIEW
To be upheld, the Commissioner’s decision must be supported by substantial evidence
and based on proper legal standards. 42 U.S.C. § 405(g); Trevizo v. Berryhill, 871 F.3d 664 (9th
Cir. 2017). Findings as to any question of fact, if supported by substantial evidence, are
conclusive. 42 U.S.C. § 405(g). In other words, if there is substantial evidence to support the
ALJ’s factual decisions, they must be upheld, even when there is conflicting evidence. See
Treichler v. Comm’r of Social Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014).
“Substantial evidence” 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); Ludwig v.
Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012). The standard requires more than a scintilla but less

MEMORANDUM DECISION AND ORDER – 2

than a preponderance (Trevizo, 871 F.3d at 674), and “does not mean a large or considerable
amount of evidence.” Pierce v. Underwood, 487 U.S. 552, 565 (1988).
With respect to questions of fact, the Court is to review the record as a whole to decide
whether it contains evidence that would allow a person of a reasonable mind to accept the
conclusions of the ALJ. Richardson, 402 U.S. at 401; see also Ludwig, 681 F.3d at 1051. The
ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and
resolving ambiguities. Treichler, 775 F.3d at 1098. Where the evidence is susceptible to more
than one rational interpretation, the reviewing court must uphold the ALJ’s findings if they are
supported by inferences reasonably drawn from the record. Ludwig, 681 F.3d at 1051. In such
cases, the reviewing court may not substitute its judgment or interpretation of the record for that
of the ALJ. Batson v. Comm’r of Social Sec., 359 F.3d 1190, 1196 (9th Cir. 2004).
The decision must be based on proper legal standards and will be reversed for legal error.
Zavalin v. Colvin, 778 F.3d 842, 845 (9th Cir. 2015); Treichler, 775 F.3d at 1098. Considerable
weight is given to the ALJ’s construction of the Social Security Act. See Vernoff v. Astrue, 568
F.3d 1102, 1105 (9th Cir. 2009). However, this Court “will not rubber-stamp an administrative
decision that is inconsistent with the statutory mandate or that frustrates the congressional
purpose underlying the statute.” Smith v. Heckler, 820 F.2d 1093, 1094 (9th Cir. 1987).
III. DISCUSSION
A.

Sequential Process
In evaluating the evidence presented at an administrative hearing, the ALJ must follow a

sequential process in determining whether a person is disabled in general (20 C.F.R. §§
404.1520, 416.920) – or continues to be disabled (20 C.F.R. §§ 404.1594, 416.994) – within the
meaning of the Social Security Act.

MEMORANDUM DECISION AND ORDER – 3

The first step requires the ALJ to determine whether the claimant is engaged in
substantial gainful activity (“SGA”). 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). SGA is
work activity that is both substantial and gainful. 20 C.F.R. §§ 404.1572, 416.972. “Substantial
work activity” is work activity that involves doing significant physical or mental activities. 20
C.F.R. §§ 404.1572(a), 416.972(a). “Gainful work activity” is work that is usually done for pay
or profit, whether or not a profit is realized. 20 C.F.R. §§ 404.1572(b), 416.972(b). If the
claimant is engaged in SGA, disability benefits are denied regardless of her medical condition,
age, education, and work experience. 20 C.F.R. §§ 404.1520(b), 416.920(b). If the claimant is
not engaged in SGA, the analysis proceeds to the second step. Here, the ALJ found that
Petitioner did not engage in substantial gainful activity during the period from her alleged onset
date of June 1, 2016 through the date of the ALJ’s decision. (AR 17.)
The second step requires the ALJ to determine whether the claimant has a medically
determinable impairment, or combination of impairments, that is severe and meets the duration
requirement. 20 C.F.R. § 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An impairment or combination
of impairments is “severe” within the meaning of the Social Security Act if it significantly limits
an individual’s physical or mental ability to perform basic work activities. 20 C.F.R.
§§ 404.1520(c), 416.920(c). An impairment or combination of impairments is “not severe” if it
does not significantly limit the claimant’s physical or mental ability to do basic work activities.
20 C.F.R. §§ 404.1522, 416.922. If the claimant does not have a severe medically determinable
impairment or combination of impairments, disability benefits are denied. 20 C.F.R.
§§ 404.1520(c), 416.920(c). Here, the ALJ found that, as of the date of his decision, Petitioner
had the following severe impairments: “inflammatory arthritis, osteoarthritis, lumbar
degenerative disc disease, and obesity.” (AR 17.)

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The third step requires the ALJ to determine the medical severity of any impairments;
that is, whether the claimant’s impairments meet or equal a listed impairment under 20 C.F.R.
Part 404, Subpart P, Appendix 1. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the
answer is yes, the claimant is considered disabled under the Social Security Act and benefits are
awarded. 20 C.F.R. §§ 404.1520(d), 416.920(d). If the claimant’s impairments neither meet nor
equal a listed impairment, the claim cannot be resolved at step three and the evaluation proceeds
to step four. 20 C.F.R. §§ 404.1520(e), 416.920(e). Here, the ALJ found that Petitioner did not
have an impairment or combination of impairments that met or medically equaled the severity of
one of the listed impairments. (AR 19–21.)
In the fourth step of the evaluation process, the ALJ decides whether the claimant’s
residual functional capacity (“RFC”) is sufficient for the claimant to perform past relevant work.
20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). An individual’s RFC is her ability to do
physical and mental work activities on a sustained basis despite limitations from her
impairments. 20 C.F.R. §§ 404.1545, 416.945. An individual’s past relevant work is work she
performed within the last 15 years or 15 years prior to the date that disability must be
established, if the work was substantial gainful activity and lasted long enough for the claimant
to learn to do the job. 20 C.F.R. §§ 404.1560(b), 404.1565, 416.960(b), 416.965. Here, the ALJ
found that Petitioner had the RFC to perform:
light work as defined in 20 CFR 404.1567(h) except she can lift/carry/push/pull 20
pounds occasionally and 10 pounds frequently. She can sit up to 6 hours per 8-hour
workday, and stand and/or walk up to 6 hours per 8-hour workday. She requires a
sit/stand option as follows: after standing and/or walking 45 minutes, she would
need to sit for 15 minutes before resuming standing and/or walking. She can
occasionally stoop, kneel, and climb ramps/stairs. She can never crouch, crawl, or
climb ladders/ropes/scaffolds. She can occasionally reach overhead, and she can
frequently reach in all other directions. She can frequently handle and finger. She
must avoid all exposure to unprotected heights and moving mechanical

MEMORANDUM DECISION AND ORDER – 5

parts/machinery. She cannot operate a motor vehicle as part of employment. In
addition to normal breaks, she will be off task 5% during an 8-hour workday.
(AR 21.) Based on this RFC, the ALJ further found that Petitioner was not capable of
performing any past relevant work. (AR 22–23.)
In the fifth and final step, if it has been established that a claimant can no longer perform
past relevant work because of her impairments, the burden shifts to the Commissioner to show
that the claimant retains the ability to do alternate work and to demonstrate that such alternate
work exists in significant numbers in the national economy. 20 C.F.R. §§ 404.1520(a)(4)(v),
416.920(a)(4)(v), 404.1520(f), 416.920(f); see also Garrison v. Colvin, 759 F.3d 995, 1011 (9th
Cir. 2014). If the claimant can do such other work, she is not disabled; if the claimant cannot do
other work and meets the duration requirement, she is disabled.
The ALJ found that through the date of the decision, and considering age, education,
work experience, and RFC, Petitioner could perform the requirements of representative
occupations such as “cashier (seated),” “arcade attendant,” and “mail clerk.” (AR 23–24.) The
ALJ further found that these jobs exist in significant numbers in the national economy. (Id.)
Based on the finding that Petitioner could perform jobs that exist in significant numbers
in the national economy, the ALJ ultimately concluded that Petitioner “has not been under a
disability, as defined in the Social Security Act,” from the alleged onset date through the date of
the decision. (AR 24.)
B.

Analysis
Petitioner raises three primary issues. First, the ALJ ignored and improperly weighed

objective medical evidence. Second, the ALJ improperly discredited her subjective testimony.
Third, the ALJ erred by assigning an RFC that is not supported by the record. See generally
Pet.’s Mem. (Dkt. 18). Each argument will be addressed in turn.

MEMORANDUM DECISION AND ORDER – 6

1. The ALJ Erred by Ignoring Objective Medical Evidence.
Petitioner contends the ALJ erred by ignoring significant relevant objective evidence,
contrary to SSR 96-8. Per that SSR,
In all cases in which symptoms, such as pain, are alleged, the RFC assessment must:
 Contain a thorough discussion and analysis of the objective medical and other
evidence, including the individual’s complaints of pain and other symptoms…;
 Include a resolution of any inconsistencies in the evidence as a whole; and
 Set forth a logical explanation of the effects of the symptoms, including pain,
on the individual’s ability to work.
The RFC assessment must include a discussion of why reported symptom-related
functional limitations and restrictions can or cannot reasonably be accepted as
consistent with the medical and other evidence.
SSR 96-8P at *7, 1996 WL 374184 (July 2, 1996). More broadly, SSR 96-8 provides that “[t]he
RFC assessment must be based on all of the relevant evidence in the case record,” including,
inter alia, the claimant’s “[m]edical history” and the “[e]ffects of symptoms, including pain, that
are reasonably attributed to a medically determinable impairment.” Id. at *5 (emphasis in
original).
Petitioner contends the ALJ’s RFC analysis “focused primarily on objective evidence of
Petitioner’s inflammatory arthritis and treatment while ignoring substantial evidence of
Petitioner’s other medically determinable impairments.” Pet.’s Br. 8 (Dkt. 18). She takes issue
with the ALJ stating “[m]oreover, her objective findings remained stable and unremarkable over
the entire period at issue,” (AR 22), because she says the ALJ did not discuss which objective
evidence was stable and unremarkable. She argues the ALJ’s RFC assessment could not be
based on substantial evidence if he did not discuss any reasoning for ignoring significant
objective evidence.
Specific evidence of Petitioner’s argument is contained in a quote she offers from a May
2014 medical record, two years prior to her alleged onset date, in which rheumatologist Dr. Kelly

MEMORANDUM DECISION AND ORDER – 7

Timmons noted “if we make the diagnosis of rheumatoid arthritis this does not explain all of her
pain. She appears to have trochanteric bursitis as well as chronic back pain that are separate
issues.” (AR 273.) Dr. Timmons was not able to identify any active joint inflammation at that
time but noted a high CCP antibody titer and family history of rheumatoid arthritis. (AR 269.)
As a result, he urged Petitioner to follow up if her symptoms worsened and he suggested she
might benefit from attending a pain clinic. (Id.)
In October 2015, Petitioner visited her primary care physician, Dr. Jay H. Hansen, who
documented her complaint of progressively-worsening joint pains, particularly in her hands.
(AR 572.) He also noted enlargement of the MCP and PIP joints in both hands upon
examination. (AR 573.) As a result of Petitioner’s complaints and his exam, Dr. Hansen
referred Petitioner to a rheumatologist (other than Dr. Timmons) for a second opinion. (AR
572.)
In February 2016, still some three months prior to her alleged onset date, Petitioner
presented to rheumatologist Dr. Gregory J. Wilson. (AR 314.) In addition to noting objective
risk factors for rheumatoid arthritis, Dr. Wilson also noted “[m]ultiple fibromyalgia tender points
positive” on exam (AR 316) and he indicated “concern[] about a component of fibromyalgia”
that “would explain her widespread pain” (AR 317). With regard to Petitioner’s complaint of
foot pain, he “suspect[ed] this is more mechanical as she has obvious pes planus which likely is
contributing to her symptoms,” but based on her having been seen by multiple providers for this
issue, he did not think referral to an orthopedic podiatrist would be helpful. (Id.)
At a follow-up visit with Dr. Wilson a month later, he assessed her for joint pain, vitamin
D deficiency, and fibromyalgia and he recorded in his note “I feel this patient has fibromyalgia.”
(AR 311.)

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The ALJ did not find that fibromyalgia was a severe impairment. His decision does not
discuss fibromyalgia at all. He does not refer to Petitioner’s visits to Dr. Wilson from prior to
her alleged onset date, and the only reference to a September 16 follow-up visit (after the alleged
onset date) quotes a portion of a record saying Petitioner “was in no acute distress, and her mood
and affect were appropriate.” (AR 22, citing AR 346–348.) Dr. Wilson’s September 2016
record does not mention fibromyalgia by name.
Petitioner contends that “by ignoring substantial evidence of fibromyalgia, instead
relying on normal hand ultrasounds related to inflammatory arthritis, the ALJ misunderstood the
root cause of Petitioner’s complaints related to widespread pain, particularly in her hands…. The
ALJ provided no analysis regarding Petitioner’s fibromyalgia diagnosis or treatment….
Accordingly, the ALJ missed the mark when he brushed past the fibromyalgia diagnosis by
focusing instead on normal studies for inflammatory arthritis.” Pet.’s Br. 9–10 (Dkt. 18).
More broadly, Petitioner contends the ALJ “seemingly abandoned analysis of Petitioner’s
other severe impairments and the substantial objective evidence once he reached his conclusion
that the inflammatory arthritis was not supported by objective evidence.” Id. at 10. She argues
the ALJ failed to differentiate her osteoarthritis locations which included her cervical spine,
lumbar spine, feet, and knees, all of which cause separate limitations. She also recounts x-ray
imaging of her feet taken in 2014, 2015, and 2017 which she contends show progressive foot
osteoarthritis. She disputes the ALJ’s assertion that the “objective evidence remained stable and
unremarkable” in light of such x-rays, and she faults the decision for providing no analysis
regarding her subjective foot complaints or the corresponding objective evidence. She also notes
the ALJ does not discuss how progressive foot osteoarthritis would allow standing and walking
for 45 minutes at a time.

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Petitioner then goes through the same process with respect to cervical spine x-rays and
lumbar spine x-rays, detailing objective records that she says cannot fairly be described as
“unremarkable.” A 2016 x-ray documents “[a]dvanced degenerative disc disease C5–C6.” (AR
333.) A December 2016 MRI record identifies issues throughout her lumbar spine (AR 537–
538) with the concluding impression reached by Dr. Adam S. Maxfield of “[m]ultilevel
degenerative changes of the lumbar spine.” (AR 538.) None of her physicians described this
MRI, Petitioner retorts, as unremarkable. Instead, she quotes Dr. Wilson’s May 2017 report that
that her “[i]maging is consistent with degenerative changes. She has failed PT. If she fails
interventional pain management, she may need to consider evaluation by neurosurgery.” (AR
508.) Petitioner also highlights that the ALJ “provided no analysis of how objective evidence of
lumbar degeneration which led to escalating treatment was unremarkable or would allow
Petitioner to complete an eight-hour work day at light exertional levels.” Pet.’s Br. 12 (Dkt. 18).
Finally, Petitioner draws upon a May 2017 MRI of her right knee that was conducted
because of chronic knee pain. That MRI revealed osteoarthritis as well as a “[c]omplex tear of
the body and posterior horn of the lateral meniscus.” (AR 505.) Although the ALJ “briefly
acknowledged” this MRI, Petitioner contends he “made no effort to discuss how a meniscal tear
and osteoarthritis, in conjunction with the entire record, would allow the Petitioner to stand and
or walk for 45 minutes at one time.” Pet.’s Br. 12 (Dkt. 18.)
For his part, Respondent posits that the ALJ reasonably considered the objective
evidence. The “only records cited by [Petitioner] that the ALJ allegedly ‘ignored’ predate the
alleged onset date of June [1,] 2016,” and medical records predating the alleged onset date, he
contends, are of limited relevance. Respt.’s Br. 3 (Dkt. 20). Respondent argues that an ALJ
need only explain why “significant probative evidence” has been rejected and the records

MEMORANDUM DECISION AND ORDER – 10

Petitioner cites do not qualify. Thus, he argues, there was no need for the ALJ to discuss the
records Petitioner highlights.
Respondent next contends that a doctor indicating, prior to the alleged onset date, that a
claimant may have fibromyalgia is inapposite to the issues to be reviewed by this Court. He cites
to SSR 12-2p, 2012 WL 3104869 (July 25, 2012), as support for his position as to the nature of
the evidence a claimant must present to establish that she has a medically determinable
impairment of fibromyalgia. He says Petitioner did not produce such evidence here.
Respondent’s remaining argument frames Petitioner’s position as merely arguing for a
different interpretation of the objective evidence. Respondent correctly notes that if the ALJ’s
decision is supported by substantial evidence, then the supportability of an alternative
interpretation of the evidence is irrelevant. He stresses that in disability cases it is the claimant’s
burden to prove she is disabled under the law, rather than Respondent’s burden to prove she is
not disabled.
Although Respondent correctly states the law, his arguments applying the law to the facts
of this case do not persuade. Petitioner has emphasized specific, objective, medical records that
are highly relevant and yet the ALJ either overlooks or gives minimal (and inadequate)
consideration and discussion to such evidence. Respondent is mistaken to say that the only
records Petitioner cited as examples of the ALJ ignoring relevant evidence are records that
predate the alleged onset date – Petitioner refers expressly to imaging studies taken after such
date. (AR 535, 393, 537–538, 504.) Although the ALJ did refer to some of these records, he did
not discuss them thoroughly and he tended to ignore the relevant objective evidence highlighted
in them by Petitioner.

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As to fibromyalgia, the ALJ concluded that Petitioner had not established fibromyalgia as
a medically determinable impairment. Petitioner argues that Dr. Wilson’s records satisfy SSR
12-2p and therefore do establish the fact of fibromyalgia, but the Court disagrees.1 However,
whether fibromyalgia was a medically determinable impairment is not a primary issue. Rather,
the issue is whether the ALJ erred by not discussing fibromyalgia in his decision. The Court
concludes the failure to address the question of fibromyalgia was error. Fibromyalgia warranted
mention in the ALJ’s decision because it was implicated in a record just a few months prior to
the alleged onset date and because of its inescapable relevance to Petitioner’s subjective
allegations of pain.
More fundamentally, and as a separate instance of error, the ALJ’s decision is not
supported by substantial evidence in that it fails to discuss significant probative evidence. The
ALJ recited that Petitioner “was in no acute distress, and her mood and affect were appropriate”
at one visit as evidence that “near the alleged onset date, objective medical evidence was
unremarkable and not consistent with her complaints of severe and persistent joint pain with
swelling.” (AR 22.) He went on to say that “her objective findings remained stable and
unremarkable over the entire period at issue,” again citing medical records that “she remained
alert, oriented, and in no acute distress. Further, her mood and affect were always appropriate.”
(Id.)
But the ALJ did not adequately support his finding that objective findings were “stable”
or “unremarkable,” if indeed it was possible to do so. Petitioner set out multiple examples of

1

In addition to other reasons not stated here, SSR 12-2p requires “[a]t least 11 positive
tender points on physical examination” and Dr. Wilson’s record vaguely notes “[m]ultiple
fibromyalgia tender points positive” (AR 316, emphasis added) without establishing that there
were at least 11 such points.

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significant, probative, objective, record evidence that is at odds with the ALJ’s terse findings,
including progressive foot osteoarthritis and evidence of lumbar degeneration.
It is not the ALJ’s duty to discuss every piece of evidence in the record – even every
relevant piece of evidence. But it is the ALJ’s duty to support his decision with record evidence,
and he did not do so adequately here. Petitioner has established that the ALJ’s decision is not
supported by substantial evidence in that he has not sufficiently explained his finding that
Petitioner’s objective findings were “stable and unremarkable.”
Importantly, this is not a reweighing of the evidence to reach a different conclusion than
the ALJ did, by either Petitioner or by the Court. Indeed, the Court draws no conclusion
regarding whether the ALJ’s findings could have been supported by the record had they been
discussed more thoroughly. Rather, the error is that the ALJ made an express finding that
Petitioner’s objective findings were stable and unremarkable, but he did not adequately discuss
the evidence relevant to such finding and Petitioner has shown through argument that there is
substantial evidence tending to undermine such finding. For his decision to survive scrutiny, the
ALJ needed to address the significant probative evidence that was inconsistent with his finding.
He did not do so, and his decision is therefore in error.
2. The ALJ Erred by Improperly Discounting Petitioner’s Credibility.
Next, Petitioner argues the ALJ erred in his treatment of Petitioner’s testimony regarding
the severity of her symptoms. To reject a claimant’s credibility, the ALJ must offer “specific,
clear and convincing reasons” for doing so. Trevizo, 871 F.3d at 678. “General findings are
insufficient; rather, the ALJ must identify what testimony is not credible and what evidence
undermines the claimant’s complaints.” Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995).

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Regarding Petitioner’s credibility, the ALJ found that Petitioner’s “statements concerning
the intensity, persistence and limiting effects of [her] symptoms are not entirely consistent with
the medical evidence and other evidence in the record.” (AR 21–22.) He referred to medical
records from September 2016 and January 2017 that showed no joint inflammation as well as
various other negative signs for inflammatory arthritis. He also said, “her pain decreased about
80% with injections and physical therapy,” citing records from January and March 2017. (AR
22, citing AR 517, 637.)
However, in the first of these records Petitioner’s primary care physician Dr. Hansen
wrote that:
Most recently, she has noticed increasing discomfort in the back. MRI was
obtained in December which showed degenerative changes. She has established
with physical therapy and pain management. They have injected the back and she
has noticed improvement. She is noticing some degree of discomfort in the hips.
She still has whole body pain. Her legs will hurt when she walks. She is noticing
some pain in the fingers. She notes stiffness in the low back time to time….
(AR 517.) The ALJ chose to highlight the statement that Petitioner had “noticed improvement,”
but completely left out any discussion of the context of such a statement – a context that
contained multiple statements that were completely supportive of the “intensity, persistence and
limiting effects of her symptoms….”
In the second record cited by the ALJ, from the observations of Dr. Bradley P. Bretz,
Petitioner was described as having had “2 sets of diagnostic medial branch blocks L2-L5
bilaterally. With each procedure she received greater than 80% pain reduction and the duration
of the relief was appropriate for the local anesthetic used.” (AR 637.) Under a heading labeled
“Plan” on the same page, this record notes that Petitioner “will be scheduled for radio frequency
ablation L2-L5 bilaterally….” (Id.)

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Petitioner makes a cogent criticism of the ALJ’s reliance upon the indication of “80%
pain reduction” because he makes no mention of the fact that such pain reduction resulted from
pain relieving injections given to her as part of a diagnostic procedure used to assess her
candidacy for a different, longer-term procedure. That is, she argues “[t]he injections were not
intended to permanently relieve Petitioner’ pain, rather they were a diagnostic tool to determine
if nerve ablation would be effective.” Pet.’s Br. 16 (Dkt. 18). To make that point clear,
Petitioner refers to Dr. Bretz’s June 2017 follow-up record containing the same “80% pain
reduction” language the ALJ quoted but which then continues on with the results of the nerve
ablation procedure:
She has had 2 sets of diagnostic medial branch blocks L2-L5 bilaterally.
With each procedure she received greater than 80% pain reduction and the duration
of the relief was appropriate for the local anesthetic used. March 9, 2017 she had
radio frequency ablation L2-L5 bilaterally. Her pain is about the same that it was
prior to the procedure.
(AR 648 (emphasis added).) Petitioner also testified at the hearing that the procedure did not
improve her pain. (AR 41–42.)
In this setting, the ALJ’s finding that “it was reported her pain decreased about 80% with
injections and physical therapy” is not a clear and convincing reason for discounting Petitioner’s
credibility. The citations offered in support of the finding include no detail whatsoever regarding
the effectiveness of any physical therapy, and context makes clear that the “80% pain reduction”
was for a diagnostic procedure that ultimately led to a more long-term procedure that was
ineffective.
Respondent argues that the ALJ offered several valid reasons to discount Petitioner’s
testimony regarding the severity of her subjective symptoms. He contends that the objective
evidence is inconsistent with her subjective complaints and that physical examinations were

MEMORANDUM DECISION AND ORDER – 15

largely unremarkable, neither of which is a clear and convincing reason given the ALJ’s cursory
and incomplete (if not simply inaccurate) discussion of the objective evidence, as discussed
above.
Respondent also contends that Petitioner’s limited treatment history undermines the
reliability of her complaints, focusing on a treatment gap from January 2018 through the date of
the ALJ decision, July 26, 2018. However, the ALJ hearing was on February 15, 2018 and the
hearing record was to be closed as of March 1, 2018. (AR 15, 684.) Petitioner submitted
additional records – which the ALJ cited in his decision – on February 28, 2018. These records
included treatment records from early January 2018, less than two months prior to the close of
the record in this case. The fact that Petitioner submitted no treatment records dated after
January 2018 is not a clear and convincing reason to discount her credibility, as the record closed
only two months later.2
Next, Respondent contends that Petitioner’s symptoms improved with certain treatments.
Respt.’s Br. 6–7 (Dkt. 20). But, as discussed above, the ALJ’s finding in this regard was not
supported. However, Respondent also argues that he may point out additional support for the
ALJ’s position on appeal. Warre v. Comm’r, 439 F.3d 1001, 1005 n.3 (9th Cir. 2006). He cites
records saying that Petitioner did “well” with her pain medications, which resulted in increased
activity level and improvement in activities of daily living. (AR 654, 661.) He also cites a
January 2018 record documenting Petitioner’s claim that medication was “managing” her pain.
(AR 659.)

2

Nor does the Court agree that Petitioner waived the issue of whether the lack of
treatment records is a clear and convincing reason for discounting her credibility, as Respondent
argues. Respt.’s Br. 6 (Dkt. 20). Petitioner adequately raised the issue of whether her credibility
was improperly discounted in her opening memorandum.

MEMORANDUM DECISION AND ORDER – 16

Such records do say what Respondent contends they say. Nonetheless, they are not
reliable evidence that Petitioner was malingering or that her pain otherwise was not as limiting as
she claimed. Without any quantification or detailed analysis, relative phrases such as “increased
activity level,” “improvement in activities of daily living,” and “managing pain” simply cannot
fill in the gaps left in the ALJ’s discussion. The cited records offer nothing in the way of details
regarding the duration, magnitude, or significance of such increases or improvements, but other
records do provide such details, details which support Petitioner’s claim. Moreover, the records
also discuss claims of pain and functional limitations. Additionally, where the precise issue is
whether the ALJ provided a clear and convincing reason to discount Petitioner’s credibility,
Respondent’s combing the record after the fact for additional support is not a substitute for the
requirement that the ALJ considered such records. Again, the issue is that the ALJ did not
provide a sufficiently thorough explanation of his reasoning – assuming it was possible to do so.
Finally, Respondent notes that the ALJ relied on the medical opinion evidence by the
non-examining state disability determination services physicians, both of whom opined
Petitioner was not disabled. The ALJ said that “those physicians were non-examining, and
therefore their opinions do not as a general matter deserve as much weight as those of examining
or treating physicians.” (AR 22.) He also anchored their opinions against his other justifications
for discounting Petitioner’s credibility, rather than letting them stand on their own, saying “those
opinions do deserve some weight, particularly in a case like this in which there exist a number of
other reasons to reach similar conclusions (as explained throughout this decision).” (Id.)
These medical opinions did not result from examining Petitioner and thus any reliance on
them related to the question of Petitioner’s credibility is already somewhat tenuous. This fact,
combined with the fact that the ALJ himself linked their opinions to the other reasons for

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discounting Petitioner’s credibility – every one of which has been found lacking by this Court –
means that this, too, fails to pass muster as a clear and convincing reason to discount Petitioner’s
credibility. The ALJ did not provide any clear and convincing reasons to discount Petitioner’s
credibility and his decision is subject to reversal on that basis.
The Court is mindful that the ALJ was not required to accept Petitioner’s subjective
allegations about the severity or limiting effects of her pain or other symptoms. But the ALJ was
required to provide specific, clear and convincing reasons for rejecting such allegations. He did
not. Thus, the ALJ’s decision to discount Petitioner’s subjective testimony was reversible error.
Separately, even if the ALJ had provided clear and convincing reasons to discount
Petitioner’s credibility, the decision would still be reversed and remanded as a result of the
improper weighing of the objective evidence properly, as discussed above.
3. Because the ALJ Erred in Evaluating Objective Evidence and Petitioner’s
Subjective Allegations of Pain, the Assigned RFC Was Not Supported by
Substantial Evidence.
The last issue Petitioner raises relates to the RFC. Petitioner contends the ALJ erred by
assigning an RFC not supported by the record. The Court has found error with the ALJ’s
weighing objective evidence and with his weighing of Petitioner’s subjective testimony.
Therefore, Petitioner has already established that the RFC is not supported by substantial
evidence and a detailed analysis is unnecessary. That is, the other errors in the ALJ’s decision
necessarily mean that the RFC is not supported by substantial evidence.
4. Remand Is Necessary to Consider Whether Petitioner Is Disabled.
Finally, Petitioner argues the case should be remanded for an immediate award of
benefits rather than for further proceedings. However, several of the ALJ’s errors stemmed from
a lack of explanation that, conceivably, could be supported by explanation without changing the

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outcome of the ALJ’s decision. That is, subsequent consideration on remand may result in a
finding of either disability or non-disability. Therefore, the Court does not decide here whether
Petitioner is disabled. The case will be remanded for further proceedings.
IV. CONCLUSION
Petitioner has shown that the ALJ committed reversible legal error regarding the
weighing of objective medical evidence and the evaluation of Petitioner’s testimony. These
errors undermine the ALJ’s findings regarding Petitioner’s RFC. Accordingly, the ALJ’s
decision is not supported by substantial evidence and it will be reversed and remanded for further
proceedings consistent with this decision.
V. ORDER
Based on the foregoing, Petitioner’s Petition for Review (Dkt. 1) is GRANTED, the
decision of the Commissioner is REVERSED, and this action is REMANDED to the
Commissioner of Social Security under sentence four of 42 U.S.C. § 405(g) for further
proceedings consistent with this opinion.

DATED: March 31, 2021
_________________________
Honorable Ronald E. Bush
Chief U.S. Magistrate Judge

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