Atkins v. Commissioner of Social Security Administration

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Kathleen Mary Atkins,
Plaintiff,
v.
Commissioner of Social Security
Administration,
Defendant.
No. CV-25-00020-TUC-JGZ (JEM)
REPORT AND RECOMMENDATION
Plaintiff Mary Kathleen Atkins (“Atkins”) seeks judicial review of a final decision
by the Commissioner of the Social Security Administration (“Commissioner”).1 (Doc. 1.)
The matter, on referral to the undersigned United States Magistrate Judge for Report and
Recommendation, is ripe for determination. (Doc. 11, 18, 14, 19, 20.) As more fully set
forth below, the undersigned recommends that the district court reverse the ALJ’s decision
and remand to the Commissioner for further proceedings.
…
…
1 On May 7, 2025, Frank Bisignano was sworn in as the Commissioner of the Social
Security Administration. Pursuant to Rule 25(d), Fed. R. Civ. P., Commissioner Bisignano
should be substituted as Defendant in this action.
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BACKGROUND
Procedural History
On August 2, 2022, Atkins filed a Title II application for a period of disability and
disability insurance benefits of the Social Security Act alleging disability beginning March
31, 2022. (Administrative Record “AR” 15, 199-201, 202-208.) Atkins’s application was
denied initially on February 22, 2023, and on reconsideration on June 20, 2023. (AR 75-
84 (disability determination explanation at the initial level), 85-97 (disability determination
explanation at the reconsideration level).)
On March 5, 2024, Atkins appeared with counsel and testified at a telephonic
administrative hearing before Administrative Law Judge (“ALJ”) Amy Benton. (AR 34-
73.) On March 28, 2024, the ALJ issued her non-disability decision. (AR 15-28.) On
November 27, 2024, the Appeals Council denied Atkins’s request for review of the ALJ’s
non-disability decision thus making the ALJ’s decision the final decision of the
Commissioner. (AR 1-6.)
Atkins timely filed the instant action seeking review of the Commissioner’s
decision. (Doc. 1.) The district court has jurisdiction pursuant to 42 U.S.C. § 405(b).
The ALJ’s Decision
The ALJ found that Atkins meets the insured status requirements of the Social
Security Act through December 31, 2026. (AR 17.) The ALJ found that Atkins has not
engaged in substantial gainful activity since May 9, 2022, her alleged onset date. Id. The
ALJ determined that Atkins suffers from the severe impairment of lumbosacral
spondylosis. Id. The ALJ determined Atkins does not have an impairment or a combination
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of impairments that meets or medically equals the severity of one of the listed impairments
in 20 CFR Part 404, Subpart P, Appendix 1. (AR 21.) The ALJ determined Atkins’s
residual functional capacity (“RFC”) as the ability:
to perform light work as defined in 20 CFR § 404.1527(b) except: occasional
(sic) climb ramps or stairs but never climb ladders, ropes, or scaffolds;
occasionally stoop, kneel crouch, and crawl; occasional exposure to hazards,
such as unprotected heights and moving mechanical parts; and occasional
exposure to industrial types of vibration.
(AR 21-22.)
The ALJ determined that Atkins can perform her past relevant work as a 9-1-1
dispatcher, plumbing dispatcher, and call center representative. (AR 25.) The ALJ found
that transferability of job skills is not an issue because Atkins’s past relevant work is
unskilled. Id. Considering Atkins’s age, education, work experience, and RFC, the ALJ
found there are jobs that exist in significant numbers in the national economy that she can
perform. Id. Thus, at step five, the ALJ found that Atkins has not been under a disability
from the alleged onset date through the date of the ALJ’s decision. (AR 23.)
Relevant Factual Background
Physical Impairments
On July 15, 2022, Atkins received pain management treatment and is recorded as
reporting increased back and leg pain after bending over and feeling a “popping” in her
back. (AR 843.) On examination, she had tenderness at her lumbar spine and sacroiliac
joints and positive straight leg raise testing at the right. (AR 844.) Tizanidine was
prescribed. (AR 847.)
A July 19, 2022, a lumbar MRI showed a disc protrusion at the L4-5 level with
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effacement of bilateral subarticular recesses and mild spinal canal narrowing, and a disc
protrusion at the L5-S1 level with effacement of the subarticular recesses “placing the right
traversing S1 nerve root at risk for compression.” (AR 343-44.)
At an August 1, 2022, follow-up, Atkins’s low back and leg pain is recorded as
persisting. (AR 839.) On examination, she had tenderness at her lumbar spine and
sacroiliac joints, and positive straight leg raise testing at the right. (AR 840.)
On August 10, 2022, Atkins saw her primary care provider reporting that she was
on topiramate for a seizure disorder, and that she had had six seizures on Sunday. (AR
508.) Prior to this incident, her last seizure had been three months earlier. (AR 508.) Atkins
was given a new referral to neurology. (AR 512.) Also on August 10, 2022, Atkins
underwent lumbar epidural injections at the right L4-5 and L5-S1 levels. (AR 837-38.)
On August 19, 2022, Atkins saw neurology provider, Nurse Practitioner Willliam
Holder. (AR 1209.) Atkins reported a history of seizures with first seizure occurring in
May 2019. (AR 1211.) She is recorded as having previously been on lamotrigine that
controlled her seizures and having seizures the week prior. (AR 1210.) Atkins is also
recorded as having headaches nearly every day. (AR 1210.) Topiramate was continued for
migraines, propranolol and Nurtec were started for migraines, and lamotrigine was started
for seizures. (AR 1212.)
At her August 24, 2022, pain management follow-up, Atkins reported about 70%
pain reduction for approximately two days after recent epidural steroid injections. (AR
830.) Sitting and standing increased her pain. (AR 830.) She had some tingling and burning
down her right leg and foot. (AR 830.) On examination, she had tenderness at her lumbar
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spine and sacroiliac joints, positive Patrick’s testing at the right lower extremity (indicative
of hip, sacroiliac joint, or lumbar spine issues), and positive straight leg raise testing at the
right. (AR 831.) Nortriptyline (nerve pain medication) was prescribed. (AR 832.)
On September 21, 2022, Atkins received a caudal epidural steroid injection. (AR
1054-55.)
At her September 21, 2022, pain management follow-up, Atkins had about 75%
pain reduction with the recent epidural but still had some mild low back pain. (AR 827.)
On examination, she had tenderness at her lumbar spine and sacroiliac joints, paraspinal
spasms, pain with lumbar facet loading, positive Patrick’s testing at the right lower
extremity, and positive straight leg raise testing. (AR 828.)
On September 20, 2022, Atkins consulted with neurosurgeon Brian P. Callahan,
M.D. (AR 336.) Atkins is recorded as having a history of low back pain that became severe
around May 2022 when the pain started radiating down her right leg. (AR 336.) She
received a caudal injection that helped for about two weeks, and one epidural injection that
was ineffective. (AR 336.) Dr. Callahan reviewed imaging and noted Atkins appeared to
have lumbar radiculopathy from the herniated disc at the L5-S1 level. (AR 336.) Dr.
Callahan prescribed gabapentin (nerve pain medication) and ordered a lower extremity
electromyography study. (AR 337-38.)
On November 16, 2022, Atkins’s primary care provider prescribed baclofen (muscle
relaxant). (AR 577.) On November 21, 2022, Atkins underwent a caudal epidural steroid
injection. (AR 825.)
On December 12, 2022, Atkins presented to the emergency room after experiencing
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a seizure episode at home. (AR 345, 378.) On December 15, 2022, she followed up with
primary care and reported an additional seizure after she returned home from the ER. (AR
715.) She was referred to neurology. (AR 720.)
On December 16, 2022, Atkins received a Toradol injection (NSAID, nonsteroidal
anti-inflammatory drug) for back and leg pain. (AR 822.)
On December 26, 2022, Atkins returned to the emergency room after being in a
motor vehicle crash. (AR 361.) She is recorded as reporting increased lower back and lower
extremity pain. Id. On examination, she had tenderness to palpation at the thoracic and
lumbar spine and the shins at both legs. (AR 361-62.) Computed tomography imaging
(CTs) of her spine were negative for acute injuries. (AR 365, 368-69.) She was treated with
Toradol and was prescribed Robaxin (muscle relaxant) and lidocaine patches. (AR 363.)
At her December 30, 2022, pain management follow-up, Atkins is recorded as
reporting that gabapentin was ineffective. (AR 788.) Her recent caudal injection increased
her pain. (AR 790.) On examination, she had tenderness to palpation at the lumbar spine
and sacroiliac joints, paraspinal spasms, positive Patrick’s test at the right lower extremity,
and discoloration of the right lower extremity. (AR 789.) She was prescribed a Medrol
Dosepak (steroid). (AR 790.)
On January 2, 2023, Atkins followed up with her primary care reporting ongoing
lower extremity pain. (AR 614.) Lower extremity ultrasounds were ordered, which were
negative for deep vein thrombosis. (AR 615, 782.)
On February 3, 3023, Atkins returned to Dr. Callahan and is recorded as having
increased back and right leg pain since the recent car crash. (AR 783.) The recent injection
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was not helpful. (AR 783.) Dr. Callahan observed decreased strength at Atkins right leg
and positive straight leg raise testing on the right. (AR 783.) An updated MRI was ordered.
(AR 784.)
A February 24, 2023, lumbar MRI showed a disc bulge and protrusion at the L4-5
level with mild canal and foraminal stenosis, and a disc osteophyte complex (bone spurs)
and disc protrusion at the L5-S1 level with mild foraminal narrowing. (AR 785-86.)
At a March 2, 2023, pain management follow-up, Atkins’s pain is recorded as
persisting. (AR 793-94.) On examination, she had tenderness at her lumbar spine and
sacroiliac joints, pain with lumbar facet loading, positive Patrick’s testing at the right lower
extremity, and positive straight leg raise testing at the right. (AR 793.)
On March 8, 2023, Atkins received bilateral facet joint injections of Depo-Medrol
(steroid) at the L4-5 and L5-S1 levels. (AR 797.) At her March 30, 2023, follow-up, Atkins
reported at least 85% pain reduction with the recent injections. (AR 800.)
On June 20, 2023, Atkins was prescribed Tramadol (narcotic used to treat moderate
to severe pain) for joint pain. (AR 987-88.) On August 22, 2023, Atkins received additional
bilateral facet joint injections at the L4-5 and L5-S1 levels. (AR 1049-50.)
On January 17, 2024, Atkins consulted with William Ross, M.D. for pain
management. (AR 1213.) She reported thoracic and lumbar pain, and bilateral hip pain that
increased with activity. Id. She is recorded as having tried numerous medications, including
muscle relaxants with no relief. Id. Dr. Ross observed limited and painful lumbar motion,
positive facet loading testing, and tenderness at the lumbar facets. (AR 1214.) Dr. Ross
diagnosed lumbar spondylosis, lumbar radiculopathy, and myofascial pain, prescribed
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Flexeril (muscle relaxant), and ordered lumbar nerve ablation (nerve burning). (AR 1214.)
On February 5, 2024, Atkins underwent the lumbar nerve ablation the right L3
through L5 levels. (AR 1165.)
Relevant Hearing Testimony
Atkins testified she is unable to work because of her physical and mental
impairments. (AR 48-49.) She testified that she suffers from lumbar pain, migraines, and
focal seizures where she would zone out. (AR 48.) Her lumbar pain limits her ability to
walk and sit for prolonged periods without an increase in pain. (AR 49, 59.) She testified
that she must lay down most of the day. (AR 60.)
ISSUES ON REVIEW
Atkins raises two issues for review. (Doc. 19 at p. 1.) She argues that the ALJ erred
in failing to determine at step two that her mental impairments are severe. (Doc. 14 at p.
1.) She also argues that the ALJ erred in rejecting her symptom testimony regarding her
physical impairments. Id. at pp. 1-2. The Commissioner argues against both claims of error.
(Doc. 19.) As more fully explained below, this Court agrees with Atkins on her second
claim of error and recommends that this matter be remanded to the Commissioner for
further proceedings.
LEGAL STANDARDS
Five-Step Sequential Evaluation Process
The Commissioner employs a five-step sequential process to evaluate claims. 20
C.F.R. § 404.1520; see also Heckler v. Campbell, 461 U.S. 458, 460-462 (1983). To
establish disability the claimant bears the burden of showing: (1) s/he is not working;
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(2) s/he has a severe physical or mental impairment; (3) the impairment meets or equals
the requirements of a listed impairment; and (4) the RFC precludes the performance of past
work. 20 C.F.R. § 404.1520(a)(4). At step five, the burden shifts to the Commissioner to
show that the claimant has the RFC to perform other work that exists in substantial numbers
in the national economy. Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007). If the
Commissioner conclusively finds the claimant “disabled” or “not disabled” at any point in
the five-step process, the ALJ does not proceed to the next step. 20 C.F.R.
§ 404.1520(a)(4).
“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) (citing Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989)). The findings
of the Commissioner are meant to be conclusive if supported by substantial evidence. 42
U.S.C. § 405(g). Substantial evidence is “more than a mere scintilla but less than a
preponderance.” Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (quoting Matney v.
Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)). The court may overturn the decision to
deny benefits only “when the ALJ’s findings are based on legal error or are not supported
by substantial evidence in the record as a whole.” Aukland v. Massanari, 257 F.3d 1033,
1035 (9th Cir. 2001). This is so because the ALJ “and not the reviewing court must resolve
conflicts in the evidence, and if the evidence can support either outcome, the court may not
substitute its judgment for that of the ALJ.” Matney, 981 F.2d at 1019 (quoting Richardson
v. Perales, 402 U.S. 389, 400 (1971)); Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d
1190, 1198 (9th Cir. 2004). The Commissioner’s decision, however, “cannot be affirmed
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simply by isolating a specific quantum of supporting evidence.” Sousa v. Callahan, 143
F.3d 1240, 1243 (9th Cir. 1998) (citing Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir.
1989)). Reviewing courts must consider the evidence that supports as well as detracts from
the Commissioner’s conclusion. Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975).
A claimant is "disabled" for the purpose of receiving benefits if she is unable to
engage in any substantial gainful activity due to an impairment which has lasted, or is
expected to last, for a continuous period of at least twelve months. 42 U.S.C. §
423(d)(1)(A); 20 C.F.R. § 404.1505(a). "The claimant bears the burden of establishing a
prima facie case of disability." Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995), cert.
denied, 517 U.S. 1122 (1996); Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir. 1996).
Symptom Testimony Legal Standard
The ALJ is required to undertake a two-step analysis to evaluate a claimant's
subjective symptom testimony. Devery v. Comm'r of Soc. Sec., No. CV-24-00025-TUC-
AMM (EJM), 2025 WL 647337, at *19 (D. Ariz. Feb. 19, 2025), report and
recommendation adopted sub nom. Devery v. Comm'r of Soc. Sec. Admin., No. CV-24-
00025-TUC-AMM, 2025 WL 661887 (D. Ariz. Feb. 28, 2025) (citing Lingenfelter v.
Astrue, 504 F.3d 1028, 1035–36 (9th Cir. 2007)). “A claimant who alleges disability based
on subjective symptoms ‘must produce objective medical evidence of an underlying
impairment which could reasonably be expected to produce the pain or other symptoms
alleged[.]’ ” Devery, 2025 WL 647337, at *19 (quoting Smolen v. Chater, 80 F.3d 1273,
1281–82 (9th Cir. 1996)); see also Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014).
“[A] claimant need not show that her impairment could reasonably be expected to
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cause the severity of the symptom she has alleged; she need only show that it could
reasonably have caused some degree of the symptom.” Devery, 2025 WL 647337, at *19
(quoting Smolen, 80 F.3d at 1282 (citations omitted)); see also Trevizo v. Berryhill, 871
F.3d 664, 678 (9th Cir. 2017). “Nor must a claimant produce ‘objective medical evidence
of the pain or fatigue itself, or the severity thereof.’ ” Devery, 2025 WL 647337, at *19
(quoting Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014)).
“[I]f the claimant meets this first test, and there is no evidence of malingering, ‘the
ALJ can reject the claimant's testimony about the severity of h[is] symptoms only by
offering specific, clear and convincing reasons for doing so.’ ” Devery, 2025 WL 647337,
at *19 (quoting Lingenfelter, 504 F.3d at 1036); see also Burrell v. Colvin, 775 F.3d 1133,
1137 (9th Cir. 2014) (rejecting the contention that the “clear and convincing” requirement
had been excised by prior Ninth Circuit case law). “This is not an easy requirement to meet:
‘The clear and convincing standard is the most demanding required in Social Security
cases.’ ” Devery, 2025 WL 647337, at *19 (quoting Garrison, 759 F.3d at 1015).
ANALYSIS
Mental Limitations Non-Severity Finding at Step Two
“Step two is merely a threshold determination meant to screen out weak claims.”
Buck v. Berryhill, 869 F.3d 1040, 1048 (9th Cir. 2017) (citing Bowen v. Yuckert, 482 U.S.
137, 146–47, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987)). Step two “is not meant to identify
the impairments that should be taken into account when determining the RFC.” Buck, 869
F.3d at 1048-1049. Buck recognized that “[i]n assessing RFC, the adjudicator must
consider limitations and restrictions imposed by all of an individual's impairments, even
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those that are not ‘severe.’ ” Buck, 869 F.3d at 1059 (quoting Titles II & XVI: Assessing
Residual Functional Capacity in Initial Claims, Social Security Ruling (“SSR”) 96-8p,
1996 WL 374184, at *5 (S.S.A. July 2, 1996)) (internal quotations omitted). “The RFC
therefore should be exactly the same regardless of whether certain impairments are
considered ‘severe’ or not.” Buck, 869 F.3d at 1049.
There mere diagnosis of an impairment is not sufficient to sustain a finding of
disability. Heller v. Comm'r of Soc. Sec. Admin., No. CV-17-00243-TUC-DTF, 2018 WL
4377162, at *5 (D. Ariz. Sept. 14, 2018), aff'd sub nom. Heller v. Saul, 794 F. App'x 644
(9th Cir. 2020) (citing Key v. Heckler, 754 F.2d 1545, 1549-50 (9th Cir. 1985)). The ALJ
must consider evidence of functional limitations in formulating the RFC. Heller, 2018 WL
4377162, at *5 (citing Burch v. Barnhart, 400 F.3d 676, 683-84 (9th Cir. 2005)).
Atkins argues that the ALJ erred at step two in finding her mental impairments non-
severe. (Doc. 14 at pp. 13-20.) The Commissioner argues, inter alia, the ALJ determined
that a “non-disability finding would be supported even if [the ALJ found Atkins’s] mental
impairments were severe[.]” (Doc. 19 at p. 10.) The Commissioner points out that the ALJ
stated in her decision:
Further, even if I found the claimant’s mental disorders severe – causing mild
limitation in understanding, remembering, or applying information and
adapting or managing oneself and moderate limitation in interacting with
others and concentrating, persisting, or maintaining pace – and additionally
limited the claimant’s residual functional capacity by including mental
functioning limitations – limited to understanding, remembering, and
carrying out simple instructions, occasional interaction with supervisors,
coworkers, and the public, make only simple work-related decisions, tolerate
only occasionally change in work location, and unable to work at a strict
production rate, such as the rate required to work on an assembly line, the
vocational expert testified that the above listed jobs would remain at the
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numbers given. Accordingly, a finding of “not disabled” would remain
appropriate under the framework of the above-listed rule.
(AR 27.) Atkins characterizes the foregoing as an “afterthought of an analysis.” (Doc. 14
at p. 20, n. 6.)
This Court disagrees with Atkins’s characterization. This Court agrees with the
Commissioner that the foregoing demonstrates that the ALJ found that Atkins’s mental
limitations were “so slight that they do not cause any measurable loss of function” in mental
abilities. Therefore, the RFC properly does not include any mental limitations.
The ALJ explained that her non-disability finding would be supported even if she
found that Atkins’s mental impairments were severe. (AR 27.) The ALJ asked the
vocational expert if an individual with the same physical limitations as those assessed in
the RFC and was also limited to (1) understanding, remembering, and carrying out simple
instructions; (2) occasional interaction with supervisors, coworkers, and the public; (3)
making simple work-related decisions; (4) tolerating occasional change in work location;
and (5) working at a strict production-rate pace could perform any work. (AR 65.) The
vocational expert testified that although such a person could not perform Atkins’s past
relevant work, the individual could perform work as a mailroom clerk (non-postal), a
cleaner, or a price marker. (AR 65-66.)
Considering the foregoing, this Court finds that ALJ did not err at step two in finding
her mental impairments non-severe. See Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007)
(holding that even failing to completely list an impairment at step two is harmless error
when an ALJ discusses that impairment in assessing a claimant’s RFC). See also Buck, 869
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F.3d at 1049 (recognizing that “[t]he RFC therefore should be exactly the same regardless
of whether certain impairments are considered ‘severe’ or not.”).
Evaluation of Atkins’s Testimony of Her Physical Impairments
The ALJ acknowledged the two-step process for evaluating Atkins’s symptom
testimony. (AR 22.) The ALJ concluded that Atkins’s statements about the intensity,
persistence, and limited effects of her symptoms, are inconsistent because the evidence
does not support the extent of the Atkins’s allegations. (AR 22-23.) The ALJ supported her
conclusion with the findings that (1) “[t]he claimant’s allegations are not entirely consistent
with the objective medical evidence of record[;] and (2) “[t]he claimant’s treatment history
to date and presentation on examination similarly are not consistent with her extreme
functional loss allegations.” (AR 23.) This Court considers the two grounds proffered by
the ALJ in the reverse.
Treatment History
The ALJ discounted Atkins’s physical symptom testimony finding that “[t]he
claimant’s treatment has been conservative and non-operative to date, including
medication, injection therapy, and radio frequency ablation therapy. . .[.]” (AR 23.) This
Court agrees with Atkins that repeat injections and radio frequency ablation therapy (nerve
burning) are not conservative treatment. See Garrison, 759 F.3d at 1015 n. 20 (stating that
“we doubt that epidural steroid shots to the neck and lower back qualify as ‘conservative’
medical treatment”); Scrogham v. Colvin, 765 F.3d 685, 701 (7th Cir. 2014) (finding “a
claimant’s election to undergo serious treatment, such as having surgery and taking heavy
doses of strong drugs, indicates that the claimant’s complaints of pain are likely credible.
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Further, the fact that physicians willingly prescribed drugs and offered other invasive
treatment indicated that they believed the claimant’s symptoms were real.”). See also Jones
v. O’Malley, No. 23-16136, 2024 WL 3963835, at *1 (9th Cir. Aug. 28, 2024) (finding the
ALJ erred in rejecting the claimant’s testimony as being inconsistent with her course of
treatment when the ALJ failed to articulate why the receipt of injections and medications
were inconsistent with the claimant’s report of psoriatic arthritis symptoms).
The Commissioner urges that “the topic of whether injections are conservative in
nature remains in flux.” (Doc. 19 at p. 15.) The Commissioner relies upon Fry v. Berryhill,
749 Fed. App’x 659, 660-61 (9th Cir. 2019). (Doc. 19 at p. 15.) In Fry, the United States
Court of Appeals held “even if the ALJ erred by describing Fry’s treatment as conservative,
the ALJ offered other clear and convincing reasons for discounting Fry’s testimony,
rendering any error harmless.” 749 Fed. App'x at 661. Here, as more fully set forth below,
this Court finds that the other reason proffered by the ALJ in this case is not a clear and
convincing reason supported by substantial evidence. Accordingly, this Court is not
persuaded by Fry.
The Commissioner also relies on Revels v. Berryhill, 874 F.3d 648, 667 (9th Cir.
2017), as “questioning whether injections qualify as conservative treatment.” (Doc. 19 at
p. 15.) In Revels, the Ninth Circuit recognized that “[a]ny evaluation of the aggressiveness
of a treatment regimen must take into account the condition being treated.” 874 F.3d at
667. The claimant in Revels received facet and epidural injections in her neck and back,
steroid injections in her hands and she was prescribed a variety of medications for her pain,
including Valium, Vlector, Soma, Vicodin, Percocet, Neurontin, Robaxin, Trazodone, and
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Lyrica. Id. The Ninth Circuit held:
The ALJ provided no explanation why he deemed this treatment
“conservative” for fibromyalgia. We have previously “doubt[ed] that
epidural steroid shots to the neck and lower back qualify as ‘conservative’
medical treatment.” Garrison, 759 F.3d at 1015 n.20.
874 F.3d at 667. The Commissioner’s reliance on Revels for the proposition that it is
questionable whether injections qualify as conservative treatment is unconvincing.
The Commissioner also argues that Atkins reported improvement with treatment.
(Doc. 19 at p. 15.) However, as pointed out by Atkins, the ALJ did not rely on reports of
improvement in discounting her symptom testimony. (AR 23-24.) Thus, this Court finds
that the Commissioner’s analysis of the same is improper post hoc rationale. This Court
cannot recommend that the district court affirm the Commissioner’s decision based on facts
or rationale upon which the agency did not rely. See Trevizo, 871 F.3d at 675; Bray v.
Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1225-26 (9th Cir. 2009) (holding that “[l]ong-
standing principles of administrative law require us to review the ALJ's decision based on
the reasoning and factual findings offered by the ALJ—not post hoc rationalizations that
attempt to intuit what the adjudicator may have been thinking.”).
Considering the foregoing, this Court finds that the ALJ’s characterization of Atkins
treatment as conservative is not a clear and convincing reason supported by substantial
evidence to discount her physical symptom testimony.
Objective Medical Evidence
The ALJ also discounted Atkins’s symptom testimony finding that her allegations
“are not entirely consistent with the objective medical evidence of record.” (AR 23.) In so
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finding, the ALJ stated:
[A] July 2022 lumbar MRI revealed a shallow posterior disc protrusion at
L5-S1 without specific nerve root impingement, spinal canal stenosis, or
foraminal stenosis and posterior central disc protraction at L4-5 associated
with only mild bilateral facet hypertrophic changes, effacement of the
bilateral subarticular recesses, mild spinal canal narrowing, and no
significant foraminal stenosis (Ex. 1F, pp. 8-9), with some progressive (sic)
of previously seen degenerative disease noted sufficient to establish
medically determinate impairment of the lumbar spine that could be expected
to cause the reported symptoms. However, October 2022 EMG/NCS of the
right lower extremity is notable negative for any objective abnormality,
including right lumbar radiculopathy (Ex. 1F, pp. 3), consistent with remote
EMG/NCS of the right lower extremity that was also negative (Ex. 9F, pp.
99), such that there is little objective support for the claimant’s subjective
right lower extremity symptoms. Repeat MRI of the lumbar spine, conducted
in February 2022, failed to document any disease progression (Ex. 7, pp. 3-
4) and the claimant’s medical providers have specifically stated that the
findings on imaging of the spine are consistent with normal aging and do not
explain the claimant’s subjectively reported symptoms (Ex. 8, pp. 3-4), such
that the findings on MRI of the lumbar spine do not provide substantial
support for the claimant’s allegations of total debility.
(AR 23.)
Atkins argues that the ALJ erred in substituting her analysis of technical information
for that of the treating providers. (Doc. 14 at p. 22.) The Commissioner does not squarely
address Atkins’s argument but urges that an ALJ may properly discount claims of
debilitating limitations based on imaging showing only mild degenerative changes. (Doc.
19 at p. 12.) This Court agrees with Atkins.
An ALJ is precluded from interpreting raw medical data in formulating a claimant’s
RFC. See Howell v. Kijakazi, No. 20-CV-2517-BLM, 2022 WL 2759090, at *7 (S.D. Cal.
July 14, 2022) (finding ALJ not qualified as a medical expert and therefore could not
permissibly go outside the record to consult medical textbooks for the purpose of making
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his own assessment of the claimant's physical condition, citing Day v. Weinberger, 522
F.2d 1154, 1156 (9th Cir. 1975)). The district court in Howell noted that MRIs, radiological
studies, and X-rays have been recognized as raw medical data. Howell, 2022 WL 2759090,
at *7 (citing Mack v. Saul, No. 1:18-CV-01287-DAD-BAM, 2020 WL 2731032, at *2
(E.D. Cal. May 26, 2020) (duty to develop where the ALJ improperly determined RFC
after considering MRIs and radiological studies absent a doctor's opinion regarding the
effect on plaintiff's ability to work on a function-by-function basis)). See also Escudero v.
Comm'r of Soc. Sec., No. 1:18-CV-01136-EPG, 2019 WL 4917634, *2 (E.D. Cal. Oct. 4,
2019) (finding RFC not based on substantial evidence where the ALJ considered x-rays
and records indicating Plaintiff's diabetes diagnoses post-dated the accepted physician's
opinion on which the ALJ based the RFC)). “Such records generally reflect only the
findings, impressions, and medical diagnoses, which are difficult for a lay person to
interpret.” Howell, 2022 WL 2759090, at *7 (citing Escudero, 2019 WL 4917634, at *2
(finding “descriptions of medical documents post-dating the physician's opinions appear to
be very medical in nature and not susceptible to a lay understanding.”)).
This Court finds that the ALJ erred in relying upon her interpretation of the MRIs
and NCSs in the record. As pointed out by Atkins, imagining studies in 2022 showed some
progression of lumbar disease with findings that showed nerve roots were at risk for
compression. (AR 343-344.) Examination findings seem to support Atkins’s reported
symptoms when she was observed with tenderness at her lumbar spine and sacroiliac joints,
positive Patrick’s sign, and had positive straight leg raise testing. See e.g., AR 783, 789,
793, 828, 831, 840, 844, 1214. While Atkins’s first pain management provider noted that
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imaging and EMG findings did not explain her symptoms (AR 789-90), objective findings
in apparent combination with Atkins’s reports resulted in Atkins’s treating providers
ordering a course of treatment which included lumbar epidural injections, caudal epidural
injections, facet joint injections, and lumbar radiofrequency ablation (nerve burning). Dr.
Callahan reviewed Atkins’s imaging and noted that Atkins appeared to have lumbar
radiculopathy from the herniated disk at the L5-S1 level. (AR 336.) Even with normal
findings on Atkins’s EMG, Dr. Callahan confirmed that Atkins’s “symptoms and
radiculopathy have worsened since a motor vehicle accident in late December,” with new
right-sided weakness on examination. (AR 784.)
This Court is not persuaded by the Commissioner’s reliance on Burch v. Barnhart,
400 F.3d 676. In that case, the court of appeals noted that the ALJ’s partial rejection of the
claimant’s testimony was supported not only by certain mild degenerative objective
findings in the record but also by the claimant’s daily activities, lack of consistent
treatment, and failure to treat two alleged impairments. 400 F.3d at 681. Burch did not
address Atkins’s argument here—that the ALJ erred by substituting her analysis of
technical information for that of Atkins’s treating physicians.
The ALJ here also found that “[e]xaminations since the alleged onset date have
documented subjective tenderness to palpation of the spine and sacroiliac joints with rate
observed limited lumbar range of motion, diminished sensation to light touch, positive
straight leg raise on the right, or right lower extremity weakness (Ex. 1F, 2F, 7F, 8F, 9F,
16F, 27F), suggestive of at least some degree of functional limitation associated with the
claimant’s back pain complaint. (AR 23.) Despite the foregoing the ALJ concluded:
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However, examinations are more typically and longitudinally intact,
objectively documenting full motor strength in all limbs, normal muscle
bulk, no fasciculations, normal reflexes in all extremities without clonus,
normal and unassisted gait, intact ability to heel-toe walk and tandem walk,
normal balance, intact sensation in all extremities, normal plantars (down
going bilaterally), no pronator drift, normal cerebellar signs (finger to nose,
rapid alternating movement, and normal cranial nerves bilaterally (Ex. 1F,
2F, 3F, 8F, 9F, 15F, 16F, 18F, 24F, 26F, 27F, such that there is little objective
examination support for the extreme functional loss alleged in connection
with the current application for benefits.
(AR 23-24.)
Although the ALJ is the arbiter of the evidence, see Tommasetti v. Astrue, 533 F.3d
1035, 1041-1042 (9th Cir. 2008), the ALJ is required explain her determination that normal
findings contained in the record support her reduced credibility determination. Here, the
ALJ failed to provide any such explanation. Instead, the ALJ broadly cited to a string of
exhibits in the AR some of which are over one hundred pages. See e.g., AR 408-628 (Ex.
3F, 220 pages); AR 640-778 (Ex. 5F, 139 pages); AR 803-911 (Ex. 9F, 109 pages).
This Court finds that the ALJ erred in broadly relying upon a string of normal
findings contained in the record absent an analysis as to why those findings are inconsistent
with any specific work-preclusive testimony and inconsistent with Atkins’s report of
chronic pain. See Robbins v. Soc. Sec. Admin., 466 F.3d 880, 884 (9th Cir. 2006) (finding
that even when “facially legitimate reasons” support an adverse determination, “complete
lack of meaningful explanation gives this court nothing with which to assess its
legitimacy”); Apodaca v. Comm’r of Soc. Sec. Admin., No. CV-18-04086-PHX-SPL, 2020
WL 1236298, at *3 (D. Ariz. Mar. 13, 2020) (finding that “although certain treatment notes
described [p]laintiff as presenting with normal strength, tone, and gait, the ALJ has not
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explained how such findings are inconsistent with [p]laintiff’s subjective symptoms.”);
Thomas v. Comm’r of Soc. Sec. Admin., No. CV-18-04230-PHX-JZB, 2020 WL 1000023,
at *7 (D. Ariz. Mar. 2, 2020) (recognizing that “the ALJ states that a number of medical
records ‘showed mostly normal gait, strength, tone, and range of motion without tenderness
swelling or deformity.’ But these findings are not mutually exclusive with debilitating pain
. . .”); Valenzuela v. Comm’r of Soc. Sec., No. CV-17-00406-PHX-MHB, Order, Doc. 21
at 6-7 (D. Ariz. Sept. 20, 2018) (rejecting ALJ’s reliance upon “physical examination
indicating normal muscle bulk and tone, and normal range of motion,” holding “the ALJ’s
general recital of medical evidence with various citations to one-time examinations, and
without specific reference to the limitations [p]laintiff testified to at the hearing fails to
provide a clear and convincing reason for rejecting [p]laintiff’s credibility,” citing Holohan
v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001), Dodrill v. Shalala, 12 F.3d 915, 918
(9th Cir. 1993)); Garcia v. Comm’r of Soc. Sec. Admin., No. CV-23-00253-TUC-SHR
(JR), 2024 WL 4343676, at *3 (D. Ariz. Sept. 30, 2024) (finding ALJ’s “determination
lacked a nexus between the normal findings and portions of Garcia’s allegations and
testimony. The normal findings combined with largely mild abnormal findings are
insufficient to serve as a specific, clear, and convincing reason for disregarding Garcia’s
testimony unless the ALJ provides at least some analysis linking findings used to discredit
the testimony with portions of the testimony.”); Dunford v. Comm’r of Soc. Sec. Admin.,
No. CV-23-00855-PHX-JJT, 2024 WL 3886715, at *4 (D. Ariz. Aug. 21, 2024) (finding
legal error in the ALJ’s credibility evaluation when the “ALJ merely recited record
evidence of Plaintiff’s reported symptoms, diagnoses, treatments, and assessments,” but
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failed to identify any of that evidence as a reason to discount any of Plaintiff’s particular
testimony, noting “a recitation of medical evidence is insufficient reasoning to discount
symptom testimony.”).
Lastly, a lack of objective medical findings alone is not a sufficient basis to support
an adverse credibility determination. See Burch, 400 F.3d at 681 (lack of objective medical
evidence to support subjective symptom allegations cannot form the sole basis for
discounting pain testimony); Dschaak v. Astrue, No. CV-10-1010-PK, 2011 WL 4498835,
at *1 (D. Or. Sept. 27, 2011) (holding that “once the[ ] other bases for the ALJ's decision
were discarded as erroneous, the ALJ's [adverse subjective testimony] determination could
not rely solely on conflicts with the medical evidence”).
As explained above, this Court finds that the other reason relied upon by the ALJ
for discounting Atkins’s symptom testimony—her treatment history—is not specific, clear
and convincing reason. See pp. 13-15, supra. Accordingly, a lack of objective medical
support, now standing alone, is not a specific, clear and convincing reason for rejecting
Atkins symptom testimony.
The ALJ’s Error is Not Harmless
Based on vocational expert testimony, a finding that Atkins would be unable to
maintain competitive employment would be required if Atkins’s symptom testimony were
fully credited. (AR 66, 68-69.) This Court finds the ALJ’s error in her credibility
determination is harmful because this Court cannot confidently conclude that no reasonable
ALJ, when fully crediting Atkins’s symptom testimony, could have reached a different
disability determination. See e.g., Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1056
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(9th Cir. 2006) (holding that a reviewing court cannot consider the error harmless unless it
can confidently conclude that no reasonable ALJ, when fully crediting the testimony, could
have reached a different disability determination).
Remand is Appropriate
This Court has found that the ALJ has committed reversible error. Upon finding that
an ALJ committed reversible error, the district court has the discretion to remand or reverse
and award benefits. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). “Where . . .
an ALJ makes a legal error, but the record is uncertain and ambiguous, the proper approach
is to remand the case to the agency.” Treichler v. Comm’r of Social Sec. Admin., 775 F.3d
1090, 1105 (9th Cir. 2014); see also Garrison, 759 F.3d at 1021.
Atkins seeks remand to the Commissioner for an award of benefits. Remand for an
award of benefits is not appropriate without the ALJ first properly considering the raw
medical data that the ALJ herself interpreted. See Leon v. Berryhill, 880 F.3d 1041, 1047
(9th Cir. 2017) (recognizing that, “[w]hen there are outstanding issues that must be
resolved before a determination can be made, or if further administrative proceedings
would be useful, a remand is necessary.”). Accordingly, this Court finds remand to the
Commissioner for consideration of the evidence in the first instance is appropriate.
RECOMMENDATION
For the foregoing reasons, it is RECOMMENDED that the district court
REVERSE the decision of the ALJ and remand the matter to the Commissioner for further
administrative proceedings. Pursuant to Federal Rule of Civil Procedure 72(b)(2), any party
may serve and file written objections within fourteen days of being served with a copy of
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the Report and Recommendation. A party may respond to the other party’s objections
within fourteen days. No reply brief shall be filed on objections unless leave is granted by
the District Court. If objections are not timely filed, they may be deemed waived. If
objections are filed, the parties should use the following case number: 25-cv-00020-JGZ.
Dated this 29th day of October, 2025.
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