Ochoa v. Commissioner of Social Security Administration

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Hilda Ochoa,
Plaintiff,
vs.
Commissioner of Social Security
Administration,
Defendant.
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No. CV 25-00281-TUC-JCH (MAA)
REPORT AND RECOMMENDATION
The plaintiff, Hilda Ochoa, filed this action for review of the final decision of the
Commissioner of Social Security pursuant to 42 U.S.C. § 405(g). Doc. 1, p. 1.
The case has been referred to the United States Magistrate Judge for report and
recommendation pursuant to the Rules of Practice of this court. Doc. 8.
The Magistrate Judge recommends that the District Court, after its independent review,
affirm the final decision of the Commissioner. The ALJ properly evaluated the medical
opinions of Ochoa’s treating providers. The ALJ properly evaluated Ochoa’s allegations of
disabling symptoms. The hypothetical offered to the vocational expert contained all of the
functional limitations that the ALJ found credible.
PROCEDURAL HISTORY
Ochoa filed an application for disability insurance benefits (Title II) on December 28,
2021. Administrative Record, AR 16. She alleged disability beginning on December 1, 2021
due to diabetes, intestinal issues, migraines, sciatica, neuropathy, fatty liver disease, blood
platelet issue, high cholesterol, and hand pain. AR 16, 207.
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Ochoa’s applications were denied initially and upon reconsideration. AR 16. She
requested review and appeared with counsel at a hearing before Administrative Law Judge
(ALJ) Laura Havens on May 9, 2024. AR 16, 33.
The ALJ issued a decision denying benefits on June 26, 2024. AR 27. The Appeals
Council denied Ochoa’s request for review on April 10, 2025, making the decision of the ALJ
the final decision of the Commissioner. AR 1. Ochoa subsequently filed this action appealing
that final decision. Doc. 1.
Hearing Testimony
Ochoa testified that she works for Customer Contact Channels fifteen hours per week.
AR 38. She takes prescription orders over the phone. AR 38-39. She would work full-time if
she felt better. AR 39.
If she feels able to do so, Ochoa wakes at seven in the morning. AR 43. Her daughter
comes to help her every other day. AR 43. Ochoa does not do any household chores. AR 44.
She cooks sometimes. AR 44. She can drive one mile to get her medication. AR 45. She does
not go out to socialize. AR. 45. Ochoa testified that she has side effects from her medication.
AR 46. She has blurry vision and nausea. AR. 46. She has diarrhea and headaches. AR 46.
Ochoa has migraine headaches two or three times per week. AR 46. They last four to
eight hours. AR 46. Ochoa reports that she can stand for twenty minutes per day. AR 47. She
can sit for twenty minutes. AR 47
Ochoa testified that she has problems with her hands. When she touches the computer
mouse, “it fees like needles going into my fingers, and they hurt . . .[a]nd they get numb. AR
49. Her eyesight gets blurry when her blood sugar levels change. AR 50.
The ALJ took testimony from vocational expert Linda Tolley. AR 52. The ALJ asked
Tolley to consider a hypothetical claimant with Ochoa’s age, education and past work, who “can
sit six hours out of an eight-hour day, can stand and walk a total of four hours out of an eight-
hour day. . . [c]an occasionally lift and carry ten pounds, frequently lift and carry ten pounds .
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. . [c]an occasionally climb stair, never climb ladders . . . [o]ccasionally stoop, kneel, crouch,
and crawl . . .[c]an do gross handling and fine fingering on a frequent basis bilateral . . . [and]
[c]an have only occasional exposure to heights, moving machinery, and loud noise.” AR 52.
Tolley testified that such a person could perform Ochoa’s job as a customer service
representative. AR 53. Also, she could work as a cashier II, Dictionary of Occupational Titles
(DOT) code 211.462-010; assembler of small products II, DOT code 706.684-022; or
receptionist, DOT code 237.367-038. AR 53-54. Tolley’s testimony is not entirely consistent
with the DOT; it is also based on her experience in the field doing labor market research. AR
54-55.
Tolley further testified that such a person could not work if she was limited to only
occasional handling, fingering, and feeling. AR 55.
CLAIM EVALUATION
To qualify for disability benefits, the claimant must demonstrate, through medically
acceptable clinical or laboratory standards, an inability to engage in substantial gainful activity
due to a physical or mental impairment that can be expected to last for a continuous period of
at least twelve months. 42 U.S.C. § 423(d)(1)(A). “An individual shall be determined to be
under a disability only if [her] physical or mental impairment or impairments are of such
severity that [she] is not only unable to do [her] previous work but cannot, considering [her]
age, education, and work experience, engage in any other kind of substantial gainful work
which exists in the national economy, regardless of whether such work exists in the immediate
area in which [she] lives, or whether a specific job vacancy exists for [her] or whether [she]
would be hired if [she] applied for work.” 42 U.S.C. § 423(d)(2)(A).
“To determine whether an individual is disabled within the meaning of the Social
Security Act, and therefore eligible for benefits, an ALJ follows a five-step sequential
evaluation.” Ford v. Saul, 950 F.3d 1141, 1148 (9th Cir. 2020) (citing 20 C.F.R. § 404.1520).
The first step requires a determination of whether the claimant is engaged in substantial gainful
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1 Residual functional capacity (RFC) is defined as that which an individual can still do
despite his or her limitations. 20 C.F.R. § 404.1545.
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activity. 20 C.F.R. § 404.1520(a)(4). If so, then the claimant is not disabled and benefits are
denied. Id.
If the claimant is not engaged in substantial gainful activity, the ALJ proceeds to step
two, which requires a determination of whether the claimant has a “severe” impairment or
combination of impairments. 20 C.F.R. § 404.1520(a)(4). In making a determination at step
two, the ALJ uses medical evidence to evaluate whether the claimant has an impairment that
significantly limits or restricts his or her physical or mental ability to do basic work activities.
Id. If the ALJ concludes there is no severe impairment, the claim is denied. Id.
Upon a finding of severity, the ALJ proceeds to step three, which requires a
determination of whether the impairment meets or equals one of several listed impairments that
are so limiting as to preclude substantial gainful activity. 20 C.F.R. § 404.1520(a)(4); 20 C.F.R.
Pt. 404, Subpt. P, App.1. If the claimant’s impairment does not meet or equal a listed
impairment, evaluation proceeds to the next step.
The fourth step requires the ALJ to consider whether the claimant has sufficient residual
functional capacity (RFC)1 to perform past relevant work. 20 C.F.R. § 404.1520(a)(4). If yes,
then the claim is denied. Id. If the claimant cannot perform any past relevant work, then the
ALJ must move to the fifth step, which requires consideration of the claimant’s RFC to perform
other substantial gainful work in the national economy in view of the claimant’s age, education,
and work experience. 20 C.F.R. § 404.1520(a)(4).
“To meet this burden, the ALJ may rely on the Medical-Vocational Guidelines found at
20 C.F.R. Pt. 404 Subpt. P, App. 2 or on the testimony of a vocational expert.” Ford v. Saul,
950 F.3d 1141, 1149 (9th Cir. 2020). “Given its inherent reliability, a qualified vocational
expert’s testimony as to the number of jobs existing in the national economy that a claimant can
perform is ordinarily sufficient by itself to support an ALJ’s step-five finding.” Id. at 1160.
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The ALJ’s Findings
At step one of the disability analysis, the ALJ found that the claimant “has not engaged
in substantial gainful activity since December 1, 2021, the alleged onset date . . . .” AR 18. At
step two, she found the claimant “has the following severe impairments: diabetes with
peripheral neuropathy and sciatica . . . .” AR 18.
At step three, the ALJ found that the claimant “does not have an impairment or
combination 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 then analyzed the claimant’s residual functional capacity (RFC). She found that
Ochoa has the residual functional capacity to perform “sedentary work . . . except she can stand
and walk a total of four hours in an eight-hour day . . . can occasionally climb stairs but never
climb ladders . . . can only occasionally stoop, kneel, crouch, and crawl . . . can perform gross
handling and fine fingering on a frequent basis bilaterally . . . [and] can have only occasional
exposure to heights, moving machinery, and loud noise.” AR 21.
At step four, the ALJ found that the claimant “is capable of performing past relevant
work as a customer service representative.” AR. 25. At step five, the ALJ found, relying on
testimony from the vocational expert, that Ochoa can work as a cashier 2, Dictionary of
Occupational Titles (DOT) # 211.462-010, small products assembler, DOT # 706.684-022, or
receptionist, DOT # 237.367-038. AR 26.
Accordingly, the ALJ found that Ochoa is not disabled. AR 27.
STANDARD OF REVIEW
The findings of the Commissioner are meant to be conclusive. 42 U.S.C. § 405(g). The
court “will disturb the [ALJ’s] denial of benefits only if the decision contains legal error or is
not supported by substantial evidence.” Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020)
(punctuation modified). “Substantial evidence is more than a mere scintilla, and means only
such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Id. “If the evidence is susceptible to more than one rational interpretation, it is the ALJ’s
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conclusion that must be upheld.” Id. Moreover, the court “may affirm the ALJ’s decision even
if the ALJ made an error, so long as the error was harmless, meaning it was inconsequential to
the ultimate nondisability determination.” Id.
Discussion: Medical Opinion Testimony
After completing step three of the disability analysis, the ALJ evaluated Ochoa’s residual
functional capacity. AR 21-25. As part of that evaluation, the ALJ considered the medical
opinions of the treating providers. Ochoa argues that the ALJ failed to properly consider the
medical opinion evidence and therefore, “the assessed RFC does not adequately reflect Ms.
Ochoa’s limitations.” Doc. 13, p. 13. She argues first that the ALJ improperly discounted the
opinions of Dr. Palitha Kalpage, M.D. Doc. 13, pp. 14-18.
Kalpage authored two medical opinions of Ochoa’s ability to perform work-related tasks,
one in March of 2022 and one in April of 2024. AR 371, 964. She opined that Ochoa’s ability
to stand, walk, and sit is so limited that she is unable to work full-time at even a sedentary job.
See Vertigan v. Halter, 260 F.3d 1044, 1052 (9th Cir. 2001) (“In a work environment requiring
sedentary work, the Social Security Rules require necessary sitting as the ability to do such for
six to eight hours a day.”) (citing Soc. Sec. Rul. 83–10, 1983 WL 31251, at *5).
Under the new regulations, “[t]he agency must articulate how persuasive it finds all of
the medical opinions from each doctor or other source, 20 C.F.R. § 404.1520c(b), and explain
how it considered the supportability and consistency factors in reaching these findings.” Woods
v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022) (punctuation modified). “The more relevant the
objective medical evidence and supporting explanations presented and the more consistent with
evidence from other sources, the more persuasive a medical opinion or prior finding.” Machelle
H. v. Kijakazi, 2021 WL 4342313, at *7 (D. Idaho Sept. 22, 2021) (punctuation modified). “In
sum, the [ALJ] must explain [her] reasoning and specifically address how [she] considered the
supportability and consistency of the opinion, and [her] reasoning must be free from legal error
and supported by substantial evidence.” Id.
The ALJ analyzed Kalpage’s medical opinions as follows:
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2 Kalpage’s opinion actually states that the claimant can stand, walk, or sit less than one
hour at one time, not one minute. AR 372. The error does not affect the court’s analysis.
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Additionally, the opinions of Palitha Kalpage, M.D. are not persuasive. (1F; 14F)
[AR 371 (03/07/2022); AR 964 (04/16/2024)]. The opinion lists the claimant’s
alleged impairments, but does not cite to evidence in the record of limitations
related to incontinence, migraines, or other impairments. (1F p. 2) [AR 371]. Nor
does the statement cite to evidence supporting the opinion that the claimant can
stand, walk, or sit less than one minute2 at a time and for less than one hour per
day. (1F p. 3) [AR 372]. These opinions are also inconsistent with the treatment
record which regularly showed the claimant had normal gait. It is also
inconsistent with the treatment records which mention no significant difficulty
sitting. Because the opinions are not supported by the record and are inconsistent
with the evidence in the record, they are not persuasive.
AR 24.
The ALJ correctly observed that Kalpage failed to support her 2022 medical opinion
with citations to the medical record. In the area of the form that asks, “Please list the objective
evidence (i.e., diagnostic findings, imaging, physical examination findings, etc.) supporting your
patient’s diagnosis and symptoms,” Kalpage simply wrote the address of the health clinic. AR
371. She did not cite to evidence in the record.
The ALJ, however, seemed to overlook the fact that Kalpage did cite to the record in
support of her second medical opinion in 2024. AR 964. In the second opinion, the form asks,
“Please identify the particular medical findings (e.g., physical examination findings, x-ray
findings, laboratory test results, history, symptoms (including pain), etc.) that support your
opinion regarding any limitations.” AR 964 (emphasis in original). Kalpage wrote as follows:
“04-09-2024 Resulted orders El Rio Health labs 520 670-3909 uncontrolled diabetes,
uncontrolled cholesterol, high hypertriglycerdemia elevated lipid panel 4/9/24.” AR 964. The
court understands Kalpage as saying that Ochoa’s functional limitations result from her
uncontrolled diabetes, uncontrolled cholesterol, and high triglyceride levels.
The ALJ’s failure to explicitly consider Kalpage’s response is problematic and without
more, the court might conclude that the ALJ failed to properly evaluate Kalpage’s second
medical opinion. Elsewhere in the decision, however, the ALJ did explain in more detail why
she found Kalpage’s opinions not persuasive. The ALJ reviewed the entire medical record and
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found that while there is evidence that Ochoa’s neuropathy and sciatica limit her ability to work,
the medical evidence does not support Kalpage’s opinion as to the extent of that limitation. See
Kaufmann v. Kijakazi, 32 F.4th 843, 851 (9th Cir. 2022) (When analyzing an ALJ’s finding of non-
disability, a reviewing court considers the agency’s decision as a whole, “[l]ooking to all the pages of
the ALJ’s decision.”) (emphasis in original).
The ALJ noted, for example, that in April of 2024, Kalpage conducted a physical
examination of the claimant. Kalpage “noted peripheral neuropathy as a complication of the
claimant’s diabetes . . . but her physical examination was again normal.” AR 23 (citing 15F pp.
1-3); AR 968-970. The ALJ noted other places in the medical record where “[t]he claimant
reported no diabetic symptoms” and examinations “showed normal neurological results
including normal sensation.” AR 22 (citing 3F pp. 14, 17); AR 411, 414. The ALJ explained
that “[o]ther records also show the claimant reported no weakness, dizziness . . . numbness,
swelling or pain.” AR 22 (citing 3F pp. 25, 26, 31); AR 422, 423, 428. The ALJ ultimately
agreed with Kalpage that Ochoa’s peripheral neuropathy adversely affects her ability to work,
but she concluded that Ochoa’s limitations are not as extensive as Kalpage believes. AR 23.
The ALJ observed that in September of 2022, Ochoa “reported sciatica with numbness,
burning, pins and needles and pain.” AR 23 (citing 5F p. 3); AR 502. She had “positive straight
leg rise bilaterally with right-sided radicular signs.” AR 23 (citing 5F p. 6); AR 505.
“However, the claimant had normal gait, no tenderness or swelling, and normal range of motion
in the spine.” AR 23 (citing 5F pp. 5, 7, 8); AR 504, 506, 507. Almost one year later, however,
in August of 2023, Ochoa had “negative straight leg rise bilaterally.” AR 23 (citing 10F p. 6)
(emphasis added); AR 574. The ALJ ultimately found that Ochoa’s sciatica limits her ability
to work, but she concluded that Ochoa’s limitations are not as extensive as Kalpage believes.
The ALJ further discounted Kalpage’s opinion as to Ochoa’s ability to walk and stand
because her opinion is “inconsistent with the treatment record which regularly showed the
claimant had normal gait.” AR 24; see AR 22-23 (citing 5F p. 5, 10F p. 6); AR 504, 574. She
further discounted Kalpage’s opinion as to Ochoa’s ability to sit because it was “inconsistent
with the treatment records which mention no significant difficulty sitting.” AR 24. The ALJ
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noted those portions of the medical record indicating that “the claimant reported no back pain”
or had “normal range of motion in the spine.” AR 23 (citing 7F p. 8, 5F p. 8); AR 526, 507.
The ALJ considered the supportability and consistency of Kalpage’s opinions. She
agreed that Ochoa’s impairments affect her ability to work but she discounted Kalpage’s
opinion as to the extent of her limitations. The ALJ’s decision to discount the opinions is
supported by substantial evidence.
Ochoa argues to the contrary that the ALJ is not a medical doctor and may not substitute
her own lay opinion for that of a physician. Doc. 13, p. 16 (citing Lisa G. M. v. Kijakazi, 2023
WL 5667870, at *2 (C.D. Cal. July 13, 2023) (“An ALJ cannot properly rely on the ALJ’s own
lay knowledge to resolve such a medical issue.”). Presumably, she believes that a medical
doctor is better able to determine what functional limitations the claimant actually has based on
the medical record. Doc. 13, p. 16.
The court agrees that the ALJ is generally unqualified to express a medical opinion. For
example, in Lisa G. M., the ALJ opined as to “whether strict compliance with Plaintiff’s
diabetes medications would eliminate her diarrhea or reduce it below a disabling level.” Lisa
G. M. v. Kijakazi, 2023 WL 5667870, at *2 (C.D. Cal. July 13, 2023). That, however, is a
medical issue about which a lay person would not be qualified to opine. Here, however, the
ALJ found that a normal gait would be some evidence bearing on that person’s ability to walk
and stand. She further found that if a claimant denied back pain, it would be some evidence
bearing on that person’s ability to sit. The court believes these are areas that lie within the
ALJ’s area of expertise even though she is not a medical doctor. See Rounds v. Comm’r Soc.
Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015) (“[T]he ALJ is responsible for translating and
incorporating clinical findings into a succinct RFC.”).
Ochoa further argues that the ALJ failed to consider the report from the SSA’s
consultative examiner, Dr. Barlow, who conducted an examination in September of 2022. Doc.
13, p. 17; see 5F, pp. 1-15, AR 500-515. Barlow found, among other things, evidence of hand
and fingering limitations resulting from her peripheral neuropathy. Id. (citing AR 507-508);
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5F, pp. 8-9. Ochoa asserts that the ALJ improperly ignored these abnormal findings and
“cherry-picked” the evidence. Doc. 13, p. 17. The court does not agree.
The ALJ did consider Barlow’s examination from September of 2022, although she did
not mention him by name. AR 22 (citing 5F); AR 500-511. She noted that Ochoa reported
neuropathy and on examination, “had decreased sensation in her right hand and foot and four
of five strength in her right hand.” AR 22 (citing 5F pp. 2, 6); AR 501, 505. In her RFC
finding, she found that Ochoa is limited to “gross handling and fine fingering on a frequent
basis bilaterally.” AR 21. The ALJ did consider Barlow’s examination, but she discounted his
opinion about the extent of her functional limitations. See AR 513; 5F p. 14 (Barlow opined
that Ochoa’s right hand fingering is limited to “occasionally.”).
Ochoa further argues that the ALJ failed to properly evaluate the opinion of the
consultative examiner Robert Lewis, Ph.D. The ALJ explained as follows:
The opinions of psychological consultative examiner Robert Lewis, Ph.D. are not
persuasive. (4F). Dr. Lewis’s opinion that the claimant has more than minimal
limitations lasting 12 months or more is not supported by his examination of the
claimant, which showed no significant limitations. It is also not consistent with
the treatment record, which showed no significant mental treatment, symptoms,
or limitations.
AR 24-25. The ALJ considered Lewis’s opinions but discounted them because they were not
supported by his examination and “not consistent with the treatment record, which showed no
significant mental treatment, symptoms, or limitations.” AR 24-25.
In her decision, the ALJ discussed Lewis’s examination, but she did not mention him by
name. AR 20 (citing 4F); AR 494-499. She noted that Ochoa “reported symptoms of poor
sleep, variable appetite, low energy, fatigue, low motivation, and poor concentration for many
years.” AR 20 (citing 4F pp. 1, 2); AR 494-495. On the other hand, “the claimant reported no
mental health problems, diagnosis, treatment or hospitalizations.” AR 20 (citing 4F p. 1); AR
494. The ALJ noted that “[o]n examination the claimant had depressed mood and sad affect but
was cooperative with the examiner and made good eye contact.” AR 20 (citing 4F p. 2); AR
495. “Her memory was intact, intelligence appeared average, though process logical, and
speech normal.” Id. “She scored 27 of 30 on a mini-mental status exam suggesting no
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significant cognitive impairment.” Id. The ALJ further noted that Ochoa “scored 30 of 30 on
a mini-mental status exam” in June of 2023. AR 20 (citing 9F p. 3); AR 565. The ALJ properly
considered whether Lewis’s opinion was supported by his examination and the treatment record.
Moreover, two paragraphs before this one, the ALJ considered that opinions of the
psychological consultative examiner Noelle Rohen, Ph.D., which the ALJ considered
“persuasive.” AR 24. Apparently the ALJ considered the opinions of both psychological
consultative examiners and found one opinion more persuasive than the other.
Ochoa argues to the contrary that Lewis’s opinion was well supported by his clinical
findings such as her “poor sleep, variable appetite, low energy and fatigue, low motivation and
poor concentration.” Doc. 13, p.18. She argues that “the ALJ . . . is not qualified to find that
these findings are not supportive. . . .” Doc. 13, p. 19. The court disagrees. The regulations
require the ALJ to consider the supportability and consistency of the medical opinions.
Reasonable minds could differ as to whether Lewis’s opinion was well supported, but that does
not prove that the ALJ erred. “If the evidence is susceptible to more than one rational
interpretation, it is the ALJ’s conclusion that must be upheld.” Ford v. Saul, 950 F.3d 1141,
1154 (9th Cir. 2020) (punctuation modified).
In her reply brief, Ochoa argues that the ALJ cherry-picked the record and ignored
evidence of “poor sleep, variable appetite, low energy and fatigue, low motivation, and poor
concentration.” Doc. 20, p. 3. The court does not agree. The ALJ noted these particular
findings. AR 20. She noted Ochoa’s “depressed mood and sad affect.” AR 20. She
considered the evidence as a whole and made a “reasoned disability determination.” See Davila
v. Colvin, 2014 WL 5660455, at *4 (C.D. Cal. Nov. 4, 2014) (“The ALJ may not cherry-pick
evidence to support the conclusion that a claimant is not disabled, but must consider the
evidence as a whole in making a reasoned disability determination.”).
Discussion: Symptom Testimony
Ochoa further argues that the ALJ failed to properly evaluate her allegations of disabling
symptoms. Doc. 13, p. 19. The regulations explain as follows:
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When the medical signs or laboratory findings show that you have a medically
determinable impairment(s) that could reasonably be expected to produce your
symptoms, such as pain, we must then evaluate the intensity and persistence of
your symptoms so that we can determine how your symptoms limit your capacity
for work. In evaluating the intensity and persistence of your symptoms, we
consider all of the available evidence from your medical sources and nonmedical
sources about how your symptoms affect you.
20 C.F.R. § 404.1529(c)(1). If the claimant establishes the existence of a medically
determinable impairment “and there is no evidence of malingering, the ALJ can reject the
claimant’s testimony about the severity of her symptoms only by offering specific, clear and
convincing reasons for doing so.” Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017).
In this case, the ALJ found that Ochoa has medically determinable impairments: diabetes
with peripheral neuropathy and sciatica. AR 18. The ALJ found, however, that Ochoa’s
“statements about the intensity, persistence, and limiting effects of [] her symptoms” are
“inconsistent because the record does not show the level of symptoms or limitations alleged.”
AR 23.
The ALJ recognized that Ochoa complained of disabling levels of neuropathy, vomiting,
diarrhea, and pain. She nevertheless found that Ochoa’s reported level of symptoms was not
supported by the treatment records. On the issue of neuropathy, the ALJ summarized as
follows:
Her allegations of severe pain and weakness due to neuropathy are contradicted
by the treatment records and examinations. For much of the period, the claimant’s
treatment record noted she had no complications or symptoms related to diabetes.
In consultative examinations, the claimant reported neuropathy and examination
showed decreased sensation and mildly decreased strength. However, the
examinations did not show tenderness, pain with use of the hands, or difficulty
ambulating or using the hands. In recent treatment records, diabetic neuropathy
was noted. However, the examinations did not show significant pain, difficulty
using the hands, or difficulty ambulating.
AR 23. On the issue of vomiting and diarrhea, the ALJ explained as follows:
The record also does not support the claimant’s allegations or testimony regarding
vomiting and diarrhea. The record does not include objective evidence of ongoing
problems with vomiting or diarrhea. In addition to the objective evidence, the
claimant’s subjective reports are not consistent with her allegations. The claimant
alleged and testified she must always be close to a bathroom because of near
constant incontinence. . . . However, the claimant did not seek treatment for
vomiting and diarrhea except for an isolated occasion in 2024. The claimant
received regular follow-up treatment for her diabetes, but these records show no
complaints of frequent vomiting or diarrhea.
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AR 23. On the issue of pain, particularly in the hands and feet, the ALJ wrote as follows:
The same is true for the claimant’s allegations regarding pain. The record does
not show the claimant reporting ongoing pain, much less constant debilitating
pain. Failure to seek treatment, or even mention, these symptoms is not consistent
with the life altering level of limitations due to vomiting, diarrhea, and pain
alleged by the claimant.
AR 23.
The ALJ evaluated the intensity and persistence of Ochoa’s reported symptoms. She
considered the treatment records, the results from Ochoa’s examinations, and Ochoa’s
subjective symptom reports. The ALJ further considered the medical opinions submitted by
Ochoa’s treating physicians and the Social Security Administration’s consulting physicians.
The ALJ concluded that Ochoa’s reported level of symptoms is not supported by the medical
record. The ALJ provided “specific, clear and convincing reasons” for discounting Ochoa’s
testimony about the severity of her symptoms. See Trevizo v. Berryhill, 871 F.3d 664, 678 (9th
Cir. 2017).
Ochoa argues that the ALJ unduly relied on the objective evidence when she discounted
her allegations of tenderness, hand pain, difficulty ambulating, or difficulties with vomiting and
diarrhea. Doc. 13, pp. 21-22. She argues that the ALJ is not qualified to interpret this evidence
because she is not a doctor. Id. (citing, inter alia, Gines v. Comm’r of Soc. Sec. Admin., No.
CV-19-04479-PHX-JJT, 2020 WL 4345164, at *4 (D. Ariz. July 29, 2020)).
The court recognizes that there is a line of case law that cautions the ALJ about the use
of objective medical evidence when evaluating the claimant’s functional limitations. In
Gaines, for example, the ALJ found that while the radiographs of the claimant’s lumbar spine
showed “stable grade 1 anteriolisthesis with moderate to severe narrowing” and cervical
radiographs showed “significant degenerative disease,” those radiographs failed to show “severe
stenosis, nerve root impingement or several foraminal narrowing,” and therefore the ALJ
discounted the severity of Plaintiff’s alleged pain and restrictions. Gines v. Comm’r of Soc. Sec.
Admin., No. CV-19-04479-PHX-JJT, 2020 WL 4345164, at *4 (D. Ariz. July 29, 2020). The
Gines court found this analysis was error and held that the ALJ is not a medical doctor and is
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not qualified to discount the severity of the claimant’s symptoms based on the ALJ’s own
reading of the objective evidence. Id. The present case, however, is different.
In this case, the ALJ did not offer her own analysis of Ochoa’s radiographs or other
specialized medical testing. Instead, she considered the medical findings of Ochoa’s physicians
as they are reported in the record. She noted as follows:
Eye examination in 2021showed no signs of diabetic retinopathy. (2F p. 19).
Records from July 2022 noted the claimant’s diabetes was stable. (3F p. 14). The
claimant reported no diabetic symptoms including no confusion, dizziness,
headaches, fatigue, or weakness. (3F p. 14). Examination at that time also showed
normal neurological results including normal sensation. (3F p. 17). Other records
also show the claimant reported no weakness, dizziness, weakness, numbness,
swelling, or pain. (3F pp. 25, 26, 31). Examinations also showed continued
musculoskeletal and neurological results with no swelling or loss range of
motion. (3F pp. 27, 31).
AR 22. The ALJ observed that Ochoa’s physicians did not find objective evidence of her
reported level of pain and other symptoms. This is an observation the ALJ is entitled to make.
The court agrees with Ochoa that the ALJ must not rely “exclusively” on objective
evidence when evaluating the claimant’s subjective symptoms. Doc. 13, pp. 21-22; see 20
C.F.R. § 404.1529(c)(3) (listing relevant factors to be considered). “[P]ain is a highly
idiosyncratic phenomenon, varying according to the pain threshold and stamina of the individual
victim.” Hardt v. Astrue, No. CV 05-494-TUC-CKJ, 2008 WL 349003, at *4 (D. Ariz. Feb. 6,
2008). Here, however, the ALJ relied not only on objective evidence but also on the reports of
the consulting physicians and Ochoa’s failure to seek treatment for her alleged debilitating pain.
The ALJ did not rely “exclusively” on the objective medical evidence.
Ochoa further argues that the ALJ improperly considered her failure to seek treatment
without considering reasons why she may not have sought additional treatment. Doc. 13 pp. 22-
23. The court agrees that the ALJ should consider the reasons the claimant offers for her failure
to seek medical treatment. But Ochoa did offer any reasons for this failure. She implies that
the inability to afford treatment could be a plausible reason why a claimant may fail to seek
treatment, but she does not assert that this was her reason. Moreover, this argument does not
explain why, when she did see her treating physician, she failed to report that she was
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experiencing disabling pain. The court finds that the ALJ properly evaluated Ochoa’s
allegations of disabling symptoms. Doc. 13, p. 19.
Finally, Ochoa asserts that the hypothetical offered to the vocational expert was
incomplete because it did not incorporate the limitations listed by her treating physician and the
consultative examiner. Doc. 13, p. 23. And consequently, she argues that the ALJ’s reliance
on the vocational expert’s testimony was error. The court finds to the contrary that “[t]he
hypothetical that the ALJ posed to the [vocational expert] contained all of the limitations that
the ALJ found credible and supported by substantial evidence in the record.” Bayliss v.
Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). “The ALJ’s reliance on testimony the
[vocational expert] gave in response to the hypothetical therefore was proper.” Id.
RECOMMENDATION
For the foregoing reasons, the Magistrate Judge recommends that the District Court, after
its independent review, affirm the final decision of the Commissioner. The ALJ properly
evaluated the medical opinions of Ochoa’s treating provider. The ALJ properly evaluated
Ochoa’s allegations of disabling symptoms. The hypothetical offered to the vocational expert
contained all of Ochoa’s functional limitations that the ALJ found credible.
Pursuant to 28 U.S.C. § 636(b), any party may file and serve written objections within
14 days after being served with a copy of this Report and Recommendation. If objections are
not timely filed, the party’s right to de novo review may be waived. The Local Rules permit the
filing of a response to an objection. They do not permit the filing of a reply to a response
without leave of the District Court.
DATED this 2nd day of March, 2026.
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