# (SS) Alvarez v. Commissioner of Social Security

> District Court, E.D. California · December 21, 2021

URL: https://www.frixlaw.com/law-library/cases/10032469

## Case

- **Court:** District Court, E.D. California
- **Decided:** December 21, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## How later opinions describe it (automated extraction)

- noting a reviewing court is 2 “constrained to review the reasons the ALJ asserts”

## Opinion text

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8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
10

11 EDWARD SOTO ALVAREZ, ) Case No.: 1:20-cv-1390 JLT
)
12 Plaintiff, ) ORDER GRANTING PLAINTIFF’S REQUEST
) FOR JUDICIAL REVIEW (DOC. 20) AND
13 v. ) REMANDING THE ACTION PURSUANT TO
) SENTENCE FOUR OF 42 U.S.C. § 405(g)
14 COMMISSIONER OF SOCIAL SECURITY, )
) ORDER DIRECTING ENTRY OF JUDGMENT IN
15 Defendant. ) FAVOR OF EDWARD SOTO ALVAREZ, AND
) AGAINST DEFENDANT, THE COMMISSIONER
16 ) OF SOCIAL SECURITY
)
17

18 Edward Soto Alvarez asserts he is entitled to disability benefits, a period of disability, and
19 supplemental security income under Titles II and XVI of the Social Security Act. Plaintiff argues the
20 administrative law judge erred in evaluating his subjective statements. (See generally Doc. 20.) For
21 the reasons set forth below, the matter is REMANDED for further proceedings pursuant to sentence
22 four of 42 U.S.C. § 405(g).
23 BACKGROUND
24 In March 2017, Plaintiff applied for benefits, alleging he came disabled in January 2017 due to
25 neck, back, and hip problems. (Doc. 10-2 at 79.) The Social Security Administration denied the
26 applications at the initial level and upon reconsideration. (See generally id. at 75-137.) Plaintiff
27 requested a hearing and testified before an ALJ on August 16, 2018. (Id. at 21, 38.) The ALJ found
28 Plaintiff was not disabled and issued an order denying benefits on November 29, 2019. (Id. at 21-31.)
1 Plaintiff requested review by the Appeals Council, which denied the request on July 27, 2020. (Id. at 7-
2 9.) Thus, the ALJ’s determination became the final decision of the Commissioner of Social Security.
3 STANDARD OF REVIEW
4 District courts have a limited scope of judicial review for disability claims after a decision by
5 the Commissioner to deny benefits under the Social Security Act. When reviewing findings of fact,
6 such as whether a claimant was disabled, the Court must determine whether the Commissioner’s
7 decision is supported by substantial evidence or is based on legal error. 42 U.S.C. § 405(g). The ALJ’s
8 determination that the claimant is not disabled must be upheld by the Court if the proper legal standards
9 were applied and the findings are supported by substantial evidence. See Sanchez v. Sec’y of Health &
10 Human Serv., 812 F.2d 509, 510 (9th Cir. 1987).
11 Substantial evidence is “more than a mere scintilla. It means such relevant evidence as a
12 reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S.
13 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197 (1938)). The record as a whole
14 must be considered, because “[t]he court must consider both evidence that supports and evidence that
15 detracts from the ALJ’s conclusion.” Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985).
16 DISABILITY BENEFITS
17 To qualify for benefits under the Social Security Act, Plaintiff must establish he is unable to
18 engage in substantial gainful activity due to a medically determinable physical or mental impairment
19 that has lasted or can be expected to last for a continuous period of not less than 12 months. 42 U.S.C.
20 § 1382c(a)(3)(A). An individual shall be considered to have a disability only if:
21 his physical or mental impairment or impairments are of such severity that he is not only
unable to do his previous work but cannot, considering his age, education, and work
22 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
23 which he lives, or whether a specific job vacancy exists for him, or whether he would be
hired if he applied for work.
24

25 42 U.S.C. § 1382c(a)(3)(B). The burden of proof is on a claimant to establish disability. Terry v.
26 Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990). If a claimant establishes a prima facie case of disability,
27 the burden shifts to the Commissioner to prove the claimant is able to engage in other substantial
28 gainful employment. Maounis v. Heckler, 738 F.2d 1032, 1034 (9th Cir. 1984).
1 ADMINISTRATIVE DETERMINATION
2 To achieve uniform decisions, the Commissioner established a sequential five-step process for
3 evaluating a claimant’s alleged disability. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The process
4 requires the ALJ to determine whether Plaintiff (1) is engaged substantial gainful activity, (2) had
5 medically determinable severe impairments (3) that met or equaled one of the listed impairments set
6 forth in 20 C.F.R. § 404, Subpart P, Appendix 1; and whether Plaintiff (4) had the residual functional
7 capacity to perform to past relevant work or (5) the ability to perform other work existing in significant
8 numbers at the state and national level. Id. The ALJ must consider testimonial and objective medical
9 evidence. 20 C.F.R. §§ 404.1527, 416.927.
10 Pursuant to the five-step process, the ALJ determined Plaintiff did not engage in substantial
11 gainful activity after the alleged onset date of January 1, 2017. (Doc. 10-2 at 23.) Second, the ALJ
12 found Plaintiff had “the following severe impairments: degenerative disc disease of the lumbar spine
13 and cervical spine, internal derangement of the bilateral hips, major depressive disorder single episode,
14 anxiety disorder verses generalized anxiety disorder.” (Id. at 24.) At step three, the ALJ determined
15 Plaintiff’s impairments did not meet or medically equal a Listing. (Id. at 24-25.) Next, the ALJ found:
16 [T]he claimant has the residual functional capacity to perform light work as defined
in 20 CFR 404.1567(b) and 416.967(b) except he can lift and carry 20 pounds
17 occasionally and 10 pounds frequently, can stand and walk six hours and sit six hours
in an eight-hour workday with normal breaks. The claimant can occasionally climb
18 ramps and stairs, balance, stool, kneel, crouch, and crawl; can occasionally operate
foot controls with the bilateral lower extremities, but cannot climb ladders, ropes, or
19 scaffolds. The claimant should avoid concentrated exposure to extreme cold and
heat, wetness/humidity, vibration, and dangerous and unprotected workplace hazards.
20 The claimant needs to wear a back brace at work. The clamant can have no more
than occasional interaction with the general public, supervisors, and coworkers. He
21 can no more than occasionally understand, remember, and/or apply information
necessary to perform complex and detailed work tasks or make judgements on
22 complex and detailed work related job assignments or cope with the stress normally
associated with semiskilled or skilled employment.
23

24 (Id. at 25.) With this residual functional capacity, the ALJ determined at step four that Plaintiff was
25 “unable to perform any past relevant work.” (Id. at 29.) However, ALJ found Plaintiff was “capable of
26 making a successful adjustment to other work that exists in significant numbers in the national
27 economy.” (Id. at 31.) Therefore, the ALJ concluded Plaintiff was not disabled as defined by the
28 Social Security Act from January 1, 2017, through the date of the decision. (Id.)
1 DISCUSSION AND ANALYSIS
2 Plaintiff argues the ALJ in evaluating his statements concerning the severity of his symptoms
3 and “failed to provide a clear and convincing reason supported by substantial evidence” to reject
4 Plaintiff’s testimony. (Doc. 20 at 19, emphasis omitted.) On the other hand, the Commissioner asserts
5 that “[t]he ALJ’s reasoning in discounting Plaintiff’s subjective symptom testimony was consistent with
6 a reasonable interpretation of the record and controlling legal authority.” (Doc. 21 at 8.) Therefore, the
7 Commissioner asserts the Court should affirm the final decision. (Id. at 9.)
8 A. Plaintiff’s subjective statements
9 Plaintiff testified that he was “messed up” in his neck, middle spine, and lower back. (Id. at 45.)
10 He said he had a bone “sticking out” in his spine, without penetrating the skin, which caused pain and
11 muscle spasms. (Id. at 44-45.) Plaintiff reported the pain radiated, and he had numbness in his hands
12 and “a little tingling on [his] feet.” (Id. at 44-45, 58-59.) He said he wore a back brace, though he
13 forgot it the day of the hearing. (Id. at 67.)
14 Plaintiff said he also had problems with both hips, and explained they popped as he walked.
15 (Doc. 10-2 at 40.) Plaintiff reported he was not sure if his hips were out of place, but he would “hear a
16 bone out” as he walked. (Id. at 46.) He testified that doctors indicated he “may need surgery in the
17 future” for his hips. (Id.) Plaintiff reported he was “scared to get surgery” and was unsure if he would
18 have it—such as a total hip replacement—if the opportunity arose, because his mother had metal in a
19 hip and it bothered her. (Id. at 47-48, 69.)
20 Plaintiff believed he could no longer perform the work because he “can’t even get up and …
21 take a little walk to clear [his] mind.” (Doc. 10-2 at 48.) He explained that he “used to take … walks in
22 the morning to clear [his] mind” so he “didn’t feel too depressed.” (Id. at 42.) He testified that he had
23 been diagnosed with major depressive disorder and anxiety disorder, or generalized anxiety. (Id. at 41.)
24 He said he took sertraline for depression, which helped him to feel better. (Id. at 52-53.) Plaintiff
25 reported the dosage had doubled; he previously took one dose but was taking two by the time of the
26 hearing. (Id.) He stated that he saw psychiatrist with one-on-one psychotherapy, but stopped when his
27 insurance stopped paying for it. (Id.) Plaintiff believed the therapy was not beneficial because he
28 attributed his depression to his pain, and the “pain was still going to be there.” (Id. at 53-54.) He
1 explained that two years before, he “was able to … do barbeques and wash [his] car” but could no
2 longer do these activities due to his pain. (Id. at 54.)
3 Plaintiff said he also no longer performed household chores, such as laundry, sweeping,
4 vacuuming, or dusting. (Doc. 10-2 at 58, 60-61.) Plaintiff reported that he hardly left the house, and
5 though he continued to go to church on Sundays, he would have to get up during the service. (Id. at 58-
6 59.) He stated that he did not have to leave to visit family members, as they would “usually just come
7 to the house.” (Id. at 60.) Plaintiff said he had a few friends who would “come buy and pick [him] up”
8 because they did not want him stuck at home all the time. (Id. at 65.)
9 Plaintiff estimated he could sit “15/20 minutes,” and “[n]o more than 30 minutes tops” before he
10 needed to stand. (Doc. 10-2 at 57.) Plaintiff would stand for “maybe 15/20 minutes” before he needed
11 to sit back down, depending on his level of pain. (Id.) He said he would “have to probably push” to
12 walk the length of a football field. (Id. at 48.) Plaintiff agreed that it was “fair to say that throughout
13 the day [he’s] kind of rotating from sitting, standing, lying down.” (Id. at 57) Plaintiff said he spent a
14 lot of time lying in a recliner that vibrated and applied heat to his back. (Id. at 66.) He reported that he
15 would have to look into whether his insurance would cover an MRI. (Doc. 10-2 at 69.) Plaintiff
16 explained he was “in debt right now with some of the doctors.” (Id.)
17 B. Standards for reviewing a claimant’s statements
18 In evaluating a claimant’s statements regarding the severity of his symptoms, an ALJ must
19 determine first whether objective medical evidence shows an underlying impairment “which could
20 reasonably be expected to produce the pain or other symptoms alleged.” Lingenfelter v. Astrue, 504
21 F.3d 1028, 1035-36 (9th Cir. 2007) (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991)).
22 Second, if there is no evidence of malingering, the ALJ must make specific findings as to credibility by
23 setting forth clear and convincing reasons for rejecting his subjective complaints. Id. at 1036.
24 If there is objective medical evidence of an impairment, an ALJ may not discredit a claimant’s
25 testimony as to the severity of symptoms merely because it is unsupported by objective medical
26 evidence. See Bunnell v. Sullivan, 947 F.2d 341, 347-48 (9th Cir. 1991). The Ninth Circuit explained:
27 The claimant need not produce objective medical evidence of the [symptom] itself, or
the severity thereof. Nor must the claimant produce objective medical evidence of the
28 causal relationship between the medically determinable impairment and the symptom.
By requiring that the medical impairment “could reasonably be expected to produce”
1 pain or another symptom, the Cotton test requires only that the causal relationship be a
reasonable inference, not a medically proven phenomenon.
2

3 Smolen v. Chater 80 F.3d 1273, 1282 (9th Cir. 1996) (referring to the test established in Cotton, 799
4 F.2d 1403). Further, an ALJ is directed to identify “specific reasons for the weight given to the
5 individual’s symptoms,” in a manner “sufficiently specific to allow a reviewing court to conclude the
6 ALJ rejected the claimant’s testimony on permissible grounds and did not arbitrarily discredit the
7 claimant’s testimony.” Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004).
8 An ALJ may consider many factors to assess a claimant’s statements including, for example: (1)
9 the claimant’s reputation for truthfulness, (2) inconsistencies in testimony or between testimony and
10 conduct, (3) the claimant’s daily activities, (4) an unexplained, or inadequately explained, failure to
11 seek treatment or follow a prescribed course of treatment, and (5) testimony from physicians
12 concerning the nature, severity, and effect of the symptoms of reported by a claimant. Fair v. Bowen,
13 885 F.2d 597, 603 (9th Cir. 1989); see also Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002)
14 (an ALJ may consider a claimant’s reputation for truthfulness, inconsistencies between a claimant’s
15 testimony and conduct, and a claimant’s daily activities).
16 C. The ALJ’s Analysis
17 The ALJ summarized Plaintiff’s testimony at the hearing, and determined “the claimant’s
18 medically determinable impairments could reasonably be expected to cause the alleged symptoms.”
19 (Doc. 10-2 at 26.) However, the ALJ found Plaintiff’s “statements concerning the intensity, persistence
20 and limiting effects of these symptoms are not entirely consistent with the medical evidence and other
21 evidence in the record...” (Id.) Following this finding, the ALJ stated:
22 As for the claimant’s statements about the intensity, persistence, and limiting effects
of his or her symptoms, they are inconsistent because although the claimant alleges a
23 worsening of his symptoms in the last year, the record indicates only two visits to his
provider in 2018 and one visit to his provider in March 2019 (Exhibits 7F). In
24 addition, despite the worsening, his provider has not prescribed more than muscle
relaxer and NSAIDs (Exhibit 7F, p. 4). The claimant testified that he is covered by
25 MediCal insurance; however, he has yet to see a pain management provider due to
alleged insurance issues (Exhibit 7F, p. 12).
26
Treatment records indicate the claimant sought treatment for neck and back pain
27 beginning in March 2017 (Exhibit 2F, p. 3). The claimant reported that he had a
history of injury as a child, but had experienced more pain in the last seven to eight
28 years (Exhibit 2F, p. 3). He exhibited tenderness in his back, but full range of motion,
negative straight leg raises, normal gait and strength, intact sensation, and normal
1 reflexes (Exhibit 2F, pp. 1, 4). His provider prescribed naproxen and cyclobenzaprine
and referred him to physical therapy (Exhibit 2F, pp. 2, 5). The claimant participated
2 in physical therapy without improvement in his symptoms (Exhibit 3F). He reported
increased symptoms with lifting over 25 pounds, walking more than one mile,
3 climbing, and poor posture (Exhibit 3F, p. 5). There were no strength deficits, he had
a feeling of his spine wanting to pop with active lumbar flexion, and he presented
4 with guarding with hip movement (Exhibit 3F, pp. 7, 34, 35).

5 In August 2017, the claimant complained of neck, low back, and hip pain with a
sensation of needles and spasms in the neck (Exhibit 4F, p. 3). His back was tender to
6 palpation with limited range of motion, his gait was not antalgic, and he was able to
complete flexion of the hip with tenderness at the extremes and at the great trochanter
7 (Exhibit 4F, p. 4). Later in the month, he returned to his provider with complaints of
severe depression and was started on sertraline (Exhibit 4F, p. 6).
8
In September 2017, the claimant was seen for initial treatment of mental symptoms
9 (Exhibit 5F, p. 1). His mental status was fairly normal, except it was noted that he
appeared distracted and anxiety interfered with his concentration (Exhibit 5F, p. 1). It
10 does not appear that he returned to this provider for further treatment.

11 In October 2017, the claimant reported improved depression, but he was still down and
anxious (Exhibit 7F, p. 21). His sertraline dosage was increased to 100 mg a day and
12 he was prescribed ibuprofen in addition to cyclobenzaprine (Exhibit 7F, p. 24). In
November 2017, he returned to his provider complaining that his depression had
13 returned (Exhibit 7F, p. 17). He had tenderness to palpation of the neck and back, he
kept his head in an erect position and limited rotation, and his lumbar spine range of
14 motion was limited to 40 degrees with flexion and 10 degrees with extension (Exhibit
7F, p. 18). His mental status was normal, except he was tearful at times (Exhibit 7F,
15 pp. 15, 19, 24). His sertraline was increased to 150 mg at that time (Exhibit 7F, p. 19).
At his next appointment in December 2017, he reported that he had not increased his
16 sertraline dosage (Exhibit 7F, p. 14). He told his provider that he was planning to do a
side job, but he was worried about his chronic pain (Exhibit 7F, p. 14). He was
17 referred for pain management and he was prescribed meloxicam (Exhibit 7F, p. 14).
He returned in March 2018 for a refill on meloxicam and an increase in his dosage of
18 sertraline (Exhibit 7F, pp. 10-12). He reported that he was down and having anxiety
attacks, and he was working on resolving insurance issues to begin pain management
19 (Exhibit 7f, pp. 10, 12). In November 2018, he reported that his anxiety and depression
were controlled with sertraline 200 mg a day (Exhibit 7F, p. 6). He was next seen by
20 his providers in March 2019, reporting neck pain for one month with popping when he
moved and moderate depression (Exhibit 7f, p. 2). He said he was better able to cope
21 with things, and he had normal mental status (Exhibit 7F, pp. 2, 4, 7). His sertraline
dosage was continued, and he was started on baclofen in addition to meloxicam
22 (Exhibit 7F, p. 4).

23 X-rays of the thoracic spine in March 2017 showed mild degenerative disc changes
without acute fracture (Exhibit 1F, p. 1). X-rays of the cervical spine showed severe
24 degenerative cervical spondylosis, including subtle retrolisthesis of C3 on C4 (Exhibit
1F, p. 2). X-rays of the lumbar spine showed severe spondylolisthesis at L5-S1 level
25 likely related to underlying pars defect (Exhibit 1F, p. 3). X-rays of the left hip in
September 2017 indicated a small area of mixed central lucency and circumferential
26 radiodensity over the femoral neck and could not exclude the possibility of an osteoid
osteoma versus a superimposed calcification from the soft tissues (Exhibit 4F, p. 13).
27

28 (Doc. 11-2 at 26-28.) The ALJ then summarized the medical opinions in the record. (See id. at 28-29.)
1 Plaintiff argues the ALJ erred in evaluating his testimony in this manner, and rejecting his
2 statements based upon “gaps in treatment and the conservative nature of treatment.” (Doc. 20 at 19-
3 22.) According to Plaintiff, these reasons are not “clear and convincing reasons supported by
4 substantial evidence.” (Id. at 22.) The Commissioner argues the ALJ properly considered “benign
5 objective medical evidence, and conservative and inconsistent treatment,” which “were legally valid
6 and factually supported reasons” to reject Plaintiff’s testimony. (Doc. 21 at 9)
7 1. Objective medical evidence
8 In general, “conflicts between a [claimant’s] testimony of subjective complaints and the
9 objective medical evidence in the record” can be “specific and substantial reasons that undermine . . .
10 credibility.” Morgan v. Comm’r of the Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999). While a
11 claimant’s “testimony cannot be rejected on the sole ground that it is not fully corroborated by
12 objective medical evidence, the medical evidence is still a relevant factor in determining the severity of
13 the claimant’s pain and its disabling effects.” Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001);
14 see also Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (“Although lack of medical evidence
15 cannot form the sole basis for discounting pain testimony, it is a factor that the ALJ can consider”).
16 Importantly, if an ALJ cites the medical evidence to support an adverse credibility
17 determination, it is not sufficient for the ALJ to simply state the testimony is contradicted by the record.
18 Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001). Rather, an ALJ must “specifically
19 identify what testimony is credible and what evidence undermines the claimant’s complaints.” Greger
20 v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006); see also Lester v. Chater, 81 F.3d 821, 834 (9th Cir.
21 1996) (the ALJ has a burden to “identify what testimony is not credible and what evidence undermines
22 the claimant’s complaints”); Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993) (an ALJ must identify
23 “what evidence suggests the complaints are not credible”).
24 The Ninth Circuit explained that “summariz[ing] the medical evidence supporting [the] RFC
25 determination ... is not the sort of explanation or the kind of ‘specific reasons’ [the Court] must have in
26 order to ... ensure that the claimant’s testimony was not arbitrarily discredited.” See, e.g., Brown-
27 Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015). As a result, “the observations an ALJ makes as
28 part of the summary of the medical record are not sufficient to establish clear and convincing reasons
1 for rejecting a Plaintiff’s credibility.” Argueta v. Colvin, 2016 WL 4138577 at *13 (E.D. Cal. Aug. 3,
2 2016). For example, in Brown-Hunter, the claimant argued the ALJ failed to provide clear and
3 convincing reasons for rejecting her symptom testimony. Id., 806 F. 3d at 491. The district court
4 identified inconsistencies in the ALJ’s summary of the medical record that it gave rise to reasonable
5 inferences about Plaintiff’s credibility. Id. On appeal, the Ninth Circuit determined the ALJ failed to
6 identify the testimony she found not credible, and did not link that testimony to support the adverse
7 credibility determination. Id. at 493. The Court explained that even if the district court’s analysis was
8 sound, the analysis could not cure the ALJ’s failure. Id. at 494.
9 Again, in Holcomb v. Saul, the Ninth Circuit determined an ALJ erred when discrediting
10 symptom testimony as “not entirely consistent with the medical evidence,” without linking the
11 testimony and medical evidence. Id., 832 Fed. App'x. 505, 506 (9th Cir. Dec. 28, 2020). The Court
12 noted the ALJ summarized the claimant’s testimony and “determined that his symptom testimony was
13 not ‘entirely consistent with the medical evidence and other evidence in the record.’” Id. at 506. The
14 Court observed that “the ALJ discussed relevant medical evidence but failed to Holcomb’s symptom
15 testimony to specific medical records and explain why those medical records contradicted his symptom
16 testimony.” Id. Further, the Court observed that “the ALJ never mentioned Holcomb’s symptom
17 testimony while discussing the relevant medical evidence.” Id. Because the Court is constrained to the
18 reviewing reasoning identified by the ALJ for discounting testimony, the Court found the “failure to
19 specific the reasons for discrediting Holcomb's symptom testimony was reversible error.” Id. (citing
20 Brown-Hunter, 806 F.3d at 494).
21 Likewise, here, the ALJ offered little more than a summary of the medical evidence to support
22 the rejection Plaintiff’s subjective statements. The ALJ summarized the treatment records from March
23 2017 through March 2019, noting complaints of pain, depression, and anxiety. (Doc. 11-2 at 26-27.)
24 In addition, the ALJ noted Plaintiff had x-rays on his spine, which the ALJ acknowledged showed
25 “severe cervical spondylosis, including subtle retrolisthesis,” and “severe spondylolisthesis” at the L5-
26 SI level. (Id at 27.) However, the ALJ did not link any objective findings in the treatment notes or the
27 x-rays to Plaintiff’s testimony. The ALJ did not identify any evidence that he believed was inconsistent
28 with Plaintiff’s testimony that he needed to alternate positions throughout the day and could sit “[n]o
1 more than 30 minutes” before he needed to stand. (See id. at 27, 57.) The ALJ also did not identify
2 objective medical evidence that undermined or contradicted Plaintiff’s statements concerning difficulty
3 walking. (See id. at 27, 48.) Therefore, the ALJ’s summary of the medical record does not support the
4 decision to reject Plaintiff’s subjective statements. See Brown-Hunter, 806 F.3d at 494; see also
5 Coloma v. Comm’r of Soc. Sec., 2018 WL 5794517 at *9 (E.D. Cal. Nov. 2, 2018) (finding error where
6 “the ALJ simply cite[d] to medical evidence and the general adequacy of Plaintiff’s functioning,
7 without any link to how they conflict with, or undermine, Plaintiff’s statements”).
8 2. Treatment provided
9 In evaluating a claimant’s statements, the ALJ may consider “the type, dosage, effectiveness,
10 and side effects of any medication.” 20 C.F.R. §§ 404.1529(c), 416.929(c). The treatment a claimant
11 received, especially when conservative, is a legitimate consideration in a credibility finding. Parra v.
12 Astrue, 481 F.3d 742, 751 (9th Cir. 2007) (“Evidence of ‘conservative treatment’ is sufficient to
13 discount a claimant’s testimony regarding severity of an impairment”). Importantly, however, “the fact
14 that treatment may be routine or conservative is not a basis for finding subjective symptom testimony
15 unreliable absent discussion of the additional, more aggressive treatment options the ALJ believes are
16 available.” Block v. Berryhill, 2018 WL 1567814 at *5 (E.D. Cal. Mar. 31, 2018), quoting Moon v.
17 Colvin, 139 F. Supp. 3d 1211, 1220 (D. Or. 2015).
18 The ALJ observed that Plaintiff’s “provider has not prescribed more than muscle relaxer and
19 NSAIDs.” (Doc. 10-2 at 26.) As the ALJ implicates, such treatment has been characterized as
20 “conservative” in nature, and may support the decision to reject a claimant’s subjective statements.
21 See, e.g., Elzig v. Berryhill, 2019 WL 2024953 at *12 (E.D. Cal. May 8, 2019) (finding treatment
22 including NSAIDs, a TENS unit and heat to be “conservative treatment”). However, the ALJ did not
23 identify any more aggressive treatment options that he believed were available for treating Plaintiff’s
24 impairments, such as the “severe degenerative cervical spondylosis” and “severe spondylolisthesis at
25 [the] L5-S1 level” in Plaintiff’s spine. (Doc. 10-2 at 26.) Although the Commissioner suggests that
26 “treatment providers could have tried a range of treatments considering his reports of significant pain
27 such as nonopioid analgesics, opioid analgesics, or injections” (Doc. 21 at 8), such treatment options
28 were not identified by the ALJ in his opinion, and the Court is constrained to the reasoning stated by the
1 ALJ. See Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) (noting a reviewing court is
2 “constrained to review the reasons the ALJ asserts”).
3 Because the ALJ did not identify what more aggressive treatment that he believed to be
4 appropriate for Plaintiff’s conditions, the conservative care Plaintiff received cannot support an adverse
5 credibility determination. See Moon, 139 F.Supp.3d at 1200; see also Block, 2018 WL 1567814 at *5;
6 A.H. v. Comm’r of Soc. Sec., 2020 WL 5443243, at *8 (N.D. Cal. Sept. 10, 2020) (ALJ erred in
7 discounting testimony due to conservative treatment because the ALJ did not cite medical records
8 indicating “more aggressive treatment options”).
9 3. Failure to seek treatment
10 The Ninth Circuit determined a claimant’s “failure to seek treatment” supports an adverse
11 credibility determination. Fair, 885 F.2d at 603. Similarly, an ALJ may determine a claimant’s
12 statements are “less credible if the level or frequency of treatment is inconsistent with the level of
13 complaints.” SSR 96-7p, 1996 SSR LEXIS 4, at *21.1 Thus, gaps in treatment may suggest a lower
14 level of pain and functional limitations than a claimant alleges. See Johnson v. Shalala, 60 F.3d 1428,
15 1434 (9th Cir. 1995); see also Fair, 885 F.2d at 603 (“unexplained, or inadequately explained, failure to
16 seek treatment … can cast doubt on the sincerity of the claimant's pain testimony”). When rejecting
17 testimony for failure to seek treatment, an ALJ “must not draw inferences about an individual’s
18 symptoms and their functional effects … without first considering any explanations that the individual
19 may provide, or other information in the case record, that may explain infrequent or irregular medical
20 visits or failure to seek treatment.” SSR 96-7p, 1996 SSR LEXIS 4, at *22. For example, the Ninth
21 Circuit held that gaps in treatment do not constitute a clear and convincing reason for discounting
22 credibility if the claimant lacked the financial ability to pay for treatment. Orn v. Astrue, 495 F.3d 625,
23 638 (9th Cir. 2007).
24 The ALJ opined Plaintiff’s statements were inconsistent with the record because “the record
25 indicates only two visits to his provider in 2018 and one visit to his provider in March 2019.” (Doc. 10-
26
27
1 Social Security Rulings are issued by the Commissioner to clarify regulations and policies. Though they do not
28 have the force of law, the Ninth Circuit gives the rulings deference “unless they are plainly erroneous or inconsistent with
1 2 at 26, citing Exh. 7F [Doc. 10-2 at 425- 459].) Furthermore, the ALJ observed that Plaintiff “testified
2 that he is covered by MediCal insurance; however, he has yet to see a pain management provider due to
3 alleged insurance issues.” (Id., citing Exh. 7F, p. 12 [Doc. 10-2 at 434].).
4 Plaintiff contends the ALJ erred in addressing his lack of treatment, because “there is abundant
5 evidence in the record of Mr. Alvarez’s financial instability which provides justification for any lapses
6 in treatment.” (Doc. 20 at 20.) For example, Plaintiff observes: “Physical therapy records from August
7 2017 indicate that Mr. Alvarez was unable to make a co-pay payment. [Citation] Mr. Alvarez reported
8 to his primary care provider on August 22, 2017 that he was falling behind on paying his bills.” (Id.,
9 citing AR 342, 385 [Doc. 10-2 at 346, 389].) In addition, Plaintiff notes that he “was unable to pick up
10 his prescriptions” and testified that he was in debt to his physicians. (Id., citing AR 65, 434 [Doc. 10-2
11 at 69, 438].)
12 The Commissioner asserts that “[t]he ALJ acknowledged Plaintiff’s reported issues with
13 insurance, but Plaintiff had insurance during large portions of 2017-2019.” (Doc. 21 at 8, citing e.g.,
14 AR 383 (Blue Cross of California), 422 (Molina Healthcare), 426 (MediCal), 434 (Blue Cross of
15 California).) The Commissioner contends also, “Although Plaintiff argues that he could not see a pain
16 specialist because of insurance issues…, he still did not seek treatment from a pain specialist after
17 subsequently obtaining insurance.” (Id.) Therefore, the Commissioner asserts “the ALJ’s discussion of
18 Plaintiff’s treatment history bolstered the reasonableness of the decision to discount his subjective
19 allegations of disability.” (Id.)
20 Notably, though the ALJ criticized Plaintiff for “only two visits to his provider in 2018,” the
21 record indicates Plaintiff did not have insurance for a portion of the year and was required to “Self Pay”
22 for the visit in March 2018. (See Doc. 10-2 at 434.) Because the ALJ did not consider whether the
23 failure to seek treatment in 2018 was due lack of coverage and Plaintiff’s inability to afford visits, the
24 identified gaps in treatment cannot support the adverse credibility determination. See SSR 96-7p, 1996
25 SSR LEXIS 4, at *22; Orn, 495 F.3d at 638; see also McMillen v. Berryhill, 2018 WL 3769829, at *19
26 (E.D. Cal. Aug. 7, 2018) (“the ALJ erred by questioning Plaintiff's credibility where Plaintiff did not
27 seek medical treatment because of his lack of insurance”). On the other hand, the failure to see a pain
28
1 management specialist after Plaintiff obtained coverage with MediCal, particularly with a long delay
2 after coverage, may support an adverse credibility determination.
3 4. Failure to identify the testimony being rejected
4 The ALJ must identify what testimony from a claimant is not credible. See Burch v. Barnhart,
5 400 F.3d 676, 680 (9th Cir. 2005). “General findings” regarding credibility, such as the ALJ provided
6 here, “are insufficient.” Berry v. Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010) (citations omitted). The
7 Ninth Circuit requires an ALJ to “specifically identify what testimony is credible and what evidence
8 undermines the claimant’s complaints.” Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006)
9 (emphasis added); see also Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993) (an ALJ “must state
10 which pain testimony is not credible and what evidence suggests the complaints are not credible”);
11 Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007) (the ALJ must “specifically identify[] what
12 testimony is not credible and what evidence undermines the claimant’s complaints”). Because the ALJ
13 did not meet this burden to identify specific statements rejected or the evidence undermining the
14 limitations to which Plaintiff testified, the ALJ failed to properly set forth findings “sufficiently specific
15 to allow a reviewing court to conclude the ALJ rejected the claimant’s testimony on permissible
16 grounds.” Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004); see also Thomas, 278 F.3d at 958.
17 D. Remand is Appropriate
18 The decision whether to remand a matter pursuant to sentence four of 42 U.S.C. § 405(g) or to
19 order immediate payment of benefits is within the discretion of the district court. Harman v. Apfel,
20 211 F.3d 1172, 1178 (9th Cir. 2000). Except in rare instances, when a court reverses an administrative
21 agency determination, the proper course is to remand to the agency for additional investigation or
22 explanation. Moisa v. Barnhart, 367 F.3d 882, 886 (9th Cir. 2004) (citing INS v. Ventura, 537 U.S.
23 12, 16 (2002)). Generally, an award of benefits is directed when:
24 (1) the ALJ has failed to provide legally sufficient reasons for rejecting such evidence,
(2) there are no outstanding issues that must be resolved before a determination of
25 disability can be made, and (3) it is clear from the record that the ALJ would be required
to find the claimant disabled were such evidence credited.
26

27 Smolen v, 80 F.3d at 1292. In addition, an award of benefits is directed where no useful purpose would
28 be served by further administrative proceedings, or where the record is fully developed. Varney v.
1 Sec’y of Health & Human Serv., 859 F.2d 1396, 1399 (9th Cir. 1988). The Ninth Circuit also explained
2 that “where the ALJ improperly rejects the claimant's testimony regarding his limitations, and the
3 claimant would be disabled if his testimony were credited,” the testimony may be credited as true, and
4 remand is not appropriate. Lester, 81 F.3d at 834; Smolen, 80 F.3d at 1292.
5 However, courts retain flexibility in crediting testimony as true. Connett v. Barnhart, 340 F.3d
6 871, 876 (9th Cir. 2003) (remanding for further determinations where there were insufficient findings
7 as to whether the plaintiff's testimony should be credited as true). A remand for further proceedings
8 regarding the credibility of a claimant is an appropriate remedy. See, e.g., Bunnell, 947 F.2d at 348
9 (affirming a remand for further proceedings where the ALJ failed to explain with sufficient specificity
10 the basis for rejecting the claimant’s testimony); Byrnes v. Shalala, 60 F.3d 639, 642 (9th Cir. 1995)
11 (remanding the case “for further proceedings evaluating the credibility of [the claimant’s] subjective
12 complaints…”). Accordingly, remand is appropriate for the ALJ to provide sufficient findings
13 concerning Plaintiff’s subjective complaints and the limitations Plaintiff identified in his testimony.
14 CONCLUSION AND ORDER
15 For the reasons set for above, the Court finds the ALJ erred in evaluating the record and
16 Plaintiff’s subjective complaints, and the ALJ’s decision cannot be upheld. See Sanchez, 812 F.2d at
17 510. Accordingly, the Court ORDERS:
18 1. Plaintiff’s request for review of the ALJ’s decision (Doc. 20) is GRANTED;
19 2. The matter is REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further
20 proceedings consistent with this decision; and
21 3. The Clerk of Court is DIRECTED to enter judgment in favor of Plaintiff Edward
22 Alvarez and against Defendant, the Commissioner of Social Security.
23
24 IT IS SO ORDERED.

25 Dated: December 20, 2021 _ /s/ Jennifer L. Thurston
26 CHIEF UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10032469. Public record. Not legal advice.