1 – OPINION AND ORDER 

UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

EUGENE DIVISION 

JOSE ANTONIO ALVAREZ, 

Plaintiff, 

v. 

COMMISSIONER OF THE SOCIAL 

SECURITYADMINISTRATION, 

Defendant. 

6:15-cv-01981-YY 

OPINION AND ORDER 

YOU, Magistrate Judge: 

Plaintiff Jose Antonio Alvarez (“Alvarez”) seeks judicial review of the Social 

Security Commissioner’s (“Commissioner”) final decision denying his applications for 

Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under 

Titles II and XVI of the Social Security Act (“Act”). This Court has jurisdiction under 42 

USC §§ 405(g) and 1381(c), and reviews to determine that the Commissioner’s decision is 

based upon substantial evidence. Id.; Treichler v. Comm’r of Soc. Sec. Admin., 775 F3d 

1090, 1098 (9th Cir 2014). All parties consented to a Magistrate Judge’s entry of final 

judgment pursuant to 28 USC § 636(c) and FRCP 73. The Commissioner’s decision is 

REVERSED and REMANDED for the following reasons. 

Case 6:15-cv-01981-YY Document 20 Filed 12/06/16 Page 1 of 23
2 – OPINION AND ORDER 

ADMINISTRATIVE HISTORY 

Alvarez applied for DIB on March 20, 2014, alleging disability since December 1, 

2013. Tr. 148-49.1 He applied for SSI on the same date. Tr. 150-54. Mr. Alvarez 

additionally requested “critical case status” and expedited disability determination pursuant 

to 42 USC § 405(q) on October 24, 2014, due to homelessness. Tr. 102-03. 

The Commissioner denied Mr. Alvarez’s applications initially and upon 

reconsideration. Tr. 90-98, 104-09. An Administrative Law Judge (“ALJ”) held a hearing 

on May 29, 2015 (Tr. 31-49), and found Mr. Alvarez not disabled on June 11, 2015. Tr. 15-

25. The Appeals Council denied request for review on August 17, 2015. Tr. 6-8. This 

action finalized the ALJ’s decision, making it subject to this court’s review. 20 CFR §§ 

404.981, 416.1481, 422.210. 

BACKGROUND 

Born in 1956, Alvarez was 58 at the time of his hearing. Tr. 36, 52. He has an 

eleventh-grade education and past relevant work experience as cabinet maker and painter. 

Tr. 187. Mr. Alvarez alleges he is presently disabled due to skin cancer lesions and 

excisions on his face, which impair his eyesight, as well as anxiety and depression. Tr. 180. 

MEDICAL BACKGROUND 

 Beginning in May 2012 Mr. Alvarez sought treatment from primary care physician 

Arnoldo Aleja Padilla Vasquez, M.D., for diabetes, hypertension, and other routine matters. 

Tr. 433-444. He first sought treatment from his primary care physicians for a skin growth 

on his left cheekbone on October 11, 2013. Tr. 409. Mr. Alvarez was also being treated for 

anxiety at this time. Id. 

 

1

 Citations “Tr.” refer to indicated pages in the certified transcript of the administrative record, filed on 

April 1, 2016 (Dckt. # 12). 

Case 6:15-cv-01981-YY Document 20 Filed 12/06/16 Page 2 of 23
3 – OPINION AND ORDER 

 On October 25, 2013, primary care physicians characterized the skin growth as a 

lesion and diagnosed cellulitis. Tr. 411-12. The wound began discharging blood on 

November 11, 2013, and a primary care physician prescribed antibiotics. Tr. 414. This 

treatment continued, with multiple antibiotics, on December 3, 2013, and December 12, 

2013. Tr. 416-17. On December 17, 2013, a dermatologist stated that the wound was not 

healing and “growing rapidly.” Tr. 418. 

 Mr. Alvarez received a definitive invasive squamous cell carcinoma (skin cancer) 

diagnosis on January 2, 2014. Tr. 375. The tumorous lesion grew to 6.5 centimeters by 7.5 

centimeters, which covered Mr. Alvarez’s left cheek and brow and was characterized as 

“large” and “huge.” Id. at 316-18; 375. Plastic surgeon Garth Meldrum, M.D., began a 

series of staged excision operations on January 8, 2014. Id. at 254-56. Dr. Meldrum 

removed the tumor and extensively removed surrounding tissue from Mr. Alvarez’s left 

cheek, eyelid, and deep facial tissue. Id. 

 Mr. Alvarez began radiation treatment on January 10, 2014. Id. at 276, 280. 

Radiologist-oncologist Merideth Wendland, M.D., stated that ideally radiation would not 

occur prior to surgical healing, but the risk of rapid recurrence did not justify delay. Id. at 

277. Following pathology reports and imaging studies on January 22, 2014, 

otolaryngologist David Tom, M.D., recommended a pariodectomy (excision of the 

parathyroid gland) in addition to further facial reconstruction surgery. Id. at 259. Drs. Tom 

and Meldrum performed that surgery on January 23, 2014. Tr. 285-92, 365-66. 

Dr. Meldrum performed further upper and lower eyelid reconstructive surgery on 

March 6, 2014. Admin. R. 316-18. He also performed reconstructive surgery on Mr. 

Alvarez’s cheek. Id. Both features were distorted with anatomical and functional 

Case 6:15-cv-01981-YY Document 20 Filed 12/06/16 Page 3 of 23
4 – OPINION AND ORDER 

impairment due to the previous “huge” surgical excisions and resulting scar tissue. Id. at 

316. 

On June 4, 2014, treating oncologist-radiologist Dr. Wendland stated that Mr. 

Alvarez was three months-post radiation treatment, and is “overall doing well with no 

clinical or radiographic evidence of recurrent or residual disease.” Id. at 345. Dr. 

Wendland explained in some detail that the excised tumor was very close to Mr. Alvarez’s 

left eye with deep margins involving nerve pathways. Id. at 273. She also noted Mr. 

Alvarez’s report that his insurance coverage was changing, and would not cover Dr. 

Meldrum’s services. Id. at 273. 

On October 31, 2014, primary care physician Dr. Padilla noted Mr. Alvarez’s left 

eyelid drop due to the surgical procedures, with associated vision impairment and reports of 

left eye pain. Tr. 420-21. On November 17, 2014, Dr. Padilla’s associate, William Cox, 

M.D., noted that Mr. Alvarez continued to experience left eye pain and irritation, which 

worsened throughout the day. Tr. 421. Dr. Cox identified two eye issues, one relating to 

external irritation, and the second relating to internal pain “emanating from near the left 

orbital area back toward his ear.” Id. Dr. Cox believed the external pain was due to eyelid 

disfigurement and noted, “this is a remarkable reconstruction job considering the extent of 

the disease and grafting required.” Id. Dr. Cox stated that the internal pain was “not likely 

to anything ocular but neuralgic in nature,” and referred Mr. Alvarez to another physician. 

Id. 

On December 30, 2014, Dr. Meldrum stated found no evidence of tumor recurrence 

and stated that Mr. Alvarez’s lower eyelid repair “looks good” but that his upper eyelid did 

not function properly due to distortions caused by scar tissue. Id. at 380. He also found that 

Case 6:15-cv-01981-YY Document 20 Filed 12/06/16 Page 4 of 23
5 – OPINION AND ORDER 

Mr. Alvarez experienced consequent dryness and discharge from the eye, and could not 

keep his left eye open when fatigued. Id. 

On January 27, 2015, Dr. Meldrum addressed Mr. Alvarez’s eyelid and facial scar 

tissue and distortion, and stated “patient’s problem is unchanged.” Id. at 278. He 

recommended further reconstructive surgery for both issues. Id. at 278. 

An April 9, 2015 head and neck CT showed “stable” comparative imaging, and a 

“nodular soft tissue density” near Mr. Alvarez’s jaw which could “represent post-treatment 

change or tumor.” Tr. 426. 

Dr. Padilla next treated Mr. Alvarez on May 1, 2015. Tr. 422. Dr. Padilla again 

concluded that Mr. Alvarez’s “left eyelid is affected, as well as the tissues in the lower 

orbital area. For this reason the patient has significant limitations . . . he fatigues frequently 

and at times feels unsteady because of the [sic] adjusting his estimate with his left eye but 

[sic] to be able to see.” Id. Dr. Padilla also noted that Mr. Alvarez previously performed 

“landscaping/construction work” and is “exposed usually to sun and dust because of his 

occupation. There is concern because on top of visual field limitations he has with his left 

eye he also has difficulty closing it and this [sic] causing significant irritation” and 

concurrent recurrent infection risk. Id. at 422-23. Finally, Dr. Padilla stated that Mr. 

Alvarez was experiencing anxiety-related panic attacks and depression. Id. at 423. 

An April 2015 CT scan showed facial tissue deformities near the parotid gland, 

which represented either post-surgical changes or another tumor. Id. at 426. 

Mr. Alvarez’s primary care physicians assessed depression and anxiety throughout 

the period under review. He received regular mental health therapy and counselling 

Case 6:15-cv-01981-YY Document 20 Filed 12/06/16 Page 5 of 23
6 – OPINION AND ORDER 

between September 30, 2014, and April 22, 2015, when the record closes. Id. at 353-84, 

385-99. 

In May 2015, Dr. Padilla stated that Mr. Alvarez’s vision and balance were impaired 

due to vision distortions related to his disfigured eyelid. Id. at 455-56. Dr. Meldrum 

concurrently opined that Mr. Alvarez continued to experience left eyelid dysfunction as of 

December 30, 2014, and stated that Mr. Alvarez would require time off work to recover 

from additional reconstructive surgery. Id. at 462, 465. 

DISABILITY ANALYSIS 

 The Act defines disability as the “inability to engage in any substantial gainful 

activity by reason of any medically determinable physical or mental impairment which can 

be expected to result in death or which has lasted or can be expected to last for a continuous 

period of not less than 12 months.” 42 USC § 423(d)(1)(A). The Commissioner reserves 

disability determinations for itself, id. at §§ 404.1537(d); 416.927(d), and follows a fivestep regulatory inquiry in assessing disability claims under the Act. Id. at §§ 

404.1520(a)(4); 416.920(a)(4); Tackett v. Apfel, 180 F3d 1094, 1098 (9th Cir 1999). The 

claimant bears the burden of persuasion at steps one to four; the Commissioner shoulders 

the burden of evidentiary production at step five. Id. at 1099; 20 CFR §§ 404.1560(c)(2); 

416.960(c)(2). 

The five-step regulatory analysis first determines if a claimant (1) is currently 

working; (2) has a medically determinable impairment presenting a barrier to work activity; 

or (3) meets or equals a regulatory disability definition based upon codified medical criteria. 

Id. at §§ 404.1520(a)(4)(i-iii); 416.920(a)(4)(i-iii). 

Case 6:15-cv-01981-YY Document 20 Filed 12/06/16 Page 6 of 23
7 – OPINION AND ORDER 

If the claimant is not working, has a qualifying impairment, and does not meet a 

listed disorder, the Commissioner assesses his residual functional capacity (“RFC”). Id. at 

§§ 404.1520(a)(4)(iv); 416.920(a)(4)(iv). The RFC is the most he can do despite limitations 

imposed by his impairment. Id. at §§ 404.1545; 416.945. The Commissioner subsequently 

determines if the claimant may (4) perform his past work, or (5) perform work in the 

national economy. Id. at §§ 404.1520(a)(4)(iv-v); 416.920(a)(4)(iv-v). If he can perform 

such work, he is not disabled under the Act. Id. at §§ 404.1520(a)(4)(v); 416.920(a)(4)(v); 

Tackett, 180 F3d at 1099. If a claimant cannot perform work in the national economy, the 

Act and regulations direct a finding of disability. 42 USC § 423(d); 20 CFR §§ 

404.1520(a)(4)(v); 416.920(a)(4)(v). 

THE ALJ’S FINDINGS 

The ALJ made findings pertaining to steps one and two only. He concluded at step 

one that Mr. Alvarez has not engaged in substantial gainful activity since his December 31, 

2013 alleged onset date. Tr. 17. 

At step two, the ALJ discussed Mr. Alvarez’s obesity, situational depression, 

anxiety, and “status post squamous cancer excision with subsequent radiation treatment.” Id.

at 18. He concluded these were “medically determinable impairments” pursuant to 20 CFR 

§§ 404.1521 and 416.921, but found they did not meet the statutory and regulatory twelvemonth durational requirement. Tr. 18. The ALJ concurrently found Mr. Alvarez’s symptom 

testimony “not entirely credible.” Id. at 19. Because the ALJ found that Mr. Alvarez’s 

impairments did not last more than twelve months, he truncated his analysis at step two and 

found Mr. Alvarez not disabled under the Act. Tr. 25. 

Case 6:15-cv-01981-YY Document 20 Filed 12/06/16 Page 7 of 23
8 – OPINION AND ORDER 

STANDARD OF REVIEW 

 This court must affirm the ALJ’s decision if it is based on proper legal standards and 

supported by substantial evidence. 42 USC § 405(g); Brown-Hunter v. Colvin, 806 F3d 

487, 492 (9th Cir 2015). “Substantial evidence” means “more than a scintilla but less than 

preponderance.” Garrison v. Colvin, 759 F3d 995, 1009 (9th Cir 2014) (quoting Lingenfelter 

v. Astrue, 504 F3d 1029, 1035 (9th Cir 2007)). It is “such relevant evidence as a reasonable 

mind might accept as adequate to support a conclusion.” Id. 

 Variable interpretations of the evidence are insignificant if the Commissioner’s is a 

rational reading of the record, and the reviewing court may not substitute its judgment for 

that of the Commissioner. Id. at 1010 (quoting Andrews v. Shalala, 53 F3d 1035, 1039 (9th

Cir 1995)). Here, this court “must consider the entire record as a whole and may not affirm 

simply by isolating a specific quantum of evidence.” Orn v. Astrue, 495 F3d 625, 630 (9th

Cir 2007) (quoting Robbins v. Soc. Sec. Admin., 446 F3d 880, 882 (9th Cir 2006)); see also 

Garrison, 759 F3d at 1009-10. It may not affirm the Commissioner on grounds upon which 

the ALJ did not rely. Burrell v. Colvin, 775 F3d 1133, 1138 (9th Cir 2014) (citing Connett 

v. Barnhart, 340 F3d 871, 874 (9th Cir 2003)); see also Brown-Hunter, 806 F3d at 1133, 

1138. 

DISCUSSION 

 The issue upon review is whether Mr. Alvarez’s impairments lasted, or were 

expected to last, more than twelve months. Mr. Alvarez cannot establish disability without 

such determination. If his impairments meet the durational requirement, further analysis 

addressing his workplace abilities must occur before a disability determination is made. 

Case 6:15-cv-01981-YY Document 20 Filed 12/06/16 Page 8 of 23
9 – OPINION AND ORDER 

 Mr. Alvarez challenges the ALJ’s evaluation of (1) his testimony, (2) his girlfriend’s 

testimony, (3) physician opinions, and (4) a mental health therapist’s opinion. He 

consequently (5) challenges the ALJ’s conclusion that he did not meet regulatory durational 

requirements at step two in the sequential proceedings. Mr. Alvarez requests remand 

awarding benefits. 

I. Testimonial Evidence 

A. Mr. Alvarez’s Testimony 

1. Standards 

The Act allows consideration of a claimant’s symptom testimony. Pain allegations 

must correspond to a medical impairment “which could reasonably be expected to produce 

the pain or other symptoms alleged . . . .” 42 USC § 423(d)(5)(A). The regulations 

subsequently direct the Commissioner to consider a claimant’s statements regarding his 

symptoms. 20 CFR §§ 404.1529(a); 416.929(a). This analysis is individualized, but alleged 

pain and functional limitation must again relate to a medically-determinable impairment. 

Id. at §§ 404.1529; 416.929. 

The Ninth Circuit consequently directs a two-step process in evaluating a claimant’s 

pain and symptom testimony. First, the ALJ determines “whether the claimant has 

presented objective medical evidence of an underlying impairment which could reasonably 

be expected to produce pain or other symptoms alleged.” Lingenfelter, 504 F3d at 1036. 

Here, the claimant need only show that the impairment “could reasonably have caused some 

degree of the symptom.” Smolen v. Chater, 80 F3d 1273, 1282 (9th Cir 1996) (reaff’d by 

Brown-Hunter, 806 F3d at 493). Second, absent evidence of malingering, the ALJ may 

conclusively reject a claimant’s testimony to the severity of her symptoms only by offering 

Case 6:15-cv-01981-YY Document 20 Filed 12/06/16 Page 9 of 23
10 – OPINION AND ORDER 

“specific, clear and convincing reasons for doing so.” Brown-Hunter, 806 F3d at 493 (citing 

Burrell, 775 F3d at 1136-37); see also Carmickle v. Comm’r Soc. Sec. Admin., 533 F3d 

1155, 1160 (9th Cir 2008) (citing Lingenfelter, 504 F3d at 1036). Such findings must be 

“sufficiently specific to permit the reviewing court to conclude that the ALJ did not 

arbitrarily discredit the claimant’s testimony.” Bunnell v. Sullivan, 947 F3d 341, 345-46 

(9th Cir 1991) (en banc); see also Brown-Hunter, 806 F3d at 493. 

 The “clear and convincing” standard has long controlled the Ninth Circuit’s judicial 

review of a social security claimant’s testimony under the standards above. The Ninth 

Circuit recently and repeatedly reaffirms the standard, noting that while the en banc Bunnell

panel was silent on the matter, “there is no indication that Bunnell intended to overrule that 

precedent.” Burrell, 775 F3d 1133, 1137 (9th Cir 2014). Instead, Bunnell supplements 

earlier authority. Brown-Hunter, 806 F3d at 493 (quoting id.). Therefore, the clear and 

convincing standard controls. Id.; see, e.g., Burrell, 775 F3d at 1137, Molina v. Astrue, 674 

F3d 1104, 1112 (9th Cir 2012); Swenson v. Sullivan, 876 F2d 683, 687 (9th Cir 1989); 

Gallant v. Heckler, 753 F2d 1450, 1455 (9th Cir 1984). 

 This Court may not now deviate from the “clear and convincing” standard pertaining 

to a claimant’s testimony, despite the Commissioner’s inferential invitation. Def.’s Br. 11. 

B. Analysis 

1. Activities of Daily Living 

The ALJ cited Mr. Alvarez’s daily activities. The ALJ noted that “despite 

complaints about left eye problems, [Mr. Alvarez] was able to read the Bible, walk, drive a 

car, and go outside alone.” Tr. 20. He cited Mr. Alvarez’s hearing testimony that he 

“occasionally rides bikes with his girlfriend.” Id. The ALJ also cited reports that Mr. 

Case 6:15-cv-01981-YY Document 20 Filed 12/06/16 Page 10 of 23
11 – OPINION AND ORDER 

Alvarez could watch television and movies, prepare meals, grocery shop, attend church and 

medical appointments, and “maintain a relationship, all indicating he is pretty functional.” 

Id. at 20-21. 

The ALJ’s analysis may cite activities of daily living in conjunction with other 

factors such as frequency and intensity of reported symptoms, medication and its effects, 

and treatment utilized. 20 CFR §§ 404.1529(c)(3); 416.929(c)(3). Inconsistencies between 

testimony and reported activities may support adverse findings. Molina, 674 F3d at 1112; 

Burrell, 775 F3d at 1137 (citing Light v. Soc. Sec. Admin., 119 F3d 789, 792 (9th Cir. 

1997)). But, such reasons must be “sufficiently specific to permit the reviewing court that 

the ALJ did not arbitrarily discredit the claimant’s testimony,” Dodrill v. Shalala, 12 F3d 

915, 918 (9th Cir. 1993), and the ALJ must make “specific findings relating to the daily 

activities” and their transferability to a work environment. Orn, 459 F3d at 639; see also 

Molina, 674 F3d at 1113. Where an ALJ’s analysis is subject to more than one plausible 

interpretation, the reviewing court must affirm the ALJ’s findings if they are reasonable and 

supported by substantial evidence. Rollins v. Massinari, 261 F3d 853, 857 (9th Cir. 2001). It 

must exercise caution in identifying such findings. Garrison, 759 F3d at 1016. 

The ALJ’s citation to Mr. Alvarez’s bicycle riding is unsupported by the record. 

Contrary to the ALJ’s statement, the matter was not discussed at hearing. Further, Mr. 

Alvarez did not endorse riding a bike in two reports of activities of daily living submitted to 

the record. Tr. 212, 244. This reasoning is not sustained. 

The ALJ’s remaining citations indicate sporadic completion of household chores, 

watching television, and medical appointment attendance. Such activities are not 

transferable to the workplace unless the claimant is capable of spending a substantial part of 

Case 6:15-cv-01981-YY Document 20 Filed 12/06/16 Page 11 of 23
12 – OPINION AND ORDER 

his day engaging in functions transferable to a work setting. Orn, 495 F3d at 639. The ALJ 

made no such finding. While this court must affirm reasonable inferences, Batson v. 

Comm’r, 359 F3d 1190, 1193 (9th Cir 2004), the record does not support the ALJ’s 

conclusion that Mr. Alvarez completed daily activities either transferable to a work 

environment or inconsistent with his disability allegation. 

2. Work History 

The ALJ noted Mr. Alvarez’s “strong work history” at his hearing. Tr. 46. The ALJ 

found that this history and Mr. Alvarez’s desire to resume work augmented his testimony. 

Tr. 21. Despite this finding, the ALJ subsequently rejected Mr. Alvarez’s hearing testimony 

that his physician instructed him not to work. Id. at 20. Here, the ALJ cited an April 15, 

2015 mental health counselling note stating that Mr. Alvarez “does get odd jobs but reports 

his energy isn’t back to what it used to be.” Id. (citing id. at 386). 

The record shows that Mr. Alvarez’s primary care physician, Dr. Padilla, noted these 

work attempts on May 1, 2015, but strongly recommended Mr. Alvarez refrain from 

working until his surgical recovery was complete. Tr.422. Dr. Padilla emphasized that this 

restriction especially pertained to Mr. Alvarez’s left eye disfigurement and associated 

infection risk. Id. He also addressed Mr. Alvarez’s resulting visual disturbances impacting 

his balance, and concurrent fatigue. Tr. 422-23. 

This record supports Mr. Alvarez’s testimony on the matter. Further, as of his May 

29, 2015 hearing date, Mr. Alvarez had not yet received final left eyelid reconstructive 

surgery. Tr. 41. The ALJ therefore erroneously discounted Mr. Alvarez’s testimony that 

his physician restricted him from work. 

/// 

Case 6:15-cv-01981-YY Document 20 Filed 12/06/16 Page 12 of 23
13 – OPINION AND ORDER 

3. Failure to Follow Treatment 

A claimant must follow recommended treatment that would restore workplace 

ability, 20 CFR §§ 404.1530(a); 416.930(a), and treatment history is a relevant factor in 

assessing symptom testimony. Id. at §§ 404.1529(c)(3)(v); 416.929(c)(3)(v). The ALJ may 

properly rely upon “unexplained or inadequately explained failure to seek treatment or to 

follow prescribed treatment.” Molina, 674 F3d at 1113 (quoting Tommasetti v. Astrue, 553 

F3d 1035, 1039 (9th Cir. 2008)). But, the ALJ may not rely upon a claimant’s failure to seek 

treatment if he cannot afford it. Orn v. Astrue, 495 F3d 625, 638 (9th Cir 2007) (citing 

Gamble v. Chater, 68 F3d 319, 321 (9th Cir. 1995)). 

The ALJ made several passing references to Mr. Alvarez’s failure to follow 

treatment. He stated that Mr. Alvarez “failed to show” for a May 14, 2014 radiologyoncology appointment, which “implies that the claimant’s symptoms are not particularly 

troublesome.” Id. at 19. This inference is unsupported: Mr. Alvarez consistently sought 

treatment for his conditions between December 2013 and May 2015, when the record closes. 

He testified that changes in insurance coverage interrupted continuity of care (Tr. 41), and 

in June 2014 he told his radiologist that his insurance was changing and he would have to 

switch providers. Tr. 273. Nothing in this record indicates that Mr. Alvarez systematically 

evaded, avoided, or failed to seek treatment in a manner contradicting regulatory instruction 

that he follow treatment that would restore his workplace abilities. The ALJ’s inference is 

not sustained. 

The ALJ also repeatedly noted that Mr. Alvarez “continued to smoke.” Tr. 19, 20. 

An ALJ’s citation to smoking must correlate a claimant’s failure to cease smoking as 

directed by medical personnel to a finding that the claimant could return to work but for this 

Case 6:15-cv-01981-YY Document 20 Filed 12/06/16 Page 13 of 23
14 – OPINION AND ORDER 

failure. Byrnes v. Shalala, 60 F3d 639, 641 (9th Cir. 1995). The ALJ made no such 

identifiable finding. The ALJ’s citation to this behavior is therefore not sustained. 

Finally, the ALJ found that Mr. Alvarez “went out in the sun ‘quite a bit,’ suggesting 

noncompliance and that the claimant has contributed, at least in part, to his ongoing 

condition.” Tr. 19. The ALJ’s indicated citation shows that Mr. Alvarez’s girlfriend 

volunteered to his radiologist that “he has been out in the sun quite a bit.” Id. at 273. This 

spontaneous comment does not establish that Mr. Alvarez sought sun exposure without 

appropriate protection, explain the girlfriend’s observation, or otherwise suggest deliberate 

noncompliance with treatment. While this Court must affirm an ALJ’s inferences 

reasonably drawn, Batson, 359 F3d at 1193, this isolated comment does not establish that 

Mr. Alvarez failed to follow treatment recommendations pertaining to his impairments. 

For all of these reasons, the ALJ’s evaluation of Mr. Alvarez’s symptom testimony is 

not sustained. 

II. Medical Evidence 

 Mr. Alvarez challenges the ALJ’s evaluation of two treating physicians and a mental 

health therapist. 

A. Physician Opinions 

1. Standards 

 The Commissioner relies upon medical evidence to make disability determinations; 

her regulations distinguish between treating, examining, and reviewing physicians. 20 CFR 

§§ 404.1527(c) and (e); 416.927(c) and (e). The regulations reserve disability 

determinations to the Commissioner, and a physician’s statement that an individual is 

unable to work does not direct a finding of disability. Id. at §§ 404.1527(d)(1); 

Case 6:15-cv-01981-YY Document 20 Filed 12/06/16 Page 14 of 23
15 – OPINION AND ORDER 

416.927(d)(1). The ALJ cannot “give any special significance” to the source of an opinion 

on this issue. Id. at §§ 404.1527(d)(2) and 416.927(d)(2). 

 Judicial review consequently distinguishes between treating, examining, and 

reviewing physicians. See, e.g., Lester v. Chater, 81 F3d 821, 830 (9th Cir 1995). A 

treating physician’s opinion “must be given controlling weight if that opinion is well 

supported and not inconsistent with other substantial evidence in the case record.” Edlund 

v. Massinari, 253 F3d 1152, 1157 (9th Cir 2001). The ALJ resolves “conflicting medical 

evidence” on the matter, but “must present clear and convincing reasons for rejecting the 

uncontroverted opinion of a claimant’s physician.” Thomas v. Barnhart, 278 F3d 947, 956-

57 (9th Cir 2002). An examining physician’s opinion, in turn, receives greater weight than 

that of a reviewing physician, and the ALJ must set out “specific, legitimate” reasons for 

rejecting the opinion of an examining physician for that of a reviewing physician. Nguyen 

v. Chater, 100 F3d 1462, 1466 (9th Cir 1996), citing Lester, 81 F3d at 831. 

ii. Arnoldo Padilla Vasquez, M.D. 

Dr. Padilla served as Mr. Alvarez’s treating general physician between at least May 

2012 and May 2015, when the record closes. Tr. 403-444. Dr. Padilla completed an 

evaluation questionnaire on May 12, 2015. Tr. 455-59. 

The ALJ discussed Dr. Padilla’s May 12, 2015 evaluation at length. Tr. 22. He 

noted Dr. Padilla’s opinion that surgical recovery would likely take more than twelve 

months, and included complications related to Mr. Alvarez’s eyelid disfigurement such as 

decreased vision and balance, increased risk of falling, and vulnerability to eye infection. 

Id. The ALJ and gave the assessment “little weight” because Dr. Padilla “did not submit 

Case 6:15-cv-01981-YY Document 20 Filed 12/06/16 Page 15 of 23
16 – OPINION AND ORDER 

objective information to support his assessments and the record does not indicate limitations 

to the degree alleged.” Id. 

The record shows that Dr. Padilla performed routine general care, and left specialty 

care to Mr. Alvarez’s cancer treatment team. On May 1, 2015, Dr. Padilla stated that Mr. 

Alvarez has a decreased left-eye visual field, and “difficulty with his balance because of 

this.” Tr. 422. Dr. Padilla stated that Mr. Alvarez had an increased risk of falling in 

performing manual labor. Id. Finally, Dr. Padilla stated that Mr. Alvarez could not fully 

close his left eye and experienced consequent underlying irritation, which increased his 

infection risk in outdoor environments. Id. 

On May 12, 2015, Dr. Padilla wrote, “Note: physical strength is not the issue here. 

He has vison limitations and risk of eye irritation/infection.” Tr. 458. Dr. Padilla 

otherwise repeated his earlier statements regarding Mr. Alvarez’s decreased left-eye visual 

field and impaired visual acuity, with decreased balance and concurrent risk of falling. Tr. 

455-56. 

The ALJ found that Dr. Padilla did not submit “objective information to support his 

assessments and the record does not indicate limitations to the degree alleged.” Tr. 22. The 

ALJ also found that Dr. Padilla relied upon Mr. Alvarez’s subjective complaints, and found 

that the record did not contain a “detailed eye examination.” Id. 

Dr. Padilla’s clinical notes repeatedly discussed his own observations of Mr. 

Alvarez’s eye symptoms in October and November 2014, and in May 2015. Tr. 420-22. 

Contrary to the ALJ’s finding, Dr. Padilla did not assess exertional limitations, and 

specifically stated “strength is not the issue.” Tr. 457- 58. Finally, because the ALJ’s 

assessment of Mr. Alvarez’s testimony is not sustained, it does not now support the ALJ’s 

Case 6:15-cv-01981-YY Document 20 Filed 12/06/16 Page 16 of 23
17 – OPINION AND ORDER 

rejection of Dr. Padilla’s opinion. For all of these reasons, the ALJ’s conclusion regarding 

Dr. Padilla’s opinion is not sustained. 

ii. Garth Meldrum, M.D. 

Dr. Meldrum treated Mr. Alvarez between January 7, 2014 and May 2015, when the 

record closes. Tr. 324-43, 378-84, 466. Treatment included numerous surgical procedures, 

described above, and associated close follow up and longitudinal care. See Tr. 466. Dr. 

Meldrum completed an evaluation questionnaire on May 27, 2015, stating that Mr. 

Alvarez’s eyelid disfiguration remained symptomatic, and that he did not know the extent of 

Mr. Alvarez’s fatigue symptoms. Tr. 462. Dr. Meldrum also indicated that Mr. Alvarez 

might “possibly” miss more than four workdays per month “initially after surgery.” Tr. 465. 

The ALJ gave the opinion “partial weight,” specifically finding that the record did 

not support four workplace absences per month. Id. at 23. The ALJ based this finding upon 

Mr. Alvarez’s daily activities and “anticipated eyelid surgery.” Id. 

The ALJ’s reasoning failed to account for the record before him. As discussed, the 

ALJ erroneously evaluated Mr. Alvarez’s daily activities, and this reasoning cannot now be 

sustained in addressing Dr. Meldrum’s opinion. 

Further, Mr. Alvarez testified at his hearing that he was still awaiting eyelid surgery. 

Tr. 41. In response to questioning, he stated that his insurance coverage changed several 

times in the preceding period, he did not know if the procedure had been approved for 

payment, and that he did not receive a return phone call from Dr. Meldrum’s office on the 

matter. Tr. 42. Mr. Alvarez also stated he intended to ask Dr. Meldrum’s office about the 

matter, and would ask Dr. Padilla’s office as well. Id. 

Case 6:15-cv-01981-YY Document 20 Filed 12/06/16 Page 17 of 23
18 – OPINION AND ORDER 

The ALJ’s assumption that Mr. Alvarez would shortly receive reconstructive eyelid 

surgery in May 2015 therefore does not establish that Mr. Alvarez’s medically determinable 

impairment, which began in December 2013, lasted less than twelve months. Because the 

matter is one of duration pursuant to the regulatory twelve-month durational requirement, 

rather than total disability, the issue pertaining to the number of days off work following 

surgery is presently irrelevant. The ALJ’s consequential rejection of Dr. Meldrum’s opinion 

is therefore not sustained. 

B. Mental Health Therapist Opinions 

1. Standards 

The regulations delicately codify evaluation of mental health therapist observations 

and opinions. Therapists that do not practice as licensed physicians or psychologists are 

excluded from defined “acceptable medical sources.” 20 CFR §§ 404.1513(a); 416.913(a). 

However, all “therapists,” including mental health therapists, remain “medical sources” 

pursuant to 20 CFR §§ 404.1513(d)(1); 416.913(d)(1). These are termed “non-acceptable” 

medical sources or “other” medical sources. 

The Commissioner clarifies that although the regulations do not explicitly address 

non-acceptable medical source opinions, they require consideration of them, and 

interpretation “will vary according to the particular facts of the case.” SSR 06-3p, available 

at 2006 WL 2329930 at *4.2

 Specifically: 

/// 

/// 

 

2

 Social Security Rulings reflect the Commissioner’s interpretation of its regulations. Molina v. Astrue, 674 

F3d 1104, 1113 n5 (9th Cir 2012) (internal citations omitted). They do not carry the force of law, but bind the 

Commissioner and are entitled to some deference if consistent with the Act and codifying regulations. Id. 

Case 6:15-cv-01981-YY Document 20 Filed 12/06/16 Page 18 of 23
19 – OPINION AND ORDER 

Opinions from “other medical sources” may reflect the source’s 

judgment about some of the same issues addressed in medical 

opinions from “acceptable medical sources,” including 

symptoms, diagnosis and prognosis, what the individual can 

still do despite the impairment(s), and physical and mental 

restrictions. 

Id. at *5. 

The Ninth Circuit addresses non-acceptable medical sources acting without physician 

oversight as “lay” testimony and applies the same standard as to evaluation of lay testimony 

submitted by a claimant’s family and friends. Molina, 674 F3d at 1111 (citing Gomez v. 

Chater, 74 F3d 967, 971 (9th Cir 1996). Here, the ALJ must give reasons “germane” to the 

witness in discrediting such opinions. Molina, 674 F3d at 1111. The ALJ may also reject 

lay testimony to the extent it is predicated upon a claimant’s testimony that is properly 

rejected. Id. at 1114 (citing Valentine v. Comm’r Soc. Sec. Admin., 574 F3d 685, 694 (9th

Cir 2009)). 

2. Therapist Elizabeth Lyman’s Opinion 

Elizabeth Lyman, M.S., Qualified Mental Health Therapist (“QMHT”), submitted a 

letter to the record in response to inquiry from Mr. Alvarez’s counsel on April 21, 2015. Tr. 

398-99. She stated that Mr. Alvarez receives biweekly therapy, and described his symptoms 

of depression and fatigue. Id. at 398. Ms. Lyman also stated that Mr. Alvarez was awaiting 

left eyelid surgery, and “will need to rest and recover” following the procedure. Id. Finally, 

Ms. Lyman articulated Mr. Alvarez’s report that he feared recurrence of his cancer, and his 

hopes of returning to work and regaining self-sufficiency. Id. 

The ALJ awarded Ms. Lyman’s opinion “partial weight.” Tr. 22. He accepted Ms. 

Lyman’s report of Mr. Alvarez’s social skills, but noted “most of the assessment is 

Case 6:15-cv-01981-YY Document 20 Filed 12/06/16 Page 19 of 23
20 – OPINION AND ORDER 

subjective, based on the claimant’s self-reporting. As discussed above, his health condition 

has stabilized following surgery.” Id. 

Here, the ALJ did not properly discredit Mr. Alvarez’s testimony, for the reasons 

discussed above. His reasoning regarding Ms. Lyman’s report is therefore not sustained. 

The ALJ also erred in according Ms. Lyman’s opinion less weight because it was 

solicited by counsel. The “purpose for which medical reports are obtained does not provide 

a legitimate basis for rejecting them.” Lester, 81 F3d at 832. This reasoning is not 

sustained. 

III. The ALJ’s Step Two Findings 

A. Step Two Standards 

The Act defines “disability” as inability to work due to a “medically determinable 

physical or mental impairment which can be expected to result in death or which has lasted 

or can be expected to last for a continuous period of not less than 12 months . . . .” 42 USC 

§§ 423(d)(1)(A); 1382c(a)(3)(A). The Commissioner’s regulations assess “severity” in 

order to “efficiently and reliably” identify claimant’s with medical impairments that are “so 

slight that it is unlikely they would be found disabled even if their age, education, and 

experience were taken into account.” Bowen v. Yuckert, 482 US 137, 153 (1997). 

The regulations state, “An impairment is not severe if it does not significantly limit 

your physical or mental ability to do basic work activities.” 20 CFR §§ 404.1521(a); 

416.921(a). If a claimant has two or more unrelated impairments that concurrently meet the 

twelve-month durational requirement, the Commissioner must consider their effects 

together. Id. at §§ 404.1522(b); 416.922(b). A claimant may not, however, combine 

unrelated impairments to meet the durational requirement. Id. at §§404.1522(a); 

Case 6:15-cv-01981-YY Document 20 Filed 12/06/16 Page 20 of 23
21 – OPINION AND ORDER 

416.922(a). Omissions under this analysis are harmless where an ALJ proceeds beyond step 

two in the sequential evaluation and makes findings at steps three, four, and, potentially, 

five. Lewis v. Astrue, 498 F3d 909, 911 (9th Cir 2007). 

B. Analysis 

 The ALJ found Mr. Alvarez’s obesity, skin cancer, anxiety, and depression medically 

determinable under the regulations. Tr. 18. The parties dispute whether these impairments 

lasted twelve months or longer. 

 To proceed in adjudication beyond step two in the regulatory analysis, Mr. Alvarez 

must show that his impairments remained medically determinable for one year subsequent 

to his December 30, 2013 onset date. The record now before the court closes on May 27, 

2015. Tr. 465. Drs. Padilla and Meldrum both submitted opinions to the record in May 

2015 stating that Mr. Alvarez continued to experience symptoms that would interfere with 

workplace functioning at that time. A plain reading of this record announces that Mr. 

Alvarez’s post-surgical skin cancer complications, eye disease, anxiety, and depression 

remained medically determinable in May, 2015 (id. at 455), and that associated treatment 

lasted beyond December 30, 2014. Id. at 462. The ALJ therefore erred in finding 

otherwise. 

IV. Remand 

A. Remand Standards 

 The Court exercises discretion in determining remand parameters. Treichler, 775 

F3d at 1099-1100; Harman v. Apfel, 211 F3d 1172, 1178 (9th Cir 2000), cert. denied, 513 

US 1038 (2000). 42 USC § 405(g), sentence four, instructs that the reviewing court may 

“affirm, modify, or reverse the Commissioner’s decision “with or without remanding the 

Case 6:15-cv-01981-YY Document 20 Filed 12/06/16 Page 21 of 23
22 – OPINION AND ORDER 

cause for a rehearing.” The “ordinary remand” rule instructs that the proper course is, 

generally, to remand to the agency for additional proceedings. Treichler, 775 F3d at 1099; 

see also Dominguez v. Colvin, 808 F3d 403, 407-08 (9th Cir 2015). 

 A remand for award of benefits is appropriate where further administrative 

proceedings would serve no useful purpose and the record is fully developed. Treichler, 

775 F3d at 1100; Strauss v. Comm’r, 635 F3d 1135, 1138-139 (9th Cir 2011) (quoting 

Benecke v. Barnhart, 379 F3d 587, 593 (9th Cir 2004)). Here, the Court must conduct a 

“credit-as-true” analysis. Strauss, 635 F3d at 1138. 

 The “credit-as-true” doctrine directs that evidence be credited and an immediate 

award of benefits where: (1) the ALJ failed to provide legally sufficient reasons for 

rejecting the evidence; (2) there are no outstanding issues requiring resolution before a 

disability determination can be made; and (3) it is clear from the record that the ALJ would 

be required to find the claimant disabled should the evidence be credited. Treichler, 775 

F3d at 1101-02. Application is discretionary. Id. at 1102; see also Connett v. Barnhart, 340 

F3d 871, 876 (9th Cir 2003) (citing Bunnell, 947 F2d at 348 (en banc)). The Court declines 

to credit testimony when “outstanding issues” remain. Luna v. Astrue, 623 F3d 1032, 1035 

(9th Cir 2010). 

B. Remand Analysis 

The ALJ erred in his assessment of Mr. Alvarez’s testimony, the opinions of Drs. 

Padilla and Meldrum, and that of Ms. Lyman. This evidence plainly shows that Mr. 

Alvarez’s impairments lasted at least twelve months beyond his December 30, 2013 alleged 

onset date. Because the ALJ’s findings ceased at step two of the regulatory analysis, he did 

not assess a residual functional capacity pursuant to 20 CFR §§ 404.1545; 416.945. Nor did 

Case 6:15-cv-01981-YY Document 20 Filed 12/06/16 Page 22 of 23
23 – OPINION AND ORDER 

the ALJ make further findings regarding Mr. Alvarez’s ability to return to his past work or 

perform other work in the national economy at steps four and five. 

This Court cannot now construe such findings. Although Mr. Alvarez asserts the 

erroneously evaluated evidence should be credited, he does not point to any specific 

evidence clearly establishing disability, or articulate a theory of disability under the 

remaining regulatory analysis at steps three, four, and five. Further, construction of a 

claimant’s RFC is reserved to the ALJ. Dominguez, 808 F3d at 904 (citing 20 CFR § 

415.927(d)(2)). Significant outstanding issues therefore remain. Consequently, the Court 

credits no evidence, and remands the matter for further proceedings to address Mr. 

Alvarez’s post-surgical skin cancer status, eye disease, mental impairments, and obesity in a 

full disability analysis. 

ORDER 

For the reasons discussed above, the Commissioner’s decision is REVERSED and 

REMANDED pursuant to 42 USC § 405(g), sentence four. 

DATED December 6, 2016. 

/s/Youlee Yim You 

Youlee Yim You 

United States Magistrate Judge 

Case 6:15-cv-01981-YY Document 20 Filed 12/06/16 Page 23 of 23