Keelen v. Commissioner of Social Security ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 San Francisco Division 11 MARIO KEELEN, Case No. 19-cv-00461-LB 12 Plaintiff, ORDER GRANTING IN PART 13 v. PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND 14 COMMISSIONER OF SOCIAL DENYING DEFENDANT’S CROSS- SECURITY, MOTION FOR SUMMARY 15 JUDGMENT Defendant. 16 Re: ECF No. 19, 24 17 18 INTRODUCTION 19 Plaintiff Mario Keelen seeks judicial review of a final decision by the Commissioner of the 20 Social Security Administration denying his claim for supplemental security income (“SSI”) 21 benefits under Title XVI of the Social Security Act (“SSA”). 1 The plaintiff moved for summary 22 judgment.2 The Commissioner opposed the motion and filed a cross-motion for summary 23 judgment.3 Under Civil Local Rule 16-5, the matter is submitted for decision by this court without 24 25 1 Pl. Mot. – ECF No. 19. Citations refer to material in the Electronic Case File (“ECF”); pinpoint 26 citations are to the ECF-generated page numbers at the top of documents. 27 2 Id. at 1. 3 Cross-Mot. – ECF No. 24. 1 oral argument. All parties consented to magistrate-judge jurisdiction.4 The court grants in part the 2 plaintiff’s motion for summary judgment, denies the Commissioner’s cross motion, and remands 3 for further proceedings. 4 5 STATEMENT 6 1. Procedural History 7 On December 11, 2014, the plaintiff filed an application for SSI benefits under Title XVI, 8 alleging paranoia, panic attacks, anxiety, depression, post-traumatic stress disorder (“PTSD”), 9 knee injury, and chronic back problems.5 The Commissioner denied his SSI claim initially and 10 upon reconsideration.6 On January 21, 2016, the plaintiff requested a hearing.7 11 On August 3, 2017, Administrative Law Judge Richard P. Laverdure (the “ALJ”) held a 12 hearing8 and then held a supplemental hearing on December 5, 2017.9 At the supplemental 13 hearing, the ALJ heard testimony from medical expert Joseph M. Malancharuvil, Ph.D., and 14 vocational expert (“VE”) Timothy J. Farrell.10 The ALJ issued an unfavorable decision on January 15 5, 2018.11 The Appeals Council denied the plaintiff’s request for review on November 30, 2018.12 16 The plaintiff timely filed this action for judicial review and filed a motion for summary 17 judgment.13 The Commissioner filed a cross-motion for summary judgment.14 18 19 4 Consent Forms – ECF Nos. 4, 11. 20 5 Compl. – ECF No. 1 at 1; Pl. Mot. – ECF 19 at 4–5; Administrative Record (“AR”) 13, 76. The plaintiff initially alleged an onset date of January 1, 1994, but later amended the onset date to 21 September 20, 2013. See AR 13, 49. 6 AR 13, 76–89, 91–109. 22 7 AR 13, 136. 23 8 AR 33. 24 9 AR 47. 10 AR 48. 25 11 AR 13–27 26 12 AR 1–3. 27 13 Compl. – ECF No. 1; Pl. Mot. – ECF 19. 14 Cross-Mot. – ECF No. 24. 1 2. Summary of Administrative Record 2 2.1 Medical Records 3 2.1.1 Atascadero State Hospital — Examining 4 The plaintiff was admitted to Atascadero State Hospital on May 23, 2002 while he was 5 incarcerated under California Welfare & Institutions Code § 6602.15 The plaintiff reported a 6 history of criminal convictions, including rape and burglary.16 He admitted to a history of drug 7 use, starting at age 15, “consist[ing] of marijuana, cocaine and alcohol.”17 The staff psychiatrist, 8 Anton Haidinyak, M.D., noted that the plaintiff’s “cognition/comprehension appeared to be within 9 normal range and IQ estimate is below normal.”18 The plaintiff was able to do a number of tasks, 10 including “recall[ing] four objects in five minutes without any difficulty.”19 Dr. Haidinyak 11 diagnosed the plaintiff with paraphilia, polysubstance dependence, and antisocial personality 12 disorder.20 The plaintiff was discharged on December 7, 2005.21 13 2.1.2 Martinez Detention Facility — Treating 14 From December 2012 to December 2014, the plaintiff received evaluations and treatments 15 from clinicians at the Martinez Detention Facility of the Contra Costa Health Services.22 On his 16 first admission on December 9, 2012, mental-health clinician Margaret Robbins noted that the 17 plaintiff “reports hearing voices and regular use of marijuana” and was “agitated and irritable.”23 18 19 20 15 AR 328, 332, 334, 336–37. Under California Welfare & Institution Code § 6602, “[u]pon the commencement of the probable cause hearing” determining whether a person is “likely to engage in 21 sexually violent predatory criminal behavior” after release, such person “shall remain in custody” pending the hearing. See Cal. Welf. & Inst. Code § 6602(a). 22 16 AR 328, 334. 23 17 AR 329. 24 18 AR 330, 337. 19 Id. 25 20 AR 331, 338, 340. 26 21 AR 334. 27 22 See, e.g., AR 348–93. 23 AR 349. 1 In April 2013, the plaintiff had a psychiatric assessment.24 During the intake process, he 2 reported feeling “fearful” and “anxious” and described feeling uncomfortable around groups of 3 people.25 He was afraid of “how people will perceive him” and reported “hear[ing] people 4 mumbling—[and] thinks they are talking [about] him.”26 Daniel May, M.D., performed the initial 5 psychiatric assessment27 and, in examining the plaintiff’s mental status, noted that that his mood 6 was “remarkable” for “depression” and “low energy.”28 Dr. May reported the following diagnoses: 7 Major Depressive Disorder, PTSD, Amphetamine Dependence, and Borderline Personality 8 Disorder.29 He prescribed Paxil and advised the plaintiff to refrain from drug use.30 9 From June 20, 2013 to July 23, 2013, the plaintiff received psychiatric treatment on an 10 outpatient basis at the Martinez Detention Facility.31 On June 26, 2013, Dave Singh Auluck, M.D., 11 evaluated the plaintiff during an initial psychiatric consultation and noted that the plaintiff had a 12 “dysphoric” affect.32 Dr. Auluck assessed that the plaintiff had a mood disorder (not otherwise 13 specified) and prescribed Paxil.33 The plaintiff continued his psychotherapy and taking Paxil.34 14 The record reflects that the plaintiff last used crystal meth in October 16, 2013.35 15 By February 5, 2014, the plaintiff apparently had joined a residential program called the House 16 of Change in Oakland, California.36 He told Dr. May that he was participating in a “90 day 17 18 24 AR 424–31 19 25 AR 424. 26 AR 427. 20 27 AR 428–31. Although Dr. May did not write his first name in the initial psychiatric assessment 21 report, the record shows that his first name is Daniel. See AR 442. 28 AR 429. 22 29 See AR 430. See also Pl.’s Mot – ECF 19 at 6. 23 30 AR 430. 24 31 AR 370–84 32 AR 372. 25 33 Id. 26 34 See AR 442, 457, 459, 465, 469. 27 35 AR 348, 359, 370, 385, 396, 401, 407, 412, 415. 36 AR 470. 1 Residential program” and that he was “in charge of the janitorial part of the whole program.”37 2 Dr. May noted that the plaintiff was benefitting from the Paxil.38 Dr. May assessed the plaintiff’s 3 mental status as “mood euthymic and with a dynamic range, not pressured or elevated[;] no 4 psychotic features or ideas of reference, no irritability or anxiety, no obsessive or ruminative 5 features, not suicidal or homicidal.”39 6 On April 30, 2014, Dr. May conducted an annual update for the plaintiff’s assessment.40 He 7 described the plaintiff as “doing very well” at the recovery program.41 He noted that the plaintiff 8 had a long history of polysubstance dependence, and the substance use caused the plaintiff to 9 become “paranoid and quite disorganized.”42 The plaintiff’s mood appeared to be euthymic during 10 the exam, and his thinking was “rational.”43 Dr. May diagnosed the plaintiff with major depressive 11 disorder and continued to prescribe him with Paxil.44 The plaintiff continued to see Dr. May for 12 the rest of 2014.45 13 On January 7, 2015, the plaintiff experienced “a major relapse” of depression.46 He was not 14 taking his Paxil and was having conflicts with another peer in the recovery program.47 Dr. May 15 observed the plaintiff to be “more depressed with low mood.”48 He noted the plaintiff’s “anxiety, 16 poor sleep, decreased concentration, and trouble with motivation.”49 17 18 37 Id. 19 38 Id. 39 Id. 20 40 AR 436, 474. 21 41 AR 436. 22 42 Id. 43 Id. 23 44 AR 437 (noting “Axis I 296.32; MDD recurrent, moderate” under “diagnosis”); AR442. 24 45 AR 478 (visit on July 23, 2014), 481 (visit on September 24, 2014), 485 (visit on November 26, 2014). 25 46 AR 487. 26 47 Id. 27 48 Id. 49 Id. 1 2.1.3 Pacific Health Clinic, Dr. Aparna Dixit — Examining Psychologist 2 On August 3, 2015, Aparna Dixit, PsyD, performed a psychological evaluation of the plaintiff 3 in connection with his social-security claim.50 The plaintiff “rode his bike to the evaluation and 4 arrived on time for the appointment.”51 5 For the plaintiff’s mental-status and behavioral examination, Dr. Dixit observed: 6 [The plaintiff] was mildly disheveled with fair hygiene and grooming. His eye contact was adequate. No visual hindrance was noted during this evaluation. He 7 was alert and oriented to place, time, person, and situation. His speech was clear, spontaneous, and coherent. He had no difficulty with hearing during this 8 evaluation. His comprehension skills appeared to be intact. His affect was 9 appropriate and his mood which was dysthymic. There were no signs of delusions or hallucinations observed during this evaluation. Thought process was linear and 10 goal directed and thought content was logical. He denied current suicidal or homicidal ideation. His insight was fair and judgment was intact. 11 During the testing process itself, the claimant was cooperative and he displayed 12 adequate effort. He demonstrated mildly decreased attention and concentration during the evaluation. He had no difficulty answering questions requiring common 13 sense and abstract reasoning. He had no difficulty solving simple math problems 14 within a time limit. He was able to spell the word WORLD forward and backward. He was able to state the current president of the United States. He was able to state 15 the name of the capital of California but not the current Governor of California. He was able to do serial 3s but not 7’s correctly. Throughout the examination he 16 maintained an even pace and demonstrated adequate persistence.52 17 Dr. Dixit reported that the plaintiff’s verbal comprehension, perceptual reasoning, working 18 memory, and full-scale IQ fell in the low-average range.53 The plaintiff’s testing also “suggest[ed] 19 mild impairment in organizing, sequencing, and engaging in tasks requiring mental flexibility.”54 20 Dr. Dixit’s diagnostic impressions included depressive disorder and polysubstance abuse.55 He 21 reported that the evaluation revealed that the plaintiff had “some cognitive deficits.”56 “No 22 23 50 AR 496–97. 24 51 AR 497. 52 AR 498–99. 25 53 AR 499. 26 54 Id. 27 55 AR 500. 56 Id. 1 symptoms suggesting a trauma based disorder were evident.”57 The plaintiff’s depression and 2 anxiety “appear[ed] to be responding to psychiatric treatment.”58 As for plaintiff’s work-related 3 functioning, Dr. Dixit noted “mild” impairment for the following abilities: follow/remember 4 complex/detailed instructions; maintain adequate pace or persistence to perform complex tasks; 5 maintain adequate attention/concentration; maintain emotional stability/predictability; interact 6 appropriately with the public on a regular basis; and perform tasks requiring mathematics skills.59 7 2.1.4 Bayview Medical Clinic, Dr. Omar C. Bayne — Examining 8 On August 27, 2015, Omar C. Bayne, M.D., conducted an orthopedic evaluation on the 9 plaintiff for his lower-back pain and right-knee pain.60 Dr. Bayne reported the following 10 diagnostic impressions: (1) chronic recurrent low back strain/sprain; (2) lumbar spondylosis; and 11 (3) internal derangement right knee, possibly medial meniscus tear right knee.61 In terms of the 12 plaintiff’s functionality, Dr. Bayne noted that the plaintiff “required a use of cane or walking aids 13 to prevent giving out of the right knee.” 62 He observed that the plaintiff “should be able to lift and 14 carry 10 pounds frequently and 20 pounds occasionally.”63 He concluded that the plaintiff “should 15 be able to work in any work environment except on unprotected heights.”64 16 2.1.5 Lifelong Trust Health Center 17 2.1.5.1 Matthew Fentress — Treating Physician 18 On February 9, 2016, the plaintiff went to his primary-care physician, Matthew Fentress, 19 M.D., and appeared to be in crisis.65 Dr. Fentress referred him to Licensed Clinical Social Worker 20 21 57 Id. 22 58 Id. 23 59 AR 500–01. 24 60 AR 504. 61 AR 506. 25 62 Id. 26 63 Id. 27 64 AR 507. 65 AR 597. 1 (“LCSW”) Kari Jennings-Parriott for psychotherapy.66 Ms. Jennings-Parriott noted “depressed” 2 mood and “flat” affect in the plaintiff.67 She referred the plaintiff back to Dr. Fentress for 3 medication support.68 4 In March 2016, Dr. Fentress referred the plaintiff to see Ted Aames, PhD, a psychologist, for 5 his “severe recurrent major depressive disorder with psychotic features with anxious distress.”69 6 For the plaintiff’s pain in right knee and back, Dr. Fentress continued to order pain medication 7 (ibuprofen) as treatment.70 In April 2016, Dr. Fentress referred the plaintiff to physical therapy for 8 his bilateral lower back pain.71 9 In May 2016 and July 2016, the plaintiff visited Dr. Fentress for alcohol withdrawal.72 During 10 the May visit, Dr. Fentress prescribed Chloridizepoxide for the plaintiff’s shaking and anxiety 11 resulting from alcohol withdrawal.73 He prescribed the same in July in addition to a prescription 12 for naltrexone “for maintenance of abstinence” from alcohol.74 13 2.1.5.2 Ted Aames, Ph.D — Treating Psychologist 14 From March 2016 to July 2017, the plaintiff met with Dr. Aames, on a roughly bi-monthly 15 basis for psychotherapy.75 On March 10, 2016, Dr. Aames held a session lasting 90 minutes and 16 conducted a psychiatric diagnostic evaluation.76 The plaintiff complained of “‘anxiety’ and 17 ‘depression’ and feeling ‘scared to death.’ . . . [and] ‘fearful for [his] life.’”77 He told Dr. Aames 18 19 66 AR 599. 20 67 AR 517. 21 68 AR 518. 69 AR 595. 22 70 AR 594–96. 23 71 AR 592. 24 72 AR 589, 586. 73 AR 589. 25 74 AR 586. 26 75 See AR 574, 715. 27 76 AR 574. 77 AR 575. 1 that “he is fearful of someone putting a bullet in his head.”78 Dr. Aames reported that the plaintiff 2 experienced symptoms “consistent with anxiety, depression, and panic disorder including severe 3 and persistent depressed mood, loss of interest, sleep disturbance . . . and [symptoms] 4 characteristic of recurrent panic attacks with persistent worry about having additional panic attacks 5 and their consequences.”79 The plaintiff described a history of “emotional state symptomatic of 6 personality disorder . . . and marked impairments in developing close relationships.”80 7 Dr. Aames observed the plaintiff to be “anxious and depressed.”81 He noted that the plaintiff 8 apparently experienced auditory hallucinations “all the time.”82 Specifically, the plaintiff reported 9 hearing “voices that tell him that others are going to harm him that say things like, ‘Yeah, we 10 know what he did and we’re gonna get you.’”83 The plaintiff “reported [that] he is ‘convinced’ 11 others are always talking about him because they know about his past.”84 Dr. Aames noted the 12 plaintiff’s history of substance abuse, including cocaine dependence.85 The plaintiff told 13 Dr. Aames that he was not using any drugs at this time and had stopped using cocaine a few years 14 ago.86 Dr. Aames noted that the plaintiff “continues to report and exhibit severe psychological 15 symptoms after years of abstinence.”87 Under “assessment,” Dr. Aames listed: “severe recurrent 16 major depressive disorder with psychotic features with anxious distress,” “panic disorder,” and 17 “mix[ed] personality disorder.”88 18 19 20 78 Id. 21 79 Id. 80 Id. 22 81 Id. 23 82 Id. 24 83 Id. 84 Id. 25 85 AR 577. 26 86 See id. 27 87 Id. 88 AR 578. Dr. Aames also noted “employment problem,” “extreme poverty,” and “housing problems.” 1 On April 12, 2016, Dr. Aames completed a “mental impairment questionnaire” regarding the 2 plaintiff.89 He described the following clinical findings about the plaintiff: “persistent anxiety, 3 depressed mood, sleep disturbance, fear, muscle tension, diminished ability to concentrate, 4 hypervigilance, [history of] fleeting suicidal ideation, recurrent panic attacks.”90 Dr. Aames noted 5 that the plaintiff’s depression “magnifies pain,” which in turn “worsens symptoms of 6 depression.”91 When asked whether the plaintiff’s impairments would remain as severe in the 7 absence of substance abuse, Dr. Aames responded “seemingly.”92 He explained that the plaintiff 8 “reported a pattern of alcohol use that appears to be in the form of periodic binge drinking” to 9 alleviate his symptoms and negative moods.93 Dr. Aames noted that the plaintiff purportedly 10 stopped using cocaine “a few years ago,” but that “he continues to report and exhibit severe 11 psychological Sx [symptoms] after years of reported abstinence and during his detention at 12 Atascadero State Hospital from 5/23/02 to 12/7/05.”94 Dr. Aames also found that the plaintiff’s 13 ability to sustain an ordinary routine without special supervision was “extremely impaired.95 He 14 anticipated that plaintiff’s impairments would interfere with the plaintiff’s concentration or pace of 15 work for 50% of the day.96 He also estimated that the plaintiff’s impairment would cause the 16 plaintiff to be absent from work for “more than four days per month.”97 Dr. Aames concluded that, 17 given his history, the plaintiff would not be the best vocational candidate and that his “past and 18 current functioning reveals a person who is chronically dysfunctional.”98 19 20 89 AR 510. 21 90 AR 510. 22 91 Id. 92 Id. 23 93 Id. 24 94 Id. 25 95 AR 512. Dr. Aames also found varying levels of impairment for the plaintiff’s other work-related mental abilities. See id. 26 96 AR 513. 27 97 Id. 98 Id. 1 The plaintiff continued his psychotherapy sessions with Dr. Aames through 2016.99 During 2 this time, Dr. Aames noted periods of time when the plaintiff was drinking less and times when 3 the plaintiff drank more. On August 31, 2016, the plaintiff reported making it through alcohol 4 withdrawal and had “only a few sips” after he stopped his medication.100 On September 16, 2016, 5 the plaintiff reported only “one standard drink” in the prior week.101 During this session, Dr. 6 Aames observed that the plaintiff “continues to evince extreme/consistent distrust of others, 7 apprehensive expectation of being exploited/harmed, and isolative [behavior] due to fear of being 8 hurt or taken advantage of.”102 9 Similarly, on October 3, 2016, the plaintiff reported to Dr. Aames that he was drinking “with 10 much less frequency and quantity.”103 Dr. Aames observed that the plaintiff continued to 11 experience “PTSD related nightmares almost every night, which interfere with sleep and mood[;] 12 [He] [a]lso reports depressed mood and severe anxiety, despite the increase of Paxil . . . which is 13 no longer beneficial.”104 Two weeks later, the plaintiff reported that he had increased his alcohol 14 use to “1/2 pint of distilled spirits three times per week.”105 He also reported “concerns regarding 15 increased difficulties with paranoid ideation, auditory hallucinations, sleep disturbance, and 16 hypervigilanc[e].”106 On November 21, 2016, the plaintiff again reported “drinking less.”107 Dr. 17 Aames revised the plaintiff’s diagnosis from panic disorder to chronic PTSD because of his 18 “persistent and severe PTSD Sx [symptoms] of re-experiencing, avoidance, numbness, and 19 20 21 99 AR 527, 530, 532, 534, 559, 557, 561, 555, 553, 550, 548, 543, 710, 708, 703, 699, 692, 685, 674, 671 (listed in chronological order of visits in 2016). 22 100 AR 708. 23 101 AR 704. 24 102 Id. 103 AR 701. 25 104 Id. 26 105 AR 693. 27 106 AR 692. 107 AR 685. 1 hyperarousal.”108 By December 2016, Dr. Aames observed that the plaintiff continued to struggle 2 with anxiety and paranoia (but had “decreased dysphoria and increased hopefulness).”109 3 The plaintiff continued to see Dr. Aames throughout 2017 on a bimonthly basis.110 4 On July 21, 2017, Dr. Aames completed a second “mental impairment questionnaire” and 5 reported the following diagnoses: chronic PTSD; major depressive disorder (“MDD”) with 6 “psych. features”; “other specified personality” disorder with mixed features; moderate “alcohol 7 use” disorder.111 He documented the plaintiff’s symptoms, including delusions or hallucinations, 8 depressed mood, observable psychomotor agitation or retardation, distrust or suspiciousness of 9 others, panic attacks followed by a persistent concern or worry about additional panic attacks or 10 their consequences, detachment from social relationships, and involuntary re-experiencing of a 11 traumatic event.112 He reported moderate to marked degrees of limitation for the plaintiff’s ability 12 to understand, remember, and apply information, “marked” limitations for the plaintiff’s ability to 13 interact with others, moderate to extreme limitations for the plaintiff’s ability to concentrate, 14 persist, or maintain pace, and mild to marked limitations for the plaintiff’s ability to adapt or 15 manage self.113 He found that the plaintiff’s impairments would not improve in the absence of 16 drug or alcohol abuse.114 He estimated that the plaintiff would miss work for “4 days or more” per 17 month on average because of his impairments.115 He anticipated that the plaintiff would be “off- 18 task” at a work environment for “more than 30%” of the work day.116 19 20 108 AR 686. 21 109 See AR 674 (plaintiff expressing that he is a “paranoid man” at December 7, 2016 session), 672 (plaintiff continues to struggle with “fear, paranoia, and low self-esteem . . . resulting in feelings of 22 depression” at December 21, 2016 session). 110 AR 669, 667, 659, 657, 655, 650, 648, 646, 641, 639, 637, 635, 716 (listed in chronological order 23 of visits). 24 111 AR 716. 112 AR 717. 25 113 AR 718–19. 26 114 AR 720. 27 115 Id. 116 Id. 1 Dr. Aames concluded that the plaintiff, because of his impairments, is “chronically 2 dysfunctional.”117 3 2.1.5.3 Aisling Bird, M.D. — Treating Psychiatrist 4 On July 29, 2016, the plaintiff began seeing psychiatrist Dr. Aislinn Bird.118 Dr. Bird met with 5 the plaintiff to address his anxiety.119 Dr. Bird reported that “if [Mr. Keelen’s] anxiety and panic 6 are better treated, patient may have more success in achieving his goal of sobriety from 7 alcohol.”120 Dr. Bird diagnosed the plaintiff with “anxiety disorder, unspecified” and “alcohol use 8 disorder, moderate, dependence.”121 She prescribed an increased dosage of Paxil for the plaintiff’s 9 anxiety, panic, and depression.122 She also put the plaintiff on hydroxyzine for his anxiety.123 10 On August 19, 2016, the plaintiff, while withdrawing from alcohol, met with Dr. Bird.124 11 Dr. Bird prescribed Librium to treat the plaintiff’s alcohol-use disorder.125 She encouraged the 12 plaintiff to attend alcoholics anonymous (“AA”) meetings, but noted that it “might not be the best 13 fit for the patient given his anxiety.”126 In a follow-up appointment on September 2, the plaintiff 14 reported that “overall[,] he is doing much better.”127 He was drinking about one pint [of liquor] 15 every other day, and the “alcohol helps with [] [his] continued severe anxiety.”128 Dr. Bird noted 16 that “[d]espite the increase in Paxil, [] [Mr. Keelen] continues to endorse anxiety daily, especially 17 in social settings . . . [and] PTSD related nightmares almost every night, which interferes with his 18 19 117 AR 721. 20 118 AR 545. 21 119 AR 546. 120 Id. 22 121 Id. 23 122 Id. 24 123 Id. 124 AR 664. 25 125 AR 666. 26 126 Id. 27 127 AR 705. 128 AR 706. 1 sleep and mood.”129 Consequently, Dr. Bird prescribed the plaintiff with sertraline and zoloft for 2 the plaintiff’s depressive disorder, anxiety disorder, and PTSD.130 3 The treatment records also reveal the plaintiff’s fluctuating alcohol consumption. On 4 December 1, 2016, Dr. Bird noted that the plaintiff was drinking one pint of liquor a day instead of 5 two pints.131 She reported that the plaintiff’s depression “has improved some,” and his nightmares 6 were less frequent.132 She observed that the plaintiff “continues to feel anxious, especially in 7 crowds.”133 She encouraged AA meetings for the plaintiff, but the plaintiff found the meetings 8 “difficult due to social anxiety.”134 9 The plaintiff continued to see Dr. Bird in 2017.135 During these visits, the plaintiff reported 10 reducing alcohol use.136 Dr. Bird continued to treat the plaintiff for anxiety, PTSD, and 11 depression.137 12 13 3. Administrative Proceedings 14 3.1 Disability Determination Explanation (DDE) 15 During the administrative process, non-examining doctors generated two disability 16 determination explanations (“DDE”), one related to the plaintiff’s initial application and one at the 17 reconsideration level. 18 In September 2015, at the initial level, the non-examining doctors found that the plaintiff had 19 the following severe impairments: major joints dysfunction and affective disorders.138 They 20 21 129 Id. 130 AR 707. 22 131 AR 678. 23 132 Id. 24 133 Id. 134 AR 679. 25 135 AR 661, 652, 643 (listed in chronological order of visits). 26 136 See, e.g., AR 661, 652. 27 137 AR 663, 654. See also AR 645. 138 AR 83. 1 determined, however, that the plaintiff’s conditions were not severe enough to keep him from 2 working.139 I. Herman, M.D., analyzed the plaintiff’s physical residual-functional capacity 3 (“RFC”).140 He found that the plaintiff could occasionally lift or carry 20 pounds, frequently lift or 4 carry 10 pounds, stand or walk for a total of 4 hours, and sit for a total of about 6 hours.141 The 5 plaintiff had postural limitation and could occasionally climb ramps, stairs, ladders, ropes, and 6 scaffolds.142 Dr. Herman also found that the plaintiff could occasionally stoop, kneel, crouch and 7 crawl.143 Anna M. Franco, Psy. D., assessed the plaintiff’s mental RFC.144 She found that the 8 plaintiff had moderate limitation to understand and remember detailed instructions.145 The plaintiff 9 also was moderately limited in his ability to carry out detailed instructions and maintain attention 10 and concentration for extended periods.146 He had moderate limitations in his ability to interact 11 with the public.147 Because the plaintiff’s conditions were not severe enough to keep him from 12 working, the doctors determined that he was not disabled.148 13 On reconsideration, the plaintiff alleged that he “want[s] to be alone” and that he has “gotten 14 worse and . . . [has had] a difficult time getting along with people.”149 He also alleged that his back 15 problems worsened and that he has chronic pain.150 The doctors found the same impairments and 16 added one more severe impairment: Substance Addiction Disorders.151 Plaintiff’s RFC 17 18 139 AR 89. 19 140 AR 85–86. The record does not reflect Dr. Herman’s first name. 20 141 AR 85. 21 142 Id. 143 Id. 22 144 AR 86–88. 23 145 Id. 24 146 AR 87. 147 Id. 25 148 AR 88. 26 149 AR 92. 27 150 Id. 151 AR 99. 1 determinations remained the same, except that Jorge Pena, Ph.D., also found the following 2 moderate limitations: ability to accept instructions and respond appropriately to criticism from 3 supervisors; ability to get along with coworkers or peers without distracting them or exhibiting 4 behavioral extremes; and ability to set realistic goals or make plans independently of others.152 5 The plaintiff was again determined “not disabled.”153 6 7 3.2 Administrative Hearing 8 On August 3, 2017, a hearing was held, and the plaintiff testified. On December 5, 2017, the 9 ALJ held a supplemental hearing, and the plaintiff, the medical expert (“ME”), and the vocational 10 expert (“VE”) testified. 11 3.2.1 Plaintiff’s Testimony 12 The plaintiff appeared and testified at the initial hearing on August 3, 2017, represented by his 13 attorney Katherine Ammirati.154 14 The ALJ questioned the plaintiff. The plaintiff testified he was not currently working.155 He 15 explained that, in 2006, he worked for his brother doing painting.156 He also worked part-time in 16 2015 and 2016 for the Northwest Democracy Resources.157 17 The plaintiff testified that he was not currently using any street drugs.158 He said that the last 18 time he used drugs was “over a year ago.”159 He denied using alcohol to self-medicate, but said 19 that he would still drink about half a pint “occasionally.”160 He explained that he was being treated 20 21 152 See AR 107. 22 153 AR 109. 23 154 AR 35. 24 155 AR 36. 156 AR 37–38. 25 157 Id. 26 158 AR 38. 27 159 Id. 160 AR 38–39. 1 for his “anxiety, depressive [sic], [and] paranoia.”161 He said that he was distrustful and suspicious 2 of others and “detached from social relationships.”162 He was “always” feeling depressed, 3 inadequate, guilty and worthless.163 He “always” had difficulty concentrating, remembering, and 4 retaining information.164 5 The plaintiff reported his criminal background and incarceration.165 His attorney explained that 6 the plaintiff’s PTSD resulted from his many years of incarceration and exposure to violence166 The 7 plaintiff testified that he felt like “somebody going to kill [him] and like that, fixing that area 8 because of the problems that [he] [has]. So [he’s] always fearful.”167 9 The plaintiff appeared in person with his attorney at the supplemental hearing on December 5, 10 2017.168 He testified the following: 11 Whether I'm drinking or not every morning I get up planning somebody will shoot me for what I did in the past. It's scared to death every day and whether I'm 12 drinking or not. You know, things I did and you got people out there I don't live with them all my life when I was incarcerated. Going to do something bad and I 13 have to deal with all day. So that fear going to be there regardless if I'm drinking or 14 not. They have me staying away from people, I don't mess with nobody, I don't—I don't even want to see nobody. That's it.169 15 16 3.2.2 Medical Expert Testimony 17 The ME, Joseph Malancharuvil, Ph.D., testified at the December 5, 2017 hearing.170 He said 18 that the plaintiff had alcohol-induced mood disorder, anxiety disorder not otherwise specified, 19 20 161 AR 39. 21 162 AR 39–40. 22 163 AR 40. 164 AR 40–41. 23 165 AR 41–44. 24 166 AR 43. 25 167 Id. Plaintiff’s attorney “elected not to argue” for the PTSD listing, however, because “it’s the least believed developed.” She noted that the “diagnosis is present as far back as 2013.” 26 168 AR 49. 27 169 AR 63. 170 AR 50. 1 personality disorder with mixed features, and PTSD.171 He found that “all these conditions are 2 aggravated by the ongoing use of alcohol.”172 He concluded that if the plaintiff reduced his alcohol 3 consumption or eliminated it, then his functioning would improve.173 He testified that “the overall 4 evidence is that this claimant is seriously affected by these habits” of alcohol and drug abuse.174 5 He disagreed with Dr. Aames’s assessment that the plaintiff was chronically dysfunctional even 6 without alcohol.175 He based this opinion on (what he said) was evidence that the plaintiff did 7 “very well” during periods of sobriety.176 8 In response to questions posed by the plaintiff’s attorney, the ME agreed that the plaintiff had 9 a diagnosis of personality disorder during his time at the Atascadero State Hospital, presumably 10 under a period of sobriety.177 He agreed that the medical record during that period showed that the 11 plaintiff displayed instability of interpersonal relationships, excessive emotionality and attention 12 seeking, and feelings of inadequacy.178 13 3.2.3 Vocational Expert’s Testimony 14 The VE, Timothy Farrell, testified at the December 5, 2017 hearing. 15 The ALJ asked the VE whether there are any unskilled jobs “at the sedentary or light levels” 16 that fit the following hypothetical: 17 Assume someone of claimant's age, education and work experience in a capacity for sedentary and up to light work with, let's see here, say sedentary and light work, 18 we'll rule out ladders, ropes and scaffolds, and we'll eliminate other postural activities to occasional and a capacity for moderately complex but not highly 19 complex or detailed tasks, mostly routine, no hazardous or fast moving machinery, 20 21 22 171 AR 50–51. 23 172 AR 51. 24 173 See AR 51–52. 174 AR 53. 25 175 AR 54. 26 176 AR 55. 27 177 AR 56–57. 178 AR 59. no responsibility for others safety and no rapid assembly line work. And I would 1 also add in no required public interaction.179 2 The VE concluded that the following jobs were available under the hypothetical: (1) officer 3 helper; (2) mail clerks who just work in-house; (3) garment sorter or tagger; and (4) garment 4 folder.180 The VE testified that these unskilled jobs would allow one absence per month.181 He also 5 noted that a person who is off-task 15% of the time would not be able to maintain these jobs, 6 because 10% off-task would be the “maximum acceptable.”182 7 3.3 Administrative Findings 8 The ALJ followed the five-step sequential evaluation process to determine whether the 9 plaintiff was disabled.183 He first found that, considering the plaintiff’s substance use, the plaintiff 10 would be disabled.184 He then concluded that, because the plaintiff’s substance use disorder is a 11 material contributing factor, the plaintiff is not disabled within the meaning of the regulations.185 12 3.3.1 Five-Step Evaluation – Considering Substance Use 13 The ALJ first analyzed the five-step process and in that analysis, considered the plaintiff’s 14 substance use disorder. 15 At step one, the ALJ found that the plaintiff had not engaged in substantial gainful activity 16 since his application date of September 20, 2013.186 17 At step two, the ALJ found that the plaintiff had the following severe impairments: “lumbar 18 strain and spondylosis; right knee osteoarthritis or derangement; alcohol use disorder; alcohol- 19 induced mood disorder, with possible psychotic features secondary to alcohol; anxiety disorder; 20 21 22 179 AR 66–67. 23 180 See AR 68–70. 24 181 AR 71. 182 AR 72. 25 183 AR 13–14. 26 184 AR 13. 27 185 AR 13–14. 186 AR 15. 1 personality disorder with mixed features; and post-traumatic stress disorder (PTSD), mild, 2 chronic.”187 3 At step three, the ALJ found that, including the plaintiff’s substance-use disorder, the severity 4 of the plaintiff’s physical or mental impairments do not meet or medically equal the severity of a 5 listed impairment in the regulations.188 6 Before reaching step four, the ALJ concluded that, based on all the impairments, the plaintiff 7 has the RFC to “perform light work . . . except that he cannot concentrate, persist, or maintain 8 pace or interact appropriately to sustain competitive work.”189 The ALJ reasoned that the record 9 shows that, when the plaintiff was drinking, he had “significantly decreased functioning.”190 In 10 making this determination, the ALJ accorded the most weight to the ME and substantial weight to 11 the treating psychologist Dr. Aames.191 12 At step four, the ALJ found that the plaintiff was unable to perform any past relevant work and 13 that the plaintiff’s past relevant work as a construction worker exceeded his RFC. 192 14 The ALJ found that, including the substance-use disorder, the plaintiff was “disabled” because 15 there are no jobs that exist in significant numbers in the national economy that he could 16 perform.193 17 3.3.2 Five-Step Evaluation — Without Substance Use 18 The ALJ nevertheless concluded that if the plaintiff stopped his substance use, he would not be 19 disabled. 20 21 22 23 187 Id. 24 188 AR 16. 189 AR 17. 25 190 Id. 26 191 AR 18. 27 192 Id. 193 AR 19. 1 The ALJ found that, without the substance use, the plaintiff would still have “more than 2 minimal limitations” in his ability to perform basic work activities.194 The plaintiff thus would 3 “continue to have a severe impairments or combination of impairments.”195 4 At step three, the ALJ found that, if the plaintiff stopped the substance use, he would not have 5 a physical or mental impairment that meets or medically equals any of the listed impairments in 6 the regulations.196 Specifically, the ALJ noted that during times when the plaintiff was only 7 drinking “occasionally” or when he was part of the residential recovery program at House of 8 Change, he had only have mild to moderate limitations in his mental impairment.197 9 The ALJ also determined that the plaintiff would have the RFC to “perform light work . . . 10 with no use of ladders, ropes or scaffolds; [and that] he could occasionally climb ramps and stairs, 11 balance, stoop, kneel, crouch, and crawl . . . and perform moderately complex work.”198 The ALJ 12 found that the plaintiff “should have no responsibility for the safety of others; and he should have 13 no required public interaction.”199 The ALJ reasoned that the record showed that “during periods 14 of sobriety or periods when [the plaintiff] has been using less alcohol, his functioning substantially 15 improve[d] and his mental status examinations [were] near normal.”200 In making this 16 determination, the ALJ accorded the most weight to the ME, substantial weight to the state 17 consultants who performed the DDE, and little weight to the treating psychologist Dr. Aames.201 18 He also found that the plaintiff’s subjective testimony was not supported by the record.202 The 19 20 21 194 Id. 22 195 Id. 23 196 AR 20. 24 197 Id. 198 AR 21. 25 199 Id. 26 200 AR 23. 27 201 AR 25. 202 Id. 1 ALJ therefore concluded that the plaintiff’s alcohol-use disorder “is primarily the cause of 2 disabling symptoms and limitations and thus [] is material.”203 3 Finally, the ALJ found that, although the plaintiff still would be unable to perform past 4 relevant work, there would be a significant number of jobs in the national economy that he could 5 perform, such as office helper, mail clerk, garment sorter, and garment folder (characterized by the 6 ALJ as representative occupations).204 7 Accordingly, the ALJ concluded that the substance-abuse disorder was a contributing factor 8 material to the determination of disability because the plaintiff would not be disabled if he stopped 9 the substance use, and thus, the ALJ concluded that the plaintiff was not disabled.205 10 11 ANALYSIS 12 Under 42 U.S.C. § 405(g), district courts have jurisdiction to review any final decision of the 13 Commissioner if the claimant initiates a suit within sixty days of the decision. A court may set 14 aside the Commissioner’s denial of benefits only if the ALJ’s “findings are based on legal error or 15 are not supported by substantial evidence in the record as a whole.” Vasquez v. Astrue, 572 F.3d 16 586, 591 (9th Cir. 2009) (internal citation and quotation marks omitted); 42 U.S.C. § 405(g). 17 “Substantial evidence means more than a mere scintilla but less than a preponderance; it is such 18 relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” 19 Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). The reviewing court should uphold “such 20 inferences and conclusions as the [Commissioner] may reasonably draw from the evidence.” Mark 21 v. Celebrezze, 348 F.2d 289, 293 (9th Cir. 1965). If the evidence in the administrative record 22 supports the ALJ’s decision and a different outcome, the court must defer to the ALJ’s decision 23 and may not substitute its own decision. Tackett v. Apfel, 180 F.3d 1094, 1097– 98 (9th Cir. 1999). 24 25 26 203 Id. 27 204 AR 26. 1 “Finally, [a court] may not reverse an ALJ’s decision on account of an error that is harmless.” 2 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). 3 4 GOVERNING LAW 5 A claimant is considered disabled if (1) he suffers from a “medically determinable physical or 6 mental impairment which can be expected to result in death or which has lasted or can be expected 7 to last for a continuous period of not less than twelve months,” and (2) the “impairment or 8 impairments are of such severity that he is not only unable to do his previous work but cannot, 9 considering his age, education, and work experience, engage in any other kind of substantial 10 gainful work which exists in the national economy. . . .” 42 U.S.C. § 1382c(a)(3)(A) & (B). The 11 five-step analysis for determining whether a claimant is disabled within the meaning of the Social 12 Security Act is as follows. Tackett, 180 F.3d at 1098 (citing 20 C.F.R. § 404.1520). 13 Step One. Is the claimant presently working in a substantially gainful activity? If so, then the 14 claimant is “not disabled” and is not entitled to benefits. If the claimant is not working in a substantially gainful activity, then the claimant’s case cannot be resolved at step one, and the 15 evaluation proceeds to step two. See 20 C.F.R. § 404.1520(a)(4)(i). 16 Step Two. Is the claimant’s impairment (or combination of impairments) severe? If not, the claimant is not disabled. If so, the evaluation proceeds to step three. See 20 C.F.R. § 17 404.1520(a)(4)(ii). 18 Step Three. Does the impairment “meet or equal” one of a list of specified impairments 19 described in the regulations? If so, the claimant is disabled and is entitled to benefits. If the claimant’s impairment does not meet or equal one of the impairments listed in the regulations, 20 then the case cannot be resolved at step three, and the evaluation proceeds to step four. See 20 C.F.R. § 404.1520(a)(4)(iii). 21 22 Step Four. Considering the claimant’s RFC, is the claimant able to do any work that he or she has done in the past? If so, then the claimant is not disabled and is not entitled to benefits. If the 23 claimant cannot do any work he or she did in the past, then the case cannot be resolved at step four, and the case proceeds to the fifth and final step. See 20 C.F.R. § 404.1520(a)(4)(iv). 24 Step Five. Considering the claimant’s RFC, age, education, and work experience, is the claimant 25 able to “make an adjustment to other work?” If not, then the claimant is disabled and entitled to 26 benefits. See 20 C.F.R. § 404.1520(a)(4)(v). If the claimant is able to do other work, the Commissioner must establish that there are a significant number of jobs in the national economy 27 that the claimant can do. There are two ways for the Commissioner to show other jobs in 1 For steps one through four, the burden of proof is on the claimant. At step five, the burden 2 shifts to the Commissioner. Gonzales v. Sec’y of Health & Human Servs., 784 F.2d 1417, 1419 3 (9th Cir. 1986). 4 5 ANALYSIS 6 The plaintiff argues that the ALJ erred by (1) finding that the alcohol use was material to the 7 plaintiff’s disability determination, (2) giving little weight to the treating psychologist’s opinion, 8 (3) giving the most weight to a non-treating non-examining medical expert, (4) failing to consider 9 all relevant medical evidence, (5) failing to fully develop the record, and (6) rejecting the 10 plaintiff’s testimony.206 11 12 1. Whether the ALJ Erred by Finding the Alcohol Use Was Material 13 The plaintiff contends that the ALJ erred by finding that his substance use was a contributing 14 factor material to the determination of disability.207 He argues that the evidence does not support 15 the ALJ’s materiality finding because (1) plaintiff’s mental improvements while in jail or a 16 recovery program could be attributed to the highly structured environment as opposed to his 17 purported sobriety, and (2) evidence cited by the ALJ to show plaintiff’s increased functioning 18 during periods of limited alcohol use actually showed his continued struggle with mental 19 impairments.208 The court remands on this ground. 20 “A finding of ‘disabled’ under the five-step inquiry does not automatically qualify a claimant 21 for disability benefits.” Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001). “Under 42 22 U.S.C. § 423(d)(2)(C), a claimant cannot receive disability benefits ‘if alcoholism or drug 23 addiction would . . . be a contributing factor material to the Commissioner‘s determination that the 24 25 26 206 The court notes that the plaintiff does not appear to challenge the ALJ’s findings regarding his physical impairments. See Pl. Mot. – ECF 19 at 5–6, 9. The court thus does not review those findings. 27 207 Pl. Mot. – ECF No. 19 at 8–12. 1 individual is disabled.’” Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007) (quoting 42 U.S.C. § 2 423(d)(2)(C)) (alteration in original). 3 The Ninth Circuit has held that when a Social Security disability claim involves substance 4 abuse, the ALJ must first conduct the five-step sequential evaluation without determining the 5 impact of substance abuse on the claimant. Bustamante, 262 F.3d at 954–55. If the ALJ finds that 6 the claimant is not disabled, then the ALJ proceeds no further. Id. at 955. If, however, the ALJ 7 finds that the claimant is disabled, then the ALJ conducts the sequential evaluation a second time 8 and considers whether the claimant would still be disabled absent the substance abuse. Id. (citing 9 20 C.F.R. §§ 404.1535, 416.935); Parra, 481 F.3d. at 747 (under the Social Security Act‘s 10 regulations, “the ALJ must conduct a drug abuse and alcoholism analysis” to determine “which of 11 the claimant‘s disabling limitations would remain if the claimant stopped using drugs or alcohol.” 12 (citing 20 C.F.R. § 404.1535(b)). The Ninth Circuit has stressed that courts must not “fail to 13 distinguish between substance abuse contributing to the disability and the disability remaining 14 after the claimant stopped using drugs or alcohol.” Kroeger v. Calvin, 13-cv-05254-SI, 2015 WL 15 2398398, at *10 (N.D. Cal. May 19, 2015) (quoting Sousa v. Callahan, 143 F.3d 1240, 1245 (9th 16 Cir. 1998)). “Just because substance abuse contributes to a disability does not mean that when the 17 substance abuse ends, the disability will too.” Id. The claimant has the burden to prove that the 18 drug or alcohol abuse is not a contributing factor material to disability. Parra, 481 F.3d at 748. 19 First, evidence of the plaintiff’s improved mental conditions under highly structured 20 environments does not answer the question about whether the improvement is due to limited 21 substance use or the environment itself. “Improvements in a co-occurring mental disorder in a 22 highly structured treatment setting, such as a hospital or substance abuse rehabilitation center, may 23 be due at least in part to treatment for the co-occurring mental disorder, not (or not entirely) the 24 cessation of substance use.” Social Security Ruling, SSR 13-2p.; Title II and XVI: Evaluating 25 Cases Involving Drug Addiction and Alcoholism (DAA), 78 Fed. Reg. 11939-01, 11945 (Feb. 20, 26 2013). The substance abuse is not material to the disability “[i]f the evidence in the case record 27 does not demonstrate the separate effects of treatment for [drug addiction and alcoholism 1 functioning “significantly improved” while he was at the residential recovery program, House of 2 Change.209 It is unclear from the record and from the ALJ’s analysis, however, whether this 3 purported improvement was the result of the structured recovery program or from the plaintiff’s 4 sobriety while there. Courts in this district have found materiality is not met where the evidence 5 does not separate the effects of the structured environment and the purported sobriety. See Belvin 6 v. Berryhill, 18-cv-02637-KAW, 2019 WL 4751875, at *5 (N.D. Cal. Sept. 30, 2019) (“it is 7 impossible to separate the effects of Plaintiff’s medication compliance and his residential 8 placement from his abstinence, which, pursuant to SSR 13-2p, requires a finding of immateriality 9 [of Plaintiff’s drug use]); see also Pittaluga v. Comm’n of Social Security, 18-cv-03067-VC, 2019 10 WL 2897849, at *1 (N.D. Cal. July 5, 2019) (finding it “doubtful” to rely on jail records for 11 accurate mental health portrayal “because the jail environment is highly structured”). The court 12 thus finds that this evidence does not support the ALJ’s finding of materiality. 13 Second, the plaintiff contends that the ALJ’s cited examples of the plaintiff’s increased 14 functioning during periods of lower alcohol use outside of structured environments did not 15 actually support the ALJ’s conclusion of materiality.210 The court agrees. 16 The ALJ cited treatment records in 2016 from the Lifelong Trust Health Center, where the 17 plaintiff reported that he abstained from or limited alcohol use.211 The ALJ found that, during 18 these sessions, the plaintiff was doing well.212 The cited evidence, however, does not support that 19 finding. For example, the ALJ cited the plaintiff’s session with Dr. Bird on September 2, 2016, 20 and said that the plaintiff, while withdrawing from alcohol, was “doing much better,” and his 21 mental status “was generally normal except for anxious mood and minimal insight.”213 The full 22 reading of Dr. Bird’s report reveals that the plaintiff, “[d]espite the increase in Paxil, [] continues 23 24 209 AR 24. 25 210 Pl. Mot. – ECF No. 19 at 12. 26 211 AR 24. 27 212 Id. 213 Id.; AR 705–06. 1 to endorse anxiety daily, especially in social setting . . . [and] PTSD related nightmares almost 2 every night.”214 Similarly, the ALJ noted that the plaintiff reported “drinking with much less 3 frequency and quantity” on October 3, 2016.215 Dr. Aames noted during this session, however, that 4 the plaintiff still reported “depressed mood and severe anxiety” and “PTSD related nightmares 5 almost every night.”216 The ALJ also cited records from December 2016, where the plaintiff was 6 reporting to be drinking less and less depressed and more hopeful.217 The records that the ALJ 7 relied on show that, despite some improvement, the plaintiff “[c]ontinue[d] to feel anxious” and 8 “continue[d] to struggle with fear, paranoia, and low self-esteem . . . resulting in feelings of 9 depression.”218 10 In sum, the ALJ erred by finding that the plaintiff’s alcohol use was material. The court thus 11 remands on this ground. 12 13 2. Whether the ALJ Erred in Weighing the Treating Psychologist and ME’s Opinions 14 The plaintiff next argues that the ALJ erred by improperly overweighing the ME’s opinion and 15 underweighing treating-psychologist Dr. Aames’s opinion. The court remands on this ground too. 16 The ALJ is responsible for “‘resolving conflicts in medical testimony and for resolving 17 ambiguities.’” Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014) (quoting Andrews, 53 F.3d 18 at 1039). In weighing and evaluating the evidence, the ALJ must consider the entire case record, 19 including each medical opinion in the record, together with the rest of the relevant evidence. 20 21 214 AR 706. 22 215 AR 24. 23 216 AR 701. 24 217 AR 24. 218 AR 677–78 (December 1, 2016 session with Dr. Bird); 671–72 (December 21, 2016 session with 25 Dr. Aames). The ALJ also cited to plaintiff’s session with Dr. May in September 6, 2013 as evidence that the plaintiff was doing better without alcohol abuse. AR 23–24. Dr. May’s psychiatric notes from 26 this session, however, does not report the plaintiff’s substance use at the time. AR 458–459. Dr. May only notes that the plaintiff was “taking a class in human adjustment” and “struggling to think about 27 joining a residential program.” AR 458. This does not support a finding this was a period of less alcohol use, during which the plaintiff was improving. See AR 23. 1 20 C.F.R. § 416.927(b); see Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (“[A] reviewing 2 court must consider the entire record as a whole and may not affirm simply by isolating a specific 3 quantum of supporting evidence.”) (internal quotation marks and citation omitted). 4 “In conjunction with the relevant regulations, [the Ninth Circuit has] developed standards that 5 guide [the] analysis of an ALJ’s weighing of medical evidence.” Ryan v. Comm’r of Soc. Sec., 528 6 F.3d 1194, 1198 (9th Cir. 2008) (citing 20 C.F.R. § 404.1527).219 Social Security regulations 7 distinguish between three types of physicians: (1) treating physicians; (2) examining physicians; 8 and (3) non-examining physicians. 20 C.F.R. § 416.927(c), (e); Lester v. Chater, 81 F.3d 821, 830 9 (9th Cir. 1995). “Generally, a treating physician’s opinion carries more weight than an examining 10 physician’s, and an examining physician’s opinion carries more weight than a reviewing [non- 11 examining] physician’s.” Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001) (citing 12 Lester, 81 F.3d at 830); Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). 13 An ALJ may disregard the opinion of a treating physician, whether or not controverted. 14 Andrews, 53 F.3d at 1041. “To reject [the] uncontradicted opinion of a treating or examining 15 doctor, an ALJ must state clear and convincing reasons that are supported by substantial 16 evidence.” Ryan, 528 F.3d at 1198 (alteration in original) (internal quotation marks and citation 17 omitted). By contrast, if the ALJ finds that the opinion of a treating physician is contradicted, a 18 reviewing court will require only that the ALJ provide “specific and legitimate reasons supported 19 by substantial evidence in the record.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) 20 (internal quotation marks and citation omitted); see Garrison, 759 F.3d at 1012 (“If a treating or 21 examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ may only reject it 22 by providing specific and legitimate reasons that are supported by substantial evidence.”) (internal 23 quotation marks and citation omitted). “The opinions of non-treating or non-examining physicians 24 25 26 219 The Social Security Administration promulgated new regulations, including a new, effective March 27, 2017. The previous version, effective to March 26, 2017, applies here. See 20 C.F.R. § 404.614(a) 27 “[A]n application for benefits, or a written statement, request, or notice is filed on the day it is received by an SSA employee at one of our offices or by an SSA employee who is authorized to receive it at a 1 may serve as substantial evidence when the opinions are consistent with independent clinical 2 findings or other evidence in the record.” Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). 3 An ALJ errs when he “rejects a medical opinion or assigns it little weight” without explanation 4 or without explaining why “another medical opinion is more persuasive, or criticiz[es] it with 5 boilerplate language that fails to offer a substantive basis for [his] conclusion.” Garrison, 759 F.3d 6 at 1012–13. “[F]actors relevant to evaluating any medical opinion, not limited to the opinion of the 7 treating physician, include the amount of relevant evidence that supports the opinion and the 8 quality of the explanation provided[,] the consistency of the medical opinion with the record as a 9 whole[, and] the specialty of the physician providing the opinion…” Orn, 495 F.3d at 631. (citing 10 20 C.F.R. § 404.1527(d)(3)–(6)); see also Magallanes v. Bowen, 881 F.2d 747, 753 (9th Cir. 11 1989) (an ALJ need not agree with everything contained in the medical opinion and can consider 12 some portions less significant than others). 13 Dr. Aames’s opinion was contradicted by the ME’s opinion.220 The ALJ was thus required to 14 articulate specific and legitimate reasons supported by substantial evidence in the record. 15 Garrison, 759 F.3d at 1012–13. 16 The court first finds that the ALJ erred when it accorded the most weight to the ME’s opinion 17 without providing a substantive basis for why the ME was more persuasive. The ALJ reasoned 18 only that the ME “had the opportunity to review all of the medical evidence of record and his 19 opinion is consistent with the record as a whole.”221 Such a conclusory basis, however, does not 20 adequately explain why the ME’s opinion should be accorded the most weight. 21 Furthermore, the ALJ also erred in according Dr. Aames’s opinion little weight. Dr. Aames 22 found that the plaintiff’s “impairments could not be expected to improve in the absence of drug or 23 alcohol abuse.”222 The ALJ found that Dr. Aames’s opinion was “inconsistent with the treatment 24 records . . . showing that the claimant’s functioning improved significantly during periods of 25 26 220 AR 54. 27 221 AR 25. 222 Id; AR 720. 1 sobriety or periods of less alcohol.”223 As the court explained above, however, the records that the 2 ALJ cited to did not provide substantial evidence that the plaintiff “significantly” improved during 3 periods of less alcohol use. 4 The ALJ also found that Dr. Aames’s opinion was inconsistent with the record from the 5 plaintiff’s admission at Atascadero State Hospital, during which the plaintiff “was presumably 6 mostly sober.”224 The plaintiff was admitted to Atascadero State Hospital while he was in 7 custody.225 For the reasons set forth above, evidence of improvement during highly structured 8 environment that does not separate out effects of the environment from those of sobriety fails to 9 substantially evidence the materiality of substance use. See 78 Fed. Reg. 11945; Belvin, 2019 WL 10 4751875 at *5; see also Pittaluga, 2019 WL 2897849, at *1 (finding it “doubtful” to rely on jail 11 records for mental health portrayal “because the jail environment is highly structured”). The ALJ 12 thus did not provide specific and legitimate reasons, supported by substantial evidence in the 13 record, in underweighing the treating psychologist’s contradicted opinion. 14 Accordingly, because the ALJ erred by improperly weighing medical opinions, the court 15 remands on this ground. 16 17 3. Whether the ALJ Erred in Failing to Consider All Relevant Evidence 18 The plaintiff also contends that the ALJ’s RFC determination was not supported by substantial 19 evidence.226 Particularly, he argues that the ALJ’s RFC finding did not include all of the 20 limitations that Dr. Aames identified.227 21 The ALJ found that, without substance use, the plaintiff would have the following RFC: 22 Capacity to perform light work . . . with no use of ladders, ropes or scaffolds; he could occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl; 23 24 223 AR 25. 25 224 Id. 26 225 See AR 328. 27 226 Pl. Mot. – ECF No. 19 at 19. 227 Id. he could perform moderately complex work, but not work around hazards or fast- 1 moving machinery or do rapid assembly work; he should have no responsibility for 2 the safety of others; and he should have no required public interaction.228 3 In making the determination above as to the “mental portion” of the RFC, the ALJ accorded 4 the most weight to the ME and little weight to the treating psychologist Dr. Aames.229 Because the 5 court remands for reweighing of medical-opinion evidence, the court remands on this basis too.230 6 7 4. Whether the ALJ Erred in Failing to Fully Develop the Record 8 The plaintiff argues that the ALJ failed to fully develop the record because the ALJ should 9 have kept the record open after the plaintiff’s hearings so that he could consider statements from 10 treating doctors, Dr. Aames and Dr. Bird.231 The Commissioner counters that the ALJ had no duty 11 to keep the record open.232 The court agrees that there was no duty here. 12 “An ALJ’s duty to develop the record further is triggered only when there is ambiguous 13 evidence or when the record is inadequate to allow for proper evaluation of the evidence.” McLeod 14 v. Astrue, 640 F.3d 881, 885 (9th Cir. 2011); see also id. (“Rejection of the treating physician’s 15 opinion on ability to perform any remunerative work does not by itself trigger a duty to contact the 16 physician for more explanation.”). 17 Here, the ALJ did not have a duty to keep the record open to accept further findings from the 18 plaintiff’s treating doctors because the record was not ambiguous or inadequate as to whether the 19 medical evidence in the record allowed proper evaluation. See McLeod, 640 F.3d at 885 (“The 20 ALJ had no duty to request more information from the two [treating] physicians” because 21 “substantially all of their medical records” were before the ALJ and “[t]here was nothing unclear 22 228 AR 21. 23 229 AR 24. 24 230 The plaintiff also briefly argues that the ALJ erred by failing to make a determination about whether the plaintiff meets 12.08 Listing for Personality Disorders. See Pl. Mot. – ECF No. 19 at 20. 25 The Commissioner contends this is not reversable error because the criteria for Listing 12.08 is the same as the other Listings that the ALJ did consider. Cross Mot. – ECF No. 24 at 17. The plaintiff did 26 not respond to the Commissioner’s argument or cite to supporting legal authority for his argument 27 231 Pl. Mot. – ECF No. 19 at 20–21. 232 Cross-Mot. – ECF No. 24 at 11. 1 or ambiguous about what they said”). The plaintiff cited to no legal authority supporting his 2 position that the ALJ was required to keep the record open. The court does not remand on this 3 basis. 4 5 5. Whether ALJ Erred in Rejecting the Plaintiff’s Testimony 6 Finally, the plaintiff argues that the ALJ failed to provide “clear and convincing” evidence for 7 rejecting the plaintiff’s testimony about the severity of his symptoms.233 This argument has merit. 8 In assessing a claimant’s credibility, an ALJ must make two determinations. Molina, 674 F.3d 9 at 1112 (9th Cir. 2012). “First, the ALJ must determine whether [the claimant has presented] 10 ‘objective medical evidence of an underlying impairment which could reasonably be expected to 11 produce the pain or other symptoms alleged.’” Id. (quoting Vasquez, 572 F.3d at 591). Second, if 12 the claimant produces that evidence, and “there is no evidence of malingering,” the ALJ must 13 provide “specific, clear and convincing reasons for” rejecting the claimant’s testimony regarding 14 the severity of the claimant’s symptoms. Id. (internal quotation marks and citations omitted). 15 “At the same time, the ALJ is not ‘required to believe every allegation of disabling pain, or 16 else disability benefits would be available for the asking, a result plainly contrary to 42 U.S.C. § 17 423(d)(5)(A).’” Molina, 674 F.3d at 1112 (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 18 1989)). “Factors that an ALJ may consider in weighing a claimant‘s credibility include reputation 19 for truthfulness, inconsistencies in testimony or between testimony and conduct, daily activities, 20 and unexplained, or inadequately explained, failure to seek treatment or follow a prescribed course 21 of treatment.” Orn, 495 F.3d at 636 (internal quotation marks omitted). “The ALJ must identify 22 what testimony is not credible and what evidence undermines the claimant‘s complaints.” Burrell 23 v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014); see, e.g., Morris v. Colvin, No. 16-CV-0674-JSC, 24 2016 WL 7369300, at *12 (N.D. Cal. Dec. 20, 2016). 25 26 27 233 Pl. Mot. – ECF 19 at 21. 1 In assessing the plaintiff’s credibility, the ALJ concluded that “the evidence generally does not 2 support the alleged loss of functioning without consideration of substance use.”234 The ALJ found 3 the following about the plaintiff’s testimony: 4 The claimant testified that whether he is drinking or not, he wakes up every morning paranoid and afraid, worrying about being harmed, based on the things he 5 has done in his past. However, this appears to be a normal reaction to his circumstances and does not indicate an inability to work. He has worked as a 6 laborer in the past, and he lost that job (house painting) when his employer 7 discovered his past crimes (testimony). He has also worked as staff at the residential recovery program and was fired due to relapsing, not because of poor 8 job performance []. He testified that he was incarcerated for failing to register as a sex offender and he has spent most of his adult life incarcerated. All of this would 9 explain an inability to obtain or maintain employment, but that is not the same as 10 an inability to work (i.e., that does not satisfy the requirements for "disability.")235 11 The court agrees that the ALJ erred in rejecting the plaintiff’s testimony. The ALJ did not 12 determine whether the plaintiff provided “objective medical evidence of an underlying impairment 13 which could reasonably be expected to produce the pain or other symptoms alleged.” Molina, 674 14 F.3d at 1112. Instead, the ALJ concludes, without citing to evidence, that the plaintiff’s reported 15 symptoms of paranoia even in the absence of alcohol use “appears to be a normal reaction” to his 16 circumstances.236 This conclusion is insufficient as a basis to find the plaintiff not credible. 17 Furthermore, evidence that the plaintiff may have had difficulty obtaining or maintaining a job 18 does not sufficiently explain why his testimony regarding the severity of his symptoms is not 19 credible. 20 Accordingly, the court finds that the ALJ erred in rejecting the plaintiff’s testimony and 21 remands on this basis. To the extent the ALJ’s discrediting of the plaintiff’s testimony was based 22 in part on his assessment of the medical evidence, including Dr. Aames’s evaluation, the court 23 remands on this ground too. 24 25 26 234 AR 25. 27 235 Id. 1 6. Whether the Court Should Remand for Further Proceedings or Determination of 2 Benefits 3 The court has “discretion to remand a case either for additional evidence and findings or for an 4 award of benefits.” McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002) (citing Smolen, 5 80 F.3d at 1292); McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989) (“The decision whether 6 to remand for further proceedings or simply to award benefits is within the discretion of [the] 7 court.”) (citing Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987)). Generally, “‘[i]f additional 8 || proceedings can remedy defects in the original administrative proceeding, a social security case 9 should be remanded.’” Garrison, 759 F.3d at 1019 (quoting Lewin v. Schweiker, 654 F.2d 631, 10 635 (9th Cir. 1981)) (alteration in original); see also Dominguez v. Colvin, 808 F.3d 403, 407 (9th 11 Cir. 2015) (‘Unless the district court concludes that further administrative proceedings would 12 serve no useful purpose, it may not remand with a direction to provide benefits.”); McCartey, 298 5 13 F.3d at 1077 (remand for award of benefits is discretionary); McAllister, 888 F.2d at 603 (remand 14 for award of benefits is discretionary); Connett, 340 F.3d at 876 (finding that a reviewing court 15 has “some flexibility” in deciding whether to remand). 16 The court finds that remand is appropriate to “remedy defects in the original administrative 5 17 proceeding.” Garrison, 759 F.3d at 1019 (quoting Lewin v. Schweiker, 654 F.2d at 635 (alteration 5 18 in original)). 19 20 CONCLUSION 21 The court grants the plaintiff’s motion, denies the Commissioner’s cross-motion, and remands 22 || for further proceedings consistent with this order. 23 24 IT IS SO ORDERED. 25 Dated: March 19, 2020 LAE 26 LAUREL BEELER 27 United States Magistrate Judge 28