Dorsey v. Kijakazi

1

2

3

4 UNITED STATES DISTRICT COURT

5 NORTHERN DISTRICT OF CALIFORNIA

6

7 M.D., Case No. 23-cv-01995-LJC

8 Plaintiff, ORDER GRANTING PLAINTIFF’S

MOTION FOR SUMMARY

9 v. JUDGMENT AND DENYING

DEFENDANT’S CROSS-MOTION FOR

10 MARTIN O’MALLEY1, et al., SUMMARY JUDGMENT

Defendants. Re: ECF Nos. 14, 16

11

12

13 Plaintiff M.D.2 challenges the final decision of the Commissioner of Social Security

14 denying her applications for disability insurance benefits under Title II and Title XVI of the Social

15 Security Act. Both parties have consented to magistrate judge jurisdiction (ECF Nos. 7, 10) and

16 moved for summary judgment. ECF Nos. 14, 16. M.D. filed a reply in support of her Motion for

17 Summary Judgment. ECF No. 18. Having considered the parties’ briefing, and for the reasons

18 discussed below, M.D.’s Motion for Summary Judgment is GRANTED, the Commissioner’s

19 Cross-Motion for Summary Judgment is DENIED, and this matter is REMANDED for further

20 proceedings.

21 I. BACKGROUND

22 A. Factual Background

23 M.D. is a 50-year-old woman who has a lengthy history of mood disorders, anxiety,

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1 Martin O’Malley is now the Commissioner of Social Security and is automatically substituted as

a party pursuant to Fed. R. Civ. P. 25(d). See also 42 U.S.C. § 405(g) (action survives regardless

26

of any change in the person occupying the office of Commissioner of Social Security).

2 Because opinions by the Court are more widely available than other filings, and this Order

27

contains potentially sensitive medical information, this Order refers to the Plaintiff only by her

1 depression, obsessive compulsive disorder (OCD), self-harming, and alcohol dependence. ECF

2 No. 11-8 at 26–27.3 M.D. also has posttraumatic stress disorder (PTSD) related to her experience

3 of childhood sexual abuse. Id. at 51. She has a history of five psychiatric hospitalizations

4 beginning from the age of 17 for reasons including cutting and alcohol-induced psychosis. Id.

5 According to M.D., her heavy alcohol use began at the age of 16, when she would consume “1/2 a

6 pint almost every day” with periods of binge drinking. Id. She also started using

7 methamphetamine at the age of 16, although she stopped around 2006. Id. In the past, M.D. has

8 attended both residential and outpatient substance treatment programs. Id. M.D. did not graduate

9 from high school but did obtain her GED. Id. at 52. She previously attended college classes at

10 California State University, East Bay but was three classes short of completing her bachelor’s

11 degree when she dropped out. Id.; see also ECF No. 11-3 at 93. The last time she worked was in

12 2012, when she was in training to operate a switchboard for an answering service. ECF No. 11-3

13 at 90.

14 Approximately one month before her alleged disability onset date of December 1, 2015,

15 M.D. was prescribed Wellbutrin, Prozac, Abilify and Trazodone through a psychiatrist at Contra

16 Costa Health Services. ECF No. 11-8 at 65. She told the psychiatrist that when she is on her

17 medications, she feels better. Id. at 64. M.D. had another appointment on December 23, 2015,

18 where she reported being depressed, sleeping a lot, and not wanting to get up out of bed, although

19 she would get up to go to school. Id. at 68. She was not seen again until May 16, 2016, when

20 M.D. admitted that she had relapsed from alcohol, stopped going to Alcoholics Anonymous (AA),

21 had difficulty getting out of bed, and was failing her college classes. Id. at 47. M.D. withdrew

22 from college in the Spring of 2016 reportedly due to psychiatric symptoms. Id. at 52.

23 M.D. began attending regular psychiatric appointments from June through December

24 2016. Id. at 70–77. M.D. told her psychiatrist, Dr. Jee Hyun Guss, that she was sober and

25 attending AA meetings “almost daily” with someone accompanying her. Id. at 76. However, she

26 was still reporting depressed mood, anxiety, medication side effects, low energy, among many

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1 other mental health symptoms. Id. at 74, 76. She stopped going to see Dr. Guss in December

2 2016 and did not return until June 13, 2017. Id. at 78. At that time, she admitted that she stopped

3 taking her medications three weeks prior and reported increased depression symptoms. Id. M.D.

4 told Dr. Guss that the “only thing” she was doing well was staying sober. Id. She began

5 individual therapy in August 2017, but only continued therapy bi-monthly through October 2017.

6 Id. at 93–102.

7 In December 2017, M.D. relapsed on alcohol and was kept on a psychiatric hold for

8 homicidal ideation. Id. at 90. She later admitted to Dr. Guss that she had not been consistently

9 taking her medications as prescribed in the weeks before she relapsed. Id. at 91. M.D. returned to

10 therapy on February 1, 2018, and told her therapist that she believed the relapse was triggered by

11 the stress related to her mom trying to sell their house. Id. at 103. She and her mother moved to

12 Turlock, CA in April 2018. Id. at 108. That same month, she told Dr. Guss that she was

13 continuing to maintain her sobriety and that she was looking to get affiliated with a new AA

14 community in the area. Id. Dr. Guss gave M.D. medication refills while she found a new mental

15 health provider in Turlock. Id. at 109–10.

16 On January 22, 2019, M.D. went to urgent care after experiencing five days of constant

17 anxiety and nervousness, associated with dizziness, irritability, and an inability to sleep. ECF No.

18 11-14 at 131. She had stopped taking her medications back in July 2018 after she was no longer

19 receiving refills from Dr. Guss. Id. at 473. Urgent care helped M.D. restart all her medications.

20 Id. However, on March 7, 2019, she went to the emergency room due to alcohol relapse. Id. at

21 250. M.D. returned to psychotherapy in April 2019, but in May 2019, she was hospitalized for

22 seven days for suicidal ideation. Id. at 19, 515. M.D. admitted to drinking a pint and a half of

23 liquor daily the last month to try to “control herself.” Id. While hospitalized, she was officially

24 diagnosed with bipolar disorder. Id. Her antidepressants were discontinued, as the doctor

25 believed she was incorrectly being treated for depression and the medication was putting her in a

26 “mixed manic irritable state.” Id. at 20. Instead, she was prescribed Olanzapine and

27 Oxcarbazepine. Id. at 21.

1 intoxicated and injured the other passenger. Id. at 4. She was taken to the emergency room by

2 police and medically cleared for incarceration. Id. at 319–20. This was her fourth DUI. Id. at 5.

3 M.D. sought emergency care for anxiety and panic attacks on July 28 and August 1, 2019. Id. at

4 2–11, 141–42. She expressed suicidal ideation during her August 1, 2019 emergency care visit

5 related to her June 28, 2019 DUI arrest and her fear of going to jail. Id. at 4. She was hospitalized

6 for five days, and her medications were adjusted. Id. Her alcohol abuse was described as “in

7 remission” upon discharge. Id. at 10.

8 During a March 11, 2020 mental health intake appointment, M.D. told the medical

9 provider that she had not abused any alcohol since her DUI arrest. Id. at 552. She reported

10 depressed mood, issues with eating and sleeping, fatigue, and loss of energy nearly every day, as

11 well as excessive anxiety and worry about many things. Id. She had to be hospitalized from July

12 22, 2020, to August 9, 2020, for diabetic ketoacidosis and acute pancreatitis. Id. at 40. She went

13 into respiratory failure and had to be intubated. Id. During an October 27, 2020 psychiatry

14 appointment, M.D. denied any suicidal or homicidal ideations, but reported increased anxiety and

15 restlessness. Id. at 577. Her medications were adjusted again during this visit. Id. at 580.

16 B. Procedural history

17 M.D. applied for Title II disability benefits and Title XVI supplemental security income in

18 June 2016 based on her alcoholism, OCD, depression, and anxiety. ECF No. 11-6 at 4–16.

19 M.D.’s applications were denied on November 18, 2016. ECF No. 11-5 at 2–6. On February 13,

20 2017, her requests for consideration were also denied. Id. at 9-14. On December 6, 2018, after

21 holding two hearings, Administrative Law Judge (ALJ) David LaBarre issued an unfavorable

22 decision against M.D. ECF No. 11-3 at 54–74. M.D. appealed the decision to the Appeals

23 Council, which denied her Request for Review on November 22, 2019. ECF No. 11-10 at 23–29.

24 On January 21, 2020, M.D. filed an action for judicial review in this District pursuant to 42 U.S.C.

25 § 405(g). Id. at 37–39. On July 24, 2020, the court approved the parties’ Stipulation to Voluntary

26 Remand Pursuant to Sentence Four of 42 U.S.C. § 405(g) and to Entry of Judgment for Plaintiff.

27 Id. at 40–42. On remand, the Appeals Council sent the case back to an ALJ and directed him or

1 explaining the weight given to the opinions rather than their level of persuasiveness. Id. at 46–47.

2 Per instructions from the Appeals Council, ALJ Vincent Minsenti held a hearing on

3 December 17, 2020. ECF No. 11-9 at 56. The ALJ issued an unfavorable decision against M.D.

4 on February 26, 2021. Id. at 16–55. In particular, the ALJ found M.D. disabled, but that her

5 alcoholism was a contributing factor material to the determination of disability, and she would not

6 be disabled if she stopped her substance use. Id. at 35, 46. M.D. once again appealed the decision

7 to the Appeals Council (id. at 13–15), but the Appeals Council declined to assume jurisdiction on

8 February 28, 2023. Id. at 2–8. At that point, the ALJ’s February 2021 decision became the final

9 decision of the Commissioner pursuant to 42 U.S.C. § 405(g). M.D. filed the present action

10 seeking judicial review of the ALJ’s decision on April 24, 2023. See ECF No. 1.

11 II. LEGAL STANDARD

12 A. Standard of Review and Governing Law

13 Under Title II of the Social Security Act, disability insurance benefits are available when

14 an eligible claimant is unable to “engage in any substantial gainful activity by reason of any

15 medically determinable physical or mental impairment . . . which has lasted or can be expected to

16 last for a continuous period of not less than twelve months.” 42 U.S.C. § 423(d)(1)(A).4 To

17 determine a claimant’s eligibility for benefits, the ALJ engages in a five-step sequential evaluation

18 process to determine whether a claimant is disabled under the Act. 20 C.F.R. § 404.1520(a)(1).

19 To establish disability, the claimant bears the burden of showing (1) that they are not working;

20 (2) that they have a severe physical or mental impairment or a combination of impairment(s) that

21 is severe; (3) that the impairment(s) meet or equal the requirements of a listed impairment; and (4)

22 that their residual functional capacity (RFC) precludes them from performing their past relevant

23 work. Id. § 404.1520(a)(4). At step five, the burden shifts to the Commissioner to show that the

24 claimant has the RFC to perform other work that exists in significant numbers in the national

25 economy. Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007). If the Commissioner

26 conclusively finds the claimant “disabled” or “not disabled” at any point in the five-step process,

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1 he does not proceed to the next step. 20 C.F.R. § 404.1520(a)(4).

2 Pursuant to 42 U.S.C. § 405(g), a district court has authority to review a Commissioner’s

3 decision to deny disability benefits to a claimant. “The ALJ is responsible for determining

4 credibility, resolving conflicts in medical testimony, and for resolving ambiguities.” Ahearn v.

5 Saul, 988 F.3d 1111, 1115 (9th Cir. 2021) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th

6 Cir. 1995)). The district court’s role is “to ensure that the [ALJ’s] decision was supported by

7 substantial evidence and a correct application of the law.” Ludwig v. Astrue, 681 F.3d 1047, 1051

8 (9th Cir. 2012). “‘Substantial evidence’ means more than a mere scintilla, but less than a

9 preponderance, i.e., such relevant evidence as a reasonable mind might accept as adequate to

10 support a conclusion.” Robbins v. Social Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). The

11 Court must “consider the entire record as a whole, ‘weighing both the evidence that supports and

12 the evidence that detracts from the Commissioner’s conclusion.’” Lingenfelter v. Astrue, 504 F.3d

13 1028, 1035 (9th Cir. 2007) (quoting Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998)).

14 “Where the evidence can reasonably support either affirming or reversing the decision, [this

15 Court] may not substitute [its] judgment for that of the Commissioner.” Parra v. Astrue, 481 F.3d

16 742, 746 (9th Cir. 2007).

17 B. Standards for Evaluating Cases Involving Drug and Alcohol Addiction

18 In cases involving substance abuse (such as M.D.’s), which the Social Security

19 Administration (SSA) refers to as drug and alcohol addiction (DAA), the ALJ is required to

20 “apply the appropriate [five-step] sequential evaluation process twice.” Social Security Ruling

21 (SSR) 13-2p, 2013 WL 621536, at *6 (Feb. 20, 2013); accord Bustamante v. Massanari, 262 F.3d

22 949, 955 (9th Cir. 2001) (interpreting 20 C.F.R. § 404.1535). The two-step process is necessary

23 because “[a] claimant cannot receive disability benefits ‘if alcoholism or drug addiction would ...

24 be a contributing factor material to the Commissioner’s determination that the individual is

25 disabled.’” Parra, 481 F.3d at 746 (quoting 42 U.S.C. § 423(d)(2)(C)).

26 During the first “round” or “stage” (round one), the “ALJ conducts the five-step inquiry

27 without separating out the impact of [DAA],” to determine whether the claimant is disabled.

1 the claimant’s medically determinable impairments, the ALJ determines during round one that the

2 claimant is disabled, and there is medical evidence showing DAA, then the ALJ must proceed to

3 the second “round” or “stage” (round two) to determine whether the DAA is “material” to the

4 finding that the claimant is disabled, “appl[ying] the sequential evaluation process a second time

5 to document materiality[.]” SSR 13-2p, 2013 WL 621536, at *6. “Materiality” is the degree to

6 which an individual would still be found disabled if they stopped using drugs or alcohol. See 20

7 C.F.R. § 404.1535(b).

8 During round two, the ALJ “project[s] the severity of the claimant’s other impairment(s) in

9 the absence of DAA.” SSR 13-2p, 2013 WL 621536, at *4, 7. In so doing, the ALJ “evaluate[s]

10 which of [the claimant’s] current physical and mental limitations... would remain if [the claimant]

11 stopped using drugs or alcohol and then determine[s] whether any or all of [the claimant’s]

12 remaining limitations would be disabling.” 20 C.F.R. § 404.1535(b)(2). If the ALJ determines

13 that the claimant’s “remaining limitations are disabling... independent of [the claimant’s DAA],”

14 then the ALJ “will find [DAA] is not a contributing factor material to the determination of

15 disability,” and the claimant is deemed disabled. Id. § 404.1535(b)(2)(ii). By contrast, if, absent

16 the DAA, the claimant’s “remaining limitations would not be disabling,” the ALJ will determine

17 that DAA “is a contributing factor material to the determination of disability,” and will find the

18 claimant not disabled. Id. § 404.1535(b)(2)(i).

19 III. DISCUSSION

20 M.D. raises three challenges to the ALJ’s decision. First, she argues that the ALJ “failed

21 to consider the required factors” and “failed to provide specific and legitimate reasons” for the

22 weight given to the medical opinions of record. ECF No. 14 at 16. Second, she argues that the

23 ALJ “erred in discrediting M.D.’s statements about her symptoms.” Id. Third, she argues that the

24 ALJ’s decision “to reject the third-party witness statement was not supported by substantial

25 evidence.” Id. M.D. separately requests that the Court remand to the SSA for an immediate

26 award of benefits under the Ninth Circuit’s “credited-as-true” rule. Id. at 28–29.

27 A. Medical Opinion Evidence

1 which require ALJs to “give greater weight to certain medical opinions.” Farlow v. Kijakazi, 53

2 F.4th 485, 488 (9th Cir. 2022). “Opinions from treating physicians receive more weight than

3 opinions from examining physicians, and opinions from examining physicians receive more

4 weight than opinions from non-examining physicians.” Id.

5 M.D. challenges the ALJ’s evaluation of two medical opinions, one from Dr. Guss, her

6 treating psychiatrist, and the other from Dr. David Glassmire, an impartial medical expert and

7 non-examining physician who testified at the hearing before the ALJ after reviewing the record.

8 1. Dr. Jee Hyun Guss

9 On June 28, 2018, Dr. Guss submitted to the SSA a two-page, check-box form called a

10 Medical Source Statement which opined that: (1) M.D.’s “symptoms of mood and anxiety

11 interfere [with her] ability to follow instructions due to low energy”; (2) M.D. “[r]equires

12 assistance from family to engage in and complete tasks”; (3) MD is “frequently anxious when

13 leaving home environment, resulting in avoidance”; and (4) MD is “unable to live independently

14 in the community.” ECF No. 11-8 at 120–21.

15 “The medical opinion of a claimant’s treating physician is given ‘controlling weight’ so

16 long as it ‘is well-supported by medically acceptable clinical and laboratory diagnostic techniques

17 and is not inconsistent with the other substantial evidence in [the claimant’s] case record.’”

18 Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) (quoting 20 C.F.R. § 404.1527(c)(2)). If an

19 ALJ decides to give a treating physician’s opinion less than controlling weight, the ALJ must do

20 two things. First, the ALJ must consider other factors “such as the length of the treatment

21 relationship and the frequency of examination, the nature and extent of the treatment relationship,

22 supportability, consistency with the record, and specialization of the physician.” Id. at 676 (citing

23 20 C.F.R. § 404.1527(c)(2)–(6)). Consideration must also be given to other factors, whether

24 raised by the claimant or by others, or if known to the ALJ, including the amount of relevant

25 evidence supporting the opinion and the quality of the explanation provided; the degree of

26 understanding a physician has of the Commissioner’s disability programs and their evidentiary

27 requirements; and the degree of his or her familiarity with other information in the case record. 20

1 factors listed under Section 404.1527(c)(2)–(6) “alone constitutes reversible legal error.” Trevizo,

2 871 F.3d at 676.

3 Second, the ALJ must provide reasons for rejecting or discounting the treating

4 physician’s opinion. The legal standard that applies to the ALJ’s proffered reasons depends on

5 whether the treating physician’s opinion is contradicted by another physician. When a treating

6 physician’s opinion is not contradicted by another physician, the ALJ must provide “clear and

7 convincing” reasons for rejecting or discounting the opinion, supported by substantial evidence.

8 Id. at 675. When a treating physician’s opinion is contradicted by another physician, an ALJ must

9 provide “specific and legitimate reasons” for rejecting or discounting the treating physician’s

10 opinion, supported by substantial evidence. Id. “The ALJ can meet this burden by setting out a

11 detailed and thorough summary of the facts and conflicting clinical evidence, stating his

12 interpretation thereof, and making findings.” Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir.

13 1989) (quotations and citation omitted).

14 Here, Dr. Guss was M.D.’s treating psychiatrist, but the ALJ did not give controlling

15 weight to her medical opinion. Instead, the ALJ only gave it “great weight” during round one of

16 the five-step sequential evaluation process as to it pertained to M.D.’s mental functioning during

17 periods of alcohol abuse and “little weight” during round two as it pertained to M.D.’s mental

18 functioning during periods of sustained sobriety. ECF No. 11-9 at 32, 43. The ALJ erred,

19 however, when he failed to consider any factors under 20 C.F.R. § 404.1527(c) beyond

20 supportability and consistency, such as the extent of the treatment relationship M.D. had with Dr.

21 Guss or the frequency of examination. Id. at 31–32, 42–43. This “alone constitutes reversible

22 legal error.” Trevizo, 871 F.3d at 676; see Newman A. v. Berryhill, No. 17-CV-03010-JSC, 2019

23 WL 1385900, at *7 (N.D. Cal. Mar. 27, 2019) (remanding for further proceedings in part because

24 the ALJ “failed to apply the appropriate factors as required under” the regulations, including

25 length of the treatment relationship and the frequency of examination); J.Z. v. Saul, No. 20-CV-

26 00154-LB, 2021 WL 3493744, at *9 (N.D. Cal. Aug. 9, 2021) (“Because the ALJ did not apply

27 the factors listed in 20 C.F.R. § 404.1527 in determining the extent to which the opinion should be

1 Even if the ALJ had considered all the necessary regulatory factors, he failed to properly

2 explain why he credited the opinions of non-examining and non-treating doctors over the opinion

3 of Dr. Guss. Because Dr. Guss’s opinion was contradicted by other physicians that provided a

4 medical opinion as to M.D., the “specific and legitimate reasons” standard applies. Trevizo, 871

5 F.3d at 675. Here, the ALJ gave several reasons for rejecting Dr. Guss’s opinion, none of which

6 meet the “specific and legitimate reasons” standard.

7 a. Alcoholism

8 During round one of the five-step sequential evaluation process, the ALJ found that Dr.

9 Guss’s opinion is “generally consistent with [M.D.’s] functioning when abusing alcohol.” ECF

10 No. 11-9 at 32. He noted that her “long history of alcoholism…significantly worsened her mental

11 impairments and resulted in repeat psychiatric hospitalizations for self-injurious behavior and

12 suicidal ideation,” and that “[d]uring periods of alcohol abuse,” M.D. “presented as tearful,

13 anxious, depressed and tremulous, and demonstrated increased OCD-type behaviors…” Id. As

14 such, the ALJ believed that the limitations Dr. Guss opined were more consistent with the

15 “objective findings and self-reports of impaired functioning” that were in the record during

16 periods where M.D. was abusing alcohol. ECF No. 11-9 at 32. During round two, the ALJ found

17 that Dr. Guss’s opinion is “inconsistent with the evidence of record” because she did not consider

18 M.D.’s alcohol use disorder. Id. at 43. He cited to evidence in the record which purportedly

19 shows that “[d]uring periods of sobriety,” M.D.’s mental symptoms significantly improved. Id.

20 However, Dr. Guss herself never opined that M.D.’s mental impairments are or are not

21 worsened during periods of alcohol abuse. In fact, her medical opinion is from June 2018 (ECF

22 No. 11-8 at 121), and at that time, M.D. was approximately six months sober. See ECF No. 11-14

23 at 250. Dr. Guss saw M.D. as a patient for approximately 1.5 years (ECF No. 11-8 at 121), and

24 her medical notes indicate that she was aware of and treating M.D.’s alcohol dependency. See,

25 e.g., id. at 82 (listing “EtOH Use D/O” [Alcohol Use Disorder] as one of M.D.’s diagnoses and

26 noting that she has been “able to maintain sobriety” and is “working with her sponsor, working the

27 steps.”). But there is nothing in Dr. Guss’s Medical Source Statement to show how she evaluated

1 analysis, the ALJ erred in “separating out the impact” of M.D.’s alcoholism during the first round

2 of the five-step sequential evaluation process. Bustamante, 262 F.3d at 955; see also Reese v.

3 Berryhill, No. 17-CV-06655-DMR, 2019 WL 4738279, at *16 (N.D. Cal. Sept. 27, 2019) (“Here,

4 the ALJ cited Reese’s drug use as a reason to undermine Dr. Ratto’s findings on his mental

5 impairments. This was a premature inquiry; under Bustamente, the ALJ should have completed

6 the five-step inquiry and then proceeded to consider Reese’s drug use only if he found that Reese

7 was disabled”); Kroeger v. Colvin, No. 13-CV-05254-SI, 2015 WL 2398398, at *9 (N.D. Cal.

8 May 19, 2015) (finding that the ALJ erred during round one by rejecting “evidence of increased

9 severity of symptoms based on the notion that any evidence of increased severity was due to

10 plaintiff’s substance use.”). Accordingly, M.D.’s alcoholism is not a specific and legitimate

11 reason for the ALJ to have given Dr. Guss’s opinion less than controlling weight.

12 b. Mental Status Examinations

13 The ALJ also rejected Dr. Guss’s opinion because her mental status examinations of M.D.

14 were “generally unremarkable with the exception of some anxious and/or depressed affect and

15 impaired judgment.” ECF No. 11-9 at 32, 43. The ALJ noted that M.D. generally demonstrated,

16 inter alia, “normal speech, appropriate affect, pleasant demeanor,” as well as “linear and goal-

17 directed thought processes…and intact cognition.” Id. M.D. argues that her ability to behave

18 “normally” in a therapy session, which is less demanding than typical work settings, and where

19 she was often accompanied by a family member for support, is not substantial evidence that M.D.

20 could “withstand the stresses and duration of a full forty-hour in-person work week in a

21 competitive work setting.” ECF No. 14 at 18–19.

22 Although the ALJ fixates on the mental status examination findings, he ignores the fact

23 that these are side-by-side with Dr. Guss’s narrative notes that otherwise corroborate her medical

24 opinion. See, e.g., ECF No. 11-8 at 74 (finding that M.D. was “groomed,” presented “no gross

25 motor abn[ormalities],” and that her “speech [was] [within normal limits],” but also that she

26 “[f]eels low in energy” and “feels anxious and fearful of going out”); 105 (noting M.D.’s

27 “appropriate affect” but also that she feels anxious about going to AA meetings and interacting

1 be inconsistent with a finding of “normal” or “intact” examinations. De La Cruz v. Kijakazi, Case

2 No. 20-cv-05852-MMC, 2022 WL 1556411, at *8 (N.D. Cal. May 17, 2022). Moreover, the ALJ

3 fails to explain how, for example, M.D.’s “normal speech” and “linear and goal-directed thought

4 processes” during brief psychiatry appointments with her trusted medical provider contradicts Dr.

5 Guss’s opinion that M.D. has anxiety about going out in public or is unable to live independently

6 in the community. See Dierker v. Berryhill, No. 18CV145-CAB(MSB), 2019 WL 246429, at *12

7 (S.D. Cal. Jan. 16, 2019), report and recommendation adopted, No. 18CV145-CAB-MSB, 2019

8 WL 446231 (S.D. Cal. Feb. 5, 2019) (finding that treating psychiatrist’s “fairly intact” mental

9 status examination findings were of “limited relevance” to the psychiatrist’s “opinions regarding

10 [the p]laintiff’s mental work-related limitations.”). If anything, Dr. Guss’s opinion that M.D.

11 requires assistance from family members to complete tasks is consistent with her frequently

12 needing a family member with her at psychiatry appointments for support. See, e.g., ECF No. 11-

13 8 at 82 (M.D. accompanied to August 30, 2017 appointment with Dr. Guss by her mother). Thus,

14 Dr. Guss’s mental status examination findings are not a specific or legitimate reason for rejecting

15 her medical opinion and giving it less than controlling weight.

16 c. Activities of Daily Living

17 Another reason the ALJ gave for rejecting Dr. Guss’s opinion is that “[d]uring periods of

18 sobriety,” M.D. “engaged in good activities of daily living, including successfully completing

19 college-level coursework and regularly reading books.” ECF No. 11-9 at 43. But the treatment

20 records he cites where M.D.’s college classes were discussed are from before December 2015,

21 which is M.D.’s alleged onset disability date. ECF No. 11-8 at 45–46, 64–65. Such records are

22 “of limited relevance.” Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1165 (9th Cir.

23 2008). Notably, M.D. stopped attending her college classes the same month as her alleged onset

24 disability date because she reported that she “couldn’t handle” it anymore. ECF No. 11-8 at 74.

25 The ALJ also cited to records from a September 22, 2017 appointment where M.D.’s therapist said

26 she had done her “homework,” “discussed introversion with her mother as well,” and “shared her

27 partnership plan with her mother.” Id. at 97. When read in context, the therapist’s notes clearly

1 to no evidence indicating that M.D. returned to school after dropping out in the Spring of 2016 due

2 to her worsening mental health symptoms. Id. at 52.

3 The only evidence cited by the ALJ as to M.D.’s reading indicates that she “likes” reading,

4 not that she was doing so “regularly.” Id. at 82. Moreover, even if M.D. is reading regularly, the

5 ALJ fails to explain how the “level of activity” required for reading is inconsistent with M.D.’s

6 “claimed limitations.” Reddick, 157 F.3d at 722. It is not patently obvious how reading—a

7 solitary activity—is inconsistent with Dr. Guss’s opinion, which focused on M.D.’s anxiety when

8 going out in public, her need for assistance to engage in and complete tasks, and her inability to

9 live independently in the community. Reading is an activity that M.D. likely can start and stop at

10 will if her “symptoms of mood and anxiety” or “low energy” prevent her from continuing to read.

11 Neither reading nor M.D.’s college-level coursework provides a specific and legitimate basis for

12 giving Dr. Guss’s opinion less than controlling weight.

13 d. Psychological Test Results

14 Finally, the ALJ found that “when sober, [M.D.] achieved average scores in verbal

15 comprehension, perceptual reasoning, working memory, processing speech and full-scale IQ, and

16 low average scores in auditory memory, visual memory, immediate memory and delayed

17 memory.” ECF No. 11-9 at 32, 43. According to the ALJ, “[t]hese clinical signs and laboratory

18 findings are wholly inconsistent with Dr. Guss’[s] opinion that [M.D.] has no useful mental ability

19 in several areas of mental functioning.” Id. But Dr. Guss never opined that M.D. has an

20 intellectual disability, difficulty recalling information, difficulty comprehending information, or

21 difficulty thinking. Dr. Guss opined that it is M.D.’s “symptoms of mood and anxiety” that

22 interfere with her ability to follow instructions. ECF No. 11-8 at 120–21. She also opined that

23 M.D.’s anxiety causes her to fear leaving her home, and that she needs assistance from family to

24 engage in and complete tasks. Id. M.D.’s “average” neuropsychological test results are not

25 necessarily inconsistent with Dr. Guss’s opinion as to M.D.’s limitations. See Ghanim v. Colvin,

26 763 F.3d 1154, 1164 (9th Cir. 2014) (rejecting the ALJ’s reliance on “good eye contact, organized

27 and logical thought content, and focused attention” and “cognitive functioning” because they “do

1 reasoning here thus fails to meet the specific and legitimate standard.

2 Given all the above, the ALJ erred when, after deciding to give Dr. Guss’s opinion less

3 than controlling weight, he failed to consider any factors under 20 C.F.R. § 404.1527(c) beyond

4 supportability and consistency, and he failed to provide specific and legitimate reasons for

5 rejecting Dr. Guss’s medical opinion.

6 2. David Glassmire, PhD

7 The ALJ found that Dr. Glassmire’s opinion was entitled to “partial weight” as it pertained

8 to M.D.’s periods of sobriety, but “little weight” as to periods of alcohol abuse. ECF No. 11-9 at

9 33, 44–45. Because the ALJ did not give Dr. Guss’s opinion controlling weight, he was required

10 to weigh all medical opinions with consideration to the factors outlined in 20 C.F.R.

11 § 404.1527(c), including Dr. Glassmire’s opinion. The ALJ did not consider all these factors. He

12 failed to note, for example, that Dr. Glassmire, an “impartial medical expert,” never examined

13 M.D. Nor did the ALJ discuss Dr. Glassmire’s specialization and how it qualified him to opine on

14 M.D.’s medical conditions. This “alone constitutes reversible legal error.” Trevizo, 871 F.3d at

15 676.5

16 According to M.D., the ALJ also ignored critical parts of Dr. Glassmire’s testimony. ECF

17 No. 14 at 21. Specifically, he ignored Dr. Glassmire’s testimony that: (1) M.D. being unable to

18 leave her home for days is consistent with her diagnoses; and (2) it is possible someone in the

19 same circumstances could miss 1–2 days of work per month and be off task more than the average

20 worker. See ECF No. 11-3 at 129–31. As noted below, see supra Section IV.D, the Court finds

21 that remand for further proceedings is appropriate in this case. Because the ALJ erred in how he

22 evaluated Dr. Glassmire’s medical opinion under 20 C.F.R. § 404.1527(c), on remand, the ALJ

23 must reevaluate Dr. Glassmire’s entire opinion and its true consistency with the medical evidence

24

25

5 According to the Commissioner, because M.D. does not challenge the substance of any reasons

the ALJ gave for how he weighed the opinion of Dr. Glassmire, she has forfeited the issue for

26

judicial review. ECF No. 16 at 8. The Commissioner is correct that M.D. is not challenging the

substance of the reasons that the ALJ gave for partially rejecting Dr. Glassmire’s opinion. Instead,

27

M.D. challenges the ALJ’s failure to weigh Dr. Glassmire’s opinion with consideration to the

1 of record.

2 B. M.D.’s Subjective Symptom Testimony

3 M.D. argues that the ALJ failed to provide clear, and convincing reasons supported by

4 substantial evidence for discounting her symptom testimony. ECF No. 14 at 21–27. The Ninth

5 Circuit has “established a two-step analysis for determining the extent to which a claimant’s

6 symptom testimony must be credited.” Trevizo, 871 F.3d at 678. “First, the ALJ must determine

7 whether the claimant has presented objective medical evidence of an underlying impairment which

8 could reasonably be expected to produce the pain or other symptoms alleged.” Id. (quoting

9 Garrison v. Colvin, 759 F.3d 995, 1014–15 (9th Cir. 2014)). If the claimant meets this

10 requirement and there is no evidence of malingering, “the ALJ can reject the claimant’s testimony

11 about the severity of her symptoms only by offering specific, clear and convincing reasons for

12 doing so. This is not an easy requirement to meet: The clear and convincing standard is the most

13 demanding required in Social Security cases.” Id. To satisfy the “clear and convincing reasons”

14 requirement, “[g]eneral findings are insufficient; rather, the ALJ must identify what testimony is

15 not credible and what evidence undermines the claimant’s complaints.” Brown-Hunter v. Colvin,

16 806 F.3d 487, 493 (9th Cir. 2015) (quoting Reddick, 157 F.3d at 722).

17 In weighing the claimant’s credibility, the ALJ may consider many factors, including

18 “(1) ordinary techniques of credibility evaluation, such as the claimant’s reputation for lying, prior

19 inconsistent statements concerning the symptoms, and other testimony by the claimant that

20 appears less than candid; (2) unexplained or inadequately explained failure to seek treatment or to

21 follow a prescribed course of treatment; and (3) the claimant’s daily activities.” Tommasetti v.

22 Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (quoting Smolen v. Chater, 80 F.3d 1273, 1284 (9th

23 Cir. 1996)). The ALJ’s reasons also must be supported by substantial evidence in the record.

24 Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002).

25 Here, the ALJ found during the first round at step four of the five-step sequential

26 evaluation process that M.D.’s medically determinable impairments—depression, mood disorder,

27 anxiety, and alcoholism—could reasonably be expected to produce the alleged symptoms. ECF

1 “testimony about the severity of her symptoms only by offering specific, clear and convincing

2 reasons for doing so.” Trevizo, 871 F.3d at 678.

3 The ALJ gave several reasons for rejecting M.D.’s symptom complaints, none of which

4 satisfy the “clear and convincing reasons” standard.

5 1. Stability and Improvement with Sobriety

6 During round two of the five-step sequential evaluation process, the ALJ found that M.D.’s

7 symptom testimony was inconsistent with the medical evidence of record in part because “when

8 not abusing alcohol, [M.D.’s] mental impairments significantly improved.” ECF No. 11-9 at 38,

9 42. He cited to various treatment records, including records from one of her medical providers,

10 Dr. Tina Nhatthi Tonnu, who concluded that M.D.’s “mood stabilizes well when she is sober and

11 takes her medications regularly.” Id. at 39 (citing ECF No. 11-8 at 21). The ALJ also cited to

12 records where M.D. “noted it was easier to get out of bed” which “indicates [M.D.’s] motivation

13 improved with sobriety and psychotropic medication management.” Id. (citing ECF No. 11-8 at

14 45–46).

15 However, the ALJ once again relied on medical records from before M.D.’s alleged onset

16 disability date. Her alleged onset disability date is December 1, 2015. ECF No. 11-9 at 19. Dr.

17 Tonnu’s notes that M.D.’s “mood stabilizes well when she is sober and takes her medications

18 regularly” is from February 2014. ECF No. 11-8 at 21. M.D.’s comment about it being easier to

19 get out of bed is from November 2014. Id. at 45. As noted above, such records are “of limited

20 relevance.” Carmickle, 533 F.3d at 1165. More importantly, as M.D. points out, the record shows

21 that she did struggle significantly with her mental health at times even during periods of sobriety.

22 For example, there are medical records from October 15, 2016, after her alleged onset disability

23 date, where M.D. indicated that she was “low in energy,” “stay[ed] in bed,” had been “gaining

24 weight” because she was eating more, and that she had “felt depressed for a long time,” but it had

25 been “worsening over the past couple of months.” ECF No. 11-8 at 74. At that point, she had

26 been sober for two months, yet her psychiatrist, Dr. Guss, found that she “[continued] to endorse

27 [significant symptoms] of depressed mood and anxiety that are not fully managed by her current

1 psychiatry appointment where M.D. reported that she had “been feeling down” and that it was

2 “hard to get things done around the house,” but the “only thing” she was doing “well is staying

3 sober.”).

4 Moreover, “[o]ccasional symptom-free periods ... are not inconsistent with disability.”

5 Ghanim, 763 F.3d at 1162 (quoting Lester v. Chater, 81 F.3d 821, 833 (9th Cir.1995)). In cases

6 involving co-occurring DAA and mental disorders, the ALJ must “evaluate which of [the

7 claimant’s] current physical and mental limitations ... would remain if [she] stopped using drugs or

8 alcohol and then determine whether any or all of [her] remaining limitations would be disabling.”

9 20 C.F.R. § 404.1535(b)(2). The Ninth Circuit has “distinguish[ed] between substance abuse

10 contributing to the disability and the disability remaining after the claimant stopped using drugs

11 or alcohol. The two are not mutually exclusive. Just because substance abuse contributes to a

12 disability does not mean that when the substance abuse ends, the disability will too.” Sousa v.

13 Callahan, 143 F.3d 1240, 1245 (9th Cir. 1998). Here, just because M.D.’s depressed mood

14 improved and her motivation increased at times during periods of sobriety does not mean that they

15 would improve to the point of non-disability. See Holohan v. Massanari, 246 F.3d 1195, 1205

16 (“That a person who suffers from severe panic attacks, anxiety, and depression makes some

17 improvement does not mean that the person’s impairments no longer seriously affect her ability to

18 function in a workplace.”).

19 M.D.’s treatment records must also be “read in context of the overall diagnostic picture.”

20 Id. As the ALJ himself recognized, M.D. was diagnosed with bipolar disorder in May 2019. ECF

21 No. 11-9 at 22, 30. By focusing on M.D.’s “periods of relative well-being,” the ALJ was

22 “essentially ignor[ing] the nature” of M.D.’s bipolar disorder, “a disease that is, by definition,

23 episodic.” Dodghson v. Berryhill, No. 17-CV-02602-MEJ, 2018 WL 2047453, at *11 (N.D. Cal.

24 May 2, 2018) (quoting Edler v. Astrue, 391 Fed. App’x. 599, 601 (9th Cir. 2010)); see also Witt v.

25 Colvin, No. 3:13-CV-01550-SI, 2014 WL 6750329, at *8 (D. Or. Dec. 1, 2014) (finding that the

26 ALJ erred in failing to consider the plaintiff’s bipolar disorder and the fact that it “is episodic in

27 nature and Plaintiff has good days and bad days.”). “Given the episodic nature of bipolar disorder,

1 App’x 772, 773 (9th Cir. 2013). Thus, M.D.’s alleged “improvement” during certain periods of

2 sobriety is not a clear and convincing reason for rejecting her symptom testimony.

3 2. Mental Status Examinations

4 As with Dr. Guss’s medical opinion, the ALJ rejected M.D.’s symptom testimony in part

5 because “when not abusing alcohol, [her] mental status examinations were largely unremarkable

6 and documented normal speech, euthymic mood with congruent affect, linear and goal-directed

7 thought processes, normal thought content, fair-to-good judgment and intact cognition.” ECF No.

8 11-9 at 39. He found that M.D.’s “generally stable mood, logical thought processes, average

9 intelligence and good judgment are inconsistent with her allegations she cannot maintain

10 concentration longer than 45 minutes and support an ability to understand, remember and carry out

11 simple, routine and repetitive tasks.” Id. at 42. For the reasons explained above, this was not a

12 “specific and legitimate” reason for rejecting Dr. Guss’s medical opinion, and therefore, it is not a

13 “clear and convincing” reason for rejecting M.D.’s symptom testimony, given that the “clear and

14 convincing” standard is “the most demanding required in Social Security cases.” Trevizo, 871

15 F.3d at 678.

16 Here, M.D. testified in part that her anxiety disorder made her “anxious around people”

17 and that her depression made it difficult to “leave the house” or “participat[e] in life in any way.”

18 ECF No. 11-9 at 65–66. As noted above, “normal” mental status examination findings during

19 brief one-on-one mental health appointments are not necessarily inconsistent with M.D.’s claimed

20 limitations. See Dierker, 2019 WL 246429, at *12. And there are narrative notes side by side

21 with the mental status examination findings that do corroborate her impairments. See, e.g., ECF

22 No. 11-8 at 105. Moreover, the Ninth Circuit has repeatedly emphasized that an ALJ “may not

23 discredit the claimant’s testimony as to the severity of symptoms merely because they are

24 unsupported by objective medical evidence.” Reddick, 157 F.3d at 722; see also Barboza v.

25 Astrue, No. C -12-01153(EDL), 2013 WL 12181773, at *8 (N.D. Cal. May 28, 2013) (rejecting

26 ALJ’s finding that the plaintiff’s testimony was not credible because of her “normal” mental status

27 exams and Global Assessment of Functioning (GAF) scores, given that the “entire record” was

1 3. Activities of Daily Living

2 The ALJ also rejected M.D.’s symptom testimony because of its purported inconsistency

3 with her “good activities of daily living.” ECF No. 11-9 at 39. One of the activities pointed to by

4 the ALJ was the fact that M.D. was “doing well in her college-level courses for environmental

5 studies.” Id. As with his analysis of Dr. Guss’s medical opinion, the ALJ cited to records from

6 before M.D.’s alleged onset disability date. Specifically, he cited to records from November 2014,

7 April 2015, and November 2015 (ECF No. 11-8 at 45–46, 64–67), before December 1, 2015, and

8 well before she dropped out of college in the Spring of 2016 due to her worsening mental health

9 symptoms. Id. at 52. Similarly, the ALJ described M.D. “reading books” as a good activity of

10 daily living, but as noted above, the ALJ does not explain how this solitary activity is inconsistent

11 with M.D.’s claimed limitations, such as her anxiety going out in public. Nor does the ALJ

12 explain how reading for pleasure and being able to start and stop reading at will is an activity that

13 is “easily transferable to what may be the more grueling environment of the workplace, where it

14 might be impossible to periodically rest.” Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989),

15 superseded on other grounds by 20 C.F.R. § 404.1502(a).

16 Another activity that the ALJ focused on in rejecting M.D.’s symptom testimony was her

17 AA attendance “two-to-three times per week,” which the ALJ believed was inconsistent with

18 M.D.’s allegations that she is “scared of everything social.” ECF No. 11-9 at 39–40. But in so

19 finding, the ALJ ignored pertinent details in the record as to M.D.’s AA attendance. M.D. did in

20 fact report feeling “anxious” about going to AA meetings. ECF No. 11-8 at 105. She was worried

21 about “what others will think of her,” and had to “discuss[] strategies” with her therapist “to help

22 her cope in these situations.” Id. M.D. even indicated at one point that she was planning on going

23 “to a morning meeting near her home that she feels less anxious about attending.” Id. M.D. also

24 reported that she had to go to AA meetings “with either her mother or uncle or her friend” for

25 support. Id. at 76. Moreover, M.D. testified at her March 2, 2018 ALJ hearing that she had

26 “difficulty” with two AA sponsors, because they were both “critical” of her, which led to her

27 crying and not reaching out to them anymore. ECF No. 11-3 at 102. All of this is consistent with

1 The ALJ also pointed to the fact that M.D. maintained “a healthy relationship with her

2 mother,” D.D., and went “shopping” with her. ECF No. 11-9 at 41. However, the record shows

3 that M.D.’s relationship with D.D. was sometimes volatile. At an October 30, 2017 appointment

4 with her therapist, M.D. admitted that she and D.D. had “quarreled” because D.D. asked M.D. to

5 help with their upcoming move. ECF No. 11-8 at 101. M.D. became “mean” with D.D., “verbally

6 abusive,” and “threw things.” Id. Even if M.D.’s relationship with her mother was relatively

7 stable, the ALJ does not explain how M.D.’s ability to get along with D.D. at home would be

8 relevant to her ability to interact with co-workers on a full-time basis in a workplace setting. As

9 for M.D. going “shopping” with D.D., “[a]ctivities such as ‘[h]ouse chores, cooking simple meals,

10 self-grooming, paying bills, writing checks…as well as occasional shopping outside the home, are

11 not similar to typical work responsibilities.’” Baig v. Kijakazi, No. 21-CV-01839-HSG, 2023 WL

12 3688453, at *8 (N.D. Cal. May 26, 2023) (quoting Diedrich v. Berryhill, 874 F.3d 634, 643 (9th

13 Cir. 2017)). The fact that M.D. went shopping “does not in any way detract from her credibility as

14 to her overall disability” as “[o]ne does not need to be ‘utterly incapacitated’ in order to be

15 disabled.” Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) (quoting Fair, 885 F.2d at

16 603). Notably, the ALJ relied on medical records from December 20, 2016, where M.D reported

17 “doing holiday shopping with [her] mother.” ECF No. 11-8 at 76. There is no indication of how

18 often M.D. went shopping, how much time she spent shopping, etc. And in those same records,

19 M.D. reported that she “[continued] to struggle with maintaining hygiene, doing the laundry,

20 doing house chores” because of her “depressed mood” and her “low energy.” Id.

21 Finally, the ALJ also emphasized the fact that M.D. “reported going to the movies” and

22 “going bowling.” ECF No. 11-9 at 42. The ALJ cited to notes from a March 11, 2020 behavioral

23 health intake appointment, where under a section entitled “Social Supports,” and a subsection

24 entitled “Meaningful Activities (community involvement, volunteer activities, leisure/recreation,

25 other interests)” it indicates that M.D. liked to “[g]o to the movies, go bowling, read books.” ECF

26 No. 11-14 at 553. There is no other information provided as to how often M.D. engages in these

27 activities, whether she is accompanied by anyone, whether these activities cause her any social

1 constitute a “clear and convincing reason” for rejecting M.D.’s symptom testimony, especially

2 since the Ninth Circuit has “recognized that disability claimants should not be penalized for

3 attempting to lead normal lives in the face of their limitations.” Reddick, 157 F.3d at 722.

4 Moreover, in the same set of notes, it documents the fact that M.D. “report[ed] impairments in

5 social and relationship functioning as [M.D.] reports [symptoms] make her isolate and effects her

6 relationships with others,” which is consistent with M.D.’s symptom testimony. Id. at 552. Given

7 all the above, none of the daily activities pointed to by the ALJ constitute clear and convincing

8 reasons for rejecting M.D.’s symptom testimony.

9 C. Lay Witness Testimony

10 In a Third-Party Adult Function Report and during two hearings before the ALJ, D.D.,

11 M.D.’s mother, corroborated M.D.’s allegations regarding her debilitating symptoms, including

12 the severe depression, anxiety, PTSD, poor concentration, and self-injurious behavior. ECF Nos.

13 11-3 at 106–10, 11-7 at 41–48, 11-9 at 76–78. The ALJ ultimately gave D.D.’s opinion “great

14 weight” during round one as it pertained to M.D.’s mental functioning during periods of alcohol

15 abuse, but “little weight” during round two as it pertained to her mental functioning during periods

16 of sustained sobriety. ECF No. 11-9 at 32, 43. The ALJ based this on “the same reasons

17 discussed regarding Dr. Guss’s medical opinion,” which as indicated above, were M.D.’s

18 alcoholism, the mental status examinations, her activities of daily living, and her psychological

19 test results.

20 “Lay testimony as to a claimant’s symptoms is competent evidence that an ALJ must take

21 into account, unless he or she expressly determines to disregard such testimony and gives reasons

22 germane to each witness for doing so.” Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001). “One

23 reason for which an ALJ may discount lay testimony is that it conflicts with medical evidence.”

24 Id. In addition, where the ALJ provides “clear and convincing reasons for rejecting [the

25 claimant’s] own subjective complaints,” and the lay witness testimony is “similar to such

26 complaints, it follows that the ALJ also gave germane reasons” for rejecting the lay witness

27 testimony. Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009).

1 above that the ALJ did not provide “clear and convincing reasons” for rejecting M.D.’s symptom

2 testimony. Accordingly, those reasons cannot be a “sufficient basis” for rejecting D.D.’s

3 testimony as well. See Alice B. v. Kijakazi, No. 20-CV-05897-DMR, 2021 WL 6113000, at *8

4 (N.D. Cal. Dec. 27, 2021) (“Because the court finds that the ALJ’s reasons for rejecting [the

5 p]laintiff’s testimony were not supported by substantial evidence, the court cannot apply those

6 reasons to [the p]laintiff’s mother’s testimony to find the error harmless.”). In addition, the Court

7 found that the reasons the ALJ gave for rejecting Dr. Guss’s medical opinion were not specific and

8 legitimate, and now finds that these reasons are also not “germane” reasons for rejecting D.D.’s

9 testimony.

10 D. Remand with Benefits

11 Finally, M.D. argues that if any of the above evidence which the ALJ rejected were

12 credited as true, then she would be found disabled, and therefore, the Court should remand for

13 automatic payment of benefits instead of further proceedings. In the Ninth Circuit, there is a

14 three-part test to determine whether remand with instructions to award benefits is appropriate: “the

15 record has been fully developed and further administrative proceedings would serve no useful

16 purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting evidence,

17 whether claimant testimony or medical opinion; and (3) if the improperly discredited evidence

18 were credited as true, the ALJ would be required to find the claimant disabled on remand.”

19 Garrison, 759 F.3d at 1020. “Remand for an award of benefits” is usually reserved for “rare

20 circumstances.” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1100 (9th Cir. 2014).

21 Here, the record has not been fully developed. There is an open question as to whether Dr.

22 Guss considered M.D.’s alcohol abuse when evaluating M.D.’s mental functioning, which is

23 crucial given that Dr. Guss was M.D.’s treating physician, and under the SSA regulations that

24 apply to M.D.’s claim, her medical opinion would normally be given controlling weight. See

25 Rosemayer v. Saul, No. 20-CV-06310-RMI, 2022 WL 445760, at *3 (N.D. Cal. Feb. 14, 2022)

26 (remanding for further proceedings where medical opinion source “did not render an opinion

27 regarding the interaction between [the p]laintiff’s substance abuse and the symptoms and

1 controlling weight, then the record needs to be developed as to the other regulatory factors under

2 20 C.F.R. § 404.1527(c) for her opinion as well as all other medical opinions (treatment

3 relationship, specialization, etc.).

4 Moreover, M.D. bases her request for remand with payment of benefits on the fact that

5 “the ALJ erred in the evaluation of [her] testimony, and in the evaluation of the medical opinions

6 and the third-party report.” ECF No. 14 at 29. But “[t]hese are exactly the sort of issues that

7 should be remanded to the agency for further proceedings.” Brown-Hunter, 806 F.3d at 495

8 (quoting Treichler, 775 F.3d at 1105). “The touchstone for an award of benefits is the existence of

9 a disability, not the agency’s legal error. To condition an award of benefits only on the existence

10 of legal error by the ALJ would in many cases make disability benefits ... available for the asking,

11 a result plainly contrary to 42 U.S.C. § 423(d)(5)(A).” Id. (internal quotation marks omitted).

12 Accordingly, remanding with an award of benefits is not appropriate here.

13 IV. CONCLUSION

14 For the reasons stated above, the Court GRANTS Plaintiff’s Motion for Summary

15 Judgment, DENIES Defendant’s Cross-Motion for Summary Judgment, and REMANDS for

16 further proceedings consistent with this Order.

17 IT IS SO ORDERED.

18 Dated: August 1, 2024

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20

LISA J. CISNEROS

21 United States Magistrate Judge

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