Penny v. O'Malley

• Court: District Court, N.D. California
• Decided: September 19, 2025
• Docket: 3:24-cv-06465
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JALISSA P., Case No. 24-cv-06465-SI

8 Plaintiff, ORDER REMANDING ACTION FOR 9 v. PAYMENT OF BENEFITS

10 FRANK J. BISIGNANO,1 Re: Dkt. Nos. 13, 17 11 Defendant.

12 13 Pursuant to 42 U.S.C. § 405(g), plaintiff Jalissa P. filed this lawsuit for judicial review of 14 the final decision by the Commissioner of Social Security denying her disability benefits claim. 15 Plaintiff moves for summary judgment. Dkt. No. 13 (Pl.’s Br.). Defendant cross-moves for 16 summary judgment. Dkt. No. 17 (Def.’s Br.). Having considered the briefs and the administrative 17 record, and for the reasons set forth below, the Court REVERSES the decision of the Commissioner 18 and REMANDS this action for immediate payment of benefits pursuant to sentence four of 42 19 U.S.C. § 405(g). 20 21 BACKGROUND 22 I. Factual/Medical Background 23 On August 9, 2018, plaintiff protectively filed an application for Supplemental Security 24 Income (“SSI”) under Title XVI of the Social Security Act. Administrative Record (“AR”) 37, 138. 25 Plaintiff alleged an onset date of June 1, 2010, later amended to July 17, 2015. AR 37, 138. In her 26 mid-20’s at the time, she alleged disability on the basis of depression, post-traumatic stress disorder, 27 1 a dislocated left knee, and nerve damage in two fingers on the right hand. AR 138. Plaintiff has a 2 history of severe abuse, including sexual abuse by her brother, which led to her entering the foster 3 care system around age 12, approximately the same time that her mental health symptoms began. 4 While she was a teenager in foster care, plaintiff gave birth to a son, who was removed from her 5 care as an infant. AR 1583-1584, 1673. Plaintiff has been hospitalized multiple times for suicidal 6 behavior, including after an attempt to hang herself while living in a group home at age 15, for 7 cutting her wrist at age 17, and after lying down in the middle of the street. See AR 159, 1583, 8 2234, 3483. In October 2015, plaintiff transitioned out of extended foster care services. AR 3367. 9 It is undisputed that plaintiff heavily used alcohol and drugs on a regular basis from about 10 2016 until she entered a residential treatment program (Women’s Hope) in June 2021. Drug use 11 included marijuana, cocaine, methamphetamine, and fentanyl. The record indicates, and the ALJ 12 found, that plaintiff has been sober since entering residential drug treatment in June 2021, except 13 that she uses marijuana every other day to curb her desire for other drugs. See AR 44-45, 94. 14 The record contains medical opinions and evaluations from numerous treating providers and 15 from consultative examiners. While plaintiff was in extended foster care, she received wraparound 16 services from Seneca Center. On March 31, 2015, Chloe Gendreau, A.S.W., completed an initial 17 assessment report. ASW Gendreau found that plaintiff’s symptoms “continue[d] to meet the criteria 18 for Major Depressive Disorder, recurrent with moderate severity.” AR 3354. ASW Gendreau noted 19 that plaintiff had not been attending school regularly since November 2014, that “her lack of 20 motivation and isolating behaviors” caused her to miss necessary appointments which then caused 21 her to lose an employment opportunity and jeopardized her housing. AR 3352, 3354. Plaintiff’s 22 “personal health and well-being have been greatly impacted by her experience of depression[.]” AR 23 3354. At the time of the assessment, plaintiff was using cannabis and alcohol “with somewhat 24 regularity.” AR 3356. ASW Gendreau did “not believe Jalissa’s symptoms are accounted for by a 25 substance use or a medical condition.” AR 3365. ASW Gendreau observed that, after six months 26 of wraparound services—including counseling, medical consultation, and case management— 27 plaintiff “has experienced mixed results from these interventions and supports.” AR 3366. 1 psychiatric evaluation. Dr. Whelchel interviewed plaintiff in person and reviewed records from 2 Seneca Center. AR 3443. Dr. Whelchel assigned diagnostic impressions of Post-Traumatic Stress 3 Disorder; Bipolar Affective Disorder, II; and Personality Disorder NOS with borderline, antisocial 4 and dependent traits. AR 3446. She found that plaintiff could perform simple, detailed, and 5 complex instructions and that plaintiff was moderately impaired in most areas of functioning, except 6 that she was only mildly impaired in her ability to accept instructions from supervisors.2 AR 3447. 7 On October 15, 2015, therapist Jarl Hackmeister, L.M.F.T., completed a mental disorder 8 questionnaire form. AR 3450. LMFT Hackmeister had seen plaintiff two to three times per month 9 for about fifteen months when the form was completed. AR 3454. LMFT Hackmeister explained 10 that plaintiff experienced symptoms of PTSD, including flashbacks to traumatic and abusive events 11 and suicidal ideation; had difficulty sleeping; and experienced “low mood, lethargy, lack of 12 motivation, and low self-worth.” AR 3450. At times her PTSD manifested in “angry and aggressive 13 outbursts[.]” AR 3451. Plaintiff “require[d] a high level of support in order to keep appointments” 14 and struggled with medication compliance. AR 3450. LMFT Hackmeister diagnosed plaintiff with 15 Major Depressive Disorder, recurrent episode moderate; with Prolonged Posttraumatic Stress 16 Disorder; and with being a victim of child abuse. AR 3454. LMFT Hackmeister opined that “[w]ith 17 regular psychotherapy, her symptoms are likely to improve consistently, though this may take 18 several years particularly without psychiatric support.” Id. 19 On November 3, 2015, Nadine Genece, Psy.D., reviewed plaintiff’s file, including the 20 reports of LMFT Hackmeister and Dr. Whelchel, as part of the reconsideration review of plaintiff’s 21 SSI application. AR 173. Dr. Genece found plaintiff not significantly limited in most areas of 22 functioning, with some moderate limitations in her ability: to understand, remember, and carry out 23 detailed instructions; to maintain attention and concentration for extended periods; to interact 24 appropriately with the general public; and to complete a normal workday and workweek without 25 interruptions. AR 174-175. Dr. Genece there was no evidence of any substance abuse disorder. 26 AR 176. 27 1 On December 2, 2015, psychiatrist Yasin Mansoor, M.D., conducted a psychiatric 2 assessment for Stars Behavioral Health Group after meeting with plaintiff for the first time. AR 3 3483. The report notes that plaintiff used marijuana “to help relax, sleep and for appetite.” Id. Dr. 4 Mansoor indicated that plaintiff “is currently suffering from mild depression and some sleep 5 problems.” AR 3485. The report further indicates that on November 5, 2015, plaintiff received a 6 primary diagnosis of Major Depressive Disorder, recurrent, and a secondary diagnosis of 7 Posttraumatic Stress Disorder, unspecified. AR 3487. 8 In June 2021, after a prolonged period of substance abuse, plaintiff entered residential care 9 at the Women’s Hope program. It is unclear from the record precisely how long she remained at 10 Women’s Hope, but the ALJ found that she “attained sobriety” after entry in this program and that 11 “she has been essentially sober ever since (on June 16, 2022, the claimant reported she had been 12 clean from fentanyl only seven months and that she continued to use marijuana) (44F/2).” See AR 13 49. 14 Plaintiff was no longer living at Women’s Hope by December 2021, when Steven 15 Kohlstrom, Ph.D., completed an examination for a mental impairment questionnaire.3 See AR 3217. 16 The questionnaire indicates that Dr. Kohlstrom reviewed plaintiff’s disability claim file and 17 conducted a 50-minute telephonic mental examination. Id. As of December 1, 2021, plaintiff was 18 two months past her graduation from Women’s Hope, “at which time [plaintiff] had already suffered 19 increased psychiatric symptoms and impaired functioning.” AR 3218. Dr. Kohlstrom diagnosed 20 plaintiff with Posttraumatic Stress Disorder, chronic (primary) and Opioid Use Disorder, Severe, 21 Early Remission (secondary to PTSD). AR 3217-3218. Dr. Kohlstrom found plaintiff “has been 22 and continues to be 100 percent totally disabled by her chronic PTSD” and “incapable of functioning 23 in a formal work setting, sheltered/supervised work setting, or home environment for any duration.” 24 AR 3222. He found plaintiff had marked limitations overall in her ability to understand, remember, 25

26 3 Although Dr. Kohlstrom conducted his examination in December 2021, the report is dated May 4, 2022, due to plaintiff’s failure to follow through and return questionnaires despite reminders. 27 AR 3217. Dr. Kohlstrom “found no reason to believe [plaintiff’s] psychiatric conditions and related 1 and apply information. AR 3220. He found plaintiff had extreme limitations overall in her ability: 2 to interact with others; to concentrate, persist, or maintain pace; and to adapt or manage herself. AR 3 3220-3221. Dr. Kohlstrom opined that plaintiff’s symptoms would not be expected to significantly 4 improve in the absence of substance use. AR 3221. 5 On February 4, 2022, one of plaintiff’s treating providers, Regina Whitaker, Ph.D., 6 completed a mental impairment questionnaire. Dr. Whitaker had treated plaintiff approximately 7 every other week since June 21, 2021. AR 3210. Dr. Whitaker described plaintiff’s difficulty in 8 attending appointments and engaging with treatment; plaintiff was inconsistent in coming to therapy 9 unless given weekly and daily reminders. Id. Dr. Whitaker diagnosed plaintiff with Posttraumatic 10 Stress Disorder and Opioid Use, Severe. Id. Dr. Whitaker described that plaintiff struggles with 11 her activities of daily living: “While the client had the necessary items to care for herself, she would 12 frequently smell of urine, leaving her bed soaked sheets or covers soaked with urine instead of 13 changing the dirty linen to clean linen.” AR 3212. Dr. Whitaker explained that plaintiff “is 14 frequently reliving her trauma on a daily basis due to the consistent triggers around her even when 15 placed in a structured environment which causes her to experience enuresis as an adult and has 16 become a protection for her through the night into the day.” AR 3213. Dr. Whitaker assessed 17 plaintiff with “none” to “extreme” limitations in various areas of functioning, with the most extreme 18 limitations in plaintiff’s ability to concentrate, persist, or maintain pace. AR 3212-3213. Dr. 19 Whitaker stated that “[i]f the client engages in substance use symptoms will be affected” but did not 20 explain how. AR 3214. Dr. Whitaker also found plaintiff would be absent from work more than 21 four days per month and would be off-task more than thirty percent of the time in an eight-hour 22 workday. Id. 23 On October 4, 2022, the ALJ conducted an administrative hearing but adjourned the hearing 24 for a consultative examination to be conducted with testing. AR 132. The psychological 25 consultative examination took place with Christine Corrigan, Psy.D., on November 11, 2022. AR 26 3464. Dr. Corrigan conducted a mental status exam and found, among other things, that plaintiff 27 had fair eye contact, coherent speech, and was alert with unimpaired attention. AR 3466. However, 1 hygiene and had a depressed overall attitude. Id. Dr. Corrigan conducted a battery of tests and 2 determined that plaintiff’s full-scale IQ was 67, or extremely low. AR 3470. On the Mini Mental 3 Status Examination, plaintiff scored 19 out of 30, indicating moderate cognitive impairment. AR 4 3469. Dr. Corrigan diagnosed plaintiff with Posttraumatic Stress Disorder, Unspecified Depressive 5 Disorder, Specific Learning Disorder (provisional), and Opioid Use Disorder, in sustained 6 remission. AR 3472. Dr. Corrigan found plaintiff had marked limitations in nearly all areas of 7 functioning, except that plaintiff had moderate functioning in her ability to understand, remember, 8 and perform simple/repetitive written and oral instructions. AR 3473. Dr. Corrigan concluded, 9 “Claimant reports 1 year of sobriety which indicates current impairments are not due to substance 10 use.” AR 3476.4 11 12 II. Procedural Background 13 Plaintiff’s SSI claim was denied initially and upon reconsideration. AR 148, 162-163. On 14 October 4, 2022, Administrative Law Judge (“ALJ”) David LaBarre held an administrative hearing 15 and then adjourned the hearing for plaintiff to receive a psychiatric consultative examination. On 16 November 11, 2022, plaintiff attended the consultative examination with Dr. Corrigan. The ALJ 17 then held a supplemental hearing on February 3, 2023, during which plaintiff and a vocational expert 18 testified. 19 On April 26, 2023, the ALJ issued an unfavorable decision. AR 37-51. The ALJ found that, 20 including plaintiff’s substance use, plaintiff would be disabled because she met the criteria of Listing 21 Section 12.04 of 20 C.F.R. Part 404, Subpart P, Appendix 1, for Depressive, bipolar, and related 22 disorders. See AR 41. Nevertheless, the ALJ found that, if plaintiff stopped the substance use, 23 plaintiff would no longer have a Listing-level impairment. AR 44-48. The ALJ went on to find 24 that, if plaintiff stopped the substance use, she had the following residual functional capacity (RFC):

25 to perform a full range of work at all exertional levels but with the following nonexertional limitations: the individual must avoid 26 concentrated exposure to pulmonary irritants such as fumes, dust, 27 odors, gases and poor ventilation; the individual can perform simple, 1 repetitive tasks involving simple work-related decisions and occasional workplace changes that require no interaction with the 2 general public either on the telephone or in-person; the individual can briefly, but occasionally interact with co-workers that does not 3 involve working on teams; the individual cannot perform fast-paced work such as assembly line work and cannot perform work that 4 requires the individual to be responsible for the safety of others; the individual would need a stable environment, meaning few changes in 5 day-to-day work setting or few changes in the tools and/or work processes used to accomplish the work, and a stable work shift that 6 does not change shift-to-shift or day-to-day; the individual would be absent once per month and off task ten percent of an eight-hour 7 workday. 8 AR 48. Relying on the opinion of a vocational expert, the ALJ concluded that plaintiff could 9 perform jobs such as hand packager, floor waxer, and industrial cleaner, if she stopped the substance 10 use. AR 50-51. The ALJ found that plaintiff’s substance use disorder was a contributing factor 11 material to the determination of disability because she would not be disabled if she stopped the 12 substance use. AR 51. The ALJ therefore found plaintiff not disabled. Id. 13 After the Appeals Council denied plaintiff’s review request, AR 20, plaintiff filed for judicial 14 review. Dkt. No. 1. 15 16 LEGAL STANDARDS 17 I. Standard of Review 18 The Social Security Act authorizes an Article III court to review final decisions of the 19 Commissioner. 42 U.S.C. § 405(g). This Court may enter a judgment affirming, modifying, or 20 reversing the decision of the Commissioner, with or without remanding the case for a rehearing. Id. 21 Factual findings of the Commissioner are conclusive if supported by substantial evidence. 22 Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2001). The Court may set 23 aside the Commissioner’s final decision when that decision is based on legal error or where the 24 findings of fact are not supported by substantial evidence in the record taken as a whole. Tackett v. 25 Apfel, 180 F.3d 1094, 1097-98 (9th Cir. 1999). Substantial evidence is “more than a mere scintilla 26 but less than a preponderance.” Id. at 1098. “Substantial evidence means such relevant evidence 27 as a reasonable mind might accept as adequate to support a conclusion.” Molina v. Astrue, 674 F.3d 1 evidence exists, the Court must consider the record as a whole, weighing both evidence that supports 2 and evidence that detracts from the Commissioner’s conclusion. Tackett, 180 F.3d at 1098. “Where 3 evidence is susceptible to more than one rational interpretation,” the ALJ’s decision should be 4 upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 5 The decision whether to remand for further proceedings or order an immediate award of 6 benefits is within the district court’s discretion. Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 7 2000). When no useful purpose would be served by further administrative proceedings, or where 8 the record has been fully developed, it is appropriate to exercise this discretion to direct an 9 immediate award of benefits. Id. at 1179 (“the decision of whether to remand for further proceedings 10 turns upon the likely utility of such proceedings”). But when there are outstanding issues that must 11 be resolved before a determination of disability can be made, and it is not clear from the record the 12 ALJ would be required to find the claimant disabled if all the evidence were properly evaluated, 13 remand is appropriate. Id. 14 15 II. The Five-Step Disability Inquiry 16 A claimant is “disabled” under the Social Security Act if: (1) the claimant “is unable to 17 engage in any substantial gainful activity by reason of any medically determinable physical or 18 mental impairment which can be expected to result in death or which has lasted or can be expected 19 to last for a continuous period of not less than twelve months,” and (2) the impairment is “of such 20 severity that he is not only unable to do his previous work but cannot, considering his age, education, 21 and work experience, engage in any other kind of substantial gainful work which exists in the 22 national economy.” 42 U.S.C. § 1382c(a)(3)(A)-(B). 23 The SSA regulations provide a five-step sequential evaluation process for determining 24 whether a claimant is disabled. 20 C.F.R. § 416.920(a)(4). The claimant has the burden of proof 25 for steps one through four and the Commissioner has the burden of proof for step five. Tackett, 180 26 F.3d at 1098. The five steps of the inquiry are: 27 Security Act. If not, proceed to step two. See 20 C.F.R. 1 §§ 404.1520(b), 416.920(b).

2 2. Is the claimant’s impairment severe? If so, proceed to step three. If not, then the claimant is not disabled. See 20 C.F.R. 3 §§ 404.1520(c), 416.920(c).

4 3. Does the impairment “meet or equal” one of a list of specific impairments described in 20 C.F.R. Part 220, Appendix 1?[5] If so, 5 then the claimant is disabled. If not, proceed to step four. See 20 C.F.R. §§ 404.1520(d), 416.920(d). 6 4. Is the claimant able to do any work that he or she has done in the 7 past? If so, then the claimant is not disabled. If not, proceed to step five. See 20 C.F.R. §§ 404.1520(e), 416.920(e). 8 5. Is the claimant able to do any other work? If so, then the claimant 9 is not disabled. If not, then the claimant is disabled. See 20 C.F.R. §§ 404.1520(f), 416.920(f). 10 11 Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001). The ALJ has an affirmative duty to 12 assist the claimant in developing the record at every step of the inquiry. Tackett, 180 F.3d at 1098 13 n.3. 14 In between the third and fourth step, the ALJ must determine the claimant’s Residual 15 Functional Capacity (“RFC”). 20 C.F.R. §§ 404.1520(a)(4), (e), 416.945(a)(5)(1). To determine 16 the RFC, the ALJ considers the impact of the claimant’s symptoms on his or her ability to meet the 17 physical, mental, sensory, and other requirements of work. Id. §§ 404.1545(a)(4), 416.945(e). The 18 ALJ will evaluate all the claimant’s symptoms and the extent to which these symptoms are 19 consistent with evidence in the record. Id. The evidence can include the claimant’s own statements 20 about his or her symptoms, but such statements must be adequately supported by the record in order 21 to establish a disability. Id. In order to determine whether the claimant’s statements are adequately 22 supported, the ALJ must first determine whether the claimant has a medical impairment that could 23 reasonably be expected to produce his or her symptoms, and then must evaluate the intensity and 24 persistence of the claimant’s symptoms. Id. When evaluating intensity and persistence, the ALJ 25 must consider all of the available evidence, including the claimant’s medical history, objective 26 medical evidence, and statements about how the claimant’s symptoms affect him or her. Id. The 27 1 ALJ cannot reject statements about the intensity and persistence of symptoms solely because no 2 objective medical evidence substantiates the statements. Id. §§ 404.1529(c)(2), 416.929(c)(2). The 3 ALJ must also consider factors relevant to the claimant’s symptoms, such as the claimant’s daily 4 activities, the claimant’s medications and treatment, any other measures the claimant uses to 5 alleviate symptoms, precipitating and aggravating factors, and any other factors relevant to the 6 claimant’s limited capacity for work due to his or her symptoms. Id. § 416.929(c)(3)(i)-(vii). After 7 determining the RFC, the ALJ proceeds to steps four and five of the disability inquiry. 8 9 III. Drug Addiction and Alcoholism 10 If, considering all of the claimant’s medically determinable impairments, there is a 11 determination that the claimant is disabled, and there is medical evidence showing drug addiction 12 and alcoholism (“DAA”), then the ALJ must determine whether the DAA is “material” to the finding 13 that the claimant is disabled. 20 C.F.R. §§ 404.1535, 416.935. The Social Security Act provides 14 that a claimant “shall not be considered to be disabled . . . if alcoholism or drug addiction would . . . 15 be a contributing factor material to the . . . determination that the individual is disabled.” 42 U.S.C. 16 § 423(d)(2)(C). In determining whether a claimant’s DAA is material, the test is whether an 17 individual would still be found disabled if he or she stopped using drugs or alcohol. See 20 C.F.R. 18 §§ 404.1535(b), 416.935(b); Parra v. Astrue, 481 F.3d 742, 746-47 (9th Cir. 2007); Sousa v. 19 Callahan, 143 F.3d 1240, 1245 (9th Cir. 1998). The ALJ must “evaluate which of [the claimant’s] 20 current physical and mental limitations . . . would remain if [the claimant] stopped using drugs or 21 alcohol and then determine whether any or all of [the claimant’s] remaining limitations would be 22 disabling.” 20 C.F.R. §§ 404.1535(b)(2), 416.935(b)(2). If the ALJ determines that the claimant’s 23 remaining limitations are disabling, then the claimant’s DAA is not a material contributing factor to 24 the determination of disability, and the claimant is disabled, independent of his or her DAA. See id. 25 §§ 404.1535(b)(2)(ii), 416.935(b)(2)(ii). The claimant bears the burden of proving that his 26 substance use is not a material contributing factor to his disability. Parra, 481 F.3d at 745. 27 The Ninth Circuit has ruled that when a claimant has a history of drug or alcohol use, the 1 which impairments are related to the claimant’s drug or alcohol use. Bustamante, 262 F.3d at 955. 2 If the ALJ determines that the claimant’s impairments, including the impairments related to drug or 3 alcohol use, are severe enough to be disabling, then the ALJ proceeds in assessing the materiality 4 of the claimant’s DAA, i.e. whether the claimant would still be found disabled if he or she stopped 5 using drugs or alcohol. Id. (interpreting 20 C.F.R. §§ 404.1535, 416.935); see also SSR 13-2p, 78 6 Fed. Reg. 11939, 11941 (Feb. 20, 2013).6 7 8 DISCUSSION 9 Plaintiff’s motion presents the following issues for resolution:

10 1. Did the ALJ err in rejecting Plaintiff’s medical source opinions without providing legally sufficient reasons supported by substantial 11 evidence?

12 2. Did the ALJ err in rejecting Plaintiff’s testimony without providing specific or clear and convincing reasons supported by substantial 13 evidence?

14 3. Did the ALJ err in determining Plaintiff’s residual functional capacity? 15 4. Did the ALJ err in determining that Plaintiff’s drug and alcohol use 16 was material?

17 5. Did the ALJ err by relying on Vocational Expert (“VE”) testimony based on an incomplete hypothetical to find Plaintiff not disabled? 18 19 Pl.’s Br. at 1. 20 21 I. Medical Source Opinions 22 The Court first addresses plaintiff’s argument that the ALJ erred in rejecting certain medical 23 source opinions without providing legally sufficient reasons supported by substantial evidence. 24 25 26 6 Social Security Rulings in the Federal Register are published by the Commissioner of 27 Social Security and are binding on all components of the Social Security Administration. 20 C.F.R. 1 A. Legal Standard 2 For applications filed on or after March 27, 2017, such as here, “the former hierarchy of 3 medical opinions—in which we assign presumptive weight based on the extent of the doctor’s 4 relationship with the claimant—no longer applies.” Woods v. Kijakazi, 32 F.4th 785, 787 (9th Cir. 5 2022). Under the revised regulations, 20 C.F.R. § 404.1520c and § 416.920c, the ALJ will consider 6 medical opinions “using the factors listed in paragraphs (c)(1) through (c)(5) . . . .” 20 C.F.R. 7 § 416.920c(a). Those factors are: (1) supportability, (2) consistency, (3) relationship with the 8 claimant, (4) specialization, and (5) “other factors that tend to support or contradict a medical 9 opinion or prior administrative medical finding.” Id. § 416.920c(c). In determining how persuasive 10 a medical opinion is, the most important factors are supportability and consistency. Id. 11 § 416.920c(a), (b)(2). “Therefore, [the agency] will explain how [it] considered the supportability 12 and consistency factors for a medical source’s medical opinions . . . .” Id. § 416.920c(b)(2). The 13 agency “may, but [is] not required to, explain how [it] considered the factors in paragraphs (c)(3) 14 through (c)(5) . . . .” Id. “Even under the new regulations, an ALJ cannot reject an examining or 15 treating doctor’s opinion as unsupported or inconsistent without providing an explanation supported 16 by substantial evidence.” Woods, 32 F.4th at 792. “The agency must articulate . . . how persuasive 17 it finds all of the medical opinions from each doctor or other source.” Id. at 791 (citing 20 C.F.R. 18 § 404.1520c(b) (internal quotation marks omitted)). 19 20 B. Medical Opinions and ALJ’s Findings 21 When conducting the five-step disability inquiry, the ALJ found that, including plaintiff’s 22 substance use, plaintiff was disabled at step three because she met one of the “Listings” of 23 impairments. In so finding, the ALJ found:

24 the opinions of listing-level impairment expressed by Regina Whitaker, Ph.D., Steven Kohlstrom, Ph.D., Christine Corrigan, 25 Psy.D., and Jarl Hackmeister, LMFT persuasive insofar as they pertain to periods of active substance abuse because they are 26 consistent and the claimant’s treatment records from her application date until June 17, 2021 support findings of marked to extreme 27 limitation in at least two of the functional domains when the claimant 1 AR 44. 2 The ALJ then went back through the five-step inquiry, asking whether plaintiff would be 3 disabled without the substance use. At step three, the ALJ found that, if plaintiff stopped the 4 substance use, she would not have an impairment meeting the criteria of Listing 12.04. AR 44-48. 5 The ALJ found “persuasive” the medical opinions of Dr. Whelchel and Dr. Genece. AR 46. 6 Although the ALJ did not state how he weighed the opinions of ASW Gendreau, Dr. Mansoor, and 7 Dr. Annunziata,7 the ALJ also relied heavily on these three sources’ assessments. See id. at 46-47. 8 At this step, the ALJ did not address the opinions of Drs. Whitaker, Kohlstrom, or Corrigan nor of 9 LMFT Hackmeister. 10 In determining plaintiff’s RFC, the ALJ found the opinions of Drs. Whelchel and Genece 11 “persuasive during periods of sobriety[.]” AR 49. By contrast, the ALJ found “the opinions of 12 listing-level impairment expressed by Regina Whitaker, Ph.D., Steven Kohlstrom, Ph.D., Christine 13 Corrigan, Psy.D., and Jarl Hackmeister, LMFT unpersuasive during periods of sobriety because 14 they are unsupported by the medical evidence of record, which is inconsistent with severe 15 impairment after June 17, 2021.” AR 50. The ALJ explained why he found Dr. Corrigan’s findings 16 regarding plaintiff’s intelligence inconsistent with other evidence in the record and then concluded: 17 “Thus, Dr. Corrigan’s opinions and observations, as well as the consistent opinions of Mr. 18 Hackmeister and Drs. Whitaker, Kohlstrom are unsupported by the record as a whole.” Id. 19 Plaintiff argues that the ALJ did not properly consider the consistency and supportability 20 factors and failed to provide legally sufficient reasons supported by substantial evidence for 21 rejecting the medical opinions of Drs. Corrigan, Whitaker, and Kohlstrom. Pl.’s Br. at 13-19. 22 23 C. Analysis 24 The Court agrees with plaintiff that the ALJ erred in evaluating the medical opinions and 25 that the error was not harmless. Under the regulations, the ALJ is required to “explain how [he] 26 considered the supportability and consistency factors for a medical source’s medical opinions . . . .” 27 1 20 C.F.R. § 416920c(b)(2). “Supportability means the extent to which a medical source supports 2 the medical opinion by explaining the ‘relevant . . . objective medical evidence.’” Woods, 32 F.4th 3 at 791-92 (quoting 20 C.F.R. § 404.1520c(c)(1)). “Consistency means the extent to which a medical 4 opinion is ‘consistent . . . with the evidence from other medical sources and nonmedical sources in 5 the claim.’” Id. at 792 (quoting 20 C.F.R. § 404.1520c(c)(2)). 6 First, the ALJ did not address the “supportability” of the opinions of Drs. Corrigan, 7 Whitaker, and Kohlstrom except with the following conclusory logic: “they are unsupported by the 8 medical evidence of record, which is inconsistent with severe impairment after June 17, 2021.” AR 9 50. In this way, the ALJ did not address how these three doctors used “the objective medical 10 evidence and supporting explanations . . . to support his or her medical opinions . . . .” See 20 C.F.R. 11 § 416.920c(c)(1). Under the regulations, it was error for the ALJ not to address the supportability 12 factor. Moreover, the two opinions the ALJ found most persuasive, those of Drs. Genece and 13 Whelchel, were far more cursory and gave less explanation for their conclusions than Drs. Corrigan 14 and Kohlstrom. 15 The ALJ also erred with regard to the “consistency” factor. The ALJ did not separately 16 address the opinions of Drs. Whitaker and Kohlstrom at all and discounted Dr. Corrigan’s opinion 17 based solely on a finding that her conclusion regarding plaintiff’s intelligence was inconsistent with 18 other evidence. See AR 50. After explaining why Dr. Corrigan’s intelligence findings were 19 incorrect, the ALJ concluded: “Thus, Dr. Corrigan’s opinions and observations, as well as the 20 consistent opinions of Mr. Hackmeister and Drs. Whitaker, Kohlstrom are unsupported by the record 21 as a whole.”8 Id. In other words, the ALJ dismissed the opinions of Drs. Corrigan, Whitaker, and 22 Kohlstrom in one stroke and with hardly an explanation, despite acknowledging that their opinions 23 were “consistent” with each other. In another case involving similar treatment of medical opinions 24 by the ALJ, this Court explained, “the ALJ’s collective analysis of five medical opinions resulted 25 8 Although the ALJ stated that he found the opinions of Drs. Corrigan, Kohlstrom, and 26 Whitaker “unsupported by the medical evidence of record,” AR 50 (emphasis added), his rejection of Dr. Corrigan’s intelligence findings goes more to the “consistency” factor, which looks to 27 whether the opinion is consistent with other evidence in the record. See 20 C.F.R. § 416.920c(c)(1), 1 in a failure to adequately address the consistency factor. Here, it was simply incorrect for the ALJ 2 to find the five opinions were inconsistent with other medical or nonmedical sources, where the 3 rejected opinions were often consistent with each other.” See Laura G. v. Colvin, No. 23-cv-6617- 4 SI, Dkt. No. 25 at 8 (N.D. Cal. Apr. 3, 2025). So too here. 5 In this case, the ALJ found the opinions of three doctors and a therapist inconsistent with the 6 record as a whole even where they were consistent with each other.9 For instance, Dr. Kohlstrom 7 found plaintiff had marked limitations in her overall ability to understand, remember, and apply 8 information. AR 3220. Dr. Corrigan found plaintiff had moderate limitation in her ability to 9 understand, remember, and perform simple/repetitive instructions but that, if the instructions were 10 complex/detailed, then her limitations were “extreme.” AR 3473. Dr. Kohlstrom also opined that 11 plaintiff had extreme limitations in her overall ability to interact with others; to concentrate, persist, 12 or maintain pace; and to adapt or manage herself. AR 3220-3221. Dr. Corrigan similarly found 13 plaintiff had marked limitations in her ability to interact with others; to maintain concentration, 14 attention, and persistence/consistency in a normal workday; in her ability to adapt to usual stresses 15 in the work environment; in her ability to perform activities within a schedule and maintain regular 16 attendance; and in her ability to complete a normal workday or workweek without interruptions 17 from a psychiatric condition. AR 3473. While Dr. Whitaker’s report generally assessed less 18 extreme limitations than did Dr. Kohlstrom and Dr. Corrigan—with limitations ranging from “none” 19 to “extreme”—Dr. Whitaker found that plaintiff had primarily “marked” to “extreme” limitations in 20 her ability to concentrate, persist, or maintain pace. See AR 3213. Dr. Whitaker also opined that 21 plaintiff would be absent from work four days or more per month and would be off-task more than 22 thirty percent of the time in an eight-hour workday. AR 3214. 23 The ALJ apparently rejected Dr. Corrigan’s opinion (and with it the opinions of Drs. 24 Kohlstrom and Whitaker) solely based a dispute with Dr. Corrigan’s findings regarding plaintiff’s 25 intelligence. See AR 50. The ALJ explained:

26 With specific regard to Dr. Corrigan’s psychological consultative 27 examination, the undersigned notes that Dr. Corrigan’s Wechsler 1 Adult Intelligence Scales-4th Edition (WAIS-IV) results are inconsistent with all other estimates of the claimant’s intelligence 2 contained in the record (31F, 32F, 40F, and 42F).[10] 2009 Wechsler Abbreviated Scale of Intelligence (WASI) results show a low average 3 full-scale IQ of 90 (36F/10). As discussed under Finding 5, Drs. Gendreau and Whelchel also estimated the claimant’s intelligence 4 was in the low average range (37F and 39F). Finally, the undersigned notes that while the claimant reported to Dr. Corrigan that she had 5 received special education services, high school transcripts show no special education. While the claimant’s school performance was 6 sporadic, Dr. Corrigan’s full-scale IQ score of 67 is unsupported by those records, which show the claimant was capable of earning As 7 and Bs in regular education classes (7E, 8E, 31E, and 32E). Thus, Dr. Corrigan’s opinions and observations, as well as the consistent 8 opinions of Mr. Hackmeister and Drs. Whitaker, Kohlstrom are unsupported by the record as a whole. 9 Id. After conducting a battery of tests, Dr. Corrigan found plaintiff had an IQ of 67, i.e., on the 10 “extremely low” end. AR 3470. Other providers and examiners found plaintiff’s intelligence was 11 on the low end of average. AR 3365 (ASW Gendreau stating plaintiff was of “average intellect”), 12 3345 (Dr. Whelchel stating, “The claimant appears to be of at least average intelligence”), 3219 (Dr. 13 Kohlstrom finding that plaintiff’s “IQ appeared to be low-average” based on a holistic review of the 14 claim file and limited academic records). However, none of these other opinions were formed after 15 formal testing. That Dr. Corrigan, after conducting testing, assessed plaintiff’s IQ to be lower than 16 what some of the other providers and examiners had estimated does not constitute substantial 17 evidence showing that Dr. Corrigan’s opinion was wrong altogether. This is particularly so where 18 Dr. Corrigan’s report relied on more than just the intelligence findings, and other evidence in the 19 record supports her intelligence findings. See, e.g., 1508-1509 (special education records showing 20 that, in her early 20’s, plaintiff had math skills at a 3rd grade level and was reading at a 5th grade 21 level), 3330 (assessment noting that 3rd grade standardized testing showed plaintiff in 9th percentile 22 for reading and 1st percentile in language, spelling, and math). 23 Nor was the ALJ’s treatment of ASW Gendreau’s assessment supported by substantial 24 evidence. Although the ALJ did not specify how much weight he gave to the opinion of ASW 25 Gendreau, he relied heavily on Gendreau’s 2015 assessment in supporting his conclusion that drug 26 and alcohol abuse was material to plaintiff’s disability. See AR 46. First, as plaintiff notes, the ALJ 27 1 erroneously referred to ASW Gendreau as “Dr. Gendreau” throughout, indicating that the ALJ may 2 have erroneously favored Gendreau’s opinion based on her field of specialty. See id.; 20 C.F.R. 3 § 416.920c(c)(4) (opinion of a medical source “who has received advanced education and training 4 to become a specialist may be more persuasive . . .”). The ALJ also made a number of logical leaps 5 from Gendreau’s assessment, inferring things regarding plaintiff’s limitations that Gendreau’s 6 report did not address. For instance, the ALJ inferred that plaintiff “has no more than moderate 7 limitation interacting with others” because Gendreau’s report referred to plaintiff feeling “deeply 8 connected with her 4-year-old son.” See AR 46. The son the report referred to was removed from 9 plaintiff and placed into foster care as an infant due to medical neglect, and (according to Gendreau’s 10 report) plaintiff’s reunification/visitation plans were terminated after she failed to show up for 11 multiple visits. See AR 3361; see also AR 3444 (Dr. Whelchel’s report, issued later the same year 12 as Gendreau’s, indicating plaintiff had no contact with her son), AR 3380 (June 2014 report 13 indicating no contact with son). That Gendreau identified plaintiff’s son “as her motivation and 14 inspiration for making positive changes in her life” does not support the logical leap the ALJ took 15 in inferring plaintiff therefore had no more than moderate limitations interacting with other people. 16 See AR 46, 3358. 17 Likewise, the ALJ took an excerpt out of context in which Gendreau, in identifying 18 plaintiff’s “strengths and supports,” stated that plaintiff “has shown remarkable insight into her 19 strengths and areas for change.” See AR 46, 3358. From that, the ALJ inferred that plaintiff had 20 “only mild limitations understanding, remembering, and applying information and adapting or 21 managing oneself.” See AR 46. Nothing about Gendreau’s statement bears on plaintiff’s ability to 22 remember or to adapt or manage herself in the workplace. The same goes for the leap the ALJ made 23 that being “talented and [having] interests in art, photography, and yoga, and [having] developed 24 several coping strategies. . . for managing difficult emotions” translated into “no more than moderate 25 limitations [in] concentration, persistence or pace.” See id. Gendreau’s assessment spans more than 26 ten pages of text and assessments. Yet the ALJ focused on one paragraph of the report, which asked 27 for plaintiff’s “strengths and supports,” to infer only mild to moderate limitations in a number of 1 not discuss Gendreau’s findings regarding the impact of plaintiff’s depression on her functioning, 2 AR 3354, that her consistent inability to keep appointments made it difficult for her to engage in 3 treatment and jeopardized her housing, AR 3352, 3354, 3366, and that after six months of 4 wraparound services, plaintiff had only “experienced mixed results from these interventions and 5 supports[,]” AR 3366. 6 Finally, the Court notes that the chronology of plaintiff’s period of substance use does not 7 support the ALJ’s decision to credit the opinions of Drs. Corrigan, Kohlstrom, and Whitaker only 8 during periods of substance use but to discard their opinions as to periods of sobriety. None of their 9 examinations or treatment occurred during plaintiff’s period of substance use, which the ALJ found 10 spanned from 2016 until her entry into Women’s Hope in June 2021. See AR 49. Moreover, the 11 opinions of Drs. Corrigan, Kohlstrom, and Whitaker are the only recent medical opinions in the 12 record, yet the ALJ rejected them as unpersuasive during periods of sobriety, in favor of opinions 13 issued in 2015 (also a period of sobriety, according to the ALJ’s timeline) without explaining why. 14 In sum, for the reasons stated above, the Court concludes that the ALJ erred in his 15 consideration and articulation of the medical opinions in the record. Because these opinions formed 16 the basis of the ALJ’s conclusion that drug and alcohol addiction were material to plaintiff’s 17 disability and that plaintiff did not meet Listing 12.04 with the substance use included, the error was 18 not harmless. 19 20 II. Plaintiff’s Symptom Testimony 21 Plaintiff also argues that the ALJ erred in rejecting her symptom testimony. 22 23 A. Legal Standard 24 The Ninth Circuit has established a two-step analysis for determining how to credit a 25 claimant’s symptom testimony:

26 First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment which could 27 reasonably be expected to produce the pain or other symptoms If the claimant satisfies the first step of this analysis, and there is no 1 evidence of malingering, the ALJ can reject the claimant’s testimony about the severity of her symptoms only by offering specific, clear 2 and convincing reasons for doing so. This is not an easy requirement to meet: The clear and convincing standard is the most demanding 3 required in Social Security cases.

4 Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017) (quoting Garrison v. Colvin, 759 F.3d 995, 5 1014-15(9th Cir. 2014)). If the ALJ finds the claimant’s allegations of severity are not credible, 6 “[t]he ALJ must state specifically which symptom testimony is not credible and what facts in the 7 record lead to that conclusion.” Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). 8

9 B. Hearing Testimony and ALJ’s Findings 10 At the hearing on February 2, 2023, plaintiff testified to her physical symptoms and her 11 symptoms of depression. She stated that she dislocated her left knee at age 18 and had to have 12 surgery, and that her knee sometimes swells up for three to four days, such that at times she cannot 13 stand or walk for more than an hour and cannot walk more than a block and a half before it begins 14 to hurt. AR 80-81. She also testified to near daily back pain, which sometimes caused her to be 15 unable to move for a day or two. AR 81-82. Plaintiff testified that she has daily panic attacks, 16 which take about three hours for her to recover from. AR 84-85. She states that she leaves the 17 apartment once or twice a month. AR 86. At the time of the hearing, she was on Zoloft, which she 18 took three to four days a week. AR 91. Plaintiff described her most recent work as a package 19 delivery job, from which she was fired after less than one month because she could not keep up with 20 the work, would fail to answer the phone when her supervisors called, missed days of work, and got 21 overwhelmed. AR 77-80. 22 The ALJ summarized plaintiff’s hearing testimony as follows: 23 The claimant testified she last used drugs and alcohol “eight years 24 ago.” As discussed under Findings 5 and 6, the medical evidence of record shows continuous daily drug use from 2016 until June 2021. 25 The claimant testified she is unable to maintain a job because she becomes frustrated and self-isolates when she has “too many tasks 26 and too many things to do.” She also described difficulties communicating and “remaining available.” As discussed under 27 Finding 5, the medical evidence of record shows the claimant had impairments including knee and back impairments. As discussed 1 under Finding 2, the claimant has no severe physical impairments. Thus, the claimant’s allegations are unsupported by the medical 2 evidence of record. 3 AR 48. 4 At the first step of the credibility test, the ALJ found that plaintiff’s medically determinable 5 impairments could reasonably be expected to produce the alleged symptoms. AR 49. The ALJ 6 cited no evidence of malingering. At the second step, the ALJ found that plaintiff’s statements 7 concerning the intensity, persistence, and limiting effects of these symptoms were not entirely 8 consistent with the medical evidence and other evidence in the record and that the “medical evidence 9 of record is inconsistent with disability during periods of sobriety.” Id. The ALJ referred back to 10 his findings at step three in finding that plaintiff “had no limitations performing simple and complex 11 tasks from 2015 to 2016 and that she demonstrated no more than moderate limitations interacting 12 with others, concentration, persistence or pace, and adapting or managing oneself.” Id. Following 13 years of substance abuse from 2016 to June 2021, the ALJ found “she has been essentially sober 14 ever since[.]” Id. The ALJ then went on to explain,

15 Those records are inconsistent with severe mental impairment because they show the claimant has had no mental health treatment 16 since September 2021, but that mental status examinations during medical visits have been normal. Thus, the medical evidence of 17 record is inconsistent with disability during periods of sobriety because records from the claimant’s previous application show she 18 had no more than moderate limitations before she began daily drug and alcohol abuse in 2016 and records related to her present 19 application are inconsistent with severe impairment after she attained sobriety in June 2021. 20 Id. 21

22 C. Analysis 23 The Court finds that the ALJ erred in rejecting plaintiff’s symptom testimony—particularly 24 her testimony regarding her depression and its impact on her ability to function and to hold down a 25 job—without offering specific, clear and convincing reasons supported by substantial evidence. The 26 ALJ’s rejection of plaintiff’s testimony rested almost entirely on the following two observations, 27 repeated throughout the ALJ’s decision: that plaintiff had “consistently normal” mental status 1 examinations after achieving sobriety in June 2021 and that plaintiff had not sought mental health 2 treatment since September 2021. See AR 45, 47, 49. 3 The references to the “normal” mental status examinations are to two findings in August and 4 September 2021 by Dr. Jennifer Anunziata, M.D., who treated plaintiff during the months after she 5 entered the Women’s Hope residential treatment program. In her notes, Dr. Annunziata wrote, 6 among other things, “MSE: nl speech, motor, grooming. M/a full range and congruent TP linear Tc 7 as above.” AR 2416 (Aug. 19, 2021 treatment note), 2305 (Sept. 23, 2021 treatment note). The 8 ALJ referred to these single lines in Dr. Annunziata’s notes at least four times throughout the 9 decision, in support of his conclusion that plaintiff had “consistently normal” mental status exams 10 during periods of sobriety. See AR 45, 47. The 3500-page record contains other mental status 11 examinations, more recent and from periods when plaintiff was not living in highly structured 12 residential treatment. For instance, Dr. Corrigan conducted a mental status exam, far more 13 comprehensive than the one-sentence notes from Dr. Annunziata. See AR 3466-3467. Among other 14 things, that mental status exam noted plaintiff’s poor hygiene, depressed attitude overall, and 15 impaired concentration, calculation, memory, abstraction, and judgment. Id. For the ALJ to 16 repeatedly rely on two normal mental status examinations, performed a month apart and during the 17 brief period that plaintiff was in residential treatment, is the essence of cherry-picking from the 18 record. An ALJ may not selectively rely on some entries in the record while ignoring others. See 19 Holohan v. Massanari, 246 F.3d 1195, 1207 (9th Cir. 2001). 20 The ALJ also rejected plaintiff’s symptom testimony on the grounds that she has not been 21 in mental health treatment since September 2021. This too was error. “[W]hen the evidence 22 suggests lack of mental health treatment is partly due to a claimant’s mental health condition, it may 23 be inappropriate to consider a claimant’s lack of mental health treatment when evaluating the 24 claimant’s failure to participate in treatment.” Jeanette R. v. Kijakazi, 620 F. Supp. 3d 1127, 1138 25 (E.D. Wash. 2022) (citing Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996)). Here, plaintiff’s 26 inability to keep appointments and follow through on treatment was well documented by nearly 27 every provider and examiner throughout the years, both pre-dating and post-dating her period of 1 symptoms had resulted in her not attending school regularly since November, that her housing was 2 in jeopardy due to missing numerous meetings with staff from her housing program, and that she 3 failed to show up for two monthly appointments with her psychiatrist. AR 3352. In October 2015, 4 LMFT Hackmeister explained that plaintiff

5 requires a high level of support in order to keep appointments. Providers provide reminders via phone and text, and meet [plaintiff] 6 at her home, but all appointments still are not kept. [Plaintiff] may miss appointments due to being asleep, not having active phone 7 service, or choosing to cancel due to depressive and/or anxious symptoms, such as lethargy, low motivation, feelings of overwhelm, 8 or preoccupation with other concerns. 9 AR 3450. In February 2022, Dr. Whitaker, the treating therapist at the time, explained:

10 The client was not consistent in coming to therapy. The client would either come late to scheduled appointments or she would did [sic] not 11 come but would consistently rescheduled [sic]. When she was provided with reminders and weekly and daily reminders, she was 12 consistent to her appointments. With consistent firm structure the client would flourish and be able to function 3 out of 7 days a week 13 before she would fall back into her inconsistent bx. 14 AR 3210. At her second administrative hearing, plaintiff testified that she was having a hard time 15 finding a therapist. AR 85. Given the extensive documentation in the record during periods of 16 sobriety showing that plaintiff has consistently struggled to engage in mental health treatment, it 17 was error for the ALJ to reject plaintiff’s testimony on the grounds that she has not received mental 18 health treatment since September 2021. 19 Finally, to the extent the ALJ rejected plaintiff’s testimony as inconsistent with evidence 20 regarding when she abused substances, this misstated the testimony. The ALJ stated that plaintiff 21 testified at the February 2023 hearing that “she last used drugs and alcohol ‘eight years ago.’” AR 22 48. The ALJ found this inconsistent because “the medical evidence of record shows continuous 23 daily drug use from 2016 until June 2021.” Id. At the hearing, when questioned by her attorney 24 when was the last time she used drugs or alcohol, plaintiff responded, “Probably eight years ago.” 25 AR 89. However, when later questioned by the ALJ, the following exchange occurred:

26 Q. Okay. And so in terms of the drug use, counsel asked you when was the last time you used any kind of street drugs, and I believe 27 you said, eight years ago. Did I hear that right? years ago. 1 Q. Okay, so that was-- 2 A. But-- 3 Q. That was only-- 4 A. --street drugs-- 5 Q. Go ahead, I’m sorry. Go ahead and say what you want to say. 6 A. When was the last time I did street drugs? Two years. 7 Q. Yes. I’m sorry. Did I hear three years ago? 8 A. Two. Two years. 9 Q. Okay, so two years ago, would that have been in 2020 or 10 2021?

11 A. ’21.

12 Q. That’s 2021?

13 A. Yes, I’m sorry. 14 AR 91-92. Plaintiff then explained that she last used fentanyl at the end of 2020 and last used 15 methamphetamines and heroin in 2020 as well. AR 93. She testified to still smoking marijuana 16 every other day to manage her cravings. AR 94. Thus, the ALJ’s statement that plaintiff testified 17 that she stopped using drugs eight years ago did not account for the later exchange in which plaintiff 18 clarified that she stopped using “street drugs” in late 2020 and 2021. This later testimony was 19 consistent with the ALJ’s understanding that plaintiff stopped the substance use, with the exception 20 of marijuana, after entering residential treatment in June 2021. 21 The Court need not reach plaintiff’s remaining arguments regarding the subsequent ways in 22 which the ALJ erred. The ALJ’s error in evaluating the medical opinions and plaintiff’s symptom 23 testimony necessarily impacted the remainder of the ALJ’s decision and warrant reversal. 24 25 III. Remedy 26 Having found that the ALJ committed reversible error, the Court proceeds to the question of 27 remedy. Plaintiff has requested that the Court remand this matter for immediate award of benefits, 1 “When the ALJ denies benefits and the court finds error, the court ordinarily must remand 2 to the agency for further proceedings before directing an award of benefits.” Leon v. Berryhill, 880 3 F.3d 1041, 1045 (9th Cir. 2017) (citing Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 4 1099 (9th Cir. 2014)). However, under the credit-as-true rule, the Court may order an immediate 5 award of benefits if three conditions are met. First, the Court asks “whether the ‘ALJ failed to 6 provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical 7 opinion.’” Id. (quoting Garrison, 759 F.3d at 1020). Second, the Court must “determine whether 8 there are outstanding issues that must be resolved before a disability determination can be made, . . . 9 and whether further administrative proceedings would be useful.” Id. (citations and internal 10 quotation marks omitted). Third, the Court then “credit[s] the discredited testimony as true for the 11 purpose of determining whether, on the record taken as a whole, there is no doubt as to disability.” 12 Id. (citing Treichler, 775 F.3d at 1101). Even when all three criteria are met, whether to make a 13 direct award of benefits or remand for further proceedings is within the district court’s discretion. 14 Id. (citing Treichler, 775 F.3d at 1101). 15 Here, the Court has found that the ALJ failed to appropriately consider and articulate the 16 medical opinions, particularly those of Drs. Corrigan, Kohlstrom, and Whitaker. The ALJ also 17 provided legally insufficient reasons for rejecting plaintiff’s symptom testimony. The Court further 18 finds there are no outstanding issues to resolve. The record in this case totals more than 3500 pages 19 and contains treatment records and assessments from numerous sources spanning more than a 20 decade. The ALJ conducted two administrative hearings, adjourning the first one so that a 21 consultative examiner could perform testing, and then rejecting that examiner’s findings (Dr. 22 Corrigan’s) with little explanation. Defendant has not identified any specific record or testimony 23 needed to complete the record. The Court finds the record does not need further development and 24 that further administrative proceedings would not be useful. 25 Crediting the discredited testimony as true, there is no doubt as to plaintiff’s disability. 26 Numerous providers and examiners over the years have diagnosed plaintiff with PTSD and major 27 depressive disorder. Although plaintiff abused substances for a number of years, these diagnoses 1 to curb her cravings for other drugs, no source in the record has ever suggested that plaintiff’s 2 symptoms would alleviate in the absence of marijuana use, nor did the ALJ so find. At step three 3 of the five-step inquiry, the ALJ found that, including the substance use, plaintiff met the criteria 4 for Listing 12.04. AR 41. The ALJ further found, however, that plaintiff would not meet the criteria 5 for a Listing if she stopped the substance use because she did not meet the paragraph “B” criteria of 6 that listing.11 See AR 44-48; 20 C.F.R. § Pt. 404, Subpt. P, App. 1, 12.04. The paragraph B criteria 7 requires:

8 B. Extreme limitation of one, or marked limitation of two, of the following areas of mental functioning (see 12.00F): 9 1. Understand, remember, or apply information (see 12.00E1). 10 2. Interact with others (see 12.00E2). 3. Concentrate, persist, or maintain pace (see 12.00E3). 11 4. Adapt or manage oneself (see 12.00E4). 12 20 C.F.R. § Pt. 404, Subpt. P, App. 1, 12.04. Dr. Kohlstrom found plaintiff had marked limitation 13 in her ability to understand, remember, or apply information. AR 3220. He found she had extreme 14 limitation in her ability to interact with others; concentrate, persist, or maintain pace; and adapt or 15 manage herself. AR 3220-3221. Dr. Kohlstrom also found that plaintiff’s impairments would not 16 be expected to significantly improve in the absence of substance use. AR 3221. Dr. Corrigan found 17 plaintiff had marked limitations in her ability to interact with others, in her ability to maintain 18 concentration and persistence/consistency during a normal workday, and in her ability to adapt to 19 the usual stresses common to a competitive work environment. AR 3473. Dr. Corrigan also 20 explained that plaintiff’s year of sobriety at the time of examination (in November 2022) 21 “indicate[d] that current impairments are not due to substance use.” 12 AR 3476. Crediting as true 22 the opinions of either Dr. Corrigan or Dr. Kohlstrom, plaintiff would meet the paragraph B criteria 23

24 11 Elsewhere, the ALJ found that plaintiff met the paragraph “A” criteria for Listing 12.04, which requires medical documentation of, inter alia, depressive disorder. See AR 42; 20 C.F.R. 25 § Pt. 404, Subpt. P, App. 1, 12.04.

26 12 Dr. Whitaker found plaintiff would be absent from work four days or more per month and would be off-task more than thirty percent of the time. AR 3214. When asked whether plaintiff’s 27 symptoms would be expected to improve in the absence of substance use, Dr. Whitaker checked the 1 for Listing 12.04 (Depressive, bipolar and related disorders) and plaintiff would be found disabled 2 at step three. 3 The Court sees no basis for serious doubt in the record that plaintiff is disabled. Moreover, 4 || remand for benefits is appropriate here where plaintiff’s current disability application has been 5 pending for more than seven years, and the ALJ held multiple hearings at the administrative level. 6 See Vertigan v. Halter, 260 F.3d 1044, 1053 (9th Cir. 2001); Benecke v. Barnhart, 379 F.3d 587, 7 595 (9th Cir. 2004) (“Allowing the Commissioner to decide the issue again would create an unfair 8 ‘heads we win; tails, let’s play again’ system of disability benefits adjudication.”) (citation omitted). 9 The Court will remand for immediate payment of benefits. 10 11 CONCLUSION 12 For the foregoing reasons, the Court REVERSES the decision of the Commissioner and 5 13 REMANDS this case pursuant to sentence four of 42 U.S.C. § 405(g) for an immediate payment of 14 || benefits.

a 16 IT IS SO ORDERED. 3 17 Dated: September 19, 2025 Site WU tee 18 SUSAN ILLSTON 19 United States District Judge 20 21 22 23 24 25 26 27 28