Pinkney v. Berryhill

• Court: District Court, N.D. California
• Decided: September 30, 2020
• Docket: 3:18-cv-07140
• Status: Unknown

Opinion

1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 A.P., Case No. 18-cv-07140-JCS

7 Plaintiff, ORDER REGARDING MOTION FOR 8 v. SUMMARY JUDGMENT AND MOTION TO REMAND 9 ANDREW SAUL, Re: Dkt. Nos. 23, 28 Defendant. 10

11 I. INTRODUCTION 12 Plaintiff A.P.1 moves for summary judgment on his claim that Defendant Andrew Saul, 13 Commissioner of Social Security (the “Commissioner”) erred in denying A.P.’s application for 14 disability benefits. A.P. seeks an order instructing the Commissioner to award benefits under the 15 Ninth Circuit’s credit-as-true doctrine. The Commissioner concedes that the administrative law 16 judge (“ALJ”) who denied A.P.’s application erred, but moves to remand the case for further 17 administrative proceedings. For the reasons discussed below, A.P.’s motion is GRANTED, the 18 Commissioner’s motion is DENIED, and the case is REMANDED for calculation and award of 19 benefits.2 20 II. BACKGROUND 21 A. A.P.’s Medical History 22 A.P. grew up in foster care and suffered physical and sexual abuse during his childhood 23 and early adulthood, and has been homeless for much of his adult life. He has a history of 24

25 1 Because opinions by the Court are more widely available than other filings, and this order contains potentially sensitive medical information, this order refers to the plaintiff only by his 26 initials. This order does not alter the degree of public access to other filings in this action provided by Rule 5.2(c) of the Federal Rules of Civil Procedure and Civil Local Rule 27 5-1(c)(5)(B)(i). 1 depression with hallucinations, which began during his teenage years. See Administrative Record 2 (“AR,” dkt. 22) at 399. This summary focuses on the evidence cited by the parties and relevant to 3 the resolution of the present motions, and is not intended as a complete recitation of the 4 administrative record or A.P.’s medical history. 5 When A.P. was incarcerated at the Santa Rita Jail in September of 2007, he complained of 6 psychological issues including auditory hallucinations. Id. at 421, 423, 426–27. Mental health 7 treatment notes indicate that A.P. reported using alcohol occasionally and no other drugs, although 8 he had used cocaine in the past. Id. at 421. 9 In February of 2010, A.P. was picked up by police for purportedly agitated behavior, 10 including “banging on doors” and “yelling,” although A.P. stated that he was only walking down 11 the street. Id. at 554. After being transferred from an emergency room to the John George 12 Psychiatric Pavilion, A.P. reported no hallucinations and no past psychiatric diagnosis, but the 13 person who competed his intake evaluation wrote that he smelled of alcohol and was at times 14 unintelligible, and that he likely had past psychiatric diagnoses but was a poor historian. Id. A.P. 15 stated that drank alcohol once per week and used cocaine whenever he could, “perhaps weekly.” 16 Id. 17 Mental health treatment notes from another short period of incarceration at the Santa Rita 18 Jail in June of 2011 indicate that A.P. had a “significant” history of alcohol and cocaine use, that 19 he reported using alcohol twice per week and cocaine occasionally (most recently around one 20 month earlier), and that he stated, “cocaine is a great drug, it settles me down.” Id. at 418–19. 21 Those notes also reflect A.P.’s auditory hallucinations. Id. at 418–20. 22 A case manager brought A.P. to the John George Psychiatric Pavilion on May 13, 2014 23 because A.P. reported thoughts of harming himself. Id. at 584. Dr. Dennis Barton, M.D., wrote 24 that A.P. “was feeling like harming himself (without specific plan),” but felt safer in a treatment 25 setting. Id. Dr. Barton wrote that it was “[u]nclear . . . how much of his diagnosis is endogenous 26 or related to underlying substance abuse and subsequent withdrawal symptoms of cocaine,” but 27 that A.P. did “not have any signs of withdrawal, including stable vital signs,” and separately that 1 Community Services’ (“BACS”) Woodroe Place Crisis Residential facility, where he received 2 inpatient treatment from May 13 to May 27, 2014. Id. at 1073–88. A counselor’s note at the time 3 of A.P.’s admission recites verbatim Dr. Barton’s note regarding uncertainty as to whether A.P.’s 4 symptoms were related to withdrawal from cocaine. Id. at 1073. Treatment notes reflect 5 improvement and stabilization in that structured setting, but even on the day before his discharge, 6 A.P.’s “Axis V” Global Assessment of Functioning (“GAF”) score was 50, indicating serious 7 symptoms or impairments. See id. at 1088. 8 On September 30, 2014, psychiatric nurse practitioner Brian Whiteside completed a 9 “mental impairment questionnaire” diagnosing A.P. with depression and PTSD. Id. at 846. He 10 indicated that A.P. had flashbacks and intrusive thoughts, difficulty thinking or concentrating, and 11 emotional withdrawal or isolation, among other symptoms. Id. at 846, 848. Whiteside checked a 12 box indicating that A.P. experienced hallucinations or delusions, but added a note reading “treated 13 with meds.” Id. at 848. Whiteside reported that A.P. was “Seriously Limited, but not precluded” 14 with respect to several categories of work-related mental abilities, but did not choose the more 15 severe assessments of “Unable to Meet Competitive Standards” or “No Useful Ability to 16 Function” for any such categories. Id. at 849–50. He assessed marked limitations with respect to 17 concentration, persistence, or pace, but only moderate limitations with respect to activities of daily 18 living and social functioning, and reported that A.P. had experienced one or two episodes of 19 decompensation lasting at least two weeks during the previous twelve months. Id. at 850. 20 According to Whiteside, A.P.’s impairments or treatment would cause him to miss about four days 21 of work per month; his impairments were not caused by substance intoxication, dependence, or 22 withdrawal; and his impairments would remain as severe in the absence of substance use. Id. at 23 847. 24 Psychologist Lisa Kalich also evaluated A.P. on September 30, 2014. Id. at 689. Dr. 25 Kalich reported that A.P. isolates himself and is not comfortable with crowds, and that he 26 experiences periods of depression in which he sometimes goes days or weeks without bathing or 27 changing clothes. Id. at 690. He began to experience hallucinations as a young teenager, first 1 and has continued during his adult life. Id. at 691. A.P. has sometimes acted on commands of the 2 voices he hears, including one incident where he assaulted a stranger. Id. at 691–92. He began to 3 have suicidal thoughts as a young child, which have recurred throughout his life; he attempted 4 suicide once during his childhood and has been hospitalized as an adult for suicidal ideation. Id. at 5 691. When he was employed, he “intermittently miss[ed] work due to depression once or twice 6 per month,” and typically quit his jobs when his depression became more severe. Id. at 690. Dr. 7 Kalich determined that A.P. had intermittently marked impairment in activities of daily living 8 (which, in her view, would prevent him from adhering to a typical work schedule), moderate to 9 marked impairments in social interactions, and likely intermittent severe defects in concentration 10 and attention due to his hallucinations and panic attacks, although his concentration was not 11 impaired on the tests that Dr. Kalich conducted. Id. at 694–95. Dr. Kalich stated that A.P.’s 12 symptoms had worsened over time and “the course of his illness has been marked by episodes of 13 decompensation,” but that at the time of the evaluation his symptoms had stabilized due to 14 consistently taking his medication and decreasing his use of alcohol and drugs. Id. at 695. 15 A.P. reported to Dr. Kalich that he drank extremely heavily from the time he was a 16 teenager—resulting in an involuntary psychological hold and, on a separate occasion, an arrest for 17 child endangerment—but he cut down his alcohol use beginning in November of 2013 to one to 18 three times per month. Id. at 691. He reported that he began using cocaine, which calmed him 19 and helped him concentrate, when he was 32 and uses it a few times per month, and that he 20 previously used marijuana but had ceased doing so because it exacerbated his depression. Id. Dr. 21 Kalich stated that A.P. has received mental health treatment “[o]ff and on since 2005,” and that he 22 used alcohol heavily in conjunction with his psychotropic medication for many years since then, 23 but found his current prescriptions “effective in partially alleviating his symptoms.” Id. at 692. 24 She wrote that his alcohol use likely exacerbated his depression and that his cocaine use might 25 contribute to mood fluctuations, but that because his “symptoms of depression and anxiety have 26 persisted during periods of reported sobriety and decreased use, it is unlikely that his symptoms 27 are the sole product of his use.” Id. at 694. 1 consultative examiner arranged by the California Department of Social Services in conjunction 2 with A.P.’s application for Social Security disability benefits. Id. at 698. 3 Treating psychologist Roya Sakhai and another staff member at Multi-Lingual Counseling, 4 Inc. completed an assessment form for A.P. on November 18, 2014. Id. at 826. Dr. Sakhai 5 diagnosed A.P. with severe major depressive disorder with psychotic features. Id. at 827. Dr. 6 Sakhai noted that A.P. “hears voices telling [him] to hurt himself and others, or making 7 disparaging remarks about him,” and “says he can hear people’s mind talking to him,” leading him 8 to isolate himself. Id. at 829. Dr. Sakhai rated A.P. as having the highest level of need for 9 services in every category listed on the form, specifically: (1) living arrangements; 10 (2) “prevent[ing] difficulties in education/employment/day/social activities”; (3) maintaining 11 relationships and social support; (4) hygiene and medication management; (5) psychotic 12 symptoms, suicidal ideation or acts, or violence towards others; and (6) “high risk of recurrence to 13 a level of functional impairment.” Id. at 833. A.P. reported that he had problems with drinking in 14 the past but only drank socially at the time of the evaluation, and that he had used other drugs “on 15 and off” but “never had any problem” with them. Id. at 834. 16 In January of 2015, in the context of the initial denial of A.P.’s application for disability 17 benefits, state agency consultant Dr. Elizabeth Covey, Psy.D., determined that A.P. had severe 18 affective disorders and non-severe substance addiction disorders, causing only mild to moderate 19 limitations. Id. at 110–15. Dr. Covey determined that Dr. Kalich overstated the severity of A.P.’s 20 symptoms and that A.P. could perform his past work as a janitor. See id. Despite diagnosing a 21 non-severe addiction disorder, id. at 110, Dr. Covey separately wrote that there was “no evidence 22 of any substance abuse disorder/DAA [i.e., drug addiction or alcoholism] issue,” id. at 116. On 23 reconsideration of A.P.’s application in June of 2015, Dr. F.L. Williams, M.D., and Dr. A. Ahmed, 24 M.D., reached largely the same conclusions as Dr. Covey. Id. at 139–45. 25 In March of 2015, A.P. reported at a follow-up appointment with nurse practitioner 26 Whiteside that he was facing eviction and homeless, and that he had passed out on a San Francisco 27 sidewalk while binge drinking. Id. at 700. Whiteside reported that A.P. was within normal limits 1 by an “[i]mpaired ability to make reasonable decisions.” Id. Whiteside’s notes—as in other 2 progress notes from this period—are inconsistent as to auditory hallucinations, with one section 3 reading “Hallucinations: Denied None evidenced,” while another section states that A.P. “presents 4 with depression and auditory hallucinations.” Id. at 700–01. 5 On July 9, 2015, Dr. Sakhai completed a “mental residual functional capacity 6 questionnaire” indicating that A.P. had severe major depressive disorder with psychotic features, 7 causing symptoms including headaches, sad affect, memory and concentration problems, and 8 hallucinations. Id. at 841–42. Dr. Sakhai indicated that A.P. had “No Useful Ability to Function” 9 with respect to remembering work-like procedures, maintaining attention for two hours at a time, 10 maintaining regular and punctual attendance, and completing a normal workday without 11 interruption due to psychological symptoms, that he was “Unable to Meet Competitive Standards” 12 with respect to most of the other work-related mental abilities included in the form, and that his 13 impairments or treatment would cause him to miss work more than three times per month. Id. at 14 844. Dr. Sakhai assessed three episodes of decompensation lasting at least two weeks within the 15 previous twelve months, as well as marked limitations in activities of daily living; maintaining 16 social functioning; and concentration, persistence or pace. Id. at 845. Dr. Sakhai reported that 17 A.P.’s impairments were not caused by substance intoxication, dependence, or withdrawal, and 18 twice indicates that his symptoms would remain as severe in the absence of substance use. Id. at 19 842. 20 A January 27, 2016 treatment note from nurse practitioner Douglas Frey, in the context of 21 a tuberculosis screening, states that A.P. was “still drinking heavily” and should consider quitting 22 alcohol. Id. at 891–92. 23 A.P. was admitted to Woodroe Place Crisis Residential for the second time on February 24 10, 2016 and stayed through at least February 22, 2016 after experiencing “decompensation due to 25 excessive alcohol drinking, non-compliance with medication, fighting with others and various 26 situations [that he] refused to discuss.” See id. at 1090–1107. A.P. reported that he heard voices, 27 most recently one week before his admission to Woodroe Place, and that he sought help because 1 and expressed interest in pursuing treatment, but isolated himself at times, e.g., id. at 1098 (Feb. 2 15, 2016), and “continue[d] to struggle with staying sober,” id. at 1106 (Feb. 21, 2016). A.P.’s 3 treatment notes throughout this stay at Woodroe Place indicate a GAF score of 35, reflecting 4 serious impairments. Id. at 1090–1107. 5 At a December 2016 office visit, BACS psychiatrist Dr. Eunjoo Justice, M.D., reported 6 depression, anxiety, and hallucinations, assessed a GAF score of 38, and reported that A.P.’s 7 highest GAF score in 2016 was 48. Id. at 1068. A.P. stated that he needed medication to control 8 the voices that he heard, id. at 1065, and Dr. Justice wrote that A.P.’s current medications were 9 “somewhat effective,” id. at 1067. Dr. Justice indicated that A.P. used alcohol but did not use 10 other drugs at that time. Id. at 1066. 11 Dr. Sakhai completed another evaluation form on March 7, 2017. Id. at 868. Some pages 12 of this form are difficult to read in the record provided to the Court, but Dr. Sakhai reported that 13 “cognitive behavioral, solution-focused, and supportive psychotherapy have not been effective in 14 reducing symptoms.” Id. at 866. Dr. Sakhai assessed marked or extreme limitations in a number 15 of categories. Id. at 866–67. According to Dr. Sakhai, A.P. was not abusing alcohol or drugs at 16 that time, he would miss four or more days of work per month as a result of his impairments or 17 treatment, and he would be off task for more than 30% of a typical workday. Id. at 867. Dr. 18 Sakhai checked a box indicating that the effects of A.P.’s impairments were not expected to 19 fluctuate over time, explaining that his “response to treatment has been consistently very slow and 20 very minimal.” Id. at 868. 21 B. Administrative Hearing 22 A.P. appeared with an attorney for a hearing before ALJ Arthur Zeidman on March 15, 23 2017. Id. at 44. A.P. testified that he does not have a driver’s license, at one point received 24 training in disposal of hazardous materials, and recalled some but not all of the jobs that Social 25 Security records indicated he had held. Id. at 49–53. A.P. and the ALJ discussed the degree of 26 physical labor required in A.P.’s past work in warehouses, as a janitor, and as a security guard, as 27 well as his use of computers and other equipment in those roles. Id. at 54–59. 1 growing up left him “emotionally very sensitive,” id. at 61. A.P. had verbal disagreements with 2 supervisors, but never physical altercations and never anything that cause a warehouse to ask him 3 not to come back. Id. at 61. When he was homeless in 2005, A.P. started hearing voices and “just 4 broke down,” which he testified happened “all the times [he has] been homeless.” Id. A.P. was 5 still working during some of the time since he started hearing voices, but testified that he was not 6 able to keep up with his jobs and taking his medication. Id. at 62–64. A.P. quit his most recent 7 job because he was depressed and stopped going to work. Id. at 64. He was offered a job but 8 turned it down because he did not feel he could be a good worker, and believed he would only lose 9 the job. Id. 10 Despite A.P.’s doctors changing and increasing his medication, he “hasn’t been getting any 11 better,” and still has weeks of severe depression where he stays home, declining invitations from 12 his cousins to get out:

13 Like a have a week, two weeks I’m in the house depressed not watching TV, not doing nothing, can’t eat, can’t sleep, just staring at 14 the walls. And I just -- it seems like my will to just do anything is gone. I try to make myself wash my hair, wash my clothes, take a 15 shower and it’s just like my will isn’t -- isn’t there. It’s like I’m dead inside and it’s hard -- it’s hard -- it’s hard to do anything. 16 17 Id. at 65. A.P. testified that he has been seeing therapists on schedules ranging from weekly, to 18 monthly, to periods of six weeks or more. Id. at 65–66. 19 The ALJ highlighted a treatment note from 2014 indicating that A.P. was drinking 20 occasionally and would drink two twenty-four-ounce bottles of malt liquor, which the ALJ 21 characterized as “a lot,” to which A.P. responded that “it depends what your tolerance is” and “it’s 22 not a lot to [him].” Id. at 66–67. A.P. stated that he drank to self-medicate “before [he] got the 23 pills and stuff like that” in order to avoid hearing voices. Id. at 67. The ALJ concluded his 24 examination of A.P. by noting his use of cocaine, which A.P. characterized as “experimental” 25 rather than sustained:

26 Q: Okay. And then another time, this was Exhibit 4F, you said that you had a history of in addition to alcohol also using cocaine, a 27 substance abuse history. And at that point in 2014 you said you had 1 A: Yeah.

2 Q: So when you’re talking about self-medication, there’s alcohol, there’s cocaine. 3 A: Um-hum, but I don’t -- that was like -- if I did it before I -- I did it. 4 I don’t -- I don’t really do drugs. I mean I drink, but I don’t do drugs.

5 Q: Okay.

6 A: So that was just like, you know, probably a one time --

7 Q: Okay.

8 A: -- thing and then probably -- prior to that it probably was probably like maybe six months or eight months before. So it was just 9 experimental stuff. 10 Id. at 67–68. 11 In response to questioning from his attorney, A.P. testified that he struggled with 12 depression and anxiety, and sometimes slept all day or stayed up all night. Id. at 68–69. His 13 medication helped to some degree, but he still experienced symptoms, including hallucinations 14 while shopping. Id. at 70 (“[I]t’s like I hear people talking about me and I don’t hear their lips 15 moving but it seems like they’re talking about me.”). He testified that his medication has changed 16 frequently “[b]ecause they can’t find the right one” and he “still suffered the same symptoms.” Id. 17 at 78. He avoids stores and public transportation, and instead walks on back streets where he is 18 unlikely to encounter other people. Id. at 70. 19 A.P. testified that, when employed, he had difficulty keeping his mind on his work and 20 remembering instructions from supervisors. Id. at 71. He recalled an incident where he was 21 unable to consistently attend work at a fast food restaurant because he was homeless and often had 22 no place to shower. Id. at 72–73. He also recounted a “bad spell” in which, despite taking his 23 medication, he heard voices telling him to break car windows and hurt people, which only 24 subsided when he physically assaulted a stranger. Id. at 73–74. A.P. testified that he has 25 attempted suicide by taking pills. Id. at 74. A.P. stated that he does not have symptoms when he 26 is drinking, and that he has continued to have symptoms—including debilitating depression and 27 hearing voices—during periods where he has stopped drinking and taken his medication. Id. at 1 Vocational expert Roxane Minkus (the “VE”) asked the ALJ and A.P. to clarify some 2 aspects of his past work, including the amount of weight he was required to lift, the nature of his 3 work as a forklift driver, and whether he had learned the skills required to work as security guard 4 in the time that he did so. Id. at 80–88. The VE assigned exertion levels and job titles from the 5 Dictionary of Occupational Titles to A.P.’s past work. Id. at 88–90. The VE testified that 6 employers could “easily” tolerate one absence from work per month by a hypothetical person of 7 A.P.’s age, education, and work experience who had no other limitations beyond that absence. Id. 8 at 90–91. Presented with a second hypothetical with more restrictions, the VE testified that two 9 absences from work per month would eliminate some but not all jobs, while three days per month 10 would eliminate most jobs and is an appropriate “cutoff.” Id. at 91–93. The VE testified that an 11 inability to respond appropriately to coworkers, supervisors, and the public due to hearing voices 12 would eliminate some but not all jobs, with more jobs eliminated where the inappropriate response 13 takes the form of aggression. Id. at 93–96. The VE testified that the acceptable amount of time an 14 employee could be off task would range from fifteen percent to twenty-five percent of the 15 workday depending on the job. Id. at 98–99. 16 At the conclusion of the hearing, the ALJ acknowledged that “the emotional problems that 17 [A.P. has] suffered have got in the way,” but the ALJ stated that he was “going to have to analyze 18 the effects of drug and alcohol on that whole thing and figure out where it all fits in.” Id. at 101. 19 C. Five Step Framework for ALJ Decisions 20 When a claimant alleges a disability and applies for Social Security benefits, the ALJ 21 evaluates their claim using a five-step process. 20 C.F.R. § 404.1520(a)(4). At step one, if the 22 claimant has engaged in “substantial gainful activity” during the alleged period of disability, they 23 are not disabled. 20 C.F.R. § 404.1520(a)(4)(i). Substantial gainful activity is “work activity that 24 involves doing significant physical or mental activities . . . for pay or profit.” 20 C.F.R. 25 § 220.141(a)–(b). If the claimant has not engaged in such activities, the evaluation continues at 26 step two. 27 At the second step of the analysis, if the claimant has no “severe medically determinable 1 there is “more than a minimal limitation in [the claimant’s] ability to do basic work activities.” 20 2 C.F.R. § 404.1520(c). If the claimant does not suffer from a severe impairment, they are not 3 disabled; if they have a severe impairment, the evaluation continues to step three. 4 Next, the ALJ turns to the Social Security Administration’s listing of severe impairments 5 (the “Listing”). See 20 C.F.R. § 404, subpt. P, app. 1. If the claimant’s alleged impairment meets 6 or medically equals the definition of a listed impairment, the claimant is disabled. 20 C.F.R. 7 § 404.1520(a)(4)(iii). If not, the evaluation proceeds to step four. 8 At step four, if—based on the claimant’s residual functional capacity (“RFC”)—the 9 claimant can still perform their past work, they are not disabled. 20 C.F.R. § 404.1520(a)(4)(iv). 10 The RFC is a determination of “the most [the claimant] can do despite [the claimant’s] 11 limitations.” 20 C.F.R. § 404.1520(a)(1). If the ALJ finds that the claimant can perform their past 12 relevant work, they are not disabled; if they are not able to perform such work, the evaluation 13 moves to step five. 14 For the fifth and final step, the burden shifts from the claimant to prove disability to the 15 Commissioner to “identify specific jobs existing in substantial numbers in the national economy 16 that the claimant can perform despite [his] identified limitations.” Meanel v. Apfel, 172 F.3d 17 1111, 1114 (9th Cir. 1999) (citing Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995)). If the 18 Commissioner can identify work that the claimant could perform, they are not disabled; if not, the 19 claimant is disabled and entitled to benefits. 20 C.F.R. § 404.1520(g)(1). 20 D. The ALJ’s Decision 21 At the first step of his analysis, the ALJ determined that A.P. was not disabled through 22 November of 2013 because he had worked in a warehouse and as a janitor during that time, 23 earning more than the threshold for substantial gainful activity. AR at 30–31. The ALJ 24 determined that A.P. had not engaged in substantial gainful activity after that date. Id. at 31. 25 At the second and third steps, the ALJ concluded that A.P. had two severe impairments— 26 major depressive disorder and polysubstance abuse disorder—but his impairments did not meet or 27 equal the severity of a listed impairment. Id. The ALJ found that A.P.’s impairments caused only 1 difficulties in the ability to interact with others; mild to moderate difficulties in maintaining the 2 ability to concentrate, persist, or maintain pace; and no evidence of difficulties in the ability to 3 adapt or manage oneself.” Id. Because the ALJ did not find at least two “marked” limitation or 4 one “extreme” limitation in those categories, the ALJ determined that A.P. did not meet Paragraph 5 B of Listing 12.04, encompassing depression. Id. The ALJ stated without further explanation that 6 “the evidence fails to establish the presence of the ‘paragraph C’ criteria.” Id. 7 The ALJ assessed A.P.’s RFC as follows:

8 [T]he claimant has the residual functional capacity to perform a full range of work at all exertional levels but with the following 9 nonexertional limitations: the claimant is limited to hearing and understanding simple oral instructions and to communicating simple 10 information. He could not work at unprotected heights, around moving machinery or operating a motor vehicle. He is limited to work 11 that is simple, routine, and repetitive that is not at a production rate (for example, assembly work). He is limited to simple work-related 12 decisions. He occasionally could respond appropriately to supervisors, co-workers, and the public. He would be absent from 13 work two days per month. 14 Id. at 32. 15 In reaching that determination, the ALJ concluded that although A.P.’s impairments 16 reasonably could be expected to cause his reported symptoms, “these symptoms are not entirely 17 consistent with the medical evidence and other evidence in the record.” Id. at 33. The ALJ did 18 not identify particular portions of A.P.’s testimony or other reports that were not credible, nor did 19 he provide specific reasons for discounting A.P.’s credibility other than the vague assertion that 20 his alleged symptoms were “not entirely consistent” with the record. See id. 21 The ALJ acknowledged that “[p]sychological evaluations noted depressive symptoms but 22 some evaluators found the claimant no more than moderately limited while others found more 23 severe limitations.” Id. He noted instances in the record where A.P. reported that treatment and 24 medication were helpful, and instances of “essentially benign treatment notes,” including when 25 A.P. was incarcerated in November of 2013. Id. The ALJ also noted that A.P. failed to attend the 26 consultative examination arranged by the state agency. Id. at 34. 27 The ALJ recounted Dr. Kalich’s report, but determined that it lacked “probative value as to 1 not distinguish between the effects of the psychological disorder and the substance use.” Id. at 2 33–34. The ALJ assigned “good weight” to nurse practitioner Whiteside’s conclusion that A.P. 3 “would have serious difficulties with many work activities, but no work activities were 4 precluded,” but failed to address Whiteside’s opinions that A.P. would miss four days of work per 5 month and that his impairments would be equally severe in the absence of substance use. Id. at 6 34. The ALJ rejected Dr. Sakhai’s 2017 report as “not well supported by the treatment notes 7 indicating that [A.P.] was doing well or by any discussion of the effects of the drug and alcohol 8 use.” Id. According to the ALJ, a finding of mild to moderate severity is consistent with 9 treatment notes from May of 2014. Id. 10 The ALJ determined that reports of severe limitations from A.P.’s February 2016 crisis 11 residential treatment had “little probative value” because they “reflect only a snapshot of [his] 12 ability when he was first seen after excessive alcohol use and is not a true reflection of the most he 13 could do once the acute symptoms resolved with treatment and adherence to medications,” noting 14 that A.P. improved with treatment and abstinence from substances, although the ALJ did not note 15 specifically that A.P. was treated at a residential crisis facility. Id. The ALJ also noted that, while 16 there was “no period during which [A.P.] likely was not using drugs and alcohol,” A.P. was able 17 to maintain employment from February 2013 to November 2013 with occasional drug and alcohol 18 use, and thus should be able to work if he holds himself to moderate—as opposed to “acute and 19 intense”—use of drugs and alcohol. Id. at 34–35. 20 Whether the ALJ ultimately considered A.P.’s substance use material to his decision is 21 unclear. He concluded as follows:

22 Even if the alcohol and drug use was material to a finding of disability, that would not change the overall outcome of the case. 23 With intense drugs and alcohol, the severity of his symptoms might have met or equaled the requirement of a listing or precluded regular 24 work activity. Therefore, taking into consideration the drugs and alcohol, he likely would have been disabled. However, following the 25 second prong of the DAA [i.e., drug abuse or alcoholism] analysis, with the absence or near-absence of the drugs and alcohol, as in 2013, 26 the claimant was able to sustain work activity, so a finding of disability would be precluded (SSR 132p). Therefore, the claimant 27 did not meet his burden to demonstrate that whether or not he was 1 Id. at 35. 2 It is not clear whether the ALJ credited A.P.’s testimony that he experienced auditory 3 hallucinations, or the reports to that effect from a number of his treatment providers. The ALJ 4 noted “hearing voices” as one of A.P.’s alleged symptoms, but did not address the issue further. 5 See id. at 32. The ALJ acknowledged only that A.P. “has some symptoms of depression, 6 including some impaired concentration and memory, which would affect his ability sustain work.” 7 Id. at 35. 8 Taking into account the VE’s testimony, the ALJ determined that A.P. could perform his 9 past work as a warehouse worker, cleaner, and hand packager, and thus concluded at step four of 10 the five-step analysis that A.P. was not disabled. Id. at 36. 11 E. The Parties’ Arguments 12 1. A.P.’s Motion for Summary Judgment 13 A.P. argues that the ALJ erred in wholly failing to address Dr. Sakhai’s November 2014 14 opinion. Pl.’s Mot. (dkt. 23) at 7–8. A.P. also argues that the ALJ failed to provide sufficient 15 reasons for rejecting Dr. Sakhai’s July 2015 opinion, id. at 8–11, and March 2017 opinion, id. at 16 11–14. According to A.P., while the ALJ purported to give “good weight” to nurse practitioner 17 Whiteside’s opinions, the ALJ erred in failing acknowledge: (1) Whiteside’s diagnosis of PTSD; 18 (2) Whiteside’s assessment that A.P. would miss four days of work per month; (3) Whiteside’s 19 determinations that A.P.’s impairments were not caused by substance use and that his symptoms 20 would remain as severe in the absence of substance use; (4) Whiteside’s assessment that A.P. 21 would be “seriously limited” in a number of abilities; (5) Whiteside’s conclusion that A.P. had a 22 “marked” limitation in concentration, persistence, or pace; and (6) Whiteside’s report that A.P. 23 had experienced episodes of decompensation. Id. at 14–18. A.P. contends that the ALJ also erred 24 in cherry picking portions of Dr. Kalich’s evaluation while misrepresenting both the extent of, and 25 Dr. Kalich’s consideration of, A.P.’s drug and alcohol use, id. at 18–22, and that the ALJ 26 understated the severity of A.P.’s symptoms during his inpatient treatment at Woodroe Place and 27 failed to account for Dr. Justice’s December 2016 assessment, id. at 22–25. 1 effectively rejecting every treating and examining opinion in the record,” id. at 25, with those 2 errors including failing to meet the high standard to reject disability based on drug and alcohol 3 use, id. at 25–27,3 wrongfully determining that A.P.’s impairment met no listing, id. at 27, and 4 determining that A.P.’s residual functional capacity would allow him to work, id. at 28. A.P. asks 5 the Court to remand for an award of benefits based on the Ninth Circuit’s “credit-as-true” rule. Id. 6 at 29. 7 2. The Commissioner’s Motion to Remand 8 Rather than file a motion for summary judgment to affirm the ALJ’s decision, the 9 Commissioner moves to remand for further administrative proceedings. See generally Def.’s Mot. 10 (dkt. 28). The Commissioner specifically concedes error with respect to the ALJ’s failure to 11 explain conflicts between the residual functional capacity he assessed and aspects of nurse 12 practitioner Whiteside’s opinions, despite stating that he afforded Whiteside’s opinions “good 13 weight.” Id. at 1. 14 The Commissioner preserves his objection in principle to the Ninth Circuit’s credit-as-true 15 rule, but does not dispute that this Court is bound by that precedent. Id. at 2 & n.3. The 16 Commissioner argues that even under the Ninth Circuit’s framework, however, remand for an 17 award of benefits should be a rare exception, and further proceedings are necessary here to 18 determine whether A.P.’s impairments were caused by his drug or alcohol use, which some of 19 A.P.’s treatment providers noted as contributing to his impairment and others “failed to 20 acknowledge.” Id. at 2–4. The Commissioner also argues that the Court cannot credit treating 21 physicians’ opinions regarding A.P.’s limitations as true because those opinion conflict with the 22 state agency doctors’ opinions, which were consistent with the ALJ’s conclusions even though the 23 ALJ “did not address” them. Id. at 4–5. The Commissioner further contends that the credit-as- 24 true rule is inappropriate in light of a handful of “benign mental status examination findings”— 25 including an incident where A.P. “was arrested and off his medications”—and in light of the 26

27 3 Going forward and in future cases, Plaintiff’s counsel is admonished to comply with the twenty- 1 ALJ’s determination that A.P. himself was not credible and not consistently compliant with his 2 medication. Id. at 6–7. The Commissioner notes that disability benefits may not be awarded 3 solely due to error by the Social Security Administration, but instead require a showing that the 4 claimant is actually disabled. Id. at 7 (citing Brown-Hunter v. Colvin, 806 F.3d 487, 495 (9th Cir. 5 2015)). 6 3. A.P.’s Reply 7 A.P. argues in his reply brief that the outcome the Commissioner seeks here “is precisely 8 the type of carte blanche ‘do-over’ that the credit-as-true rule is designed to prevent.” Reply (dkt. 9 29) at 4. According to A.P., the Commissioner’s only basis for remand is to allow an ALJ to 10 revisit the medical opinion evidence that the ALJ failed to consider properly the first time, which 11 is not permitted under Ninth Circuit precedent. See id. at 3–4. A.P. notes that Dr. Sakhai assessed 12 marked limitations in a number of categories and determined that his impairments are not caused 13 by substance use, and argues that the opinions of nurse practitioner Whiteside, Dr. Kalich, and 14 other treatment providers support those conclusions. Id. at 4–5. A.P. contends that, in the absence 15 of any treating or examining doctor’s opinion that his impairments would be diminished if he did 16 not use drugs or alcohol, the record cannot support a conclusion that substance use is a 17 contributing factor in his disability, particularly in light of the stringent standard required to 18 support such a conclusion and deference afforded to treatment providers under Social Security 19 Ruling 13-2p. See id. at 5–6, 8–10. 20 III. ANALYSIS 21 A. Legal Standard 22 District courts have jurisdiction to review the final decisions of the Commissioner and may 23 affirm, modify, or reverse the Commissioner’s decisions with or without remanding for further 24 hearings. 42 U.S.C. § 405(g); see also 42 U.S.C. § 1383(c)(3). 25 When reviewing the Commissioner’s decision, the Court takes as conclusive any findings 26 of the Commissioner that are free of legal error and supported by “substantial evidence.” 27 Substantial evidence is “such evidence as a reasonable mind might accept as adequate to support a 1 (1971). “‘Substantial evidence’ means more than a mere scintilla,” id., but “less than a 2 preponderance.” Desrosiers v. Sec’y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 3 1988) (citation omitted). Even if the Commissioner’s findings are supported by substantial 4 evidence, the decision should be set aside if proper legal standards were not applied when 5 weighing the evidence. Benitez v. Califano, 573 F.2d 653, 655 (9th Cir. 1978) (quoting Flake v. 6 Gardner, 399 F.2d 532, 540 (9th Cir. 1978)). In reviewing the record, the Court must consider 7 both the evidence that supports and the evidence that detracts from the Commissioner’s 8 conclusion. Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) (citing Jones v. Heckler, 760 9 F.2d 993, 995 (9th Cir. 1985)). 10 If the Court identifies defects in the administrative proceeding or the ALJ’s conclusion, the 11 Court may remand for further proceedings or a calculation of benefits. See Garrison v. Colvin, 12 759 F.3d 995, 1019–21 (9th Cir. 2014). “When the ALJ denied benefits and the court finds error, 13 the court ordinarily must remand to the agency for further proceedings before directing an award 14 of benefits.” Leon, 880 F.3d at 1045 (citing Treichler, 775 F.3d at 1099). “[A]n ALJ’s failure to 15 provide sufficiently specific reasons for rejecting the testimony of a claimant or other witness does 16 not, without more, require the reviewing court to credit the testimony as true.” Treichler, 775 F.3d 17 at 1106. In appropriate circumstances, however, the court may order immediate award of benefits 18 under the Ninth Circuit’s “credit-as-true” rule. Leon, 880 F.3d at 1045 (citing Garrison, 759 F.3d 19 at 1019). 20 The district court may remand to the ALJ to calculate and award benefits when: (1) “the 21 ALJ failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony 22 or medical opinion”; (2) “there are [no] outstanding issues that must be resolved before a disability 23 determination can be made” and “further administrative proceedings would [not] be useful”; and 24 (3) “on the record taken as a whole, there is no doubt as to disability.” Leon, 880 F.3d at 1045 25 (citations and internal quotation marks omitted); Varney v. Sec’y of Health & Human Servs., 859 26 F.2d 1396, 1401 (9th Cir. 1988) (emphasizing that the credit-as-true rule applies to both claimant 27 testimony and medical opinion evidence); see also Garrison, 759 F.3d at 1021 (holding that a 1 case). The credit-as-true rule does not apply “when the record as a whole creates serious doubt as 2 to whether the claimant is, in fact, disabled within the meaning of the Social Security Act,” 3 Garrison, 759 F.3d at 1021, when “there is a need to resolve conflicts and ambiguities,” Treichler, 4 775 F.3d at 1101, or when there is ambiguity about when the claimant’s disability began that is not 5 solved by the record credited as true. See Dominguez v. Colvin, 808 F.3d 403, 409 (9th Cir. 2015). 6 This credit-as-true rule, which is “settled” in the Ninth Circuit, Garrison, 759 F.3d at 999, is 7 intended to encourage careful analysis by ALJs, avoid duplicative hearings and burden, and reduce 8 delay and uncertainty facing claimants, many of whom “suffer from painful and debilitating 9 conditions, as well as severe economic hardship.” Id. at 1019 (quoting Varney, 859 F.2d at 1398– 10 99). 11 B. The Credit-as-True Rule Warrants an Award of Benefits 12 The Commissioner does not dispute that the ALJ erred in failing to address the aspects of 13 nurse practitioner Whiteside’s opinions that conflict with the ALJ’s conclusions, but argues that 14 the Court should remand for further proceedings rather than an award of benefits because A.P.’s 15 “undisputed substance abuse, the conflicting medical opinions and evidence, and the ALJ’s 16 discussion of [A.P.’s] subjective statements all represent outstanding conflicts in the record that 17 preclude a judicial finding of disability.” Def.’s Mot. at 28. The Commissioner does not 18 specifically address whether the ALJ erred in rejecting or failing to address opinions of Dr. 19 Sakhai, Dr. Kalich, and Dr. Justice. 20 No party disputes that the Commissioner would be required to find A.P. disabled if Dr. 21 Sakhai’s opinions that he would miss more than three days or at least four days of work per 22 month, AR at 842, 867, or Whiteside’s opinion that he would miss four days of work per month, 23 id. at 847, were taken as true. The Commissioner has identified no medical opinion in the record 24 contradicting those opinions. The Court does not reach the question of whether the Ninth 25 Circuit’s credit-as-true rule can apply to an opinion of a non-physician, “other” source like nurse 26 practitioner Whiteside, because there is no question that it can apply to medical opinions from a 27 treating physician like Dr. Sakhai, and both of those providers’ opinions are materially identical 1 provided sufficient reasons to reject either of their opinions, the remaining questions are whether 2 further administrative proceedings would be useful,4 and whether the record as a whole evinces 3 doubt as to disability. Leon, 880 F.3d at 1045. The Court addresses the Commissioner’s 4 arguments as to those issues in turn. 5 1. Substance Use 6 First, with respect to A.P.’s substance use, Social Security Ruling 13-2p sets forth the 7 standard for determining when drug abuse or alcoholism (“DAA”) is material to a claimant’s 8 mental impairment:

9 7. What do we do if the claimant’s co-occurring mental disorder(s) improve in the absence of DAA? 10 a. Many people with DAA have co-occurring mental disorders; that 11 is, a mental disorder(s) diagnosed by an acceptable medical source in addition to their DAA. We do not know of any research data that we 12 can use to predict reliably that any given claimant’s co-occurring mental disorder would improve, or the extent to which it would 13 improve, if the claimant were to stop using drugs or alcohol.

14 b. To support a finding that DAA is material, we must have evidence in the case record that establishes that a claimant with a co-occurring 15 mental disorder(s) would not be disabled in the absence of DAA. Unlike cases involving physical impairments, we do not permit 16 adjudicators to rely exclusively on medical expertise and the nature of a claimant’s mental disorder. 17 c. We may purchase a CE in a case involving a co-occurring mental 18 disorder(s). We will purchase CEs primarily to help establish whether a claimant who has no treating source records has a mental disorder(s) 19 in addition to DAA. See Question 8. We will provide a copy of this evidence, or a summary, to the CE provider. 20 d. We will find that DAA is not material to the determination of 21 disability and allow the claim if the record is fully developed and the evidence does not establish that the claimant’s co-occurring mental 22 disorder(s) would improve to the point of nondisability in the absence of DAA. 23 SSR 13-2p, 2013 WL 621536, at *9 (Feb. 20, 2013). Under SSR 13-2p: 24 Periods of abstinence may be considered evidence of whether DAA 25 is material in cases involving co-occurring mental disorders, so long 26 4 The Commissioner argues only that the case should be remanded for further consideration of the 27 existing record. See Def.’s Mot. at 1. To the extent that A.P.’s failure to appear for a consultative 1 as the “claimant is abstinent long enough to allow the acute effects of drugs or alcohol abuse to abate.” SSR 13-2p(9), 2013 WL 621536, at 2 *12. To find DAA material, there must be evidence demonstrating that any remaining limitations were not disabling during the period. 3 SSR 13-2p(9)(b), 2013 WL 621536, *12. 4 Wall v. Berryhill, No. 16-cv-01374-SK, 2017 WL 2901701, at *7 (N.D. Cal. Apr. 24, 2017). 5 Improvement during periods of abstinence in a structure treatment setting is not sufficient; the 6 Social Security Administration “need[s] evidence from outside of such highly structured treatment 7 settings demonstrating that the claimant’s co-occurring mental disorder(s) has improved, or would 8 improve, with abstinence.” SSR 13-2p, 2013 WL 621536, at *13 (emphasis added). “In addition, 9 a record of multiple hospitalizations, emergency department visits, or other treatment for the co- 10 occurring mental disorder—with or without treatment for DAA—is an indication that DAA may 11 not be material even if the claimant is discharged in improved condition after each intervention.” 12 Id.5 13 The Commissioner has not explained how the record available here could satisfy that 14 standard for finding A.P.’s substance use material to his disability. As the ALJ acknowledged, 15 there is no extended period of abstinence documented in the record. AR at 35. The period of 16 purportedly reduced usage in 2013 precedes most of the alleged period of disability and all of the 17 period now at issue—A.P. initially alleged disability beginning in February of 2013, but does not 18 contest the ALJ’s conclusion that he was not disabled through the end of his employment in 19 November of 2013—and Dr. Kalich’s conclusion in 2014 that A.P.’s symptoms had worsened 20 over time, id. at 695, is not contradicted in the record. It is also not entirely clear how the ALJ 21 reached the conclusion that A.P.’s substance use was more moderate during that period or whether 22 such a conclusion can be supported by the record. The ALJ notes that A.P. described his use as 23 “intermittent” during that time, but A.P. also reported only intermittent use during much of his 24 alleged period of disability when he was not working. It appears that the ALJ might have 25

26 5 A.P. also relies on a section of SSR 13-2p acknowledging that “[t]reating sources, especially specialists, may have the best understanding of . . . the extent to which the other impairment(s) 27 would likely improve absent DAA,” but that language appears in a section addressing physical 1 concluded, tautologically, that because A.P. maintained employment, his substance use must have 2 been reduced, and therefore his subsequent inability to work was caused by increased substance 3 use. 4 To the extent the ALJ relied on A.P.’s purported recovery after treatment and “apparently 5 abstaining from drugs and alcohol” in February of 2016 to show a material effect of substance use, 6 id. at 34, that period of crisis residential treatment was the sort of “highly structured treatment 7 setting” that cannot establish materiality of substance use as compared to abstinence under SSR 8 13-2p, because the effects of the structured setting and treatment cannot be decoupled from any 9 beneficial effect of abstinence. See SSR 13-2p, 2013 WL 621536, at *13; AR at 1091–1107. 10 Moreover, notes from that period of treatment indicate that A.P. “continue[d] to struggle with 11 staying sober,” id. at 1106, calling into question whether he was in fact abstaining from substance 12 use at that time. 13 Contrary to the Commissioner’s assertion that “none of the providers on whose opinions 14 Plaintiff relies clarified whether they would have assessed the same limitations had Plaintiff 15 refrained from substance abuse,” Def.’s Mot. at 4, Dr. Sakhai and nurse practitioner Whiteside 16 both reported that A.P.’s impairments would remain as severe in the absence of substance use, AR 17 at 842, 847, 867. And contrary to the Commissioner’s assertion that Whiteside and Dr. Sakhai 18 “wholly failed to acknowledge [A.P.]’s substance abuse,” Def.’s Mot. at 4, both documented his 19 substance use in their treatment notes. See, e.g., AR at 805 (progress note by Dr. Sakhai reporting 20 that A.P. “spoke about his struggle with alcohol and using at as self-medication”); id. at 834 21 (initial assessment form by Dr. Sakhai noting A.P.’s drug and alcohol use); id. at 907 (note by 22 Whiteside stating A.P. “reported that he has been continuing to drink and smoke mj”). The record 23 does not support a conclusion that either Whiteside’s or Dr. Sakhai’s opinion that A.P.’s 24 symptoms would be as severe in the absence of substance use was based on a lack of knowledge 25 of such use. 26 Dr. Kalich’s opinions that “[c]hronic use of alcohol likely exacerbated [A.P.’s] feelings of 27 depression” and “his intermittent use of cocaine may also intensify fluctuations in his mood” do 1 substance use, particularly given Dr. Kalich’s conclusions that “it is unlikely that his symptoms 2 are the sole product of his use” because they “have persisted during periods of reported sobriety 3 and decreased use,” and that he “is unlikely to be able to adhere to a typical work schedule. Id. at 4 694. State agency consulting psychiatrist Dr. Covey reported that A.P. suffered from substance 5 addiction, id. at 112, but—presumably familiar with the Social Security Administration’s 6 analytical framework for DAA materiality—concluded that “[t]here is no evidence of any 7 substance abuse disorder/DAA issue,” id. at 116. Drs. Williams and Ahmed reached the same 8 conclusions on reconsideration. Id. at 141, 145. 9 Viewing the record as a whole, there is no medical opinion evidence that A.P. would have 10 a greater ability to maintain regular attendance but for substance use. Even if there were, the 11 Commissioner could not rely on such an opinion under SSR 13-2p, which acknowledges the lack 12 of “research data that we can use to predict reliably that any given claimant’s co-occurring mental 13 disorder would improve, or the extent to which it would improve, if the claimant were to stop 14 using drugs or alcohol.” SSR 13-2p, 2013 WL 621536, at *9. Because the current record would 15 not support a finding that A.P.’s drug and alcohol use were material to his impairments under the 16 Social Security Administrations rules for such analysis, the Court finds no need for further 17 proceedings to allow an ALJ to reconsider that issue. 18 2. Conflicts in the Record 19 The Commissioner contends that Whiteside’s opinions that A.P. would not be entirely 20 precluded from any work activities “seems to conflict” with his opinion that A.P. would be absent 21 from work four days per month. Def.’s Mot. at 5. Taken as a whole, Whiteside’s opinion was that 22 A.P.’s impairments would not entirely preclude him from working when he attended work, but he 23 would be absent from work four days per month. AR at 847–50. The amount of absence that an 24 employer would tolerate does not fall within Whiteside’s area of expertise as a nurse practitioner. 25 The VE, whose expertise encompasses such issues, testified that missing three or more days per 26 month would preclude work. Id. at 91–93. The Court discerns no meaningful conflict. 27 The Commissioner also cites the non-examining state agency doctors’ opinions regarding 1 treatment providers—as conflicts requiring remand. Def’s Mot. at 5. None of the consultants 2 addressed whether A.P. could maintain regular attendance with fewer than the four-or-more 3 monthly absences predicted by Whiteside and Dr. Sakhai. “[T]he opinion of a treating physician 4 is . . . entitled to greater weight than that of an examining physician, [and] the opinion of an 5 examining physician is entitled to greater weight than that of a non-examining physician.” 6 Garrison, 759 F.3d at 1012. The non-examining consultants’ assessment of generally less severe 7 symptoms would not be a sufficient basis on remand to reject a treating physician’s opinion on 8 absences from work, an issue the consultants did not specifically address 9 The remaining “inconsistencies” identified by the Commissioner are merely instances 10 where A.P.’s symptoms did not present as particularly severe. See Def.’s Mot. at 6. Addressing 11 an ALJ’s decision to reject a claimant’s symptom testimony on similar grounds, the Ninth Circuit 12 has held that the claimant’s testimony of intermittently severe symptoms should be credited as true 13 despite instances where his symptoms were less severe:

14 It is an error to reject a claimant’s testimony merely because symptoms wax and wane in the course of treatment. Cycles of 15 improvement and debilitating symptoms are a common occurrence, and in such circumstances it is error for an ALJ to pick out a few 16 isolated instances of improvement over a period of months or years and to treat them as a basis for concluding a claimant is capable of 17 working. 18 Garrison, 759 F.3d at 1017. Fluctuations in the severity of A.P.’s symptoms are not inconsistent 19 with periods of severe symptoms where he would be absent from work, as assessed by nurse 20 practitioner Whiteside and Dr. Sakhai. 21 3. A.P.’s Credibility 22 Finally, the Commissioner argues that further proceedings are appropriate and the case 23 cannot be remanded for benefits because the ALJ found A.P. himself not credible as to the severity 24 of his symptoms. See Def.’s Mot. at 6–7. 25 While not raised in A.P.’s briefs as a basis for reversal, the ALJ’s analysis A.P.’s 26 credibility did not comport with Ninth Circuit precedent.6 In any event, the Ninth Circuit case on 27 1 which the Commissioner relies held only that a district court did not abuse its discretion in 2 denying a request to award benefits and instead remanding for further proceedings where the 3 plaintiffs’ claims were not only “undercut by the ALJ’s adverse credibility determination, which 4 was supported by evidence of skepticism on the part of her physicians about her claims of 5 limitations as well as by inconsistent reports from [the plaintiff] herself,” but also by 6 inconsistencies in the treatment notes of the doctor whose opinion the plaintiff argued should be 7 credited, inconsistencies with other treating physicians’ opinions, and an unresolved issue 8 regarding her alleged onset date. Dominguez, 808 F.3d at 408–09. Dominguez did not hold that 9 an ALJ’s finding that a plaintiff is not himself credible precludes applying the credit-as-true rule to 10 uncontradicted opinions of a treating physician. The Commissioner has not explained why any 11 question of A.P.’s credibility would undermine Dr. Sakhai’s and nurse practitioner Whiteside’s 12 opinions regarding absences from work. The Court declines to require further administrative 13 proceedings on that basis. 14 IV. CONCLUSION 15 For the reasons discussed above, the Court concludes that the ALJ failed to provide 16 sufficient reasons to reject Dr. Sakhai’s opinion regarding A.P.’s absences from work, the 17 Commissioner would be required to find A.P. disabled if that opinion were credited as true, and 18 there is neither need for further administrative proceeding nor any doubt that A.P. is disabled. 19 A.P.’s motion is therefore GRANTED, the Commissioner’s motion is DENIED, and the case is 20 REMANDED for calculation and award of benefits for a period of disability beginning at the 21

22 Court does not rely on that error in resolving the parties’ motions. The Court notes, however, that the Social Security Administration’s consistent failure to acknowledge and comply with binding 23 Ninth Circuit precedent regarding symptom testimony has resulted in countless appeals and reversals of ALJ decisions, engendering unnecessary delay and public expense. The Ninth Circuit 24 has repeatedly held that if an ALJ determines that a claimant’s medically determinable impairments could result in the symptoms alleged and does not affirmatively find that the plaintiff 25 is malingering, the ALJ can only reject the claimant’s testimony about the severity of those symptoms by offering “‘specific, clear, and convincing reasons for doing so.’” Lingenfelter v. 26 Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (quoting Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)). In presenting such reasons, “‘[g]eneral findings are insufficient; rather, the ALJ must 27 identify what testimony is not credible and what evidence undermines the claimant’s complaints.’” ] termination of A.P.’s employment in November of 2013. The Clerk shall enter judgment in favor 2 || of AP. 3 IT ISSO ORDERED. 4 || Dated: September 30, 2020 5 CZ J PH C. SPERO 6 ief Magistrate Judge 7 8 9 10 1]

Oo 15

Z 18 19 20 21 22 23 24 25 26 27 28