1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 L.S., Case No. 23-cv-02862-VKD

9 Plaintiff, ORDER RE CROSS-MOTIONS FOR 10 v. SUMMARY JUDGMENT

11 MICHELLE KING, Re: Dkt. Nos. 12, 16 Defendant. 12

13 14 Plaintiff L.S.1 challenges a final decision of the Commissioner of Social Security 15 (“Commissioner”)2 denying his application for supplemental security income (“SSI”) under Title 16 XVI of the Social Security Act (“Act”),

, et seq. L.S.’s principle contention is 17 that the administrative law judge (“ALJ”) did not properly assess the evidence and erred in 18 concluding that his drug and alcohol use is a contributing factor material to the determination of 19 disability. The Commissioner maintains that the ALJ properly evaluated the evidence, and that 20 substantial evidence supports his finding that L.S.’s impairments, absent substance use, are not 21 disabling. 22 The parties have filed cross-motions for summary judgment. Dkt. Nos. 12, 16, 19. The 23 matter was submitted without oral argument. Upon consideration of the moving and responding 24 1 Because orders of the Court are more widely available than other filings, and this order contains 25 potentially sensitive medical information, this order refers to the plaintiff only by his initials. This order does not alter the degree of public access to other filings in this action provided by Rule 26 5.2(c) of the Federal Rules of Civil Procedure and Civil Local Rule 5-1(c)(5)(B)(i).

27 2 Michelle King, the Acting Commissioner of the Social Security Administration, is substituted for 1 papers and the relevant evidence of record, for the reasons set forth below, the Court grants in part 2 and denies in part L.S.’s motion for summary judgment, grants in part and denies in part the 3 Commissioner’s cross-motion for summary judgment, and remands this case for further 4 administrative proceedings consistent with this order.3 5 I. BACKGROUND 6 L.S. was 31 years old on April 13, 2021, the date he filed his SSI application.4 See 7 AR5 34, 199, 250. He reported struggling with depression from the time he was a child, following 8 his parents’ divorce. The record indicates that L.S. began drinking alcohol at around age 12, and 9 also began using cocaine and methamphetamines as an adult. See, e.g., AR 53, 58, 357, 404, 433. 10 L.S. has a history of juvenile detention, and has been in and out of jail and/or prison during his 11 adulthood. See, e.g., AR 38, 392, 403, 404, 405, 454, 497, 682. The record indicates that he 12 attended school until the 6th grade, and later completed enough credits in an independent study 13 program for a high school diploma, but was unable to pass the high school proficiency exam. See 14 AR 38, 255, 433, 518, 682. L.S. has a history of unstable housing, as well as limited employment, 15 which includes brief periods working in a warehouse and in a fast food restaurant. See AR 61. 16 The record indicates that while on probation in December 2021, L.S. attempted suicide by 17 hanging, followed by a second attempted suicide a few weeks later in January 2022 by an 18 overdose of his psychiatric medications. See generally AR 534-679. 19 On April 13, 2021, L.S. applied for SSI, alleging disability beginning January 1, 2020 due 20 to depression and anxiety. See AR 81, 199, 200. He later amended his alleged onset date to the 21 date of his application, April 13, 2021. See AR 37, 321, 330. His application was denied initially 22 and on review. AR 67-95. ALJ David LaBarre held a hearing on April 29, 2022, at which a 23

24 3 All parties have expressly consented that all proceedings in this matter may be heard and finally adjudicated by a magistrate judge.

(c); Fed. R. Civ. P. 73; Dkt. Nos. 7, 8. 25

4 For purposes of this appeal, the focus is on whether L.S. was disabled between April 13, 2021, 26 the date of his SSI application, and June 13, 2022, the date of the ALJ’s decision. See

. 27 1 vocational expert (“VE”) testified. The ALJ issued an unfavorable decision on June 13, 2022. 2 AR 15-26, 32-66. 3 The ALJ found that L.S. has not engaged in substantial gainful activity since the April 13, 4 2021 alleged onset date. AR 17. The ALJ found that L.S. has the following severe impairments: 5 major depressive disorder; generalized anxiety disorder; oppositional defiance disorder; 6 schizophrenia; amphetamine induced disorder; and polysubstance abuse disorder. AR 18. The 7 ALJ found that L.S.’s impairments, including his substance use disorders, met the criteria for 8 disability under the Commissioner’s Listing 12.03 (schizophrenia spectrum and other psychotic 9 disorders) and Listing 12.04 (depressive, bipolar, and related disorders). AR 18. The ALJ found 10 that absent substance use, L.S. would still have a severe impairment or combination of 11 impairments based on his remaining limitations; however, L.S. would be no more than moderately 12 limited in his mental functioning, and therefore would not have an impairment or combination of 13 impairments that meets or medically equals the severity of one of the impairments listed in the 14 Commissioner’s regulations. AR 20-22. Additionally, the ALJ determined that if L.S. stopped the 15 substance use, then during the relevant period, he “had the residual functional capacity [“RFC”] to 16 perform a full range of work at all exertional levels,” with the following non-exertional 17 limitations:

18 [L.S. is] limited to simple and routine, repetitive tasks, and making simple work related decisions; occasionally interact with coworkers, 19 but not in a tandem team or group setting; and no interaction with the public except only superficial interaction such as greeting 20 customers or directing a customer to the location of the nearest restroom. He would [be] absent once per month. 21 22 AR 22-23. The ALJ found that L.S. is unable to perform any past relevant work, has a marginal 23 education, and that transferability of job skills is not material to the determination of disability. 24 AR 25. If L.S. were to stop the substance use, and based on his age, education, work experience, 25 and RFC, the ALJ determined that he can perform other jobs that exist in significant numbers in 26 the national economy—namely, garment bagger, sorter, and rack loader. AR 26. The ALJ 27 concluded that L.S. “would not be disabled if he stopped the substance use,” that L.S.’s “substance 1 not been disabled within the meaning of the Act at any time from the April 13, 2021 alleged onset 2 date through the June 13, 2022 date of the ALJ’s decision.

3 The Appeals Council denied L.S.’s request for review of the ALJ’s decision. AR 1-6. L.S. 4 then filed the present action seeking judicial review of the decision denying his application for 5 benefits. 6 II. LEGAL STANDARD 7 A. Standard of Review 8 Pursuant to

(g), this Court has the authority to review the Commissioner’s 9 decision to deny benefits. The Commissioner’s decision will be disturbed only if it is not 10 supported by substantial evidence or if it is based upon the application of improper legal 11 standards. Ahearn v. Saul,

, 1115 (9th Cir. 2021) (citation omitted); Morgan v. 12 Comm’r of Soc. Sec. Admin.,

(9th Cir. 1999) (citation omitted). In this context, 13 the term “substantial evidence” means “more than a mere scintilla” but “less than a 14 preponderance” and is “such relevant evidence as a reasonable mind might accept as adequate to 15 support a conclusion.” Ahearn, 988 F.3d at 1115 (quoting Biestek v. Berryhill,

, 103 16 (2019) and Molina v. Astrue,

(9th Cir. 2012), superseded by regulation on 17 other grounds); see also Morgan,

(citation omitted). When determining whether 18 substantial evidence exists to support the Commissioner’s decision, the Court examines the 19 administrative record as a whole, considering adverse as well as supporting evidence. Ahearn, 20 988 F.3d at 1115 (citation omitted); Hammock v. Bowen,

(9th Cir. 1989). 21 Where evidence exists to support more than one rational interpretation, the Court must defer to the 22 decision of the Commissioner. Ahearn, 988 F.3d at 1115-16 (citation omitted); Morgan,

at 599 (citation omitted). 24 B. Drug Addiction and Alcoholism (“DAA”) Analysis 25 “An individual shall not be considered to be disabled . . . if alcoholism or drug addiction 26 would . . . be a contributing factor material to the Commissioner’s determination that the 27 individual is disabled.”

(d)(2)(C). In cases involving DAA, the ALJ is required to 1

, at *6 (Feb. 20, 2013); Bustamante v. Massanari,

(9th Cir. 2 2001). At the first stage of the DAA analysis, the ALJ conducts the five-step sequential analysis 3 and determines whether the claimant is disabled based on all of the claimant’s medically 4 determinable impairments, including DAA. Bustamante,

; SSR 13-2p,

621536, at *6. If the ALJ determines that the claimant’s impairments, including DAA, are not 6 disabling, then the inquiry ends, and the ALJ need not determine whether DAA is material to the 7 determination of disability. Bustamante,

; SSR 13-2p,

, at *5-6. 8 If the ALJ finds that the claimant is disabled, and there is medical evidence of DAA, then the ALJ 9 proceeds to the second stage of the DAA analysis, and applies the five-step sequential inquiry a 10 second time to determine whether DAA is “material” to the disability determination. 11 “‘Materiality’ is the degree to which an individual would still be found disabled if they stopped 12 using drugs or alcohol.” Jessie L. v. Kijakazi, No. 20-cv-09305-DMR,

, at *2 13 (N.D. Cal. June 21, 2022);

(b). 14 At the second stage of the DAA analysis, implementing regulations require an ALJ to 15 “determin[e] which of the claimant’s disabling limitations would remain if the claimant stopped 16 using drugs or alcohol.” Parra v. Astrue,

(9th Cir. 2007); see also 20 C.F.R. 17 § 416.935(b)(1) (“The key factor we will examine in determining whether drug addiction or 18 alcoholism is a contributing factor material to the determination of disability is whether we would 19 still find you disabled if you stopped using drugs or alcohol.”); SSR 13-2p,

, at 20 *4 (same). “If the remaining limitations would not be disabling, then the claimant’s substance 21 abuse is material and benefits must be denied.” Parra,

. However, “[i]f the 22 remaining limitations would still be disabling, then the claimant’s drug addiction or alcoholism is 23 not a contributing factor material to his disability.” Id.; see also SSR 13-2p,

, at 24 *9 (“We will find that DAA is not material to the determination of disability and allow the claim if 25 the record is fully developed and the evidence does not establish that the claimant’s co-occurring 26 mental disorder(s) would improve to the point of nondisability in the absence of DAA.”). 27 “[W]hen evidence exists of a claimant’s drug or alcohol abuse, the claimant bears the 1 Parra,

; see also

. “All adjudicators must provide sufficient 2 information in their determination or decision that explains the rationale supporting their 3 determination of the materiality of DAA so that a subsequent reviewer considering all of the 4 evidence in the case record is able to understand the basis for the materiality finding and the 5 determination of whether the claimant is disabled.” SSR 13-2p,

, at *2. 6 III. DISCUSSION 7 At the first stage of the DAA analysis, the ALJ found that L.S.’s impairments, including 8 DAA, met the Commissioner’s listing-level criteria for disability. AR 18. The chief point of 9 contention in this appeal is whether, at the second stage of the DAA analysis, the ALJ erred in 10 concluding that if L.S. stopped using drugs and alcohol, his remaining impairments would not be 11 disabling and that DAA therefore is material to the disability determination. AR 26. L.S. argues 12 that the ALJ relied on cherry-picked evidence in concluding that, other than L.S.’s suicide 13 attempts in 2021 and 2022, “the record indicates minimal treatment with no evidence indicating 14 that his abnormal signs and symptoms resulted in more than moderate limitations.” See AR 25. 15 L.S. argues that the ALJ erred in several additional respects including that the ALJ (1) failed to 16 properly develop the record, (2) did not properly evaluate the prior administrative medical findings 17 and a medical source statement, (3) improperly discredited L.S.’s statements regarding his 18 symptoms, and (4) did not properly assess L.S.’s RFC. 19 A. Development of the Record 20 L.S. argues that the ALJ failed to fully develop the record “by not doing an adequate 21 inquiry into the nature and extent of [L.S.]’s substance use” at the administrative hearing. Dkt. 22 No. 12 at ECF 9. L.S. argues that the ALJ’s allegedly inadequate inquiry is notable because “there 23 are clear periods in the record of sobriety.”

An ALJ’s duty to develop the record “is triggered 24 only when there is ambiguous evidence or when the record is inadequate to allow for proper 25 evaluation of the evidence.” Mayes v. Massanari,

(9th Cir. 2001); 26 Tonapetyan v. Halter,

(9th Cir. 2001). L.S. has not persuasively articulated 27 or identified any ambiguity or inadequacy in the record that would have triggered the ALJ’s duty 1 functioning during both periods of sobriety and at times when the evidence indicated that he was 2 using substances. See AR 19-20, 23-25. The Court understands L.S. to take issue, not with any 3 purported ambiguity or inadequacy of the record, but rather with the ALJ’s allegedly inadequate 4 analysis of the record evidence. Those arguments are addressed below. 5 On the issue of whether the ALJ failed to develop the record, L.S.’s summary judgment 6 motion is denied and the Commissioner’s cross-motion is granted. 7 B. DAA Materiality Finding 8 “Many people with DAA have co-occurring mental disorders; that is, a mental disorder(s) 9 diagnosed by an acceptable medical source in addition to their DAA.” SSR 13-2p,

621536, at *9. In such cases, a finding that DAA is material must be supported by “evidence in 11 the case record that establishes that a claimant with a co-occurring mental disorder(s) would not be 12 disabled in the absence of DAA.”

Social Security Ruling 13-2p states that there is no known 13 “research data that . . . can [be] use[d] to predict reliably that any given claimant’s co-occurring 14 mental disorder would improve, or the extent to which it would improve, if the claimant were to 15 stop using drugs or alcohol.”

Additionally, in considering periods of abstinence, there is no 16 “exact guidance on the length and number of periods of abstinence to demonstrate whether DAA 17 is material in every case.”

. However, the period of abstinence should be “long enough 18 to allow the acute effects of drug or alcohol use to abate.”

“In some cases, the acute and toxic 19 effects of substance use or abuse may subside in a matter of weeks, while in others it may take 20 months or even longer to subside.”

For some claimants, materiality may be determined “based 21 on evidence from a single, continuous period of abstinence,” while for others, more than one 22 period may need to be considered.

“Especially in cases involving co-occurring mental 23 disorders, the documentation of a period of abstinence should provide information about what, if 24 any, medical findings and impairment-related limitations remained after the acute effects of drug 25 and alcohol use abated.”

“Adjudicators may draw inferences from such information based on 26 the length of the period(s), how recently the period(s) occurred, and whether the severity of the co- 27 occurring impairment(s) increased after the period(s) of abstinence ended.”

1 cherry-picked evidence—i.e., excluding L.S.’s suicide attempts—in concluding that L.S. has no 2 more than moderate limitations in his mental functioning. See Dkt. No. 12 at ECF 12. The 3 Commissioner argues that at the second stage of the DAA analysis, the ALJ properly excluded 4 consideration of L.S.’s suicide attempts because records indicated that L.S. had used 5 methamphetamines and/or consumed alcohol on both occasions. See Dkt. No. 16 at ECF 18; see 6 also, e.g., AR 544, 559, 566, 569, 624, 651. 7 In assessing the materiality of L.S.’s DAA, the ALJ reviewed evidence from periods when 8 L.S. was incarcerated (during which L.S. presumably was abstinent), as well as periods when L.S. 9 was not in custody. The ALJ compared those periods to the records encompassing L.S.’s two 10 suicide attempts, which occurred while he apparently was on parole or probation. In particular, 11 the ALJ focused on the period from around May 2019 to August 2020 when L.S. was not in 12 custody; L.S.’s period of incarceration from August 2020 to around June 2021; and the records 13 pertaining to L.S.’s suicide attempts in December 2021 and January 2022, which occurred while 14 L.S. was not in custody. See AR 23-25. 15 1. 2019-2020 Parole 16 With respect to the period from May 2019 to around August 2020, when L.S. was on 17 parole, records indicate that although he had been on medication (e.g., Vistaril, Remeron, and 18 Buspar) while incarcerated, L.S. stopped taking his medication upon his release in around mid- 19 May 2019, did not plan to continue with his medication, and did not continue with his medication, 20 even after receiving a prescription. See AR 479, 480, 482, 484, 486, 487. Records also document 21 that during this period, L.S. did not attend a number of mental health appointments at the Parole 22 Outpatient Clinic (even though attendance was a condition of his parole) and did not return several 23 phone calls from mental health providers at the clinic. See AR 478, 479, 480, 483, 484. With 24 respect to the appointments that L.S. did attend, a May 22, 2019 progress note (also documented 25 in a June 7, 2019 report) states that L.S. had a restricted affect, “was unable to interpret two of . . . 26 three proverbs,” and was only “able to remember 2 out of 3 object[]s” in 12 minutes. See AR 486, 27 487. The ALJ observed that L.S. had an “otherwise normal examination despite not being on his 1 about a week), reported that L.S. was alert and “well oriented,” with adequate hygiene and 2 grooming; appropriate eye contact; clear, coherent speech; linear, goal directed thoughts; sleep 3 “within normal limits even without medication”; and no suicidal thoughts or plan. AR 486. 4 The ALJ correctly noted a lack of evidence indicating that L.S. sought treatment for any of 5 his conditions until March 2020 when L.S. dropped in at the clinic and stated that he was 6 “probably depressed” and wanted to get back on his medication. AR 23, 484. L.S. was scheduled 7 for a telemedicine appointment to get treatment started. AR 484. However, records indicate that 8 L.S. did not answer his phone and did not return calls from a clinic mental health provider. 9 AR 483. By the next treatment record, dated May 1, 2020 (when L.S. had been on parole for 10 nearly one year), L.S. reported “feelings of paranoia, and feeling persecuted and followed,” low 11 energy, interrupted sleep, and low appetite. AR 481. The treating provider stated that L.S. spent 12 much of the time asking for codeine or Xanax.

While L.S.’s mental status examination 13 revealed no suicidal intent or plan, the treatment note documented impaired concentration, 14 “dysphoric but not suicidal” mood, high anxiety, flat affect, impaired insight, poor judgment, and 15 indicated that L.S. appeared to be paranoid or responding to internal stimuli. AR 481-482. L.S. 16 was diagnosed with schizoaffective disorder. He was given a prescription for Vistaril, Buspar, and 17 Remeron, and was also started on Zyprexa/olanzapine. AR 481-482. 18 L.S.’s next treatment note dated May 13, 2020 indicates that he had not picked up his 19 medication because “he forgot to which pharmacy it was sent” and reported an ongoing problem 20 of staying by himself to avoid conflicts or disappointment, including conflicts with his friends and 21 family. AR 480. The treatment note otherwise reports that L.S. was “doing well,” had a euthymic 22 mood, and was “open and willing to talk about the issues that are problematic for him.”

23 The last treatment note in this portion of the record, dated June 10, 2020, states that L.S. 24 still had not picked up his medication because he “forgot which pharmacy” and was “not sure if he 25 has insurance coverage.” AR 479. While the ALJ correctly observes that the treatment note 26 shows a euthymic mood and does not document the same signs or symptoms recorded in the May 27 1, 2020 note, the June 2020 note also states that L.S. “was less talkative today” and “not willing to 1 for housing. AR 24, 479. 2 There is evidence that L.S. worked for several months from September or October 2019 3 through January 2020. See AR 46-47, 230, 256. However, the ALJ incorrectly states that L.S. 4 reported that “he was still working” at the time of the June 10, 2020 treatment note. AR 24. As 5 discussed above, that treatment note states that L.S. reported he was not working. AR 479. 6 Subsequent records indicate that L.S. was not abstinent during this period. Following his 7 arrest and incarceration in August 2020, an August 25, 2020 treatment record documents L.S.’s 8 report that while he “was not on any psychiatric medications currently,” he had “us[ed] stimulants 9 for the past year daily,” as well as cannabis (although L.S. “denie[d] using it frequently for the 10 past year when he [was] getting into the stimulants.”). AR 518. 11 2. 2020-2021 Incarceration 12 Records from L.S.’s period of incarceration from August 2020 to around June 2021, when 13 L.S. presumably was abstinent, also document missed mental health appointments (including 14 instances where L.S. reportedly refused to show up when called for his appointment). See, e.g., 15 AR 493, 496, 503, 505, 509, 514. There is also evidence indicating that L.S. did some work while 16 in custody in the prison/jail kitchen, until he lost that job due to an alleged threat. See AR 24, 508. 17 While he reported not being on medication in August 2020, subsequent records indicate that by 18 September 22, 2020, L.S. was being treated with psychiatric medication, that he was generally 19 compliant with his medications throughout his incarceration, and that he reported a decrease in 20 some symptoms with medication. See AR 494, 496, 500, 502, 508, 514, 517, 523, 525-526, 527- 21 528. For example, an August 25, 2020 mental status exam by Dr. Yang documented that L.S. was 22 “distracted and interactive with other inmates and occasionally laughing when making jokes to 23 [Dr. Yang].” AR 518. Dr. Yang noted that L.S. reported to “have occasional anxiety and 24 depression” and that L.S.’s affect was “not entirely congruent to reported mood.”

L.S. 25 endorsed “vague auditory hallucinations.”

As noted above, he also reported daily use of 26 stimulants (stating, “they calm me down”) and less frequent use of cannabis in the past year.

27 Dr. Yang assessed unspecified depressive disorder (rule out substance induced mood disorder, rule 1 psychosis related to his mood); and severe alcohol, stimulant, and cannabis use disorders.

L.S. 2 was prescribed Remeron/mirtazapine and Buspar.

3 A September 17, 2020 mental status examination conducted about one month after L.S. 4 was incarcerated, noted a depressed and anxious mood, as well as anxious affect, with L.S. 5 reporting “chronic thoughts/feelings of hopelessness and helplessness” and “non-command 6 [auditory hallucinations] that [L.S.] described as chatter in [h]is head.” AR 520. The September 7 17, 2020 report noted that L.S.’s hallucinations were “[p]ossibly drug-induced as [he] reported 8 chronic amphet[amine] [and] [alcohol] abuse.” AR 520. L.S.’s diagnoses included unspecified 9 major depressive disorder; unspecified anxiety disorder; severe amphetamine-type substance use 10 disorder; severe alcohol use disorder; rule out unspecified schizophrenia spectrum and other 11 psychotic disorder; and rule out amphetamine (or other stimulant)-induced depressive disorder. 12 AR 521. A September 22, 2020 record indicates that L.S. was taking Buspar and mirtazapine, 13 with 86%-100% compliance. AR 523. By September 29, 2020, L.S.’s medication compliance 14 was noted to be 100%. AR 526. An October 12, 2020 record shows that he was observed to have 15 an anxious mood and constricted affect. AR 528. He reported that his medications were working, 16 that he felt they controlled his mood and irritability, and that he experienced less frequent mood 17 swings since starting his medication, but he still felt overwhelming anxiety; and while he did not 18 feel hopeless or suicidal, he still experienced moments of sadness.

L.S. was assessed with 19 adjustment disorder with mixed emotions and mood, and his dosage of Buspar and Remeron were 20 increased to target residual anxiety.

21 A January 26, 2021 record documented L.S.’s anxious mood and constricted affect, and 22 noted that L.S. denied suicidal intent and did not appear to be internally preoccupied, but reported 23 that his anxiety was “7/10.” AR 502. L.S.’s prescription for Buspar and Remeron were 24 continued, and he was also started on Lexapro.

According to a March 15, 2021 treatment 25 note, L.S. reported that his anxiety was still high and that he was having sleep issues. He was 26 observed to have an anxious mood and constricted affect and appeared to be “med seeking.” His 27 diagnosis was updated to adjustment disorder with depression and anxiety. His dosage of Buspar 1 indicate that L.S. refused to appear for a mental health treatment appointment in April 2021 and 2 that his medication was stopped due to his refusals to appear for treatment. See AR 509-512, 514. 3 The last treatment note in this record, dated June 1, 2021, states that L.S. presented with an 4 “alright” mood and euthymic affect, that he denied any suicidal intent, and asked to continue 5 medications for anxiety and sleep. AR 514. His dosage of Buspar and Remeron were increased. 6

7 Records suggest that L.S. was released from custody sometime in the summer of 2021. 8 See AR 514 (June 1, 2021 record referencing “Release meds” and “Discharged planning housing, 9 Medical and mental health services”); see also AR 508 (March 15, 2021 record noting that L.S. 10 was “[l]ooking forward to getting out in August”). There are no further records until L.S.’s 11 hospitalization following his suicide attempts in December 2021 and January 2022. 12 3. December 2021 and On 13 Records indicate that on December 8, 2021, L.S. was brought to the emergency department 14 after attempting suicide by hanging at a motel. L.S. was noted to be “uncooperative but alert and 15 oriented, acting bizarre” and “paranoid,” and that he refused treatment and anti-anxiety 16 medication. Toxicology results show that L.S. was positive for methamphetamine and opiates. 17 AR 623, 629, 634, 639. Records indicate that he also reported drinking alcohol the day before the 18 suicide attempt. See AR 630. On December 9, 2021, LS was placed on a 51506 hold at the John 19 George Psychiatric Hospital, where he was observed to be disheveled, with a depressed and 20 irritable mood; inappropriate affect that increased in intensity; psychomotor retardation; pressured 21 speech; concrete and tangential thought process; abnormal thought content with delusions, 22 hallucinations, and suicidal ideation; limited insight; and impaired judgment due to psychosis. He 23 was discharged on December 21, 2021, with a prescription for olanzapine and diagnoses including 24 schizophrenia, depressive disorder, and amphetamine induced disorder. AR 668, 669, 674, 678. 25 On January 4, 2022, L.S. presented in an altered mental state at the emergency department 26 27 1 after another suicide attempt in which he was found unresponsive at home.7 It was later 2 determined that L.S. overdosed on olanzapine. Toxicology results showed that L.S. was positive 3 for amphetamines and alcohol. He was observed to be “[i]nitially guarded and disengaged, 4 although cooperative to answering some questions.” He had impoverished speech and depressed 5 mood, and his affect was noted as “[e]ven, restricted, and flat,” with a “detached and indifferent” 6 quality. His thought process was linear, and his insight and judgment were impaired. He was 7 placed on a 5150 hold, monitored for over 54 hours, and then transferred to the John George 8 Psychiatric Hospital, where he was observed to be disheveled, restless and fidgety, with an 9 anxious and irritable mood, an affect that was increased in intensity, and limited insight and 10 judgment. Additionally, reports note that L.S. denied using any substances or alcohol, even 11 though, as noted above, test results showed he was positive for both methamphetamines and 12 alcohol. He also minimized the seriousness of his overdose. After a few days, L.S. was 13 discharged with diagnoses of schizophrenia, depressive disorder, and well as alcohol-, cannabis-, 14 and methamphetamine-related disorders. AR 535-542, 544, 554-555, 650, 652, 653, 656. 15 Following L.S.’s January 2022 hospitalization, there is no indication that he received any 16 follow-up mental health treatment. However, on April 11, 2022, Laura Jean Catlin, Psy.D. 17 conducted a psychological disability evaluation. See AR 680-692. In her mental status 18 examination, Dr. Catlin documented L.S.’s depressed and anxious mood; goal-directed and logical 19 thought process; and clear, coherent, and spontaneous speech. AR 683. L.S. reported some 20 suicidal thoughts, without plans or intent; admitted to auditory hallucinations; and stated that he 21 felt the television was talking about him. Dr. Catlin noted that L.S.’s “thought content evidenced 22 some perseveration on negative thinking and paranoia” and that “[t]here were signs of a formal 23 thought disorder.”

She assessed L.S. with limited insight and judgment.

She also 24 documented L.S.’s reports that he wakes one to two hours early and cannot fall back asleep; lacks 25 sufficient energy “to do very much”; has more difficulty concentrating than he used to; and has 26 less appetite than usual. AR 683-684. She ultimately assessed L.S. with overall “marked” 27 1 limitations in all areas of mental functioning. AR 689-690. 2 At the April 22, 2022 administrative hearing, L.S. testified that he was not still using any 3 drugs or drinking alcohol, and that the last time he had done so was in December 2021 or January 4 2022. AR 51. Additionally, L.S. testified that he currently was taking medications for depression 5 and anxiety, but that he ran out of his medications sometime in early 2022. AR 52. 6 4. Analysis 7 In reviewing these records, the ALJ concluded that L.S. “primarily exhibited abnormal 8 mood and affect and occasional episodes of hallucinations and/or paranoia with or without 9 prescribed treatment,” but that “[t]he record does not indicate that these abnormalities resulted in 10 more than moderate severity or limitation apart f[rom] the two occasions [i.e., L.S.’s suicide 11 attempts] where [L.S.] was actively abusing substances.” AR 25 (emphasis added). The ALJ thus 12 singled out L.S.’s suicide attempts as “the only periods [L.S.] did exhibit marked, arguably 13 extreme limitations” while “actively abusing substances.” AR 25. He contrasted those suicide 14 attempts with evidence from L.S.’s 2019-2020 parole and 2021-2020 incarceration periods as to 15 which the ALJ found that “the record indicates minimal treatment with no evidence indicating that 16 [L.S.’s] abnormal signs and symptoms resulted in more than moderate limitations.”

The ALJ 17 further stated that L.S.’s “lack of treatment, noncompliance with medication, and his work 18 activities suggest that his impairments, although moderate in severity, would not prevent him from 19 performing basic work activities within the residual functional capacity assessed above.”

L.S. 20 argues that the ALJ erred in excluding evidence of his suicide attempts in determining that the 21 record supports no more than moderate limitations in his mental functioning. Dkt. No. 12 at ECF 22 12. The Commissioner argues that the ALJ properly evaluated L.S.’s ability to function “both 23 during periods of sobriety and when evidence showed he was abusing substances.” Dkt. No. 16 at 24 ECF 18. The Court agrees with L.S. 25 The ALJ’s decision to compare L.S.’s suicide attempts with his 2019-2020 parole and his 26 2020-2021 incarceration periods appears to be based on the premise that L.S. was using 27 substances only in the period around his suicide attempts. However, as discussed above, records 1 use of stimulants (stating, “they calm me down”) and less frequent use of cannabis during that 2 period. See AR 518. The Commissioner appears to contend that when compared to other points 3 in time, L.S.’s suicide attempts are the only periods when L.S. was “clearly abusing substances.” 4 See Dkt. No. 16 at ECF 11 n.3 (emphasis added). However, the record is replete with 5 documentation of L.S. alcohol consumption since age 12 and his use of 6 cocaine/methamphetamines beginning in 2018. See, e.g., AR 58, 357, 360, 361, 404, 433, 456, 7 457, 518, 528. Records documenting L.S.’s reported substance use during his 2019-2020 parole 8 call into question whether that period is an appropriate basis for comparison in the context of a 9 DAA materiality analysis. To the extent the ALJ cited L.S.’s 2019-2020 parole records as 10 evidence of his ability to function “to the point of nondisability in the absence of DAA,” SSR 13- 11 2p, at *9 (emphasis added), the ALJ’s analysis is not supported by substantial evidence. 12 While L.S. presumably was abstinent during his 2020-2021 incarceration and appeared to 13 experience some improvement in his mental health symptoms during that period, Social Security 14 Ruling 13-2p acknowledges that “[i]mprovement in a co-occurring mental disorder in a highly 15 structured treatment setting, such as a hospital or substance abuse rehabilitation center, may be due 16 at least in part to treatment for the co-occurring mental disorder, not (or not entirely) the cessation 17 of substance use.” SSR 13-2p,

, at *13. Accordingly, the DAA materiality 18 determination requires “evidence from outside of such highly structured treatment settings 19 demonstrating that the claimant’s co-occurring mental disorder(s) has improved, or would 20 improve, with abstinence.”

(emphasis added). To the extent the ALJ cited to L.S.’s 2020-2021 21 incarceration records as evidence of improvement, the ALJ does not distinguish the effects of 22 L.S.’s medication compliance and placement in a highly structured incarceration setting from 23 L.S.’s presumed abstinence during this period. This Court agrees with others in this district that 24 conclude that “materiality is not shown where the evidence does not separate the effects of the 25 structured environment and the purported sobriety.” Jessie L.,

, at *17 (citing 26 cases). 27 There remains the period from around January 2022 through the date of the ALJ’s June 13, 1 also ran out of his psychiatric medications at around this time. AR 51. As discussed above, there 2 is no indication that he had any follow-up mental health treatment after his January 2022 3 hospitalization. Nor is there any indication that L.S. was in custody or other highly structured 4 environment during this period. Evidence of his mental functioning at around this time includes 5 L.S.’s own testimony and Dr. Catlin’s medical source statement. As discussed below, the ALJ did 6 not properly assess this evidence. To the extent the ALJ appeared to discount both L.S.’s 7 testimony and Dr. Catlin’s opinion as inconsistent with L.S.’s behavior around the period of his 8 suicide attempts as compared to his behavior prior to those events, the ALJ’s analysis is not 9 supported by substantial evidence for the reasons discussed above. 10 * * * 11 In sum, because it is not apparent from the record or from the ALJ’s analysis that objective 12 findings from the periods prior to L.S.’s suicide attempts are representative of L.S.’s functioning 13 in the absence of DAA or outside a highly structured environment, the ALJ’s DAA materiality 14 determination is not supported by substantial evidence. 15 C. Prior Administrative Medical Findings and Medical Source Statement 16 L.S. argues that, in assessing his ability to function when not using drugs or alcohol, the 17 ALJ erred in finding the prior administrative medical findings of the state agency consultants 18 “most persuasive,” and the opinion of Dr. Laura Jean Catlin, Psy.D. “less persuasive.” The 19 Commissioner maintains that the ALJ gave valid reasons, supported by substantial evidence, for 20 his assessment of the prior administrative medical findings and Dr. Catlin’s opinion. 21 1. Prior Administrative Medical Findings 22 On July 1, 2021, upon the initial review of L.S.’s SSI application, state agency consultant 23 Howard Leizer, Ph.D. reviewed L.S.’s records, focusing primarily on the period from June 2019 to 24 June 2020 (when L.S. was on parole) and subsequent records from 2020 through June 1, 2021 25 (when L.S. was incarcerated), described above. See AR 69-71. Dr. Leizer found that L.S. had the 26 following medically determinable impairments (in order of priority): depressive, bipolar, and 27 related disorders (primary, severe); substance addiction disorders (secondary, nonsevere); and 1 not meet the criteria for Listing 12.04 for Depressive, Bipolar, and Related Disorders, finding that 2 L.S. had mild limitations in his ability to understand remember, or apply information; mild 3 limitations in his ability to adapt or manage himself; and moderate limitations in in his abilities to 4 interact with others and to concentrate, persist, or maintain pace. AR 72-73. Additionally, Dr. 5 Leizer found L.S.’s statements regarding his symptom-related limitations to be “partially 6 consistent” with the record evidence, noting that the severity of the reported symptoms were not 7 fully supported by objective findings. AR 74. 8 With respect to L.S.’s mental RFC, Dr. Leizer assessed that L.S. had no limitations in his 9 ability to understand and remember; no limitations in his ability to adapt; moderate limitations in 10 concentration, persistence, and pace; and moderate social interaction limitations. AR 75-77. With 11 respect to concentration, persistence, and pace, Dr. Leizer found no significant limitations in 12 L.S.’s ability to carry out very short and simple instructions, carry out detailed instructions, or 13 make simple work-related decisions. Dr. Leizer assessed moderate limitations in L.S.’s ability to 14 maintain attention and concentration for extended periods; perform activities within a schedule, 15 maintain regular attendance, and be punctual within customary tolerances; sustain an ordinary 16 routine without special supervision; and to complete a normal workday and workweek without 17 interruptions from psychologically based symptoms and to perform at a consistent pace without an 18 unreasonable number and length of rest periods. Dr. Leizer explained that L.S. “[c]an maintain 19 [concentration, persistence, and pace] and attendance and adhere to supervisory strictures.” 20 AR 75-76. With respect to social interaction limitations, Dr. Leizer found no significant 21 limitations in L.S.’s ability to ask simple questions or request assistance, and assessed moderate 22 limitations in L.S.’s ability to interact appropriately with the general public; accept instructions 23 and respond appropriately to criticism from supervisors; get along with coworkers or peers 24 without distracting them or exhibiting behavioral extremes; and maintain socially appropriate 25 behavior and adhere to basic standards of neatness and cleanliness. AR 76-77. Dr. Leizer 26 explained that L.S. is able to maintain interpersonal expectations with limited contact. AR 77. 27 The initial disability determination also notes that while “[s]ubstance abuse is documented . . . a 1 On November 19, 2021, on reconsideration of L.S.’s application, and apparently based on 2 review of the same records, Dr. Sergiy Barsukov, Psy.D. affirmed Dr. Leizer’s findings, noting 3 that L.S.’s treatment appeared minimal, with multiple “no shows,” and that records indicated that 4 L.S. was “med seeking” and “wants meds for sleep [and] anxiety [and] reports insomnia, stress[.]” 5 AR 84-86, 91. 6 The prior administrative medical findings were made before L.S.’s attempted suicides in 7 December 2021 and January 2022. See generally AR 534-679. 8 2. Dr. Catlin’s Medical Source Statement 9 On April 11, 2022, Dr. Catlin conducted a psychological disability evaluation of L.S. See 10 AR 680-692. Her subsequent April 16, 2022 report indicates that her evaluation is based on a 11 telephone8 interview of L.S.; a review of L.S.’s 2022 records from the John George Psychiatric 12 Hospital, 2019 records from San Quentin Prison, and 2018 records from Santa Rita Jail; as well as 13 her administration of the Montreal Cognitive Assessment, the Beck Depression Inventory, and the 14 DSM-5 Post-Traumatic Stress Disorder (“PTSD”) Checklist. AR 681. 15 Dr. Catlin stated that L.S. was responsive during the examination and appeared to be a 16 credible historian.

She noted his personal, medical, and legal history. AR 682-683. With 17 respect to L.S.’s history of substance use, Dr. Catlin stated that L.S. “reported he stopped using 18 drugs several years ago and has ‘slowed down’ on his alcohol intake this year and reported he only 19 drinks in moderation.” AR 683. She also noted L.S.’s prior psychiatric hospitalization in 20 December 2021 following his first suicide attempt, as well as his psychiatric hospitalization in 21 January 2022 after his second suicide attempt.

22 Dr. Catlin noted “some difficulty” in L.S.’s activities of daily living, stating that L.S. 23 reported he was able to perform some household chores (i.e., wash dishes, do laundry, and take 24 trash out), go grocery shopping by himself, make simple microwavable meals, and take public 25 transportation. AR 681. However, Dr. Catlin noted that L.S. “no longer participates in 26 pleasurable activities,” “spends a lot of time alone,” “has difficulty concentrating and 27 1 remembering to do important things without reminders,” and “has difficulty with hygiene and 2 basic self-care activities.” AR 681-82. She further stated that L.S. “has difficulty interacting with 3 people because of his depression, which has caused problems maintaining employment and 4 problems with his relationships with friends and family.” AR 681. 5 As discussed above, Dr. Catlin’s mental status examination indicates that L.S.’s response 6 time to questions was within the normal range, and that he “appeared to be engaged in the 7 evaluation and able to sustain his attention,” but she also noted that “these observations are only 8 an approximation,” as her evaluation was conducted by phone. AR 683. Dr. Catlin documented 9 L.S.’s depressed and anxious mood; goal-directed and logical thought process; and clear, coherent, 10 and spontaneous speech.

L.S. reported some suicidal thoughts, without plans or intent; 11 admitted to auditory hallucinations; and stated that he felt the television was talking about him. 12 Dr. Catlin noted that L.S.’s “thought content evidenced some perseveration on negative thinking 13 and paranoia” and that “[t]here were signs of a formal thought disorder.”

She assessed L.S. 14 with limited insight and judgment.

She also documented L.S.’s reports that he wakes one to 15 two hours early and cannot fall back asleep; lacks sufficient energy “to do very much”; has more 16 difficulty concentrating than he used to; and has less appetite than usual. AR 683-684. 17 With respect to L.S.’s cognitive functioning, L.S. scored 12 out of 22 possible points on 18 the Montreal Cognitive Assessment, indicating mild cognitive impairment. AR 684. Dr. Catlin 19 stated that because this test was conducted over the phone, L.S.’s test results are not a definitive 20 diagnosis, “but rather an indication that more testing should be considered.”

L.S. was oriented 21 to the month, day, year, place, and city. AR 685. He was able to recall and repeat three of five 22 words read to him on one memory trial, and four of five words on the second trial.

On a 23 delayed recall subtest, he was able to remember four of the five words previously read to him. 24 AR 685. L.S. was able to tap or clap whenever he heard the letter “A” read in a string of letters, 25 and to repeat two short sentences that were read to him separately. AR 684. However, he was 26 unable to correctly recall and repeat a series of three and five numbers (in forward or reverse 27 order), and was unable to perform within the normal range when asked to count backward from 1 to identify five words that start with the letter “F” in one minute, Dr. Catlin noted that the average 2 is more than ten words.

3 On the Beck Depression Inventory, L.S. scored a 45, indicating “symptoms of extreme 4 depression.” AR 685. She noted that L.S. reported “feeling sad, unhappy, guilty, pessimistic,” “a 5 lack of pleasure in life,” “crying a lot,” feeling “disappointed in himself” and being “self-critical a 6 lot of the time.”

She also documented L.S.’s reports of having “difficulty making decisions,” 7 a lack of interest in things, and a lack of “energy to do the things he knows he should do.”

Dr. 8 Catlin further noted that L.S. “sleeps most of the day but feels fatigued and tired all day too,” 9 “often feels agitated” and “very irritable,” and reported “thoughts of ending his life[,] but would 10 not carry them out.”

11 L.S. scored a 73 on the PTSD Checklist, suggesting that he meets the criteria for PTSD. 12 AR 685. Dr. Catlin reported that L.S.’s profile indicates that he has experienced repeated, 13 disturbing memories, thoughts, or images of a stressful past event; has experienced feelings of 14 reliving the stressful event; avoids thinking or talking about the event and avoids situations that 15 remind him of it; has difficulty falling and staying asleep; feels emotionally numb; has a loss of 16 interest in activities he used to enjoy; is more irritable and sometimes has angry outbursts that he 17 cannot control; and is hypervigilant of his surroundings with an exaggerated startle response.

18 Dr. Catlin listed her diagnostic impressions, including “Major Depressive Disorder, 19 recurrent with psychotic features—Provisional,” “Substance/Medication-Induced Psychotic 20 Disorder—Amphetamine—rule out,” “Alcohol Use Disorder,” and “Stimulant Use Disorder—in 21 partial remission.” AR 686. While noting that L.S.’s history of substance use is a “complicating 22 factor in [his] evaluation,” Dr. Catlin opined that L.S.’s “substance abuse did not contribute to or 23 cause his mental health disorder but rather [is] a consequence of his inability to manage the 24 emotional pain and depression he was experiencing as a child.” AR 687. She explained that “[a] 25 consequence of using substances early in his life was that [L.S.] really never learned how to 26 manage his emotions or manage frustration in a productive or healthy way as an adult,” and 27 “[i]nstead of maturing and learning how to effectively manage emotional discomfort [L.S.] just 1 indication that he is still suffering from severe mental health problems and knows no other way to 2 manage his symptoms.”

She further stated that “because of [L.S.’s] history of 3 methamphetamine use it is difficult to determine if his hallucinations and paranoi[a] are due to his 4 mental health conditions or are a result of his methamphetamine abuse because both disorders can 5 manifest these symptoms.”

6 Dr. Catlin assessed L.S. with mostly “Marked,” as well as some “Mild,” “Moderate,” and 7 “Extreme” limitations in his mental functioning, with an overall assessment of “Marked” 8 limitations in his abilities to understand, remember, and apply information; interact with others; 9 concentrate, persist, or maintain pace; and adapt or manage himself. AR 689-690. She estimated 10 that L.S. would be absent from work four or more days per month and would be off-task more 11 than 30% of an eight-hour workday. AR 690-691. She concluded that “[o]verall, [L.S.] will have 12 great difficulty performing well and consistently in the work place,” noting that “[b]ecause [L.S.] 13 has fewer internal resources to manage stress and mental demands[,] he is vulnerable to 14 decompensation.” AR 688. 15 3. Legal Standard 16 Under the regulations that apply to L.S.’s application, the Commissioner does not give 17 specific evidentiary weight to medical opinions and prior administrative medical findings, 18 including the deference formerly given to the opinions of treating physicians. Instead, the 19 Commissioner evaluates the “persuasiveness” of all medical opinions and prior administrative 20 medical findings in the record based on: (1) supportability; (2) consistency; (3) relationship with 21 the claimant; (4) specialization; and (5) other factors, such as “evidence showing a medical source 22 has familiarity with the other evidence in the claim or an understanding of our disability program’s 23 policies and evidentiary requirements.”

.920c; see also Woods v. Kijakazi, 32

, 787 (9th Cir. 2022) (“For claims subject to the new regulations, the former hierarchy of 25 medical opinions—in which we assign presumptive weight based on the extent of the doctor’s 26 relationship with the claimant—no longer applies.”). The “ALJ’s decision, including the decision 27 to discredit any medical opinion, must simply be supported by substantial evidence.” Woods, 32 1 Supportability and consistency are considered the most important factors, and the ALJ is 2 required to explicitly address them in his or her decision.

.920c(b)(2). 3 “Supportability means the extent to which a medical source supports the medical opinion by 4 explaining the relevant objective medical evidence.” Woods, 32 F.4th at 791-92 (cleaned up; 5 quotations and citation omitted). “The more relevant the objective medical evidence and 6 supporting explanations presented by a medical source are to support his or her medical opinion(s) 7 or prior administrative medical finding(s), the more persuasive the medical opinions or prior 8 administrative medical finding(s) will be.”

.920c(c)(1). “Consistency means the 9 extent to which a medical opinion is consistent with the evidence from other medical sources and 10 nonmedical sources in the claim.” Woods, 32 F.4th at 792 (cleaned up; quotations and citation 11 omitted)). “The more consistent a medical opinion(s) or prior administrative medical finding(s) is 12 with the evidence from other medical sources and nonmedical sources in the claim, the more 13 persuasive the medical opinion(s) or prior administrative medical finding(s) will be.” 20 C.F.R. 14 § 416.920c(c)(2). The ALJ “may, but [is] not required to,” explain how he or she considered the 15 remaining three factors listed in the regulations. Id. § 416.920c(b)(2). 16 4. Analysis 17 At the first stage of the DAA analysis, and taking L.S.’s DAA into account, the ALJ found 18 the prior administrative medical findings “partially persuasive,” noting that those findings were 19 made before L.S.’s December 2021 and January 2022 hospitalizations for his attempted suicides. 20 AR 20. Nevertheless, the ALJ stated that the prior administrative medical findings “at the time 21 they occurred, were supported by the objective medical evidence, . . . which does not indicate any 22 evidence of more than moderate limitation.” Id. The ALJ also found Dr. Catlin’s medical source 23 statement “partially persuasive.” He found her diagnosis of “Stimulant Use Disorder—in partial 24 remission” and her ruling out of “Substance/Medication-Induced Psychotic Disorder- 25 Amphetamine” inconsistent with L.S.’s “two hospitalizations that had just occurred 3 and 4 26 months prior.” AR 20. While he agreed that Dr. Catlin’s assessment of L.S.’s functional 27 limitations were “reasonable” when L.S. “is abusing substances based on the December 2021 and 1 January 202[2]9 records” relating to L.S.’s suicide attempts, the ALJ said that Dr. Catlin’s opinion 2 was “not supported by the record prior to these hospitalizations, which includes no more than 3 moderate severity related to his mental impairments. See id. (citing records from L.S.’s 2019- 4 2020 parole and 2020-2021 incarceration periods). 5 At the second stage of the DAA analysis, when assessing L.S.’s functioning absent 6 substance use, the ALJ found the prior administrative medical findings to be “most persuasive,” 7 stating that those findings “are consistent with and supported by the overall medical evidence of 8 record, outlined above, indicating that with or without medication, the objective findings were 9 relatively normal . . ..” AR 25. The ALJ found Dr. Catlin’s opinion “less persuasive when 10 substance abuse is not involved,” explaining that “[t]he overall medical evidence of record, 11 outlined above, indicates that the only periods [L.S.] did exhibit marked, arguably extreme, 12 limitations was during his 2021 and 2022 hospitalization[s] when [he] attempted suicide after 13 taking street drugs, using alcohol, and/or overdo[s]ing on his prescribed medication.” Id. 14 The Court has reviewed and considered the parties’ arguments regarding the ALJ’s 15 evaluation of the prior administrative medical findings and Dr. Catlin’s opinion. See Dkt. No. 12 16 at ECF 13-15; Dkt. No. 16 at ECF 13-17; Dkt. No. 19 at ECF 6-7. With respect to the ALJ’s 17 decision to discount Dr. Catlin’s diagnoses and/or findings indicating that L.S.’s substance use is 18 in remission, the Court finds no error. Although L.S. maintains that the ALJ misread or 19 misconstrued Dr. Catlin’s report, the record is reasonably susceptible to the ALJ’s interpretation. 20 Nevertheless, the extent to which Dr. Catlin may or may not have believed L.S.’s report that he 21 decreased his alcohol consumption and stopped using drugs years before Dr. Catlin’s evaluation is 22 not dispositive of the matter. As is evident from the ALJ’s decision, the crux of his assessment of 23 the prior administrative medical findings and Dr. Catlin’s opinion rests on the premise that L.S. 24 was using substances only in the period around his suicide attempts. For the reasons discussed 25 above, the ALJ’s analysis on that point is not supported by substantial evidence. His decision to 26 credit the prior administrative medical findings and to discount Dr. Catlin’s opinion on that same 27 1 basis therefore is also not supported by substantial evidence. 2 Accordingly, on this issue L.S.’s summary judgment motion is granted, and the 3 Commissioner’s cross-motion is denied. 4 D. L.S.’s Testimony 5 1. Summary 6 L.S. testified that his depression began in childhood when his parents divorced. AR 53. 7 He stated that he feels depressed “[e]very day” and “want[s] to cry,” does not “like to open up 8 to . . . anyone because [he is] ashamed and embarrassed or what they[’re] going to say,” lacks 9 energy, and lost “motivation and determination to do anything because [of his] paranoia and 10 anxiety.” AR 54. On a scale of one to ten, with ten being the most anxious, L.S. described his 11 anxiety as a “ten,” and stated that he is “scared of everyone and can’t trust anymore.” AR 55-56. 12 He said that his anxiety “makes [him] not want to do anything,” adding that he is “scared to go 13 out” or “to be around people.” AR 56. When asked if he has issues following instructions, L.S. 14 responded that “it’s hard for [him] to pick up when someone’s telling something,” stating that he 15 “need[s] someone to show [him.]” AR 56-57. He testified that he cannot keep up with his 16 appointments. AR 57. He endorsed isolating himself from others, having difficulty finishing 17 things that he starts, being easily distracted, and having problems missing days of work or not 18 showing up on time. AR 58-59. 19 The ALJ found that while L.S.’s medically determinable impairments could reasonably be 20 expected to produce the alleged symptoms,” his “statements concerning the intensity, persistence, 21 and limiting effects of these symptoms are not entirely consistent with the medical evidence and 22 other evidence in the record[.]” AR 23. The ALJ explained that “evidence prior to [L.S.]’s 23 amended onset date indicates that” his mental impairments, while severe, “do not result in more 24 than moderate impairment except when [he] abused substances.” Id. The ALJ also discounted 25 L.S.’s allegations regarding his symptoms based on a lack of treatment or poor treatment 26 compliance and L.S.’s work activities. AR 23-25. In explaining his decision, the ALJ cited to 27 records from L.S.’s 2019-2020 parole and 2020-2021 incarceration periods, as compared to the 1 See AR 22-25. 2 L.S. argues that the ALJ failed to provide clear and convincing reasons, supported by 3 substantial evidence, for discounting his statements regarding the limiting effects of his mental 4 impairments. The Commissioner maintains that the ALJ reasonably discounted L.S.’s allegations 5 of disabling mental impairments. 6 2. Legal Standard 7 An ALJ is not “required to believe every allegation” of impairment. Treichler v. Comm’r 8 of Soc. Sec. Admin.,

(9th Cir. 2014). In assessing a claimant’s subjective 9 testimony, an ALJ conducts a two-step analysis. First, “the claimant must produce objective 10 medical evidence of an underlying impairment or impairments that could reasonably be expected 11 to produce some degree of symptom.” Tommasetti v. Astrue,

(9th Cir. 2008) 12 (cleaned up). If the claimant does so, and there is no affirmative evidence of malingering, then the 13 ALJ can reject the claimant’s testimony as to the severity of the symptoms “only by offering 14 specific, clear and convincing reasons for doing so.”

That is, the ALJ must make an 15 assessment “with findings sufficiently specific to permit the court to conclude that the ALJ did not 16 arbitrarily discredit claimant’s testimony.”

At the second step, “a claimant is not required to 17 show that [his] medically determinable impairment could reasonably be expected to cause the 18 severity of the symptom [he has] alleged, and is not required to produce objective medical 19 evidence of the pain or fatigue itself, or the severity thereof.” Ferguson v. O’Malley,

1194, 1202 (9th Cir. 2024) (cleaned up, emphasis in original); see also Garrison v. Colvin, 759

(9th Cir. 2014). A reviewing court is “constrained to review the reasons the ALJ 22 asserts.” Burrell v. Colvin,

(9th Cir. 2014) (quoting Connett v. Barnhart, 340

(9th Cir. 2003)). “If the ALJ’s finding is supported by substantial evidence, the 24 court ‘may not engage in second-guessing.’” Tommasetti,

(quoting Thomas v. 25 Barnhart,

(9th Cir. 2002)). 26 An ALJ may consider several factors, including (1) ordinary techniques of credibility 27 evaluation; (2) unexplained or inadequately explained failure to seek treatment or to follow a 1 1039. Additionally, an ALJ may also consider the observations of treating and examining 2 physicians and other third parties concerning the nature, onset, duration, and frequency of the 3 claimant’s symptoms; precipitating and aggravating factors; and functional restrictions caused by 4 the symptoms. Smolen v. Chater,

(9th Cir. 1996). 5 3. Analysis 6 To the extent that the ALJ found L.S.’s testimony to be inconsistent with medical evidence 7 of “relatively normal” objective findings from his 2019-2020 parole and 2020-2021 incarceration 8 periods (see AR 25), L.S. argues that the ALJ erred in excluding evidence of his two suicide 9 attempts. For the reasons discussed above, the Court agrees. 10 With respect to evidence regarding L.S.’s work history, there appears to be no dispute that 11 L.S.’s employment record is sporadic, and that he generally held various jobs for only several 12 months at a time. See, e.g., AR 230, 256; see also Dkt. No. 12 at ECF 16; Dkt. No. 16 at ECF 8. 13 In discounting L.S.’s allegations regarding the limiting effects of his symptoms, the ALJ appeared 14 to consider only the fact that L.S. held a string of jobs, however briefly, stating that “relatively 15 normal” objective findings in the medical record “are supported by [L.S.]’s ability to obtain and 16 maintain employment, although for short periods at a time, over the years.” AR 25; see also 17 AR 21 (“As for applying information, based on his work activities, his ability to stay employed for 18 more than a month at a time, suggest that he does not have difficulties in [applying 19 information].”). L.S. argues that the ALJ failed to adequately address his testimony that he “lost a 20 few jobs because . . . of no show, no call” when he overslept or was “being paranoid.” See Dkt. 21 No. 12 at ECF 16 (citing AR 59). While a claimant’s work activity is a factor that an ALJ may 22 consider in determining whether the claimant is disabled, the mere fact that L.S. has a work 23 history is not substantial evidence supporting the ALJ’s decision to discount L.S.’s allegations, 24 without also considering evidence that may explain why he held jobs for only short periods of 25 time. Although the parties dispute whether L.S.’s testimony and other evidence indicate that his 26 work history undermines his allegations regarding the severity of his symptoms (see Dkt. No. 16 27 at ECF 8-9; Dkt. No. 19 at ECF 5-6), there is no indication that the ALJ considered or relied on 1 1138. For the reasons discussed, the Court agrees that the ALJ erred in assessing only the fact that 2 L.S. has a work history without considering other evidence that may further inform the 3 determination whether L.S.’s symptoms are disabling. 4 With respect to treatment, L.S. acknowledges that he has “a limited history of engaging 5 and sustaining mental health treatment.” Dkt. No. 19 at ECF 4. Yet, the Ninth Circuit has 6 “particularly criticized the use of a lack of treatment to reject mental complaints both because 7 mental illness is notoriously underreported and because ‘it is a questionable practice to chastise 8 one with a mental impairment for the exercise of poor judgment in seeking rehabilitation.’” 9 Regennitter v. Comm’r of Soc. Sec. Admin.,

, 1299–300 (9th Cir. 1999) (quoting 10 Nguyen v. Chater,

(9th Cir. 1996)). Additionally, the record as a whole 11 reflects that L.S. has experienced protracted periods of unstable or no housing (see, e.g., AR 359, 12 454, 456, 481, 484, 508, 686) and sporadic employment (see, e.g., AR 46-47, 230, 256), and has 13 been largely reliant upon the criminal justice system for whatever treatment he has received (see 14 generally AR 334-532); see also, e.g., AR 479 (noting that L.S. stated he is “not sure if he has 15 insurance coverage” for medications). It is not clear that the ALJ properly considered these 16 factors in discounting L.S.’s testimony. 17 * * * 18 The ALJ did not provide legally sufficient reasons, supported by substantial evidence, for 19 discounting L.S.’s allegations regarding the limiting effects of his impairments. On this issue, 20 L.S.’s summary judgment motion is granted, and the Commissioner’s cross-motion is denied. 21 E. RFC 22 L.S. argues that the ALJ’s RFC determination is flawed based on all of the arguments 23 addressed above. Additionally, L.S. argues that the ALJ’s RFC assessment is deficient in two 24 other respects: (1) the RFC does not adequately reflect the ALJ’s own findings that L.S. is 25 moderately impaired in his ability to concentrate, persist, or maintain pace; and (2) the ALJ 26 ignored the VE’s testimony that if the claimant identified in either of the ALJ’s hypotheticals were 27 off-task for 20% of the workday, then there is no work in the national economy that such a 1 The “ALJ is responsible for translating and incorporating clinical findings into a succinct 2 RFC.” Rounds v. Comm’r Soc. Sec. Admin.,

(9th Cir. 2015). “In determining 3 a claimant’s RFC, an ALJ must consider all relevant evidence in the record,” not just medical 4 evidence. Robbins v. Social Sec. Admin.,

(9th Cir. 2006). An RFC that does 5 not account for a claimant’s limitations is defective. Valentine v. Comm’r Soc. Sec. Admin., 574

(9th Cir. 2009). 7 L.S. does not adequately articulate or explain why the ALJ’s RFC fails to account for the 8 ALJ’s assessed moderate limitations in concentration, persistence, or pace. See Stubbs-Danielson 9 v. Astrue,

(9th Cir. 2008) (ALJ’s RFC limiting the plaintiff to “simple, 10 routine, repetitive” work can “adequately capture[ ] restrictions related to concentration, 11 persistence, or pace where the assessment is consistent with restrictions identified in the medical 12 testimony.”). However, it is not clear whether the ALJ properly credited the VE’s testimony 13 regarding the availability of work for a claimant who is off-task for a portion of the workday. 14 During the April 29, 2022 hearing, the ALJ asked the VE whether two hypothetical 15 claimants would be able to find work. AR 61, 62. In response to the second hypothetical, the VE 16 identified the garment bagger, sorter, and rack loader jobs the ALJ determined that L.S. could 17 perform with the assessed RFC. See AR 26, 63. L.S.’s counsel then asked the VE whether a 18 claimant in either of the ALJ’s hypotheticals could find work if the claimant was off-task for 20% 19 of the workday. AR 64. The VE testified that all work would be eliminated.

L.S. contends 20 that the ALJ erred in ignoring this portion of the VE’s testimony, when the ALJ credited as 21 “partially persuasive” Dr. Catlin’s opinion that L.S. would be off-task more than 30% of the 22 workday, at least when L.S. “is abusing substances.” See AR 20. For the reasons discussed 23 above, the ALJ’s DAA materiality determination was based on assumptions about L.S.’s 24 substance use that are not supported by substantial evidence. On remand the ALJ must properly 25 evaluate DAA materiality, the medical and other evidence (including the prior administrative 26 medical findings and Dr. Catlin’s opinion), and L.S.’s testimony and allegations. Those 27 assessments may in turn affect the ALJ’s evaluation of L.S.’s RFC, any relevant VE testimony, 1 Oe Ok 2 As the ALJ’s RFC determination is not supported by substantial evidence, on this issue 3 || L.S.’s summary judgment motion is granted, and the Commissioner’s cross-motion is denied. 4 F. DISPOSITION 5 For the reasons discussed above, the Court find that remand is appropriate for further 6 || proceedings. Luther v. Berryhill,

(9th Cir. 2018).

(g). □□ □□ 7 not the Court’s intent to limit the scope of the remand. 8 || IV. CONCLUSION 9 Based on the foregoing, the Court grants in part and denies in part L.S.’s motion for 10 summary judgment, grants in part and denies in part the Commissioner’s cross-motion for 11 summary judgment, and remands this matter for further administrative proceedings consistent with 12 || this order. The Clerk shall enter judgment accordingly and close this file. 5 13 IT IS SO ORDERED. 14 || Dated: February 23, 2025

A 16 Unragiia. HAA E. Ni □□□□□□□ Virginia K. DeMarchi 17 United States Magistrate Judge 18 19 20 21 22 23 24 25 26 27 28