Rodney Liddell v. Nancy A. Berryhill, No. 2:2017cv02703 - Document 22 (C.D. Cal. 2018)

Court Description: MEMORANDUM DECISION AND ORDER REVERSING COMMISSIONER by Magistrate Judge Jean P. Rosenbluth. IT IS ORDERED that judgment be entered REVERSING the Commissioner's decision, GRANTING Plaintiff's request for remand, and REMANDING this action for further proceedings consistent with this memorandum decision. (See Order for details) (bem)
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Rodney Liddell v. Nancy A. Berryhill Doc. 22 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 RODNEY LIDDELL, Plaintiff, 12 13 v. 14 15 NANCY A. BERRYHILL, Acting Commissioner of Social Security, 16 Defendant. ) Case No. CV 17-2703-JPR ) ) ) MEMORANDUM DECISION AND ORDER ) REVERSING COMMISSIONER ) ) ) ) ) ) ) 17 18 I. PROCEEDINGS 19 Plaintiff seeks review of the Commissioner’s final decision 20 denying his application for Social Security disability insurance 21 benefits (“DIB”). 22 the undersigned under 28 U.S.C. § 636(c). 23 the Court on the parties’ Joint Stipulation, filed December 5, 24 2017, which the Court has taken under submission without oral 25 argument. 26 decision is reversed and this action is remanded for further 27 proceedings. The parties consented to the jurisdiction of The matter is before For the reasons stated below, the Commissioner’s 28 1 1 2 II. BACKGROUND Plaintiff was born in 1951. (Administrative Record (“AR”) 3 90, 101.) 4 worked as a security guard (AR 48-49, 199, 205). 5 He completed 12th grade (AR 89, 199, 310) and last On September 25, 2013, Plaintiff applied for DIB, alleging 6 that he had been disabled since August 15, 2008, because of 7 bipolar disorder, arthralgia, a left-shoulder injury, hepatitis 8 B, dermatitis, hyperlipidemia, and lymphadenopathy.1 9 101-02.) (AR 90, After his application was denied initially and on 10 reconsideration (AR 89, 100, 110, 112), he requested a hearing 11 before an Administrative Law Judge (AR 127-28). 12 held on June 18, 2015, at which Plaintiff, who was represented by 13 counsel, testified, as did a vocational expert. 14 In a written decision issued August 25, 2015, the ALJ found 15 Plaintiff not disabled because his “substance abuse disorder 16 [was] a contributing factor material to the determination of 17 disability.” (AR 20-40.) A hearing was (AR 41-68, 119.) Plaintiff requested review from the 18 19 20 21 22 23 24 25 26 27 28 1 The ALJ denied Plaintiff’s earlier applications for DIB and SSI, which had alleged an onset date of November 10, 2008, on December 13, 2010 (AR 72-87); the decision was apparently not appealed and became final (see AR 20). His current application alleged a new onset date of August 15, 2008 (see AR 90), and his date last insured was September 30, 2013 (see AR 24). Thus, the relevant periods for the ALJ to adjudicate were August 15 to November 10, 2008, and December 13, 2010, through September 30, 2013. The ALJ found that Plaintiff had not demonstrated changed circumstances since that prior decision for either unadjudicated period (AR 24-25) and thus had not rebutted the presumption of nondisability (AR 36). See Lester v. Chater, 81 F.3d 821, 827-28 (9th Cir. 1995) (as amended Apr. 9, 1996) (citing Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988), as holding that certain changed circumstances preclude application of res judicata). Plaintiff challenges the finding only as to the second unadjudicated period. (See generally J. Stip.) 2 1 Appeals Council (AR 15), and on February 14, 2017, it denied 2 review (AR 1-6). 3 III. STANDARD OF REVIEW 4 This action followed. Under 42 U.S.C. § 405(g), a district court may review the 5 Commissioner’s decision to deny benefits. 6 decision should be upheld if they are free of legal error and 7 supported by substantial evidence based on the record as a whole. 8 See id.; Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra 9 v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). The ALJ’s findings and Substantial 10 evidence means such evidence as a reasonable person might accept 11 as adequate to support a conclusion. 12 401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 13 It is more than a scintilla but less than a preponderance. 14 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 15 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). 16 substantial evidence supports a finding, the reviewing court 17 “must review the administrative record as a whole, weighing both 18 the evidence that supports and the evidence that detracts from 19 the Commissioner’s conclusion.” 20 720 (9th Cir. 1998). 21 either affirming or reversing,” the reviewing court “may not 22 substitute its judgment” for the Commissioner’s. 23 IV. Richardson, 402 U.S. at To determine whether Reddick v. Chater, 157 F.3d 715, “If the evidence can reasonably support Id. at 720-21. THE EVALUATION OF DISABILITY 24 People are “disabled” for purposes of receiving Social 25 Security benefits if they are unable to engage in any substantial 26 gainful activity owing to a physical or mental impairment that is 27 expected to result in death or has lasted, or is expected to 28 last, for a continuous period of at least 12 months. 3 42 U.S.C. 1 § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 2 1992). 3 A. The Five-Step Evaluation Process 4 The ALJ follows a five-step sequential evaluation process to 5 assess whether a claimant is disabled. 6 § 404.1520(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th 7 Cir. 1995) (as amended Apr. 9, 1996). 8 Commissioner must determine whether the claimant is currently 9 engaged in substantial gainful activity; if so, the claimant is 10 20 C.F.R. In the first step, the not disabled and the claim must be denied. § 404.1520(a)(4)(i). 11 If the claimant is not engaged in substantial gainful 12 activity, the second step requires the Commissioner to determine 13 whether the claimant has a “severe” impairment or combination of 14 impairments significantly limiting his ability to do basic work 15 activities; if not, the claimant is not disabled and his claim 16 must be denied. 17 § 404.1520(a)(4)(ii). If the claimant has a “severe” impairment or combination of 18 impairments, the third step requires the Commissioner to 19 determine whether the impairment or combination of impairments 20 meets or equals an impairment in the Listing of Impairments set 21 forth at 20 C.F.R. part 404, subpart P, appendix 1; if so, 22 disability is conclusively presumed. § 404.1520(a)(4)(iii). 23 If the claimant’s impairment or combination of impairments 24 does not meet or equal an impairment in the Listing, the fourth 25 step requires the Commissioner to determine whether the claimant 26 27 28 4 1 has sufficient residual functional capacity (“RFC”)2 to perform 2 his past work; if so, he is not disabled and the claim must be 3 denied. 4 proving he is unable to perform past relevant work. 5 F.2d at 1257. 6 case of disability is established. § 404.1520(a)(4)(iv). The claimant has the burden of Drouin, 966 If the claimant meets that burden, a prima facie Id. 7 If that happens or if the claimant has no past relevant 8 work, the Commissioner then bears the burden of establishing that 9 the claimant is not disabled because he can perform other 10 substantial gainful work available in the national economy. 11 § 404.1520(a)(4)(v); Drouin, 966 F.2d at 1257. 12 determination comprises the fifth and final step in the 13 sequential analysis. 14 n.5; Drouin, 966 F.2d at 1257. 15 That § 404.1520(a)(4)(v); Lester, 81 F.3d at 828 A claimant whose alcoholism or drug addiction is a 16 contributing factor material to the determination of disability 17 is not entitled to Social Security disability benefits. 18 U.S.C. § 423(d)(2)(C) (“An individual shall not be considered to 19 be disabled for purposes of this subchapter if alcoholism or drug 20 addiction would . . . be a contributing factor material to the 21 Commissioner’s determination that the individual is disabled.”); 22 see also 20 C.F.R. § 404.1535(a) (same);3 Ball v. Massanari, 254 See 42 23 2 24 25 26 RFC is what a claimant can do despite existing exertional and nonexertional limitations. § 404.1545; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). The Commissioner assesses the claimant’s RFC between steps three and four. Laborin v. Berryhill, 867 F.3d 1151, 1153 (9th Cir. 2017) (citing § 416.920(a)(4)). 27 3 28 Section 404.1535(b)(1) further provides that “[t]he key factor we will examine in determining whether drug addiction or 5 1 F.3d 817, 824 (9th Cir. 2001). When the claimant has a history 2 of drug or alcohol abuse, the five-step sequential evaluation 3 must first be conducted “without separating out the impact of 4 alcoholism or drug addiction.” 5 949, 955 (9th Cir. 2001); see also Parra, 481 F.3d at 747-48. 6 the ALJ finds that the claimant is not disabled under the five- 7 step inquiry, then the claimant is not entitled to benefits and 8 there is no need to proceed with the analysis under § 404.1535. 9 If, however, the ALJ concludes that the claimant is disabled and 10 medical evidence exists of drug addiction or alcoholism, then he 11 must analyze whether the claimant would still be disabled if he 12 stopped using alcohol or drugs. 13 (citing § 404.1535); Parra, 481 F.3d at 747. 14 the burden of proving that his alcoholism or drug addiction is 15 not a contributing factor material to his disability 16 determination. 17 Callahan, 143 F.3d 1240, 1245 (9th Cir. 1998) (remanding to give 18 claimant opportunity to present evidence relevant to issue). Bustamante v. Massanari, 262 F.3d If Bustamante, 262 F.3d at 955 The claimant bears Ball, 254 F.3d at 822-23; see also Sousa v. 19 B. 20 At step one, the ALJ found that Plaintiff had not engaged in 21 substantial gainful activity between August 15, 2008, the alleged 22 disability-onset date, and September 30, 2013, his date last 23 insured. 24 following severe impairments: “polysubstance abuse, alcohol 25 dependency, and mood disorder, not otherwise specified.” The ALJ’s Application of the Five-Step Process (AR 24-25.) At step two, he concluded that he had the (AR 26 27 28 alcoholism is a contributing factor material to the determination of disability is whether we would still find you disabled if you stopped using drugs or alcohol.” 6 1 25.)4 2 impairments, “including the substance use disorders,” met 3 “section 12.09 (with reference to section 12.04)” (AR 28) but 4 that if Plaintiff stopped the substance use he “would not have a 5 severe impairment or combination of impairments” (AR 31). 6 the ALJ found that Plaintiff’s substance use was a contributing 7 factor material to the determination of disability under 8 § 404.1535. 9 disabled at step three, he did not reach steps four or five. At step three, the ALJ determined that Plaintiff’s (AR 35.) Thus, Because the ALJ initially found Plaintiff 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 Plaintiff thus rebutted the presumption of continuing nondisability by presenting a changed circumstance, a severe mood disorder, and the ALJ erred in finding otherwise. (See AR 25-28, 75-78); Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988); Lester, 81 F.3d at 827. The error was likely harmless, however. See Cha Yang v. Comm’r of Soc. Sec. Admin., 488 F. App’x 203, 204 (9th Cir. 2012) (finding that ALJ’s misapplication of Chavez was harmless because ALJ considered plaintiff’s medical evidence in formulating RFC). The ALJ in fact reviewed the medical evidence from after Plaintiff’s December 2010 decision and used that evidence to determine the severity of his impairments (AR 25-28), whether those impairments met a listing “including the substance use disorders” (AR 28-30), and whether any remaining limitations would cause “more than a minimal impact on [his] ability to perform basic work activities” if he stopped his substance abuse (AR 31-35). Accordingly, his stated reliance on the Chavez presumption was harmless. See Cha Yang, 488 F. App’x at 204; Gutierrez v. Colvin, No. CV 15-01584 FFM, 2016 WL 5402941, at *5 (C.D. Cal. Sept. 26, 2016) (finding that Plaintiff established changed circumstances and that ALJ’s stated application of “continuing non-disability theory pursuant to Chavez” was harmless error because “ALJ went on to review and assess plaintiff’s” medical records from after prior ALJ decision); McGlothen v. Colvin, No. 2:15-cv-204-GJS, 2015 WL 5706186, at *3 (C.D. Cal. Sept. 29, 2015) (finding that ALJ’s “invocation of res judicata” was harmless error because “ALJ proceeded with a review of the medical evidence — a review that approximated the traditional five-step approach”). 7 1 2 V. DISCUSSION Plaintiff argues that the ALJ erred in failing to find 3 changed circumstances overcoming the presumption of continuing 4 nondisability from his prior decision (J. Stip. at 3-7, 9-11), 5 failing to consider the “paragraph C” criteria as to Listing 6 12.04 (id. at 11-14), and rejecting his subjective symptom 7 testimony (id. at 14-17). 8 the third regard, the case is remanded for further proceedings 9 and the Court does not reach Plaintiff’s contention regarding Because the ALJ materially erred in 10 paragraph C. 11 presumption of continuing nondisability was harmless. 12 A. As previously discussed, any error concerning the The ALJ Erred in Discounting Plaintiff’s Subjective 13 Symptoms 14 1. 15 Applicable law An ALJ’s assessment of a claimant’s allegations concerning 16 the severity of his symptoms is entitled to “great weight.” 17 Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989) (as 18 amended); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1985) (as 19 amended Feb. 24, 1986). 20 every allegation of disabling pain, or else disability benefits 21 would be available for the asking, a result plainly contrary to 22 42 U.S.C. § 423(d)(5)(A).’” 23 1112 (9th Cir. 2012) (quoting Fair v. Bowen, 885 F.2d 597, 603 24 (9th Cir. 1989)). 25 26 See “[T]he ALJ is not ‘required to believe Molina v. Astrue, 674 F.3d 1104, In evaluating a claimant’s subjective symptom testimony, the ALJ engages in a two-step analysis. 27 28 8 See Lingenfelter, 504 F.3d 1 at 1035-36; see also SSR 96-7p, 1996 WL 374186 (July 2, 1996).5 2 “First, the ALJ must determine whether the claimant has presented 3 objective medical evidence of an underlying impairment [that] 4 could reasonably be expected to produce the pain or other 5 symptoms alleged.” 6 objective medical evidence exists, the ALJ may not reject a 7 claimant’s testimony “simply because there is no showing that the 8 impairment can reasonably produce the degree of symptom alleged.” 9 Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996) (emphasis in 10 11 Lingenfelter, 504 F.3d at 1036. If such original). If the claimant meets the first test, the ALJ may discredit 12 the claimant’s subjective symptom testimony only if he makes 13 specific findings that support the conclusion. 14 Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010). 15 affirmative evidence of malingering, the ALJ must provide “clear 16 and convincing” reasons for rejecting the claimant’s testimony. 17 Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (as See Berry v. Absent a finding or 18 5 19 20 21 Social Security Ruling 16-3p, 2016 WL 1119029, effective March 16, 2016, rescinded SSR 96-7p, which provided the framework for assessing the credibility of a claimant’s statements. SSR 16-3p was not in effect at the time of the ALJ’s decision in this case, however, and therefore does not apply. Still, the Ninth Circuit has clarified: 22 23 24 25 26 [SSR 16-3p] makes clear what our precedent already required: that assessments of an individual’s testimony by an ALJ are designed to “evaluate the intensity and persistence of symptoms after [the ALJ] find[s] that the individual has a medically determinable impairment(s) that could reasonably be expected to produce those symptoms,” and not to delve into wide-ranging scrutiny of the claimant’s character and apparent truthfulness. 27 28 Trevizo v. Berryhill, 871 F.3d 664, 678 n.5 (9th Cir. 2017) (as amended) (alterations in original) (quoting SSR 16-3p). 9 1 amended); Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 2 1102 (9th Cir. 2014). 3 consider, among other factors, (1) ordinary techniques of 4 credibility evaluation, such as the claimant’s reputation for 5 lying, prior inconsistent statements, and other testimony by the 6 claimant that appears less than candid; (2) unexplained or 7 inadequately explained failure to seek treatment or to follow a 8 prescribed course of treatment; (3) the claimant’s daily 9 activities; (4) the claimant’s work record; and (5) testimony In assessing credibility, the ALJ may 10 from physicians and third parties. 11 Admin., 807 F.3d 996, 1006 (9th Cir. 2015) (as amended); Thomas 12 v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). 13 finding is supported by substantial evidence in the record, the 14 reviewing court “may not engage in second-guessing.” 15 F.3d at 959. 16 2. Rounds v. Comm’r Soc. Sec. If the ALJ’s Thomas, 278 Relevant background 17 Plaintiff has a history of a variety of mental-health 18 diagnoses, including bipolar disorder, mood disorder, psychosis, 19 personality disorder, and alcohol and cocaine dependence. 20 AR 333-36; see also AR 272-73, 302-03, 306, 508, 514, 532, 585, 21 613, 795.) 22 therapy for those conditions through the U.S. Department of 23 Veterans Affairs. 24 (See He received psychiatric treatment and clinical group (See generally AR 272-352, 395-635, 641-1156.) Plaintiff attended therapy through a VA Addictive Behaviors 25 Clinic as early as June 2013. 26 the clinic, he was required to comply with breathalyzer tests 27 every other week (see AR 55, 348-49) and provide urine samples 28 once a week for toxicology testing (see AR 56, 321, 323-24, 341- (See AR 351.) 10 To participate in 1 42, 349). 2 stress management (see AR 320, 324, 348), co-occurring disorders 3 (see AR 322, 324-25, 328, 331-32, 351), nutrition and health 4 education (see AR 319-21, 323), relapse prevention (see AR 322, 5 346), recovery concepts (see AR 350), and anxiety management (see 6 AR 326, 351-52). 7 treatment. 8 9 He attended group-therapy sessions on topics such as He also received individual psychological (See, e.g., AR 332-39, 347.) In August 2013, Plaintiff was invited to begin a 30-day trial period at the VA Psychosocial Rehabilitation and Recovery 10 Center because the results of his psychological testing showed 11 that he might “benefit from the structure and support available 12 within the PRRC program.” 13 support regarding medication management; psycho[logical] 14 education regarding the nature of his mental health conditions to 15 increase awareness of symptoms and relapse prevention; and 16 increased social support and social skills training with other 17 Veterans.” 18 trial and become an “active member” of the PRRC until January 31, 19 2014, however, after the relevant period. 20 (AR 328.) (AR 327-29.) PRRC offered “additional Plaintiff did not complete his 30-day (AR 508, 535-36.) Plaintiff lived in VA Supportive Housing during the relevant 21 period.6 22 VASH on Aug. 3, 2011).) (See AR 934 (stating that Plaintiff was admitted to The VASH program required regular home 23 24 25 26 27 28 6 VASH serves “chronically homeless” veterans, who often have “severe mental or physical health problems and/or substance use disorders.” See HUD-VASH Eligibility Criteria, U.S. Dep’t of Veterans Affairs, eligibility.asp (last visited May 17, 2018). A “key component” of the program is case-management services that are designed to engage veterans “in needed treatment and other supportive services.” Id. 11 1 visits and check-ins. 2 “discharged from VASH case management into [VASH] aftercare” on 3 September 30, 2014, but “remain[ed] housed” in the VASH community 4 and “continue[d] involvement” in mental-health treatment. 5 330, 934-36.) 6 (See, e.g., AR 330, 408.) He was (AR Plaintiff testified that he “ha[d] a problem relapsing” by 7 drinking alcohol but that he “ha[dn’t] used any drugs” since his 8 prior decision. 9 that he tested “positive for opiates a couple of times in 2013,” 10 he stated that he “was on [pain] medication” at those times, not 11 using illicit drugs. 12 3. (AR 56-57.) When asked about VA records showing (AR 60.) Analysis 13 The ALJ found that Plaintiff’s “statements regarding 14 substance abuse [were] not credible” because he “testified that 15 he ha[d] abstained from alcohol use since the prior adjudicated 16 period” but “ha[d] admitted [in the record] to periods of relapse 17 during the current unadjudicated period.” 18 further found that “the fact that he continue[d] to drink alcohol 19 in spite of his program requirements and personal goals” of 20 complete abstinence “suggest[ed] that [his] assertion that his 21 substance dependence [was] in remission [was] not credible.” 22 (Id.) 23 subjective symptom statements were “entirely unsupported by the 24 record.” 25 (AR 30.) The ALJ Plaintiff argues that those reasons for discounting his (J. Stip. at 15.) He is correct. Inconsistent statements “regarding . . . drinking” are a 26 “clear and convincing reason[]” to reject a plaintiff’s 27 testimony. 28 1999); Thomas, 278 F.3d at 959. Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir. “[L]ack of candor carries over” 12 1 to other relevant issues and “supports [an] ALJ’s negative 2 conclusions about [a plaintiff’s] veracity.” 3 959. 4 cited are not reflected in the record. 5 Plaintiff “testified that he ha[d] abstained from alcohol use 6 since the prior adjudicated period” is inaccurate. 7 At Plaintiff’s hearing, when asked by the ALJ whether he was 8 “still drinking alcohol,” he answered that he had “relapsed a 9 month ago.” Thomas, 278 F.3d at Here, however, the supposed inconsistencies that the ALJ (AR 54.) His finding that (See AR 30.) Although at two points he answered the 10 ALJ’s followup questions about whether he “w[as] drinking” with 11 “[n]ot really” and “[n]o” (AR 55-56), he then clarified that he 12 “ha[d] a problem relapsing” (AR 56) and admitted to relapses in 13 May 2015, January 2015, and May 2014 (AR 54-57). 14 he claim to have completely “abstained from alcohol use” since 15 his prior decision, as stated by the ALJ. 16 elsewhere in his decision the ALJ acknowledged Plaintiff’s candor 17 on this issue, writing that he “testified that he has periodic 18 relapses.” 19 At no time did (See AR 30.) Indeed, (AR 26.) The ALJ further noted that Plaintiff “may also have used 20 drugs, since drug tests were positive for opiate use in January, 21 April and November 2013.” 22 Plaintiff tested positive for opioid use in March and June 2013 23 in addition to the instances cited by the ALJ. 24 Plaintiff testified that those positive findings were 25 attributable to prescribed pain medications (AR 60), and the 26 record supports that assertion for at least two of the positive 27 tests. 28 obstruction causing renal failure. (AR 30; see AR 27.) In fact, (AR 374-76.) But In January 2013, he was hospitalized for a urinary 13 (AR 302-03.) Upon discharge, 1 he was prescribed hydrocodone-acetaminophen7 “as needed for 2 severe pain.” 3 Vicodin8 “for breakthrough [pain]” from a tooth “needing 4 extraction.” 5 prescriptions were refillable or how long Plaintiff’s medical 6 conditions continued and thus whether that could explain the 7 remaining positive tests. 8 least an inference that the positive tests resulted from his 9 legitimate use of prescribed opiate pain-relieving medication, (AR 304-05.) (AR 545.) In November 2013, he was prescribed It is unclear whether those But Plaintiff’s evidence supports at 10 particularly in light of his consistently negative test results 11 for all other drug use.9 12 (See AR 371-77.) Finally, the ALJ found that Plaintiff’s failure to meet his 13 personal goals and the program’s requirements of complete 14 abstinence from alcohol “suggest[ed] that [his] assertion that 15 his substance dependence [was] in remission [was] not credible.” 16 (AR 30 (citing AR 535).) 17 general substance-abuse remission was bolstered by the record. 18 His clinic treatment records from the relevant period regularly 19 noted “how well he [was] compl[y]ing [with] the clinic rules in But Plaintiff’s testimony about his 20 21 22 23 24 25 26 27 28 7 Hydrocodone-acetaminophen is an opioid pain medication used to relieve moderate to severe pain. See HydrocodoneAcetaminophen, WebMD, hydrocodone-acetaminophen-oral/details (last visited May 17, 2018). 8 Vicodin is an opioid pain reliever used to relieve moderate to severe pain. See Vicodin, WebMD, https:// (last visited May 17, 2018). 9 On remand, the ALJ can develop the record to determine the circumstances of the unexplained periods when Plaintiff tested positive for opiates. 14 1 providing a urine sample for testing” (AR 321, 323-24, 341-42, 2 349), and each of his urine toxicology tests from that time were 3 negative for cocaine and cannabis (AR 371-77). 4 alcohol use and goals, the ALJ cites and relies on Plaintiff’s 5 PRRC treatment, but he did not enroll in PRRC or adopt its goals 6 until after the relevant period. 7 trial on January 31, 2014), 620 (reporting in November 2013, 8 before beginning PRRC, that “in the past year” he drank “[f]our 9 or more times a week”).) 10 Regarding his (See AR 535 (completing 30-day And though Plaintiff relapsed at times even after beginning 11 the program and despite “his long-term goal [of] sobriety” (see 12 AR 535), those occurrences more reflect his struggle to get sober 13 than show a “lack of candor” in the information he presented to 14 the ALJ. 15 reliable historian, presenting conflicting information about her 16 drug and alcohol usage”). 17 Plaintiff acknowledged his relapses to his VA care providers. 18 (See, e.g., AR 585 (Jan. 2014: reporting that he “still 19 struggle[d] with periodic alcohol use lapses, most recently 20 drinking 3 beers on Monday of [that] week”), 777 (Feb. 2015: 21 reporting that he had been “‘up and down’ with alcohol use” and 22 “last consumed alcohol on Super Bowl Sunday”)); cf. Guerrera v. 23 Colvin, No. CV-13-01354-TUC-BPV, 2015 WL 875378, at *8-9 (D. 24 Ariz. Mar. 2, 2015) (affirming ALJ’s credibility finding when 25 Plaintiff made contradictory statements, reporting sustained 26 sobriety to his treatment providers but testifying at hearing to 27 marijuana use during same time period); Frazier v. Berryhill, No. 28 2:16-cv-01808 TLN CKD, 2017 WL 6017139, at *8 (E.D. Cal. Dec. 5, Cf. Thomas, 278 F.3d at 959 (plaintiff had not “been a This is particularly so given that 15 1 2017) (holding that plaintiff’s “less than candid statements 2 about her drug use” was “valid reason[] for discounting [her] 3 subjective complaints”). 4 Thus, Plaintiff’s statements about his substance abuse did 5 not present a “dramatic inconsistenc[y]” amounting to a clear and 6 convincing reason to discount them. 7 Comm’r of Soc. Sec. Admin., No. 16-cv-07284-MEJ, 2018 WL 1014610, 8 at *6 (N.D. Cal. Feb. 22, 2018) (holding that plaintiff’s 9 “misstating the date of her last drink by one month [was] not a See Bechelli-Gonzalez v. 10 clear and convincing reason” “[c]ompared to the dramatic 11 inconsistencies at issue in Verduzco,” in which plaintiff’s 12 statements to different sources varied between “drink[ing] an 13 average of 24 bottles of beer a day” and “not abus[ing] alcohol 14 or [being] in remission”). 15 Accordingly, the ALJ failed to provide a clear and 16 convincing reason for finding Plaintiff’s statements regarding 17 substance abuse “not credible.” 18 493; Treichler, 775 F.3d at 1102. See Brown-Hunter, 806 F.3d at 19 B. Remand for Further Proceedings Is Appropriate 20 Plaintiff requests that the Court “credit evidence that was 21 rejected” and order an “immediate award of benefits.” (J. Stip. 22 at 17-18.) 23 must remand . . . for further proceedings.” 24 880 F.3d 1041, 1045 (9th Cir. 2017) (as amended Jan. 25, 2018) 25 (explaining that “a direct award of benefits was intended as a 26 rare and prophylactic exception to the ordinary remand rule”); 27 see also Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000) 28 (as amended). When, as here, an ALJ errs, the Court “ordinarily Leon v. Berryhill, “[T]he decision of whether to remand for further 16 1 proceedings turns upon the likely utility of such proceedings.” 2 Harman, 211 F.3d at 1179; see also Garrison v. Colvin, 759 F.3d 3 995, 1019-20 (9th Cir. 2014). 4 Here, given Plaintiff’s continued alcohol and drug use and 5 the possibility that the ALJ might have been correct that his 6 symptoms would subside sufficiently to render him not disabled if 7 he stopped substance use altogether, remand is warranted. 8 Garrison, 759 F.3d at 1021 (Court has “flexibility to remand for 9 further proceedings when the record as a whole creates serious See 10 doubt as to whether the claimant is, in fact, disabled within the 11 meaning of the Social Security Act”). 12 reconsider his evaluation of Plaintiff’s statements regarding 13 substance abuse. 14 adequate reason for doing so. 15 consider paragraph C of Listing 12.04. 16 appropriate. 17 VI. 18 On remand, the ALJ must If he again discounts them, he can provide an The ALJ may also expressly Thus, remand is See id. at 1020 n.26. CONCLUSION Consistent with the foregoing and under sentence four of 42 19 U.S.C. § 405(g),10 IT IS ORDERED that judgment be entered 20 REVERSING the Commissioner’s decision, GRANTING Plaintiff’s 21 request for remand, and REMANDING this action for further 22 23 24 25 26 27 28 10 That sentence provides: “The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 17 1 proceedings consistent with this memorandum decision. 2 3 4 DATED: May 18, 2018 ______________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18