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MEMORANDUM

David McKee appeals the district court’s decision affirming the Administrative Law Judge’s (“ALJ”) denial of his application for disability insurance benefits. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we REVERSE and REMAND for further proceedings.

Any error of the ALJ at Step II was harmless, because the ALJ resolved that step in McKee’s favor. See Stout v. Comm’r of Soc. Sec. Admin., 454 F.3d 1050, 1056 (9th Cir.2006) (citing Burch v. Barnhart, 400 F.3d 676, 682 (9th Cir.2005)).

Substantial evidence supports the ALJ’s rejection of Dr. Mabee’s opinion, because Dr. Mabee appeared to base his analysis of McKee’s limitations on the assumption that McKee had been sober after October 2004. The record demonstrates that the ALJ had “specific and legitimate” reasons to reject Dr. Mabee’s opinion, because McKee had numerous relapses between 2004 and 2006. See Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir.2002). Thus, the ALJ did not err in determining that he must make a disability determination “both with and without [drug and alcohol abuse (“DAA”) ].” See 20 C.F.R. § 404.1535 .

The ALJ failed to give a “persuasive” reason for refusing to afford “great…