I. INTRODUCTION

18 19 On January 16, 2020, Plaintiff Francisco Robles (“Plaintiff”) filed a complaint seeking 20 judicial review of a final decision of the Commissioner of Social Security (the “Commissioner” 21 or “Defendant”) denying his application for Supplemental Security Income (“SSI”) under the 22 Social Security Act (the “Act”).1 (Doc. 1.) The matter is currently before the Court on the 23 parties’ briefs, which were submitted, without oral argument, to the Honorable Sheila K. Oberto, 24 United States Magistrate Judge.2 25 II. BACKGROUND 26 Plaintiff was born on May 6, 1982, can communicate in English, completed high school 27 1 Plaintiff also applied for disability insurance benefits (DIB), but his claim was dismissed by the ALJ based on 28 Plaintiff’s amended alleged onset date. (AR 19.) Plaintiff does not challenge the dismissal of his DIB claim. 1 and college, and previously worked as a store clerk and a janitor. (Administrative Record 2 (“AR”) 29, 30, 46, 71, 83, 97, 113, 124, 125, 250, 254, 256, 281, 297.) On August 25, 2016, 3 Plaintiff filed claims for DIB and SSI payments, alleging he became disabled on February 12, 4 2013, due to anxiety, depression, hypertension, seizures, tremors, low platelets, and cataracts. 5 (AR 83, 84, 89, 97, 98, 103, 113, 114, 124, 125, 137, 141, 147, 152, 250, 255, 281, 297.) At the 6 hearing Plaintiff amended his alleged onset date to August 25, 2016, after his date last insured. 7 (AR 42–46. See also AR 16–18, 19.) 8 The Commissioner denied Plaintiff’s applications for benefits initially on February 14, 9 2017, and again on reconsideration on May 4, 2017. (AR 137–45, 147–56.) Consequently, 10 Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). (AR 157–73.) The 11 ALJ conducted a hearing on June 5, 2018. (AR 37–82.) Plaintiff appeared at the hearing with 12 his attorney and testified as to his alleged disabling conditions. (AR 47–70.) 13 In a decision dated December 18, 2018, the ALJ found that Plaintiff was not disabled. 14 (AR 16–31.) Plaintiff sought review of this decision before the Appeals Council, which denied 15 review on November 18, 2019. (AR 1–7.) Therefore, the ALJ’s decision became the final 16 decision of the Commissioner. 20 C.F.R. § 416.1481. 17 III. SCOPE OF REVIEW 18 The ALJ’s decision denying benefits “will be disturbed only if that decision is not 19 supported by substantial evidence or it is based upon legal error.” Tidwell v. Apfel, 161 F.3d 20 599, 601 (9th Cir. 1999). In reviewing the Commissioner’s decision, the Court may not 21 substitute its judgment for that of the Commissioner. Macri v. Chater, 93 F.3d 540, 543 (9th Cir. 22 1996). Instead, the Court must determine whether the Commissioner applied the proper legal 23 standards and whether substantial evidence exists in the record to support the Commissioner’s 24 findings. See Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007). “Substantial evidence is more 25 than a mere scintilla but less than a preponderance.” Ryan v. Comm’r of Soc. Sec., 528 F.3d 26 1194, 1198 (9th Cir. 2008). 27 “Substantial evidence” means “such relevant evidence as a reasonable mind might accept 28 as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting 1 Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 229 (1938)). The Court “must consider the 2 entire record as a whole, weighing both the evidence that supports and the evidence that detracts 3 from the Commissioner’s conclusion, and may not affirm simply by isolating a specific quantum 4 of supporting evidence.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (citation 5 and internal quotation marks omitted). 6 IV. APPLICABLE LAW 7 A. Five-Step Sequential Evaluation Process Generally 8 An individual is considered “disabled” for purposes of disability benefits if he or she is 9 unable “to engage in any substantial gainful activity by reason of any medically determinable 10 physical or mental impairment which can be expected to result in death or which has lasted or can 11 be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). 12 However, “[a]n individual shall be determined to be under a disability only if [her] physical or 13 mental impairment or impairments are of such severity that [s]he is not only unable to do [her] 14 previous work but cannot, considering [her] age, education, and work experience, engage in any 15 other kind of substantial gainful work which exists in the national economy.” Id. § 423(d)(2)(A). 16 “In determining whether an individual’s physical or mental impairment or impairments are 17 of a sufficient medical severity that such impairment or impairments could be the basis of 18 eligibility [for disability benefits], the Commissioner” is required to “consider the combined effect 19 of all of the individual’s impairments without regard to whether any such impairment, if 20 considered separately, would be of such severity.” Id. § 423(d)(2)(B). For purposes of this 21 determination, “a ‘physical or mental impairment’ is an impairment that results from anatomical, 22 physiological, or psychological abnormalities which are demonstrable by medically acceptable 23 clinical and laboratory diagnostic techniques.” Id. § 423(d)(3). 24 “The Social Security Regulations set out a five-step sequential process for determining 25 whether a claimant is disabled within the meaning of the Social Security Act.” Tackett v. Apfel, 26 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 20 C.F.R. § 404.1520); see also 20 C.F.R. § 416.920. 27 The Ninth Circuit has provided the following description of the sequential evaluation analysis: 28 1 proceeds to step two and evaluates whether the claimant has a medically severe 2 impairment or combination of impairments. If not, the claimant is not disabled. If so, the ALJ proceeds to step three and considers whether the impairment or 3 combination of impairments meets or equals a listed impairment under 20 C.F.R. pt. 404, subpt. P, [a]pp. 1. If so, the claimant is automatically presumed disabled. If 4 not, the ALJ proceeds to step four and assesses whether the claimant is capable of performing her past relevant work. If so, the claimant is not disabled. If not, the 5 ALJ proceeds to step five and examines whether the claimant has the [RFC] . . . to 6 perform any other substantial gainful activity in the national economy. If so, the claimant is not disabled. If not, the claimant is disabled. 7 8 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005); see, e.g., 20 C.F.R. § 416.920(a)(4) 9 (providing the “five-step sequential evaluation process” for SSI claimants). “If a claimant is found 10 to be ‘disabled’ or ‘not disabled’ at any step in the sequence, there is no need to consider 11 subsequent steps.” Tackett, 180 F.3d at 1098 (citing 20 C.F.R. § 404.1520); 20 C.F.R. § 416.920. 12 “The claimant carries the initial burden of proving a disability in steps one through four of 13 the analysis.” Burch, 400 F.3d at 679 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 14 1989)). “However, if a claimant establishes an inability to continue her past work, the burden 15 shifts to the Commissioner in step five to show that the claimant can perform other substantial 16 gainful work.” Id. (citing Swenson, 876 F.2d at 687). 17 B. Sequential Evaluation in the Context of Substance Addiction 18 Pursuant to the Contract with America Advance Act of 1996, the Social Security Act was 19 amended to provide that “an individual shall not be considered to be disabled . . . if alcoholism or 20 drug addiction would . . . be a contributing factor material to the Commissioner's determination 21 that the individual is disabled.” 42 U.S.C. § 423(d)(2)(C). 22 Under the regulations promulgated by the Commissioner, the ALJ must follow a specific 23 analysis where substance addiction is an issue. First, the ALJ must conduct the first five-step 24 inquiry, as set forth above, without attempting to determine the impact of substance 25 abuse/addiction. If the ALJ finds the claimant is not disabled under the five-step evaluation, the 26 claimant is not entitled to benefits, and there is no need to proceed further with the analysis. 20 27 C.F.R. § 416.935(a). If, on the other hand, the ALJ finds the claimant disabled, and there is 28 evidence of drug addiction and/or alcoholism (“DAA”), the ALJ must proceed under the 1 sequential evaluation pursuant to § 416.935 to determine if the claimant would still be disabled 2 absent the substance addiction/abuse. Bustamante v. Massanari, 262 F.3d 949, 955 (9th Cir. 3 2001). If found disabled with the effects of substance addiction/abuse, it is the claimant's burden 4 to show the substance addiction is not a contributing factor to his disability. Parra v. Astrue, 481 5 F.3d 742, 748 (9th Cir. 2007). A drug-addicted claimant “who presents inconclusive evidence of 6 materiality has no incentive to stop [abusing drugs], because abstinence may resolve his disabling 7 limitations and cause his claim to be rejected or his benefits terminated.” Id. 8 V. THE ALJ’S DECISION 9 Using the five-step sequential evaluation process, the ALJ determined that Plaintiff did 10 not meet the disability standard. (AR 16–31.) More particularly, the ALJ found that Plaintiff 11 had not engaged in substantial gainful activity since his amended onset date of August 25, 2016 12 (step one). (AR 19.) Further, the ALJ identified several severe mental and physical impairments 13 including alcoholism, alcoholic hepatitis, alcohol-induced pancreatitis, gastritis secondary to 14 alcohol use, thrombocytopenia secondary to alcohol use, seizure disorder, anxiety, and 15 depression (step two). (AR 19.) The ALJ determined that the severity of Plaintiff's impairments, 16 including the substance abuse disorder, met Listing 12.04 (depressive, bipolar, and related 17 disorders) (step three). (AR 20–23.) In reaching this finding, the ALJ considered the relevant 18 medical evidence; the opinion evidence of the state agency physicians and treating associate 19 clinical social worker (“A.S.W.”) John Alvarado, to which the ALJ gave “substantial weight” 20 and “some weight,” respectively; Plaintiff’s testimony; and his mother’s third-party statement. 21 (AR 20–23.) The ALJ found Plaintiff is disabled when his DAA is included. 22 Based on finding Plaintiff disabled and DAA present, the ALJ conducted the required 23 second sequential evaluation to determine whether DAA is material to the disability 24 determination. See 20 C.F.R. § 416.935. The ALJ found that if Plaintiff's substance abuse were 25 eliminated, his remaining severe impairments of anxiety, depression, schizophrenia, and seizure 26 disorder would not meet or equal a Listing. (AR 23–25.) According to the ALJ, if Plaintiff 27 28 1 stopped the substance abuse, he would have the residual functional capacity (RFC)3 to perform a 2 full range of work at all exertional levels, but with the following non-exertional limitations: 3 he would be limited to occasional interaction with supervisors and co-workers, but could have no interaction with the public. He would be limited to a low-stress 4 work environment, defined as involving only simple workplace decisions and a structured work environment with little change to the setting and routine. He 5 would be anticipated to be off-task greater than 5 percent of the workday for his 6 conditions. He could not climb ropes, ladders, or scaffolds and could not have exposure to workplace hazards, such as unprotected heights or dangerous moving 7 mechanical parts. He could not operate heavy machinery, motor vehicles, or equipment that could cause injury. He could have no exposure to dangerous 8 surfaces, such as a hot stove, griddles, open flames, welding torches. He could not cannot [sic] carry hot liquids, like delivery of coffee or soup, as part of his job 9 duties. He could not work in proximity to large bodies of water where there 10 would be danger of immersion. He could not have swimming as part of his job duties. He could use dangerous power tools and appliances that could cause 11 injury only when another person would be present. 12 (AR 25–29.) In determining Plaintiff’s RFC if he stopped his substance abuse, the ALJ 13 considered the same evidence, including opinion evidence of the state agency physicians and the 14 treating sources, to which at this point the ALJ assigned “substantial weight” and “limited 15 weight,” respectively. (AR 20–23.) 16 Next, the ALJ found that Plaintiff was unable to perform his past relevant work of stock 17 clerk, convenience store clerk, and janitor (step four) (AR 29–30), but when DAA was excluded, 18 he could perform other jobs that existed in significant numbers in the national economy, 19 including dishwasher, packager, and parts picker. (AR 30–31.) Plaintiff would not be disabled if 20 he stopped abusing substances, and therefore, DAA was a contributing factor material to the 21 disability determination. The ALJ concluded that Plaintiff is barred from receiving SSI benefits 22 and is not disabled as defined by the Act. (AR 31.) 23 24

25 3 RFC is an assessment of an individual’s ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis of 8 hours a day, for 5 days a week, or an equivalent work schedule. TITLES 26 II & XVI: ASSESSING RESIDUAL FUNCTIONAL CAPACITY IN INITIAL CLAIMS, Social Security Ruling (“SSR”) 96-8p (S.S.A. July 2, 1996). The RFC assessment considers only functional limitations and restrictions that result from an 27 individual’s medically determinable impairment or combination of impairments. Id. “In determining a claimant’s RFC, an ALJ must consider all relevant evidence in the record including, inter alia, medical records, lay evidence, and 28 ‘the effects of symptoms, including pain, that are reasonably attributed to a medically determinable impairment.’” 1 2 A. The ALJ’s Inconsistent Treatment of A.S.W. Alvarado’s Opinion is Not Supported by Substantial Evidence 3 4 Plaintiff asserts that the ALJ erred in her inconsistent treatment of the opinion of A.S.W. 5 Alvarado. (See Doc. 10 at 2, 8.) The Court agrees. 6 On May 24, 2018, A.S.W. Alvarado completed a “Mental Residual Functional Capacity 7 Assessment” form, wherein he opined that Plaintiff would be off-task 75% of the time over the 8 course of an eight-hour day, and that Plaintiff had marked and extreme limitations in all mental 9 functioning other than the abilities to understand, remember, and carry out very short and simply 10 instructions and to ask simple questions (in which Plaintiff was moderately limited). (AR 1237– 11 38.) 12 In finding Plaintiff met Listing 12.04 when including his DAA, the ALJ assigned “some 13 weight” to A.S.W. Alvarado’s opinion that Plaintiff would be off-task 75% of the time and was 14 markedly or extremely limited in most areas of mental functioning”: 15 For this portion of the decision, some weight is given to the opinion of the treating source John Alvarado, A.S.W., who indicated that the claimant would be off task 16 75 percent of the time and was markedly or extremely limited in most areas of mental functioning. (Ex 13F). While Mr. Alvarado does fails to provide much in 17 the way of explanation for such extreme limitations, he is a treating source and had the ability to assess the claimant over a period of time, in this case roughly 5 18 months. More importantly, this opinion is generally consistent with the 19 assessment of the consultants above and generally consistent with the claimant's need for repeated involuntary psychiatric hospitalizations due to his substance 20 abuse. 21 (AR 22.) However, later in the decision, during the ALJ’s assessment of Plaintiff’s RFC when 22 excluding his DAA, the ALJ gave “limited weight” to A.S.W. Alvarado’s opinion: 23 For this portion of the decision, limited weight is given to the opinion of John Alvarado, A.S.W., who indicated that the claimant was off task 75 percent of the 24 time and markedly or extremely limited in most areas of mental functioning. (Ex 25 13F). As established above, such an opinion is not consistent with longitudinal record when the claimant is not engaged in substance abuse. As noted with the 26 consultants, the claimant's functioning substantially improves when sober, and it also appears that he requires much lessor forms of treatment, specifically he does 27 not need frequent inpatient treatment. (E.g. Ex 4F/11, Ex 11F/4-9, Ex 19F/2). In addition, while Mr. Alvarado appears to be a treating source, he formulated his 28 1 indicating that he sees the claimant weekly, there is a general lack of consistent 2 treatment documentation with Mr. Alvarado as the signing provider. Furthermore, while this opinion does paint a picture of an extremely limited 3 individual, it does not give actual limitations or demonstrate in which ways the claimant would be limited in his ability to work. Furthermore, little in the way of 4 actual explanation is provided. Finally, he also fails to provide any indication of the claimant's functioning when sober compared to when he is engaged in 5 substance abuse. Thus, this opinion is of limited value for this portion of the 6 decision. 7 (AR 29.) 8 It is not uncommon for an ALJ to give different weight to different portions of an opinion 9 based on the medical evidence supporting each portion of the opinion. See Magallanes v. 10 Bowen, 881 F.2d 747, 753 (9th Cir. 1989). In so doing, however, “the ALJ must justify this type 11 of seemingly inconsistent treatment.” Butler v. Colvin, No. 3:13-CV-02156-MO, 2014 WL 12 6610017, at *7 (D. Or. Nov. 19, 2014). 13 In this case, the ALJ engaged in a different kind of inconsistent treatment. Instead of 14 assigning different weight to different portions of A.S.W. Alvarado’s opinion, the ALJ gave 15 different weight to the same portions of the opinion at different stages of the sequential analysis. 16 The opinion was given “some weight” when Plaintiff’s DAA was part of the analysis, and 17 “limited weight” when Plaintiff’s DAA was not. (Compare AR 22 with AR 29.) Yet, A.S.W 18 Alvarado’s opinion makes no reference to Plaintiff’s substance abuse, or lack thereof. Moreover, 19 the ALJ’s rationales for assignment of weight to the opinion are directly at odds with one 20 another: the ALJ gives “some weight” to A.S.W Alvarado’s opinion because “he is a treating 21 source and had the ability to assess [Plaintiff] over a period of time, in this case roughly 5 22 months” (AR 22), whereas the ALJ later gives “little weight” to the opinion because “while [he] 23 appears to be a treating source, he formulated his opinion only 5 months after starting treatment 24 with the claimant, and despite indicating that he sees the claimant weekly, there is a general lack 25 of consistent treatment documentation with [A.S.W.] Alvarado as the signing provider” (AR 29). 26 The Court therefore finds that the ALJ’s proffered justification for the inconsistent 27 treatment of A.S.W Alvarado opinion is not supported by substantial evidence. The ALJ’s 28 inconsistent treatment of the opinion, particularly A.S.W. Alvarado’s finding that Plaintiff would 1 be off-task 75 percent of workday, is not harmless: the vocational expert (“VE”) testified at the 2 hearing that a limitation of being off-task greater than 10 percent of the workday would preclude 3 both Plaintiff’s past work and other work in the economy. (AR 71–72.) The Commissioner’s 4 brief is largely non-responsive, with the majority of it defending the ALJ’s finding that 5 Plaintiff’s substance abuse was material to the issue of disability—which Plaintiff does not 6 challenge—and the remainder directed to the propriety of assigning of “little weight” to A.S.W. 7 Alvarado’s opinion without acknowledging, much less addressing, the fact that the ALJ also 8 gave “some weight” to that same opinion. (See Doc. 14.) 9 B. The ALJ’s RFC Assessment is Also Materially Inconsistent With the Disability Determination 10 11 Notably, and unmentioned by either party, the treatment of A.S.W Alvarado’s opinion is 12 not the only material inconsistency in ALJ’s decision. In her RFC assessment, the ALJ included 13 a limitation that Plaintiff would “would be anticipated to be off-task greater than 5 percent of the 14 workday for his conditions.” (AR 26.) Applying this RFC, and with the testimony of the VE, 15 the ALJ concluded that Plaintiff was not disabled because he could perform work in the national 16 economy such as dishwasher, packager, parts picker. (AR 30–31.) On its face, however, the 17 RFC’s “greater than 5 percent off-task” limitation could encompass the “greater than 10 percent 18 off-task” limitation that the VE testified would in fact preclude all work, thereby rendering a 19 finding of disability. (See AR 71–72.) It could also, incidentally, encompass the “75 percent 20 off-task” limitation opined by A.S.W. Alvarado to which the ALJ, at least at one point in the 21 opinion, gave “some weight.” (See AR 1237.) 22 C. Remand for Further Proceedings is Warranted 23 Material inconsistencies and ambiguities in the ALJ’s decision generally warrant remand. 24 See Perez v. Astrue, 250 Fed. App’x. 774, 776 (9th Cir. 2007) (remanding in part because the 25 ALJ’s findings were “internally inconsistent”) (unpublished); Bridges v. Colvin, No. CV 13- 26 5618-E, 2014 WL 1370369, at *3 (C.D. Cal. Apr. 8, 2014) (same); Rodriguez v. Astrue, 2011 27 WL 1103119, at *9 (E.D. Cal. Mar. 22, 2011) (“[R]emand for further proceedings is proper due 28 to the ambiguity of the ALJ’s decision. . . .”); Elias v. Astrue, No. CIV 10-244-TUC-CKJ, 2011 1 WL 1329967, at *1 (D. Ariz. Mar. 9, 2011), at *7 (finding the ALJ’s decision not supported by 2 substantial evidence and recommending remand because the ALJ’s decision was “internally 3 inconsistent”), report and recommendation adopted, No. CIV 10-244-TUC-CKJ, 2011 WL 4 1322083 (D. Ariz. Apr. 7, 2011); Gonzalez v. Astrue, No. CV 08-6957-CT, 2009 WL 577279, at 5 *3 (C.D. Cal. Mar. 5, 2009) (“[R]emand is necessary for the ALJ to clarify the ambiguity within 6 his opinion. . . .”); Chenault v. Astrue, No. CV 07-7690-E, 2008 WL 2705573, at *1-3 (C.D. Cal. 7 July 10, 2008) (remanding because the ALJ’s findings were “internally inconsistent”). See also 8 Regennitter v. Commissioner, 166 F.3d 1294, 1297 (9th Cir. 1999) (materially “inaccurate 9 characterization of the evidence” warrants remand); Gonzalez v. Sullivan, 914 F.2d 1197, 1201 10 (9th Cir.1990) (“[W]e are wary of speculating about the basis of the ALJ’s conclusion. . . .”). 11 When ambiguities or inconsistencies in the ALJ’s decision clearly arose from typographical 12 errors, however, remand is unnecessary. Bridges, 2014 WL 1370369, at *3 (citing Henderson ex 13 rel. Henderson v. Apfel, 179 F.3d 507, 514 (7th Cir.1999) (no remand necessary where the ALJ 14 erroneously referred to “Ex. B at 5” while intending to refer to “Exhibit B-5”)). 15 Here, given the nature of the inconsistencies set forth above, which cannot be described 16 as merely typographical, the Court remands the case to the ALJ to clarify the inconsistency. See 17 McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989) (Remand is appropriate if the record is 18 incomplete and additional proceedings would remedy defects in the Commissioner’s decision.). 19 See also Guerra v. Colvin, Case No. 1:15-cv-01408-SKO, 2016 WL 5404442, at *8 (E.D. Cal. 20 Sept. 28, 2016) (“Because the decision of the ALJ was internally inconsistent, the final decision 21 of the Commissioner is not supported by substantial evidence and this case should be remanded 22 to the Commissioner for further proceedings.”). 23 VII. CONCLUSION AND ORDER 24 Based on the foregoing, the Court finds that the ALJ’s decision is not supported by 25 substantial evidence and is, therefore, VACATED and the case is REMANDED to the ALJ for 26 further proceedings consistent with this order. The Clerk of this Court is DIRECTED to enter 27 judgment in favor of Plaintiff Francisco Robles and against Defendant Andrew Saul, 28 1 Commissioner of Social Security. 2

IT IS SO ORDERED.

3

Sheila K. Oberto 4 Dated: February 17, 2021 /s/ .

UNITED STATES 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