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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
DANIEL D.,
Plaintiff,
v.
FRANK BISIGNANO, Acting
Commissioner of Social Security,
Defendant.
Case No.: 25-cv-00036-JLB
ORDER GRANTING PLAINTIFF’S
MERITS BRIEF
[ECF No. 16]
On January 7, 2025, plaintiff Daniel D. (“Plaintiff”) filed a complaint pursuant to
42 U.S.C. § 405(g) seeking judicial review of a decision by the Commissioner of Social
Security (the “Commissioner”) denying his application for supplemental security income
(“SSI”) benefits. 	(ECF No. 1.) 	On March 10, 2025, the Commissioner filed the
Administrative Record. (ECF No. 10.)
Before the Court and ready for decision is Plaintiff’s merits brief. 	(ECF No. 16.)
The Commissioner filed an opposition (ECF No. 17), and Plaintiff filed a reply (ECF No.
18). For the reasons set forth herein, the Court GRANTS Plaintiff’s merits brief, reverses
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the decision of the Commissioner, and remands this matter for further administrative
proceedings pursuant to sentence four of 42 U.S.C. § 405(g).
I. 	PROCEDURAL BACKGROUND
On or about June 25, 2021, Plaintiff filed an application for SSI under Title XVI of
the Social Security Act, alleging disability beginning January 1, 2005. 	(Certified
Administrative Record [“AR”], at 22, 268–90.) After his application was denied initially
and upon reconsideration (AR 140–44, 164–69), Plaintiff requested an administrative
hearing before an administrative law judge (“ALJ”) (AR 170–87). 	An administrative
hearing was held on February 15, 2024. 	(AR 41–66.) 	Plaintiff appeared at the hearing
with a non-attorney representative, and testimony was taken from him, as well as from a
vocational expert (“VE”). (AR 41–66.)
As reflected in his April 17, 2024, hearing decision, the ALJ found that Plaintiff
would not be disabled if he stopped his substance abuse, and therefore, Plaintiff had not
been disabled within the meaning of the Social Security Act at any time from the
application date through the date of decision. 	(AR 19–40.) 	The ALJ’s decision became
the final decision of the Commissioner on December 11, 2024, when the Appeals Council
denied Plaintiff’s request for review. (AR 6–11.) This timely civil action followed.
II. 	SUMMARY OF THE ALJ’S FINDINGS
In rendering his decision, the ALJ followed the Commissioner’s five-step sequential
evaluation process under 20 C.F.R. § 416.920(a). 	(AR 23.) 	The ALJ also considered
Plaintiff’s substance use disorder pursuant to 20 C.F.R. § 416.935. (AR 24.)
At step one, the ALJ found that Plaintiff had not engaged in substantial gainful
activity since June 25, 2021, the application date. (AR 24.)
At step two, the ALJ found that Plaintiff has the following severe impairments:
generalized anxiety disorder, post-traumatic stress disorder (“PTSD”), neurocognitive
impairment, depression, chronic venous insufficiency, obesity, alcohol use disorder, and
marijuana use disorder. (AR 24.)
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At step three, the ALJ found that with the inclusion of Plaintiff’s substance use, the
severity of his claimed mental impairments meets the criteria of section 12.06 of the
Commissioner’s Listing of Impairments. 	(AR 25.) 	The ALJ then determined that if
Plaintiff stopped his substance use, the remaining limitations would still cause more than
a minimal impact on his ability to perform basic work activities; therefore, Plaintiff would
have a severe impairment or combination of impairments under 20 C.F.R. § 416.922. (AR
26–27.) 	However, the ALJ further found that if Plaintiff stopped the substance use, he
would not have an impairment or combination of impairments that meets or medically
equals the severity of one of the impairments listed in the Commissioner’s Listing of
Impairments. (AR 27–29.)1
Next, the ALJ determined that, if Plaintiff stopped the substance use, he had the
residual 	functional 	capacity 	(“RFC”) 	“to 	perform 	light 	work” 	with 	the 	following
limitations:
1 Pursuant to the Social Security Act, if the Social Security Administration
(“SSA”) finds that a claimant is disabled and has medical evidence of his drug addiction
or alcoholism, it “must determine whether [the claimant’s] drug addiction or alcoholism is
a contributing factor material to the determination of disability[.]” 20 C.F.R. § 416.935(a);
see also SSR 13-2P, 2013 WL 621536, at *4 (Feb. 20, 2013). The “key factor” the SSA
will examine “in determining whether drug addiction or alcoholism is a contributing factor
material to the determination of disability is whether [the SSA] would still find [the
claimant] disabled if [he] stopped using drugs or alcohol.” 20 C.F.R. § 416.935(b)(1). “In
making this determination, [the SSA] will evaluate which of [the claimant’s] current
physical and mental limitations, upon which [the SSA] based [its] current disability
determination, would remain if [the claimant] stopped using drugs or alcohol and then
determine whether any or all of [the claimant’s] remaining limitations would be disabling.”
Id. § 416.935(b)(2). 	If the SSA determines that the claimant’s “remaining limitations
would not be disabling, [it] will find that [the claimant’s] drug addiction or alcoholism is a
contributing factor material to the determination of disability.” 	Id. § 416.935(b)(3).
However, if the SSA determines that the claimant’s “remaining limitations are disabling,
[the claimant is] disabled independent of [his] drug addiction or alcoholism and [the SSA]
will find that [the claimant’s] drug addiction or alcoholism is not a contributing factor
material to the determination of disability.” Id. § 416.935(b)(4).
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frequently climb ramps and stairs; occasionally climb ladders, ropes, and
scaffolds; frequently balance, stoop, kneel, crouch, and crawl; understand,
remember, and carry out simple, routine, repetitive tasks, with breaks every
two hours; no interaction with the general public; occasional work-related,
non-personal, 	non-social 	interaction 	with 	co-workers 	and 	supervisors
involving no more than a brief exchange of information or handoff of product.
Cannot perform highly time pressured tasks such that the claimant is limited
to generally goal-oriented work, not time sensitive strict production quotas
(i.e., production rate pace work with strict by the minute or by the hour
production 	quotas 	that 	are 	frequently 	and/or 	constantly 	monitored 	by
supervisors or that are fast paced); low-stress environment where there are
few work place changes (i.e., the claimant would not have to switch from task
to task) and the claimant has minimal decision-making capability (i.e., he
would be unable to exercise substantial discretion in carrying out work
activities).
(AR 29.)
For purposes of his step four determination, the ALJ determined that Plaintiff has no
past relevant work. (AR 34.)
At step five, based on the VE’s testimony that a hypothetical person with Plaintiff’s
vocational 	profile 	and 	RFC, 	if 	he 	stopped 	the 	substance 	use, 	could 	perform 	the
requirements of occupations that existed in significant numbers in the national economy
(e.g., inspector, hand packager, and sub-assembler), the ALJ found that Plaintiff was not
disabled under the law from the application date, through the date of decision. (AR 34–
35.)
III. 	PLAINTIFF’S CLAIMS OF ERROR
As reflected in Plaintiff’s merits brief, the disputed issues that Plaintiff is raising as
the grounds for reversal and remand are as follows:
1. 	The ALJ failed to properly evaluate the medical opinions of Dr Fabiola Del
Aguila (“Dr. Aguila”), Plaintiff’s treating psychologist, and Arthur Roehr, DNP, PMHNP-
BC (“DNP Roehr”), another one Plaintiff’s treating providers. (ECF No. 16 at 7–14.)
2. 	The ALJ failed to state clear and convincing reasons for rejecting Plaintiff’s
subjective symptom testimony. (Id. at 15–22.)
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IV. 	STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to
determine whether the Commissioner’s findings are supported by substantial evidence and
whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846
(9th Cir. 1991). Substantial evidence means “more than a mere scintilla” but less than a
preponderance. 	Richardson v. Perales, 402 U.S. 389, 401 (1971); Desrosiers v. Sec’y of
Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988). Substantial evidence is “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson, 402 U.S. at 401. This Court must review the record as a whole and consider
adverse as well as supporting evidence. 	Green v. Heckler, 803 F.2d 528, 530 (9th Cir.
1986). 	Where evidence is susceptible of more than one rational interpretation, the
Commissioner’s decision must be upheld. 	Gallant v. Heckler, 753 F.2d 1450, 1453 (9th
Cir. 1984).
V. 	DISCUSSION
A. 	The ALJ Erred in Assessing the Medical Opinions of Dr. Aguila and
DNP Roehr.
1. 	Parties’ Arguments
Plaintiff argues that the ALJ erred in assessing the medical opinions of Dr. Aguila
and DNP Roehr. 	(ECF No. 16 at 7–14.) 	Plaintiff argues that both Dr. Aguila and
DNP Roehr expressed their medical opinions during periods of sustained sobriety and
specifically noted a lack of current drug and alcohol use. (Id. at 14.) Plaintiff argues that
the “ALJ may not cherry-pick the record to support a finding of medical improvement with
abstinence” from substance abuse. (Id.) Plaintiff requests that the court “credit the medical
opinions of Dr. Aguila and DNP Roehr and award benefits.” 	(Id.) 	In the alternative,
Plaintiff requests reversal and remand for further proceedings. (Id.)
The Commissioner argues that the ALJ properly evaluated opinions from Dr. Aguila
and DNP Roehr “in light of the evidence showing that in the absence of substance use,
Plaintiff experienced significant improvement in mood and functioning.” (ECF No. 17 at
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7.) 	The Commissioner further argues that “the ALJ did address the extent to which the
opinions attached themselves to periods of abstinence from alcohol.” (Id. at 8.) The ALJ
noted that the opinion from DNP Roehr stated that “substance abuse contributed to the
limitations set forth in his opinion[s].” (Id. at 7.) The Commissioner argues that although
Plaintiff suggests an alternative interpretation of the record, the ALJ’s interpretation was
reasonable and entitled to deference. (Id. at 8–9.)
2. 	Relevant Facts
Dr. Aguila treated Plaintiff for the first time on September 22, 2015. (AR 1734–35.)
Dr. Aguila noted that “it was apparent that [Plaintiff] has been experiencing chronic anxiety
since he was a child.” (AR 1734.) Plaintiff self-treated his anxiety for twenty years with
marijuana but stopped in 2012 because he no longer wanted to depend on it. (AR 1734.)
Since he quit, he has “been more anxious and has been noticing a lack of concentration,
forgetting conversations, his OCD has increased, he doubts himself and then worries
because he feels guilty about things he says or doesn’t say.” (AR 1734.) Plaintiff reported
averaging only three hours of sleep at night and feeling tired most of the day. (AR 1734.)
During this visit, Dr. Aguila diagnosed Plaintiff with generalized anxiety disorder, and
discussed treatment options. 	(AR 1734.) 	Plaintiff later resumed smoking marijuana to
help with his insomnia. (See AR 1290, 1629, 1946.)
Plaintiff started drinking alcohol at age 14 and his usage increased to daily around
age 40. (AR 1657.) He would drink seven 24 oz cans of beer per day. (AR 1657.) Plaintiff
attempted to get sober for the first time after his dad died in or around April 2021. (AR
1652, 1660.) He briefly relapsed in July and October 2021. (AR 1621, 1629, 1637, 1641.)
Dr. Aguila continued to treat Plaintiff through 2023,2 noting symptoms of anxiety,
depression, PTSD, memory loss, irritability, hypervigilance, and insomnia. (See AR 1733,
2 The AR only includes treatment notes from Dr. Aguila for two visits in 2015
and then jumps to June 2021. 	Therefore, there are no treatment notes in the record for
Dr. Aguila from November 2015 through May 2021.
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1651, 1641, 1636, 1633, 1628, 1623, 1620.) Dr. Aguila administered two PHQ-9 screening
evaluations for depression to Plaintiff on April 11, 2023, and July 5, 2023, on which
Plaintiff scored a 22 (fail) and an 8 (pass), respectively. 	(AR 1517, 1499.) 	Throughout
their sessions, Dr. Aguila noted that Plaintiff’s symptoms would vacillate from getting
worse, to getting better, and back. 	(See, e.g., AR 1633 (10/4/21 “patient presented with
despondent mood”); 1498 (7/3/23 “patient presented with an overall stable mood.”); 1492
(9/25/23 “patient presented with hypervigilant mood”).)
On February 2, 2022, Dr. Aguila completed a Short-Form Evaluation for Mental
Disorders. 	(AR 915–19.) 	Dr. Aguila noted that he saw Plaintiff every month, with the
most recent visit being the day before the form was completed. (AR 915.) Dr. Aguila’s
principal diagnosis of Plaintiff was PTSD. (AR 915.) Dr. Aguila opined that Plaintiff’s
concentration was slightly distracted, and his memory impairment was mild. 	(AR 916.)
Dr. Aguila stated that Plaintiff had no current alcohol or illicit drug use. 	(AR 917.) 	In
narrative form, Dr. Aguila stated: “[Plaintiff] is consistent with sessions and is cooperative.
He’s become more engaged in sessions, but progress is minimal. 	Prognosis is fair –
[Plaintiff] is not as active in behavioral changes and this may be due to mood dysregulation
and influence of past trauma.” 	(AR 917.) 	Dr. Aguila opined that Plaintiff’s ability to
understand, remember, and carry out simple and complex instructions is fair. (AR 918.)
However, he opined that Plaintiff had poor ability to maintain concentration, attention and
persistence, to perform activities within a schedule and maintain regular attendance, to
complete a normal workday and workweek without interruptions from psychologically-
based symptoms, to respond appropriately to changes in a work setting, and to interact
appropriately with the public, supervisors, and co-workers. (AR 918.)
DNP Roehr began treating Plaintiff on April 5, 2021, and saw him monthly. 	(AR
1281.) 	On June 20, 2022, DNP Roehr completed a “Short-Form Evaluation for Mental
Disorders.” (AR 1280–86.) DNP Roehr noted that Plaintiff had not used alcohol or illicit
drugs 	in 	the 	past 	year, 	stating: 	“[Plaintiff] 	has 	maintained 	sobriety 	since 	approx.
06/16/2021,” i.e., most of the time DNP Roehr had been treating Plaintiff. 	(AR 1283.)
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DNP Roehr opined that Plaintiff had poor ability to understand, remember, and carry out
simple and complex instructions, to maintain concentration, attention and persistence, to
perform activities within a schedule and maintain regular attendance, to complete a normal
workday and workweek without interruptions from psychologically based symptoms, to
respond appropriately to changes in a work setting, and to interact appropriately with the
public, supervisors, and co-workers. (AR 1284.) DNP Roehr also opined that Plaintiff had
severely impaired concentration and severely impaired recent memory. (AR 1282.)
Approximately a year and a half later, on November 17, 2023, DNP Roehr
completed another medical opinion, a Mental Residual Functional Capacity Questionnaire
for Plaintiff. 	(AR 1299–1304.) 	DNP Roehr reported seeing Plaintiff every one to three
months. (AR 1300.) DNP Roehr assessed Plaintiff as unable to meet competitive standards
in all mental abilities and aptitudes needed to do unskilled work. (AR 1302.) DNP Roehr
described Plaintiff as having chronic PTSD and depression with limited coping skills and
limited insight into his symptoms and self-regulation. (AR 1303.) DNP Roehr noted that
Plaintiff’s thought process is “fairly concrete with poverty of content” and he is easily
overwhelmed. 	(AR 1300.) 	He added that Plaintiff has “severely limited recall and has
chronic insomnia with a range of 3 hrs each night at best.” (AR 1300.) Plaintiff also is not
independently functional and is heavily dependent on his girlfriend. 	(AR 1304.) 	DNP
Roehr reported that Plaintiff was “currently totally abstinent for a long term sustained
period,” however he checked the box indicating that Plaintiff’s alcohol or substance abuse
contributed to Plaintiff’s limitations. 	(AR 1304.) 	Immediately below that, DNP Roehr
explained that 	although 	“[n]ow 	sober, [the] severity 	of alcohol 	use history 	likely
significantly contributed to Neurocognitive impairment.” 	(AR 1304.) 	DNP Roehr
assessed Plaintiff has having a “guarded” prognosis. (AR 1300.)
3. 	Applicable Law
Under the revised regulations which apply to claims, such as this one, filed on or
after March 27, 2017, an ALJ must evaluate the persuasiveness of all medical opinions in
the record and articulate in the decision his or her assessment as to each. See 20 C.F.R. §§
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404.1520c(b), 416.920c(b). In evaluating the persuasiveness of a medical opinion, an ALJ
will consider the following factors: (1) supportability; (2) consistency; (3) relationship with
the claimant, including the length, purpose, and extent of the treatment relationship,
frequency of examinations, and examining relationship; (4) specialization; and (5) any
other factors that tend to support or contradict the medical opinion, including familiarity
with the other evidence in the claim. See id. §§ 404.1520c(c)(1)–(5), 416.920c(c)(1)–(5).
Although an ALJ must consider all these factors, the only factors that the ALJ is required
to discuss in his or her opinion are supportability and consistency, unless two conflicting
medical opinions are both equally well-supported and consistent with the record. 	See id.
§§ 404.1520c(b)(2)–(3), 416.920c(b)(2)–(3).
In evaluating the persuasiveness of medical opinions, the “most important factors”
are “supportability” and “consistency.” 	See id. §§ 404.1520c(a), 416.920c(a); see also
Woods v. Kijakazi, 32 F.4th 785, 791 (9th Cir. 2022). “Supportability means the extent to
which a medical source supports the medical opinion by explaining the ‘relevant . . .
objective medical 	evidence.’” 	Woods, 32 	F.4th 	at 	791–92 	(quoting 	20 	C.F.R. 	§
404.1520c(c)(1)). “Consistency means the extent to which a medical opinion is ‘consistent
. . . with the evidence from other medical sources and nonmedical sources in the claim.’”
Id. at 792 (quoting 20 C.F.R. § 404.1520c(c)(2)). 	An ALJ must “articulate . . . how
persuasive” he or she finds “all of the medical opinions” from each doctor or other source,
and “explain how [her or she] considered the supportability and consistency factors” in
reaching these findings. 	See 20 C.F.R. §§ 404.1520c(b), 416.920c(b). However, “[e]ven
under the new regulations, an ALJ cannot reject an examining or treating doctor’s opinion
as unsupported or inconsistent without providing an explanation supported by substantial
evidence.” Woods, 32 F.4th at 792.
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4. 	Analysis
In addressing the medical opinions of Dr. Aguila and DNP Roehr, the ALJ stated the
following:
The undersigned considered the opinions of Dr. Fabiola Del Aguila (Exhibit
12F) and Dr. Arthur Roehr (Exhibits 17F, 20F), which reflect similar
limitations. 	Notably, they both assessed a rating of “poor” in numerous
mental functioning areas, including being able to understand, remember, and
carry out simple instructions. 	To the extent that these limitations take into
account the claimant’s substance use, which Dr. Roehr appeared to have done
so in Exhibit 20F (marking “yes” to the question of whether substance abuse
contributed 	to 	the 	limitations 	set 	forth), 	the 	undersigned 	finds 	them
persuasive. 	They would be supported by the cited evidence (e.g., easily
overwhelmed, poor insight, tearfulness, and history of PTSD) as well as
consistent with the evidence as a whole, as discussed under Finding 3, which
reveals 	significant 	mental 	symptomatology, 	such 	as 	irritability, 	sleep
disturbance, and difficulty concentrating during periods of substance use, in
particular, alcohol consumption (Exhibits 6F/9, 11; 11F/29, 30, 36; 24F/172,
182, 191, 192). 	However, to the extent that these limitations pertain to the
claimant during periods of sobriety, the undersigned would find them
unpersuasive, as they would be inconsistent with the evidence showing that in
the absence of substance use, the claimant experiences notable improvement
in mood and functioning. 	They would also be consistent with the evidence
revealing no more than prescription medications and some psychotherapy
sessions for the claimant’s mental health treatment (Exhibits 8F, 13F, 15F,
16F, 18F, 24F, 25F).
(AR 33.)
The ALJ discussed both the supportability and consistency factors in evaluating the
medical opinions. However, Plaintiff argues that the ALJ’s assessment is not supported by
substantial evidence. (See ECF Nos. 16 at 10–14; 18 at 4.) Specifically, Plaintiff argues
that the ALJ failed to address that “[a]t the times of DNP Roehr’s medical opinions,
[Plaintiff] had maintained his sobriety, other than a two-day relapse in August 2021, for
approximately 10 months and 27 months, respectively.” 	(ECF No. 16 at 10.) 	Plaintiff
further argues that the ALJ failed to address that “[a]t the time of Dr. Aguila’s medical
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opinion, [Plaintiff] had maintained his sobriety since July 2021, other than a two-day
relapse in August 2021, for approximately seven months.” (Id.)
Plaintiff further argues that the ALJ’s finding that Plaintiff “experienced significant
improvement in mood and functioning” during periods of sobriety lacks the support of
substantial evidence. (ECF No. 18 at 4.) Plaintiff argues that the ALJ “may not cherry-
pick the record to support a finding of medical improvement with abstinence.” (ECF No.
16 at 14.) The Court agrees that the ALJ improperly cherry-picked the record in finding
that Plaintiff’s experienced notable improvement in mood and functioning after obtaining
sobriety. (See AR 33.) The Court has reviewed the record and does not find any material
difference in DNP Roehr’s and Dr. Aguila’s treatment notes during Plaintiff’s long periods
of sobriety and during his short relapses in 2021.
Throughout the record, Plaintiff reports having difficulty sleeping much more than
two to three hours per night. (See, e.g., AR 875–77, 939, 1480, 1485, 1489, 1508, 1524,
1528, 1531, 1535, 1542, 1546, 1554, 1557, 1575.) Although Kelley De Leeuw, MD stated
in October 2021 that “ongoing high anxiety and insomnia” is “common in early sobriety,”
Plaintiff continued to experience these symptoms throughout 2022 and 2023. (See id.) The
ALJ identifies no reports of alcohol use between October 2021 and February 2024, yet
Plaintiff’s sleep and anxiety did not improve. (See AR 26, 31–32.) In early 2023, Plaintiff
underwent a sleep study and was diagnosed with sleep apnea, but despite ongoing
treatment, he continued to experience severe sleep difficulties although he tried multiple
medications. (See AR 1480, 1485, 1489, 1516.) In November 2023, Plaintiff reported that
he was “still having the same stuff with the sleeping.” (AR 1489.) He stated that he “took
Suvoraxant for 3 days and didn’t sleep those days at all. 	Eszopiclone is working better,
some days it doesn’t work, sometimes takes Hydroxyzine but he is drowsy the whole next
day.” 	(AR 1489.) 	In December 2023, Plaintiff reported that the “Suvorexant caused
scattered sleep and he slept really light and had a headache every day. 	Is back on the
eszopiclone and readjusting. Sleep is like 2–3 hours and he will wake up.” (AR 1480.)
///
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Dr. Aguila attributed Plaintiff’s low frustration tolerance and irritability to his
inability to sleep on multiple occasions. 	(See AR 1535, 1531, 1495.) 	Plaintiff’s low
frustration tolerance leads to him experiencing anxiety and becoming highly irritable. (AR
1495; see also AR 1642.) In August 2023, Dr. Aguila also suggested that Plaintiff’s low
frustration tolerance may be related to past drug use or a traumatic brain injury (“TBI”).
(AR 1495.) In late 2023, Plaintiff reported an increase in irritability and hypervigilance.
(AR 1485, 1492.) 	In September and November 2023, Dr. Aguila assessed Plaintiff’s
hyperarousal as “due to PTSD and possibly TBI.” (AR 1485, 1492.) He also noted that it
“may be related to his past traumatic experience[s], his TBI, or his past alcohol use.” (AR
1492.) 	Therefore, Dr. Aguila acknowledged Plaintiff’s past drug and alcohol abuse, but
indicated that other impairments may be contributing to Plaintiff’s symptoms.
In June 2021, Plaintiff reported “very poor memory,” which he deemed longstanding
and which he attributed to an aneurysm in his twenties. (AR 463; see also AR 1733, 1743,
1826.)3 Plaintiff continued to report memory issues in 2022 and 2023 despite being sober.
(See AR 1575, 1586, 1595, 1608.) 	In June 2022, DNP Roehr opined that Plaintiff had
severe recent memory impairment. 	(AR 1282.) 	This is in line with the Psychological
Evaluation done by J. Durr, Ph.D. in August 2022 in which Dr. Durr opined that Plaintiff’s
auditory, visual, and visual working memory was in the extremely low range, although he
felt this was an underrepresentation of Plaintiff’s ability. 	(AR 1290–92.) 	In his
November 2023 opinion, DNP Roehr further noted that Plaintiff’s thought process was
“fairly concrete with poverty of content” and Plaintiff replies, “I don’t know” and “I can’t
remember” to most questions “which will often trigger an affective response with
trembling and crying.” (AR 1300.) DNP Roehr stated that Plaintiff is easily overwhelmed,
3 Plaintiff’s treatment notes indicate major neurocognitive disorder, noting that
he tested “at level of severe dementia 18/30 on MOCA” in June 2021. (AR 456, 866.) The
following line posits the question whether his differential diagnoses are “due to aneurism
[history] vs. alcohol induced.” (AR 866.)
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has poor insight into his mental health condition, and has “severely limited recall and has
chronic insomnia with a range of 3 hrs each night at best.” (AR 1300.) In DNP Roehr’s
treatment notes, these symptoms are not limited to 2021 or periods of alcohol use.
Overall, the Court does not find substantial evidence in the record to support the
ALJ’s statement that the evidence shows “that in the absence of substance use, [Plaintiff]
experiences notable improvement in mood and functioning.” (AR 33.)4 Accordingly, the
Court finds that the ALJ erred in assessing the medical opinions of Dr. Aguila and DNP
Roehr.
B. 	The ALJ Erred in Assessing Plaintiff’s Subjective Symptom Testimony
1. 	Parties’ Arguments
Plaintiff argues that the ALJ erred by failing to provide clear and convincing reasons
for rejecting Plaintiff’s subjective symptom testimony. 	(ECF No. 16 at 15–22.) 	The
Commissioner argues in response that the ALJ reasonably discounted Plaintiff’s testimony,
arguing that “Plaintiff’s summary of medical evidence and arguments about the ALJ’s
subjective symptom analysis are simply an alternative interpretation of the record.” (ECF
No. 17 at 3–6.)
2. 	Applicable Law
In deciding whether to accept a claimant’s subjective symptom testimony, the ALJ
must perform a two-step analysis. Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996).
First, the ALJ must assess “whether the claimant has presented objective medical evidence
of an underlying impairment ‘which could reasonably be expected to produce the pain or
other symptoms alleged.’” 	Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007)
(quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991)). Second, if the first test is
4 Regardless, as stated in SSR 13-2P, “[i]f . . . a claimant is abstinent and
remains disabled throughout a continuous period of at least 12 months, [drug addiction and
alcoholism] is not material even if the claimant’s impairment(s) is gradually improving.”
SSR 13-2P, 2013 WL 621536, at *12 n.26 (Feb. 20, 2013).
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met and there is no evidence of malingering, “the ALJ can only reject the claimant’s
testimony about the severity of the symptoms if she gives ‘specific, clear and convincing
reasons’ for the rejection.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (quoting
Lingenfelter, 504 F.3d at 1036). “This is not an easy requirement to meet: ‘The clear and
convincing standard is the most demanding required in Social Security cases.’” Garrison
v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v. Comm’r of Soc. Sec.
Admin., 278 F.3d 920, 924 (9th Cir. 2002)).
“General findings are insufficient; rather, the ALJ must identify what testimony is
not credible and what evidence undermines the claimant’s complaints.” Brown-Hunter v.
Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (quoting Reddick v. Chater, 157 F.3d 715, 722
(9th Cir. 1998)); see also Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001)
(“[T]he ALJ must specifically identify the testimony she or he finds not to be credible and
must explain what evidence undermines the testimony.”); Burrell v. Colvin, 775 F.3d 1133,
1138–39 (9th Cir. 2014) (finding error where the ALJ “never connected the medical
record” to the claimant’s testimony and did not make “a specific finding linking a lack of
medical records to [the claimant’s] testimony”).
The ALJ is responsible for “determin[ing] credibility, resolv[ing] conflicts in the
testimony, and resolv[ing] ambiguities in the record.” 	Treichler v. Comm’r of Soc. Sec.
Admin., 775 F.3d 1090, 1098 (9th Cir. 2014); see also 42 U.S.C. § 405(g) (directing that
the Commissioner’s “findings . . . as to any fact, if supported by substantial evidence, shall
be conclusive”). In assessing a claimant’s credibility, the ALJ may consider, inter alia, (1)
inconsistencies in the claimant’s testimony or between her testimony and her conduct; (2)
the claimant’s daily living activities; (3) the claimant’s work record; and (4) testimony
from physicians or third parties concerning the nature, severity, and effect of the claimant’s
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condition. 	Thomas v. Barnhart, 278 F.3d 947, 958–59 (9th Cir. 2002)5; see also Ghanim
v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (listing factors).
If an ALJ’s evaluation of a claimant’s statements is reasonable and is supported by
substantial evidence, it is not the court’s role to engage in second-guessing. 	See Thomas,
278 F.3d at 959 (citation omitted); see also Batson v. Comm’r Soc. Sec. Admin., 359 F.3d
1190, 1196 (9th Cir. 2004) (“When evidence reasonably supports either confirming or
reversing the ALJ’s decision, we may not substitute our judgment for that of the ALJ.”).
However, “[i]f the ALJ fails to specify his or her reasons for finding claimant testimony
not credible, a reviewing court will be unable to review those reasons meaningfully without
improperly ‘substitut[ing] [its] conclusions for the ALJ’s, or speculat[ing] as to the grounds
for the ALJ’s conclusions.’” Brown-Hunter, 806 F.3d at 492 (quoting Treichler, 775 F.3d
at 1103). 	Because reviewing courts “cannot engage in such substitution or speculation,
such error will usually not be harmless.” 	Id. 	But the ALJ’s reliance on other possibly
erroneous credibility findings is harmless if the ALJ’s conclusion on credibility is
supported by other substantial evidence. See Carmickle v. Comm’r Soc. Sec. Admin., 533
F.3d 1155, 1162–63 (9th Cir. 2008).
3. 	ALJ’s Opinion
The ALJ summarized Plaintiff’s symptom testimony as follows:
The claimant alleges an inability to work as a result of both physical and
mental impairments (Exhibit 2E). Function reports completed by the claimant
and his friend, Carrie Whaley, indicate problems with anxiety, depression, and
insomnia. The claimant reportedly has difficulty with social functioning; he
does not like to be around other people. 	The claimant also reportedly has
5 The Court in Thomas also included the claimant’s reputation for truthfulness
as a consideration, but the SSA has since clarified that “[t]he focus of the evaluation of an
individual’s symptoms should not be to determine whether he or she is a truthful person.”
Social Security Ruling (“SSR”) 16-3p, 2017 WL 5180304, at *11 (Oct. 25, 2017); accord
Trevizo v. Berryhill, 871 F.3d 664, 678 n.5 (9th Cir. 2017).
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problems with memory, understanding, following instructions, and getting
along with others. (AR 23.)
The claimant’s activities of daily living are noted to include watching
television, performing household chores (e.g., washing dishes, sweeping,
preparing daily meals, mopping, and shopping in stores for food). He is able
to count change and handle a savings account, but he does not pay bills or use
a checkbook/money order (Exhibits 3E, 4E).
At the hearing, the claimant testified that he is unable to work because of
insomnia; sometimes he goes 4 days without sleeping. 	He experiences
memory problems while unable to remember things. He feels bad anxiety at
night; 	sometimes 	he gets scared 	and panicky. 	The claimant receives
counseling without doctors ever hospitalizing him for mental health issues.
He last drank alcohol a year ago and last smoked marijuana two months ago.
He stopped smoking marijuana because it was giving him anxiety and panic
attacks. 	The claimant does not go out and does not have friends. 	He has
arthritis and experiences pain in his back. He is only able to walk for 2 hours.
He is able to sit until he has to get up to stretch. 	He lays on the floor to
alleviate his pain. 	He further testified to having completed a 10th grade
education and having gone to trade school for welding. He testified to doing
chores at home (e.g., washing dishes, vacuuming, and keeping his living area
clean) (Hearing Testimony).
(AR 29–30.)
In assessing Plaintiff’s subjective symptom testimony, the ALJ determined that
Plaintiff’s “medically determinable impairments could reasonably be expected to cause the
alleged symptoms.” 	(AR 30.) 	However, the ALJ found that Plaintiff’s “statements
concerning the intensity, persistence and limiting effects of these symptoms are not entirely
consistent with the medical evidence and other evidence in the record for the reasons
explained in this decision.” (AR 30.) The ALJ provided the following reasons for rejecting
the severity of Plaintiff’s symptom testimony: (1) inconsistency with Plaintiff’s self-
reported activities of daily living; and (2) improved mental functioning in the absence of
substance use. (AR 32.) The Court will address each reason below.
///
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4. 	Analysis
a. 	Physical Condition: Daily Activities
First, the ALJ discounted Plaintiff’s subjective physical symptom testimony by
pointing to Plaintiff’s “self-reported activities of daily living,” which the ALJ found
“compatible with the ability to sustain the work activities within the confines of the residual
functional capacity.” (AR 32.) The ALJ noted that “despite [Plaintiff’s] allegations related
to his physical condition, the record reflects the ability to engage in regular exercise, such
as biking, lifting weights, walking, and using the treadmill.” (AR 32 (citing Ex. 24F/39,
55).) The ALJ concluded that the “evidence does not suggest the claimant is as physically
limited as he has alleged.” (AR 32.)
“Engaging in daily activities that are incompatible with the severity of symptoms
alleged can support an adverse credibility determination.” Ghanim, 763 F.3d at 1165; see
also Revels v. Berryhill, 874 F.3d 648, 667 (9th Cir. 2017) (“[I]nconsistent daily activities
may provide a justification for rejecting symptom testimony[.]”); Orn v. Astrue, 495 F.3d
625, 639 (9th Cir. 2007) (stating that a contradiction between a claimant’s daily activities
and his or her testimony is a ground for forming the basis of an adverse credibility
determination). In other words, a court may consider inconsistencies between a claimant’s
words and her actions. See Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989), superseded
on other grounds by 20 C.F.R. § 404.1502(a); see also Reddick, 157 F.3d at 722 (“Only if
the level of activity were inconsistent with Claimant’s claimed limitations would these
activities have any bearing on Claimant’s credibility.”). 	However, “the mere fact that a
plaintiff has carried on certain daily activities, such as grocery shopping, driving a car, or
limited walking for exercise, does not in any way detract from her credibility as to her
overall disability.” 	Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001). A claimant
“does not need to be utterly incapacitated in order to be disabled.” Id. (internal quotation
marks and citation omitted).
Daily activities may also “be grounds for an adverse credibility finding ‘if a claimant
is able to spend a substantial part of his day engaged in pursuits involving the performance
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of physical functions that are transferable to a work setting.’” 	Orn, 495 F.3d at 639
(quoting Fair, 885 F.2d at 603). 	To meet this standard, the ALJ “must make ‘specific
findings relating to [the daily] activities’ and their transferability [to a work setting] to
conclude that a claimant’s daily activities warrant an adverse credibility determination.”
Id. (quoting Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005)).
Here, the ALJ cited records indicating that Plaintiff was able to “engage in regular
exercise, such as biking, lifting weights, walking, and using the treadmill” to show that
Plaintiff’s daily activities were incompatible with the severity of Plaintiff’s alleged
physical symptom testimony. (AR 32 (citing Ex. 24F/39, 55).) The first record cited by
the ALJ is from a March 9, 2023 visit with Plaintiff’s mental health provider in which
Plaintiff self-reported that he had “been trying to exercise to see if [it] will get him tired,
lifting some weights and doing some tread mill.” (AR 1524.) In the same record, Plaintiff
noted that he was “exercising every day.” (AR 1524.) The second record cited by the ALJ
is from a June 15, 2023 visit with Plaintiff’s mental health provider in which Plaintiff self-
reported that he had “been riding his bike and trying to exercise, having some back pain,
got a new bike that he was tuning up, got a mountain bike that he is enjoying.” (AR 1508.)
Based on the cited notations and a review of the record, the Court finds that this was
a clear and convincing reason supported by substantial evidence for rejecting the severity
of Plaintiff’s subjective physical symptom testimony.6
b. 	Mental Condition: Improved Mental Functioning
in the Absence of Substance Use
Second, the ALJ discounted Plaintiff’s subjective mental symptom testimony
because Plaintiff “has improved mental functioning in the absence of substance use.” (AR
32.) 	In this regard, the ALJ noted that Plaintiff appears “capable of managing personal
care, preparing daily meals, doing household chores (e.g., washing dishes, vacuuming,
6 The Court notes that Plaintiff does not challenge the sufficiency of this
particular reason.
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sweeping, and mopping), shopping in stores, counting change, handling a savings account,
and watching television.” (AR 32 (citing Exs. 3E, 4E, 18F).)
A claimant’s improvement with treatment is “an important indicator of the intensity
and persistence of . . . symptoms.” 	20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3). 	For
example, “[i]mpairments that can be controlled effectively with medication are not
disabling for the purpose of determining eligibility for SSI benefits.” Warre v. Comm’r of
Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006); see also Wellington v. Berryhill,
878 F.3d 867, 876 (9th Cir. 2017) (stating that “evidence of medical treatment successfully
relieving symptoms can undermine a claim of disability”). 	However, “[r]eports of
‘improvement’ in the context of mental health issues must be interpreted with an
understanding of the patient’s overall well-being and the nature of her symptoms.”
Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014). 	“They must also be interpreted
with an awareness that improved functioning while being treated and while limiting
environmental stressors does not always mean that a claimant can function effectively in a
workplace.” Id. “Caution in making such an inference is especially appropriate when no
doctor or other medical expert has opined, on the basis of a full review of all relevant
records, that a mental health patient is capable of working or is prepared to return to work.”
Id. at 1017–18.
In support of this reason, the ALJ cited the Function Reports submitted by Plaintiff
and his friend Carrie Whaley, both dated August 24, 2021. (AR 32 (citing Exs. 3E, 4E).)
The ALJ also cited the August 4, 2022 Psychological Evaluation done by J. Durr, Ph.D.
(AR 32 (citing Ex. 18F).) 	Each of these reports indicated that Plaintiff was mostly
independent in his activities of daily living.
In 2021, Plaintiff stated that although he can feed himself frozen and canned food
prepared in the microwave and independently use the toilet, he does not care for his hair
and needs to be reminded to shower. (AR 325–26.) He also sometimes sweeps, washes
dishes, and mops, but needs help to finish. (AR 326.) He stated that he can count change
and handle a savings account, but he does not use a checkbook or pay bills because he has
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never done it. (AR 327.) Plaintiff also reported that he does shop in stores for about eight
minutes every month. 	(AR 327.) 	Plaintiff’s friend, Ms. Whaley, supported Plaintiff’s
statements. 	(AR 313–20.) 	Plaintiff also reported to Dr. Durr in 2022 that he was
“independent in activities of daily living, including dressing, bathing, making simple
meals, doing household chores, and shopping.” (AR 1290.) Plaintiff further reported to
Dr. Durr that although he has a driver’s license, he does not drive, and his typical day
consists of watching television and dozing. (AR 1290.)
Here, the Court finds that the ALJ’s general statement that Plaintiff “has improved
mental functioning in the absence of substance use” does not meet the specific, clear and
convincing standard. The ALJ did not identify which of Plaintiff’s subjective statements
regarding his mental health symptoms he did not find credible and point to specific
evidence in the record undermining Plaintiff’s complaints. 	See Brown-Hunter, 806 F.3d
at 493; Holohan, 246 F.3d at 1208. An ALJ errs when he fails to do so. See Burrell, 775
F.3d at 1139. To the extent the ALJ is suggesting that Plaintiff’s ability to be independent
in his activities of daily living, in the manner he performs them, indicates an improvement
in mental functioning in the absence of substance use, he fails to make the requisite
connection to Plaintiff’s symptom statements.
Accordingly, the Court finds that the ALJ erred in rejecting the severity of Plaintiff’s
symptom testimony with respect to his mental impairments.
C. 	Remand for Further Administrative Proceedings is Appropriate
Remand for further administrative proceedings, rather than an award of benefits, is
warranted because further administrative review could remedy the ALJ’s errors. 	See
Brown-Hunter, 806 F.3d at 495 (remanding for an award of benefits is appropriate in rare
circumstances). This is not a case where “further administrative proceedings would serve
no useful purpose.” Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). On remand,
the ALJ shall properly review and evaluate the medical opinions of DNP Roehr and
Dr. Aguila and Plaintiff’s symptom testimony.
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VI. 	CONCLUSION
For the reasons set forth above, the Court GRANTS Plaintiff’s merits brief,
reversing 	the 	decision 	of 	the 	Commissioner, 	and 	remands 	this 	matter 	for 	further
administrative proceedings pursuant to sentence four of 42 U.S.C. § 405(g).
IT IS SO ORDERED.
Dated: March 25, 2026
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