                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUL 18 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

ERIC COTHRELL,                                  No.    16-35653

                Plaintiff-Appellant,            D.C. No. 3:15-cv-00775-HZ

 v.
                                                MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,

                Defendant-Appellee.

                  Appeal from the United States District Court
                           for the District of Oregon
                  Marco A. Hernandez, District Judge, Presiding

                             Submitted July 11, 2018**
                                Portland, Oregon

Before: WARDLAW and OWENS, Circuit Judges, and LEFKOW,*** District
Judge.

      Eric Cothrell appeals from the district court’s judgment affirming the



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
            The Honorable Joan Lefkow, United States District Judge for the
Northern District of Illinois, sitting by designation.
decision by the Commissioner of Social Security denying in part his application for

disability insurance benefits and supplemental security income under Titles II and

XVI of the Social Security Act. We review the district court’s decision de novo,

and the Commissioner’s denial of benefits must be supported by substantial

evidence and a correct application of the law. Molina v. Astrue, 674 F.3d 1104,

1110 (9th Cir. 2012). As the parties are familiar with the facts, we do not recount

them here. We affirm in part, reverse in part, and remand.

      1.     The Administrative Law Judge (“ALJ”) did not err in failing to

consider Cothrell’s alleged “period of abstinence.” Cothrell argues that Social

Security Ruling (“SSR”) 13-2p requires consideration of a period of abstinence

when the severity of a co-occurring impairment increases after that period of

abstinence ends. While SSR 13-2p recognizes that “[a]djudicators may draw

inferences” when a co-occurring impairment’s severity “increase[s] after [a]

period[] of abstinence end[s],” 2013 WL 621536, at *12 (Feb. 20, 2013), SSR 13-

2p also contemplates abstinence periods of “weeks” or “months or even longer,”

id. Cothrell alleges a “period of abstinence” of six days. Cothrell fails to provide

any authority supporting the conclusion that six days constitutes a “period of

abstinence” such that SSR 13-2p would require its consideration. Therefore, we do

not find error. Cf. Molina, 674 F.3d at 1113 n.5 (recognizing that SSRs “do not

carry the ‘force of law’” (citation omitted)).


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      2.     The ALJ’s conclusion that drug addiction and alcoholism (“DAA”)

was “material” to Cothrell’s pre-December 17, 2009 disability was not supported

by substantial evidence. See 20 C.F.R. §§ 404.1535, 416.935 (explaining that

DAA “is a contributing factor material to the determination of disability” when a

claimant’s “remaining limitations would not [otherwise] be disabling”). The ALJ

concluded that DAA was material prior to December 17, 2009 by relying on the

statements of a nonexamining doctor, Dr. Moore, as well as the lay testimony of

Cothrell’s family and former co-worker.

      In reviewing Cothrell’s records, Dr. Moore noted that Cothrell was in an

inpatient program for substance abuse at 21 years old and inferred from this fact

that Cothrell “had drug problems for a long time.” But Cothrell was born in 1963

and thus would have been in an inpatient program around 1984, over twenty years

before Cothrell’s alleged disability onset date of October 28, 2005. Throughout

the rest of the record, Dr. Moore recognized that “the report about the nature and

the extent of [Cothrell’s] drug problem is not consistent. It is often vague.”

Moreover, Dr. Moore stated that she did not believe Cothrell had more than “mild

impairments” in activities of daily living from 2001 to 2007. And the ALJ never

asked about, and Dr. Moore never opined on, the extent of Cothrell’s substance

abuse, or its materiality to a determination of disability for any period prior to

December 17, 2009.


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          The ALJ also relied on lay witness statements from Cothrell’s family and

former co-worker in concluding that DAA was material to his disability prior to

December 17, 2009. Explaining that the ALJ’s determination as to Cothrell’s

“residual functional capacity incorporates information from” Cothrell’s family and

former co-worker, the ALJ found that “due to [DAA],” Cothrell would be absent

from work if he were employed in any of the jobs the vocational expert found him

capable of doing. At the same time, the ALJ explicitly stated that neither

Cothrell’s father nor former co-worker “made any mention or even reference to

[DAA],” and that DAA was “a factor not addressed by” Cothrell’s mother and

sister.

          Other than these sources—Dr. Moore and Cothrell’s family and former co-

worker—the “ALJ offered no basis for his conclusion.” Ghanim v. Colvin, 763

F.3d 1154, 1162 (9th Cir. 2014). And so we conclude that the ALJ’s decision

finding DAA material to Cothrell’s disability prior to December 17, 2009 was not

supported by substantial evidence. See id. Though an ALJ’s error may be deemed

harmless “where it is inconsequential to the ultimate nondisability determination,”

Molina, 674 F.3d at 1115 (internal quotation marks omitted), we cannot affirm the

nondisability decision “on a ground that the agency did not invoke,” Stout v.

Comm’r, 454 F.3d 1050, 1054 (9th Cir. 2006) (internal quotation marks omitted).

          The district court therefore committed reversible error in affirming the


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ALJ’s decision holding DAA material to Cothrell’s disability prior to December

17, 2009.

      3.     The ALJ did not err in failing to consider the testimony of Cothrell’s

mother and sister. The ALJ explicitly stated that he credited their opinions

regarding Cothrell’s “symptoms and limitations.” And to the extent that Cothrell

argues that the ALJ erred in not relying on his mother’s and sister’s opinions as to

his substance use, the ALJ explained his reason not to: neither of them addressed

this part of Cothrell’s history. The ALJ thus gave “specific reasons germane to

each witness” in not considering the lay witness testimony of Cothrell’s mother

and sister on this point. See Regennitter v. Comm’r of Soc. Sec. Admin., 166 F.3d

1294, 1298 (9th Cir. 1999).

      4.     The ALJ did not err in failing to consider the testimony of examining

psychologist Dr. Causeya. Like the ALJ, Dr. Causeya found that Cothrell was

disabled prior to December 17, 2009. Dr. Causeya, did not, however, discuss the

effect of Cothrell’s substance use on her disability determination despite

acknowledging Cothrell’s history of substance use. The ALJ thus did not rely on

Dr. Causeya’s opinion in making his DAA materiality determination. This is a

“specific and legitimate reason[]” to reject Dr. Causeya’s opinion on this point.

Buck v. Berryhill, 869 F.3d 1040, 1050 (9th Cir. 2017) (citation omitted).

      5.     The ALJ erred in failing to discuss Dr. Paltrow’s assessment of


                                          5
Cothrell. See Marsh v. Colvin, 792 F.3d 1170, 1172 (9th Cir. 2015) (recognizing

that completely omitting discussion of a doctor’s opinion is error subject to

harmlessness review). Assuming, as the Commissioner argues, that the

harmlessness test articulated for an ALJ’s failure to discuss lay witness testimony

in Molina, 674 F.3d at 1115, may be extended to an ALJ’s failure to discuss a

medical opinion, here, the ALJ’s error was not harmless. Molina held that an

ALJ’s error in omitting discussion of lay witness testimony may be harmless if the

ALJ rejected testimony of a different lay witness for the same, legally valid

reasons. Id. Here, the ALJ’s reasons for rejecting Dr. Causeya’s opinion either do

not apply to Dr. Paltrow or were not legally valid.

      Two of the reasons the ALJ relied on to reject the opinion of Dr. Causeya do

not apply to the opinion of Dr. Paltrow: unlike Dr. Causeya, (1) Dr. Paltrow

specifically attested to the fact that he believed DAA was not material to Cothrell’s

disability prior to December 17, 2009, and (2) Dr. Paltrow relied on treatment

records that were close in time to the period in question. The only other reasons

the ALJ invoked for rejecting Dr. Causeya’s testimony were not legally valid: (1)

Dr. Causeya’s reliance on lay witness testimony, and (2) that there was evidence in

the record that Cothrell was temporarily self-employed in 2006–07. Cf.

Regennitter, 166 F.3d at 1298 (noting that ALJs must give reasons for discrediting

lay witness testimony); Lewis v. Apfel, 236 F.3d 503, 515–16 (9th Cir. 2001)


                                          6
(recognizing that the amount of money made during self-employment may shift a

presumption of gainful employment).

      6.     Finally, Cothrell argues that we should direct an award of benefits on

remand. Though it is true that there is no medical opinion in the record

affirmatively finding DAA material to Cothrell’s disability prior to December 17,

2009, that does not necessarily mean that DAA was not material. Further, Cothrell

has the burden to prove that DAA was not material, 20 C.F.R. §§ 404.1535,

416.935; Parra v. Astrue, 481 F.3d 742, 748 (9th Cir. 2007), and there is evidence

in the record that Cothrell had substance abuse problems during this time period.

Remand for further proceedings, rather than an award of benefits, is thus

appropriate. Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1101 (9th

Cir. 2014) (“Where there is conflicting evidence, and not all essential factual issues

have been resolved, a remand for an award of benefits is inappropriate.”).

      Accordingly, we reverse and remand to the district court with instructions to

remand to the Social Security Administration for further proceedings consistent

with this disposition.

      The Commissioner shall bear the costs of this appeal.

      AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.




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