NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROY ANDREWS, 

Plaintiff-Appellant, 

 v. 

KILOLO KIJAKAZI, Acting Commissioner 

of Social Security, 

Defendant-Appellee.

No. 22-35529 

D.C. No. 4:21-cv-05079-TOR 

MEMORANDUM*

Appeal from the United States District Court

for the Eastern District of Washington

Thomas O. Rice, District Judge, Presiding

Submitted July 14, 2023**

Seattle, Washington

Before: GRABER, GOULD, and PAEZ, Circuit Judges.

Plaintiff Roy Andrews appeals from the judgment affirming an 

administrative law judge’s (“ALJ”) decision denying Plaintiff’s claim for social 

security disability insurance benefits. We review de novo the district court’s 

* 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).

FILED

JUL 18 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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decision and may set aside the denial of benefits only for legal error or lack of 

substantial evidence. Trevizo v. Berryhill, 871 F.3d 664, 674 (9th Cir. 2017). We 

affirm.

1. The ALJ provided clear and convincing reasons to discount the opinions 

of Dr. N.K. Marks and Dr. Holly Petaja.1 See Farlow v. Kijakazi, 53 F.4th 485, 

488 (9th Cir. 2022) (“To reject the uncontested opinion of an examining or treating 

doctor, an ALJ must provide ‘clear and convincing’ reasons supported by 

substantial evidence.” (citation omitted)). A claimant is barred from receiving 

benefits if the claimant’s drug addiction or alcoholism was “a contributing factor 

material to the Commissioner’s determination that the individual is disabled.” 42 

U.S.C. § 423(d)(2)(C); see generally 20 C.F.R. § 404.1535. Here, the record 

reflects that, although Plaintiff’s providers noted numerous mental impairments, 

his alcohol use affected the severity of those impairments. Because, during the 

time of those evaluations, Plaintiff was either actively drinking or still suffering 

from the lingering effects of his alcohol use, substantial evidence supports the 

ALJ’s conclusion that Dr. Marks and Dr. Petaja could not have reasonably opined 

about Plaintiff’s condition in the absence of alcohol. See SSR 13-2p, 2013 WL 

621536, at *12, as corrected, SSR 13-2p, 2013 WL 1221979 (March 22, 2013)

1 For claims filed on or after March 27, 2017, the Social Security Administration 

has changed the regulations that govern the evaluation of medical evidence. 20 

C.F.R. § 404.1520c. Plaintiff’s claim was filed before that change took effect.
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(stating that the effects of substance use can “take months or even longer to 

subside” and that, when identifying a period of abstinence, “the claimant should be 

abstinent long enough to allow the acute effects of drug or alcohol use to abate”). 

2. The ALJ also provided germane reasons to discount the opinions of 

Advanced Registered Nurse Practitioner (“ARNP”) Deborah Rogers and 

Counselor Adriana Lozano. See Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 

2012) (holding that an ALJ may discount testimony from “other sources” if the 

ALJ “gives reasons germane to each witness for doing so” (citation and internal 

quotation marks omitted)), superseded on other grounds by 20 C.F.R. 

§ 404.1502(a). Substantial evidence supports the ALJ’s decision because those 

opinions, like the opinions of Dr. Marks and Dr. Petaja, fail to reflect Plaintiff’s 

functioning during a period of sustained sobriety. 

The ALJ also properly rejected ARNP Rogers’ 2016 opinion, for an 

additional reason. Although ARNP Rogers assigned Plaintiff primarily physical 

functional limitations, she pointed nearly exclusively to mental impairments as the 

basis for those limitations. Plaintiff himself did not allege significant physical 

limitations, either at the hearing or in his function report. 
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3. The ALJ did not fail to meet his duty to develop the record. Neither the 

district court’s remand order,2 nor any factual gap or ambiguity in the record, 

required the ALJ to develop the record any further. Indeed, post-remand, the 

record in this case contains a detailed account of Plaintiff’s testimony; function 

reports; and treatment records, both during and after Plaintiff’s period of substance 

abuse. See Ford v. Saul, 950 F.3d 1141, 1156 (9th Cir. 2020) (“Given that the 

ALJ had years of [Plaintiff’s] mental health records and multiple opinions from 

non-examining psychiatrists to inform her decision, this duty [to further develop 

the record] was not triggered.”). 

For those same reasons, we also reject Plaintiff’s argument that he was 

denied due process when the ALJ declined to order a psychological examination 

and cancelled the testimony of a psychological expert. Plaintiff had two hearings 

before the ALJ and had the opportunity to submit evidence at each. See Mathews 

v. Eldridge, 424 U.S. 319, 333 (1976) (“The fundamental requirement of due 

process is the opportunity to be heard at a meaningful time and in a meaningful 

manner.” (citation and internal quotation marks omitted)). 

2 The district court’s prior remand order held that Plaintiff “should be afforded an 

opportunity to supplement the medical evidence to address his contention that his 

physical and mental impairments would exist independent of any substance abuse.” 

The court ordered the ALJ to “develop the record as necessary.” (Emphasis 

added.)
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4. The ALJ provided clear and convincing reasons to discount Plaintiff’s 

subjective symptom testimony. When there is no evidence of malingering, an ALJ 

may “reject [a] claimant’s testimony about the severity of [his] symptoms only by 

offering specific, clear and convincing reasons for doing so.” Smith v. Kijakazi, 

14 F.4th 1108, 1112 (9th Cir. 2021) (citation and internal quotation marks 

omitted). In considering Plaintiff’s limitations in the absence of substance abuse, 

Parra v. Astrue, 481 F.3d 742, 747 (9th Cir. 2007), the ALJ found Plaintiff’s 

testimony concerning the intensity, persistence, and limiting effects of his 

symptoms to be inconsistent with other evidence in the record, which showed 

improvement during periods of sobriety. The ALJ also reasonably discounted that 

testimony because it was inconsistent with Plaintiff’s daily activities, which 

reflected an ability to complete tasks, care for himself, and function normally in 

public. See Lingenfelter v. Astrue, 504 F.3d 1028, 1040 (9th Cir. 2007) (noting 

that, in assessing credibility, an ALJ may consider “whether the claimant engages 

in daily activities inconsistent with the alleged symptoms”). Although Plaintiff 

claimed that his anxiety is so severe that he is unable to leave his room about half 

the time, the record shows that he buys and sells coins at a thrift store, goes to his 

family’s home for holidays, rides his bike, runs errands for his daughter, swims in 

the motel pool, and gets breakfast at the motel every day. In light of that evidence, 

the ALJ’s credibility finding is supported by substantial evidence.
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5. Substantial evidence also supports the ALJ’s conclusion that, at step three 

of the sequential process, Plaintiff’s medically determinable impairments were not 

per se disabling under the Commissioner’s Listing of Impairments. 20 C.F.R. 

§§ 404.1520(d), 404.1525, 404.1526. Listed impairments are purposefully set at a 

high level of severity because “the [L]istings were designed to operate as a 

presumption of disability that makes further inquiry unnecessary.” Sullivan v. 

Zebley, 493 U.S. 521, 532 (1990), superseded by statute on other grounds as stated 

in Kennedy v. Colvin, 738 F.3d 1172, 1174 (9th Cir. 2013). The ALJ properly 

concluded that, including Plaintiff’s substance use, Plaintiff met Listings 12.04 

(depression), 12.06 (anxiety), and 12.11 (neurodevelopmental disorder). But when 

the effects of Plaintiff’s alcohol use were excluded, he did not meet those Listings 

because his limitations were, at most, moderate in nature. See 20 C.F.R. Part 404, 

Subpt. P, App. 1, 12.00(A)(2)(b) (stating that a claimant’s mental disorder renders 

him disabled if it “result[s] in ‘extreme’ limitation of one, or ‘marked’ limitation of 

two, of the four areas of mental functioning”).

6. Plaintiff also argues that the ALJ erred at step five of the sequential 

process by relying on vocational expert testimony in response to an incomplete 

hypothetical. But the success of that argument depends on the argument that the 

ALJ improperly rejected limitations assessed by various sources and asserted by 

Plaintiff himself. As explained above, those arguments are unpersuasive. 
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AFFIRMED.