MEMORANDUM OPINION AND ORDER

SHERI PYM, Magistrate Judge.

I.

INTRODUCTION

On November 23, 2011, plaintiff Curtis Postell filed a complaint against the Commissioner of the Social Security Administration ("Commissioner"), seeking a review of a denial of a period of disability, disability insurance benefits ("DIB"), and supplemental security income ("SSI"). Both plaintiff and defendant have consented to proceed for all purposes before the assigned Magistrate Judge pursuant to 28 U.S.C. § 636(c). The court deems the matter suitable for adjudication without oral argument.

Based on a liberal construction of Plaintiff's Memorandum in Support of Complaint ("P. Mem."), plaintiff presents two disputed issues for decision: (1) whether the administrative law judge ("ALJ") properly rejected the opinion of plaintiff's treating physician; and (2) whether the ALJ properly credited the opinion of the examining physician.1 P. Mem. at 2-3.

Having carefully studied, inter alia, the parties's written submissions, the Administrative Record ("AR"), and the decisions of the ALJ and Appeals Council ("AC"), the court concludes that, as detailed herein, the ALJ properly credited the opinion of the examining physician, but did not provide clear and convincing reasons to reject the treating physician's opinion. Therefore, the court remands this matter to the Commissioner in accordance with the principles and instructions enunciated in this Memorandum Opinion and Order.

II.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff, who was 46 years old on his alleged disability onset date, completed two years of college. AR at 359, 368. Plaintiff has past relevant work as a security guard. Id. at 73, 365.

On July 19, 2006, plaintiff filed applications for a period of disability, DIB, and SSI, alleging an onset date of July 10, 2005 due to hernias, blood clots, pain in the legs and arms, and an inability to stand and walk "too long." Id. at 287-89, 292-94, 359, 364. The Commissioner denied plaintiff's application initially, after which he filed a request for a hearing. Id. at 150-55.

On February 7, 2008, plaintiff, represented by counsel, appeared and testified before ALJ Zane A. Lang. Id. at 102-28. Heidi Paul, a vocational expert, also provided testimony. Id. at 122-27. On March 28, 2008, ALJ Zang denied plaintiff's claim. Id. at 134-44.

Plaintiff filed a request for review and on April 15, 2010, the AC granted his request and remanded the case. Id. at 148-49. In its order, the AC noted that while his first applications were pending, plaintiff filed subsequent applications for DIB and SSI on April 11, 2008, and was found to be disabled beginning March 29, 2009. Id. at 148. Thus, on remand, the ALJ presiding over the case would only need to decide whether plaintiff was disabled prior to March 29, 2008.2 Id. at 149. The AC ordered the ALJ to obtain the testimony of a medical expert, further evaluate plaintiff's mental impairment, further consider plaintiff's obesity, and if warranted, obtain testimony from a vocational expert. Id.

On March 29, 2011, ALJ Lang held a hearing at which plaintiff, who was represented by counsel, testified. Id. at 77-101. Two medical experts, Dr. Samuel Landau and Dr. Glenn Griffin, as well as a vocational expert, Heidi Paul, also provided testimony. Id. at 80-86, 96-97. On April 12, 2011, ALJ concluded that plaintiff was not disabled for the closed period between July 10, 2005 and March 28, 2009, and denied his claims for benefits. Id. at 42-61.

Plaintiff filed a request for review and on September 15, 2011, the AC affirmed ALJ Lang's non-disability finding. Id. at 33-34. The AC affirmed the finding that plaintiff was disabled beginning March 29, 2008 and adopted ALJ Lang's findings of non-disability to both his DIB and SSI claims. Id.

Subsequently, plaintiff filed the complaint in this case. On stipulation, this case was remanded to the Commissioner on March 21, 2012 because the Office of Disability Adjudication and Review was unable to prepare a certified administrative record due to the fact that significant portions of the March 29, 2011 administrative hearing were inaudible. This court ordered the Commissioner to hold a de novo hearing. The AC then vacated the April 2, 2011 decision. Id. at 5.

On February 11, 2013, ALJ Alexander Weir III conducted an administrative hearing. Id. at 66-76. Plaintiff was represented by counsel but plaintiff failed to appear until the conclusion of the hearing. Id. at 69, 75-76. A vocational expert, Susan Green, provided testimony. Id. at 72-75. On April 3, 2013, ALJ Weir denied plaintiff's claims for benefits. Id. at 4-15.

Applying the well-known five-step sequential evaluation process, the ALJ found, at step one, that plaintiff had not engaged in substantial gainful activity for the period from July 10, 2005 through March 28, 2008. Id. at 9.

At step two, the ALJ found that plaintiff suffered from the following severe impairments during that period: history of deep venous thrombosis; hernias; right knee disorder; obesity; depression; anxiety; cocaine and marijuana abuse; and alcoholism. Id.

At step three, the ALJ found that from July 10, 2005 through March 28, 2008, plaintiff's impairments met sections 12.04, 12.06, and 12.09 of 20 C.F.R. part 404, Subpart P, Appendix 1 (the "Listings"). Id. at 10. The ALJ also found, however, that if plaintiff stopped his substance abuse, his impairments, whether individually or in combination, would not have met or medically equaled any of the Listings. Id. at 11.

The ALJ then assessed plaintiff's residual functional capacity ("RFC"),3 and determined that had he not been abusing substances, he would have had the RFC to perform a limited range of medium work with the following limitations: lift/carry up to 50 pounds occasionally and 25 pounds frequently; stand/walk six hours in an eight-hour day; sit six hours in an eight-hour day; engage in occasional climbing of ropes, ladders, or scaffolds; and work at unprotected heights or on uneven terrain occasionally. Id. The ALJ also found that plaintiff would have had moderate limitations interacting with coworkers, supervisors, and the public, and maintaining attention and concentration. Id.

The ALJ found, at step four, that had plaintiff stopped his substance abuse, he would have been able to perform his past relevant work of security guard. Id. at 14. Consequently, the ALJ determined that plaintiff would not have suffered from a disability as defined by the Social Security Act for the period between July 10, 2005 and March 28, 2008 had he not been abusing substances. Id. at 15. The ALJ's decision stands as the final decision of the Commissioner.

On October 1, 2013, this case was reopened.

III.

STANDARD OF REVIEW

This court is empowered to review decisions by the Commissioner to deny benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security Administration must be upheld if they are free of legal error and supported by substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001) (as amended). But if the court determines that the ALJ's findings are based on legal error or are not supported by substantial evidence in the record, the court may reject the findings and set aside the decision to deny benefits. Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 1144, 1147 (9th Cir. 2001).

"Substantial evidence is more than a mere scintilla, but less than a preponderance." Aukland, 257 F.3d at 1035. Substantial evidence is such "relevant evidence which a reasonable person might accept as adequate to support a conclusion." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 F.3d at 459. To determine whether substantial evidence supports the ALJ's finding, the reviewing court must review the administrative record as a whole, "weighing both the evidence that supports and the evidence that detracts from the ALJ's conclusion." Mayes, 276 F.3d at 459. The ALJ's decision "`cannot be affirmed simply by isolating a specific quantum of supporting evidence.'" Aukland, 257 F.3d at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998)). If the evidence can reasonably support either affirming or reversing the ALJ's decision, the reviewing court "`may not substitute its judgment for that of the ALJ.'" Id. (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)).

IV.

DISCUSSION

A. The ALJ Failed to Provide Clear and Convincing Reasons for Rejecting the Treating Physician's Opinion

Plaintiff argues that he was disabled due to his mental impairment. P. Mem. at 2-3. Plaintiff contends that a physician, who was aware of his substance abuse, diagnosed him with major depression and he is still being treated with counseling and medication. Id.

The ALJ found that plaintiff met Listings 12.04, 12.06, and 12.09, but concluded that had plaintiff not been abusing substances, his impairments would not have been as severe and he would not have met the Listings and been disabled. AR at 9, 11. Defendant contends that there is substantial evidence to support the ALJ's decision that plaintiff would not have been disabled had he not abused substances during the closed period, but fails to specify the evidence. See D. Mem. at 4-6. Indeed, defendant's argument is not so much that substantial evidence supports the ALJ's decision but rather plaintiff did not meet his burden of showing that substance abuse was not material to the disability determination.

"[A]n individual shall not be considered to be disabled for the purposes of [benefits under Title XVI of the Social Security Act] if alcoholism or drug addiction would . . . be a contributing factor material to the Commissioner's determination that the individual is disabled." 42 U.S.C. § 1382c(a)(1)(J); see also Parra v. Astrue, 481 F.3d 742, 746-47 (9th Cir. 2007); Sousa v. Callahan, 143 F.3d 1240, 1242 (9th Cir. 1998) (plaintiff's mental problems during the pertinent period were intertwined and exacerbated by longstanding substance abuse, thereby precluding award of benefits); 20 C.F.R. §§ 404.1535(a), 416.935(a) ("If we find that you are disabled and have medical evidence of your drug addiction or alcoholism, we must determine whether your drug addiction or alcoholism is a contributing factor material to the determination of disability. . . ."). A claimant bears the burden of proving that substance abuse "was not a contributing factor material to his disability." Parra, 481 F.3d at 748.

Here, plaintiff submitted the opinion of his treating physician, Dr. Michael T. Walker.4 Dr. Walker treated plaintiff from September 2007 through at least March 2008. AR at 458-63, 503. In an opinion dated January 30, 2008, Dr. Walker opined that plaintiff suffered from major depression recurrent moderate and post traumatic stress disorder, and would be unable to work for the next two to three years. Id. at 478. In forming his opinion, Dr. Walker noted that plaintiff's psychiatric symptoms and functional impairments existed prior to his substance abuse, leading him to believe that the presence of plaintiff's psychiatric disorder was independent of the substance abuse. Id. at 475. As such, the ALJ was required to provide legally sufficient reasons for why he rejected Dr. Walker's opinion.

In determining whether a claimant has a medically determinable impairment, among the evidence the ALJ considers is medical evidence. 20 C.F.R. §§ 404.1527(b), 416.927(b). In evaluating medical opinions, the regulations distinguish among three types of physicians: (1) treating physicians; (2) examining physicians; and (3) non-examining physicians. 20 C.F.R. §§ 404.1527(c), (e), 416.927(c), (e); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (as amended). "Generally, a treating physician's opinion carries more weight than an examining physician's, and an examining physician's opinion carries more weight than a reviewing physician's." Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001); 20 C.F.R. §§ 404.1527(c)(1)-(2), 416.927(c)(1)-(2). The opinion of the treating physician is generally given the greatest weight because the treating physician is employed to cure and has a greater opportunity to understand and observe a claimant. Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996); Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989).

Nevertheless, the ALJ is not bound by the opinion of the treating physician. Smolen, 80 F.3d at 1285. If a treating physician's opinion is uncontradicted, the ALJ must provide clear and convincing reasons for giving it less weight. Lester, 81 F.3d at 830. If the treating physician's opinion is contradicted by other opinions, the ALJ must provide specific and legitimate reasons supported by substantial evidence for rejecting it. Id. at 830. Likewise, the ALJ must provide specific and legitimate reasons supported by substantial evidence in rejecting the contradicted opinions of examining physicians. Id. at 830-31. The opinion of a non-examining physician, standing alone, cannot constitute substantial evidence. Widmark v. Barnhart, 454 F.3d 1063, 1067 n.2 (9th Cir. 2006); Morgan v. Comm'r, 169 F.3d 595, 602 (9th Cir. 1999); see also Erickson v. Shalala, 9 F.3d 813, 818 n.7 (9th Cir. 1993).

Here, the ALJ provided two reasons for rejecting Dr. Walker's opinion: (1) there was no evidence documenting plaintiff's mental condition prior to his substance abuse; and (2) plaintiff did not have a sufficient period of sobriety from which one could assess the severity of plaintiff's impairments in the absence of substance abuse. AR at 12-13. Neither is a clear and convincing reason supported by substantial evidence.

First, the ALJ appears to be arguing that the absence of medical records prior to 2007 establishes that plaintiff did not need prior medical treatment and he only required it in 2007 and 2008 because his substance abuse exacerbated his impairments. Id. at 12. As an initial matter, persons with mental health impairments often do not seek treatment and thus, the absence of records or "[f]ailure to seek treatment is not a substantial basis on which to conclude that a claimant's mental impairment is not severe." Allen v. Comm'r, 2012 WL 5857269, at *2 (9th Cir. Nov. 19, 2012); Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996) ("[I]t is common knowledge that depression is one of the most underreported illnesses in the country because those afflicted often do not recognize that their condition reflects a potentially serious mental illness."). Here, the record shows that plaintiff consistently stated that he had a history of psychiatric treatment starting as early as age six. See id. at 475, 482, 594. Moreover, plaintiff testified that he tried to seek medical help between 2005 and 2007 but was unable to obtain it. See id. at 111, 113. And even if plaintiff's pre-2007 medical records were obtainable, it is unclear how they would be useful to the ALJ, as most are remote in time and plaintiff's impairments could have grown in severity. As such, the lack of documentation of plaintiff's medical condition prior to 2007 is not a clear and convincing reason to reject Dr. Walker's opinion.

The ALJ's second reason for rejecting Dr. Walker's opinion — the absence of a sufficient period of sobriety which could provide a baseline from which to assess whether plaintiff's alcohol abuse was material to his impairments — is not a clear and convincing reason in this instance. The ALJ found that even if plaintiff had been sober from September 2007 through March 2008, six months was an insufficient amount of time to make an assessment as to whether alcohol abuse was material. Id. at 12-13; but see id. at 92 (medical expert testified that six months was a sufficient period). As discussed in footnote 2, supra, however, the ALJ's apparent belief that the period at issue ended in March 2008, rather than 2009, appears to be incorrect, and is due to a typographical error in the AC's April 15, 2010 order. See AR at 148-49. Assuming the end date of the closed period the ALJ was supposed to be assessing is actually March 28, 2009, then there might exist a period of sobriety sufficient for a physician to ascertain whether alcohol abuse was a material factor to plaintiff's impairments. Indeed, the AC had stated that, if necessary, on remand the ALJ should retain a medical expert. Id. at 149. The ALJ did not.5

Accordingly, the ALJ's conclusion that plaintiff's substance abuse was material to the disability determination was in error, as it was based on the ALJ's legally inadequate rejection of Dr. Walker's opinon. Through the opinion of a treating physician, plaintiff met his burden of showing that the substance abuse was not material and the ALJ failed to provide clear and convincing reasons supported by substantial evidence why he rejected the opinion.

B. The ALJ Properly Credited the Examining Physician's Opinion

Plaintiff argues that the ALJ improperly credited the opinion of the consultative examiner, Dr. Michael Habashy. P. Mem. at 2. Specifically, plaintiff contends that Dr. Habashy failed to perform a physical examination. Id. The court disagrees.

On November 3, 2006, Dr. Habashy examined plaintiff. AR at 443-48. Dr. Habashy observed that plaintiff had swelling and mild tenderness in his left leg but the examination was otherwise normal. Id. at 447. Dr. Habashy also noted that plaintiff had an umbilical hernia. Id. Based on the examination, Dr. Habashy opined that plaintiff could: push/pull/lift/carry 50 pounds occasionally and 25 pounds frequently; stand/walk six hours out of an eight-hour workday; and could perform activities requiring agility occasionally. Id. at 447-48.

Here, plaintiff simply makes a conclusory allegation that Dr. Habashy failed to actually exam him and offer no evidence to support his assertion. As such, the ALJ properly credited the examining physician's opinion.

V.

REMAND IS APPROPRIATE

The decision whether to remand for further proceedings or reverse and award benefits is within the discretion of the district court. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). Where no useful purpose would be served by further proceedings, or where the record has been fully developed, it is appropriate to exercise this discretion to direct an immediate award of benefits. See Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); Harman v. Apfel, 211 F.3d 1172, 1179-80 (9th Cir. 2000) (decision whether to remand for further proceedings turns upon their likely utility). But where there are outstanding issues that must be resolved before a determination can be made, and it is not clear from the record that the ALJ would be required to find a plaintiff disabled if all the evidence were properly evaluated, remand is appropriate. See Benecke, 379 F.3d at 595-96; Harman, 211 F.3d at 1179-80.

Here, as set out above, remand is required because the ALJ failed to provide a clear and convincing reason for rejecting the opinion of plaintiff's treating physician, Dr. Walker. On remand, the ALJ shall: clarify the ending date of the closed period; reconsider the opinion of Dr. Walker and either credit his opinion or provide clear and convincing reasons supported by substantial evidence for rejecting it; and retain a medical expert if necessary as ordered by the AC in its April 15, 2010 decision. The ALJ shall then proceed through steps four and five to determine what work, if any, plaintiff is capable of performing.

VI.

CONCLUSION

IT IS THEREFORE ORDERED that Judgment shall be entered REVERSING the decision of the Commissioner denying benefits, and REMANDING the matter to the Commissioner for further administrative action consistent with this decision.