Opinion
NO. 1:19-CV-3207-TOR
05-15-2020
DUFF F., Plaintiff, v. ANDREW M. SAUL, Commissioner of Social Security, Defendant.
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
BEFORE THE COURT are the parties' cross-motions for summary judgment (ECF Nos. 14, 21). Plaintiff is represented by D. James Tree. Defendant is represented by Martha A. Boden. This matter was submitted for consideration without oral argument. The Court has reviewed the administrative record and the parties' completed briefing and is fully informed. For the reasons discussed below, the Court DENIES Plaintiff's motion and GRANTS Defendant's motion.
JURISIDCTION
The Court has jurisdiction over this case pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3).
STANDARD OF REVIEW
A district court's review of a final decision of the Commissioner of Social Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is limited: the Commissioner's decision will be disturbed "only if it is not supported by substantial evidence or is based on legal error." Hill v. Astrue, 698 F.3d 1153, 1158-59 (9th Cir. 2012) (citing 42 U.S.C. § 405(g)). "Substantial evidence" means relevant evidence that "a reasonable mind might accept as adequate to support a conclusion." Id. at 1159 (quotation and citation omitted). Stated differently, substantial evidence equates to "more than a mere scintilla[,] but less than a preponderance." Id. (quotation and citation omitted). In determining whether this standard has been satisfied, a reviewing court must consider the entire record as a whole rather than searching for supporting evidence in isolation. Id.
In reviewing a denial of benefits, a district court may not substitute its judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). If the evidence in the record "is susceptible to more than one rational interpretation, [the court] must uphold the ALJ's findings if they are supported by inferences reasonably drawn from the record." Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court "may not reverse an ALJ's decision on account of an error that is harmless." Id. An error is harmless "where it is inconsequential to the [ALJ's] ultimate nondisability determination." Id. at 1115 (quotation and citation omitted). The party appealing the ALJ's decision generally bears the burden of establishing that it was harmed. Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009).
FIVE STEP SEQUENTIAL EVALUATION PROCESS
A claimant must satisfy two conditions to be considered "disabled" within the meaning of the Social Security Act. First, the claimant must be "unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). Second, the claimant's impairment must be "of such severity that [he or she] is not only unable to do [his or her] previous work[,] but cannot, considering [his or her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
The Commissioner has established a five-step sequential analysis to determine whether a claimant satisfies the above criteria. See 20 C.F.R. § 416.920(a)(4)(i)-(v). At step one, the Commissioner considers the claimant's work activity. 20 C.F.R. § 416.920(a)(4)(i). If the claimant is engaged in "substantial gainful activity," the Commissioner must find that the claimant is not disabled. 20 C.F.R. § 416.920(b).
If the claimant is not engaged in substantial gainful activities, the analysis proceeds to step two. At this step, the Commissioner considers the severity of the claimant's impairment. 20 C.F.R. § 416.920(a)(4)(ii). If the claimant suffers from "any impairment or combination of impairments which significantly limits [his or her] physical or mental ability to do basic work activities," the analysis proceeds to step three. 20 C.F.R. § 416.920(c). If the claimant's impairment does not satisfy this severity threshold, however, the Commissioner must find that the claimant is not disabled. Id.
At step three, the Commissioner compares the claimant's impairment to several impairments recognized by the Commissioner to be so severe as to preclude a person from engaging in substantial gainful activity. 20 C.F.R. § 416.920(a)(4)(iii). If the impairment is as severe or more severe than one of the enumerated impairments, the Commissioner must find the claimant disabled and award benefits. 20 C.F.R. § 416.920(d).
If the severity of the claimant's impairment does meet or exceed the severity of the enumerated impairments, the Commissioner must pause to assess the claimant's "residual functional capacity." Residual functional capacity ("RFC"), defined generally as the claimant's ability to perform physical and mental work activities on a sustained basis despite his or her limitations (20 C.F.R. § 416.945(a)(1)), is relevant to both the fourth and fifth steps of the analysis.
At step four, the Commissioner considers whether, in view of the claimant's RFC, the claimant is capable of performing work that he or she has performed in the past ("past relevant work"). 20 C.F.R. § 416.920(a)(4)(iv). If the claimant is capable of performing past relevant work, the Commissioner must find that the claimant is not disabled. 20 C.F.R. § 416.920(f). If the claimant is incapable of performing such work, the analysis proceeds to step five.
At step five, the Commissioner considers whether, in view of the claimant's RFC, the claimant is capable of performing other work in the national economy. 20 C.F.R. § 416.920(a)(4)(v). In making this determination, the Commissioner must also consider vocational factors such as the claimant's age, education and work experience. Id. If the claimant is capable of adjusting to other work, the Commissioner must find that the claimant is not disabled. 20 C.F.R. § 416.920(g)(1). If the claimant is not capable of adjusting to other work, the analysis concludes with a finding that the claimant is disabled and is therefore entitled to benefits. Id.
The claimant bears the burden of proof at steps one through four above. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to step five, the burden shifts to the Commissioner to establish that (1) the claimant is capable of performing other work; and (2) such work "exists in significant numbers in the national economy." 20 C.F.R. § 416.960(c)(2); Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012).
"A finding of 'disabled' under the five-step inquiry does not automatically qualify a claimant for disability benefits." Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007) (citing Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001)). When there is medical evidence of drug or alcohol addiction ("DAA"), the ALJ must determine whether the DAA is a material factor contributing to the disability. 20 C.F.R. § 416.935(a). In order to determine whether DAA is a material factor contributing to the disability, the ALJ must evaluate which of the current physical and mental limitations would remain if the claimant stopped using drugs or alcohol, then determine whether any or all of the remaining limitations would be disabling. 20 C.F.R. § 416.935(b)(2). If the remaining limitations would not be disabling, DAA is a contributing factor material to the determination of disability. Id. If the remaining limitations would be disabling, the claimant is disabled independent of the drug or alcohol addiction and the addiction is not a contributing factor material to disability. Id. The claimant has the burden of showing that DAA is not a contributing factor material to disability. Parra, 481 F.3d at 748.
ALJ'S FINDINGS
On June 28, 2016, Plaintiff filed an application for Title XVI supplemental security income benefits, alleging a disability onset date of December 8, 2014. Tr. 188-202. The application was denied initially, Tr. 115-18, and on reconsideration, Tr. 122-24. Plaintiff appeared at a hearing before an administrative law judge ("ALJ") on June 20, 2018. Tr. 37-65. On August 13, 2018, the ALJ denied Plaintiff's claim. Tr. 12-34.
At step one of the sequential evaluation analysis, the ALJ found Plaintiff had engaged in substantial gainful activity from July 2017 through the date of the ALJ's decision, but that there had been a continuous 12-month period during which Plaintiff did not engage in substantial gainful activity. Tr. 18-19. At step two, the ALJ found Plaintiff had the following severe impairments: chronic depression, personality disorder, ongoing methamphetamine abuse and dependence, mild lumbago, and hepatitis C. Tr. 19. At step three, the ALJ found that Plaintiff's impairments, including the substance use disorder, met section 12.04 of the listed impairments. Tr. 20. However, the ALJ found that if Plaintiff stopped the substance use, Plaintiff would not have an impairment or combination of impairments that meets or medically equals the severity of a listed impairment. Tr. 22. The ALJ then found that, if Plaintiff stopped the substance use, Plaintiff would have the RFC to perform medium work with the following nonexertional limitations:
[H]e is able to understand, remember, and complete simple repetitive tasks; he is able to maintain attention and concentration on simple repetitive tasks for two hour intervals between regularly scheduled breaks; there should be a predictable work environment with seldom changes; there should only be simple judgment/decision making; there should be fast paced production rate of pace; interaction with the public should be brief and superficial; interaction with coworkers should be non-collaborative, no teamwork; and he should deal with things, rather than people.Tr. 23.
At step four, the ALJ found that, if Plaintiff stopped the substance use, he would be able to perform past relevant work as a laborer, salvage. Tr. 28-29. The ALJ concluded that substance use disorder is a contributing factor material to the determination of disability because Plaintiff would not be disabled if he stopped the substance use, so Plaintiff was not under a disability, as defined in the Social Security Act, from June 28, 2016, the filing date, through August 13, 2018, the date of the ALJ's decision. Tr. 29.
On July 10, 2019, the Appeals Council denied review, Tr. 1-6, making the ALJ's decision the Commissioner's final decision for purposes of judicial review. See 42 U.S.C. § 1383(c)(3). // //
ISSUES
Plaintiff seeks judicial review of the Commissioner's final decision denying him supplemental security income benefits under Title XVI of the Social Security Act. Plaintiff raises the following issues for this Court's review:
1. Whether substantial evidence supports the ALJ's finding that Plaintiff's DAA was material;ECF No. 14 at 2.
2. Whether the ALJ properly weighed Plaintiff's symptom testimony; and
3. Whether the ALJ properly weighed the medical opinion evidence.
DISCUSSION
A. Material DAA
Plaintiff challenges the ALJ's conclusion that Plaintiff's substance use was material to the disability determination. ECF No. 14 at 4-7. Social Security claimants may not receive benefits where DAA is a material contributing factor to disability. See 20 C.F.R. § 416.935(a); 42 U.S.C. § 423(d)(2)(c). DAA is a materially contributing factor if the claimant would not meet the SSA's definition of disability if the claimant were not using drugs or alcohol. 20 C.F.R. § 416.935(b). Plaintiff has the burden of showing that drug and alcohol addiction is not a contributing factor material to disability. Parra, 481 F.3d at 748; see also SSR 13-2p, 2013 WL 621536, at *4.
Here, the ALJ found that Plaintiff's ongoing methamphetamine use was material to Plaintiff's disability determination. Tr. 22, 29. The ALJ found that Plaintiff's impairments met the severity of a listed impairment when Plaintiff's substance use disorder was included in the analysis. Tr. 20. However, the ALJ noted that when Plaintiff maintained a period of sobriety in the spring and summer of 2017, Plaintiff's functioning improved significantly to the point that he could return to full-time work. Tr. 23-25; see Tr. 836 (May 4, 2017: Plaintiff completed intensive inpatient treatment); Tr. 767 (June 7, 2017: Plaintiff reported putting out job applications, volunteering at a food bank, and attending résumé-writing classes); Tr. 758-59 (June 22, 2017: Plaintiff reported being 72 days sober and attributed a decrease in his depressive symptoms to his sobriety; Plaintiff reported that his mental health symptoms were "well controlled"); Tr. 835 (July 3, 2017: Plaintiff completed intensive outpatient treatment); Tr. 731 (July 3, 2017: Plaintiff reported looking for full-time employment); Tr. 753 (August 3, 2017: Plaintiff reported he was able to open a bank account and had been saving money). The ALJ also identified evidence in the record that attributed Plaintiff's mental impairments to his ongoing substance use. Tr. 20-21, 26; see Tr. 515-16 (September 21, 2016: Dr. Billings noted Plaintiff's mental health symptoms were "common among individuals who are methamphetamine users"); Tr. 549 (October 21, 2016: Dr. Chase observed "much of [Plaintiff's] psychiatric symptoms appear to be meth related"). Based on this record, the ALJ reasonably concluded that Plaintiff's methamphetamine use was material to the disability determination.
Plaintiff challenges the ALJ's finding by arguing for a different interpretation of the medical opinion evidence. ECF No. 14 at 5-6. Plaintiff's specific challenges to the ALJ's evaluation of the medical opinion evidence are addressed below.
Additionally, Plaintiff challenges the ALJ's DAA finding by identifying evidence in the record showing Plaintiff had mental impairments during times of sobriety and evidence that Plaintiff was able to continue working full-time after relapsing on methamphetamine. ECF No. 14 at 7. However, it is the ALJ's responsibility to resolve conflicts in the medical evidence. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). Even if the "evidence is susceptible to more than one rational interpretation, the ALJ's decision should be upheld." Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (internal quotation marks omitted). The ALJ noted that Plaintiff's own testimony was that his methamphetamine use decreased significantly during the period in which he worked while continuing to use methamphetamine. Tr. 24; see Tr. 58. The ALJ reasonably concluded that Plaintiff's improved functioning while sober or using methamphetamine at a significantly decreased level indicated that his heavy methamphetamine use during the relevant period was material to the disability analysis. Tr. 22-23. Although Plaintiff urges this Court to adopt a different interpretation of the evidence, the reviewing court is not a finder of fact. Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989). Where the ALJ's interpretation of the record is reasonable as it is here, it should not be second-guessed. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). The ALJ's DAA materiality finding is supported by substantial evidence.
B. Plaintiff's Symptom Testimony
Plaintiff contends the ALJ failed to rely on clear and convincing reasons to discredit his symptom testimony. ECF No. 14 at 16-20.
An ALJ engages in a two-step analysis to determine whether to discount a claimant's testimony regarding subjective symptoms. SSR 16-3p, 2016 WL 1119029, at *2. "First, the ALJ must determine whether there is 'objective medical evidence of an underlying impairment which could reasonably be expected to produce the pain or other symptoms alleged.'" Molina, 674 F.3d at 1112 (quoting Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009)). "The claimant is not required to show that [the claimant's] impairment 'could reasonably be expected to cause the severity of the symptom [the claimant] has alleged; [the claimant] need only show that it could reasonably have caused some degree of the symptom.'" Vasquez, 572 F.3d at 591 (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007)).
Second, "[i]f the claimant meets the first test and there is no evidence of malingering, the ALJ can only reject the claimant's testimony about the severity of the symptoms if [the ALJ] gives 'specific, clear and convincing reasons' for the rejection." Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citations omitted). General findings are insufficient; rather, the ALJ must identify what symptom claims are being discounted and what evidence undermines these claims. Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)); Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (requiring the ALJ to sufficiently explain why he or she discounted claimant's symptom claims). "The clear and convincing [evidence] 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)).
Factors to be considered in evaluating the intensity, persistence, and limiting effects of a claimant's symptoms include: (1) daily activities; (2) the location, duration, frequency, and intensity of pain or other symptoms; (3) factors that precipitate and aggravate the symptoms; (4) the type, dosage, effectiveness, and side effects of any medication an individual takes or has taken to alleviate pain or other symptoms; (5) treatment, other than medication, an individual receives or has received for relief of pain or other symptoms; (6) any measures other than treatment an individual uses or has used to relieve pain or other symptoms; and (7) any other factors concerning an individual's functional limitations and restrictions due to pain or other symptoms. SSR 16-3p, 2016 WL 1119029, at *7-*8; 20 C.F.R. § 416.929(c). The ALJ is instructed to "consider all of the evidence in an individual's record," "to determine how symptoms limit ability to perform work-related activities." SSR 16-3p, 2016 WL 1119029, at *2.
The ALJ found that, if Plaintiff stopped the substance use, Plaintiff's impairments could reasonably be expected to cause the alleged symptoms; however, Plaintiff's statements concerning the intensity, persistence, and limiting effects of those symptoms were not entirely consistent with the evidence. Tr. 24.
1. Inconsistent Reporting of Drug Use
The ALJ found Plaintiff's symptom reporting was less credible because the record showed Plaintiff inconsistently reported his drug use. Tr. 24-25. The ALJ may consider "ordinary techniques of credibility evaluation," such as reputation for lying, prior inconsistent statements concerning symptoms, and other testimony that "appears less than candid." Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). Inconsistent statements about drug use are appropriate grounds for the ALJ to discount a claimant's reported symptoms. Thomas, 278 F.3d at 959.
Here, the ALJ noted that Plaintiff repeatedly reported himself to be sober at times when other evidence in the record indicated he was still using methamphetamine. Tr. 24-25; compare Tr. 335 (September 15, 2015: Plaintiff reported being sober since March 2015) with Tr. 499 (September 30, 2015: Plaintiff reported he had not used methamphetamine since January 2015) and Tr. 291 (August 4, 2015: Plaintiff reported that he had used methamphetamine twice since April 2015). The ALJ reasonably concluded that this inconsistent reporting of his methamphetamine use undermined the credibility of Plaintiff's symptom reporting. Tr. 24-25. This finding is supported by substantial evidence.
2. Work Activity
The ALJ found Plaintiff's symptom reporting was inconsistent with his own work history. Tr. 25. Working with an impairment supports a conclusion that the impairment is not disabling. See Drouin v. Sullivan, 966 F.2d 1255, 1258 (9th Cir. 1992); see also Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009) (seeking work despite impairment supports inference that impairment is not disabling). Here, the ALJ noted that Plaintiff reported looking for employment throughout the record. Tr. 25; see Tr. 531 (November 15, 2016: Plaintiff reported applying to jobs because he was "fed up waiting around to get approved for SSI"); Tr. 767 (June 7, 2017: Plaintiff reported volunteering at a food bank and putting out job applications); Tr. 731 (July 6, 2017: Plaintiff reported working part-time and applying for full-time work). The ALJ reasonably concluded that Plaintiff's history of applying for jobs and working, particularly when not using methamphetamine, was inconsistent with his allegations of disability despite ongoing drug use. Tr. 25. This finding is supported by substantial evidence.
3. Symptom Improvement
The ALJ found Plaintiff's symptom allegations were inconsistent with his record of symptom improvement when he was sober and compliant with drug treatment. Tr. 25. The effectiveness of mitigating measures is a relevant factor in determining the severity of a claimant's symptoms. 20 C.F.R. § 416.929(c)(3). Here, the ALJ found that Plaintiff reported an improvement in his mental health symptoms during his period of extended sobriety in the spring and summer of 2017. Tr. 25; see Tr. 770 (May 31, 2017: Plaintiff reported an improvement in symptoms with a medication adjustment); Tr. 764 (June 14, 2017: Plaintiff reported feeling good now that he was sober and taking medications as prescribed); Tr. 758-59 (June 22, 2017: Plaintiff attributed a decrease in his depressive symptoms to sobriety, stated that he felt his mental health symptoms were "well controlled," and scored a 3 on the PHQ-9, which exceeded his treatment goal of scoring a 5 on the PHQ-9). Plaintiff challenges the ALJ's reliance on evidence from after the closed period as irrelevant to Plaintiff's functioning during the closed period. ECF No. 14 at 20. However, the ALJ's reliance on this evidence from Plaintiff's period of sobriety is relevant to the ALJ's DAA analysis and consideration of Plaintiff's functioning if Plaintiff were to stop the substance use. See SSR 13-2p, 2013 WL 621536, at *12. The ALJ reasonably concluded that the evidence showing improvement in Plaintiff's symptoms while sober was inconsistent with his symptom allegations. Tr. 25. This finding is supported by substantial evidence.
4. Lack of Supporting Medical Evidence
The ALJ found that Plaintiff's symptom allegations were not supported by the medical evidence. Tr. 24, 26. An ALJ may not discredit a claimant's symptom testimony and deny benefits solely because the degree of the symptoms alleged is not supported by objective medical evidence. Rollins, 261 F.3d at 857; Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir. 1991). However, the objective medical evidence is a relevant factor, along with the medical source's information about the claimant's pain or other symptoms, in determining the severity of a claimant's symptoms and their disabling effects. Rollins, 261 F.3d at 857; 20 C.F.R. § 416.929(c)(2). Additionally, evidence of "conservative treatment" is sufficient to discount a claimant's testimony regarding the severity of an impairment. Parra, 481 F.3d at 751 (citing Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995)).
Here, the ALJ noted that despite alleging disabling psychiatric conditions, Plaintiff never required emergent psychiatric intervention. Tr. 24; see Tr. 45. The ALJ also summarized the consultative examination findings and opinions but noted that opinions based on Plaintiff's subjective reporting were less credible because of Plaintiff's inconsistent reporting of his own substance use to those providers. Tr. 24-26. Considering Plaintiff's physical impairments, the ALJ found that despite alleging physical limitations such that he could only walk for a "couple blocks" before needing to rest, objective imaging showed only mild findings and Plaintiff never sought more extensive treatment than physical therapy. Tr. 24, 26; see Tr. 710 (November 30, 2016: spinal imaging showed minimal scoliosis, multilevel spondylosis with facet arthrosis, and degenerative disc changes); Tr. 685-706 (physical therapy records). The ALJ reasonably concluded that these mild findings did not support the level of limitation Plaintiff alleged. Tr. 24-26. This finding is supported by substantial evidence.
5. Daily Activities
The ALJ found Plaintiff's symptom reporting was inconsistent with his daily activities. Tr. 25. The ALJ may consider a claimant's activities that undermine reported symptoms. Rollins, 261 F.3d at 857. If a claimant can spend a substantial part of the day engaged in pursuits involving the performance of exertional or non-exertional functions, the ALJ may find these activities inconsistent with the reported disabling symptoms. Fair, 885 F.2d at 603; Molina, 674 F.3d at 1113. "While a claimant need not vegetate in a dark room in order to be eligible for benefits, the ALJ may discount a claimant's symptom claims when the claimant reports participation in everyday activities indicating capacities that are transferable to a work setting" or when activities "contradict claims of a totally debilitating impairment." Molina, 674 F.3d at 1112-13. Here, the ALJ found that Plaintiff's daily activities included riding bicycles, playing sports, hunting, and fishing. Tr. 25; see Tr. 718. The evidence cited by the ALJ indicates that Plaintiff expressed an interest in these activities, but it does not document whether Plaintiff actually did these activities or with what frequency. Tr. 718. Accordingly, this finding is not supported by substantial evidence.
Although the ALJ's finding here was error, the error is harmless. Error in evaluating a claimant's subjective symptom testimony is harmless where the ALJ lists additional reasons, supported by substantial evidence, for discrediting Plaintiff's symptom complaints. Molina, 674 F.3d at 1115 ("[S]everal of our cases have held that an ALJ's error was harmless where the ALJ provided one or more invalid reasons for disbelieving a claimant's testimony, but also provided valid reasons that were supported by the record."); Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004) (holding that any error the ALJ committed in asserting one impermissible reason for claimant's lack of credibility did not negate the validity of the ALJ's ultimate conclusion that the claimant's testimony was not credible). Here, because the ALJ provided several other clear and convincing reasons to discredit Plaintiff's symptom testimony, the ALJ's error is harmless. Plaintiff is not entitled to relief on this ground.
C. Medical Opinion Evidence
Plaintiff challenges the ALJ's evaluation of the medical opinions of Rebekah Cline, Psy.D.; Ivonne Garcia, M.S.W.; Marybeth Wheeler, ARNP; Emma Billings, Ph.D.; Rita Flanagan, Ph.D.; John Gilbert, Ph.D.; and Donna LaVallie, D.O. ECF No. 14 at 8-16.
There are three types of physicians: "(1) those who treat the claimant (treating physicians); (2) those who examine but do not treat the claimant (examining physicians); and (3) those who neither examine nor treat the claimant [but who review the claimant's file] (nonexamining [or reviewing] physicians)." Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001) (citations omitted). Generally, the opinion of a treating physician carries more weight than the opinion of an examining physician, and the opinion of an examining physician carries more weight than the opinion of a reviewing physician. Id. In addition, the Commissioner's regulations give more weight to opinions that are explained than to opinions that are not, and to the opinions of specialists on matters relating to their area of expertise over the opinions of non-specialists. Id. (citations omitted).
If a treating or examining physician's opinion is uncontradicted, an ALJ may reject it only by offering "clear and convincing reasons that are supported by substantial evidence." Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). "However, the ALJ need not accept the opinion of any physician, including a treating physician, if that opinion is brief, conclusory and inadequately supported by clinical findings." Bray, 554 F.3d at 1228 (internal quotation marks and brackets omitted). "If a treating or examining doctor's opinion is contradicted by another doctor's opinion, an ALJ may only reject it by providing specific and legitimate reasons that are supported by substantial evidence." Id. (citing Lester, 81 F.3d at 830-831). The opinion of a nonexamining physician may serve as substantial evidence if it is supported by other independent evidence in the record. Andrews, 53 F.3d at 1041.
The opinion of an acceptable medical source such as a physician or psychologist is different from that of a non-acceptable medical source. 20 C.F.R. § 416.927(f)(1). The ALJ is required to consider the opinions of non-acceptable medical sources. 20 C.F.R. § 416.927(c). The factors used to weigh the opinion of a non-acceptable medical source are the same as those used to weigh the opinion of an acceptable medical source, although not every factor will apply in every case. 20 C.F.R. § 416.927(c)(1)-(6), (f)(1). The ALJ is only required to provide germane reasons to reject the opinion of an "other source," including that of a non-acceptable medical source. Popa v. Berryhill, 872 F.3d 901, 906 (9th Cir. 2017) (citing Molina, 674 F.3d at 1111). // //
1. Dr. Cline
On September 30, 2015, Dr. Cline evaluated Plaintiff and opined Plaintiff had marked impairment in his ability to understand, remember, and persist in tasks by following detailed instructions; maintain appropriate behavior in a work setting; and complete a normal work day and work week without interruptions from psychologically based symptoms; that Plaintiff's impairments were not primarily the result of drug or alcohol use within the past 60 days; and that Plaintiff's impairments would be expected to last 9-12 months with treatment. Tr. 498-502. On August 31, 2016, Dr. Cline evaluated Plaintiff again and opined Plaintiff had a series of moderate limitations in basic work activities, that Plaintiff's overall severity rating was moderate, that Plaintiff's impairments were not primarily the result of alcohol or drug use in the past 60 days, and that Plaintiff's impairments would be expected to last 3-9 months with treatment. Tr. 503-08. In considering the evidence of Plaintiff's functioning if he stopped the substance abuse, the ALJ gave these opinions little weight. Tr. 27. Because Dr. Cline's opinion was contradicted by Dr. Rubin, Tr. 46-49, Dr. Billings, Tr. 515-16, Dr. Flanagan, Tr. 95-96, and Dr. Gilbert, Tr. 108-10, the ALJ was required to provide specific and legitimate reasons for rejecting Dr. Cline's opinions. Bayliss, 427 F.3d at 1216.
First, the ALJ found Dr. Cline's opinions were entitled to less weight because they were based on Plaintiff's own reporting of his drug use, which the ALJ noted was inconsistent and indicated Plaintiff may have been using at the time of Dr. Cline's examinations. Tr. 24, 27. An ALJ may properly reject a medical opinion that is rendered without knowledge or acknowledgement of a claimant's substance abuse. Cothrell v. Berryhill, 742 F. App'x 232, 236 (9th Cir. July 18, 2018); Coffman v. Astrue, 469 F. App'x 609, 611 (9th Cir. Feb. 28, 2012). Importantly, when conducting a DAA analysis, the "key factor" for the ALJ to consider is whether the claimant would still be disabled if the claimant stopped using drugs or alcohol. 20 C.F.R. § 416.935(b)(1). Therefore, a medical source's understanding of the claimant's substance use is a relevant consideration when weighing the opinion evidence in a DAA analysis.
Here, the ALJ noted that during the September 30, 2015 examination, Plaintiff reported to Dr. Cline that he had not used methamphetamine in about eight months, placing his last use in approximately January or February 2015. Tr. 24-25; see Tr. 499. However, the ALJ noted that other evidence in the record indicated Plaintiff had used methamphetamine several times between January 2015 and September 2015. Tr. 25; see Tr. 335 (September 15, 2015: Plaintiff reported being sober since March 2015); Tr. 291 (August 4, 2015: Plaintiff reported that he had used methamphetamine twice since April 2015). During Dr. Cline's August 31, 2016 examination, Plaintiff reported his last use of methamphetamine was on July 11, 2016. Tr. 508. However, the ALJ noted that Plaintiff missed a series of treatment sessions immediately prior to Dr. Cline's evaluation and reported a relapse shortly thereafter. Tr. 27; see Tr. 597-600 (Plaintiff did not attend group or individual treatment from August 26, 2016 through September 1, 2016); Tr. 596 (September 6, 2016: Plaintiff reported a relapse and using methamphetamine over the weekend); see also Tr. 647 (August 16, 2016: urine drug screen positive for amphetamines and ecstasy two weeks before Dr. Cline's evaluation). The ALJ reasonably concluded that Dr. Cline's opinions were entitled to less weight for being rendered without full knowledge of Plaintiff's drug use. Tr. 27. This finding is supported by substantial evidence.
Second, the ALJ found Dr. Cline's opinion was entitled to less weight because it was inconsistent with her own examination findings. Tr. 27. Inconsistency between a doctor's medical opinion and treatment records or notes is a specific and legitimate reason to discount a doctor's opinion. Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). Here, the ALJ noted that despite opining that Plaintiff would have marked limitation in understanding, remembering, and persisting in tasks, the mental status examinations administered by Dr. Cline showed only moderate limitations with memory and good concentration. Tr. 25, 27; see Tr. 502 (September 30, 2015: memory assessed in the above average range and concentration within normal limits); Tr. 507 (August 31, 2016: memory and concentration within normal limits). The ALJ reasonably concluded that this evidence was inconsistent with Dr. Cline's opined limitations. Tr. 27; see, e.g., Buck v. Berryhill, 869 F.3d 1040, 1050 (9th Cir. 2017) (ALJ reasonably rejected medical opinion that Plaintiff experienced severe symptoms when evidence showed only moderate symptoms). This finding is supported by substantial evidence.
Third, the ALJ found Dr. Cline's opinion was entitled to less weight because it was inconsistent with evidence of Plaintiff's improvement with sobriety. Tr. 27. Relevant factors when evaluating a medical opinion include the amount of relevant evidence that supports the opinion and the consistency of the medical opinion with the record as a whole. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). Plaintiff challenges the ALJ's conclusion by arguing that the ALJ failed to cite "any evidence or give an explanation to support this conclusion." ECF No. 14 at 11. However, a reviewing court is "not deprived of [its] faculties for drawing specific and legitimate inferences from the ALJ's opinion." Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989). The ALJ noted that Dr. Cline opined Plaintiff's impairments were not caused by Plaintiff's methamphetamine use. Tr. 27. As discussed supra, the ALJ identified evidence throughout the written findings demonstrating that Plaintiff's functioning and mental health symptoms improved, including a return to work, when he tapered or stopped his methamphetamine use. See, e.g., Tr. 767 (June 7, 2017: Plaintiff reported putting out job applications, volunteering at a food bank, and attending résumé-writing classes); Tr. 764 (June 14, 2017: Plaintiff reported feeling good now that he was sober and taking medications as prescribed); Tr. 758-59 (June 22, 2017: Plaintiff reported being 72 days sober and attributed a decrease in his depressive symptoms to his sobriety; Plaintiff reported that his mental health symptoms were "well controlled," and scored a 3 on the PHQ-9, which exceeded his treatment goal of scoring a 5 on the PHQ-9); Tr. 835 (July 3, 2017: Plaintiff completed intensive outpatient treatment); Tr. 731 (July 3, 2017: Plaintiff reported looking for full-time employment); Tr. 753 (August 3, 2017: Plaintiff reported he was able to open a bank account and had been saving money). The ALJ's reasoning is sufficiently explained to "allow[] for meaningful review." Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015). The ALJ reasonably concluded that the evidence in the record of Plaintiff's improved functioning during periods of sobriety was inconsistent with Dr. Cline's opinion that his impairments were not attributable to his methamphetamine use. Tr. 27. This finding is supported by substantial evidence.
2. Ms. Garcia
Ms. Garcia, Plaintiff's counselor, opined on March 23, 2017 had marked and moderate limitations in all basic work activities, that Plaintiff would be off-task for approximately 12-20% of the time in a 40-hour work week schedule, that Plaintiff's impairments would cause him to miss 2 days of work per month, and that these opined limitations did not include limitations from Plaintiff's then-current alcohol or drug use. Tr. 667-70. The ALJ did not give this opinion credit. Tr. 28. As a counselor, Ms. Garcia is not an acceptable medical source. 20 C.F.R. § 416.902(a). Therefore, the ALJ was required to provide germane reason to discredit Ms. Garcia's opinion. Popa, 872 F.3d at 906 (citing Molina, 674 F.3d at 1111).
Plaintiff also challenges certain findings the ALJ made regarding Ms. Garcia's opinion before conducting the DAA analysis. ECF No. 14 at 13. The ALJ found Plaintiff was disabled at step three of the sequential evaluation analysis before considering DAA, so any error prior to the DAA analysis would be harmless because those steps were resolved in Plaintiff's favor. See Stout v. Comm'r of Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006); Burch v. Barnhart, 400 F.3d 676, 682 (9th Cir. 2005).
First, the ALJ found Ms. Garcia's opinion was entitled to less weight because it did not differentiate between Plaintiff's limitations with or without substance abuse. Tr. 28. As discussed supra, the question of whether Plaintiff's impairments were attributable to substance use is central to the DAA analysis. 20 C.F.R. § 416.935(b)(1). However, the ALJ erred in concluding that Ms. Garcia's opinion did not distinguish between Plaintiff's limitations with or without substance use. The form on which Ms. Garcia's opinion was rendered clearly states "The limitations noted do not include limitations from current alcohol or drug use." Tr. 669. The ALJ's finding here is not supported by substantial evidence. However, the ALJ's error is harmless because the ALJ provided other germane reason to discredit Ms. Garcia's opinion. Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009).
The ALJ also found Ms. Garcia's opinion was inconsistent with the longitudinal evidence. Tr. 28. Inconsistency with the evidence is a germane reason for rejecting other source testimony. 20 C.F.R. § 416.927(c)(4); Bayliss, 427 F.3d at 1218. As discussed supra, the ALJ noted that Plaintiff reported improved symptoms and improved functioning during his sobriety in the spring and summer of 2017. See, e.g., Tr. 767 (June 7, 2017: Plaintiff reported putting out job applications, volunteering at a food bank, and attending résumé-writing classes); Tr. 764 (June 14, 2017: Plaintiff reported feeling good now that he was sober and taking medications as prescribed); Tr. 758-59 (June 22, 2017: Plaintiff reported being 72 days sober and attributed a decrease in his depressive symptoms to his sobriety; Plaintiff reported that his mental health symptoms were "well controlled," and scored a 3 on the PHQ-9, which exceeded his treatment goal of scoring a 5 on the PHQ-9); Tr. 835 (July 3, 2017: Plaintiff completed intensive outpatient treatment); Tr. 731 (July 3, 2017: Plaintiff reported looking for full-time employment); Tr. 753 (August 3, 2017: Plaintiff reported he was able to open a bank account and had been saving money).
Plaintiff challenges the ALJ's reliance on this evidence as irrelevant because it is from after the end of the closed period. ECF No. 14 at 14. Again, this evidence is directly relevant to the ALJ's DAA analysis because it demonstrates Plaintiff's functioning during a period in which Plaintiff stopped using controlled substances. See SSR 13-2p, 2013 WL 621536, at *12. Indeed, Plaintiff amended his application for benefits to a closed period claim precisely because Plaintiff's functioning during this time improved to the point that he could return to work. Tr. 42-43. This evidence is relevant, and the ALJ's conclusion that it is inconsistent with Ms. Garcia's opined limitations is supported by substantial evidence.
3. Ms. Wheeler
Ms. Wheeler, Plaintiff's treating ARNP, opined on April 5, 2017 that Plaintiff was limited to light work. Tr. 671-73. The ALJ gave this opinion little weight. Tr. 28. As an ARNP, Ms. Wheeler is not an acceptable medical source. 20 C.F.R. § 416.902(a). Therefore, the ALJ was required to provide germane reason to discredit Ms. Wheeler's opinion. Popa, 872 F.3d at 906 (citing Molina, 674 F.3d at 1111).
Plaintiff notes that new Social Security regulations recognize ARNPs as acceptable medical sources. ECF No. 14 at 8. However, because Plaintiff's case was filed before March 27, 2017, these new regulations do not apply to Plaintiff's claim. 20 C.F.R. §§ 416.902(7), 416.325.
First, the ALJ found Ms. Wheeler's opinion was inconsistent with the longitudinal evidence. Tr. 28. Inconsistency with the evidence is a germane reason for rejecting other source testimony. 20 C.F.R. § 416.927(c)(4); Bayliss, 427 F.3d at 1218. The ALJ noted that Ms. Wheeler supported her opined limitations by citing to an x-ray of Plaintiff's elbow, and that Ms. Wheeler's opinion made minimal discussion of Plaintiff's lumbar impairment. Tr. 28; see Tr. 671-72, 709 (March 23, 2017: x-ray imaging showed no acute fracture or dislocation and multiple calcific bodies in Plaintiff's elbow). The ALJ also noted that the record contained evidence of mild lumbar impairment for which Plaintiff did not seek more intensive treatment than physical therapy. Tr. 26; see Tr. 710 (November 30, 2016: spinal imaging showed minimal scoliosis, multilevel spondylosis with facet arthrosis, and degenerative disc changes); Tr. 685-706 (physical therapy records). The ALJ reasonably concluded that this mild evidence did not support Ms. Wheeler's opinion that Plaintiff should be limited to light work. Tr. 28. This finding is supported by substantial evidence.
Second, the ALJ found Ms. Wheeler's opinion was inconsistent with the opinion of Dr. LaVallie, who had the opportunity to review the longitudinal record. Tr. 28. An ALJ may choose to give more weight to an opinion that is more consistent with the evidence in the record. 20 C.F.R. § 416.927(c)(4) ("[T]he more consistent an opinion is with the record as a whole, the more weight we will give to that opinion."). Additionally, the opinion of a nonexamining physician may serve as substantial evidence if it is supported by other evidence in the record and is consistent with it. Andrews, 53 F.3d at 1041. The ALJ noted that Dr. LaVallie reviewed the medical evidence from 2014 through 2016 and found that there was little evidence submitted after Dr. LaVallie's review that related to Plaintiff's physical condition. Tr. 27-28. The ALJ found that Dr. LaVallie's opined limitations were more consistent with the minimal physical findings discussed supra. Tr. 27. The ALJ reasonably credited Dr. LaVallie's opinion over that of Ms. Wheeler. Tr. 28. This finding is supported by substantial evidence.
4. Dr. Billings
Dr. Billings examined Plaintiff on September 21, 2016 and opined that Plaintiff's methamphetamine abuse was likely ongoing, that Plaintiff's anxiety was common among individuals who are methamphetamine users, and that Plaintiff would likely have difficulty working in any situation requiring frequent public contact. Tr. 515-16. The ALJ gave Dr. Billings' opinion significant weight. Tr. 27.
Plaintiff challenges the ALJ's finding that Dr. Billings' opinion supports a conclusion that Plaintiff's mental impairments are related to substance abuse, arguing that this conclusion is not supported. ECF No. 14 at 15. Dr. Billings' diagnoses included Methamphetamine Induced Anxiety Disorder, and Dr. Billings specifically opined that Plaintiff's methamphetamine abuse was likely ongoing and that Plaintiff's anxiety was common among individuals who are methamphetamine users. Tr. 515-16. The ALJ also found that Dr. Billings' opinion was consistent with the longitudinal evidence, discussed throughout this Order, that Plaintiff's functioning improved with sobriety. Tr. 27. The ALJ reasonably concluded that Dr. Billings' opinion supported a finding that Plaintiff's impairments were related to his substance use. Id. This finding is supported by substantial evidence.
To the extent Plaintiff challenges the ALJ's evaluation of Dr. Billings' opinion prior to conducting the DAA analysis, any such error would be harmless because those steps were resolved in Plaintiff's favor. See Stout, 454 F.3d at 1055; Burch, 400 F.3d at 682. Plaintiff does not establish harmful error here.
5. Reviewing Medical Sources
Dr. Flanagan, Dr. Gilbert, and Dr. LaVallie each reviewed the record and rendered opinions on Plaintiff's functional limitations. Tr. 95-96, 108-10. The ALJ gave each of these opinions significant weight. Tr. 27. Plaintiff challenges the ALJ's finding by arguing that the ALJ failed to sufficiently explain why these opinions were found to be consistent with the evidence. ECF No. 14 at 16. However, Plaintiff's argument relies on authority governing the ALJ's rejection of medical opinion evidence, not an ALJ's decision to credit medical opinion evidence. Id.; see Garrison, 759 F.3d at 1012-13. Because the ALJ credited these opinions, Plaintiff identifies no error.
Additionally, as explained throughout this Order, the ALJ observed that the longitudinal evidence of record showed evidence of only mild physical impairments and mental impairments that, while disabling when Plaintiff's substance abuse was included, decreased in severity to the point that Plaintiff was able to return to full-time work when he tapered and stopped using methamphetamine. Tr. 20-26. The ALJ's finding that the reviewing sources' opinions were consistent with the longitudinal evidence is sufficiently explained. Brown-Hunter, 806 F.3d at 492. Moreover, the Court may not reverse the ALJ's decision based on Plaintiff's disagreement with the ALJ's interpretation of the record. See Tommasetti, 533 F.3d at 1038 ("[W]hen the evidence is susceptible to more than one rational interpretation" the court will not reverse the ALJ's decision). Plaintiff establishes no harmful error in the ALJ's evaluation of the reviewing source medical opinion evidence. // //
CONCLUSION
Having reviewed the record and the ALJ's findings, this Court concludes the ALJ's decision is supported by substantial evidence and free of harmful legal error. ACCORDINGLY, IT IS HEREBY ORDERED:
1. Plaintiff's Motion for Summary Judgment (ECF No. 14) is DENIED.
2. Defendant's Motion for Summary Judgment (ECF No. 21) is GRANTED.
The District Court Executive is directed to enter this Order, enter judgment accordingly, furnish copies to counsel, and close the file.
DATED May 15, 2020.
/s/
THOMAS O. RICE
Chief United States District Judge