Kelley v. Commissioner of Social Security, No. 1:2021cv03039 - Document 25 (E.D. Wash. 2022)

Court Description: ORDER denying Plaintiff's 15 Motion for Summary Judgment and granting 23 Defendant's Motion for Summary Judgment. Signed by Judge Thomas O. Rice. (BF, Paralegal)

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Kelley v. Commissioner of Social Security Case 1:21-cv-03039-TOR Doc. 25 ECF No. 25 filed 02/08/22 PageID.1642 Page 1 of 29 1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF WASHINGTON 6 7 YESENIA K., NO. 1:21-CV-3039-TOR Plaintiff, 8 9 10 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT v. COMMISSIONER OF SOCIAL SECURITY, 11 Defendant. 12 13 BEFORE THE COURT are the parties’ cross-motions for summary 14 judgment (ECF Nos. 15, 23). Plaintiff is represented by D. James Tree. Defendant 15 is represented by Martha A. Boden. This matter was submitted for consideration 16 without oral argument. The Court has reviewed the administrative record and the 17 parties’ briefing, and is fully informed. For the reasons discussed below, the Court 18 denies Plaintiff’s motion and grants Defendant’s motion. 19 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 1 Dockets.Justia.com Case 1:21-cv-03039-TOR 3 4 5 filed 02/08/22 PageID.1643 Page 2 of 29 JURISDICTION 1 2 ECF No. 25 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 6 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 7 limited: the Commissioner’s decision will be disturbed “only if it is not supported 8 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 9 1158-59 (9th Cir. 2012) (citing 42 U.S.C. § 405(g)). “Substantial evidence” means 10 relevant evidence that “a reasonable mind might accept as adequate to support a 11 conclusion.” Id. at 1159 (quotation and citation omitted). Stated differently, 12 substantial evidence equates to “more than a mere scintilla[,] but less than a 13 preponderance.” Id. (quotation and citation omitted). In determining whether this 14 standard has been satisfied, a reviewing court must consider the entire record as a 15 whole rather than searching for supporting evidence in isolation. Id. 16 In reviewing a denial of benefits, a district court may not substitute its 17 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152, 18 1156 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one 19 rational interpretation, [the court] must uphold the ALJ’s findings if they are 20 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 2 Case 1:21-cv-03039-TOR ECF No. 25 filed 02/08/22 PageID.1644 Page 3 of 29 1 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court “may not reverse an 2 ALJ’s decision on account of an error that is harmless.” Id. An error is harmless 3 “where it is inconsequential to the [ALJ’s] ultimate nondisability determination.” 4 Id. at 1115 (quotation and citation omitted). The party appealing the ALJ’s 5 decision generally bears the burden of establishing that it was harmed. Shinseki v. 6 Sanders, 556 U.S. 396, 409-10 (2009). 7 8 9 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 10 engage in any substantial gainful activity by reason of any medically determinable 11 physical or mental impairment which can be expected to result in death or which 12 has lasted or can be expected to last for a continuous period of not less than twelve 13 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). Second, the claimant’s 14 impairment must be “of such severity that [he or she] is not only unable to do [his 15 or her] previous work[,] but cannot, considering [his or her] age, education, and 16 work experience, engage in any other kind of substantial gainful work which exists 17 in the national economy.” 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). 18 The Commissioner has established a five-step sequential analysis to 19 determine whether a claimant satisfies the above criteria. See 20 C.F.R. § 20 416.920(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s work ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 3 Case 1:21-cv-03039-TOR ECF No. 25 filed 02/08/22 PageID.1645 Page 4 of 29 1 activity. 20 C.F.R. § 416.920(a)(4)(i). If the claimant is engaged in “substantial 2 gainful activity,” the Commissioner must find that the claimant is not disabled. 20 3 C.F.R. § 416.920(b). 4 If the claimant is not engaged in substantial gainful activities, the analysis 5 proceeds to step two. At this step, the Commissioner considers the severity of the 6 claimant’s impairment. 20 C.F.R. § 416.920(a)(4)(ii). If the claimant suffers from 7 “any impairment or combination of impairments which significantly limits [his or 8 her] physical or mental ability to do basic work activities,” the analysis proceeds to 9 step three. 20 C.F.R. § 416.920(c). If the claimant’s impairment does not satisfy 10 this severity threshold, however, the Commissioner must find that the claimant is 11 not disabled. Id. 12 At step three, the Commissioner compares the claimant’s impairment to 13 several impairments recognized by the Commissioner to be so severe as to 14 preclude a person from engaging in substantial gainful activity. 20 C.F.R. § 15 416.920(a)(4)(iii). If the impairment is as severe or more severe than one of the 16 enumerated impairments, the Commissioner must find the claimant disabled and 17 award benefits. 20 C.F.R. § 416.920(d). 18 If the severity of the claimant’s impairment does meet or exceed the severity 19 of the enumerated impairments, the Commissioner must pause to assess the 20 claimant’s “residual functional capacity.” Residual functional capacity (“RFC”), ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 4 Case 1:21-cv-03039-TOR ECF No. 25 filed 02/08/22 PageID.1646 Page 5 of 29 1 defined generally as the claimant’s ability to perform physical and mental work 2 activities on a sustained basis despite his or her limitations (20 C.F.R. § 3 416.945(a)(1)), is relevant to both the fourth and fifth steps of the analysis. 4 At step four, the Commissioner considers whether, in view of the claimant’s 5 RFC, the claimant is capable of performing work that he or she has performed in 6 the past (“past relevant work”). 20 C.F.R. § 416.920(a)(4)(iv). If the claimant is 7 capable of performing past relevant work, the Commissioner must find that the 8 claimant is not disabled. 20 C.F.R. § 416.920(f). If the claimant is incapable of 9 performing such work, the analysis proceeds to step five. 10 At step five, the Commissioner considers whether, in view of the claimant’s 11 RFC, the claimant is capable of performing other work in the national economy. 12 20 C.F.R. § 416.920(a)(4)(v). In making this determination, the Commissioner 13 must also consider vocational factors such as the claimant’s age, education and 14 work experience. Id. If the claimant is capable of adjusting to other work, the 15 Commissioner must find that the claimant is not disabled. 20 C.F.R. § 16 416.920(g)(1). If the claimant is not capable of adjusting to other work, the 17 analysis concludes with a finding that the claimant is disabled and is therefore 18 entitled to benefits. Id. 19 20 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 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 5 Case 1:21-cv-03039-TOR ECF No. 25 filed 02/08/22 PageID.1647 Page 6 of 29 1 step five, the burden shifts to the Commissioner to establish that (1) the claimant is 2 capable of performing other work; and (2) such work “exists in significant 3 numbers in the national economy.” 20 C.F.R. § 416.960(c)(2); Beltran v. Astrue, 4 700 F.3d 386, 389 (9th Cir. 2012). ALJ’S FINDINGS 5 6 On March 4, 2017, Plaintiff filed an application for Title XVI supplemental 7 security income benefits, alleging a disability onset date of January 1, 2010. Tr. 8 169-77. The application was denied initially, Tr. 106-14, and on reconsideration, 9 Tr. 118-24. Plaintiff appeared at a hearing before an administrative law judge 10 (“ALJ”) on October 4, 2018. Tr. 38-67. On November 28, 2018, the ALJ denied 11 Plaintiff’s claim. Tr. 12-31. 12 On May 13, 2020, this Court reversed and remanded the Commissioner’s 13 decision. Tr. 943-977. On October 29, 2020, Plaintiff appeared at a telephonic 14 hearing on remand before the same ALJ. Tr. 858-890. On November 27, 2020, 15 the ALJ again denied Plaintiff’s claim. Tr. 830-853. 16 At step one of the sequential evaluation analysis, the ALJ found Plaintiff had 17 not engaged in substantial gainful activity since March 4, 2017, the alleged onset 18 date. Tr. 836. At step two, the ALJ found Plaintiff had the following severe 19 impairments: polysubstance use disorder, PTSD with anxiety, personality disorder, 20 major depressive disorder with psychosis, and a mild intellectual disability. Id. At ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 6 Case 1:21-cv-03039-TOR ECF No. 25 filed 02/08/22 PageID.1648 Page 7 of 29 1 step three, the ALJ found that by including Plaintiff’s substance use, the severity of 2 Plaintiff’s impairments met the criteria of sections 12.04, 12.08, and 12.15 of 20 3 C.F.R. 404, Subpart, P, Appendix 1. Tr. 837. 4 If Plaintiff stopped the substance use, the ALJ found Plaintiff would not 5 have an impairment or combination of impairments that meets or medically equals 6 the severity of a listed impairment. Tr. 839. The ALJ then found if Plaintiff 7 stopped the substance use, Plaintiff had the RFC to perform a full range of work at 8 all exertional levels but with the following nonexertional limitations: 9 10 11 12 13 14 15 She would be able to understand and remember one to three step instructions and standard work-like procedures and regular work locations. She would have sufficient concentration, persistence, or pace to complete simple, routine tasks in two-hour increments for a normal workday and workweek with normal breaks. She would be able to work at a regular but not fast production pace. She would be able to have occasional, brief, superficial interactions with coworkers and the general public. She would not be able to work as part of a team. She would be able to accept supervision and adapt to normal, routine changes in the workplace. Tr. 840. At step four, the ALJ found Plaintiff would not be capable of performing 16 any past relevant work if abstinent from substances. Tr. 845. At step five, the ALJ 17 found that, considering Plaintiff’s age, education, work experience, and RFC, there 18 were other jobs that exist in significant numbers in the national economy that 19 Plaintiff could perform if Plaintiff stopped substance use, such as laundry laborer, 20 industrial sweeper/cleaner, and cleaner, commercial or institutional. Tr. 845. The ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 7 Case 1:21-cv-03039-TOR ECF No. 25 filed 02/08/22 PageID.1649 Page 8 of 29 1 ALJ found Plaintiff’s substance use disorder is a contributing factor material to the 2 determination of disability because Plaintiff would not be disabled if she stopped 3 substance use. Tr. 846. The ALJ concluded that because substance use disorder is 4 a contributing factor material to the determination of disability, Plaintiff has not 5 been disabled within the meaning of the Social Security Act, from March 4, 2017, 6 through December 2, 2020, the date of the ALJ’s decision. Id. ISSUES 7 8 9 10 Plaintiff seeks judicial review of the Commissioner’s final decision denying her supplemental security income benefits under Title XVI of the Social Security Act. Plaintiff raises the following issues for this Court’s review: 11 1. Whether the ALJ properly weighed Plaintiff’s symptom testimony; 12 2. Whether the ALJ properly weighed the medical opinion evidence; and 13 3. Whether the ALJ properly found Plaintiff’s substance use was material to 14 15 16 17 18 19 her disability. ECF No. 15 at 2. DISCUSSION A. Plaintiff’s Symptom Testimony Plaintiff contends the ALJ failed to rely on clear and convincing reasons to discredit her symptom testimony. ECF No. 15 at 6-10. 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 8 Case 1:21-cv-03039-TOR 1 ECF No. 25 filed 02/08/22 PageID.1650 Page 9 of 29 An ALJ engages in a two-step analysis to determine whether to discount a 2 claimant’s testimony regarding subjective symptoms. SSR 16-3p, 2016 WL 3 1119029, at *2. “First, the ALJ must determine whether there is ‘objective 4 medical evidence of an underlying impairment which could reasonably be 5 expected to produce the pain or other symptoms alleged.’” Molina, 674 F.3d at 6 1112 (quoting Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009)). “The 7 claimant is not required to show that [the claimant’s] impairment ‘could reasonably 8 be expected to cause the severity of the symptom [the claimant] has alleged; [the 9 claimant] need only show that it could reasonably have caused some degree of the 10 symptom.’” Vasquez, 572 F.3d at 591 (quoting Lingenfelter v. Astrue, 504 F.3d 11 1028, 1035-36 (9th Cir. 2007)). 12 Second, “[i]f the claimant meets the first test and there is no evidence of 13 malingering, the ALJ can only reject the claimant’s testimony about the severity of 14 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 15 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citations 16 omitted). General findings are insufficient; rather, the ALJ must identify what 17 symptom claims are being discounted and what evidence undermines these claims. 18 Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)); Thomas v. 19 Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (requiring the ALJ to sufficiently 20 explain why he or she discounted claimant’s symptom claims). “The clear and ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 9 Case 1:21-cv-03039-TOR ECF No. 25 filed 02/08/22 PageID.1651 Page 10 of 29 1 convincing standard is the most demanding required in Social Security cases.” 2 Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v. Comm’r 3 of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). 4 Factors to be considered in evaluating the intensity, persistence, and limiting 5 effects of a claimant’s symptoms include: (1) daily activities; (2) the location, 6 duration, frequency, and intensity of pain or other symptoms; (3) factors that 7 precipitate and aggravate the symptoms; (4) the type, dosage, effectiveness, and 8 side effects of any medication an individual takes or has taken to alleviate pain or 9 other symptoms; (5) treatment, other than medication, an individual receives or has 10 received for relief of pain or other symptoms; (6) any measures other than 11 treatment an individual uses or has used to relieve pain or other symptoms; and (7) 12 any other factors concerning an individual’s functional limitations and restrictions 13 due to pain or other symptoms. SSR 16-3p, 2016 WL 1119029, at *7-*8; 20 14 C.F.R. § 416.929(c). The ALJ is instructed to “consider all of the evidence in an 15 individual’s record,” “to determine how symptoms limit ability to perform work- 16 related activities.” SSR 16-3p, 2016 WL 1119029, at *2. 17 The ALJ found Plaintiff’s impairments could reasonably be expected to 18 cause the alleged symptoms when Plaintiff’s substance use is taken into account. 19 Tr. 837. While the ALJ found Plaintiff’s symptom testimony consistent with her 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 10 Case 1:21-cv-03039-TOR ECF No. 25 filed 02/08/22 PageID.1652 Page 11 of 29 1 functioning when using substances, the ALJ found the testimony conflicted 2 significantly with Plaintiff’s functioning during her period of sobriety. Tr. 842. 3 1. Conflicts with the Record During Sobriety 4 Plaintiff challenges the ALJ’s finding that Plaintiff’s symptom testimony 5 6 conflicted with the record during her period of sobriety. ECF No. 15 at 7. An ALJ may not discredit a claimant’s symptom testimony and deny 7 benefits solely because the degree of the symptoms alleged is not supported by 8 objective medical evidence. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 9 2001); Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir. 1991). However, the 10 objective medical evidence is a relevant factor, along with the medical source’s 11 information about the claimant’s pain or other symptoms, in determining the 12 severity of a claimant’s symptoms and their disabling effects. Rollins, 261 F.3d at 13 857; 20 C.F.R. § 416.929(c)(2). Mental status examinations are objective 14 measures of an individual’s mental health. Buck v. Berryhill, 869 F.3d 1040, 1049 15 (9th Cir. 2017). 16 First, the ALJ found that while Plaintiff felt she could not work where she 17 had a hard time getting along with authority, Plaintiff also admitted that she had 18 not had problems with angry behavior towards coworkers or supervisors. Tr. 841- 19 42. Plaintiff also said she had difficulty with anger, was not good with 20 confrontation, and if someone tried to “start something” with her she became ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 11 Case 1:21-cv-03039-TOR ECF No. 25 filed 02/08/22 PageID.1653 Page 12 of 29 1 hostile or aggressive. Tr. 842. However, the ALJ noted that while she maintained 2 her sobriety, Plaintiff denied rage or anger towards others and her irritability 3 markedly improved to no longer be a significant problem while sober and on 4 medication. Tr. 839 (citing Tr. 478-79, 488, 499); see also Tr. 841 (citing Tr. 385 5 (March 2017: Significant decrease in irritability on Abilify six months into sobriety 6 and no longer “teetering on the edge of becoming physically (aggressive)”); Tr. 7 488 (April 2017: Plaintiff’s anger, irritability, and racing thoughts all markedly 8 improved on Abilify and irritability noted to no longer be a significant problem); 9 Tr. 478-79 (March 2017: Plaintiff denied rage or anger towards others); Tr. 586 10 (October 2017: Plaintiff reported mood well controlled and denied anger and 11 rage)). In any event, the ALJ accounted for Plaintiff’s difficulty with others 12 difficulty by limiting her RFC to brief superficial interactions with the public and 13 coworkers and restricting her from jobs involving teamwork. No error has been 14 shown. 15 Second, Plaintiff said she had high anxiety and felt nervous around a lot of 16 people. Tr. 842. The ALJ noted that during Plaintiff’s period of sobriety, she was 17 reading for others in her recovery group which she attended six times per week. 18 Tr. 840 (citing Tr. 396-97). In any event, the ALJ accounted for Plaintiff’s 19 difficulty with anxiety and nervousness around others by limiting her RFC to brief 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 12 Case 1:21-cv-03039-TOR ECF No. 25 filed 02/08/22 PageID.1654 Page 13 of 29 1 superficial interactions with the public and coworkers and restricting her from jobs 2 involving teamwork. Tr. 839. No error has been shown. 3 Third, Plaintiff said she was not good with math, had a comprehension 4 problem, and felt she could not work at a desk counting numbers. Tr. 842. During 5 her period of sobriety, the ALJ noted that Plaintiff’s memory was adequate to 6 good, Plaintiff did not show any difficulty understanding what was said to her, nor 7 did Plaintiff have difficulty following instructions. Tr. 839 (citing Tr. 338, 386, 8 455, 480, 489, 501). The ALJ accounted for any comprehension issues (and did 9 not find Plaintiff needed to be good at math nor sit at a desk counting numbers) by 10 limiting Plaintiff to perform simple, routine tasks performed in two-hour 11 increments. Tr. 839. No error has been shown. 12 Fifth, Plaintiff experienced night terrors and flashbacks. Tr. 842. During 13 her period of sobriety, the ALJ found that she discontinued medication due to 14 resolution of fatigue and sleep problems and she had no complaints of 15 hallucinations. Id.; see also Tr. 841 (citing Tr. 577 (Plaintiff no longer had 16 problems with poor energy, fatigue, or daytime sleepiness)). 17 Plaintiff admits she exhibits “some improvement with sobriety” but cites to 18 evidence to where she exhibited symptoms of depression and anxiety to argue that 19 her that her symptoms while sober still seriously affected her ability to function in 20 the workplace. ECF No. 15 at 7. Where evidence is subject to more than one ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 13 Case 1:21-cv-03039-TOR ECF No. 25 filed 02/08/22 PageID.1655 Page 14 of 29 1 rational interpretation, the ALJ’s conclusion will be upheld. Burch v. Barnhart, 2 400 F.3d 676, 679 (9th Cir. 2005). The ALJ reasonably concluded that Plaintiff’s 3 testimony conflicted with Plaintiff’s functioning while sober. Tr. 842. This 4 finding is supported by substantial evidence. 5 2. Conservative Treatment 6 Plaintiff challenges the ALJ’s finding that plaintiff underwent conservative 7 8 9 mental health treatment while sober. ECF No. 15 at 8-10. The effectiveness of treatment is a relevant factor in determining the severity of a claimant’s symptoms. 20 C.F.R. § 416.929(c)(3); Warre v. Comm’r of Soc. 10 Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) (determining that conditions 11 effectively controlled with medication are not disabling for purposes of 12 determining eligibility for benefits); Tommasetti v. Astrue, 533 F.3d 1035, 1040 13 (9th Cir. 2008) (recognizing that a favorable response to treatment can undermine a 14 claimant’s complaints of debilitating pain or other severe limitations). Evidence of 15 conservative treatment is also sufficient to discount a claimant’s testimony 16 regarding the severity of the impairment. Parra v. Astrue, 481 F.3d 742, 751 (9th 17 Cir. 2007). The Ninth Circuit has recognized that the prescription of psychiatric 18 medication is not indicative of conservative treatment for mental health 19 impairments. See Drawn v. Berryhill, 728 Fed. Appx. 637, 642 (9th Cir. 2018) 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 14 Case 1:21-cv-03039-TOR ECF No. 25 filed 02/08/22 PageID.1656 Page 15 of 29 1 (unpublished decision holding the ALJ erred in finding conservative treatment 2 where claimant was “prescribed a number of psychiatric medications.”). 3 The ALJ found Plaintiff’s symptom testimony was less reliable because it 4 was inconsistent with evidence that showed Plaintiff’s mental health symptoms 5 improved and she underwent conservative mental health treatment while she was 6 sober. Tr. 842. Plaintiff was prescribed multiple medications, including Abilify, 7 Wellbutrin, Prazosin, Latuda, and Prozac. Tr. 841; ECF No. 15 at 9 (citing Tr. 8 578, 587) However, the ALJ noted that Plaintiff voluntarily discontinued taking 9 Wellbutrin and Prazosin due to resolution of fatigue and sleep problems while she 10 was sober. Tr. 842. The ALJ also noted that Plaintiff was discharged from 11 substance use treatment during her period of sobriety, no provider recommended 12 inpatient treatment, and no provider placed her on a psychiatric hold. Tr. 841-42. 13 Where evidence is subject to more than one rational interpretation, the ALJ’s 14 conclusion will be upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 15 The ALJ reasonably found Plaintiff underwent conservative mental health 16 treatment while she was sober where she stopped taking medication due to 17 improved or eliminated symptoms, was discharged from substance use treatment, 18 and was not placed in any inpatient treatment or psychiatric hold. This finding is 19 supported by substantial evidence. 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 15 Case 1:21-cv-03039-TOR 1 2 ECF No. 25 filed 02/08/22 PageID.1657 Page 16 of 29 B. Medical Opinion Evidence Plaintiff challenges the ALJ’s evaluation of the medical opinion of Debbie 3 Miller, LMFT, David Morgan, Ph.D., Lacey Villamar, DCR, and Rebecca Nelson, 4 ARNP. ECF No. 15 at 10-22. 5 There are three types of physicians: “(1) those who treat the claimant 6 (treating physicians); (2) those who examine but do not treat the claimant 7 (examining physicians); and (3) those who neither examine nor treat the claimant 8 [but who review the claimant's file] (nonexamining [or reviewing] physicians).” 9 Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001) (citations omitted). 10 Generally, the opinion of a treating physician carries more weight than the opinion 11 of an examining physician, and the opinion of an examining physician carries more 12 weight than the opinion of a reviewing physician. Id. In addition, the 13 Commissioner’s regulations give more weight to opinions that are explained than 14 to opinions that are not, and to the opinions of specialists on matters relating to 15 their area of expertise over the opinions of non-specialists. Id. (citations omitted). 16 If a treating or examining physician’s opinion is uncontradicted, an ALJ may 17 reject it only by offering “clear and convincing reasons that are supported by 18 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 19 “However, the ALJ need not accept the opinion of any physician, including a 20 treating physician, if that opinion is brief, conclusory, and inadequately supported ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 16 Case 1:21-cv-03039-TOR ECF No. 25 filed 02/08/22 PageID.1658 Page 17 of 29 1 by clinical findings.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 2 (9th Cir. 2009) (internal quotation marks and brackets omitted). “If a treating or 3 examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ 4 may only reject it by providing specific and legitimate reasons that are supported 5 by substantial evidence.” Id. (citing Lester, 81 F.3d at 830-831). The opinion of a 6 nonexamining physician may serve as substantial evidence if it is supported by 7 other independent evidence in the record. Andrews v. Shalala, 53 F.3d 1035, 1041 8 (9th Cir. 1995). 9 The opinion of an acceptable medical source such as a physician or 10 psychologist is different from that of a non-acceptable medical source. 20 C.F.R. § 11 416.927(f)(1).1 Therapists and nurses are not acceptable medical sources. 20 12 C.F.R. § 416.902(a). The ALJ is required to consider the opinions of non- 13 acceptable medical sources. 20 C.F.R. § 416.927(c). The factors used to weigh 14 the opinion of a non-acceptable medical source are the same as those used to weigh 15 the opinion of an acceptable medical source, although not every factor will apply 16 in every case. 20 C.F.R. § 416.927(c)(1)-(6), (f)(1). The ALJ is only required to 17 18 1 Because Plaintiff’s application for benefits was filed on March 4, 2017, the 19 regulations governing claims filed before March 27, 2017 apply to this case. 20 20 C.F.R. § 416.325. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 17 Case 1:21-cv-03039-TOR ECF No. 25 filed 02/08/22 PageID.1659 Page 18 of 29 1 provide germane reasons to reject the opinion of an “other source,” including that 2 of a non-acceptable medical source. Popa, 872 F.3d at 906 (citing Molina, 674 3 F.3d at 1111). 4 5 1. Debbie Miller, LMFT The ALJ gave Ms. Miller’s opinion little weight. Tr. 843. Because Ms. 6 Miller is a non-acceptable medical source as a therapist, the ALJ was required to 7 provide germane reasons to discredit her opinion. 20 C.F.R. § 416.902(a); Popa, 8 872 F.3d at 906. 9 On February 1, 2018, Ms. Miller opined Plaintiff had moderate limitation in 10 her ability to remember locations and work-like procedures; moderate limitation in 11 her ability to understand and remember very short and simple instructions; marked 12 limitation in her ability to understand and remember detailed instructions; marked 13 limitation in her ability to carry out detailed instructions; moderate limitation in her 14 ability to maintain attention and concentration for extended periods; marked 15 limitation in her ability to perform activities within a schedule, maintain regular 16 attendance and be punctual within customary tolerances; moderate limitation in her 17 ability to work in coordination with or proximity to others without being distracted 18 by them; moderate limitation in her ability to make simple work-related decisions; 19 moderate limitation in her ability to complete a normal workday and workweek 20 without interruptions from psychologically based symptoms and to perform at a ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 18 Case 1:21-cv-03039-TOR ECF No. 25 filed 02/08/22 PageID.1660 Page 19 of 29 1 consistent pace without an unreasonable number and length of rest periods; marked 2 limitation in her ability to accept instructions and respond appropriately to 3 criticism of supervisors; moderate limitation in her ability to get along with 4 coworkers or peers without distracting them or exhibiting behavioral extremes; 5 moderate limitation in her ability to respond appropriately to changes in the work 6 setting; moderate limitation in her ability to be aware of normal hazards and take 7 appropriate precautions; severe limitation in her ability to travel in unfamiliar 8 places or use public transportation; marked limitation in her ability to set realistic 9 goals or make plans independently of others; extreme limitation in her ability to 10 understand, remember, or apply information; moderate limitation in her ability to 11 interact with others, moderate limitation in her ability to concentrate, persist, or 12 maintain pace; that Plaintiff met the Paragraph C criteria; that Plaintiff was likely 13 to be off-task less than 12% of a full-time work schedule; and that Plaintiff would 14 likely miss one day of work per month. Tr. 619-22. 15 First, the ALJ found Ms. Miller’s opinion was not sufficiently supported or 16 explained. Tr. 843. Failure to provide support or explanation is a germane reason 17 to discredit the opinion of a nonacceptable medical source. Molina, 674 F.3d at 18 1111-12. Additionally, “[w]hile an opinion cannot be rejected merely for being 19 expressed as answers to a check-the-box questionnaire, … the ALJ may 20 permissibly reject check-off reports that do not contain any explanation of the ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 19 Case 1:21-cv-03039-TOR ECF No. 25 filed 02/08/22 PageID.1661 Page 20 of 29 1 bases of their conclusions.” Ford v. Saul, 950 F.3d 1141, 1155 (9th Cir. 2020) 2 (internal citations and quotations omitted). Plaintiff asserts the ALJ erred in 3 discounting Ms. Miller’s unexplained opinion because Ms. Miller regularly saw 4 Plaintiff for appointments throughout 2017 and early 2018. ECF No. 15 at 11-12. 5 The Ninth Circuit has found that it is an error for an ALJ to reject a check-box 6 form of a doctor’s opinion that was “based on significant experience with 7 [claimant] and supported by numerous records, and [the opinion is] therefore 8 entitled to weight that an otherwise unsupported and unexplained check-box form 9 would not merit.” Garrison v. Colvin 759 F.3d 995, 1013 (9th Cir. 2014). Here, 10 the ALJ noted that Ms. Miller did not provide any explanation for her opined 11 limitations. Tr. 843; see Tr. 619-22. Unlike Garrison, Ms. Miller is not a treating 12 physician and her check-box opinion is not supported by numerous records. While 13 she had several appointments with Plaintiff, the treatment records do not 14 specifically support the unexplained opinion. See Tr. 550, 558, 560, 563, 566, 15 568-69, 570, 572, 583-84, 592, 594, 596-99. The Court will not substitute its 16 judgment for the ALJ where the record reasonably supports that Ms. Miller’s 17 opinion did not have a supporting explanation. Tackett v. Apfel, 180 F.3d 1094, 18 1098 (9th Cir. 1999). This is a germane reason to discredit Ms. Miller’s opinion. 19 20 Second, the ALJ found Ms. Miller’s opinion was inconsistent with Plaintiff’s record of improvement with treatment. Tr. 843. Inconsistency with the ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 20 Case 1:21-cv-03039-TOR ECF No. 25 filed 02/08/22 PageID.1662 Page 21 of 29 1 medical evidence is a germane reason for rejecting other source testimony. See 2 Bayliss, 427 F.3d at 1218; Lewis v. Apfel, 236 F.3d 503, 511-12 (9th Cir. 2001). 3 As discussed supra, the ALJ noted that the record demonstrated Plaintiff showed 4 improvement in her symptoms when she was sober and compliant with treatment. 5 Tr. 843; see Tr. 454 (May 18, 2017: Plaintiff’s mood symptoms were well- 6 controlled with medication); Tr. 590 (July 20, 2017: Plaintiff’s mood disorder 7 symptoms and nightmares resolved with medication); Tr. 627 (October 11, 2017: 8 Ms. Miller reported Plaintiff was “making tremendous progress” after six months 9 of counseling). Plaintiff challenges the ALJ’s finding by identifying other 10 evidence in the record that shows Plaintiff continued to struggle with mental health 11 symptoms. ECF No. 15 at 14-16. However, where evidence is subject to more 12 than one rational interpretation, the ALJ’s conclusion will be upheld. Burch, 400 13 F.3d at 679. The ALJ reasonably concluded that the evidence showed evidence of 14 Plaintiff’s improvement with treatment. Tr. 843. This is a germane reason to 15 discredit Ms. Miller’s opinion. 16 2. David Morgan, Ph.D. 17 The ALJ gave little weight to Dr. Morgan’s opinion from a consultative 18 examination in April 2019. Tr. 843. Because Dr. Morgan’s opinion was 19 contradicted by Dr. Cohen, Tr. 870-879, the ALJ was required to provide specific 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 21 Case 1:21-cv-03039-TOR ECF No. 25 filed 02/08/22 PageID.1663 Page 22 of 29 1 and legitimate reasons for rejecting Dr. Morgan’s opinion. Bayliss, 427 F.3d at 2 1216. 3 Dr. Morgan opined that Plaintiff had many marked to severe limitations in 4 the ability to perform basic work activities, but that the limitations were not 5 primarily the result of a substance abuse disorder and that the limitations would 6 persist following 60 days of sobriety. Tr. 1209. 7 First, the ALJ noted that Dr. Morgan failed to explain these findings. Id. A 8 medical opinion may be rejected by the ALJ if it is conclusory or inadequately 9 supported. Bray, 554 F.3d at 1228; Thomas v. Barnhart, 278 F.3d 947, 957 (9th 10 Cir. 2002). However, if treatment notes are consistent with the opinion, a 11 conclusory opinion, such as a check-the-box form, may not automatically be 12 rejected. See Garrison, 759 F.3d at1014 n.17; Ford, 950 F.3d at 1155. Plaintiff 13 asserts that Dr. Morgan was aware Plaintiff was sober from methamphetamines 14 and alcohol for approximately one month at the time of the exam, and that he 15 nonetheless placed the limitations on Plaintiff’s ability to work. ECF No. 15 at 14 16 (citing Tr. 1194). However, as the ALJ pointed out, Dr. Morgan did not account 17 for Plaintiff’s ongoing marijuana use. Tr. 843. This is a specific and legitimate 18 reason for assigning the opinion little weight. 19 20 Second, the ALJ found that this opinion conflicts with the treatment notes from 2017 and conflicts with Dr. Cohen’s opinion, both of which support finding ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 22 Case 1:21-cv-03039-TOR ECF No. 25 filed 02/08/22 PageID.1664 Page 23 of 29 1 Plaintiff’s mental health symptoms improved dramatically with abstinence from 2 substance use. Tr. 843. Relevant factors when evaluating a medical opinion 3 include the amount of relevant evidence that supports the opinion and the 4 consistency of the medical opinion with the record as a whole. Orn v. Astrue, 495 5 F.3d 625, 631 (9th Cir. 2007). Plaintiff asserts that the ALJ failed to identify 6 specifically how Plaintiff’s treatment notes conflict with Dr. Morgan’s opinion. 7 ECF No. 15 at 14. The ALJ found that Dr. Morgan’s opinion that Plaintiff’s 8 impairments were not primarily the result of a substance use disorder conflicted 9 with the treatment notes that demonstrate her symptoms improved dramatically 10 with abstinence from substance abuse. Tr. 842. This is a specific and legitimate 11 reason for assigning the opinion little weight, which is supported by substantial 12 evidence. 13 3. Lacey Villamar, DCR 14 The ALJ gave little weight to therapist Lacey Villamar’s opinion from 15 January 2019. Tr. 844. Because Ms. Villamar is a non-acceptable medical source, 16 the ALJ was required to provide germane reasons to discredit her opinion. Popa, 17 872 F.3d at 906. 18 Ms. Villamar found Plaintiff’s PTSD diagnosis interferes with her ability to 19 concentrate, interest with people, ability to be alert, and struggles if overwhelmed. 20 Tr. 1203. Ms. Villamar found Plaintiff’s current medication may impact her ability ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 23 Case 1:21-cv-03039-TOR ECF No. 25 filed 02/08/22 PageID.1665 Page 24 of 29 1 to function, based on her current presentation on her current medical regime but 2 deferred to medical providers as it was not in her scope of practice. Tr. 1203-04. 3 First, the ALJ found Ms. Villamar did not discuss Plaintiff’s substance use, 4 nor did she distinguish between Plaintiff’s functioning when abstinent versus when 5 she was using. Tr. 844. The extent a medical source is familiar with information 6 in a claimant’s record is a relevant factor for an ALJ to consider when applying 7 weight to an opinion. 20 C.F.R. § 416.927(6). Plaintiff argues that Ms. Villamar’s 8 “opinion speaks directly to the question of [Plaintiff’s] functioning considering her 9 mental impairments alone.” ECF No. 15 at 17. However, the is no evidence that 10 Ms. Villamar was aware of, or accounted for, Plaintiff’s substance use. This was a 11 germane reason to assign little weight to Ms. Villamar’s opinion. 12 Second, the ALJ found Ms. Villamar’s opinion equivocal where she opines 13 Plaintiff’s current medication may impact her ability to function. Tr. 844. Plaintiff 14 asserts “Ms. Villamar’s equivocation on matters outside the scope of her expertise 15 is not a valid reason to reject her entire opinion.” ECF No. 15 at 17. The fact that 16 Plaintiff’s medications “may” impact her ability to function is an equivocal 17 statement. This is a germane reason to give little weight to Ms. Villamar’s 18 opinion. Even if it were error, any error is harmless because the ALJ provided 19 another valid, germane reason to assign the opinion little weight. Molina, 674 F.3d 20 at 1115. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 24 Case 1:21-cv-03039-TOR 1 ECF No. 25 filed 02/08/22 PageID.1666 Page 25 of 29 4. Rebecca Nelson, ARNP 2 The ALJ gave little weight to ARNP Rebecca Nelson’s opinion from 3 January 2019. Tr. 843. Because Ms. Nelson is a non-acceptable medical source, 4 the ALJ was required to provide germane reasons to discredit her opinion. Popa, 5 872 F.3d at 906. 6 7 8 Ms. Nelson filled out a WorkFirst form, finding Plaintiff has “limited social ability, focus, understand, & follow instructions.” Tr. 1198. First, the ALJ found that the opinion is largely based on Plaintiff’s self- 9 reports and without testing or confirmation from Ms. Nelson. Tr. 843-844. An 10 opinion may be rejected or given less weight if it is based on Plaintiff’s properly 11 discounted subjective complaints. Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th 12 Cir. 2001). As discussed supra, the ALJ found Plaintiff’s subjective complaints 13 consistent with her substance use but were not consistent with her functioning 14 during her period of sobriety. This is a germane reason for giving the opinion little 15 weight. 16 Second, the ALJ found the opinion supported by little explanation, and was 17 provided primarily through a check-box form. Tr. 844. Failure to provide support 18 or explanation is a germane reason to discredit opinion of a nonacceptable medical 19 source. Molina, 674 F.3d at 1111-12. Ms. Nelson’s form provides no explanation 20 for her findings. This is a germane reason to discredit Ms. Nelson’s opinion. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 25 Case 1:21-cv-03039-TOR ECF No. 25 filed 02/08/22 PageID.1667 Page 26 of 29 Third, the ALJ noted that Ms. Nelson did not discuss Plaintiff’s history of 1 2 substance abuse. Tr. 844. The extent a medical source is familiar with information 3 in a claimant’s record is a relevant factor for an ALJ to consider when applying 4 weight to an opinion. 20 C.F.R. § 416.927(6). This is another germane reason to 5 assign little weight to the opinion. In sum, the ALJ did not harmfully err in assigning little weight to each of the 6 7 aforementioned medical opinions. 8 C. Drug and Alcohol Abuse Plaintiff contends the ALJ erred in finding Plaintiff’s substance use was 9 10 material to a finding of disability at step three. ECF No. 15 at 19-20. 11 A claimant may not receive benefits where Drug and Alcohol Abuse 12 (“DAA”) is a material contributing factor to disability. 20 C.F.R. § 416.935(b); 42 13 U.S.C. § 423(d)(2)(c). Thus, the ALJ must evaluate which of the claimant’s 14 current limitations would remain if the claimant stopped using drugs and/or alcohol 15 and determine whether any or all of the remaining limitations would result in a 16 qualifying disability eligible for benefits. 20 C.F.R. § 416.935(b)(2). Plaintiff 17 carries the burden of demonstrating that DAA is not material to a finding of 18 disability. Parra v. Astrue, 481 F.3d 742, 748 (9th Cir. 2007). 19 20 For cases involving co-occurring mental disorders, like here, SSR 13-2p(7) states: ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 26 Case 1:21-cv-03039-TOR 1 2 3 ECF No. 25 filed 02/08/22 PageID.1668 Page 27 of 29 a. Many people with DAA have co-occurring mental disorders; that is, a mental disorder(s) diagnosed by an acceptable medical source in addition to their DAA. We do not know of any research data that we can use to predict reliably that a given claimant’s co-occurring mental disorder would improve, or to the extent to which it would improve, if the claimant were to stop using drugs or alcohol. 4 7 b. To support a finding that DAA is material, we must have evidence in the case record that establishes that a claimant with a co-occurring mental disorder(s) would not be disabled in the absence of DAA. Unlike cases involving physical impairments, we do not permit adjudicators to rely exclusively on medical expertise and the nature of a claimant’s mental disorder. 8 SSR 13-2p, 2013 WL 621536, at *9. The ALJ must consider periods of abstinence 9 that are “long enough to allow the acute effects of drug and alcohol use to abate…. 5 6 10 To find that DAA is material, we must have evidence in the case record 11 demonstrating that any remaining limitations were not disabling during the 12 period.” SSR 13-2p at *12. 13 The ALJ determined Plaintiff’s impairments, including substance use, met 14 Listings 12.04, 12.08, and 12.15. Tr. 837. However, the ALJ found that if 15 Plaintiff stopped the substance use, she would not have an impairment or 16 combination of impairments that met or medically equaled any of the listed 17 impairments. Tr. 839. The ALJ concluded Plaintiff’s substance use was material 18 to finding Plaintiff disabled. Id. 19 20 Plaintiff relies on the opinions of Ms. Miller and Dr. Morgan to establish that her mental impairments would continue to be disabling even absent drug and ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 27 Case 1:21-cv-03039-TOR ECF No. 25 filed 02/08/22 PageID.1669 Page 28 of 29 1 alcohol use. ECF No. 15 at 20. As discussed supra, the ALJ reasonably assigned 2 little weight to the opinions of Ms. Miller and Dr. Morgan. 3 The ALJ cited extensive, chronological evidence that Plaintiff’s symptoms 4 substantially improved during Plaintiff’s period of sobriety. Tr. 840-41. See, e.g., 5 Tr. 397 (February 2017: Plaintiff looked good, was dressed nicely, and was reading 6 for others); Tr. 385 (March 2017: Plaintiff’s irritability was significantly 7 decreased); Tr. 380, 460-535 (April 2017: Plaintiff doing better sober, denied 8 nightmares, felt less angry, denied feeling depressed or hopeless); Tr. 586 (July 9 2017: Plaintiff denied anger, rage, sustained depression, or suicidal ideation); Tr. 10 577 (October 2017: Plaintiff denied sustained depressed mood and hopelessness). 11 Plaintiff asserts there were instances where she displayed depressed mood, had one 12 suicide attempt, and she displayed pervasive pattern of instability in her 13 interpersonal relationships. ECF No. 15 at 20. However, this restates Plaintiff’s 14 argument that the ALJ improperly weighed the evidence. Where evidence is 15 subject to more than one rational interpretation, the ALJ’s conclusion will be 16 upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 17 Plaintiff has failed to carry her burden that Plaintiff’s polysubstance use was 18 not material to the ALJ’s finding of disability. Parra, 481 F.3d at 748. The ALJ’s 19 finding that Plaintiff’s polysubstance use is a material contributing factor to her 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 28 Case 1:21-cv-03039-TOR ECF No. 25 filed 02/08/22 PageID.1670 Page 29 of 29 1 disability is supported by substantial evidence. Plaintiff is not entitled to remand 2 on these grounds. CONCLUSION 3 4 Having reviewed the record and the ALJ’s findings, this Court concludes the 5 ALJ’s decision is supported by substantial evidence and free of harmful legal error. 6 ACCORDINGLY, IT IS HEREBY ORDERED: 7 1. Plaintiff’s Motion for Summary Judgment (ECF No. 15) is DENIED. 8 2. Defendant’s Motion for Summary Judgment (ECF No. 23) is 9 10 11 12 GRANTED. The District Court Executive is directed to enter this Order, furnish copies to counsel, and CLOSE the file. DATED February 8, 2022. 13 14 THOMAS O. RICE United States District Judge 15 16 17 18 19 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 29

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