Lashbrook v. Commissioner of Social Security, No. 2:2016cv00255 - Document 25 (E.D. Wash. 2017)
Court Description: ORDER GRANTING 22 Defendant's Motion for Summary Judgment Inter Alia; denying 14 Motion for Summary Judgment. Commissioner's decision AFFIRMED. Signed by Senior Judge Lonny R. Suko. (SK, Case Administrator)
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Lashbrook v. Commissioner of Social Security Doc. 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON ) ) ) Plaintiff, ) ) vs. ) ) NANCY A. BERRYHILL, ) Acting Commissioner of Social ) Security, ) ) Defendant. ) ______________________________ ) JAIME NOEL LASHBROOK, No. 2:16-CV-00255-LRS ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, INTER ALIA BEFORE THE COURT are the Plaintiff's Motion For Summary Judgment (ECF No. 14) and the Defendant's Motion For Summary Judgment (ECF No. 22). 17 18 JURISDICTION 19 Jaime Noel Lashbrook, Plaintiff, applied for Title XVI Supplemental Security 20 Income benefits (SSI) on May 11, 2012. The application was denied initially and on 21 reconsideration. Plaintiff timely requested a hearing which was held on September 22 23, 2014, before Administrative Law Judge (ALJ) Moira Ausems. Plaintiff testified 23 at the hearing, as did Vocational Expert (VE) K. Diane Kramer. On February 11, 24 2015, the ALJ issued a decision finding the Plaintiff not disabled. The Appeals 25 Council denied a request for review of the ALJ’s decision, making that decision the 26 Commissioner’s final decision subject to judicial review. The Commissioner’s final 27 decision is appealable to district court pursuant to 42 U.S.C. §405(g) and §1383(c)(3). 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 1 Dockets.Justia.com STATEMENT OF FACTS 1 2 The facts have been presented in the administrative transcript, the ALJ's 3 decision, the Plaintiff's and Defendant's briefs, and will only be summarized here. At 4 the time of her application for SSI benefits, Plaintiff was 27 years old, and at the time 5 of the administrative hearing, she was 30 years old. She has a high school education 6 and no past relevant work experience. 7 STANDARD OF REVIEW 8 9 "The [Commissioner's] determination that a claimant is not disabled will be 10 upheld if the findings of fact are supported by substantial evidence...." Delgado v. 11 Heckler, 722 F.2d 570, 572 (9th Cir. 1983). Substantial evidence is more than a mere 12 scintilla, Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975), but less 13 than a preponderance. McAllister v. Sullivan, 888 F.2d 599, 601-602 (9th Cir. 1989); 14 Desrosiers v. Secretary of Health and Human Services, 846 F.2d 573, 576 (9th Cir. 15 1988). "It means such relevant evidence as a reasonable mind might accept as 16 adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 17 S.Ct. 1420 (1971). "[S]uch inferences and conclusions as the [Commissioner] may 18 reasonably draw from the evidence" will also be upheld. Beane v. Richardson, 457 19 F.2d 758, 759 (9th Cir. 1972); Mark v. Celebrezze, 348 F.2d 289, 293 (9th Cir. 1965). 20 On review, the court considers the record as a whole, not just the evidence supporting 21 the decision of the Commissioner. Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 22 1989); Thompson v. Schweiker, 665 F.2d 936, 939 (9th Cir. 1982). It is the role of the trier of fact, not this court to resolve conflicts in evidence. 23 24 Richardson, 402 U.S. at 400. If evidence supports more than one rational 25 interpretation, the court must uphold the decision of the ALJ. Allen v. Heckler, 749 26 F.2d 577, 579 (9th Cir. 1984). 27 /// 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 2 1 A decision supported by substantial evidence will still be set aside if the proper 2 legal standards were not applied in weighing the evidence and making the decision. 3 Brawner v. Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 4 1987). 5 ISSUES 6 7 Plaintiff argues the ALJ erred in: 1) failing to find at step two that Plaintiff has 8 a “severe” personality disorder; 2) rejecting Plaintiff’s symptom testimony; and 3) 9 failing to properly consider and weigh medical opinion evidence. 10 DISCUSSION 11 12 SEQUENTIAL EVALUATION PROCESS 13 The Social Security Act defines "disability" as the "inability to engage in any 14 substantial gainful activity by reason of any medically determinable physical or 15 mental impairment which can be expected to result in death or which has lasted or can 16 be expected to last for a continuous period of not less than twelve months." 42 17 U.S.C. § 1382c(a)(3)(A). The Act also provides that a claimant shall be determined 18 to be under a disability only if her impairments are of such severity that the claimant 19 is not only unable to do her previous work but cannot, considering her age, education 20 and work experiences, engage in any other substantial gainful work which exists in 21 the national economy. Id. 22 The Commissioner has established a five-step sequential evaluation process for 23 determining whether a person is disabled. 20 C.F.R. § 416.920; Bowen v. Yuckert, 24 482 U.S. 137, 140-42, 107 S.Ct. 2287 (1987). Step one determines if she is engaged 25 in substantial gainful activities. 26 416.920(a)(4)(I). If she is not, the decision-maker proceeds to step two, which 27 determines whether the claimant has a medically severe impairment or combination If she is, benefits are denied. 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 3 20 C.F.R. § 1 of impairments. 20 C.F.R. § 416.920(a)(4)(ii). If the claimant does not have a severe 2 impairment or combination of impairments, the disability claim is denied. If the 3 impairment is severe, the evaluation proceeds to the third step, which compares the 4 claimant's impairment with a number of listed impairments acknowledged by the 5 Commissioner to be so severe as to preclude substantial gainful activity. 20 C.F.R. 6 § 416.920(a)(4)(iii); 20 C.F.R. § 404 Subpart P, App. 1. If the impairment meets or 7 equals one of the listed impairments, the claimant is conclusively presumed to be 8 disabled. If the impairment is not one conclusively presumed to be disabling, the 9 evaluation proceeds to the fourth step which determines whether the impairment 10 prevents the claimant from performing work she has performed in the past. If the 11 claimant is able to perform her previous work, she is not disabled. 20 C.F.R. § 12 416.920(a)(4)(iv). If the claimant cannot perform this work, the fifth and final step 13 in the process determines whether she is able to perform other work in the national 14 economy in view of her age, education and work experience. 15 416.920(a)(4)(v). 20 C.F.R. § 16 The initial burden of proof rests upon the claimant to establish a prima facie 17 case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th 18 Cir. 1971). The initial burden is met once a claimant establishes that a physical or 19 mental impairment prevents her from engaging in her previous occupation. The 20 burden then shifts to the Commissioner to show (1) that the claimant can perform 21 other substantial gainful activity and (2) that a "significant number of jobs exist in the 22 national economy" which claimant can perform. Kail v. Heckler, 722 F.2d 1496, 23 1498 (9th Cir. 1984). 24 25 26 27 ALJ'S FINDINGS The ALJ found the following: 1) Plaintiff has “severe” medical impairments, those being polysubstance 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 4 1 abuse in early remission; mixed adjustment disorder; and mild degenerative 2 spondylosis with mild dextroconvex curvature of the lumbar spine; 2) Plaintiff’s impairments do not meet or equal any of the impairments listed 3 4 in 20 C.F.R. § 404 Subpart P, App. 1; 5 3) Plaintiff has the residual functional capacity (RFC) to perform light work as 6 defined in 20 C.F.R. §416.967(b) in that she is able to lift and carry 20 pounds 7 occasionally and 10 pounds frequently; she is able to stand and walk six hours in an 8 eight hour workday and sit for six hours in an eight hour workday; she is not able to 9 climb ladders, ropes or scaffolds; she can have no exposure to unprotected heights, 10 moving machinery, or commercial driving; she can perform simple and routine tasks 11 and no more than lower semiskilled (SVP-31) tasks; she can have brief superficial 12 contact with the general public; she can have superficial contact with coworkers, but 13 no cooperative tandem work with coworkers; 14 4) Plaintiff’s RFC allows her to perform jobs existing in significant numbers 15 in the national economy as identified by the VE, including sorter, office cleaner and 16 production assembler. Accordingly, the ALJ concluded the Plaintiff is not disabled. 17 18 19 SEVERE IMPAIRMENT 20 A “severe” impairment is one which significantly limits physical or mental 21 ability to do basic work-related activities. 20 C.F.R. § 416.920(c). It must result 22 from anatomical, physiological, or psychological abnormalities which can be shown 23 by medically acceptable clinical and laboratory diagnostic techniques. It must be 24 /// 25 26 27 28 1 Specific Vocational Preparation as determined by the U.S. Department of Labor and found in the Dictionary of Occupational Titles. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 5 1 established by medical evidence consisting of signs, symptoms, and laboratory 2 findings, not just the claimant's statement of symptoms. 20 C.F.R. § 416.908. 3 In a footnote in her opening brief (ECF No. 14 at p. 20, n. 6), Plaintiff contends 4 the ALJ erred in not finding Plaintiff has a “severe” personality disorder. In her 5 decision, the ALJ noted there was a reference in the record to a personality disorder, 6 but she found “the DSM-V2 criteria are not well-established in the treatment notes.” 7 (AR at p. 18). In a “Progress Note” dated August 13, 2014, Kristie Lester, a Licensed 8 Mental Health Counselor (LMHC), diagnosed the Plaintiff on Axis 23 with a 9 personality disorder. (AR at p. 472). There is, however, no apparent explanation for 10 that particular diagnosis and although it is Plaintiff’s burden to prove it is a “severe” 11 impairment, she cites to no medical evidence in the record supporting that diagnosis. 12 Furthermore, nurse practitioners, physicians’ assistants, and therapists (physical and 13 mental health) are not “acceptable medical sources” for the purpose of establishing 14 if a claimant has a medically determinable impairment. 20 C.F.R. § 416.913(a). Ms. 15 Lester is not an “acceptable medical source.” It is not clear why the ALJ felt 16 compelled to mention the personality disorder diagnosis. Nonetheless, the court 17 cannot find, and has not been directed to, any acceptable medical evidence in the 18 record establishing that Plaintiff has a “severe” personality disorder. 19 MEDICAL OPINIONS 20 21 22 2 (2013). 23 24 25 26 27 28 Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition 3 DSM-V no longer uses the multi-axial system. In prior editions of the DSM, Axis II was reserved for long-standing conditions of clinical significance, like personality disorders. https://pro.psychcentral.com/dsm-5-changes-personality-disorders-axis-ii/005008. html ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 6 1 In her decision, the ALJ noted that Plaintiff filed a prior application for Title 2 XVI benefits on August 27, 2010, which was denied upon initial determination on 3 October 4, 2010, within two years of her application dated May 11, 2012. Plaintiff 4 apparently sought to reopen the prior application. (AR at p. 34). The ALJ, however, 5 determined reopening was not warranted because the record did not “contain new and 6 material evidence or evidence establishing clear error on the face of the prior denial 7 determination that could be found to establish good cause for reopening.” (AR at p. 8 12). 9 determination of disability through October 4, 2010. (AR at p. 12). As such, the prior denial determination constituted a final and binding 10 An ALJ necessarily considers the record of the prior decision in determining 11 whether there has been a substantial change in the claimant’s condition since that 12 time that would warrant reopening. Krumpelman v. Heckler, 767 F.2d 586, 589 (9th 13 Cir. 1985). A decision not to reopen a previously adjudicated claim for social 14 security benefits is discretionary and therefore, not considered a “final” decision 15 within the meaning of 42 U.S.C. §405(g). Id. at 588. District courts have no 16 jurisdiction to review a refusal to reopen a claim for disability benefits or a 17 determination that such a claim is res judicata. Id. 18 Plaintiff cannot challenge the ALJ’s determination to not reopen her prior 19 claim. Nevertheless, she asserts that medical reports from prior to October 4, 2010 20 “support [her] consistent symptom claims and observations of these providers.” The 21 ALJ addressed these reports in her decision: 22 23 24 25 26 27 The Department of Social and Health Services opinions from James Goodwin, Psy.D., Caitilin Newman, M.S., and Dr. Arnold, dated October 7, 2008, December 14, 2009, and July 22, 2010, respectively, are given little weight. These opinions are for the period covered under the prior adjudication ending October 4, 2010, and are relevant to the claimant’s functioning for that period. Moreover, these opinions are too remote in time to show the claimant’s level of functioning for the current adjudicatory period. In addition, examining mental health professionals performed perfunctory evaluations of the claimant and provided limited details as to the basis for the opinions. 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 7 1 (AR at p. 23). 2 In October 2008, Plaintiff was referred to Dr. Goodwin for evaluation and 3 treatment. He noted that Plaintiff was “currently taking prescriptions of methadone 4 and a benzodiazepine (not good).” (AR at p. 296). Plaintiff reported a history of 5 problems with illicit drug use and “current problems with illicit drug use in early full 6 remission.” (Id.) Her previous psychological/psychiatric contacts included two times 7 in inpatient drug treatment. (Id.). 8 Disorder Recurrent Moderate-Severe” and “Opioid Dependence Early Full Remission 9 x8 mos.” (Id.). His recommendation was drug and alcohol evaluation and treatment; 10 re-evaluation of the need for benzodiazepines; and starting treatment with 11 antidepressants. (Id.). Dr. Goodwin completed a Department of Social and Health 12 Services (DSHS) “Psychological/Psychiatric Evaluation” form in which he opined 13 that drug and alcohol evaluation and treatment was likely to decrease the severity of 14 Plaintiff’s condition (AR at p. 290), and that drug and alcohol abuse significantly 15 exacerbated the Plaintiff’s condition. (AR at p. 291). Dr. Goodwin performed a 16 mini-mental status exam (MMSE) of Plaintiff (AR at pp. 293-94), but there was no 17 other testing. He opined that Plaintiff had a number of “marked” and “severe” 18 cognitive and social limitations. (AR at p. 291). A “marked” limitation constitutes 19 a “very significant interference” with the ability to perform basic work-related 20 activities, while a “severe” limitation constitutes an inability to perform one or more 21 basic work-related activities. 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// Dr. Goodwin diagnosed “Major Depressive 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 8 1 LMHC Caitilin Newman performed a MMSE of Plaintiff in December 2009, 2 as well as a PHQ-94 and a GAD-75 to evaluate depression and anxiety respectively. 3 (AR at pp. 285-288). She diagnosed Plaintiff with “Major Depression, severe” and 4 “Adjustment DX w/ mixed anxiety and depression.” (AR at p. 281). She indicated 5 that Plaintiff’s mental health symptoms were affected by substance abuse, specifically 6 OxyContin, and that Plaintiff had been in treatment for seven months and “clean” 7 since December 2008. (Id.). She opined that Plaintiff had a number of “marked” 8 cognitive and social limitations. (AR at p. 282). She recommended Plaintiff undergo 9 mental health therapy. (AR at p. 283). She indicated that Plaintiff presented with a 10 “very flat affect, tearful, very depressed.” (AR at p. 284). 11 John Arnold, Ph.D., completed a DSHS evaluation form regarding Plaintiff in 12 July 2010. He indicated he had been presented with no records to review, that 13 Plaintiff had been in counseling and had made progress and had never been 14 hospitalized for psychiatric reasons. (AR at p. 269). He diagnosed Plaintiff with 15 “Opioid 16 report)/Dysthymic Disorder.” (AR at p. 271). He indicated that Plaintiff’s mental 17 health symptoms were affected by substance abuse or dependence in that OxyContin 18 might increase her symptoms of loss of motivation and interest, sadness/crying, and 19 worrying, nervousness and being antsy. (Id.). He opined that Plaintiff had, at most, 20 some “moderate” cognitive and social limitations (significant interference with ability 21 to perform basic work-related activities). (AR at p. 272). According to Dr. Arnold 22 at the time: Dependence (OxyContin), “Early Full Remission (per client 23 24 25 26 27 28 4 The Patient Health Questionnaire-9 objectifies and assesses degree of depression severity. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1495268/ 5 The General Anxiety Disorder-7 measures severity of anxiety, mainly in outpatients. https://www.ncbi.nlm.nih.gov/pubmed/16717171 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 9 [Plaintiff] will be able to remember locations and simple work like procedures. She will be able to understand, remember and carry out simple verbal and written instructions. She will be able to make simple work related decisions. She will be able to ask simple questions and request assistance. She will be able to adhere to basic standards of neatness and cleanliness. She will be aware of normal hazards and take appropriate precautions. She will be able to travel in unfamiliar places and use public transportation. 1 2 3 4 5 6 (Tr. at p. 272). 7 Among other things, Dr. Arnold recommended Plaintiff undergo cognitive 8 behavioral therapy and individual counseling, have the WAIS-IV6 administered to 9 her, and that she continue with drug and alcohol treatment. (AR at p. 273). 10 Dr. Arnold also administered the PAI (Personality Assessment Inventory) to 11 Plaintiff “to add information regarding her emotional functioning.” The doctor 12 deemed Plaintiff’s profile valid and indicated “[s]he did not respond in a more 13 negative or positive [way] than the clinical picture would warrant.” Per Dr. Arnold, 14 the PAI revealed Plaintiff to be suffering from significant distress, with particular 15 concern about her physical functioning. He indicated Plaintiff was likely to be 16 plagued by thoughts of worthlessness, hopelessness and personal failures, and that 17 she was “also likely to be plagued by worry to the degree that her ability to 18 concentrate and attend are significantly compromised.” (AR at p. 274). 19 W. Scott Mabee, Ph.D., completed a DSHS evaluation form regarding Plaintiff 20 in March 2011. Dr. Mabee indicated there were no records to review and that 21 Plaintiff had not been in counseling. (AR at p. 336). Dr. Mabee performed a Mental 22 Status Examination (MSE). (AR at pp. 341-43). He diagnosed Plaintiff with “Opioid 23 Dependence (OxyContin), Sustained Full Remission (per client report)/Dysthymic 24 Disorder/Adjustment Disorder with Anxiety.” (AR at p. 337). He indicated that 25 opioids might increase certain of Plaintiff’s symptoms, including increase in 26 27 28 6 Wechsler Adult Intelligence Scale-Fourth Edition. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 10 1 agitation, anxiety and confusion, and decrease in concentration, attention, motivation. 2 (AR at p. 338). He opined that Plaintiff had mild to moderate cognitive and social 3 limitations. (Id.). According to Dr. Mabee’s “Medical Source Statement:” [Plaintiff] will be able to remember locations and work like procedures. She will be able to understand, remember and carry out simple verbal and written instructions. She will be able to concentrate for limited periods. She will be able to make very simple work related decisions. She will be able to ask simple questions, request assistance and accept instructions. She will be able to adhere to basic standards of neatness and cleanliness. She will be able to use the bus but is very nervous on it. 4 5 6 7 8 9 10 11 (AR at p. 339). Dr. Mabee indicated that mental health intervention was likely to restore or substantially improve Plaintiff’s ability. (AR at p. 339). 12 In September 2011, Dr. Arnold completed another DSHS evaluation form 13 regarding the Plaintiff. He reviewed the prior assessment by Dr. Mabee. (AR at p. 14 356). He diagnosed Plaintiff with “Dysthymic Disorder/Bereavement GAD.” (AR 15 at p. 357). Based on Plaintiff’s self-report, Dr. Arnold indicated there were no mental 16 health symptoms affected by substance abuse or dependence. (AR at p. 358). 17 Plaintiff told Dr. Arnold she had “maintained her clean and sober lifestyle, since her 18 last GAU7 assessment.” He opined that Plaintiff had mild to moderate cognitive and 19 social limitations, with one exception being a marked limitation in ability to 20 communicate and perform effectively in a work setting with public contact. (AR at 21 p. 358). He repeated verbatim, however, the “Medical Source Statement” contained 22 in Dr. Mabee’s earlier evaluation. (AR at p. 359). He concurred with Dr. Mabee that 23 mental health intervention was likely to restore or substantially improve Plaintiff’s 24 ability to work. (AR at p. 359). He noted that Plaintiff reported a significant increase 25 26 27 28 7 General Assistance Unemployable. A Washington DSHS program providing cash and medical assistance to adults with temporary incapacities. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 11 1 in anxiety/depression since she was last seen (presumably by Dr. Mabee in March 2 2011). (Id.). 3 At the September 2014 hearing, Plaintiff’s counsel presented a hypothetical to 4 the VE based on the limitations opined by Dr. Arnold in his September 2011 5 evaluation: moderate limitation in ability to understand, remember and persist in tasks 6 by following complex instructions, ability to learn new tasks, ability to perform 7 routine tasks without undue supervision, ability to communicate and perform 8 effectively in a work setting with limited public contact, ability to maintain 9 appropriate behavior in a work setting; and marked limitation in ability to 10 communicate and perform effectively in a work setting with public contact. The VE 11 responded that such an individual would not be capable of performing any work. (AR 12 at p. 62). 13 At the hearing, the ALJ indicated she would be sending the Plaintiff out for a 14 consultative examination. (AR at p. 50). Jay M. Toews, Ed.D., conducted this 15 examination on November 4, 2014. Dr. Toews reviewed Plaintiff’s mental health 16 record, including the March 2011 and September 2011 evaluations by Drs. Mabee 17 and Arnold. (AR at pp. 485-86). Plaintiff denied having had any mental health 18 treatment. Dr. Toews found Plaintiff to be inconsistent in reporting about anxiety and 19 depression, and found she exhibited no signs of depression or anxiety. (AR at p. 20 486). Plaintiff indicated she had completed substance abuse treatment two months 21 ago and was not presently using drugs or alcohol. (AR at p. 487). Dr. Toews 22 assessed Plaintiff’s mental health functioning as follows: Her cognitive functioning appears to be in the Low Average range by MSE [Mental Status Examination]. Memory functioning is in the Low Average Range.8 Anxiety and depression associated with polysubstance cessation is 23 24 25 26 27 28 8 Plaintiff was administered the WMS-IV (Wechsler Memory Scale) by Dr. Toews. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 12 treatable. She need[s] to be encouraged to remain clean, and assisted to develop a solid support system. Additional psychosocial treatment such as vocational rehabilitation training should be made available. 1 2 3 She is capable of remembering and executing detailed instructions. She is capable of at least superficial interactions with co-workers. She would have moderate to marked limitations in ability to interact with the general public. She is able to make routine decisions and judgments in a work situation. She would function best in a low stress environment. She is capable of managing funds as long as she remains clean. 4 5 6 7 8 (AR at p. 488). 9 Dr. Toews diagnosed Plaintiff with “Opioid Dependence in self-reported full 10 remission” and “Adjustment Disorder, Mixed, related to life changes associated with 11 early recovery.” (AR at p. 488). He opined that Plaintiff was moderately limited in 12 her ability to interact appropriately with the public and respond appropriately to usual 13 work situations and to changes in a routine work setting. (AR at p. 491). He opined 14 that Plaintiff was moderately limited in her ability to understand and remember 15 complex instructions and carry out complex instructions, and that she was markedly 16 limited in her ability to make judgments on complex work-related decisions. (AR at 17 p. 492). 18 The ALJ gave “significant” weight to the opinions of Dr. Toews. (AR at p. 19 21). She deemed her RFC finding consistent with his opinions, with the exception 20 that she found Plaintiff capable of brief superficial contact with the general public 21 based on Plaintiff’s testimony that she used public transportation six days a week and 22 her frequenting of the grocery store and the library. (Id.). The ALJ also found that 23 Plaintiff’s RFC for simple and routine tasks and no more than lower semi-skilled 24 tasks, brief superficial contact with the general public, superficial contact with 25 coworkers, and no cooperative tandem work with coworkers, was consistent with the 26 limitation regarding a low stress work environment. (Id.). The ALJ noted that Dr. 27 Toews’ evaluation was the only one in the record that relied on clinical testing (Trail 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 13 1 Making Test and WMS-IV) other than a mini-mental status examination. Therefore, 2 according to the ALJ, this supported giving Dr. Toews’ evaluation more weight than 3 the other evaluations. (Id.). Furthermore, because Dr. Toews’ evaluation was made 4 after the Plaintiff was purportedly in remission from illicit substances, the ALJ found 5 that the limitations opined by him could be viewed as Plaintiff’s level of functioning 6 absent substance abuse. (Id.). 7 It is settled law in the Ninth Circuit that in a disability proceeding, the opinion 8 of a licensed treating or examining physician or psychologist is given special weight 9 because of his/her familiarity with the claimant and his/her condition. If the treating 10 or examining physician's or psychologist’s opinion is not contradicted, it can be 11 rejected only for clear and convincing reasons. Reddick v. Chater, 157 F.3d 715, 725 12 (9th Cir. 1998); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). If contradicted, the 13 ALJ may reject the opinion if specific, legitimate reasons that are supported by 14 substantial evidence are given. Id. “[W]hen evaluating conflicting medical opinions, 15 an ALJ need not accept the opinion of a doctor if that opinion is brief, conclusory, 16 and inadequately supported by clinical findings.” Bayliss v. Barnhart, 427 F.3d 1211, 17 1216 (9th Cir. 2005). 18 Initially, it is not readily apparent that the opinions of Dr. Toews diverges 19 significantly from those rendered previously by Drs. Mabee and Arnold. The 20 identical “Medical Source Statement” of Drs. Mabee and Arnold does not appear 21 manifestly contrary to the assessment of Dr. Toews that Plaintiff is capable of 22 remembering and executing detailed instructions and capable of superficial 23 interactions with co-workers; would have moderate to marked limitations in ability 24 to interact with the general public; is able to make routine decisions and judgments; 25 would function best in a low stress environment; and is capable of managing funds 26 as long as she remains clean. Nevertheless, it is true that Dr. Toews conducted a 27 more thorough evaluation of the Plaintiff. Furthermore, in all of the evaluations pre- 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 14 1 dating Dr. Toews’ evaluation, with one exception9, it was the opinion of the evaluator 2 that Plaintiff’s substance abuse was clearly a significant factor exacerbating her 3 mental health symptoms, recognizing that even Dr. Toews, like the previous 4 evaluators, relied on Plaintiff’s self-reporting as to whether she was currently using 5 illicit substances. 6 Without substance abuse, a legitimate inference by the ALJ was that Plaintiff’s 7 mental health symptoms, and her resulting functional limitations, are not as severe. 8 To the extent that Dr. Toews’ opinions in fact contradicted the opinions of Drs. 9 Mabee and Johnson (and the opinions of the evaluators prior to October 2010), the 10 ALJ offered specific and legitimate reasons for according more weight to the opinions 11 of Dr. Toews. 12 13 SYMPTOM TESTIMONY 14 Where, as here, the Plaintiff has produced objective medical evidence of an 15 underlying impairment that could reasonably give rise to some degree of the 16 symptoms alleged, and there is no affirmative evidence of malingering, the ALJ’s 17 reasons for rejecting the Plaintiff’s testimony must be clear and convincing. Burrell 18 v. Colvin, 775 F.3d 1133, 1137 (9th Cir. 2014); Garrison v. Colvin, 759 F.3d 995, 19 20 21 22 23 24 25 26 27 28 9 In his July 2010 evaluation, Dr. Arnold indicated that Plaintiff’s mental health symptoms were affected by substance abuse, but he indicated to the contrary in his September 2011 evaluation. He did so, however, based on the Plaintiff’s self-report that she had been clean and sober since her last assessment, presumably the one by Dr. Mabee. The record, as discussed above and set forth in the ALJ’s decision (AR at pp. 19-20) bears out that Plaintiff consistently experienced substance abuse issues from 2008 to 2014, notwithstanding her professing on several different occasions to be “clean.” ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 15 1 1014 (9th Cir. 2014). If an ALJ finds a claimant’s subjective assessment unreliable, 2 “the ALJ must make a credibility determination with findings sufficiently specific to 3 permit [a reviewing] court to conclude that the ALJ did not arbitrarily discredit [the] 4 claimant’s testimony.” 5 Among other things, the ALJ may consider: 1) the claimant's reputation for 6 truthfulness; 2) inconsistencies in the claimant's testimony or between her testimony 7 and her conduct; 3) the claimant’s daily living activities; 4) the claimant's work 8 record; and 5) testimony from physicians or third parties concerning the nature, 9 severity, and effect of claimant's condition. Id. Subjective testimony cannot be 10 rejected solely because it is not corroborated by objective medical findings, but 11 medical evidence is a relevant factor in determining the severity of a claimant’s 12 impairments. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir.2002). 13 Plaintiff asserts it “is only the ALJ’s theory that [Plaintiff’s] mental diagnoses 14 and mental limitations are due to substance abuse” and asserts “[t]he ALJ’s 15 conclusion that her drug and alcohol abuse are material to her disability are 16 incorrect.” (ECF No. 23 at p. 6). As the discussion of the medical evidence reveals, 17 it is not merely the ALJ’s theory that Plaintiff’s mental health limitations are 18 exacerbated by substance abuse. It is the near unanimous opinion of the examining 19 mental health evaluators that Plaintiff’s substance abuse is material to her claimed 20 disability. Their evaluations, in themselves, constitute clear and convincing reasons 21 to reject any assertion by Plaintiff that her mental health symptoms are of disabling 22 severity, independent of substance abuse. Accordingly, even if the other reasons 23 cited by the ALJ for discounting Plaintiff’s symptom testimony (e.g., failure to seek 24 regular treatment for mental health symptoms, inconsistent reporting of substance 25 abuse history, drug seeking behavior, daily living activities) are not clear and 26 convincing, there is still substantial evidence supporting the ALJ’s discounting of 27 /// 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 16 1 Plaintiff’s symptom testimony. Carmickle v. Comm’r Soc. Sec. Admin., 533 F.3d 2 1155. 1162-63 (9th Cir. 2008). 3 CONCLUSION 4 5 The ALJ’s mental RFC determination is supported by substantial evidence in 6 the record. Therefore, she posed a proper and complete hypothetical to the VE 7 pursuant to which the VE opined Plaintiff could perform jobs existing in significant 8 numbers in the national economy. The ALJ rationally interpreted the evidence and 9 “substantial evidence”- more than a scintilla, less than a preponderance- supports her 10 11 decision that Plaintiff is not disabled. Defendant’s Motion For Summary Judgment (ECF No. 22) is GRANTED and 12 Plaintiff’s Motion For Summary Judgment (ECF No. 14) is DENIED. The 13 Commissioner's decision is AFFIRMED. 14 15 16 17 18 19 20 IT IS SO ORDERED. The District Executive shall enter judgment accordingly and forward copies of the judgment and this order to counsel of record. DATED this 12th day of October, 2017. s/Lonny R. Suko LONNY R. SUKO Senior United States District Judge 21 22 23 24 25 26 27 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 17
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