Richardson v. Commissioner of Social Security, No. 4:2017cv05002 - Document 16 (E.D. Wash. 2017)
Court Description: ORDER GRANTING 13 PLAINTIFF'S SUMMARY-JUDGMENT MOTION AND DENYING 14 DEFENDANT'S SUMMARY-JUDGMENT MOTION. Signed by Senior Judge Edward F. Shea. (AY, Case Administrator)
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Richardson v. Commissioner of Social Security Doc. 16 1 2 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 No. EDWARD RICHARDSON, 4:17-CV-5002-EFS 8 Plaintiff, ORDER GRANTING PLAINTIFF’S SUMMARY-JUDGMENT MOTION AND DENYING DEFENDANT'S SUMMARYJUDGMENT MOTION 9 v. 10 COMMISSIONER OF SOCIAL SECURITY, 11 Defendant. 12 13 Before the Court, without oral argument, are cross-summary- 14 judgment 15 appeals the Administrative Law Judge’s (“ALJ”) denial of benefits. See 16 ECF No. 13. 17 conducting 18 discrediting 19 weighing the medical evidence. See ECF No. 13 at 2-3. The Commissioner 20 of Social Security (“Commissioner”) asks the Court to affirm the ALJ’s 21 decision. See ECF No. 14. 22 motions. The ECF Nos. 13 & 14. Plaintiff Edward Richardson Mr. Richardson contends the ALJ erred by (1) improperly a drug his Court and alcohol subjective has abuse symptom reviewed the analysis, testimony, (2) and administrative improperly (3) record improperly and the 23 parties’ briefing and is fully informed. For the reasons set forth 24 below, 25 additional proceedings. the Court reverses the ALJ’s decision and remands for 26 ORDER GRANTING SUMMARY JUDGMENT FOR PLAINTIFF - 1 Dockets.Justia.com I. 1 STATEMENT OF FACTS1 2 Plaintiff Edward Richardson was born on May 2, 1969, and is 48 3 years old. Administrative Record, ECF No. 10, (“AR”) 290. His highest 4 level of formal education is a GED, and he is able to communicate in 5 English. AR 521. He stands 5’8” tall and weighs approximately 180 6 pounds. AR 459, 642. Mr. Richardson has been diagnosed with a number of physical and 7 8 mental conditions, 9 generalized anxiety Disorder, bipolar I disorder, and depression. See 465, 506-12. including He lumbar experiences disc chronic disorder, back severe pain, which asthma, 10 AR he has 11 historically managed with prescription opioid drugs. See AR 572, 588, 12 652. Mr. Richardson also takes a number of other prescription drugs to 13 manage his symptoms. See AR 734-42. At times, his anxiety causes him 14 to become aggressive and verbally abusive to those around him. See AR 15 76-77. Mr. Richardson lives with his mother and spends his days mostly 16 17 at home. AR 72-76, 89. He has a significant work 18 construction worker (heavy work, semi-skilled, DOT Code: 869.664-014) 19 and carpenter (medium work, skilled, DOT Code: 860.381-022). AR 36. 20 Mr. Richardson has not been employed since early 2008. AR 225-29. II. 21 On 22 July 2012, as a PROCEDURAL HISTORY AND ALJ FINDINGS 15, history insurance Mr. Richardson benefits and a filed an related application application for 23 disability for 24 supplemental security income. AR 18. In both claims, he alleged a 25 1 26 The facts are only briefly summarized. Detailed facts are contained in the administrative hearing transcript, the ALJ’s decision, and the parties’ briefs. ORDER GRANTING SUMMARY JUDGMENT FOR PLAINTIFF - 2 1 disability onset date of February 14, 2008. AR 18. Mr. Richardson’s 2 claims were denied initially and upon reconsideration. AR 18. 3 Mr. Richardson subsequently requested a hearing before an ALJ, 4 which took place before ALJ Moira Ausems on December 1, 2014. AR 18. 5 The ALJ presided over the hearing from Spokane, Washington, while Mr. 6 Richardson and counsel appeared by video from Kennewick, Washington. 7 AR 18. Vocational expert Daniel R. McKinney, Sr., and medical expert 8 Anthony E. Francis, M.D., appeared telephonically. AR 18, 58-86. On 9 May 5, 2015, the ALJ issued a decision denying Mr. 10 Richardson’s claim. AR 18-38. In her decision, she determined Mr. 11 Richardson has the severe impairments of lumbar degenerative disc and 12 joint disease; mild thoracic degenerative and joint disease; mildly 13 displaced 14 otherwise 15 narcotics dependence; polysubstance abuse involving methamphetamine 16 and 17 withdrawal seizures. AR 21. 18 left patella specified; marijuana; and fracture; generalized possible asthma; anxiety seizure depressive disorder, disorder; disorder or not prescription substance abuse The ALJ proceeded to find that Mr. Richardson’s impairments met 19 listings 12.04 – Affective Disorders, 12.06 20 Disorders, and 12.09 – Substance Addiction Disorders but that his 21 impairments would not meet the listings if he stopped abusing illicit 22 substances. AR 22-25. Further, the ALJ found that absent his substance 23 abuse, Mr. Richardson would have the residual functional capacity 24 (RFC) to perform light work as defined in 20 CFR §§ 404.1567(b) and 25 416.967(b) with some postural and environmental limitations. AR 25-36. 26 Based on this assessment, the ALJ found that absent substance abuse, ORDER GRANTING SUMMARY JUDGMENT FOR PLAINTIFF - 3 – Anxiety-Related 1 Mr. Richardson would not be able to perform his past relevant work but 2 that there were a significant number of jobs in the national economy 3 that the claimant could perform, including Production Assembler (light 4 work, DOT Code: 706.687-010), Table Worker (sedentary work, DOT Code: 5 739.687-182), and Inspector Packer (light work, 784.687-042). AR 36- 6 37. As a result, the ALJ concluded Mr. Richardson is not disabled 7 under sections 216(i) and 223(d) of the Social Security Act. AR 38. 8 The Appeals Council denied Mr. Richardson’s request for review, 9 AR 1-2, making the ALJ’s decision the final agency action for purposes 10 of judicial review. 42 U.S.C. § 1383(c)(3); 20 C.F.R. §§ 416.1481, 11 422.210. Mr. Richardson filed this suit on January 17, 2017, ECF 12 No. 1, 13 present summary-judgment motions. ECF Nos. 13 & 14. appealing the ALJ’s decision. The parties then filed the III. STANDARD OF REVIEW 14 15 A district court’s review of a Commissioner’s final decision is 16 governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 17 limited: the Commissioner’s decision will be disturbed “only if it is 18 not supported by substantial evidence or is based on legal error.” 19 Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). “Substantial 20 evidence” means relevant evidence that “a reasonable mind might accept 21 as adequate to support a conclusion.” Id. at 1159 (quotation and 22 citation omitted). Stated differently, substantial evidence equates to 23 “more 24 (quotation and citation omitted). In determining whether this standard 25 has been satisfied, a reviewing court must consider the entire record than a mere scintilla but less than a 26 ORDER GRANTING SUMMARY JUDGMENT FOR PLAINTIFF - 4 preponderance.” Id. 1 as a whole rather than searching for supporting evidence in isolation. 2 Id. 3 In reviewing a denial of benefits, a district court may not 4 substitute its judgment for that of the Commissioner. If the evidence 5 in 6 interpretation, [the court] must uphold the ALJ’s findings if they are 7 supported by inferences reasonably drawn from the record.” Molina v. 8 Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court 9 “may not reverse an ALJ’s decision on account of an error that is 10 harmless.” Id. An error is harmless “where it is inconsequential to 11 the 12 (quotation 13 decision 14 harmed. Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009). the record [ALJ’s] “is susceptible ultimate and nondisability citation generally omitted). bears IV. 15 to the more than one determination.” The burden party of rational Id. appealing establishing at the that 1115 ALJ’s it was DISABILITY DETERMINATION A claimant is considered “disabled” for the purposes of the 16 17 Social Security 18 claimant 19 activity by reason of any medically determinable physical or mental 20 impairment which can be expected to result in death or which has 21 lasted or can be expected to last for a continuous period of not less 22 than 23 claimant’s impairment must be of such severity that he “is not only 24 unable to do his previous work but cannot, considering his age, 25 education, 26 substantial gainful work which exists in the national economy.” Id. must twelve Act be if “unable months.” and two work 42 conditions to engage U.S.C. experience, § are in satisfied. any substantial 1382c(a)(3)(A). engage in ORDER GRANTING SUMMARY JUDGMENT FOR PLAINTIFF - 5 First, any gainful Second, other the kind the of 1 § 1382c(a)(3)(B). The decision-maker uses a five-step sequential 2 evaluation process to determine whether a claimant is disabled. 20 3 C.F.R. §§ 404.1520, 416.920. Step one assesses whether the claimant is currently engaged in a 4 5 substantial gainful activity. Id. § 416.920(a)(4)(i). If he is, 6 benefits are denied. 20 C.F.R. §§ 404.1520(b), 416.920(b). If he is 7 not, the decision-maker proceeds to step two. 8 Step two assesses whether the claimant has a medically severe 9 impairment, or combination of impairments, which significantly limits 10 the claimant’s 11 activities. 20 C.F.R. §§ 404.1520(c), 416.920(c). If he does not, the 12 disability claim is denied. If he does, the evaluation proceeds to 13 step three. Step 14 three physical compares or the mental ability claimant’s to do impairment basic to work several 15 impairments recognized by the Commissioner to be so severe as to 16 preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(d), 404 17 Subpt. P App. 1, 416.920(d). If the impairment meets or equals one of 18 the listed impairments, the claimant is conclusively presumed to be 19 disabled. If the impairment does not, the evaluation proceeds to step 20 four. 21 Step four assesses whether the impairment prevents the claimant 22 from performing work he has performed in the past by determining the 23 claimant’s residual functional capacity (“RFC”). Id. §§ 404.1520(e), 24 416.920(e). If the claimant is able to perform his previous work, the 25 claimant is not disabled. If the claimant cannot perform this work, 26 the evaluation proceeds to step five. ORDER GRANTING SUMMARY JUDGMENT FOR PLAINTIFF - 6 1 Step five, the final step, assesses whether the claimant can 2 perform other work in the national economy in view of the claimant’s 3 age, 4 416.920(f); see Bowen v. Yuckert, 482 U.S. 137 (1987). If he can, the 5 disability claim is denied. If he cannot, the claim is granted. education, and work experience. 20 C.F.R. §§ 404.1520(f), The burden of proof shifts during this analysis. The claimant 6 7 has the initial 8 benefits under steps one through four. Rhinehart v. Finch, 438 F.2d 9 920, 921 (9th Cir. 1971). At step five, the burden shifts to the to burden show of establishing (1) that 11 substantial gainful activity and (2) that a “significant number of 12 jobs exist in the national economy” which the claimant can perform. 13 Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984). Mr. 15 Richardson can disability Commissioner V. claimant to 10 14 the entitlement perform other ANALYSIS contends the ALJ erred because she: (1) 16 improperly conducted a drug abuse analysis; (2) improperly discredited 17 Mr. 18 improperly weighed the medical evidence. See ECF No. 13 at 2-3. The 19 Court evaluates each challenge to the ALJ’s decision in turn. 20 A. 21 Richardson’s subjective testimony of his symptoms; and (3) Drug abuse analysis Mr. Richardson first argues that the ALJ erred by improperly 22 concluding 23 disorder materially contributed to his disabling limitations. See ECF 24 13 at 3-11. The Commissioner responds that Mr. Richardson had the 25 burden 26 contribute to his disabling limitations and that the ALJ’s conclusion of that he proving had his a drug substance and abuse alcohol disorder abuse ORDER GRANTING SUMMARY JUDGMENT FOR PLAINTIFF - 7 did and not that the materially 1 was supported by substantial evidence in the record. See ECF No. 14 at 2 3-7. Federal law provides that a claimant cannot receive disability 3 4 benefits 5 contributing factor material to the Commissioner’s determination that 6 the individual is disabled.” 42 U.S.C. § 423(d)(2)(C). As the Court of 7 Appeals for the Ninth Circuit has explained, Congress adopted this 8 amendment as part of the Contract with America Advancement Act to 9 “discourage alcohol and drug abuse, or at least not to encourage it 10 with a permanent government subsidy.” Ball v. Massanari, 254 F.3d 817, 11 824 (9th Cir. 2001). In 12 if 2013, “alcoholism the Social or drug addiction Security would Administration . . issued . a be a formal 13 ruling, SSR 13-2p, which reinforced and clarified the agency’s pre- 14 existing policies regarding Drug 15 that existed before the ruling was issued. See Garner v. Colvin, 626 16 Fed. Appx. 699, 701 (9th Cir. 2015). SSR 13-2p requires an ALJ to have 17 “objective medical evidence – that is, signs, symptoms, and laboratory 18 findings – from an acceptable medical source” to make a finding that a 19 claimant 20 regulation 21 objective 22 referencing another physician’s findings – the ALJ must “have the 23 2 24 25 is abusing explains medical drugs that a evidence, or Addiction and alcohol. number of including SSR Alcoholism (“DAA”)2 13-2p(8)(b)(i). things do (1) third-party a not The constitute report Although imprecise, the Court uses the term “DAA” because it is commonly used by the Social Security Administration. See SSS 13-2p(1)(a)(i) (defining DAA as “Substance Use Disorders; that is, Substance Dependence or Substance Abuse as defined in the latest edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM) published by the American Psychiatric Association”). 26 ORDER GRANTING SUMMARY JUDGMENT FOR PLAINTIFF - 8 1 source’s own clinical or laboratory findings,” id. at (8)(b)(ii); (2) 2 self-reported drug use, id. at (8)(b)(i); and (3) a single positive 3 drug test, id. at (8)(d)(ii). 4 If objective medical evidence does not exist in the record, SSR 5 13-2p requires the ALJ to make “every reasonable effort to develop a 6 complete medical history.” SSR 13-2p(8)(a)(iii). If objective medical 7 evidence does exist in the record, the regulation provides that the 8 ALJ must also identify evidence establishing a “maladaptive pattern of 9 substance use and the other requirements for diagnosis of a Substance 10 Abuse Disorder in the DSM.” SSR 13-2p(8)(b)(ii). “This evidence must 11 come 12 determining that the record supports a finding of DAA may the ALJ 13 decide whether that abuse is material to the claimant’s disabling 14 limitations. from an acceptable medical source.” Id. Only after properly 15 (1) 16 In this case, the ALJ found that Mr. Richardson abused illicit 17 drugs, including methamphetamine and prescription opiates. See AR 21- 18 23. 19 objective medical evidence in the record. See ECF No. 13 at 3. Mr. Substantial evidence Richardson argues this conclusion is not supported by 20 The ALJ supported her conclusion of DAA with lengthy references 21 to the record. First, she referenced the opinion of Dr. Wei-Hsung Lin, 22 Mr. Richardson’s treating physician from approximately March 2012 to 23 March 2013. See AR 22, 409-36, 546-47. After Mr. Richardson tested 24 positive for methamphetamine in a drug screen urine test in February 25 2013, Dr. Lin sent Mr. Richardson a letter explaining he would no 26 longer be able to prescribe him prescription ORDER GRANTING SUMMARY JUDGMENT FOR PLAINTIFF - 9 opiates because 1 methamphetamine use is a breach of the pain contract he had signed. AR 2 547. 3 “overriding health issue,” and said that Mr. Richardson should no 4 longer 5 primarily caused by the meth use.” AR 547. In a phone call regarding 6 the letter, Dr. Lin explained that “while [Mr. Richardson] may indeed 7 have anxiety, I can’t determine how truly severe it is until he has 8 submitted himself through detox treatment for the methamphetamine use. 9 He was not forthright about his drug use, therefore there is no basis 10 He be described the prescribed methamphetamine anxiety use medications as because Mr. Richardson’s his “anxiety is to decide how severe his anxiety is.” AR 546. 11 Second, the ALJ referenced that a month after Dr. Lin sent him 12 this letter, Mr. Richardson changed primary care providers from to a 13 Dr. Quentin Johnson. AR 22. In an appointment to establish care on 14 March 15 medication, stating that his former health care provider had retired. 16 AR 508. Dr. Johnson prescribed him more hydrocodone but informed Mr. 17 Richardson that he did not treat chronic pain, had Mr. Richardson sign 18 a pain contract, and recommended a follow-up appointment with a pain 19 management specialist. AR 511. 29, 2013, Mr. Richardson asked for a refill of his pain 20 Third, the ALJ noted a third-party medical evaluation referenced 21 records from several other physicians, either treating or examining, 22 that suggested Mr. Richardson was abusing illicit substances. AR 22. 23 “The claimant self-reported on June 1, 2009 to William Spann, M.D., he 24 had withdrawal symptoms from stopping Xanax. Dr. Spann told him he 25 should turn himself in for treatment.” AR 22, 379. In April 2010, 26 James Kopp, M.D. found inconsistencies during ORDER GRANTING SUMMARY JUDGMENT FOR PLAINTIFF - 10 his physical 1 examination, including positive Waddell’s signs, which can indicate 2 malingering. AR 22, 382. Dr. Kopp also recommended that Mr. Richardson 3 be seen by an addictionologist rather than a pain clinic. AR 22, 382. 4 Dr. Kopp examined Mr. Richardson again in October of 2010; his notes 5 indicate he “strongly suspect[ed] narcotic addiction.” AR 382. Richard 6 Schneider, Ph.D., 7 Richardson and 8 narcotics 9 methamphetamine, and marijuana. AR 22. conducted diagnosed and analgesics a psychological central and nervous examination system polysubstance abuse side of Mr. effects using of cocaine, 10 Fourth, the ALJ noted that Mr. Richardson had told an evaluating 11 physician that his admission of illicit and recreational drugs in the 12 past had been “used against him” in his worker’s compensation claim. 13 AR 14 motivation 15 treating medical providers and the Social Security Administration. Mr. 16 Richardson argues that this point is merely conjecture that does not 17 constitute evidence. See ECF No. 13 at 9. 23. The ALJ to Finally, 18 inferred conceal the ALJ his that Mr. Richardson methamphetamine suggested that and Mr. may have a marijuana Richardson’s similar use from pharmacy 19 records evidence that he abused his hydrocodone prescription. AR 22. 20 She listed several dates on which he renewed his prescriptions before 21 the ALJ believed it would be necessary were he taking them at the 22 appropriate frequency, including refills on December 13, 2012, January 23 3, 2013, March 13, 2013, March 29, 2013, June 6, 2013, and June 7, 24 2013. AR 22. However, the ALJ incorrectly stated that all of Mr. 25 Richardson’s prescriptions for the listed dates were for 30 days (and 26 thus suggestive of hydrocodone abuse). AR 22. ORDER GRANTING SUMMARY JUDGMENT FOR PLAINTIFF - 11 Rather, the record 1 indicates some of these prescriptions were for as little as two days. 2 AR 3 prescriptions filled on March 13, 2013, and March 29, 2013, is the 4 only evidence of suggestive of prescription abuse in Mr. Richardson’s 5 pharmacy records. Further, other records indicate Mr. Richardson’s 6 pharmaceutical habits were not considered abnormal by Washington State 7 prescription monitoring programs. See, e.g., AR 764. 736-737. That being the case, the proximity of two 30-day 8 Although the third-party report contained significant reference 9 to records showing Mr. Richardson’s drug abuse, the Social Security 10 Administration’s own rules provide that a third-party report cannot 11 constitute objective medical evidence for the purposes of a drug and 12 alcohol analysis. SSR 13-2p(8)(b)(ii). To appropriately make a finding 13 that Mr. Richardson was abusing illicit substances, SSR 13-2p requires 14 that the record contain clinical or laboratory findings indicating 15 such abuse. Id. These findings must not only show he was using an 16 illicit substance but also that his use supported a diagnosis of a 17 Substance Abuse Disorder per the DSM. Id. The 18 ALJ’s opinion is well-reasoned, thoughtful, and 19 comprehensive. However, under the Court’s reading of SSR 13-2p, it 20 must remand for further development of the record. Although the record 21 certainly suggests that Mr. Richardson has abused or currently abuses 22 illicit substances, none of the aforementioned evidence constitutes 23 the 24 support a DAA finding. Nor is the Court aware of any other evidence in 25 the record that would satisfy SSR 13-2p. Accordingly, the Court must 26 remand type of this objective case for medical the ALJ evidence to required further by develop ORDER GRANTING SUMMARY JUDGMENT FOR PLAINTIFF - 12 SSR the 13-2p record to to 1 determine whether Mr. Richardson had DAA during the relevant period. 2 The ALJ should make every reasonable effort to develop a complete 3 medical 4 record still does not contain objective medical evidence supporting a 5 diagnosis of a 6 finding of DAA. See SSR 13-2p(8)(b). history. See SSR 13-2p(8)(a)(iii). Substance Abuse At that point, if the Disorder, the ALJ may not make a 7 (2) 8 Once she found that Mr. Richardson abused illicit drugs, the ALJ 9 concluded that those addictions were a contributing factor to his 10 disability. See AR 27-31. Mr. Richardson argues this conclusion is not 11 supported by substantial evidence in the record. Because the Court 12 finds that the ALJ did not have substantial evidence in the record to 13 make a substance abuse finding, the Court declines to address whether 14 the 15 material contributing factor to his disability. 16 B. 17 ALJ Materiality of DAA properly concluded that Mr. Richardson’s substance was a Claimant’s symptom testimony Mr. Richardson 18 discrediting 19 20 If testimony contends claimant’s regarding the ALJ impairment his reversibly could subjective erred reasonably symptoms. by No. 13 at 11. a his also be expected ECF to 21 produce the symptoms alleged in the testimony and there is no evidence 22 that a claimant is malingering, an ALJ may only reject a claimant’s 23 testimony about the severity of her symptoms by offering “specific, 24 clear, and convincing reasons.” Smolen v. Chater, 80 F.3d 1273, 1281 25 (9th Cir. 1996). “This is not an easy requirement to meet: ‘[t]he 26 clear and convincing standard is the most demanding required in Social ORDER GRANTING SUMMARY JUDGMENT FOR PLAINTIFF - 13 1 Security cases.’” Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2 2014) (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 3 (9th 4 claimant’s 5 truthfulness, inconsistencies in testimony or between testimony and 6 conduct,” and other “ordinary techniques of credibility evaluation.” 7 Orn v. Astrue, 495 F.3d 625, 636 (9th Cir. 2007); Fair v. Bowen, 885 8 F.2d 597, 604 n.5 (9th Cir. 1989). Where evidence of malingering 9 exists, however, the ALJ need not provide clear and convincing reasons 10 Cir. 2002)). Examples testimony of include legitimate the bases claimant’s to discredit “reputation a for for dismissing a claimant’s testimony. See Smolen, 80 F.3d at 1281. 11 Here, the ALJ noted significant evidence of malingering. AR 22, 12 31. Notably, the record indicates Mr. Richardson has shown positive 13 Waddell’s signs “suggestive of an attempt to embellish symptomatology 14 in pursuit of secondary financial gain”. AR 31. As noted above, when 15 Mr. Richardson tested positive for methamphetamine and was informed he 16 would 17 Richardson immediately found a new physician and lied, saying the 18 reason he switched physicians was that Dr. Lin had retired. AR 22, 19 511, 547. no longer receive prescription narcotics from Dr. Lin, Mr. 20 Even absent the evidence of malingering, the ALJ gave a number 21 of reasons for discrediting Mr. Richardson’s testimony, including that 22 (1) it was inconsistent with the objective medical evidence, AR 27, 23 (2) there were inconsistent statements made throughout the record, AR 24 22, 29-31, and (3) the record suggests Mr. Richardson may have reason 25 to be dishonest with the Social Security Administration due to his 26 past experience with a worker’s compensation claim. AR 23. ORDER GRANTING SUMMARY JUDGMENT FOR PLAINTIFF - 14 The 1 Court finds these reasons to be sufficiently clear, 2 convincing, and specific. When reviewing an ALJ’s decision, the Court 3 is not a “trier of fact;” issues of fact are to be decided by the ALJ. 4 Fair, 885 F.2d at 604. Indeed, the Court of Appeals for the Ninth 5 Circuit 6 province 7 discrediting Mr. Richardson’s subjective symptom testimony. 8 C. has of explained the that ALJ.” Id. “credibility Accordingly, determinations the ALJ did are not err the by Medical evidence Finally, Mr. Richardson contends the ALJ reversibly erred by 9 10 improperly weighing the medical 11 Commissioner responds that the ALJ’s interpretations of the medical 12 evidence were reasonable and that Mr. Richardson simply offers an 13 alternate 14 insufficient to overturn the ALJ’s decision. ECF No. 14 at 20. interpretation of evidence. the ECF medical No. 13 at evidence, 16. which The is 15 “In disability benefits cases, physicians may render medical, 16 clinical opinions, or they may render opinions on the ultimate issue 17 of disability — the claimant’s ability to perform work.” Garrison, 18 759 19 physicians: 20 nonexamining physicians. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 21 1995). “As a general rule, more weight should be given to the opinion 22 of a treating source than to the opinion of doctors who do not treat 23 the 24 reasons 25 physician. Id. 26 / F.3d at 1012 treating claimant.” for (quotation Id. physicians, The rejecting omitted). ALJ the must There are examining provide uncontradicted “clear opinion ORDER GRANTING SUMMARY JUDGMENT FOR PLAINTIFF - 15 three types physicians, and of of and convincing” an examining 1 If the opinion 2 another 3 providing “specific and legitimate reasons” supported by “substantial 4 evidence” in the record. Id. “In other words, an ALJ errs when he 5 rejects a medical opinion or assigns it little weight while doing 6 nothing more than ignoring it, asserting without explanation that 7 another medical opinion is more persuasive, or criticizing it with 8 boilerplate language that fails to offer a substantive basis for his 9 conclusion.” Garrison, 759 F.3d at 1012. “An ALJ can satisfy the physician, of a the evidence treating ALJ 10 substantial 11 thorough summary 12 stating his 13 may physician not the facts interpretation by the and setting out contradicted opinion conflicting thereof, and a by without (internal quotations omitted). of requirement reject is detailed clinical making and evidence, findings." Id. 14 (1) Physical opinions 15 Mr. Richardson alleges the ALJ improperly gave little weight to 16 the opinions of Anthony Francis, M.D., Thomas Gritzka, M.D., Wei-Hsung 17 Lin, M.D., Michael Gale, P.T., and Javiera Hutria, P.A. a. 18 Dr. Francis 19 The ALJ gave little weight to the opinion of Dr. Francis because 20 he did not have access to over a year of orthopedic chart notes when 21 he testified at the hearing. AR 32. The ALJ concluded that the medical 22 records, 23 Francis’ speculative opinion that the claimant’s lumbar impairment 24 “might” equal 25 Francis was which were a more subsequently 1.04A listing. conclusive AR than submitted, 32. the Mr. ALJ do not support Richardson suggests 26 ORDER GRANTING SUMMARY JUDGMENT FOR PLAINTIFF - 16 argues and that Dr. Dr. the 1 subsequent medical records do not reveal sufficient improvement to 2 deviate from the expert’s conclusion. ECF No. 13 at 16. 3 An ALJ may reject an opinion that is “brief, conclusory, and 4 inadequately supported by clinical findings.” Thomas v. Barnhart, 278 5 F.3d 947, 957 (9th Cir. 2002). Dr. Francis stated that he was not 6 comfortable coming to a conclusion regarding a 1.04A listing because 7 he was not able to review the missing orthopedic records. Thus, any 8 medical opinion he provided was speculative and inadequately supported 9 by medical findings. Accordingly, the ALJ did not need to provide 10 clear and convincing reasons to reject Dr. Francis’ opinion. Id. b. 11 Dr. Gritzka 12 The ALJ gave little weight to Dr. Gritzka’s opinion that Mr. 13 Richardson would be absent from work greater than three days per 14 month. AR 32. She did so because (1) Mr. Richardson regularly provided 15 misleading information to physicians; (2) Dr. Gritzka is not qualified 16 as a mental health specialist; and (3) the objective findings reported 17 by Dr. Gritzka are out of proportion to other objective findings 18 reported by Mr. Richardson’s treating providers, suggesting he was 19 exaggerating his symptoms. AR 32. 20 Mr. Richardson asserts Dr. Gritzka’s opinion on absenteeism was 21 based on his physical condition, not his psychological condition. The 22 record does not establish this clearly. See AR 391 (“Although I am not 23 a 24 demonstrated today would 25 regular basis on a production line.”). 26 / psychiatrist, the psychiatric behavior that make it difficult for ORDER GRANTING SUMMARY JUDGMENT FOR PLAINTIFF - 17 the him to examinee work on a 1 Although Mr. Richardson may not agree with the ALJ’s reasoning, 2 the ALJ did not simply ignore Dr. Gritzka’s opinion or reject it with 3 boilerplate reasons, as is contemplated in Garrison. See 759 F.3d at 4 1012. The ALJ gave a number of specific and legitimate reasons for 5 rejecting Dr. Gritzka’s opinion, which is all that the law of this 6 Circuit requires. Id. 7 c. Dr. Lin 8 The ALJ gave little weight to the opinions of Dr. Lin in May and 9 November of 2012 insofar as they related to Mr. Richardson’s anxiety 10 because Dr. Lin later reflected his anxiety was “primarily caused” by 11 his methamphetamine use. AR 32, 547. She gave some weight to his 12 opinion of January 2013 regarding Mr. Richardson’s asthma because (1) 13 he had successfully worked as a carpenter and in construction with 14 this condition and (2) 15 symptoms. AR 29, 33. Accordingly, she did not incorporate into the RFC 16 any limitation for pulmonary irritants. AR 33. Mr. Richardson argues 17 the ALJ erroneously dismissed Dr. Lin’s opinions on anxiety because 18 the record does not support a conclusion of substance abuse. ECF No. 19 13 at 19. He similarly argues the ALJ erroneously dismissed Dr. Lin’s 20 opinions on asthma because they are supported by the record. ECF 21 No. 13 at 19. the record did not show any worsening of 22 Although Dr. Lin’s letter to Mr. Richardson, AR 547, does not 23 qualify as “objective medical evidence” for the purposes of DAA, it is 24 nonetheless 25 opinion regarding Mr. Richardson’s health. Dr. Lin expressly stated in 26 his letter that Mr. Richardson’s methamphetamine is his overriding important to understanding the context ORDER GRANTING SUMMARY JUDGMENT FOR PLAINTIFF - 18 of Dr. Lin’s 1 health issue. AR 547. He also wrote that Mr. Richardson’s anxiety was 2 “primarily caused” by methamphetamine use. AR 547. Accordingly, the 3 ALJ properly rejected Dr. Lin’s opinions regarding Mr. Richardson’s 4 anxiety because they were made before he was aware of Mr. Richardson’s 5 methamphetamine use – indeed, Dr. Lin himself appeared to reject those 6 opinions in his letter. AR 546-47. 7 Regarding Dr. Lin’s opinion as to Mr. Richardson’s asthma, the 8 opinion appears to consist of two comments in a medical report, which 9 indicated he experienced “wheezing diffusely with prolonged exp [sic] 10 phase” and “wheezing bilaterally.” AR 457-58. There is no indication 11 this 12 irritants. Nor did the ALJ reject this opinion entirely; rather, she 13 gave it “some weight.” AR 32-33. Accordingly, the Court finds that the 14 ALJ’s reasoning that Mr. Richardson’s asthma had not interfered with 15 his past work sufficient to award “some weight” to Dr. Lin’s opinion. 16 To the extent that her discrediting of Dr. Lin’s opinion regarding 17 asthma constitutes error, that error is harmless. opinion d. 18 19 relates directly to his sensitivity to pulmonary Michael Gale, P.T. & Javiera Hutria, P.A. The ALJ gave little weight to the June 13, 2013 opinion of 20 physical therapist Michael Gale because (1) 21 evaluation for DSHS benefits, (2) the objective medical evidence does 22 not reflect the severity of the reported symptoms, (3) Mr. Gale’s 23 opinion considered Mr. Richardson’s subjective complaints — which the 24 ALJ properly found not credible — (4) and Mr. Gale considered his 25 diagnoses of bipolar I and generalized anxiety disorder. AR 33. Mr. 26 Richardson argues she did so improperly. See ECF No. 13 at 17-18. ORDER GRANTING SUMMARY JUDGMENT FOR PLAINTIFF - 19 it was a one-time 1 Similarly, the ALJ gave little weight to the opinion of Javiera 2 Hutria, P.A. because she did not identify her qualifications in the 3 document 4 “objective medical findings or rationale” in support of her opinion. 5 AR 6 accurately read this evidence, and rejected it for being from an 7 unclear source and for not containing supporting evidence.” ECF No. 13 8 at 19. 32. containing Mr. her Richardson opinion claims and that did the not set ALJ forth “clearly sufficient failed to 9 Generally, physical therapists and physician’s assistants are 10 considered an “other source” that is entitled to less weight than a 11 physician. Huff v. Astrue, 275 F. App'x 713, 716 (9th Cir. 2008). This 12 being the case, the ALJ provided a number of sufficiently specific and 13 legitimate reasons to discount Mr. Gale’s opinion. See AR 33. In the 14 same way, the ALJ properly discounted Javiera Hutria’s opinion. It is 15 strikingly brief and conclusory. See AR 395-96. See Thomas, 278 F.3d 16 at 957. Accordingly, the ALJ did not reversibly err by improperly 17 evaluating the medical evidence in the record. 18 D. Psychological opinions 19 The ALJ gave little weight to several psychological opinions in 20 the record. See AR 34-36. Mr. Richardson argues she did so wrongly. 21 ECF No. 13 at 19-22. Because the issue of substance abuse is so 22 closely related to the psychological opinions in the record, the Court 23 declines 24 opinions in light of any new evidence of substance abuse.3 to address this issue. The ALJ should reevaluate those 25 26 3 Although the ALJ will need to reevaluate the psychological opinions based on further development of the record on remand, the Court notes that — on the ORDER GRANTING SUMMARY JUDGMENT FOR PLAINTIFF - 20 VI. 1 2 In summary, the Court CONCLUSION finds the ALJ erred by failing to 3 sufficiently develop the record regarding Mr. Richardson’s alleged 4 substance abuse. The Court remands this case for the ALJ to: 5 (1) Further develop the record on Mr. Richardson’s alleged 6 substance abuse, basing any finding of DAA on clinical or 7 laboratory findings present in the record. 8 (2) Re-weigh the psychologists 9 opinions in light of of any treating new and evidence evaluating relating to substance abuse. 10 11 (3) 12 Accordingly, IT IS HEREBY ORDERED: 13 1. 2. The Commissioner’s Motion for Summary Judgment, ECF No. 14, is DENIED. 16 17 Plaintiff’s Motion for Summary Judgment, ECF No. 13, is GRANTED. 14 15 Further develop the record as she deems appropriate. 3. This matter is REMANDED to the Commissioner for additional proceedings consistent with this Order. 18 19 4. JUDGMENT is to be entered in favor of Plaintiff. 20 5. An application for attorney fees may be filed by separate motion by Mr. Tree. 21 22 6. The case shall be CLOSED. 23 /// 24 // 25 / 26 current record — the ALJ’s reasoning for giving the psychological opinions little weight appears to be otherwise sufficient. ORDER GRANTING SUMMARY JUDGMENT FOR PLAINTIFF - 21 1 2 3 IT IS SO ORDERED. The Clerk’s Office is directed to enter this Order and provide copies to all counsel. DATED this 27th day of November 2017. 4 5 s/Edward F. Shea EDWARD F. SHEA Senior United States District Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Q:\EFS\Civil\2017\17-5002;Richardson;SS;Ord.Rul.Cross.Mots.SJ.v2.lc02.docx ORDER GRANTING SUMMARY JUDGMENT FOR PLAINTIFF - 22
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