Leingang v. Commissioner of Social Security, No. 1:2017cv03136 - Document 18 (E.D. Wash. 2018)

Court Description: ORDER GRANTING in part 12 Plaintiff's Motion for Summary Judgment and REMANDING FOR FURTHER PROCEEDINGS. Denying 16 Defendant's Motion for Summary Judgment. This matter is REMANDED to the Commissioner for further proceedings. File closed. Signed by Senior Judge Robert H. Whaley. (SK, Case Administrator)

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Leingang v. Commissioner of Social Security Doc. 18 1 2 3 4 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 5 Aug 31, 2018 6 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON SEAN F. MCAVOY, CLERK 7 LESTER L., 8 Plaintiff, No. 1:17-CV-03136-RHW v. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN PART AND REMANDING FOR FURTHER PROCEEDINGS 9 10 11 12 13 14 15 16 17 18 19 20 COMMISSIONER OF SOCIAL SECURITY, Defendant. Before the Court are the parties’ cross-motions for summary judgment, ECF Nos. 12 & 16. Plaintiff brings this action seeking judicial review, pursuant to 42 U.S.C. § 405(g), of the Commissioner’s final decision, which denied his application for Supplemental Security Income under Title XVI of the Social Security Act, 42 U.S.C § 1381-1383F. After reviewing the administrative record and briefs filed by the parties, the Court is now fully informed. For the reasons set forth below, the Court GRANTS Plaintiff’s Motion for Summary Judgment in part and remands for additional proceedings consistent with this order. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN PART AND REMANDING FOR FURTHER PROCEEDINGS ~ 1 Dockets.Justia.com 1 I. Jurisdiction 2 Plaintiff filed his application for Supplemental Security Income on 3 November 4, 2010. AR 26, 174. His amended alleged onset date of disability is 4 November 10, 2010. AR 53, 530. Plaintiff’s application was initially denied on 5 February 1, 2011, AR 117-20, and on reconsideration on June 29, 2011, AR 124- 6 25. A hearing with Administrative Law Judge (“ALJ”) Ilene Sloan occurred on 7 August 20, 2012. AR 49-89. On August 30, 2012, the ALJ issued a decision 8 finding Plaintiff ineligible for disability benefits. AR 26-43. The Appeals Council 9 denied Plaintiff’s request for review on June 20, 2014, AR 1-3. The Federal 10 District Court for the Eastern District of Washington granted Plaintiff’s motion for 11 summary judgment and remanded for further proceedings on August 3, 2015. AR 12 644-69. Plaintiff also filed a duplicative application for Supplemental Security 13 Income on July 9, 2014, that was combined with this application on remand. AR 14 550, 682. 15 A subsequent hearing with ALJ Sloan occurred on June 28, 2016. AR 557- 16 87. On May 22, 2017, the ALJ issued a decision again finding Plaintiff ineligible 17 for disability benefits. AR 530-47. 18 Plaintiff timely filed the present action challenging the denial of benefits, on 19 August 10, 2017. ECF No. 3. Accordingly, Plaintiff’s claims are properly before 20 this Court pursuant to 42 U.S.C. § 405(g). ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN PART AND REMANDING FOR FURTHER PROCEEDINGS ~ 2 1 2 II. Sequential Evaluation Process The Social Security Act defines disability as the “inability to engage in any 3 substantial gainful activity by reason of any medically determinable physical or 4 mental impairment which can be expected to result in death or which has lasted or 5 can be expected to last for a continuous period of not less than twelve months.” 42 6 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A claimant shall be determined to be 7 under a disability only if the claimant’s impairments are of such severity that the 8 claimant is not only unable to do his previous work, but cannot, considering 9 claimant's age, education, and work experience, engage in any other substantial 10 11 gainful work that exists in the national economy. 42 U.S.C. § 1382c(a)(3)(B). The Commissioner has established a five-step sequential evaluation process 12 for determining whether a claimant is disabled within the meaning of the Social 13 Security Act. 20 C.F.R. §§ 404.1520(a)(4) & 416.920(a)(4); Lounsburry v. 14 Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). 15 Step one inquires whether the claimant is presently engaged in “substantial 16 gainful activity.” 20 C.F.R. §§ 404.1520(b) & 416.920(b). Substantial gainful 17 activity is defined as significant physical or mental activities done or usually done 18 for profit. 20 C.F.R. §§ 404.1572 & 416.972. If the claimant is engaged in 19 substantial activity, he or she is not entitled to disability benefits. 20 C.F.R. §§ 20 404.1571 & 416.920(b). If not, the ALJ proceeds to step two. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN PART AND REMANDING FOR FURTHER PROCEEDINGS ~ 3 1 Step two asks whether the claimant has a severe impairment, or combination 2 of impairments, that significantly limits the claimant’s physical or mental ability to 3 do basic work activities. 20 C.F.R. §§ 404.1520(c) & 416.920(c). A severe 4 impairment is one that has lasted or is expected to last for at least twelve months, 5 and must be proven by objective medical evidence. 20 C.F.R. §§ 404.1508-09 & 6 416.908-09. If the claimant does not have a severe impairment, or combination of 7 impairments, the disability claim is denied, and no further evaluative steps are 8 required. Otherwise, the evaluation proceeds to the third step. 9 Step three involves a determination of whether any of the claimant’s severe 10 impairments “meets or equals” one of the listed impairments acknowledged by the 11 Commissioner to be sufficiently severe as to preclude substantial gainful activity. 12 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526 & 416.920(d), 416.925, 416.926; 13 20 C.F.R. § 404 Subpt. P. App. 1 (“the Listings”). If the impairment meets or 14 equals one of the listed impairments, the claimant is per se disabled and qualifies 15 for benefits. Id. If the claimant is not per se disabled, the evaluation proceeds to the 16 fourth step. 17 Step four examines whether the claimant’s residual functional capacity 18 enables the claimant to perform past relevant work. 20 C.F.R. §§ 404.1520(e)-(f) & 19 416.920(e)-(f). If the claimant can still perform past relevant work, the claimant is 20 not entitled to disability benefits and the inquiry ends. Id. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN PART AND REMANDING FOR FURTHER PROCEEDINGS ~ 4 1 Step five shifts the burden to the Commissioner to prove that the claimant is 2 able to perform other work in the national economy, taking into account the 3 claimant’s age, education, and work experience. See 20 C.F.R. §§ 404.1512(f), 4 404.1520(g), 404.1560(c) & 416.912(f), 416.920(g), 416.960(c). To meet this 5 burden, the Commissioner must establish that (1) the claimant is capable of 6 performing other work; and (2) such work exists in “significant numbers in the 7 national economy.” 20 C.F.R. §§ 404.1560(c)(2); 416.960(c)(2); Beltran v. Astrue, 8 676 F.3d 1203, 1206 (9th Cir. 2012). 9 10 III. Standard of Review A district court's review of a final decision of the Commissioner is governed 11 by 42 U.S.C. § 405(g). The scope of review under § 405(g) is limited, and the 12 Commissioner's decision will be disturbed “only if it is not supported by 13 substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1144, 14 1158-59 (9th Cir. 2012) (citing § 405(g)). Substantial evidence means “more than a 15 mere scintilla but less than a preponderance; it is such relevant evidence as a 16 reasonable mind might accept as adequate to support a conclusion.” Sandgathe v. 17 Chater, 108 F.3d 978, 980 (9th Cir.1997) (quoting Andrews v. Shalala, 53 F.3d 18 1035, 1039 (9th Cir. 1995)) (internal quotation marks omitted). In determining 19 whether the Commissioner’s findings are supported by substantial evidence, “a 20 reviewing court must consider the entire record as a whole and may not affirm ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN PART AND REMANDING FOR FURTHER PROCEEDINGS ~ 5 1 simply by isolating a specific quantum of supporting evidence.” Robbins v. Soc. 2 Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (quoting Hammock v. Bowen, 879 3 F.2d 498, 501 (9th Cir. 1989)). 4 In reviewing a denial of benefits, a district court may not substitute its 5 judgment for that of the ALJ. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 6 1992). If the evidence in the record “is susceptible to more than one rational 7 interpretation, [the court] must uphold the ALJ's findings if they are supported by 8 inferences reasonably drawn from the record.” Molina v. Astrue, 674 F.3d 1104, 9 1111 (9th Cir. 2012); see also Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 10 2002) (if the “evidence is susceptible to more than one rational interpretation, one 11 of which supports the ALJ’s decision, the conclusion must be upheld”). Moreover, 12 a district court “may not reverse an ALJ's decision on account of an error that is 13 harmless.” Molina, 674 F.3d at 1111. An error is harmless “where it is 14 inconsequential to the [ALJ's] ultimate nondisability determination.” Id. at 1115. 15 The burden of showing that an error is harmful generally falls upon the party 16 appealing the ALJ's decision. Shinseki v. Sanders, 556 U.S. 396, 409–10 (2009). 17 18 IV. Statement of Facts The facts of the case are set forth in detail in the transcript of proceedings 19 and only briefly summarized here. Plaintiff was 46 years old at the alleged date of 20 onset. AR 174, 545. He has a high school education and is able to communicate in ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN PART AND REMANDING FOR FURTHER PROCEEDINGS ~ 6 1 English. AR 193, 336, 545, 806. Plaintiff has past relevant work as an automotive 2 body repair helper. AR 200, 545, 806-07. Plaintiff has a long history of abusing 3 alcohol, marijuana, methamphetamine, and cocaine. AR 34, 451, 533-42, 1048. 4 V. The ALJ’s Findings 5 The ALJ determined that Plaintiff is under a disability, but that a substance 6 use disorder is a contributing factor material to the determination of disability and 7 as such, Plaintiff has not been disabled within the meaning of the Act from 8 November 10, 2010, through the date of the ALJ’s decision. AR 531, 547. 9 At step one, the ALJ found that Plaintiff had not engaged in substantial 10 gainful activity since November 10, 2010 (citing 20 C.F.R. §§ 416.920(b) and 11 416.971 et seq.). AR 533. 12 At step two, the ALJ found Plaintiff had the following severe impairments: 13 human immunodeficiency virus (HIV), hepatitis, chronic obstructive pulmonary 14 disease (COPD)/emphysema, peripheral neuropathy, mood disorder (alternatively 15 referred to at times as depressive and bipolar disorders), anxiety, antisocial 16 personality disorder, attention deficit hyperactivity disorder (ADHA), cannabis 17 dependence, alcohol abuse, and polysubstance abuse (citing 20 C.F.R. § 18 416.920(c)). AR 533. 19 \\ 20 \\ ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN PART AND REMANDING FOR FURTHER PROCEEDINGS ~ 7 1 At step three, the ALJ found that Plaintiff’s impairments, including the 2 substance use disorder, meet Listing 12.04 of 20 C.F.R. § 404, Subpt. P, App. 1, 3 but that if Plaintiff stopped the substance use he would not have an impairment or 4 combination of impairments that meets or medically equals any of the impairments 5 listed in 20 C.F.R. § 404, Subpt. P, App. 1. AR 533-34. 6 At step four, the ALJ found that if Plaintiff stopped the substance use, 7 Plaintiff would have the residual functional capacity to perform light work, except: 8 he would be able to frequently climb ramps and stairs and occasionally climb 9 ladders, ropes, and scaffolds; he could unlimitedly balance; he could frequently 10 stoop, kneel, crouch, and crawl; he would need to avoid concentrated exposure to 11 extreme cold, fumes, odors, dust, gases, and poor ventilation; he would need to 12 avoid all exposure to hazards such as moving machinery and unprotected heights; 13 he could understand, remember, and carry out simple, routine tasks; he could have 14 no contact with the general public; he could not perform tandem tasks or tasks 15 involving a cooperative team effort; he could have occasional, brief, and 16 superficial contact with coworkers; and he could adapt to simple workplace 17 changes. AR 536. 18 19 The ALJ found that Plaintiff is unable to perform his past relevant work. AR 545. 20 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN PART AND REMANDING FOR FURTHER PROCEEDINGS ~ 8 1 At step five, the ALJ found, that if Plaintiff stopped the substance use, in 2 light of his age, education, work experience, and residual functional capacity, there 3 are jobs that exist in significant numbers in the national economy that Plaintiff can 4 perform. AR 546. These include production assembler, housekeeping cleaner, hand 5 packager, packing line worker, mail clerk, and marker. AR 546-47. 6 VI. Issues for Review 7 Plaintiff argues that the Commissioner’s decision is not free of legal error 8 and not supported by substantial evidence. Specifically, he argues the ALJ erred 9 by: (1) finding Plaintiff’s HIV diagnosis did not meet Listing 14.11 at step 3; (2) 10 determining that Plaintiff’s drug and alcohol abuse is a contributing factor material 11 to the disability determination; (3) improperly evaluating Plaintiff’s subjective 12 complaint testimony; and (4) improperly evaluating the medical opinion evidence. 13 VII. Discussion 14 15 A. The ALJ erred in failing to meaningfully evaluate Listing 14.11. “An ALJ must evaluate the relevant evidence before concluding that a 16 claimant’s impairments do not meet or equal a listed impairment. A boilerplate 17 finding is insufficient to support a conclusion that a claimant’s impairment does 18 not do so.” Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001). “[I]n determining 19 whether a claimant equals a listing under step three of the Secretary’s disability 20 evaluation process, the ALJ must explain adequately his evaluation of alternative ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN PART AND REMANDING FOR FURTHER PROCEEDINGS ~ 9 1 tests and the combined effects of the impairments.” Marcia v. Sullivan, 900 F.2d 2 172, 176 (9th Cir. 1990). That being said, an “ALJ is not required to discuss the 3 combined effects of a claimant’s impairments or compare them to any listing in an 4 equivalency determination, unless the claimant presents evidence in an effort to 5 establish equivalence.” Burch v. Barnhart, 400 F.3d 676, 683 (9th Cir. 2005). 6 Here, Plaintiff did not present such evidence to the ALJ in his pre-hearing brief or 7 his arguments at the hearing, that his HIV-related symptoms were sufficient to 8 meet any subparts of Listing 14.11. 9 As Plaintiff made no effort before the ALJ to establish his HIV diagnosis 10 met Listing 14.11, the ALJ’s analysis of Listing 14.11 reads, in full: “[t]he 11 claimant’s HIV has been well maintained even [when] he was not on an 12 antiretroviral regimen and there is no indication or allegation that his condition is 13 of listing level severity under section 14.11.” AR 534. This is type of “boilerplate 14 finding is insufficient” under Ninth Circuit law. See Lewis, 236 F.3d at 512. The 15 ALJ’s failure to meaningfully discuss Listing 14.11, due to Plaintiff’s failure to 16 present any argument to the ALJ that his symptoms should meet the Listing, has 17 resulted in Plaintiff asking this Court essentially to review Plaintiff’s medical 18 records in the first instance to determine whether Listing 14.11 applies, rather than 19 review the ALJ’s analysis as contemplated by the statutory and regulatory 20 framework. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN PART AND REMANDING FOR FURTHER PROCEEDINGS ~ 10 1 There is evidence in the record relevant to at least some of the subparts of 2 Listing 14.11 on which Plaintiff relies. Such as the required CD4 count of less than 3 200 possibly even when he was actively taking his medications. There are also a 4 plethora of records noting that Plaintiff’s condition was well maintained even when 5 he was not taking his medications and his condition did not deter or limit him from 6 performing significant daily activities. The ALJ is better suited than this Court to 7 determine in the first instance how those symptoms related to Plaintiff’s HIV as 8 well as the other symptoms and records would be medically equivalent to Listing 9 14.11. Faced with similarly deficient analysis by ALJs, courts have remanded for 10 further administrative proceedings because the ALJ “is in a better position to 11 evaluate the medical evidence” than a district court. Santiago v. Barnhart, 278 F. 12 Supp. 2d 1049, 1058 (N.D. Cal. 2003); see also, e.g., Galaspi-Bey v. Barnhart, No. 13 C-01-01770-BZ, 2002 WL 31928500, at *3 (N.D. Cal. Dec. 23, 2002). On remand, 14 the ALJ should specifically consider and discuss whether Plaintiff’s impairments 15 meet or equal a listing related HIV, specifically Listing 14.11G. 16 B. The ALJ did not err in finding that substance abuse is a contributing 17 factor material to the determination of disability. 18 If a claimant is found disabled and there is medical evidence of a substance 19 use disorder, the ALJ must determine if the substance use disorder is a contributing 20 factor material to the determination of disability. 42 U.S.C. § 1382c(a)(3)(J). ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN PART AND REMANDING FOR FURTHER PROCEEDINGS ~ 11 1 Where the medical record indicates alcoholism or drug addiction, the ALJ must 2 evaluate “which of [the claimant’s] current physical and mental limitations . . . 3 would remain if [he] stopped using drugs or alcohol and then determine whether 4 any or all of [the] remaining limitations would be disabling.” 20 C.F.R. § 5 416.935(b)(2). If a claimant’s remaining limitations would not be disabling, the 6 alcoholism or drug use is “a contributing factor material to the determination of 7 disability.” 20 C.F.R. § 416.935(b)(2)(i). An individual is not disabled pursuant to 8 the Social Security Act where substance use is a contributing factor material to the 9 determination of disability. 42 U.S.C. § 1382(a)(3)(J). Plaintiff bears the burden of 10 proving his substance abuse is not a contributing factor material to the finding of 11 disability. Parra v. Astrue, 481 F.3d 742, 748 (9th Cir. 2007). 12 Plaintiff argues that the ALJ’s determination at step three, that his substance 13 use disorder is a contributing factor material to the determination of disability, is 14 not supported by substantial evidence. Plaintiff alleges that his symptoms would 15 persist to the same degree even absent the substance abuse because there are a few 16 notes in the record where Plaintiff continued to suffer from his symptoms despite 17 his reported sobriety, and because the ALJ’s decision is not as clear as he would 18 like it to be. ECF No. 12 at 8-13. 19 The ALJ found Plaintiff disabled at step three because his impairments, 20 including the substance use disorder, met the criteria of Listing 12.04 because ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN PART AND REMANDING FOR FURTHER PROCEEDINGS ~ 12 1 Plaintiff had marked limitations in at least two of the four areas of functioning in 2 the paragraph B criteria. AR 534. The Paragraph B criteria require the impairment 3 resulting in at least two of the following: marked restrictions of activities of daily 4 living; marked difficulties in maintaining social functioning; marked difficulties in 5 maintaining concentration, persistence, and pace; or repeated episodes of 6 decompensation, each of an extended duration. As the ALJ explained, Plaintiff 7 satisfied the Paragraph B criteria when including his substance use disorder 8 because he is markedly limited in at least two areas of functioning. Id. 9 When conducting the substance use materiality analysis at step three, the 10 ALJ determined that Plaintiff would not meet or equal the Listings if he stopped 11 the substance abuse. AR 534-36. The ALJ found that Plaintiff would not meet any 12 of the Section 12.00 Listings because he cannot establish marked limitations in at 13 least two of the four Paragraph B criteria. Specifically, the ALJ found Plaintiff 14 only moderately limited in the four areas of functioning in the paragraph B criteria. 15 Id. 16 The ALJ’s determination that Plaintiff’s substance abuse is a material 17 contributing factor is supported by the record. The ALJ’s decision is supported by 18 Plaintiff’s level of activities when sober, including woodworking, fishing for fun, 19 helping build his friend’s deck, performing tasks around other people’s homes, 20 staying busy by gardening, fishing, and cleaning his apartment, visiting his friend ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN PART AND REMANDING FOR FURTHER PROCEEDINGS ~ 13 1 every day, shopping, riding his bicycle, and walking to AA meetings (AR 535, 2 567, 569, 573, 1105, 1163, 1171); his improved ability to interact with others when 3 sober, including visiting his friend every day and doing woodworking for friends 4 and neighbors (AR 883); and Plaintiff’s medical records when he was sober noting 5 that he was stable, was less irritable and more relaxed, therapy was going well, and 6 mostly unremarkable mental status examinations showing Plaintiff was alert and 7 oriented; had normal affect and “stable” mood; was cooperative; displayed no 8 abnormal movements; and had intact memory, attention, and concentration 9 his lack of treatment when sober (AR 536, 540-41, 1129, 1134, 1153-55, 1163, 10 1184-85, 1281, 1285). Additionally, the ALJ noted that State agency psychological 11 consultants concluded that Plaintiff’s mental impairments would not satisfy the 12 paragraph B criteria if Plaintiff stopped the substance use. AR 94-95, 108, 438, 536 13 634. 14 Substantial evidence from the record supports the ALJ’s determination that, 15 absent Plaintiff’s substance use, he would not be disabled. Thus, the ALJ properly 16 concluded that the substance use disorder is a contributing factor material to the 17 determination of disability. AR 534-36. Importantly, “[w]here evidence is 18 susceptible to more than one rational interpretation, it is the ALJ’s conclusion that 19 must be upheld.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). “If the 20 evidence can support either outcome, the court may not substitute its judgment for ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN PART AND REMANDING FOR FURTHER PROCEEDINGS ~ 14 1 that of the ALJ.” Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (internal 2 quotation marks omitted). The ALJ did not err in finding that substance abuse is a 3 contributing factor material to the determination of disability. 4 5 6 C. The ALJ properly weighed the medical opinion evidence. a. Legal Standard. The Ninth Circuit has distinguished between three classes of medical 7 providers in defining the weight to be given to their opinions: (1) treating 8 providers, those who actually treat the claimant; (2) examining providers, those 9 who examine but do not treat the claimant; and (3) non-examining providers, those 10 who neither treat nor examine the claimant. Lester v. Chater, 81 F.3d 821, 830 (9th 11 Cir. 1996) (as amended). 12 A treating provider’s opinion is given the most weight, followed by an 13 examining provider, and finally a non-examining provider. Id. at 830-31. In the 14 absence of a contrary opinion, a treating or examining provider’s opinion may not 15 be rejected unless “clear and convincing” reasons are provided. Id. at 830. If a 16 treating or examining provider’s opinion is contradicted, it may only be discounted 17 for “specific and legitimate reasons that are supported by substantial evidence in 18 the record.” Id. at 830-31. 19 20 The ALJ may meet the specific and legitimate standard by “setting out a detailed and thorough summary of the facts and conflicting clinical evidence, ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN PART AND REMANDING FOR FURTHER PROCEEDINGS ~ 15 1 stating his interpretation thereof, and making findings.” Magallanes v. Bowen, 881 2 F.2d 747, 751 (9th Cir. 1989) (internal citation omitted). When rejecting a treating 3 provider’s opinion on a psychological impairment, the ALJ must offer more than 4 his or his own conclusions and explain why he or she, as opposed to the provider, 5 is correct. Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988). 6 Additionally, “other sources” for opinions include nurse practitioners, 7 physicians' assistants, therapists, teachers, social workers, spouses, and other non- 8 medical sources. 20 C.F.R. §§ 404.1513(d), 416.913(d). An ALJ is required to 9 “consider observations by non-medical sources as to how an impairment affects a 10 claimant's ability to work.” Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir.1987). 11 Non-medical testimony can never establish a diagnosis or disability absent 12 corroborating competent medical evidence. Nguyen v. Chater, 100 F.3d 1462, 1467 13 (9th Cir.1996). An ALJ is obligated to give reasons germane to “other source” 14 testimony before discounting it. Dodrill v. Shalala, 12 F.3d 915 (9th Cir.1993). 15 16 17 b. Neil Barg, M.D.; Lesley McGalliard, M.D.; Greg Sawyer, M.D.; Ivonne Garcia, MHP, MSW; Dick Moen, MSW. Plaintiff argues that the ALJ did not provide specific and legitimate reasons 18 for discounting all or portions of the opinions of Doctors Barg, McGalliard, and 19 Sawyer, and conclusory alleges the ALJ did not provide germane reasons for 20 discounting the other source opinions of Ms. Garcia and Mr. Moen. These opinions ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN PART AND REMANDING FOR FURTHER PROCEEDINGS ~ 16 1 are contradicted by the opinions of Drs. Brown, Staley, Beaty, Buskirk, Gilbert, 2 Donahue, and most of Dr. Sawyer’s opinion. 3 The ALJ did not completely reject any of these opinions but assigned them 4 little weight for multiple valid reasons. AR 543-45. The ALJ noted that the 5 opinions are inconsistent with (1) the longitudinal treatment history, (2) Plaintiff’s 6 performance on physical and mental status testing, and (3) Plaintiff’s daily 7 activities. AR 544. An ALJ may reject a doctor’s opinion when it is inconsistent 8 with other evidence in the record. See Morgan v. Comm’r of the Soc. Sec. Admin., 9 169 F.3d 595, 602-603 (9th Cir. 1999). An ALJ may properly reject an opinion that 10 provides restrictions that appear inconsistent with the claimant’s level of activity. 11 Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001). 12 These determinations made by the ALJ are supported by the record. Plaintiff 13 physical activity level was well maintained even when he was not taking his HIV 14 medication, he had no significant hepatitis symptoms, he reported he was 15 comfortable lifting around 20 pounds, he enjoyed woodworking and fishing, he 16 helped build a friend’s deck, he stayed busy visiting a friend daily, shopping, and 17 riding his bike, and Dr. McGalliard noted that Plaintiff does not have much in the 18 way of physical disability. AR 535, 544, 567, 569, 573, 1087, 1105, 1163, 1171. 19 Regarding Plaintiff’s mental health, the ALJ noted that the record shows Plaintiff 20 was very manipulative for self-gain and that Plaintiff refused to consider ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN PART AND REMANDING FOR FURTHER PROCEEDINGS ~ 17 1 employment because he was not interested in a conventional lifestyle. AR 406, 2 544. Additionally, Plaintiff’s medical records show that he was stable, was less 3 irritable and more relaxed when sober, he improved greatly when sober and 4 compliant with his medication regimen, and the records when sober document 5 mostly unremarkable mental status examinations showing Plaintiff was alert and 6 oriented; had normal affect and “stable” mood; was cooperative; displayed no 7 abnormal movements; and had intact memory, attention, and concentration. AR 8 406, 536, 540-41, 1129, 1134, 1153-55, 1163, 1184-85, 1281, 1285. 9 Additionally, Dr. Barg’s opinion was given less weight because Dr. Barg 10 opined that Plaintiff could not work since the year 2000; however, Plaintiff did 11 work at substantial gainful levels after that time. AR 521, 545. Dr. McGalliard’s 12 opinion was also properly afforded little weight because the assessment applied 13 only for nine months and therefore does not satisfy the 12-month durational 14 requirement and the physical limitations opined to in the February 2011 opinion 15 were noted to have significantly improved in Dr. McGalliard’s November 2011 16 opinion. AR 543-45. Dr. Sawyer’s opinion was also given little weight due to its 17 vagueness, which Plaintiff does not dispute, because the opinion does not set forth 18 the most plaintiff can do, and because Plaintiff was not forthright with Dr. Sawyer 19 regarding his use of methamphetamine. AR 545. 20 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN PART AND REMANDING FOR FURTHER PROCEEDINGS ~ 18 1 When the ALJ presents a reasonable interpretation that is supported by the 2 evidence, it is not the role of the courts to second-guess it. Rollins, 261 F.3d 853, 3 857. The Court “must uphold the ALJ's findings if they are supported by inferences 4 reasonably drawn from the record.” Molina, 674 F.3d 1104, 1111; see also 5 Thomas, 278 F.3d 947, 954 (if the “evidence is susceptible to more than one 6 rational interpretation, one of which supports the ALJ’s decision, the conclusion 7 must be upheld”). Thus, the Court finds the ALJ did not err in her consideration of 8 these opinions. 9 D. The ALJ did not err in finding Plaintiff’s subjective complaints not 10 entirely credible. 11 An ALJ engages in a two-step analysis to determine whether a claimant’s 12 testimony regarding subjective symptoms is credible. Tommasetti v. Astrue, 533 13 F.3d 1035, 1039 (9th Cir. 2008). First, the claimant must produce objective 14 medical evidence of an underlying impairment or impairments that could 15 reasonably be expected to produce some degree of the symptoms alleged. Id. 16 Second, if the claimant meets this threshold, and there is no affirmative evidence 17 suggesting malingering, “the ALJ can reject the claimant’s testimony about the 18 severity of [her] symptoms only by offering specific, clear, and convincing reasons 19 for doing so.” Id. 20 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN PART AND REMANDING FOR FURTHER PROCEEDINGS ~ 19 1 In weighing a claimant's credibility, the ALJ may consider many factors, 2 including, “(1) ordinary techniques of credibility evaluation, such as the claimant's 3 reputation for lying, prior inconsistent statements concerning the symptoms, and 4 other testimony by the claimant that appears less than candid; (2) unexplained or 5 inadequately explained failure to seek treatment or to follow a prescribed course of 6 treatment; and (3) the claimant's daily activities.” Smolen, 80 F.3d at 1284. When 7 evidence reasonably supports either confirming or reversing the ALJ's decision, the 8 Court may not substitute its judgment for that of the ALJ. Tackett v. Apfel, 180 9 F.3d 1094, 1098 (9th Cir.1999). Here, the ALJ found that the medically 10 determinable impairments could reasonably be expected to produce the symptoms 11 Plaintiff alleges; however, the ALJ determined that Plaintiff’s statements of 12 intensity, persistence, and limiting effects of the symptoms were not entirely 13 credible. AR 538. The ALJ provided multiple clear and convincing reasons for 14 discrediting Plaintiff’s subjective complaint testimony. AR 538-42. 15 First, the ALJ found that allegations of complete disability are not supported 16 by the objective medical evidence and contradicted by the medical findings in the 17 record. AR 538-41. An ALJ may discount a claimant’s subjective symptom 18 testimony that is contradicted by medical evidence. Carmickle v. Comm’r of Soc. 19 Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008). Inconsistency between a 20 claimant’s allegations and relevant medical evidence is a legally sufficient reason ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN PART AND REMANDING FOR FURTHER PROCEEDINGS ~ 20 1 to reject a claimant’s subjective testimony. Tonapetyan v. Halter, 242 F.3d 1144, 2 1148 (9th Cir. 2001). Treatment notes showed that Plaintiff’s physical 3 examinations were mostly unremarkable, with findings that he was neurologically 4 intact with normal gait, hands, and feet. AR 285, 548, 1080. Examinations 5 indicated that Plaintiff remained stable and that his labs did not change 6 significantly. AR 283, 454. Plaintiff’s physical conditions improved with 7 treatment, as treatment records from 2010 through 2012 showed that Plaintiff’s 8 HIV was well maintained on antiretrovirals. AR 283-93, 351, 420-22, 454, 538. 9 The ALJ noted that Plaintiff’s condition improved to such a degree that he did 10 reasonably well from mid-2013 through March 2016 despite being off medication 11 and Plaintiff’s treating doctor noted that his CD4 count and viral load remained 12 remarkably stable despite being off medication. AR 538, 1044-48. Likewise, the 13 mental status examinations were similarly unremarkable with findings that Plaintiff 14 was alert and oriented; had normal affect and “stable” mood; was cooperative; 15 displayed no abnormal movements; and had intact memory, attention, and 16 concentration. AR 405, 408, 420-22, 540-41, 1129, 1134, 1153-55, 1184-85, 1281, 17 1285. While the record contains negative mental status examinations as well, 18 substantial evidence in the record supports the ALJ’s decision. “The ALJ is the 19 final arbiter with respect to resolving ambiguities in the medical evidence. See 20 Tommasetti, 533 F.3d at 1041. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN PART AND REMANDING FOR FURTHER PROCEEDINGS ~ 21 1 The ALJ found Plaintiff’s allegations of disabling limitations are belied by 2 his daily activities. AR 541. Activities inconsistent with the alleged symptoms are 3 proper grounds for questioning the credibility of an individual’s subjective 4 allegations. Molina, 674 F.3d at 1113 (“[e]ven where those activities suggest some 5 difficulty functioning, they may be grounds for discrediting the claimant’s 6 testimony to the extent that they contradict claims of a totally debilitating 7 impairment”); see also Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). 8 The ALJ pointed to evidence in the record that showed Plaintiff’s daily activities 9 included riding his bicycle, woodworking, going to yard sales to buy things to 10 rebuild and finish, doing small tasks around other people’s homes, fishing, 11 gardening, and cleaning his apartment, and building a deck were inconsistent with 12 his allegations of totally disabling limitations. AR 535, 541, 544, 567, 569, 573, 13 1087, 1105, 1163, 1171. 14 The ALJ also noted frequent and repeated inconsistent statements regarding 15 his substance abuse and Plaintiff’s manipulation for self-gain rather than attempt to 16 work. AR 539, 541-42. An ALJ may weigh a claimant’s inconsistent statements 17 about their drug use against the credibility of their allegations. Thomas v. Barnhart, 18 278 F.3d 947, 959 (9th Cir. 2002); Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th 19 Cir. 1999). An ALJ may rely on ordinary techniques of credibility evaluation such 20 as a witness’s prior inconsistent statements. Tommasetti, 533 F.3d at 1039. The ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN PART AND REMANDING FOR FURTHER PROCEEDINGS ~ 22 1 ALJ noted that the record shows Plaintiff was very manipulative for self-gain and 2 that he refused to consider employment because he was not interested in a 3 conventional lifestyle. AR 406, 539, 544. The medical records are replete with 4 instances in which Plaintiff was not forthcoming about his substance use and 5 inconsistent statements regarding his drug and alcohol abuse, including during the 6 June 2016 hearing. AR 499, 502-03, 522, 541-52, 1078, 1093-94, 1104. 7 When the ALJ presents a reasonable interpretation that is supported by the 8 evidence, it is not the role of the courts to second-guess it. Rollins, 261 F.3d at 857. 9 The Court “must uphold the ALJ's findings if they are supported by inferences 10 reasonably drawn from the record.” Molina, 674 F.3d 1104, 1111; see also 11 Thomas, 278 F.3d 947, 954 (if the “evidence is susceptible to more than one 12 rational interpretation, one of which supports the ALJ’s decision, the conclusion 13 must be upheld”). The Court does not find the ALJ erred when discounting 14 Plaintiff’s credibility because the ALJ properly provided multiple clear and 15 convincing reasons for doing so. 16 VIII. Conclusion 17 Having reviewed the record and the ALJ’s findings, the Court finds the 18 ALJ’s decision is not supported by substantial evidence and contains legal error. 19 On remand, the ALJ should specifically consider and discuss whether Plaintiff’s 20 impairments meet or equal a listing related HIV, specifically Listing 14.11G. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN PART AND REMANDING FOR FURTHER PROCEEDINGS ~ 23 1 Accordingly, IT IS ORDERED: 2 1. Plaintiff’s Motion for Summary Judgment, ECF No. 12, is GRANTED 3 in part. 4 2. Defendant’s Motion for Summary Judgment, ECF No. 16, is DENIED. 5 3. The District Court Executive is directed to enter judgment in favor of 6 Plaintiff and against Defendant. 7 4. This matter is REMANDED to the Commissioner for further proceedings 8 consistent with this Order. 9 10 11 12 13 IT IS SO ORDERED. The District Court Executive is directed to enter this Order, forward copies to counsel and close the file. DATED this 31st day of August, 2018. s/Robert H. Whaley ROBERT H. WHALEY Senior United States District Judge 14 15 16 17 18 19 20 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN PART AND REMANDING FOR FURTHER PROCEEDINGS ~ 24

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