Schneider v. Commissioner of Social Security, No. 1:2017cv03203 - Document 19 (E.D. Wash. 2018)

Court Description: ORDER GRANTING ECF No. 12 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS; denying ECF No. 17 Defendant's Motion for Summary Judgment. FILE CLOSED. Signed by Senior Judge Robert H. Whaley. (TR, Case Administrator)

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Schneider v. Commissioner of Social Security Doc. 19 1 2 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 3 Sep 10, 2018 4 SEAN F. MCAVOY, CLERK 5 6 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 7 LUKE JOSEPH S., 8 Plaintiff, No. 1:17-CV-03203-RHW v. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS 9 10 11 12 13 COMMISSIONER OF SOCIAL SECURITY, Defendant. Before the Court are the parties’ cross-motions for summary judgment, ECF 14 Nos. 12, 17. Plaintiff brings this action seeking judicial review, pursuant to 42 15 U.S.C. § 405(g), of the Commissioner’s final decision, which denied his 16 application for Supplemental Security Income under Title XVI of the Social 17 Security Act, 42 U.S.C § 1381-1383F. After reviewing the administrative record 18 and briefs filed by the parties, the Court is now fully informed. For the reasons set 19 forth below, the Court GRANTS Plaintiff’s motion for summary judgment and 20 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS ~ 1 Dockets.Justia.com 1 remands for further proceedings consistent with this order. Accordingly, the Court 2 also DENIES Defendant’s motion for summary judgment. 3 I. Jurisdiction Plaintiff filed an application for Supplemental Security Income on July 28, 4 5 2014. AR 438-43. His alleged onset date is July 28, 2014. AR 483. His application 6 was initially denied on September 3, 2014, AR 339-51, and on reconsideration on 7 December 3, 2014, AR 355-64. 8 9 A hearing with Administrative Law Judge (“ALJ”) Wayne Araki occurred on March 10, 2016. AR 50-99. On September 30, 2016, the ALJ issued a decision 10 finding Plaintiff ineligible for supplemental security income. AR 20-42. The 11 Appeals Council denied Plaintiff’s request for review on October 6, 2017, AR 1-6, 12 making the ALJ’s ruling the “final decision” of the Commissioner.1 Plaintiff timely filed the present action challenging the denial of benefits, on 13 14 December 7, 2017. ECF No. 1. Accordingly, his claims are properly before this 15 Court pursuant to 42 U.S.C. § 405(g). 16 // 17 18 19 20 1 Plaintiff previously filed for, and was denied, disability insurance benefits and supplemental security income. ALJ Araki found the principle of res judicata applied to the period preceding and including February 10, 2011, the date upon which the Commissioner’s decision became final. AR 20. However, because Plaintiff’s social function and concentration, persistence, and pace worsened after the prior decision, ALJ Araki found the presumption of continued non-disability, as set forth in Chavez v. Bowen, 844 F.2d 691 (9th Cir. 1988) was rebutted. Id. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 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 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 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 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 time of his 20 hearing. He has previously worked as a bus boy, a food server, and a hair stylist. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS ~ 6 1 AR 77-79, 468. He also has worked some odd jobs and some volunteer work, and 2 he did some work while in prison for three years. AR 23, 58, 75. 3 4 V. The ALJ’s Findings The ALJ determined that: The substance use disorder is a contributing factor 5 material to the determination of disability because Plaintiff would not be disabled 6 if he stopped substance use. As the substance use is a contributing factor material 7 to the determination of disability, Plaintiff has not been disabled within the 8 meaning of the Act from the date the application was filed through the date of the 9 decision. AR 42. 10 At step one, the ALJ found that Plaintiff may have engaged in substantial 11 gainful activity since July 28, 2014, the application date (citing 20 C.F.R. §§ 12 416.920(b) & 416.971 et seq.). AR 23-24. The ALJ made this finding because 13 Plaintiff testified that he is a caregiver for his landlord in exchange for room and 14 board, and the ALJ did not have information for the current market value of a room 15 rental in Plaintiff’s area; thus, the ALJ was unable to make a finding as to whether 16 this work activity rose to the level of substantial gainful activity and continued 17 with the analysis. Id. 18 At step two, the ALJ found Plaintiff had the following severe impairments: 19 schizoaffective disorder, alcohol abuse disorder, poly-substance abuse disorder, 20 and low back pain from a herniated disc (citing 20 C.F.R. § 416.920(c)). AR 24. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS ~ 7 1 The ALJ found that if the substance use was removed, Plaintiff would continue to 2 have schizoaffective disorder and low back pain. AR 30. 3 At step three, the ALJ found, with and without substance use, that Plaintiff 4 did not have an impairment or combination of impairments that meets or medically 5 equals the severity of one of the listed impairments in 20 C.F.R. § 404, Subpt. P, 6 App. 1. AR 25-27, 30-32. 7 At step four, with substance use disorders included, the ALJ found Plaintiff 8 had the following residual functional capacity: he can lift or carry twenty pounds 9 occasionally and ten pounds frequently; he can stand/walk for two-hour intervals 10 for eight hours per day, and he can sit for two-hours intervals for eight hours per 11 day; he cannot climb ladders, ropers, or scaffolds, but he can frequently climb 12 stairs and ramps, balance, stoop, kneel, crouch, or crawl; he is limited to occasional 13 exposure to vibrations and cannot work at heights, operate heavy equipment, and 14 he cannot drive; he can remember, understand, and carry out instructions and tasks 15 generally required by occupations of SVP 1 or 2; he can adapt to changes for SVP 16 1 or 2 occupations; he can have occasional, superficial interaction with the general 17 public; he can have occasional interaction with co-workers and supervisors; he will 18 miss two days per month on a consistent basis; and he will need to take fifteen to 19 thirty-minute breaks in addition to normal breaks because of interference from his 20 symptoms. AR 27-29. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS ~ 8 1 2 3 With substance use disorders included, the ALJ determined that Plaintiff is unable to perform any past relevant work. AR 29. Alternatively, however, the ALJ found that if Plaintiff stopped substance 4 use, he would have the following residual functional capacity: he can lift or carry 5 twenty pounds occasionally and ten pounds frequently; he can stand/walk for two- 6 hour intervals for eight hours per day, and he can sit for two-hours intervals for 7 eight hours per day; he cannot climb ladders, ropers, or scaffolds, but he can 8 frequently climb stairs and ramps, balance, stoop, kneel, crouch, or crawl; he is 9 limited to occasional exposure to vibrations and cannot work at heights, operate 10 heavy equipment, and he cannot drive; he can remember, understand, and carry out 11 instructions and tasks generally required by occupations of SVP 1 or 2; he can 12 adapt to changes for SVP 1 or 2 occupations; he can have occasional, superficial 13 interaction with the general public; and he can have occasional interaction with 14 co-workers and supervisors. 15 16 Without substance use, the ALJ determined that Plaintiff would still be unable to perform any past relevant work. AR 41. 17 At step five, the ALJ found that, in light of his age, education, work 18 experience, and residual functional capacity, including his substance use disorder, 19 there are no jobs that exist in significant numbers in the national economy that 20 Plaintiff could perform. AR 29-30. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS ~ 9 1 However, if Plaintiff ceased substance use, the ALJ found that considering 2 his age, education, work experience, and residual functional capacity, there would 3 be a significant number of jobs in the national economy that Plaintiff could 4 perform. These include assembler production, packing line worker and cleaner, 5 housekeeping. AR 41-42. The ALJ consulted a vocational expert in making this 6 determination. Id. 7 VI. Issues for Review 8 Plaintiff argues that the Commissioner’s decision is not free of legal error 9 and not supported by substantial evidence. Specifically, he argues the ALJ erred 10 by: (1) failing to properly consider whether his seizures were severe and whether 11 he met or equaled Listing 11.02; (2) failing to properly consider the medical 12 opinion testimony; and (3) failing to fully credit Plaintiff without specific, clear, 13 and convincing reasons for doing so. ECF No. 12 at 2. 14 15 VII. Discussion A. The ALJ properly found Plaintiff’s seizures to be non-severe. 16 At step two in the five-step sequential evaluation for Social Security cases, 17 the ALJ must determine whether a claimant has a medically severe impairment or 18 combination of impairments. An impairment is found to be not severe “when 19 medical evidence establishes only a slight abnormality or a combination of slight 20 abnormalities which would have no more than a minimal effect on an individual’s ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS ~ 10 1 ability to work.” Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988) (quoting 2 SSR 85-28). Step two is generally “a de minimis screening device [used] to 3 dispose of groundless claims.” Webb v. Barnhart, 433 F. 683, 687 (9th Cir. 2005) 4 (quoting Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir.1996)). 5 Under step two, an impairment is not severe if it does not significantly limit 6 a claimant’s ability to perform basic work activities. Edlund v. Massanari, 253 7 F.3d 1152, 1159 (9th Cir. 2001) (citing 20 C.F.R. § 404.1521(a)(b)). A diagnosis 8 from an “acceptable medical source,” such as a licensed physician or certified 9 psychologist, is necessary to establish a medically determinable impairment. 20 10 C.F.R. § 404.1513(d). Importantly however, a diagnosis itself does not equate to a 11 finding of severity. Edlund, 253 F.3d at 1159-60 (plaintiff has the burden of 12 proving this impairment or their symptoms affect her ability to perform basic work 13 activities); see also Mcleod v. Astrue, 640 F.3d 881, 885 (9th Cir. 2011). 14 The ALJ found Plaintiff’s seizure disorder to be a non-severe disorder. AR 15 24. Specifically, the ALJ found that Plaintiff’s seizures were controlled with 16 medication. Id. If an impairment can be controlled by treatment or medication, it 17 cannot be considered disabling. Brown v. Barnhart, 390 F.3d 535, 540 (9th Cir. 18 2004). When Plaintiff correctly adhered to his medication, he did not report 19 seizures. AR 1595. He did report experiencing seizures in early 2015, but 20 laboratory results in April 2015 showed that Plaintiff was not taking his anti- ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS ~ 11 1 seizure medication. AR 1506. The ALJ reasoned that the few seizures in the record 2 were likely due to medication non-compliance. Given the finding that the seizures 3 are not even a severe impairment, Plaintiff has failed to demonstrate that he could 4 meet or equal Listing 11.02, so failure to evaluate the seizures under the Listing is 5 at most a harmless error. 6 Furthermore, because Plaintiff was found to have at least one severe 7 impairment, this case was not resolved at step two. Thus, any error in the ALJ’s 8 finding at step two is harmless, if all impairments, severe and non-severe, were 9 considered in the determination of Plaintiff’s residual functional capacity. See 10 Lewis v. Astrue, 498 F.3d 909, 910 (9th Cir. 2007) (holding that a failure to 11 consider an impairment in step two is harmless error where the ALJ includes the 12 limitations of that impairment in the determination of the residual functional 13 capacity). The ALJ specifically included restrictions in the residual functional 14 capacity to account for Plaintiff’s seizures, including restrictions on heights, heavy 15 machinery, and driving. AR 32. Accordingly, the Court finds the ALJ did not err in 16 the step two analysis. 17 18 B. The ALJ erred in evaluating some of the medical evidence. The Ninth Circuit has distinguished between three classes of medical 19 providers in defining the weight to be given to their opinions: (1) treating 20 providers, those who actually treat the claimant; (2) examining providers, those ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS ~ 12 1 who examine but do not treat the claimant; and (3) non-examining providers, those 2 who neither treat nor examine the claimant. Lester v. Chater, 81 F.3d 821, 830 (9th 3 Cir. 1996) (as amended). 4 A treating provider’s opinion is given the most weight, followed by an 5 examining provider, and finally a non-examining provider. Id. at 830-31. In the 6 absence of a contrary opinion, a treating or examining provider’s opinion may not 7 be rejected unless “clear and convincing” reasons are provided. Id. at 830. If a 8 treating or examining provider’s opinion is contradicted, it may only be discounted 9 for “specific and legitimate reasons that are supported by substantial evidence in 10 the record.” Id. at 830-31. The ALJ may meet the specific and legitimate standard 11 by “setting out a detailed and thorough summary of the facts and conflicting 12 clinical evidence, stating [his or her] interpretation thereof, and making findings.” 13 Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (internal citation 14 omitted). 15 16 a. Dr. R.A. Cline, Psy.D. Dr. Cline evaluated Plaintiff in July 2014. AR 1264-76. In addition to the 17 evaluation, Dr. Cline reviewed the records of Jose Perez, M.Ed., from July 2010. 18 AR 1242-47, 1264. Dr. Cline found Plaintiff to have moderate limitations in five 19 functional areas, and marked limitations in Plaintiff’s ability to complete a normal 20 work day and work week without interruptions from psychologically based ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS ~ 13 1 symptoms. AR 1266-67. Dr. Cline recommended that Plaintiff resume mental 2 health services. AR 1267. 3 The ALJ gave great weight to the opinion to the extent it reflects Plaintiff’s 4 functioning during periods of substance use, but in periods without substance use, 5 the ALJ gave the opinion little weight. AR 37. The ALJ noted that the only record 6 reviewed was Mr. Perez’s 2010 report, which was prepared when Plaintiff was 7 using drugs. Id. Mr. Perez’s report, however, stated that there was no indication of 8 current or recent substance use. AR 1244. The ALJ reasoned that a full review of 9 the record would have shown that during incarceration, Plaintiff was stable due to 10 abstention from substance use and compliance with treatment and medication. AR 11 37. The ALJ referred back to the prison records, that detailed Plaintiff’s ability to 12 work in prison and notes from his prison mental health providers that he was 13 stable. Id.; AR 1286-1348 (all prison records). The ALJ gave these records more 14 weight because of their longitudinal history and consistency with the overall 15 record. AR 37. 16 Dr. Cline’s opinion is contradicted by the September and October 2014 17 opinions of state agency consultants Dr. Jan Lewis and Dr. Carla Van Dam. AR 18 40, 185-91, 210. Thus, the ALJ need give specific and legitimate reasons for giving 19 little weight to Dr. Cline’s opinion. See Lester, 81 F.3d at 830. 20 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS ~ 14 1 The ALJ found Dr. Cline’s opinion to be deficient because the only record 2 reviewed was the 2010 report of Mr. Perez. AR 37. The value of Mr. Perez’s 3 opinion to the ALJ is rendered inferior because the ALJ believed it was rendered at 4 a time Plaintiff was not sober, id., a fact Plaintiff disputes, ECF No. 12 at 10. Upon 5 review, the Court finds the record does not support the ALJ’s finding that Plaintiff 6 was actively using drugs or alcohol in the period of Mr. Perez’s report. 7 Numerous reasons actually support that Plaintiff was not actively using 8 substances in this period. First, Mr. Perez stated in his report that there was no 9 indication of current substance use in July 2010. AR 1244. Other records from that 10 year do not indicate substance use. In March 2010, there is an inconclusive record 11 that states “hard to determine whether he is currently clean and sober.” AR 1024. 12 However, in the same month, treatment records indicate that he was continuing to 13 work on his sobriety. AR 1038. In May 2010, Plaintiff reported that he had 14 thoughts of relapse, but he relied on his treatment program to avoid it. AR 1029. 15 His history of polysubstance abuse was described was “sustained full remission” in 16 the same month. AR 1033. A record dated July 2010 states that current drug abuse 17 was not indicated. AR 1250. In sum, the record does not support the ALJ’s finding, 18 nor do the ALJ or Commissioner point to affirmative evidence to support, that 19 Plaintiff was using substances in July 2010. 20 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS ~ 15 1 Additionally, even if Mr. Perez’s opinion had been during a period of 2 substance use, Dr. Cline’s evaluation was not, and Dr. Cline’s opinion was based 3 not only on record review, but a personal consultation with Plaintiff. Plaintiff had 4 been released from incarceration just prior to Dr. Cline’s evaluation, and he stated 5 that he had not used any substances since his release. AR 1265. Even in light of the 6 unreliability of Plaintiff’s subjective symptom testimony, there is nothing in the 7 record to suggest he was using drugs or alcohol in July 2014. Dr. Cline also found 8 that Plaintiff had not used substances in the 60 days prior to the evaluation. AR 9 1267. 10 Contrary to the ALJ’s findings, Dr. Cline clearly recognized that when in a 11 controlled environment, Plaintiff’s substance use would be in remission. AR 1266. 12 Moreover, Dr. Cline also recognized that Plaintiff would have greater stability with 13 mental health treatment—this is precisely the recommendation provided in the 14 report. AR 1267. In sum, the ALJ did not provide specific and legitimate reasons 15 supported by substantial evidence in the record for the weight given to Dr. Cline’s 16 opinion and remand is warranted. 17 18 b. Dr. Melanie Edwards Mitchell, Psy.D. Dr. Edwards Mitchell reviewed the medical evidence in August 2014. AR 19 1269-71. The only medical report she reviewed was Dr. Cline’s. AR 1269. There is 20 no evidence that she met with Plaintiff or received any new information, and her ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS ~ 16 1 report demonstrates this, as it copies Dr. Cline’s findings exactly. AR 1269-71. 2 The ALJ did not discuss this opinion at all in his decision. 3 Generally, an ALJ must address probative evidence and provide legally 4 sufficient reasons for rejecting it. See Hill v. Astrue, 698 F.3d 1153, 1160 (9th Cir. 5 2012). However, here Dr. Edwards Mitchell’s opinion does not offer anything new. 6 It is not probative, as it is merely a recitation of Dr. Cline’s prior opinion. Thus, the 7 failure to address Dr. Edwards Mitchell’s opinion is harmless. The real issue, as 8 discussed prior, lies with the treatment of Dr. Cline’s opinion, not Dr. Edwards 9 Mitchell’s review of it. 10 c. Sarah K. An, ARNP 11 Plaintiff next argues that the ALJ erred by giving little weight to the opinion 12 of Sarah K. An, ARNP, who provided a statement on January 28, 2016. AR 1587- 13 88. Ms. An’s opinion is considered that of an “other source.” “Other sources” for 14 opinions include nurse practitioners, physicians' assistants, therapists, teachers, 15 social workers, spouses, and other non-medical sources. 20 C.F.R. §§ 404.1513(d), 16 416.913(d). An ALJ is required to “consider observations by non-medical sources 17 as to how an impairment affects a claimant's ability to work.” Sprague v. Bowen, 18 812 F.2d 1226, 1232 (9th Cir.1987). Non-medical testimony can never establish a 19 diagnosis or disability absent corroborating competent medical evidence. Nguyen 20 v. Chater, 100 F.3d 1462, 1467 (9th Cir.1996). An ALJ is obligated to give reasons ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS ~ 17 1 germane to “other source” testimony before discounting it. Dodrill v. Shalala, 12 2 F.3d 915 (9th Cir.1993). 3 The ALJ gave little weight to Ms. An’s opinion for multiple reasons. First, 4 the ALJ found at step two that Plaintiff’s seizure disorder was non-severe. AR 24. 5 The Court found that this was not in error. See supra at pp.10-12. 6 Primarily, the ALJ found that the record did not support Ms. An’s opinion. 7 AR 39-40. An ALJ may reject a provider’s opinion when it is inconsistent with 8 evidence in the record. See Morgan, 169 F.3d at 600. Imaging studies show no 9 more than mild to moderate changes. AR 1471, 1723. Likewise, examination 10 findings do not support the level of impairment opined by Ms. An. See, e.g., 1562, 11 AR 1370, 1376, 1380, 1385, 1389, 1392, 1452, 1508, 1515, 1593, 1606, 1638, 12 1754. In addition, Plaintiff’s conservative treatment of his back condition was 13 inconsistent with Ms. An’s assertion that he would miss multiple days of work due 14 to his back impairment. See AR 34, 1506, 1755, 1770. Finally, Ms. An did not 15 acknowledge Plaintiff’s substance use, despite remission in the period shortly 16 before she rendered her opinion. AR 39-40, 1683. 17 In sum, the ALJ provided multiple germane reasons for discrediting the 18 opinion of Ms. An. 19 // 20 // ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS ~ 18 1 d. Sonya Starr, ARNP Ms. Starr 2 provided a medical report in February 2015, based on 2 3 approximately one month of treatment. AR 1458-59. She opined that Plaintiff’s 4 seizures would cause him to miss as many as three days per month, and that his 5 fragile mental health would also impact his ability to complete a 40-hour work 6 week. AR 1459. The ALJ gave little weight to this opinion because it is 7 inconsistent with the overall record and it was based on self-reporting by Plaintiff. 8 Again, Ms. Starr’s opinion is that of an “other source,” and the ALJ needs to 9 provide germane reasons for rejecting it. Dodrill, 12 F.3d at 915. Inconsistency 10 with the record is an acceptable reason. See Morgan, 169 F.3d at 600. Ms. Starr 11 relied on Plaintiff’s seizure disorder, which the ALJ found to be controlled by 12 medication. See supra at pp. 11-12. The ALJ also pointed to multiple pieces of 13 evidence that demonstrate that, with sobriety and mental health treatment, Plaintiff 14 had improved mental function and is able to maintain an active lifestyle, including 15 the ability to work. See, e.g., AR 35-36, 65-73, 1264-65, 1314, 1321, 1455, 1480, 16 1671, 1680, 1693. 17 18 Ms. Starr also relied on self-reporting to develop her opinion. AR 38. An ALJ may discount a provider’s opinion if it is based largely on the claimant’s self- 19 20 2 The ALJ incorrectly refers to Ms. Starr as “Sonya Stans” in his decision, but the record reflects her name to be Sonya Starr. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS ~ 19 1 reports and not on clinical evidence, and the ALJ finds the claimant not credible. 2 Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014); see also infra at 21-25. 3 4 5 6 The Court finds the ALJ provided germane reasons for discounting the opinion of Ms. Starr and finds no error. e. Joanna Kass, ARNP Joanna Kass, ARNP, provided a Mental Source Statement in December 7 2015. AR 1544-47. She opined numerous marked limitations in functioning areas 8 and that Plaintiff would be off-task more than 30% of the time and miss 4 or more 9 days per month due to his mental health symptoms. Id. The ALJ gave little weight 10 11 to this opinion. AR 39. Ms. Kass’ opinion does not mention Plaintiff’s substance use disorder, 12 which is particularly relevant in this time period because Plaintiff relapsed and 13 used methamphetamine in the same month. AR 1683. The record supports the 14 ALJ’s conclusion that Plaintiff’s mental health is significantly impaired when he 15 uses drugs, which makes Ms. Kass’ opinion less reliable regarding his condition 16 while sober. When sober and receiving medication and treatment, Plaintiff had 17 improved mental function and is able to maintain an active lifestyle, including the 18 ability to work. See, e.g., AR 35-36, 65-73, 1264-65, 1314, 1321, 1455, 1480, 19 1671, 1680, 1693. 20 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS ~ 20 1 Additionally, as with Ms. Starr’s report, Ms. Kass based her report in part on 2 Plaintiff’s self-reporting. As the ALJ did not err in finding Plaintiff’s subjective 3 symptom testimony unreliable, this was a germane reason to reject Ms. Kass’ 4 report. See Ghanim, 763 F.3d at 1162; see also infra at 21-25. 5 C. The ALJ properly rejected Plaintiff’s subjective symptom testimony. 6 An ALJ engages in a two-step analysis to determine whether a claimant’s 7 testimony regarding subjective symptoms is credible. Tommasetti, 533 F.3d at 8 1039. First, the claimant must produce objective medical evidence of an underlying 9 impairment or impairments that could reasonably be expected to produce some 10 degree of the symptoms alleged. Id. Second, if the claimant meets this threshold, 11 and there is no affirmative evidence suggesting malingering, “the ALJ can reject 12 the claimant’s testimony about the severity of [his] symptoms only by offering 13 specific, clear, and convincing reasons for doing so.” Id. 14 In weighing a claimant's credibility, the ALJ may consider many factors, 15 including, “(1) ordinary techniques of credibility evaluation, such as the claimant's 16 reputation for lying, prior inconsistent statements concerning the symptoms, and 17 other testimony by the claimant that appears less than candid; (2) unexplained or 18 inadequately explained failure to seek treatment or to follow a prescribed course of 19 treatment; and (3) the claimant's daily activities.” Smolen v. Chater, 80 F.3d 1273, 20 1284 (9th Cir. 1996). Here, the ALJ found that if Plaintiff stopped substance use, ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS ~ 21 1 his medically determinable impairments could reasonably be expected to produce 2 the alleged symptoms, but Plaintiff’s statements concerning intensity, persistence, 3 and limiting effects were not credible. AR 33. The ALJ supported this with 4 numerous reasons supported by substantial evidence in the record. AR 33-36. As 5 Plaintiff alleged both physical and mental limitations, the ALJ separated the 6 analysis. 7 a. Physical impairments 8 The ALJ found that Plaintiff’s allegations of pain and limiting effects of his 9 back impairment were “out of proportion to the objective findings.” AR 33. 10 Inconsistency between a claimant’s allegations and relevant medical evidence is a 11 legally sufficient reason to reject a claimant’s subjective testimony. Tonapetyan v. 12 Halter, 242 F.3d 1144, 1148 (9th Cir. 2001). For example, the ALJ pointed to only 13 mild or moderate findings on imaging. AR 1471, 1723. Likewise, examination 14 findings did not corroborate Plaintiff’s testimony about the limiting effects of his 15 back pain. The ALJ referenced multiple instances in the record of only mild 16 tenderness, painless range of motion in the back, normal gait, normal motor 17 strength, intact sensation, and normal deep tendon reflexes throughout Plaintiff’s 18 lower extremities. See, e.g., 1562, AR 1370, 1376, 1380, 1385, 1389, 1392, 1452, 19 1508, 1515, 1593, 1606, 1638, 1754. 20 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS ~ 22 1 Plaintiff’s own statements are also inconsistent with his allegations of 2 disabling limitations, which can be a clear and convincing reason to discredit a 3 claimant’s subjective testimony. Smolen, 80 F.3d at 1284. Plaintiff stated in July 4 2014 that he was “in pretty good shape physically” and that he did not have any 5 complaints about medical issues. AR 1279. This is directly at odds with his 6 allegations that his back pain prevents him from employment. 7 The ALJ also found that Plaintiff’s activities of daily living are inconsistent 8 with his subjective symptom testimony. AR 34. Activities inconsistent with the 9 alleged symptoms are proper grounds for questioning the credibility of an 10 individual’s subjective allegations. Molina, 674 F.3d at 1113 (“[e]ven where those 11 activities suggest some difficulty functioning, they may be grounds for discrediting 12 the claimant’s testimony to the extent that they contradict claims of a totally 13 debilitating impairment”); see also Rollins v. Massanari, 261 F.3d 853, 857 (9th 14 Cir. 2001). Plaintiff is able to ride his bike, and he testified that he walks a mile to 15 and from the store to get groceries for his landlord. AR 72-73. He also has 16 performed odd jobs and volunteer work during the relevant time period. AR 65-66. 17 Next, the ALJ found the conservative care to treat his back pain was 18 inconsistent with his allegations of disabling limitations. AR 34. “[E]vidence of 19 conservative treatment is sufficient to discount a claimant’s testimony regarding 20 severity of an impairment.” Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007) ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS ~ 23 1 (internal quotations omitted). The ALJ noted that Plaintiff’s primary treatment for 2 his back included gentle stretching, ice/heat, and over-the-counter pain reliever. 3 3 AR 34, 1506, 1755, 1770. 4 Moreover, while the ALJ did not find Plaintiff credible regarding the 5 limiting effects of his back pain, the ALJ did limit him to light work with some 6 additional postural limitations in the residual functional capacity. AR 34. This is 7 generous despite the support offered by the record for the ALJ’s findings. In sum, 8 the Court finds no error in the ALJ’s assessment of Plaintiff’s subjective testimony 9 regarding his physical impairments. 10 b. Mental impairments 11 The ALJ found that Plaintiff’s schizoaffective disorder was significantly 12 improved with sobriety, although not eliminated. AR 34. This is contrary to 13 Plaintiff’s allegations that his mental impairments are disabling regardless of his 14 sobriety. 15 The ALJ noted that while there were still evidence of Plaintiff’s 16 schizoaffective disorder, during periods of sobriety, such as during his 17 incarceration, he demonstrated “conservative mental status examinations.” AR 34, 18 1294, 1314, 1321, 1322, 1325, 1328, 1332, 1339. Upon release from prison, 19 Plaintiff continued to demonstrate mild mental examination findings when he was 20 3 The record also demonstrates Plaintiff took some muscle relaxers for treatment. AR 1755. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS ~ 24 1 not using drugs or alcohol. See, e.g., AR 1284, 1370, 1373, 1376, 1455, 1474, 2 1591, 1681. This inconsistency between these benign findings and Plaintiff’s 3 allegations of disabling mental impairments is a legally sufficient reason to reject a 4 claimant’s subjective testimony. See Tonapetyan, 242 F.3d at 1148. 5 The record also supports the ALJ’s finding that compliant treatment 6 improves Plaintiff’s mental functioning. AR 35. Improvement as a response to 7 treatment may be considered by the ALJ when considering subjective symptom 8 testimony. Morgan, 169 F.3d at 599-600. Plaintiff demonstrated improvement with 9 treatment, both during incarceration and after release, when he was compliant with 10 the treatment. AR 1264-65, 1314, 1321, 1455, 1480, 1671, 1693. Plaintiff himself 11 even recognized this improvement on multiple occasions. He told his prison 12 psychiatrist he did not want to change any of his medications because they had 13 been helpful to him. AR 1313. He also described his medication as “adequate” and 14 without side effects in November 2013. AR 1500. He also acknowledged 15 counseling to be helpful to him. AR 1782. 16 As with his physical impairments, the ALJ also noted that Plaintiff’s 17 activities of daily living were inconsistent with disabling mental impairments. AR 18 35-36. Again, the ALJ may consider the inconsistency between the allegations and 19 the activities to evaluate the credibility of the subjective symptom testimony. 20 Molina, 674 F.3d at 1113. The ALJ pointed to Plaintiff’s ability to care for his ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS ~ 25 1 girlfriend’s disabled daughter and his mother’s small dog. AR 564. The ALJ also 2 found that Plaintiff had “sought employment and been quite active,” which is 3 inconsistent with his allegations. AR 35-36. He tried on numerous occasions to get 4 a job, and he did odd jobs as well as volunteer work. AR 65-73, 1680. Evidence 5 that Plaintiff does not work for reasons other than his impairments is a sufficient 6 basis to discredit testimony. Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 7 2001); see also Tommasetti, 533 F.3d at 1040 (evidence that Plaintiff is not 8 employed for reasons beyond impairments may be considered by the ALJ). 9 Finally, the ALJ noted evidence in the record that undermined Plaintiff’s 10 testimony, specifically regarding his motives for seeking Social Security benefits. 11 AR 36. An ALJ may employ “ordinary techniques of credibility evaluation, such 12 as the claimant's reputation for lying, prior inconsistent statements concerning the 13 symptoms, and other testimony by the claimant that appears less than candid.” 14 Smolen, 80 F.3d at 1284. In a pre-prison release interview in January 2014, 15 Plaintiff asked the support worker performing the evaluation, “So, when I get 16 interviewed, do I act crazy or normal?” with regard to his application to obtain 17 Social Security benefits. AR 1323. He also reported in October 2014 that he only 18 experienced hallucinations when he was doing drugs. AR 1450. 19 20 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS ~ 26 1 In sum, the ALJ provided numerous, valid reasons that are substantially 2 supported by the record for failing to accept Plaintiff’s subjective symptom 3 testimony. 4 D. Remedy 5 The Court has the discretion to remand the case for additional evidence and 6 findings or to award benefits. Smolen, 80 F.3d at 1292. The Court may award 7 benefits if the record is fully developed and further administrative proceedings 8 would serve no useful purpose. Id. Remand is appropriate when additional 9 administrative proceedings could remedy defects. Rodriguez v. Bowen, 876 F.2d 10 759, 763 (9th Cir. 1989). In this case, the Court finds that further proceedings are 11 necessary for a proper determination to be made. 12 On remand, the ALJ will reconsider the opinion of Dr. Cline in conjunction 13 with the record as a whole. If the ALJ again determines Dr. Cline’s opinion is 14 unreliable, he or she must provide reasons supported by substantial evidence in the 15 record. The ALJ will then recalculate his residual functional capacity and 16 Plaintiff’s ability to perform work available in the national economy, as necessary. 17 VIII. Conclusion 18 Having reviewed the record and the ALJ’s findings, the Court finds the 19 ALJ’s decision is not supported by substantial evidence and contains legal error. 20 // ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS ~ 27 1 Accordingly, IT IS ORDERED: 2 1. Plaintiff’s Motion for Summary Judgment, ECF No. 12, is GRANTED. 3 2. Defendant’s Motion for Summary Judgment, ECF No. 17, is DENIED. 4 3. Judgment shall be entered in favor of Plaintiff and against Defendant. 5 4. This matter is REMANDED to the Commissioner for further proceedings 6 consistent with this Order. 7 IT IS SO ORDERED. The District Court Executive is directed to enter this 8 9 Order, forward copies to counsel and close the file. DATED this 10th day of September, 2018. 10 11 12 s/Robert H. Whaley ROBERT H. WHALEY Senior United States District Judge 13 14 15 16 17 18 19 20 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS ~ 28

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