Harcum v. Saul, No. 1:2019cv03269 - Document 18 (E.D. Wash. 2020)
Court Description: ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (ECF No. 14 ) AND GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (ECF No. 16 ). File closed. Signed by Magistrate Judge Mary K. Dimke. (PH, Case Administrator)
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Harcum v. Saul Doc. 18 Case 1:19-cv-03269-MKD ECF No. 18 filed 12/04/20 PageID.2458 Page 1 of 30 1 2 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 3 Dec 04, 2020 4 SEAN F. MCAVOY, CLERK 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 ERICA H.,1 No. 1:19-cv-03269-MKD Plaintiff, 8 vs. 9 ANDREW M. SAUL, 10 COMMISSIONER OF SOCIAL SECURITY, 11 Defendant. ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ECF Nos. 14, 16 12 13 Before the Court are the parties’ cross-motions for summary judgment. ECF 14 Nos. 14, 16. The parties consented to proceed before a magistrate judge. ECF No. 15 8. The Court, having reviewed the administrative record and the parties’ briefing, 16 17 18 1 To protect the privacy of plaintiffs in social security cases, the undersigned 19 identifies them by only their first names and the initial of their last names. See 20 LCivR 5.2(c). 2 ORDER - 1 Dockets.Justia.com Case 1:19-cv-03269-MKD ECF No. 18 filed 12/04/20 PageID.2459 Page 2 of 30 1 is fully informed. For the reasons discussed below, the Court denies Plaintiff’s 2 motion, ECF No. 14, and grants Defendant’s motion, ECF No. 16. 3 4 JURISDICTION The Court has jurisdiction over this case pursuant to 42 U.S.C. § 1383(c)(3). 5 6 STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 7 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 8 limited; the Commissioner’s decision will be disturbed “only if it is not supported 9 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 10 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a 11 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159 12 (quotation and citation omitted). Stated differently, substantial evidence equates to 13 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 14 citation omitted). In determining whether the standard has been satisfied, a 15 reviewing court must consider the entire record as a whole rather than searching 16 for supporting evidence in isolation. Id. 17 In reviewing a denial of benefits, a district court may not substitute its 18 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152, 19 1156 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one 20 rational interpretation, [the court] must uphold the ALJ’s findings if they are 2 ORDER - 2 Case 1:19-cv-03269-MKD ECF No. 18 filed 12/04/20 PageID.2460 Page 3 of 30 1 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 2 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court “may not reverse an 3 ALJ’s decision on account of an error that is harmless.” Id. An error is harmless 4 “where it is inconsequential to the [ALJ’s] ultimate nondisability determination.” 5 Id. at 1115 (quotation and citation omitted). The party appealing the ALJ’s 6 decision generally bears the burden of establishing that it was harmed. Shinseki v. 7 Sanders, 556 U.S. 396, 409-10 (2009). 8 9 FIVE-STEP EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within 10 the meaning of the Social Security Act. First, the claimant must be “unable to 11 engage in any substantial gainful activity by reason of any medically determinable 12 physical or mental impairment which can be expected to result in death or which 13 has lasted or can be expected to last for a continuous period of not less than twelve 14 months.” 42 U.S.C. § 1382c(a)(3)(A). Second, the claimant’s impairment must be 15 “of such severity that he is not only unable to do his previous work[,] but cannot, 16 considering his age, education, and work experience, engage in any other kind of 17 substantial gainful work which exists in the national economy.” 42 U.S.C. § 18 1382c(a)(3)(B). 19 The Commissioner has established a five-step sequential analysis to 20 determine whether a claimant satisfies the above criteria. See 20 C.F.R. § 2 ORDER - 3 Case 1:19-cv-03269-MKD ECF No. 18 filed 12/04/20 PageID.2461 Page 4 of 30 1 416.920(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s work 2 activity. 20 C.F.R. § 416.920(a)(4)(i). If the claimant is engaged in “substantial 3 gainful activity,” the Commissioner must find that the claimant is not disabled. 20 4 C.F.R. § 416.920(b). 5 If the claimant is not engaged in substantial gainful activity, the analysis 6 proceeds to step two. At this step, the Commissioner considers the severity of the 7 claimant’s impairment. 20 C.F.R. § 416.920(a)(4)(ii). If the claimant suffers from 8 “any impairment or combination of impairments which significantly limits [his or 9 her] physical or mental ability to do basic work activities,” the analysis proceeds to 10 step three. 20 C.F.R. § 416.920(c). If the claimant’s impairment does not satisfy 11 this severity threshold, however, the Commissioner must find that the claimant is 12 not disabled. Id. 13 At step three, the Commissioner compares the claimant’s impairment to 14 severe impairments recognized by the Commissioner to be so severe as to preclude 15 a person from engaging in substantial gainful activity. 20 C.F.R. § 16 416.920(a)(4)(iii). If the impairment is as severe or more severe than one of the 17 enumerated impairments, the Commissioner must find the claimant disabled and 18 award benefits. 20 C.F.R. § 416.920(d). 19 If the severity of the claimant’s impairment does not meet or exceed the 20 severity of the enumerated impairments, the Commissioner must pause to assess 2 ORDER - 4 Case 1:19-cv-03269-MKD ECF No. 18 filed 12/04/20 PageID.2462 Page 5 of 30 1 the claimant’s “residual functional capacity.” Residual functional capacity (RFC), 2 defined generally as the claimant’s ability to perform physical and mental work 3 activities on a sustained basis despite his or her limitations, 20 C.F.R. § 4 416.945(a)(1), is relevant to both the fourth and fifth steps of the analysis. 5 At step four, the Commissioner considers whether, in view of the claimant’s 6 RFC, the claimant is capable of performing work that he or she has performed in 7 the past (past relevant work). 20 C.F.R. § 416.920(a)(4)(iv). If the claimant is 8 capable of performing past relevant work, the Commissioner must find that the 9 claimant is not disabled. 20 C.F.R. § 416.920(f). If the claimant is incapable of 10 performing such work, the analysis proceeds to step five. 11 At step five, the Commissioner considers whether, in view of the claimant’s 12 RFC, the claimant is capable of performing other work in the national economy. 13 20 C.F.R. § 416.920(a)(4)(v). In making this determination, the Commissioner 14 must also consider vocational factors such as the claimant’s age, education and 15 past work experience. Id. If the claimant is capable of adjusting to other work, the 16 Commissioner must find that the claimant is not disabled. 20 C.F.R. § 17 416.920(g)(1). If the claimant is not capable of adjusting to other work, analysis 18 concludes with a finding that the claimant is disabled and is therefore entitled to 19 benefits. Id. 20 2 ORDER - 5 Case 1:19-cv-03269-MKD 1 ECF No. 18 filed 12/04/20 PageID.2463 Page 6 of 30 The claimant bears the burden of proof at steps one through four above. 2 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 3 step five, the burden shifts to the Commissioner to establish that (1) the claimant is 4 capable of performing other work; and (2) such work “exists in significant 5 numbers in the national economy.” 20 C.F.R. § 416.960(c)(2); Beltran v. Astrue, 6 700 F.3d 386, 389 (9th Cir. 2012). 7 “A finding of ‘disabled’ under the five-step inquiry does not automatically 8 qualify a claimant for disability benefits.” Parra v. Astrue, 481 F. 3d 742, 746 (9th 9 Cir. 2007) (citing Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001)). 10 When there is medical evidence of drug or alcohol addiction (DAA), the ALJ must 11 determine whether the drug or alcohol addiction is a material factor contributing to 12 the disability. 20 C.F.R. § 416.935(a). In order to determine whether drug or 13 alcohol addiction is a material factor contributing to the disability, the ALJ must 14 evaluate which of the current physical and mental limitations would remain if the 15 claimant stopped using drugs or alcohol, then determine whether any or all of the 16 remaining limitations would be disabling. 20 C.F.R. § 416.935(b)(2). If the 17 remaining limitations would not be disabling, drug or alcohol addiction is a 18 contributing factor material to the determination of disability. Id. If the remaining 19 limitations would be disabling, the claimant is disabled independent of the drug or 20 alcohol addiction and the addiction is not a contributing factor material to 2 ORDER - 6 Case 1:19-cv-03269-MKD ECF No. 18 filed 12/04/20 PageID.2464 Page 7 of 30 1 disability. Id. The claimant has the burden of showing that drug and alcohol 2 addiction is not a contributing factor material to disability. Parra, 481 F.3d at 748. 3 Social Security Ruling (“SSR”) 13-2p provides guidance for evaluating 4 whether a claimant’s substance use is material to the disability determination. SSR 5 13-2p, 2013 WL 621536, at *3 (Feb. 20, 2013). It instructs adjudicators to “apply 6 the appropriate sequential evaluation process twice. First, apply the sequential 7 process to show how the claimant is disabled. Then, apply the sequential 8 evaluation process a second time to document materiality[.]” Id. at *6. 9 ALJ’S FINDINGS 10 On June 21, 2016, Plaintiff applied for Title XVI supplemental security 11 income benefits alleging an amended disability onset date of June 21, 2016.2 Tr. 12 238-47. The application was denied initially, and on reconsideration. Tr. 119-32; 13 Tr. 141-54. Plaintiff appeared before an administrative law judge (ALJ) on May 14 24, 2018. Tr. 36-70. On September 17, 2018, the ALJ denied Plaintiff’s claim. 15 Tr. 15-35. 16 17 2 Plaintiff also applied for Title II disability insurance benefits, but the Title II 18 request for hearing was dismissed when Plaintiff amended her alleged onset date to 19 June 2, 2016, as the new alleged onset date fell after her December 31, 2014 date 20 last insured. Tr. 18, 21. 2 ORDER - 7 Case 1:19-cv-03269-MKD 1 ECF No. 18 filed 12/04/20 PageID.2465 Page 8 of 30 At step one of the sequential evaluation process, the ALJ found Plaintiff has 2 not engaged in substantial gainful activity since January 1, 2012. Tr. 21. At step 3 two, the ALJ found that Plaintiff has the following severe impairments: psychosis 4 secondary to substance addiction, major depressive disorder, generalized anxiety 5 disorder, and post-traumatic stress disorder. Id. 6 At step three, the ALJ found Plaintiff’s impairments, including the substance 7 use disorders, equal Listings 12.04 and 12.15. Tr. 22. The ALJ found if Plaintiff 8 stopped using substances, none of her impairments or combination of impairments 9 would meet or medically equal the severity of a listed impairment. Tr. 25. The 10 ALJ then concluded that if Plaintiff stopped using substances, Plaintiff would have 11 the RFC to perform “less than a full range of medium work with the residual 12 functional capacity to perform work at all exertional levels,” with the following 13 limitations: 14 15 16 17 18 19 20 2 [Plaintiff] has no limitations regarding the ability to understand, remember or apply information that is simple, routine, and repetitive, commensurate with 1-3 step tasks, commensurate with SVP 2 skill. Regarding interaction with others, [Plaintiff] would work best in an environment in proximity to, but no close cooperation, with coworkers, supervisors, and should work in an environment away from the public. Regarding the ability to concentrate, persist, and maintain pace, [Plaintiff] has the ability with legally required breaks, to focus on work activities and stay on task at a sustained rate; complete tasks in a timely manner; sustain an ordinary routine; regularly attend work; and work a full day without needing more than the allotted number or length of rest periods. Regarding the ability to adapt or manage, [Plaintiff] would work best in an environment that is routine and predictable, but does have the ability to respond ORDER - 8 Case 1:19-cv-03269-MKD 1 ECF No. 18 filed 12/04/20 PageID.2466 Page 9 of 30 appropriately, distinguish between acceptable and unacceptable work performance, and take appropriate precautions. 2 Tr. 25-26. 3 At step four, the ALJ found Plaintiff is unable to perform any of her past 4 relevant work. Tr. 27. At step five, the ALJ found that, considering Plaintiff’s 5 age, education, work experience, RFC, and testimony from the vocational expert, 6 there were jobs that existed in significant numbers in the national economy that 7 Plaintiff could perform, such as field crop farm worker, kitchen helper, and small 8 products assembler. Tr. 28. Therefore, the ALJ concluded Plaintiff was not under 9 a disability, as defined in the Social Security Act, from the date of the application 10 through the date of the decision. Tr. 30. 11 On September 20, 2019, the Appeals Council denied review of the ALJ’s 12 decision, Tr. 1-6, making the ALJ’s decision the Commissioner’s final decision for 13 purposes of judicial review. See 42 U.S.C. § 1383(c)(3). 14 ISSUES 15 Plaintiff seeks judicial review of the Commissioner’s final decision denying 16 her supplemental security income benefits under Title XVI of the Social Security 17 Act. Plaintiff raises the following issues for review: 18 1. Whether the ALJ properly determined that Plaintiff’s substance use 19 disorder is a material contributing factor to the determination of 20 disability; 2 ORDER - 9 Case 1:19-cv-03269-MKD ECF No. 18 filed 12/04/20 PageID.2467 Page 10 of 30 1 2. Whether the ALJ properly evaluated the medical opinion evidence; and 2 3. Whether the ALJ properly evaluated Plaintiff’s symptom claims. 3 ECF No. 14 at 2. 4 5 6 DISCUSSION A. Drug and Alcohol Abuse (DAA) Plaintiff challenges the ALJ’s finding that Plaintiff’s substance abuse 7 materially contributed to her limitations. ECF No. 14 at 9-15. Social Security 8 claimants may not receive benefits where DAA is a material contributing factor to 9 disability. 20 C.F.R. § 416.935(b); 42 U.S.C. § 423(d)(2)(c). DAA is a material 10 contributing factor if the claimant would not meet the SSA’s definition of 11 disability if the claimant were not using drugs or alcohol. 20 C.F.R. § 416.935(b). 12 Plaintiff has the burden of showing that DAA is not a material contributing factor 13 to disability. See Parra, 481 F.3d at 748. 14 The ALJ found Plaintiff’s substance use is a material contributing factor to 15 her disability. Tr. 25-29. Plaintiff argues the ALJ failed to properly analyze her 16 substance use according to SSR 13-2p, including failing to properly consider 1) a 17 treating medical opinion that reflected that Plaintiff had disabling limitations even 18 without substance use; and 2) whether DAA was material to Plaintiff’s co19 occurring mental impairments. ECF No. 14 at 9-15. As discussed infra, the ALJ’s 20 rejection of Dr. Ballasiotes’ opinion was supported by substantial evidence. 2 ORDER - 10 Case 1:19-cv-03269-MKD 1 ECF No. 18 filed 12/04/20 PageID.2468 Page 11 of 30 While Plaintiff argues there is a lack of evidence demonstrating Plaintiff’s 2 mental health symptoms showed improvement with sobriety, the ALJ relied on the 3 opinion of Dr. Winfrey, as well as medical records demonstrating improvement in 4 Plaintiff’s symptoms during periods of sobriety. Tr. 25-29, 43-47, 499, 524, 622, 5 634, 638, 1682, 2027. Nancy Winfrey, Ph.D., a nonexamining medical expert, 6 testified at Plaintiff’s hearing and opined Plaintiff’s conditions would equal a 7 listing when including her substance use, Tr. 43-45, but Plaintiff’s conditions do 8 not equal a listing when Plaintiff is not using substances, Tr. 45. Dr. Winfrey 9 opined Plaintiff’s substance use is a material factor, and Plaintiff is capable of 10 simple, low-stress work with limitations in social functioning when she is not using 11 substances. Tr. 42, 45-46. 12 Dr. Winfrey testified that during “short periods” at the end of detox 13 treatment, Plaintiff’s functioning improved. Tr. 43. Dr. Winfrey testified Plaintiff 14 generally detoxed only for “days,” not “weeks or months,” that even a month after 15 the last use, substances, including cannabis, can impact an individual’s 16 functioning, and that Plaintiff looked “somewhat better” when she was sober. Tr. 17 49. Dr. Winfrey testified Plaintiff demonstrated improvement in June 2017 when 18 she was getting released from jail, after a one-month period of sobriety, because 19 Plaintiff reported reading her Bible and having no hallucinations or delusions, and 20 she had a normal mood/affect. Tr. 52-53 (citing Tr. 2027). In July 2017, while in 2 ORDER - 11 Case 1:19-cv-03269-MKD ECF No. 18 filed 12/04/20 PageID.2469 Page 12 of 30 1 inpatient treatment, Plaintiff reported doing exceptionally well with improved 2 symptoms, Tr. 1488, until she began outpatient treatment, ran out of her 3 medications, and again began using methamphetamine, Tr. 886-88. There are 4 additional periods in the record when Plaintiff was incarcerated and/or receiving 5 treatment during which she demonstrated improvement in her symptoms. 6 In June 2016, Plaintiff had some abnormalities on examinations, but also had 7 multiple normal mental status examinations. While in treatment, Plaintiff’s 8 provider found Plaintiff had become compliant with medication and had marked 9 improvement in her functioning. Tr. 512. Plaintiff had a normal examination 10 while engaging in the residential treatment program, Tr. 524, and was noted as 11 stabilizing with medications, having a bright mood and pleasant affect, Tr. 1610. 12 After being discharged from the residential program, Plaintiff visited an emergency 13 department due to anxiety stemming from a lack of housing; during the visit, she 14 again had a generally normal mental status examination. Tr. 666. In July 2016, 15 while under a less restrictive alternative to treatment order (LRA), Plaintiff 16 reported improvement in her symptoms, had a normal mental status examination, 17 and was observed as organized and future-thinking. Tr. 515, 517, 638. 18 In October 2017, while in residential treatment, Plaintiff was noted as 19 enthusiastically embracing treatment, she was not observed having abnormal 20 anger, mood, bizarre behaviors, paranoia, nor disorganized thoughts. Tr. 1635, 2 ORDER - 12 Case 1:19-cv-03269-MKD ECF No. 18 filed 12/04/20 PageID.2470 Page 13 of 30 1 1644. In November 2017, while still in residential treatment, Plaintiff had 2 continued improvement, with normal eye contact, grooming, psychomotor activity, 3 memory, attention/concentration, speech, and she was cooperative and pleasant, 4 with no reported hallucinations. Tr. 1309-10. The provider noted Plaintiff was 5 doing very well. Id. While still in residential treatment, Plaintiff participated well 6 in group therapy in December 2017, Tr. 1202, 1211, and attended AA meetings 7 and socialized with others in January and February 2018. Tr. 1997, 2001. 8 Plaintiff has not met her burden in proving DAA is not a material 9 contributing factor to her disability. See SSR 13-2p. The ALJ also noted Plaintiff 10 did not seek significant mental health treatment during multiple periods in the 11 relevant adjudicate timeframe, although she sought treatment for her physical 12 indications, which the ALJ found indicated Plaintiff did not need care for her 13 mental health symptoms. Tr. 29. While Plaintiff argues the ALJ improperly 14 considered Plaintiff’s lack of mental health treatment as Plaintiff has limited 15 insight and judgment, ECF No. 14 at 11, the ALJ reasonably considered Plaintiff’s 16 lack of mental health treatment given Plaintiff’s treatment for her physical 17 conditions and evidence Plaintiff was willing to ask for help, Tr. 1682. Further, 18 any error in the consideration would be harmless as the ALJ offered other 19 supported reasons to find DAA is a material contributing factor to Plaintiff’s 20 2 ORDER - 13 Case 1:19-cv-03269-MKD ECF No. 18 filed 12/04/20 PageID.2471 Page 14 of 30 1 disability. See Molina, 674 F.3d at 1115. Plaintiff is not entitled to remand on 2 these grounds. 3 B. Medical Opinion Evidence 4 Plaintiff contends the ALJ erred in her consideration of the opinions of 5 Angelo Ballasiotes, Pharm.D.,3 and R.A. Cline, Psy.D. ECF No. 14 at 15-18. 6 There are three types of physicians: “(1) those who treat the claimant 7 (treating physicians); (2) those who examine but do not treat the claimant 8 (examining physicians); and (3) those who neither examine nor treat the claimant 9 [but who review the claimant’s file] (nonexamining [or reviewing] physicians).” 10 Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001) (citations omitted). 11 Generally, a treating physician’s opinion carries more weight than an examining 12 physician’s, and an examining physician’s opinion carries more weight than a 13 reviewing physician’s. Id. at 1202. “In addition, the regulations give more weight 14 to opinions that are explained than to those that are not, and to the opinions of 15 specialists concerning matters relating to their specialty over that of 16 nonspecialists.” Id. (citations omitted). 17 18 3 The ALJ misidentified Dr. Ballasiotes as having a Ph.D. Tr. 24. While Plaintiff 19 argues the specific and legitimate standard applies, Dr. Ballasiotes is not an 20 acceptable medical source. See 20 C.F.R. § 416.913 (2013). 2 ORDER - 14 Case 1:19-cv-03269-MKD 1 ECF No. 18 filed 12/04/20 PageID.2472 Page 15 of 30 If a treating or examining physician’s opinion is uncontradicted, the ALJ 2 may reject it only by offering “clear and convincing reasons that are supported by 3 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 4 “However, the ALJ need not accept the opinion of any physician, including a 5 treating physician, if that opinion is brief, conclusory and inadequately supported 6 by clinical findings.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 7 (9th Cir. 2009) (internal quotation marks and brackets omitted). “If a treating or 8 examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ 9 may only reject it by providing specific and legitimate reasons that are supported 10 by substantial evidence.” Bayliss, 427 F.3d at 1216 (citing Lester v. Chater, 81 11 F.3d 821, 830-31 (9th Cir. 1995)). The opinion of a nonexamining physician may 12 serve as substantial evidence if it is supported by other independent evidence in the 13 record. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). 14 “Only physicians and certain other qualified specialists are considered 15 ‘[a]cceptable medical sources.’” Ghanim v. Colvin, 763 F.3d 1154, 1161 (9th Cir. 16 2014) (alteration in original); see 20 C.F.R. § 416.913 (2013).4 However, an ALJ 17 18 4 The regulation that defines acceptable medical sources is found at 20 C.F.R. § 19 416.902 for claims filed after March 27, 2017. The Court applies the regulation in 20 effect at the time the claim was filed. 2 ORDER - 15 Case 1:19-cv-03269-MKD ECF No. 18 filed 12/04/20 PageID.2473 Page 16 of 30 1 is required to consider evidence from non-acceptable medical sources, such as 2 therapists. 20 C.F.R. § 416.913(d) (2013).5 An ALJ may reject the opinion of a 3 non-acceptable medical source by giving reasons germane to the opinion. Ghanim, 4 763 F.3d at 1161. 5 1. Dr. Ballasiotes 6 On an undated questionnaire, Dr. Ballasiotes, a treating Pharm.D., opined 7 that without substance use, Plaintiff had mild limitations in carrying out very short 8 simple instructions; and moderate limitations in remembering locations and work9 like procedures, understanding and remembering very short and simple 10 instructions, performing activities within a schedule and maintaining regular 11 attendance and being punctual, interacting appropriately with the public, accepting 12 instructions and responding appropriately to criticism from supervisors, getting 13 along with coworkers without distracting them or exhibiting behavioral extremes, 14 maintaining socially appropriate behaviors and adhering to basic standards of 15 neatness and cleanliness, responding appropriately to changes in the work setting, 16 and concentrating, persisting or maintaining pace. Dr. Ballasiotes opined Plaintiff 17 18 5 The regulation that requires an ALJ’s consider opinions from non-acceptable 19 medical sources is found at 20 C.F.R. § 416.920c for claims filed after March 27, 20 2017. The Court applies the regulation in effect at the time the claim was filed. 2 ORDER - 16 Case 1:19-cv-03269-MKD ECF No. 18 filed 12/04/20 PageID.2474 Page 17 of 30 1 had marked limitations in making simple work-related decisions, asking simple 2 questions or requesting assistance, being aware of normal hazards and taking 3 appropriate precautions, interacting with others, and adapting or managing oneself; 4 and severe/extreme limitations in understanding and remembering detailed 5 instructions, carrying out detailed instructions, maintaining attention and 6 concentration for extended periods, sustaining an ordinary routine without special 7 supervision, working in coordination with or proximity to others without being 8 distracted by them, completing a normal workday/workweek without interruptions 9 from psychologically based symptoms and performing at a consistent pace without 10 an unreasonable number/length of breaks, traveling to unfamiliar places or using 11 public transportation, setting realistic goals or making plans independently, and 12 understanding, remember or applying information. Tr. 922-24. Dr. Ballasiotes 13 further opined Plaintiff would be off-task more than 30 percent of the time in a 4014 hour work week, and she would miss four or more days per month if she worked 15 full-time. Tr. 924. The ALJ gave Dr. Ballasiotes’ opinion little weight. Tr. 24. 16 As Dr. Ballasiotes is not an acceptable medical source, the ALJ was required to 17 give germane reasons to reject the opinion. See Ghanim, 763 F.3d at 1161. 18 First, the ALJ found Dr. Ballasiotes’ opinion inconsistent with the other 19 opinions, including the testifying medical expert’s opinion and findings from Dr. 20 VanFossen. Tr. 24. An ALJ may choose to give more weight to an opinion that is 2 ORDER - 17 Case 1:19-cv-03269-MKD ECF No. 18 filed 12/04/20 PageID.2475 Page 18 of 30 1 more consistent with the evidence in the record. 20 C.F.R. § 416.927(c)(4) (“[T]he 2 more consistent a medical opinion is with the record as a whole, the more weight 3 we will give to that medical opinion.”); Nguyen, 100 F.3d at 1464. Relevant 4 factors when evaluating a medical opinion include the amount of relevant evidence 5 that supports the opinion, the quality of the explanation provided in the opinion, 6 and the consistency of the medical opinion with the record as a whole. 7 Lingenfelter v. Astrue, 504 F.3d 1028, 1042 (9th Cir. 2007); Orn v. Astrue, 495 8 F.3d 625, 631 (9th Cir. 2007); 20 C.F.R. § 416.927(c)(6) (assessing the extent to 9 which a medical source is “familiar with the other information in [the claimant’s] 10 case record”). 11 The ALJ observed that Dr. Ballasiotes provided an opinion consistent with 12 disability absent substance abuse, which was inconsistent with other medical 13 sources in the record, including Dr. VanFossen and Dr. Winfrey’s opinions. Tr. 14 24. The ALJ specifically noted that Dr. Ballasiotes did not provide any discussion 15 or consideration of the impacts of substance abuse on Plaintiff’s functioning. Id. 16 As discussed supra, Dr. Winfrey opined Plaintiff’s DAA use is a material 17 contributing factor to her disability. Plaintiff contends the ALJ should not have 18 relied on Dr. Winfrey’s testimony because she had not read the entire record. Dr. 19 Winfrey testified she had reviewed the file before rendering her opinion but did not 20 “review every page in the Comprehensive Healthcare records” and she hoped she 2 ORDER - 18 Case 1:19-cv-03269-MKD ECF No. 18 filed 12/04/20 PageID.2476 Page 19 of 30 1 had a “good enough summary.” Tr. 41. The opinion of a nonexamining physician 2 may serve as substantial evidence if it is supported by other evidence in the record 3 and is consistent with it. Andrews, 53 F.3d at 1041. Here, Dr. Winfrey’s 4 testimony demonstrates that she had sufficient knowledge of the record to form her 5 opinion. Further, Dr. Winfrey had access to more records than the other providers, 6 including the records demonstrating improvement with sobriety. Dr. Winfrey’s 7 opinion that substance use is a material factor of Plaintiff’s disability is supported 8 by substantial evidence for the reasons discussed herein. 9 The ALJ also relied on the opinions of Brian VanFossen, Ph.D., a reviewing 10 source, to reject Dr. Ballasiotes’ opinion. Tr. 24. In July 2016, Dr. VanFossen 11 reviewed the records from examining source Dr. R.A. Cline, and diagnosed 12 Plaintiff with unspecified psychotic disorder, but found Dr. Cline’s diagnoses of 13 cannabis use disorder and PTSD were not supported, and noted there may be 14 another substance use disorder given Dr. Cline’s indication that substance-induced 15 psychosis should be ruled out. Tr. 709. Dr. VanFossen opined Dr. Cline’s 16 assessment was generally consistent with the evidence, and opined Plaintiff’s 17 limitations were not primarily due to substance abuse, but also noted that follow-up 18 was needed to assess Plaintiff during a longer period of sobriety, to determine if 19 Plaintiff was eligible for ongoing DSHS benefits. Tr. 709. In August 2017, Dr. 20 VanFossen again reviewed Dr. Cline’s records and reviewed July 2017 records 2 ORDER - 19 Case 1:19-cv-03269-MKD ECF No. 18 filed 12/04/20 PageID.2477 Page 20 of 30 1 from Comprehensive Healthcare, and diagnosed Plaintiff with unspecified 2 psychotic disorder, and noted methamphetamine use disorder should have been 3 considered. Tr. 711. Dr. VanFossen opined Dr. Cline’s opinion that Plaintiff had 4 some mild limitations was an underestimate and moderate limitations better 5 reflected the evidence, but found it was unclear if Plaintiff’s limitations were 6 primarily due to substance abuse. Id. Dr. VanFossen’s opinion conflicts with Dr. 7 Ballasiotes given Dr. VanFossen’s statements that it is unclear if Plaintiff’s 8 limitations are primarily due to substance use, and that follow-up is needed during 9 a period of sobriety. The conflicts between Dr. Ballasiotes’ opinion and the 10 opinions of the reviewing doctors was a germane reason to reject Dr. Ballasiotes’ 11 opinion. 12 Second, the ALJ found Dr. Ballasiotes’ opinion consisted of a checkbox 13 form without sufficient explanation for the opinion. Tr. 24. The Social Security 14 regulations “give more weight to opinions that are explained than to those that are 15 not.” Holohan, 246 F.3d at 1202. “[T]he ALJ need not accept the opinion of any 16 physician, including a treating physician, if that opinion is brief, conclusory and 17 inadequately supported by clinical findings.” Bray, 554 at 1228. Dr. Ballasiotes’ 18 opinion consists entirely of checked boxes, and does not contain any explanation 19 for the opinion, any citations to objective evidence to support the opinion, nor does 20 2 ORDER - 20 Case 1:19-cv-03269-MKD ECF No. 18 filed 12/04/20 PageID.2478 Page 21 of 30 1 it contain any diagnoses. Tr. 922-25. This was a germane reason to reject Dr. 2 Ballasiotes’ opinion. 3 Third, the ALJ found Dr. Ballasiotes did not consider the impact of 4 Plaintiff’s substance use. Tr. 24. An ALJ may discount a medical opinion that 5 does not consider a claimant’s ongoing substance abuse. Cothrell v. Berryhill, 742 6 Fed. App’x 232, 236 (9th Cir. July 18, 2018) (unpublished opinion); Chavez v. 7 Colvin, No. 3:14-cv-01178-JE, 2016 WL 8731796, at *8 (D. Or. July 25, 2016) 8 (unpublished opinion). Dr. Ballasiotes’ opinion has a note at the bottom that states 9 the limitations contained in the opinion do not include limitations from current 10 alcohol or drug use. Tr. 924. However, Dr. Ballasiotes’ opinion does not contain 11 an explanation regarding his familiarity with Plaintiff’s substance use, her 12 improvement with sobriety, nor what diagnoses cause the limitations. Given the 13 extent of substance abuse present in Plaintiff’s history, the failure to provide any 14 discussion regarding the impact of such abuse on the opined limitations and 15 severity of the limitations was a germane reason to reject the opinion. 16 2. Dr. Cline 17 R.A. Cline, Psy.D., examined Plaintiff in June 2016. Tr. 474-79. She 18 diagnosed Plaintiff with unspecified psychotic disorder, marijuana use disorder, 19 and PTSD. Tr. 476. She opined Plaintiff had no to mild limitations in 20 understanding, remembering, or persisting in tasks following very short and simple 2 ORDER - 21 Case 1:19-cv-03269-MKD ECF No. 18 filed 12/04/20 PageID.2479 Page 22 of 30 1 instructions, learning new tasks, performing routine tasks without special 2 supervision, adapting to changes in a routine work setting, being aware of normal 3 hazards and taking appropriate precautions, and asking simple questions or taking 4 appropriate precautions; moderate limitations in understanding, remembering, and 5 persisting in tasks by following detailed instructions, performing activities within a 6 schedule and maintaining regular attendance, making simple work-related 7 decisions, and setting realistic goals and planning independently; and marked 8 limitations in communicating and performing effectively in a work setting, 9 maintaining appropriate behavior in a work setting, and completing a normal 10 workday/workweek without interruptions from psychologically-based symptoms. 11 Tr. 477. She opined Plaintiff overall had a moderate severity rating. Id. She 12 stated it was unclear if Plaintiff’s limitations were due to substance abuse. Tr. 478. 13 The ALJ gave Dr. Cline’s opinion partial weight. Tr. 23. As Dr. Cline’s opinion 14 was contradicted by the opinions of Dr. Winfrey, Tr. 42, 45-46 and Rita Flanagan, 15 Ph.D., Tr. 100-01, she was required to give specific and legitimate reasons, 16 supported by substantial evidence to reject the opinion. See Bayliss, 427 F.3d at 17 1216. 18 First, the ALJ noted that Dr. Cline had reviewed only one medical record 19 before rendering her opinion,. Tr. 23. The extent to which a medical source is 20 “familiar with the other information in [the claimant’s] case record” is relevant in 2 ORDER - 22 Case 1:19-cv-03269-MKD ECF No. 18 filed 12/04/20 PageID.2480 Page 23 of 30 1 assessing the weight of that source’s medical opinion. See 20 C.F.R. § 2 416.927(c)(6). The only record Dr. Cline reviewed was an assessment conducted 3 in 2011, five years prior to the alleged onset date. Tr. 23, 713. As such, Dr. Cline 4 lacked access to medical records indicating Plaintiff testified positive for 5 methamphetamine less than two months prior to Dr. Cline’s examination, Tr. 495, 6 although Plaintiff reported at the examination she had tested positive for a drug 35 7 days prior, but she did “not know how this happened, or what she used, or what her 8 UA showed,” Tr. 714. Dr. Cline also lacked access to the additional records and 9 medical opinions that address Plaintiff’s substance abuse, unlike Dr. Winfrey, who 10 had access to the entire record including records demonstrating improvement with 11 periods of sobriety. This was a specific and legitimate reason, supported by 12 substantial evidence, to reject Dr. Cline’s opinion. 13 The ALJ also noted that Dr. VanFossen found Dr. Cline’s diagnoses of 14 cannabis use disorder and PTSD were not supported, and Dr. VanFossen stated 15 that Dr. Cline failing to diagnose any other substance use disorders appeared to be 16 an oversight, given Dr. Cline’s statement that there is a rule out diagnosis of 17 substance induced psychotic disorder. Tr. 24 (citing Tr. 719-20). Further, any 18 error in rejecting Dr. Cline’s opinion would be harmless as Dr. Cline did not render 19 an opinion as to whether Plaintiff’s substance use is a material contributing factor 20 2 ORDER - 23 Case 1:19-cv-03269-MKD ECF No. 18 filed 12/04/20 PageID.2481 Page 24 of 30 1 to her disability. Tr. 707, see Molina, 674 F.3d at 1115. Plaintiff is not entitled to 2 remand on these grounds. 3 4 C. Plaintiff’s Symptom Claims Plaintiff faults the ALJ for failing to rely on reasons that were clear and 5 convincing in discrediting her symptom claims. ECF No. 14 at 18-20. An ALJ 6 engages in a two-step analysis to determine whether to discount a claimant’s 7 testimony regarding subjective symptoms. SSR 16–3p, 2016 WL 1119029, at *2. 8 “First, the ALJ must determine whether there is objective medical evidence of an 9 underlying impairment which could reasonably be expected to produce the pain or 10 other symptoms alleged.” Molina, 674 F.3d at 1112 (quotation marks omitted). 11 “The claimant is not required to show that [the claimant’s] impairment could 12 reasonably be expected to cause the severity of the symptom [the claimant] has 13 alleged; [the claimant] need only show that it could reasonably have caused some 14 degree of the symptom.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). 15 Second, “[i]f the claimant meets the first test and there is no evidence of 16 malingering, the ALJ can only reject the claimant’s testimony about the severity of 17 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 18 rejection.” Ghanim, 763 F.3d at 1163. General findings are insufficient; rather, 19 the ALJ must identify what symptom claims are being discounted and what 20 evidence undermines these claims. Id. (quoting Lester, 81 F.3d at 834; Thomas v. 2 ORDER - 24 Case 1:19-cv-03269-MKD ECF No. 18 filed 12/04/20 PageID.2482 Page 25 of 30 1 Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (requiring the ALJ to sufficiently 2 explain why it discounted claimant’s symptom claims)). “The clear and 3 convincing [evidence] standard is the most demanding required in Social Security 4 cases.” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v. 5 Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). 6 Factors to be considered in evaluating the intensity, persistence, and limiting 7 effects of a claimant’s symptoms include: 1) daily activities; 2) the location, 8 duration, frequency, and intensity of pain or other symptoms; 3) factors that 9 precipitate and aggravate the symptoms; 4) the type, dosage, effectiveness, and 10 side effects of any medication an individual takes or has taken to alleviate pain or 11 other symptoms; 5) treatment, other than medication, an individual receives or has 12 received for relief of pain or other symptoms; 6) any measures other than treatment 13 an individual uses or has used to relieve pain or other symptoms; and 7) any other 14 factors concerning an individual’s functional limitations and restrictions due to 15 pain or other symptoms. SSR 16-3p, 2016 WL 1119029, at *7; 20 C.F.R. § 16 416.929(c). The ALJ is instructed to “consider all of the evidence in an 17 individual’s record,” to “determine how symptoms limit ability to perform work18 related activities.” SSR 16-3p, 2016 WL 1119029, at *2. 19 In the section finding Plaintiff’s substance use is material to her disability, 20 the ALJ found Plaintiff “is credible concerning her testimony.” Tr. 22. The ALJ 2 ORDER - 25 Case 1:19-cv-03269-MKD ECF No. 18 filed 12/04/20 PageID.2483 Page 26 of 30 1 then found that Plaintiff’s medically determinable impairments could reasonably 2 be expected to cause some of the alleged symptoms, but that if Plaintiff stopped 3 using substances, Plaintiff’s statements concerning the intensity, persistence, and 4 limiting effects of her symptoms were not entirely consistent with the evidence. 5 Tr. 26. 6 1. Activities of Daily Living 7 The ALJ found Plaintiff’s activities of daily living are inconsistent with her 8 symptom complaints. Id. The ALJ may consider a claimant’s activities that 9 undermine reported symptoms. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 10 200). If a claimant can spend a substantial part of the day engaged in pursuits 11 involving the performance of exertional or non-exertional functions, the ALJ may 12 find these activities inconsistent with the reported disabling symptoms. Fair v. 13 Bowen, 885 F.2d 597, 603 (9th Cir. 1989); Molina, 674 F.3d at 1113. “While a 14 claimant need not vegetate in a dark room in order to be eligible for benefits, the 15 ALJ may discount a claimant’s symptom claims when the claimant reports 16 participation in everyday activities indicating capacities that are transferable to a 17 work setting” or when activities “contradict claims of a totally debilitating 18 impairment.” Molina, 674 F.3d at 1112-13. 19 The ALJ found Plaintiff’s reported activities of educating herself on the 20 computer, walking her dog, creating music with friends, and attending church were 2 ORDER - 26 Case 1:19-cv-03269-MKD ECF No. 18 filed 12/04/20 PageID.2484 Page 27 of 30 1 inconsistent with her symptom complaints. Tr. 26. Plaintiff argues the ALJ erred 2 as the listed activities were reported as interests while she was in an inpatient 3 psychiatric facility. ECF No. 14 at 19. However, the ALJ also found Plaintiff’s 4 work at a farmer’s market was inconsistent with her reported difficulty engaging 5 with others. Tr. 26. The medical records state Plaintiff assisted a friend at a 6 market on multiple occasions, and it was a goal for Plaintiff to go to a farmer’s 7 market to help a friend four times per month. Tr. 604, 608, 617, 626, 634. The 8 ALJ also noted the third-party function report indicated Plaintiff can cook daily, 9 when not in a manic state, and she can clean, handle laundry, and travel to the 10 store. Tr. 27 (citing Tr. 303-10). While Plaintiff contends the noted activities were 11 only interests that she was not participating in, ECF No. 14 at 19, the third-party 12 function report also indicates Plaintiff listens to music, uses the computer, engages 13 in coloring, painting, bedazzling clothing, and communicating with others through 14 texting on a daily basis, she has no problems getting along with family, friends, or 15 others, and she goes outside two to three times per week, including going to 16 Goodwill and the grocery store, although she does not like going anywhere alone. 17 Tr. 304, 306, 308. 18 On this record, the ALJ reasonably concluded that Plaintiff’s activities of 19 daily living were inconsistent with her symptom claims. This finding is supported 20 2 ORDER - 27 Case 1:19-cv-03269-MKD ECF No. 18 filed 12/04/20 PageID.2485 Page 28 of 30 1 by substantial evidence and was a clear and convincing reason to discount 2 Plaintiff’s symptom complaints. 3 2. Objective Medical Evidence 4 The ALJ found the objective medical evidence did not support Plaintiff’s 5 symptom complaints. Tr. 26-27. An ALJ may not discredit a claimant’s pain 6 testimony and deny benefits solely because the subjective complaints alleged is not 7 supported by objective medical evidence. Rollins v. Massanari, 261 F.3d 853, 856 8 (9th Cir. 2001); Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir. 1991); Fair, 9 885 F.2d at 601. Medical evidence is a relevant factor, however, in determining 10 the severity of a claimant’s symptoms and their disabling effects. Rollins, 261 11 F.3d at 857; 20 C.F.R. § 416.929I(2). Minimal objective evidence is a factor 12 which may be relied upon in discrediting a claimant’s testimony, although it may 13 not be the only factor. See Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005). 14 While Plaintiff alleges significant limitations due to her mental health 15 symptoms, the ALJ noted that while Plaintiff had some abnormalities on 16 examination, Plaintiff was observed as cooperative, with normal mood, affect, eye 17 contact, speech, thoughts, cognitive functioning, memory, attention, and 18 concentration on multiple occasions. Tr. 26-27 (citing, e.g., Tr. 523, 622, 633, 19 638). The ALJ also gave great weight to the opinion of Dr. Winfrey, Tr. 22, who 20 supported her opinion with references to the record that demonstrated Plaintiff’s 2 ORDER - 28 Case 1:19-cv-03269-MKD ECF No. 18 filed 12/04/20 PageID.2486 Page 29 of 30 1 symptoms are largely related to her substance abuse, such as being placed in 2 inpatient care due to symptoms that manifested during active substance abuse, Tr. 3 48, and showed improvement with sobriety, Tr. 50. 4 On this record, the ALJ reasonably concluded that the objective evidence 5 was inconsistent with Plaintiff’s symptom claims. This finding is supported by 6 substantial evidence and was a clear and convincing reason, along with the other 7 reason offered, to discount Plaintiff’s symptom complaints. Plaintiff is not entitled 8 to remand on these grounds. 9 10 CONCLUSION Having reviewed the record and the ALJ’s findings, the Court concludes the 11 ALJ’s decision is not supported by substantial evidence and is not free of harmful 12 legal error. Accordingly, IT IS HEREBY ORDERED: 13 1. Plaintiff’s Motion for Summary Judgment, ECF No. 14, is DENIED. 14 2. Defendant’s Motion for Summary Judgment, ECF No. 16, is 15 GRANTED. 16 3. The Clerk’s Office shall enter JUDGMENT in favor of Defendant. 17 18 19 20 2 ORDER - 29 Case 1:19-cv-03269-MKD 1 ECF No. 18 filed 12/04/20 PageID.2487 Page 30 of 30 The District Court Executive is directed to file this Order, provide copies to 2 counsel, and CLOSE THE FILE. 3 DATED December 4, 2020. 4 s/Mary K. Dimke MARY K. DIMKE UNITED STATES MAGISTRATE JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 2 ORDER - 30
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