Cameron v. Colvin, No. 2:2013cv00403 - Document 18 (E.D. Wash. 2015)

Court Description: ORDER GRANTING DEFENDANTS MOTION FOR SUMMARY JUDGMENT. Plaintiffs Motion for Summary Judgment ECF No. 14 is DENIED. Defendants Motion for Summary Judgment ECF No. 16 is GRANTED. The file is CLOSED. Signed by Judge Thomas O. Rice. (LLH, Courtroom Deputy)

Download PDF

Cameron v. Colvin Doc. 18 1 2 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 KAREN LEONE CAMERON, NO: 13-CV-0403-TOR Plaintiff, 8 9 10 11 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT v. CAROLYN W. COLVIN, Acting Commissioner of Social Security Administration, Defendant. 12 13 14 BEFORE THE COURT are the parties’ cross-motions for summary 15 judgment. (ECF Nos. 14 and 16). Plaintiff is represented by Dana C. Madsen. 16 Defendant is represented by L. Jamala Edwards. This matter was submitted for 17 consideration without oral argument. The Court has reviewed the administrative 18 record and the parties’ completed briefing and is fully informed. For the reasons 19 discussed below, the Court grants Defendant’s motion and denies Plaintiff’s 20 motion. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 1 Dockets.Justia.com 1 2 3 4 JURISDICTION The Court has jurisdiction over this case pursuant to 42 U.S.C. § 405(g). STANDARD OF REVIEW 5 A district court’s review of a final decision of the Commissioner of Social 6 Security is governed by 42 U.S.C. § 405(g). The scope of review under §405(g) is 7 limited: the Commissioner’s decision will be disturbed “only if it is not supported 8 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 9 1158-59 (9th Cir. 2012) (citing 42 U.S.C. § 405(g)). “Substantial evidence” means 10 relevant evidence that “a reasonable mind might accept as adequate to support a 11 conclusion.” Id. at 1159 (quotation and citation omitted). Stated differently, 12 substantial evidence equates to “more than a mere scintilla[,] but less than a 13 preponderance.” Id. (quotation and citation omitted). In determining whether this 14 standard has been satisfied, a reviewing court must consider the entire record as a 15 whole rather than searching for supporting evidence in isolation. Id. 16 In reviewing a denial of benefits, a district court may not substitute its 17 judgment for that of the Commissioner. 18 susceptible to more than one rational interpretation, [the court] must uphold the 19 ALJ’s findings if they are supported by inferences reasonably drawn from the 20 record.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). Further, a district If the evidence in the record “is ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 2 1 court “may not reverse an ALJ’s decision on account of an error that is harmless.” 2 Id. at 1111. An error is harmless “where it is inconsequential to the [ALJ’s] 3 ultimate nondisability determination.” Id. at 1115 (quotation and citation omitted). 4 The party appealing the ALJ’s decision generally bears the burden of establishing 5 that it was harmed. Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009). 6 FIVE-STEP SEQUENTIAL EVALUATION PROCESS 7 A claimant must satisfy two conditions to be considered “disabled” within 8 the meaning of the Social Security Act. First, the claimant must be “unable to 9 engage in any substantial gainful activity by reason of any medically determinable 10 physical or mental impairment which can be expected to result in death or which 11 has lasted or can be expected to last for a continuous period of not less than twelve 12 months.” 42 U.S.C. § 423(d)(1)(A). Second, the claimant’s impairment must be 13 “of such severity that he is not only unable to do his previous work[,] but cannot, 14 considering his age, education, and work experience, engage in any other kind of 15 substantial gainful work which exists in the national economy.” 42 U.S.C. 16 § 423(d)(2)(A). 17 The Commissioner has established a five-step sequential analysis to 18 determine whether a claimant satisfies the above criteria. 19 § 404.1520(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s 20 work activity. 20 C.F.R. § 404.1520(a)(4)(i). If the claimant is engaged in See 20 C.F.R. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 3 1 “substantial gainful activity,” the Commissioner must find that the claimant is not 2 disabled. 20 C.F.R. § 404.1520(b). 3 If the claimant is not engaged in substantial gainful activities, the analysis 4 proceeds to step two. At this step, the Commissioner considers the severity of the 5 claimant’s impairment. 20 C.F.R. § 404.1520(a)(4)(ii). If the claimant suffers from 6 “any impairment or combination of impairments which significantly limits [his or 7 her] physical or mental ability to do basic work activities,” the analysis proceeds to 8 step three. 20 C.F.R. § 404.1520(c). If the claimant’s impairment does not satisfy 9 this severity threshold, however, the Commissioner must find that the claimant is 10 not disabled. Id. 11 At step three, the Commissioner compares the claimant’s impairment to 12 several impairments recognized by the Commissioner to be so severe as to 13 preclude a person from engaging in substantial gainful activity. 20 C.F.R. 14 § 404.1520(a)(4)(iii). If the impairment is as severe or more severe than one of the 15 enumerated impairments, the Commissioner must find the claimant disabled and 16 award benefits. 20 C.F.R. § 404.1520(d). 17 If the severity of the claimant’s impairment does meet or exceed the severity 18 of the enumerated impairments, the Commissioner must pause to assess the 19 claimant’s “residual functional capacity.” Residual functional capacity (“RFC”), 20 defined generally as the claimant’s ability to perform physical and mental work ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 4 1 activities on a sustained basis despite his or her limitations (20 C.F.R. 2 § 404.1545(a)(1)), is relevant to both the fourth and fifth steps of the analysis. 3 At step four, the Commissioner considers whether, in view of the claimant’s 4 RFC, the claimant is capable of performing work that he or she has performed in 5 the past (“past relevant work”). 20 C.F.R. § 404.1520(a)(4)(iv). If the claimant is 6 capable of performing past relevant work, the Commissioner must find that the 7 claimant is not disabled. 20 C.F.R. § 404.1520(f). If the claimant is incapable of 8 performing such work, the analysis proceeds to step five. 9 At step five, the Commissioner considers whether, in view of the claimant’s 10 RFC, the claimant is capable of performing other work in the national economy. 11 20 C.F.R. § 404.1520(a)(4)(v). In making this determination, the Commissioner 12 must also consider vocational factors such as the claimant’s age, education and 13 work experience. Id. If the claimant is capable of adjusting to other work, the 14 Commissioner must find that the claimant is not disabled. 20 C.F.R. 15 § 404.1520(g)(1). If the claimant is not capable of adjusting to other work, the 16 analysis concludes with a finding that the claimant is disabled and is therefore 17 entitled to benefits. Id. 18 The claimant bears the burden of proof at steps one through four above. 19 Lockwood v. Comm’r of Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010). If 20 the analysis proceeds to step five, the burden shifts to the Commissioner to ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 5 1 establish that (1) the claimant is capable of performing other work; and (2) such 2 work “exists in significant numbers in the national economy.” 20 C.F.R. 3 § 404.1560(c); Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). 4 ALJ’S FINDINGS 5 Plaintiff filed an application for disability insurance benefits on September 6 28, 2010, alleging a disability onset date of September 3, 2010. Tr. 74-75. This 7 application was denied initially and upon reconsideration, and Plaintiff requested a 8 hearing. Tr. 106-108, 111-113, 117-118. 9 Administrative Law Judge on July 25, 2012. Tr. 40-73. The ALJ rendered a 10 A hearing was held before an decision denying Plaintiff benefits on August 22, 2012. Tr. 20-34. 11 The ALJ found that Plaintiff met the insured status requirements of Title II 12 of the Social Security Act through December 31, 2014. Tr. 22. At step one, the 13 ALJ found that Plaintiff had not engaged in substantial gainful activity since 14 September 3, 2010. Tr. 22. At step two, the ALJ found that Plaintiff had severe 15 impairments consisting of heroin addiction, depression, anxiety, hepatitis C, 16 gastroesophageal reflux disease (GERD), chronic neck pain, right foot pain, 17 shoulder pain, arthritis, and MRSA. Tr. 22-25. At step three, the ALJ found that 18 Plaintiff’s impairments, including substance use disorder, would meet sections 19 12.04, 12.05, and 12.09 of 20 C.F.R. Part 404, Subpart P, Appendix 1, which 20 would direct a finding of disabled. Tr. 25-26. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 6 1 However, if substance abuse is a contributing factor material to the 2 determination of disability, the ALJ must then evaluate whether Plaintiff’s physical 3 and mental limitations would remain if she stopped abusing drugs. See Tr. 22; 20 4 C.F.R. § 404.1535. During this second look, the ALJ found that if Plaintiff 5 stopped the substance abuse, she would continue to have a severe impairment or 6 combination of impairments at step two. Tr. 26. 7 At step three, the ALJ found that if Plaintiff stopped the substance abuse, she 8 would not have an impairment or combination of impairments that meets or 9 medically equals any of the impairments listed in 20 C.F.R. Part 404, Subpart P, 10 Appendix 1. Tr. 26-28. The ALJ then determined that if Plaintiff stopped the 11 substance abuse she would have the RFC to: 12 13 14 15 16 17 18 19 20 perform light work as defined in 20 C.F.R. § 404.1567(b) with the ability to operate motor vehicles or other machinery that requires use of both lower extremities. . . . the ability to carry out very short and simple instructions; carry out detailed instructions; perform activities within a schedule, maintain attendance, and be punctual within customary tolerances; sustain an ordinary routine without special supervision; work in coordination with or in proximity to others without being distracted by them; make simple work-related decisions; and complete a normal workday and workweek without interruptions from psychologically based symptoms and perform at a consistent pace without an unreasonable number and length of rest periods. Regarding social interaction abilities, the claimant has the ability to ask simple questions or request assistance; maintain socially appropriate behavior and adhere to basic standards of neatness and cleanliness. The claimant is able to have superficial contact with the public, coworkers, and supervisors. Regarding the claimant's adaptive abilities, she has the ability to respond to changes in work setting; be aware of normal hazards and take appropriate precautions; travel in ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 7 1 unfamiliar places or use public transportation; and set realistic goals or make plans independently of others. 2 3 Tr. 28-29. 4 At step four, the ALJ found that Plaintiff would be able to perform past 5 relevant work as a licensing clerk if she stopped the substance abuse because the 6 work does not require the performance of work-related activities precluded by her 7 residual functional capacity. Tr. 32. At this point, the ALJ determined that Plaintiff 8 was not disabled because she had the RFC to do her past relevant work. Id. The 9 ALJ then considered the vocational expert’s opinion that Plaintiff might need 10 additional supervision considering her RFC. Id. The ALJ made an alternative 11 finding at step five and found that there were other jobs that existed in significant 12 numbers in the national economy that Plaintiff can also perform considering her 13 age, education, work experience, and RFC. Tr. 32-34. 14 The ALJ concluded that the substance use disorder was a contributing factor 15 material to the determination of disability because Plaintiff would not have been 16 disabled if she stopped the substance use. Tr. 34. The ALJ found Plaintiff not 17 disabled. Id. 18 The Appeals Council denied Plaintiff’s request for review on August 22, 19 2012, making the ALJ’s decision the Commissioner’s final decision for purposes 20 of judicial review. Tr. 1-5; 20 C.F.R. § 404.981. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 8 1 2 3 4 5 ISSUES From Plaintiff’s brief, the Court has gleaned three issues she raises for review: 1. Whether Plaintiff’s substance abuse was material to the ALJ’s disability determination (ECF No. 14 at 11); 6 2. Whether the ALJ erred in determining the credibility of Plaintiff’s 7 statements regarding the nature and severity of her symptoms (id.); 8 and 9 3. Whether the ALJ properly considered the medical opinions of 10 Jerome Dirkers, M.D., John Arnold, Ph.D., and Kent Layton, Ph.D. 11 (id. at 12-13). 12 13 DISCUSSION A. Materiality of Substance Use 14 Plaintiff contends the ALJ erred in determining that substance abuse was 15 material to the disability determination. Id. at 11. The entirety of Plaintiff’s 16 argument is that “Dr. Arnold’s determination that the limitations he determined 17 were without the affects (sic) of substance abuse. (See TR 298)” and “Dr. Dirkers, 18 [] also unequivocally states that the limitations he determined were not caused by 19 alcohol or illicit drugs. (TR 660).” 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 9 1 If an ALJ finds Plaintiff disabled and there is medical evidence of her drug 2 addiction or alcoholism, the ALJ must determine whether her drug addiction or 3 alcoholism is a contributing factor material to the determination of disability. See 4 20 C.F.R. § 404.1535(a). When there is medical evidence of drug addiction or 5 alcoholism, the key issue the ALJ examines in “determining whether drug 6 addiction or alcoholism is a contributing factor material to the determination of 7 disability is whether [the ALJ] would still find [claimant] disabled if [claimant] 8 stopped using drugs or alcohol.” 20 C.F.R. § 404.1535(b)(1). The ALJ evaluates 9 which of the current physical and mental limitations would still remain if Plaintiff 10 stopped using drugs or alcohol and then determines whether any or all of the 11 remaining limitations would be disabling. 20 C.F.R. § 404.1535(b)(2). The ALJ is 12 required to conduct the five-step sequential evaluation a second time to consider 13 whether Plaintiff would still be disabled absent substance abuse. See Bustamante v. 14 Massanari, 262 F.3d 949, 955 (9th Cir. 2001). 15 Here, the ALJ determined that Plaintiff’s impairments, including the 16 substance use disorder, met the listings in 20 C.F.R., Part 404, Subpart P, 17 Appendix 1. Tr. 25-26. Thus, the ALJ tentatively found Plaintiff to be disabled at 18 step three of the initial five-step sequential inquiry. Substance abuse was a 19 prominent aspect of her medical record. See Tr. 23 (30 years of heroin addiction, 20 muscling heroin, history of drinking a quart of alcohol on a daily basis until ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 10 1 January 2010, cocaine use, methamphetamine use, methadone use, oxycontin use, 2 and more). The ALJ cited to a report from Dr. Dirkers that summarized the 3 problems Plaintiff was experiencing while using heroin at a time when she was 4 undergoing chemotherapy, including anxiety and drug addiction. Tr. 25-26, 563. 5 Plaintiff argues that Dr. Dirkers did not say that her drug abuse was responsible for 6 her anxiety, therefore, she argues that her substance abuse was a secondary issue. 7 ECF No. 17 at 2. Even if this were true, which Dr. Dirkers did not explain in this 8 fashion, a secondary issue can still be material to a determination of disability. 9 The ALJ noted that Plaintiff claimed she had only just quit all illegal drugs as of 10 February 2012. Tr. 29 11 Substantial evidence, indeed overwhelming evidence supports the ALJ’s 12 determination that substance abuse was a contributing factor material to the initial 13 determination of disability. Therefore, after completing the initial five-step 14 sequential inquiry, the ALJ appropriately initiated the second five-step inquiry. 15 B. Plaintiff’s Credibility Regarding Her Symptoms 16 Plaintiff alleges that the ALJ erred in determining that her symptoms were 17 not credible. ECF No. 14 at 11. In Social Security proceedings, the claimant must 18 prove the existence of a physical or mental impairment with “medical evidence 19 consisting of signs, symptoms, and laboratory findings.” 20 C.F.R. §§ 416.908, 20 416.927. A claimant’s statements about his or her symptoms alone will not suffice. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 11 1 20 C.F.R. §§ 416.908, 416.927. The claimant is required “to produce medical 2 evidence of an underlying impairment which is reasonably likely to be the cause of 3 the alleged pain.” Bunnell v. Sullivan, 947 F.2d 341, 343 (9th Cir. 1991) (citation 4 omitted). When the medical evidence is produced, claimant is not required to show 5 “medical findings that support the severity of pain . . . .” Id. This rule recognizes 6 that the severity of the claimant’s symptoms “cannot be objectively verified or 7 measured.” Id. at 347. 8 However, the ALJ may conclude that the claimant’s subjective assessment is 9 unreliable, so long as the ALJ makes “a credibility determination with findings 10 sufficiently specific to permit [a reviewing] court to conclude that the ALJ did not 11 arbitrarily discredit claimant's testimony.” Thomas v. Barnhart, 278 F.3d 947, 958 12 (9th Cir. 2002). In making such a determination, the ALJ may consider at least the 13 following factors: (1) the claimant’s reputation for truthfulness; (2) inconsistencies 14 in the claimant’s testimony or between her testimony and her conduct; (3) the 15 claimant’s daily living activities; (4) the claimant’s work record; and (5) testimony 16 from physicians or third parties concerning the nature, severity, and effect of the 17 claimant’s condition. Id. at 958-59. If the credibility findings “is supported by 18 substantial evidence in the record, [the reviewing court] may not engage in second- 19 guessing.” Id. at 959. If there is no evidence of malingering, the ALJ’s reasons for 20 discrediting the claimant's testimony must be “specific, clear and convincing.” ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 12 1 Chaudhry v. Astrue, 688 F.3d 661, 672 (9th Cir. 2012) (quotation and citation 2 omitted). The ALJ “must specifically identify the testimony she or he finds not to 3 be credible and must explain what evidence undermines the testimony.” Holohan 4 v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001). 5 Here, the ALJ did not arbitrarily discredit claimant’s testimony. The 6 evidentiary record supports the ALJ’s finding that Plaintiff’s pain complaints 7 appeared to be the means for obtaining drugs. Tr. 30. Plaintiff lied to a medical 8 care provider about not taking Suboxone, which prompted the medical care 9 provider to cancel her pain prescription. Tr. 641. Plaintiff also threatened that she 10 would not leave until she received some medication. Id. She eventually left after 11 she was told by the medical care provider that the police would be called. Id. 12 The ALJ cited various aspects of the medical records showing diagnosis and 13 treatment inconsistent with Plaintiff allegations and complaints. Tr. 30. Thus, the 14 ALJ did not arbitrarily discredit Plaintiff’s testimony. The ALJ was specific, clear, 15 and convincing as to which evidence undermined Plaintiff’s symptom allegations. 16 C. Medical Opinions 17 There are three types of physicians: “(1) those who treat the claimant 18 (treating physicians); (2) those who examine but do not treat the claimant 19 (examining physicians); and (3) those who neither examine nor treat the claimant 20 [but who review the claimant’s file] (nonexamining [or reviewing] physicians).” ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 13 1 Holohan v. Massanari, 246 F.3d 1195, 1201–02 (9th Cir. 2001) (brackets in 2 original) (quoting Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995)). “Generally, 3 a treating physician’s opinion carries more weight than an examining physician’s, 4 and an examining physician’s opinion carries more weight than a reviewing 5 physician’s.” Id. “In addition, the regulations give more weight to opinions that 6 are explained than to those that are not . . . and to the opinions of specialists 7 concerning matters relating to their specialty over that of nonspecialists.” Id. 8 (citations omitted). A physician’s opinion may be entitled to little if any weight, 9 when it is an opinion on a matter not related to her or his area of specialization. Id. 10 at 1203, n.2 (citation omitted). 11 A treating physician’s opinions are entitled to substantial weight in social 12 security proceedings. Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 13 (9th Cir. 2009). If a treating or examining physician’s opinion is uncontradicted, 14 an ALJ may reject it only by offering “clear and convincing reasons that are 15 supported by substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th 16 Cir. 2005). “If a treating or examining doctor’s opinion is contradicted by another 17 doctor’s opinion, an ALJ may only reject it by providing specific and legitimate 18 reasons that are supported by substantial evidence.” Id. (citing Lester, 81 F.3d at 19 830-31). However, the ALJ need not accept a physician’s opinion that is “brief, 20 conclusory and inadequately supported by clinical findings.” Bray, 554 F.3d at ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 14 1 1228 (quotation and citation omitted). An ALJ may also reject a treating 2 physician’s opinion which is “based to a large extent on a claimant’s self-reports 3 that have been properly discounted as incredible.” Tommasetti v. Astrue, 533 F.3d 4 1035, 1041 (9th Cir. 2008) (internal and quotation and citation omitted). 5 1. Dr. Arnold 6 Plaintiff argues that the ALJ did not consider significant aspects of the 7 opinion of John Arnold, Ph.D. that his determinations of Plaintiff’s limitations 8 were made without the effects of substance abuse. ECF No. 14 at 12. The ALJ 9 professed to have given “[s]ome weight” “to the form completed by John Arnold, 10 Ph.D., in October 2010, which indicated that the use of alcohol and/or heroin might 11 increase her mental symptoms [Tr. 298].” Tr. 31. 12 Dr. Arnold examined Plaintiff once on October 15, 2010, and opined as to 13 her functional limitations “without the effects of DA & A” (drug addiction and 14 alcoholism). Tr. 298. Dr. Arnold reviewed no prior records, Tr. 296, performed 15 no cognitive testing, id., but recommended a drug addiction and alcoholism 16 assessment be performed, Tr. 300. While Dr. Arnold opined that Plaintiff would 17 have a severe and several marked functional limitations, he also determined that: 18 19 20 [Claimant] will be able to remember locations and simple work like procedures. She will be able to maintain attention and concentration for limited periods. She will be able to make very simple work related decisions. She will be able to ask simple questions but will not be motivated to ask. She will be able to accept instructions. She will be able to use public transportation. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 15 1 Tr. 299. These limitations were incorporated into the ALJ’s RFC finding. Tr. 282 29. Moreover, the ALJ contrasted her treating physician’s assessment, Dr. John 3 Moulton, made 4-days earlier than Dr. Arnold’s assessment, finding that Plaintiff 4 was “moderately depressed but still able to attend and respond to questions with a 5 logical flow of ideas. No significant cognitive impairment was noted and her 6 judgment and insight were adequate for everyday living [Tr. 280].” Tr. 30. 7 The ALJ did not err by only giving only some weight to Dr. Arnold’s 8 narrowly drawn opinion. 9 2. Dr. Dirkers 10 Plaintiff argues the ALJ should have given greater weight to Dr. Dirkers’ 11 August 10, 2012 disability opinion [Tr. 652-57]. ECF No. 14 at 12. This opinion, 12 along with other evidence, was not before the ALJ, but rather submitted to the 13 Appeals Council after the ALJ’s opinion was issued. Tr. 651-706. 14 “[W]hen a claimant submits evidence for the first time to the Appeals 15 Council, which considers that evidence in denying review of the ALJ's decision, 16 the new evidence is part of the administrative record, which the district court must 17 consider in determining whether the Commissioner's decision is supported by 18 substantial evidence.” Brewes v. Comm'r of Soc. Sec. Admin., 682 F.3d 1157, 19 1159–60 (9th Cir. 2012); see also Ramirez v. Shalala, 8 F.3d 1449, 1451–52 (9th 20 Cir. 1993). ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 16 1 Here, the Appeals Council considered the new evidence and found it failed 2 to serve as a basis for reversing the ALJ's decision. Tr. 1-2, 4. The Court agrees. 3 Dr. Dirkers’ treatment records, Exhibit 25F, were already part of the administrative 4 record before the ALJ. Tr. 559-66. Exhibit 29F is merely a reprint of previously 5 submitted records with Dr. Dirkers’ added statement that Plaintiff’s mental 6 limitations are “not caused by use of alcohol or illicit drugs.” Tr. 660. Causation 7 is not, however, the issue. The ALJ found that substance abuse exacerbated her 8 mental symptoms. Tr. 31. Dr. Dirkers does not address this issue, nor does his 9 tardy mental functional capacity assessment separately identify her mental 10 limitations that would remain if she stopped abusing drugs. Tr. 652-57; see 20 11 C.F.R. § 404.1535. Dr. Dirkers’ last treated Plaintiff in April 2012, but that was 12 only a matter of weeks after Plaintiff claimed to have stopped using illegal drugs 13 (Tr. 58). Thus, no error has been shown. 14 3. Dr. Layton 15 Plaintiff argues that the ALJ erred by giving great weight to the opinion of 16 Dr. Layton, a clinical psychologist, medical expert, when he did not examine her. 17 ECF No. 14 at 13. Plaintiff complains that Dr. Layton gave an opinion concerning 18 her residual functional capacity. Id. Plaintiff further argues that Dr. Layton’s 19 opinion cannot by itself constitute substantial evidence that justifies rejection of 20 Dr. Dirkers’ and Dr. Arnold’s opinions. Id. Plaintiff appears to concede that Dr. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 17 1 Layton was the only source to have seen all of the medical evidence. Id. 2 A non-examining medical expert’s opinion “may constitute substantial 3 evidence when it is consistent with other independent evidence in the record.” 4 Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (citing Magallanes v. 5 Bowen, 881 F.2d 747, 752 (9th Cir. 1989)). Here, as explained above, the ALJ did 6 not use Dr. Layton’s opinion to reject Dr. Dirkers’ and Dr. Arnold’s opinions. His 7 opinion was given great weight in the overall analysis of Plaintiff’s alleged 8 disability because it was consistent with the medical record and he was the only 9 physician to have seen all of the medical evidence. Tr. 30. Plaintiff does not 10 otherwise identify any aspect of Dr. Layton’s opinion that is not supported by 11 substantial evidence in the record. Thus, no error has been shown. 12 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 16 17 18 GRANTED. The District Court Executive is hereby directed to file this Order, enter JUDGMENT for Defendant, provide copies to counsel, and CLOSE the file. DATED March 27, 2015. 19 20 THOMAS O. RICE United States District Judge ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 18

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.