Savage v. Commissioner of Social Security, No. 2:2018cv00309 - Document 14 (E.D. Wash. 2020)
Court Description: ORDER GRANTING 11 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DENYING 10 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT. Signed by Judge Rosanna Malouf Peterson. (SG, Case Administrator)
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Savage v. Commissioner of Social Security Doc. 14 1 2 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 3 Jan 21, 2020 4 SEAN F. MCAVOY, CLERK 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 CHRISTOPHER M. S., NO: 2:18-CV-309-FVS 8 Plaintiff, v. 9 ANDREW M. SAUL, COMMISSIONER OF SOCIAL SECURITY, 1 10 11 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Defendant. 12 13 BEFORE THE COURT are the parties’ cross motions for summary 14 judgment. ECF Nos. 10 and 11. This matter was submitted for consideration 15 without oral argument. The Plaintiff is represented by Attorney Dana C. Madsen. 16 17 18 19 20 1 Andrew M. Saul is now the Commissioner of the Social Security Administration. Accordingly, the Court substitutes Andrew M. Saul as the Defendant and directs the Clerk to update the docket sheet. See Fed. R. Civ. P. 25(d). 21 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 1 Dockets.Justia.com 1 The Defendant is represented by Special Assistant United States Attorney Jeffrey 2 E. Staples. The Court has reviewed the administrative record, the parties’ 3 completed briefing, and is fully informed. For the reasons discussed below, the 4 Court GRANTS Defendant’s Motion for Summary Judgment, ECF No. 11, and 5 DENIES Plaintiff’s Motion for Summary Judgment, ECF No. 10. 6 JURISDICTION 7 Plaintiff Christopher M. S. 2 protectively filed for supplemental security 8 income on March 25, 2015, alleging an onset date of November 1, 2012. 3 Tr. 309- 9 14. Benefits were denied initially, Tr. 208-211, and upon reconsideration, Tr. 215- 10 17. Plaintiff appeared for a hearing before an administrative law judge (“ALJ”) on 11 February 14, 2017. Tr. 39-112. Plaintiff was represented by counsel and testified 12 13 14 15 16 17 18 19 20 21 2 In the interest of protecting Plaintiff’s privacy, the Court will use Plaintiff’s first name and last initial, and, subsequently, Plaintiff’s first name only, throughout this decision. 3 As noted by the ALJ, Plaintiff’s alleged onset date of November 1, 2012, is after the date Plaintiff attained age 22, on October 24, 2012. Tr. 16, 315-16. Accordingly, the ALJ dismissed Plaintiff’s request for hearing under Title II for Child’s Insurance Benefits under the Social Security Act, and noted the decision would address only the pending application for Title XVI benefits from the start of the relevant period beginning March 25, 2015. Tr. 16. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 2 1 at the hearing. Id. The ALJ denied benefits, Tr. 13-35, and the Appeals Council 2 denied review. Tr. 1. The matter is now before this court pursuant to 42 U.S.C. § 3 1383(c)(3). 4 BACKGROUND 5 The facts of the case are set forth in the administrative hearing and 6 transcripts, the ALJ’s decision, and the briefs of Plaintiff and the Commissioner. 7 Only the most pertinent facts are summarized here. 8 9 Plaintiff was 26 years old at the time of the hearing. Tr. 74. He finished high school and went to college for three years. Tr. 74. He testified that he 10 dropped out of college because of the pain. Tr. 74. Plaintiff has work history as a 11 nighttime security guard, fast food worker, assistant manager, busboy, and laborer. 12 Tr. 77-79. At the time of the hearing, Plaintiff worked part-time as a pizza 13 delivery driver. Tr. 76-77. He testified that he cannot perform his past work 14 because of pain in his whole body. Tr. 79-80. 15 Plaintiff testified that the pain affects his entire musculoskeletal system, and 16 the muscles in his body “crack, click, or just move in a very jerky fashion.” Tr. 80. 17 He reported that he is taking his medication as prescribed, and it has been reduced 18 because of successful intramuscular stimulation treatment. Tr. 86. He rated his 19 pain as five to six on a general day-to-day basis, and eight to ten at its worst. Tr. 20 87. Plaintiff testified that from 2011, until he started working again, he could not 21 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 3 1 walk more than 100 feet, could not stand more than five minutes, could barely lift 2 five to ten pounds, and could “barely” sit in a chair. Tr. 93-95. 3 4 STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 5 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 6 limited; the Commissioner’s decision will be disturbed “only if it is not supported 7 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 8 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a 9 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159 10 (quotation and citation omitted). Stated differently, substantial evidence equates to 11 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 12 citation omitted). In determining whether the standard has been satisfied, a 13 reviewing court must consider the entire record as a whole rather than searching 14 for supporting evidence in isolation. Id. 15 In reviewing a denial of benefits, a district court may not substitute its 16 judgment for that of the Commissioner. If the evidence in the record “is 17 susceptible to more than one rational interpretation, [the court] must uphold the 18 ALJ’s findings if they are supported by inferences reasonably drawn from the 19 record.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). Further, a district 20 court “may not reverse an ALJ’s decision on account of an error that is harmless.” 21 Id. An error is harmless “where it is inconsequential to the [ALJ’s] ultimate ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 4 1 nondisability determination.” Id. at 1115 (quotation and citation omitted). The 2 party appealing the ALJ’s decision generally bears the burden of establishing that 3 it was harmed. Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009). 4 5 FIVE-STEP EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within 6 the meaning of the Social Security Act. First, the claimant must be “unable to 7 engage in any substantial gainful activity by reason of any medically determinable 8 physical or mental impairment which can be expected to result in death or which 9 has lasted or can be expected to last for a continuous period of not less than twelve 10 months.” 42 U.S.C. § 1382c(a)(3)(A). Second, the claimant’s impairment must be 11 “of such severity that he is not only unable to do his previous work[,] but cannot, 12 considering his age, education, and work experience, engage in any other kind of 13 substantial gainful work which exists in the national economy.” 42 U.S.C. § 14 1382c(a)(3)(B). 15 The Commissioner has established a five-step sequential analysis to 16 determine whether a claimant satisfies the above criteria. See 20 C.F.R. § 17 416.920(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s work 18 activity. 20 C.F.R. § 416.920(a)(4)(i). If the claimant is engaged in “substantial 19 gainful activity,” the Commissioner must find that the claimant is not disabled. 20 20 C.F.R. § 416.920(b). 21 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 5 1 If the claimant is not engaged in substantial gainful activity, the analysis 2 proceeds to step two. At this step, the Commissioner considers the severity of the 3 claimant’s impairment. 20 C.F.R. § 416.920(a)(4)(ii). If the claimant suffers from 4 “any impairment or combination of impairments which significantly limits [his or 5 her] physical or mental ability to do basic work activities,” the analysis proceeds to 6 step three. 20 C.F.R. § 416.920(c). If the claimant’s impairment does not satisfy 7 this severity threshold, however, the Commissioner must find that the claimant is 8 not disabled. 20 C.F.R. § 416.920(c). 9 At step three, the Commissioner compares the claimant’s impairment to 10 severe impairments recognized by the Commissioner to be so severe as to preclude 11 a person from engaging in substantial gainful activity. 20 C.F.R. § 12 416.920(a)(4)(iii). If the impairment is as severe or more severe than one of the 13 enumerated impairments, the Commissioner must find the claimant disabled and 14 award benefits. 20 C.F.R. § 416.920(d). 15 If the severity of the claimant’s impairment does not meet or exceed the 16 severity of the enumerated impairments, the Commissioner must pause to assess 17 the claimant’s “residual functional capacity.” Residual functional capacity (RFC), 18 defined generally as the claimant’s ability to perform physical and mental work 19 activities on a sustained basis despite his or her limitations, 20 C.F.R. § 20 416.945(a)(1), is relevant to both the fourth and fifth steps of the analysis. 21 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 6 1 At step four, the Commissioner considers whether, in view of the claimant’s 2 RFC, the claimant is capable of performing work that he or she has performed in 3 the past (past relevant work). 20 C.F.R. § 416.920(a)(4)(iv). If the claimant is 4 capable of performing past relevant work, the Commissioner must find that the 5 claimant is not disabled. 20 C.F.R. § 416.920(f). If the claimant is incapable of 6 performing such work, the analysis proceeds to step five. 7 At step five, the Commissioner considers whether, in view of the claimant’s 8 RFC, the claimant is capable of performing other work in the national economy. 9 20 C.F.R. § 416.920(a)(4)(v). In making this determination, the Commissioner 10 must also consider vocational factors such as the claimant’s age, education and 11 past work experience. 20 C.F.R. § 416.920(a)(4)(v). If the claimant is capable of 12 adjusting to other work, the Commissioner must find that the claimant is not 13 disabled. 20 C.F.R. § 416.920(g)(1). If the claimant is not capable of adjusting to 14 other work, analysis concludes with a finding that the claimant is disabled and is 15 therefore entitled to benefits. 20 C.F.R. § 416.920(g)(1). 16 The claimant bears the burden of proof at steps one through four above. 17 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 18 step five, the burden shifts to the Commissioner to establish that (1) the claimant is 19 capable of performing other work; and (2) such work “exists in significant 20 numbers in the national economy.” 20 C.F.R. § 416.960(c)(2); Beltran v. Astrue, 21 700 F.3d 386, 389 (9th Cir. 2012). ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 7 1 ALJ’S FINDINGS 2 At step one, the ALJ found that Plaintiff engaged in substantial gainful 3 activity from September 2016 through December 2016, but there has been a 4 continuous 12-month period during which Plaintiff did not engage in substantial 5 gainful activity. Tr. 18-19. At step two, the ALJ found that Plaintiff has the 6 following medically determinable impairments: myofascial pain 7 syndrome/fibromyalgia and polysubstance abuse. Tr. 19. However, at step two, 8 the ALJ concluded that Plaintiff does not have an impairment or combination of 9 impairments that has significantly limited (or is expected to significantly limit) the 10 ability to perform basic work-related activities for 12 consecutive months; 11 therefore, Plaintiff does not have a severe impairment or combination of 12 impairments. Tr. 19. On that basis, the ALJ concluded that Plaintiff has not been 13 under a disability, as defined in the Social Security Act, from March 25, 2015, the 14 start of the relevant period, through the date of the decision. Tr. 27. 15 16 ISSUES Plaintiff seeks judicial review of the Commissioner’s final decision denying 17 her supplemental security income benefits under Title XVI of the Social Security 18 Act. ECF No. 10. Plaintiff raises the following issues for this Court’s review: 19 1. Whether the ALJ properly considered Plaintiff’s symptom claims; and 20 2. Whether the ALJ properly weighed the medical opinion evidence. 21 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 8 1 2 DISCUSSION A. Plaintiff’s Symptom Claims 3 An ALJ engages in a two-step analysis when evaluating a claimant’s 4 testimony regarding subjective pain or symptoms. “First, the ALJ must determine 5 whether there is objective medical evidence of an underlying impairment which 6 could reasonably be expected to produce the pain or other symptoms alleged.” 7 Molina, 674 F.3d at 1112 (internal quotation marks omitted). “The claimant is not 8 required to show that her impairment could reasonably be expected to cause the 9 severity of the symptom she has alleged; she need only show that it could 10 reasonably have caused some degree of the symptom.” Vasquez v. Astrue, 572 11 F.3d 586, 591 (9th Cir. 2009) (internal quotation marks omitted). 12 Second, “[i]f the claimant meets the first test and there is no evidence of 13 malingering, the ALJ can only reject the claimant’s testimony about the severity of 14 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 15 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (internal 16 citations and quotations omitted). “General findings are insufficient; rather, the 17 ALJ must identify what testimony is not credible and what evidence undermines 18 the claimant’s complaints.” Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th 19 Cir. 1995)); Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (“[T]he ALJ 20 must make a credibility determination with findings sufficiently specific to permit 21 the court to conclude that the ALJ did not arbitrarily discredit claimant’s ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 9 1 testimony.”). “The clear and convincing [evidence] standard is the most 2 demanding required in Social Security cases.” Garrison v. Colvin, 759 F.3d 995, 3 1015 (9th Cir. 2014) (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 4 924 (9th Cir. 2002)). 5 In this case, the ALJ found Plaintiff’s medically determinable impairments 6 could reasonably be expected to cause some of the alleged symptoms; however, 7 Plaintiff’s “statements concerning the intensity, persistence and limiting effects of 8 these symptoms are not entirely consistent with the medical evidence and other 9 evidence in the record” for several reasons. Tr. 21. As an initial matter, the Court 10 notes that Plaintiff “concedes that there are no objective findings to substantiate his 11 physical symptoms. Therefore, his claim should be based primarily upon his 12 mental impairments.” ECF No. 12 at 5-6. Thus, the Court will confine the 13 analysis to the ALJ’s evaluation of Plaintiff’s alleged mental health limitations 14 during the relevant adjudicatory period. 15 Here, the ALJ acknowledged that Plaintiff “underwent psychological exams, 16 and there were some findings of depression and anxiety on exam. Doctors 17 referenced his ongoing drug use/substance use and considered somatoform and 18 personality disorders. He was described as dramatic, somatic focused, and 19 minimized his drug use.” Tr. 23 (citing Tr. 1288-91, 1324-26). However, the ALJ 20 also noted that Plaintiff “has few mental health records from 2015, and they largely 21 focus on his obtaining pain medication. [Plaintiff] continued to seek and abuse ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 10 1 opioids in 2015, and reported increased mental health symptoms.” Tr. 23 (citing 2 Tr. 1347-71, 1455-65, 1548-59). Plaintiff contends, without citation to legal 3 authority or evidence in the record, that the ALJ improperly “discounted 4 [Plaintiff’s] testimony on the grounds that [Plaintiff] was using cannabis and 5 narcotic medication for his pain”; and further, that the ALJ “has used [Plaintiff’s] 6 use of marijuana as an excuse to issue the unfavorable decision.” ECF No. 10 at 7 17-18. 8 This argument mischaracterizes the ALJ’s findings. The ALJ did not reject 9 Plaintiff’s subjective claims merely because he used cannabis and narcotic 10 medication. Rather, as noted by Defendant, the ALJ discounted Plaintiff’s 11 subjective complaints because (1) Plaintiff was not compliant with the prescribed 12 treatment recommendations, and (2) Plaintiff engaged in drug-seeking behavior.4 13 ECF No. 11 at 2-4. Unexplained, or inadequately explained, failure to follow a 14 15 16 17 18 19 20 21 4 In support of their arguments, both parties cite evidence that predates the relevant adjudicatory period. However, evidence prior to the alleged onset date is of limited probative value. See, e.g., Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1165 (9th Cir. 2008) (holding that “[m]edical opinions that predate the alleged onset of disability are of limited relevance.”). Thus, the Court will limit the analysis to evidence cited by the ALJ from the relevant adjudicatory period after March 25, 2015. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 11 1 prescribed course of treatment may be the basis for rejecting Plaintiff’s symptom 2 claims unless there is a showing of a good reason for the failure. Orn v. Astrue, 3 495 F.3d 625, 638 (9th Cir. 2007); see also Edlund v. Massanari, 253 F.3d 1152, 4 1157 (9th Cir. 2001) (holding that evidence of drug seeking behavior undermines a 5 claimant’s credibility). 6 In support of this finding, the ALJ cited Plaintiff’s admission during the 7 relevant adjudicatory period that he took more opioids than the prescribed amount; 8 treatment notes indicating “a history of polysubstance abuse and long term opiate 9 use”; and multiple notations in treatment records that both Plaintiff and his mother 10 became agitated when his pain medication was reduced. Tr. 1316, 1324, 1326-28, 11 1353-54, 1434, 1465, 1471. The ALJ also correctly noted that the record includes 12 “few mental health records from 2015, and they largely focus on his obtaining pain 13 medication.” Tr. 23; See Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005) 14 (minimal objective evidence is a factor which may be relied upon in discrediting a 15 claimant’s testimony, although it may not be the only factor). Plaintiff attended 16 counseling intermittently from March 2015 through October 2015, at which point 17 he was discharged and reported “maximum benefit from counseling for now with 18 respect to his goals.” 1347-55, 1455-59, 1548-59. Moreover, the Court’s 19 independent review of the counseling records confirms that they centered almost 20 exclusively on Plaintiff’s frustration with his inability to obtain pain medication, 21 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 12 1 and his agitation at efforts by his treating providers to reduce his pain medication. 2 1347-55, 1455-59, 1548-55. 3 For all of these reasons, the Court finds it was reasonable for the ALJ to 4 discount Plaintiff’s mental health symptom claims based on evidence that he 5 sought medication, and failed to take medication according to the prescribed 6 schedule. Moreover, the ALJ offered additional reasons for discounting Plaintiff’s 7 symptom claims. 5 First, the ALJ noted that Plaintiff “tried to reduce his 8 medication tolerance, seek counseling, and increase his walking,” and reported 9 improved functioning. Tr. 23 (citing Tr. 1502). A favorable response to treatment 10 can undermine a claimant's complaints of debilitating pain or other severe 11 limitations. See Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008). As 12 noted above, Plaintiff reported in October 2015 that he received “maximum benefit 13 from counseling” and was subsequently discharged from mental health treatment. 14 Tr. 1559. This was a clear, convincing, and entirely unchallenged reason for the 15 ALJ to discount Plaintiff’s symptom claims. Carmickle v. Comm’r of Soc. Sec. 16 17 18 19 20 21 5 The parties briefly reference the ALJ’s consideration of Plaintiff’s daily activities. ECF No. 10 at 16-17; ECF No. 11 at 4-5. However, the Court’s review of the record indicates this was not a reason given by the ALJ specifically to discount Plaintiff’s mental health symptom claims. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 13 1 Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008) (the Court may decline to address 2 an issue not raised with specificity in the opening brief). 3 Second, the ALJ concluded that the “record lacks corroborative clinical 4 objective evidence consistent with the degree of limitation alleged by” Plaintiff. 5 Tr. 27. An ALJ may not discredit a claimant’s pain testimony and deny benefits 6 solely because the degree of pain alleged is not supported by objective medical 7 evidence. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001); Bunnell v. 8 Sullivan, 947 F.2d 341, 346-47 (9th Cir. 1991); Fair v. Bowen, 885 F.2d 597, 601 9 (9th Cir. 1989). However, the medical evidence is a relevant factor in determining 10 the severity of a claimant’s pain and its disabling effects. Rollins, 261 F.3d at 857; 11 20 C.F.R. § 404.1529(c)(2). Plaintiff cites a single treatment record that observed 12 he was “depressed, anxious, in pain and weeping,” and argues this is an “objective 13 finding[] based upon the observation of the counselors.” ECF No. 10 at 18 (citing 14 Tr. 1379). However, as noted by the ALJ, there are “few” mental health records 15 during the relevant adjudicatory period, and the results of the mental status exam 16 conducted by the examining psychologist were “largely normal.” Tr. 26, 1528, 17 1532. Moreover, the medical expert at the hearing testified that the only medically 18 determinable mental impairment based on the objective medical evidence was 19 polysubstance abuse, and in his opinion there was “insufficient evidence to assess 20 the severity of [Plaintiff’s] mental depression from March 2015 forward.” Tr. 24- 21 25, 58-59, 67. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 14 1 Based on the foregoing, and regardless of evidence that could be interpreted 2 more favorably to Plaintiff, it was reasonable for the ALJ to find the severity of 3 Plaintiff’s mental health symptom claims was inconsistent with objective medical 4 evidence during the relevant adjudicatory period. “[W]here evidence is susceptible 5 to more than one rational interpretation, it is the [Commissioner’s] conclusion that 6 must be upheld.” Burch, 400 F.3d at 679. The lack of corroboration of Plaintiff’s 7 claimed limitations by the clinical objective evidence was a clear, convincing, and 8 largely unchallenged reason for the ALJ to discount Plaintiff’s symptom claims. 9 The Court concludes that the ALJ provided clear and convincing reasons, 10 11 12 supported by substantial evidence, for rejecting Plaintiff’s symptom claims. B. Medical Opinions There are three types of physicians: “(1) those who treat the claimant 13 (treating physicians); (2) those who examine but do not treat the claimant 14 (examining physicians); and (3) those who neither examine nor treat the claimant 15 [but who review the claimant's file] (nonexamining [or reviewing] physicians).” 16 Holohan v. Massanari, 246 F.3d 1195, 1201–02 (9th Cir. 2001) (citations omitted). 17 Generally, a treating physician's opinion carries more weight than an examining 18 physician's, and an examining physician's opinion carries more weight than a 19 reviewing physician's. Id. If a treating or examining physician's opinion is 20 uncontradicted, the ALJ may reject it only by offering “clear and convincing 21 reasons that are supported by substantial evidence.” Bayliss v. Barnhart, 427 F.3d ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 15 1 1211, 1216 (9th Cir. 2005). Conversely, “[i]f a treating or examining doctor's 2 opinion is contradicted by another doctor's opinion, an ALJ may only reject it by 3 providing specific and legitimate reasons that are supported by substantial 4 evidence.” Id. (citing Lester, 81 F.3d at 830–831). “However, the ALJ need not 5 accept the opinion of any physician, including a treating physician, if that opinion 6 is brief, conclusory and inadequately supported by clinical findings.” Bray, 554 7 F.3d at 1228 (quotation and citation omitted). 8 9 Plaintiff generally argues that the ALJ “did not afford proper weight to examining sources as to their true opinion . . . , but afforded weight to non- 10 examining non-treating consultants. This constitutes reversible error.” ECF No. 11 10 at 19 (internal citation omitted). In his reply brief, without specific citation to 12 the record, Plaintiff maintains that the ALJ “failed to properly consider and weigh 13 the opinion evidence,” and notes that his opening brief “include[s] the findings of 14 John F. Arnold, Ph.D.; Kayleen Islam-Zwart, Ph.D.; and the findings of Frontier 15 Behavioral Health.” ECF No. 12 at 5. However, as correctly noted by Defendant, 16 Plaintiff’s briefing “does not identify any of the opinions to which his argument 17 pertains, let alone explain how the ALJ erred in weighing them.” ECF No. 11 at 5. 18 Specifically, the Court finds that while Plaintiff’s opening brief does summarize 19 the opinion of Dr. John Arnold and treatment records from Frontier Behavioral 20 Health, he entirely fails to “specifically and distinctly” identify or challenge any of 21 the ALJ’s findings with regard to these opinions. Thus, the Court declines to ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 16 1 consider this evidence. See Kim, 154 F.3d at 1000 (the Court may not consider on 2 appeal issues not “specifically and distinctly argued” in the party’s opening brief). 3 However, in an abundance of caution, the Court will review the ALJ’s findings 4 regarding Dr. Islam-Zwart’s opinion, which was at least identified with the 5 requisite specificity in the context of the ALJ’s rejection of Plaintiff’s symptom 6 claims. 7 In May 2015, Dr. Islam-Zwart examined Plaintiff and opined that he had 8 marked limitations in his ability to perform activities within a schedule, maintain 9 regular attendance, and be punctual within customary tolerances without special 10 supervision; communicate and perform effectively in a work setting; maintain 11 appropriate behavior in a work setting; and complete a normal work day and work 12 week without interruptions from psychologically based symptoms. Tr. 1527. The 13 ALJ also opined that Plaintiff had moderate limitations in his ability to perform 14 routine tasks without special supervision; adapt to changes in a routine work 15 setting; and set realistic goals and plan independently. Tr. 1527. ALJ gave Dr. 16 Islam-Zwart’s opinion little weight for several reasons. Tr. 26. 17 Plaintiff appears to argue that the ALJ improperly “based the decision upon 18 the opinion of non-examining non-treating” medical expert Dr. Glen Griffin’s 19 testimony, “instead of” the opinion of examining psychologist Dr. Islam-Zwart. 20 See ECF No. 10 at 18; ECF No. 12 at 5. However, while an ALJ generally gives 21 more weight to Dr. Islam-Zwart’s opinion, as an examining psychologist, than to ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 17 1 Dr. Griffin’s opinion, as a nonexamining medical expert, Dr. Griffin’s opinion may 2 nonetheless constitute substantial evidence if it is, as specifically noted by the ALJ 3 in this case, consistent with other independent evidence in the record. Tr. 25 4 (giving great weight to Dr. Griffin’s opinion because it was based on a 5 comprehensive review of the longitudinal evidence of record); see Thomas, 278 6 F.3d at 957; Orn, 495 F.3d at 632–33. Moreover, “[t]he opinion of a 7 nonexamining physician cannot by itself constitute substantial evidence that 8 justifies the rejection of the opinion of either an examining or a treating physician.” 9 Lester v. Chater, 81 F.3d 821, 831 (9th Cir.1995) (emphasis added). However, 10 where, as here, the examining physician's opinion is contradicted by medical 11 evidence, the opinion may still be rejected if the ALJ provides specific and 12 legitimate reasons supported by substantial evidence in the record. See Andrews v. 13 Shalala, 53 F.3d 1035, 1041 (9th Cir.1995). The ALJ offered several additional 14 reasons for rejecting Dr. Islam-Zwart’s opinion. 15 First, the ALJ noted that Dr. Islam-Zwart “did not assess substance abuse or 16 dependence, which is clear throughout the record.” Tr. 26. Plaintiff argues Dr. 17 Islam-Zwart “was aware that [Plaintiff] was using medical marijuana”; and she 18 checked the “no” box in response to the question “are the current impairments 19 primarily a result of alcohol or drug use within the past 60 days?” ECF No. 10 at 20 17-18; Tr. 1527, 1531. However, the consistency of a medical opinion with the 21 record as a whole is a relevant factor in evaluating that medical opinion. Orn, 495 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 18 1 F.3d at 631. While not identified by Plaintiff, the “Substance History” portion of 2 Dr. Islam-Zwart’s opinion includes Plaintiff’s report that “he went to mental health 3 [sic] they wanted to also treat him for withdrawal from the hydrocodone, but it was 4 not really an issue for him other than not being able to sleep.” Tr. 1531. As 5 discussed in detail above, this report is inconsistent with Plaintiff’s history of 6 overusing hydrocodone, and treatment notes from the relevant adjudicatory period 7 documenting Plaintiff’s ongoing agitation when providers refused or reduced his 8 opioid medication. Thus, it was reasonable for the ALJ to discount Dr. Islam- 9 Zwart’s opinion because her failure to recognize substance dependence was 10 inconsistent with the record as a whole. This was a specific and legitimate reason 11 to grant Dr. Islam-Zwart’s opinion little weight. 12 Moreover, even assuming, arguendo, that the ALJ erred in this reasoning, 13 any error is harmless because the ALJ’s ultimate rejection of Dr. Islam-Zwart’s 14 opinion was supported by substantial evidence. See Carmickle, 533 F.3d at 1162- 15 63. The ALJ found that Dr. Islam-Zwart “did not have the opportunity to review 16 the longitudinal record, and most of her findings were based on [Plaintiff’s] self- 17 report. Finally, the report is given little weight because the severity of her findings 18 in inconsistent with the largely normal mental status exam.” Tr. 26. Plaintiff fails 19 to identify or challenge these reasons in his opening brief; thus, the Court may 20 decline to consider this issue. Carmickle, 533 F.3d at 1161 n.2. 21 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 19 1 Even had Plaintiff not waived the issue, the Court finds the additional 2 reasons offered by the ALJ for discounting Dr. Islam-Zwart’s opinion were 3 without legal error and supported by substantial evidence. First, the ALJ properly 4 rejected Dr. Islam-Zwart’s opinion because she did not review any medical 5 records, and her evaluation was based “to a large extent” on Plaintiff’s self-reports 6 that have been properly discounted. Tommasetti, 533 F.3d at 1041. Second, the 7 ALJ properly rejected Dr. Islam-Zwart’s opinion because it was inconsistent with 8 the largely normal mental status examination that she conducted as part of her 9 evaluation, which included findings of normal thought process and content, normal 10 orientation, normal perception and memory, normal fund of knowledge, normal 11 concentration, and normal abstract thought. Tr. 26, 1528, 1532; Id.; see also 12 Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004) (an 13 ALJ may discount an opinion that is conclusory, brief, and unsupported by the 14 record as a whole, or by objective medical findings). 15 16 17 18 These are specific, legitimate, and largely unchallenged reasons to reject the limitations opined by Dr. Islam-Zwart. CONCLUSION A reviewing court should not substitute its assessment of the evidence for 19 the ALJ’s. Tackett, 180 F.3d at 1098. To the contrary, a reviewing court must 20 defer to an ALJ’s assessment as long as it is supported by substantial evidence. 42 21 U.S.C. § 405(g). As discussed in detail above, the ALJ provided clear and ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 20 1 convincing reasons to discount Plaintiff’s symptom claims, and properly weighed 2 the medical opinion evidence. After review the court finds that the ALJ’s decision 3 is supported by substantial evidence and free of harmful legal error. 4 ACCORDINGLY, IT IS HEREBY ORDERED: 5 1. Plaintiff’s Motion for Summary Judgment, ECF No. 10, is DENIED. 6 2. Defendant’s Motion for Summary Judgment, ECF No. 11, is 7 GRANTED. 8 The District Court Clerk is directed to enter this Order and provide copies to 9 counsel. Judgement shall be entered for Defendant and the file shall be CLOSED. 10 DATED January 21, 2020. 11 12 s/ Rosanna Malouf Peterson ROSANNA MALOUF PETERSON United States District Judge 13 14 15 16 17 18 19 20 21 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 21
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