Platteter v. O'Malley, No. 2:2022cv00262 - Document 18 (E.D. Wash. 2024)

Court Description: ORDER DENYING 13 PLAINTIFF'S BRIEF AND GRANTING 16 DEFENDANT'S BRIEF. This file is CLOSED. Signed by Senior Judge Rosanna Malouf Peterson. (LTR, Case Administrator)

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Platteter v. O&#039;Malley Doc. 18 1 2 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 3 Mar 19, 2024 SEAN F. MCAVOY, CLERK 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF WASHINGTON 6 7 THOMAS P., NO: 2:22-CV-262-RMP Plaintiff, 8 ORDER DENYING PLAINTIFF’S BRIEF AND GRANTING DEFENDANT’S BRIEF v. 9 10 COMMISSIONER OF SOCIAL SECURITY, 11 Defendant. 12 13 BEFORE THE COURT, without oral argument, are briefs from Plaintiff 14 Thomas P.1, ECF No. 13, and Defendant the Commissioner of Social Security (the 15 “Commissioner”), ECF No. 16. Plaintiff seeks judicial review, pursuant to 42 16 U.S.C. § 405(g), of the Commissioner’s denial of his claims for Social Security 17 Income (“SSI”) under Title XVI, and Disability Insurance Benefits (“DIB”) under 18 Title II, of the Social Security Act (the “Act”). See ECF No. 13 at 2. 19 1 20 In the interest of protecting Plaintiff’s privacy, the Court uses Plaintiff’s first name and last initial. 21 ORDER DENYING PLAINTIFF’S BRIEF AND GRANTING DEFENDANT’S BRIEF ~ 1 Dockets.Justia.com 1 Having considered the parties’ briefs including Plaintiff’s reply, ECF No. 17, 2 the administrative record, and the applicable law, the Court is fully informed. For 3 the reasons set forth below, the Court denies judgment for Plaintiff and directs entry 4 of judgment in favor of the Commissioner. 5 BACKGROUND 6 General Context 7 Plaintiff applied for SSI and DIB on May 11, 2020, alleging onset on April 1, 8 2016. Administrative Record (“AR”)2 240–53. Plaintiff was 27 years old on the 9 alleged disability onset date and asserted that he was unable to work due to: 10 schizoaffective disorder, bipolar disorder, and substance abuse disorder. AR 281. 11 Plaintiff’s claims proceeded to a telephonic hearing before Administrative Law 12 Judge (“ALJ”) Jesse Shumway on October 18, 2021. AR 35–38. Plaintiff was 13 present and represented by attorney Timothy Anderson. AR 35–38. The ALJ heard 14 from vocational expert (“VE”) Mark Mann, medical expert Tonia Porchia, PsyD and 15 from Plaintiff. AR 35–64. ALJ Shumway issued an unfavorable decision on 16 November 3, 2021. AR 15–28. 17 / / / 18 / / / 19 20 2 The Administrative Record is filed at ECF No. 11. 21 ORDER DENYING PLAINTIFF’S BRIEF AND GRANTING DEFENDANT’S BRIEF ~ 2 1 ALJ’s Decision 2 Applying the five-step evaluation process, ALJ Shumway found: 3 Step one: Plaintiff has not engaged in substantial gainful activity (“SGA”) 4 since April 1, 2016, the alleged onset date. AR 18 (citing 20 C.F.R. §§ 404.1520(b), 5 404.1571 et seq., 416.920(b), and 416.971 et seq.). The ALJ further found that 6 Plaintiff worked after the alleged disability onset date at SGA levels for around five 7 months, but “none of his work after the alleged onset date lasted more than six 8 months, and it all ended because of his alleged impairments.” AR 18. Therefore, 9 the ALJ found that Plaintiff’s work activity qualifies as unsuccessful work attempts. 10 11 AR 18. Step two: Plaintiff has the following severe impairments: polysubstance use 12 disorders (primarily methamphetamine, opiates, and marijuana); schizoaffective 13 disorder; and attention deficit hyperactivity disorder (“ADHD”). AR 18 (citing 20 14 C.F.R. §§ 404.1520(c) and 416.920(c)). The ALJ found that schizophrenia and post- 15 traumatic stress disorder (“PTSD”) are not medically determinable impairments 16 based on Plaintiff’s record. AR 18. 17 Step three: Including Plaintiff’s substance use, the severity of Plaintiff’s 18 impairments meets the criteria of sections 12.03, 12.04, and 12.11 of 10 C.F.R. Part 19 404, Subpart P, Appendix 1 (20 C.F.R. 404.1520(d), 404.1525, 416.920(d), and 20 416.925). The ALJ further found that if Plaintiff stopped the substance use, the 21 ORDER DENYING PLAINTIFF’S BRIEF AND GRANTING DEFENDANT’S BRIEF ~ 3 1 remaining limitations would cause more than a minimal impact on Plaintiff’s ability 2 to perform basic work activities; therefore, Plaintiff would have a severe impairment 3 or combination of impairments. AR 20. However, if Plaintiff stopped the substance 4 use, Plaintiff would not have an impairment or combination of impairments that 5 meets or medically equals the severity of a listed impairment. AR 20. 6 Residual Functional Capacity (“RFC”): The ALJ concluded that, if Plaintiff 7 stopped the substance use, Plaintiff would have an RFC to perform a full range of 8 work at all exertional levels with the following nonexertional limitations: “he would 9 be limited to simple, routine tasks; he could have only superficial contact with the 10 public and coworkers, with no collaborative tasks; and he would require a routine, 11 predictable work environment with no more than occasional, simple changes.” AR 12 21. 13 In determining Plaintiff’s RFC, the ALJ found that Plaintiff’s medically 14 determinable impairments could reasonably be expected to cause some of the alleged 15 symptoms, “[h]owever, the claimant’s statements concerning the intensity, 16 persistence, and limiting effects of these symptoms are not entirely consistent with 17 the medical evidence and other evidence in the record for the reasons explained in 18 this decision.” AR 21. 19 20 Step four: The ALJ found that Plaintiff can perform, but does not have, past relevant work. AR 27 (citing 20 C.F.R. §§ 404.1568 and 416.968). Therefore, 21 ORDER DENYING PLAINTIFF’S BRIEF AND GRANTING DEFENDANT’S BRIEF ~ 4 1 transferability of job skills is not an issue. AR 27 (citing 20 C.F.R. §§ 404.1568 and 2 416.968). 3 Step five: The ALJ found that Plaintiff has at least a high school education 4 and that given Plaintiff’s age, education, work experience, and RFC, if Plaintiff 5 stopped substance use, there are jobs that exist in the national economy that Plaintiff 6 can perform. AR 27 (citing 20 C.F.R. § 404.1560(c), 404.1566, 416.960(c), and 7 416.966). The ALJ recounted that the VE testified that Plaintiff would be able to 8 perform the requirements of representative occupations such as battery stacker 9 (medium, unskilled work with approximately 34,220 jobs nationwide); floor waxer 10 (medium, unskilled work with approximately 118,300 jobs nationwide); and laundry 11 worker II (medium, unskilled work with approximately 66,690 jobs nationwide). 12 AR 27. 13 Lastly, the ALJ found that the substance use disorder is a contributing factor 14 material to the determination of disability because Plaintiff would not be disabled if 15 he stopped the substance use. AR 27 (citing 20 C.F.R. §§ 404.1520(g), 404.1535, 16 416.920(g), and 416.935). The ALJ concluded that Plaintiff “[b]ecause the 17 substance use disorder is a contributing factor material to the determination of 18 disability,” had not been under a disability, as defined in the Act, anytime from the 19 alleged onset through the date of this decision. AR 27–28. 20 21 ORDER DENYING PLAINTIFF’S BRIEF AND GRANTING DEFENDANT’S BRIEF ~ 5 1 2 Through counsel, Victoria B. Chhagan, Plaintiff sought review of the ALJ’s decision in this Court. ECF No. 1. 3 LEGAL STANDARD 4 Standard of Review 5 Congress has provided a limited scope of judicial review of the 6 Commissioner’s decision. 42 U.S.C. § 405(g). A court may set aside the 7 Commissioner’s denial of benefits only if the ALJ’s determination was based on 8 legal error or not supported by substantial evidence. See Jones v. Heckler, 760 F.2d 9 993, 995 (9th Cir. 1985) (citing 42 U.S.C. § 405(g)). “The [Commissioner’s] 10 determination that a claimant is not disabled will be upheld if the findings of fact are 11 supported by substantial evidence.” Delgado v. Heckler, 722 F.2d 570, 572 (9th Cir. 12 1983) (citing 42 U.S.C. § 405(g)). Substantial evidence is more than a mere 13 scintilla, but less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112, 14 1119 n.10 (9th Cir. 1975); McCallister v. Sullivan, 888 F.2d 599, 601–02 (9th Cir. 15 1989). Substantial evidence “means such evidence as a reasonable mind might 16 accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 17 401 (1971) (citations omitted). “[S]uch inferences and conclusions as the 18 [Commissioner] may reasonably draw from the evidence” also will be upheld. Mark 19 v. Celebrezze, 348 F.2d 289, 293 (9th Cir. 1965). On review, the Court considers the 20 21 ORDER DENYING PLAINTIFF’S BRIEF AND GRANTING DEFENDANT’S BRIEF ~ 6 1 record, not just the evidence supporting the decisions of the Commissioner. 2 Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989). 3 A decision supported by substantial evidence still will be set aside if the 4 proper legal standards were not applied in weighing the evidence and making a 5 decision. Brawner v. Sec’y of Health and Human Servs., 839 F.2d 432, 433 (9th Cir. 6 1988). Thus, if there is substantial evidence to support the administrative findings, 7 or if there is conflicting evidence that will support a finding of either disability or 8 nondisability, the finding of the Commissioner is conclusive. Sprague v. Bowen, 9 812 F.2d 1226, 1229–30 (9th Cir. 1987). 10 Definition of Disability 11 The Act defines “disability” as the “inability to engage in any substantial 12 gainful activity by reason of any medically determinable physical or mental 13 impairment which can be expected to result in death, or which has lasted or can be 14 expected to last, for a continuous period of not less than 12 months.” 42 U.S.C. § 15 423(d)(1)(A). The Act also provides that a claimant shall be determined to be under 16 a disability only if the impairments are of such severity that the claimant is not only 17 unable to do their previous work, but cannot, considering the claimant’s age, 18 education, and work experiences, engage in any other substantial gainful work 19 which exists in the national economy. 42 U.S.C. § 423(d)(2)(A). Thus, the 20 21 ORDER DENYING PLAINTIFF’S BRIEF AND GRANTING DEFENDANT’S BRIEF ~ 7 1 definition of disability consists of both medical and vocational components. Edlund 2 v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). 3 Sequential Evaluation Process 4 The Commissioner has established a five-step sequential evaluation process 5 for determining whether a claimant is disabled. 20 C.F.R §§ 416.920, 404.1520. 6 Step one determines if they are engaged in substantial gainful activities. If the 7 claimant is engaged in substantial gainful activities, benefits are denied. 20 C.F.R. 8 §§ 416.920(a)(4)(i), 404.1520(a)(4)(i). 9 If the claimant is not engaged in substantial gainful activities, the decision 10 maker proceeds to step two and determines whether the claimant has a medically 11 severe impairment or combination of impairments. 20 C.F.R. §§ 416.920(a)(4)(ii), 12 404.1520(a)(4)(ii). If the claimant does not have a severe impairment or 13 combination of impairments, the disability claim is denied. 14 If the impairment is severe, the evaluation proceeds to the third step, which 15 compares the claimant’s impairment with listed impairments acknowledged by the 16 Commissioner to be so severe as to preclude any gainful activity. 20 C.F.R. §§ 17 416.920(a)(4)(iii), 404.1520(a)(4)(iii); see also 20 C.F.R. § 404, Subpt. P, App. 1. If 18 the impairment meets or equals one of the listed impairments, the claimant is 19 conclusively presumed to be disabled. 20 21 ORDER DENYING PLAINTIFF’S BRIEF AND GRANTING DEFENDANT’S BRIEF ~ 8 1 If the impairment is not one conclusively presumed to be disabling, the 2 evaluation proceeds to the fourth step, which determines whether the impairment 3 prevents the claimant from performing work that they have performed in the past. If 4 the claimant can perform their previous work, the claimant is not disabled. 20 5 C.F.R. §§ 416.920(a)(4)(iv), 404.1520(a)(4)(iv). At this step, the claimant’s RFC 6 assessment is considered. 7 If the claimant cannot perform this work, the fifth and final step in the process 8 determines whether the claimant is able to perform other work in the national 9 economy considering their RFC, age, education, and past work experience. 20 10 C.F.R. §§ 416.920(a)(4)(v), 404.1520(a)(4)(v); Bowen v. Yuckert, 482 U.S. 137, 142 11 (1987). 12 The initial burden of proof rests upon the claimant to establish a prima facie 13 case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th 14 Cir. 1971); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The initial burden 15 is met once the claimant establishes that a physical or mental impairment prevents 16 them from engaging in their previous occupation. Meanel, 172 F.3d at 1113. The 17 burden then shifts, at step five, to the Commissioner to show that (1) the claimant 18 can perform other substantial gainful activity, and (2) a “significant number of jobs 19 exist in the national economy” that the claimant can perform. Kail v. Heckler, 722 20 F.2d 1496, 1498 (9th Cir. 1984). 21 ORDER DENYING PLAINTIFF’S BRIEF AND GRANTING DEFENDANT’S BRIEF ~ 9 1 ISSUES ON APPEAL 2 Plaintiff raises the following issues regarding the ALJ’s decision: 3 1. testifying medical expert? 4 2. 5 8 9 10 11 12 13 14 15 16 17 18 19 20 If the ALJ erred, what is the appropriate remedy? Medical Source Opinion 6 7 Did the ALJ erroneously assess the medical source opinion of the Plaintiff argues that the ALJ failed to provide legally sufficient reasons for rejecting the opinion of testifying psychologist Dr. Porchia that substance use was not the cause of Plaintiff’s disability. ECF No. 13 at 16; see also id. at 14 (contending that the ALJ’s rejection of Dr. Porchia’s testimony was “unsound”). Plaintiff argues that the ALJ “called an ME to help him make a DAA materiality finding, but appeared to have decided that DAA was material prior to the hearing.” Id. Plaintiff continues that the ALJ disregarded that: (1) Dr. Porchia established that Plaintiff’s symptoms “were more consistent with a combination of schizoaffective disorder, bipolar type, and ADHD than with substance abuse”; and (2) a claimant need not have a period of abstinence to qualify for disability benefits. Id. at 14–15. Plaintiff asserts that the ALJ did not rely on substantial evidence to find that Plaintiff’s mental functioning improved to the point of non-disability. ECF No. 17 at 2. The Commissioner responds that the ALJ reasonably found Dr. Porchia’s opinion persuasive. ECF No. 16 at 4. The Commissioner argues that the ALJ’s 21 ORDER DENYING PLAINTIFF’S BRIEF AND GRANTING DEFENDANT’S BRIEF ~ 10 1 observation “that Dr. Porchia mischaracterized the record and failed to evaluate the 2 evidence during Plaintiff’s periods of sobriety” is based on substantial evidence. Id. 3 at 4–5 (citing AR 25). Specifically, the Commissioner argues that Dr. Porchia 4 “generally asserted” that Plaintiff remained markedly impaired during a period of 5 sobriety from November to December 2019, but “she cited objective evidence from 6 another period when Plaintiff was actively abusing drugs.” Id. at 5. Id. at 5 (citing 7 AR 56, 511–23). The Commissioner also cites to a record for the proposition that 8 Plaintiff’s insight and judgment were good between November 2018 and January 9 2019, which the Commissioner asserts conflicts with Dr. Porchia’s testimony that 10 Plaintiff’s insight and judgment remained poor even while sober. Id. at 5 (citing AR 11 25, 546, 549, and 555). The Commissioner continues that the ALJ reviewed 12 substantial medical evidence that was inconsistent with Dr. Porchia’s testimony by 13 showing that: (1) Plaintiff had several periods of time when he was not abusing 14 drugs; and (2) during a period of sobriety, in January 2019, Plaintiff demonstrated 15 normal thought process and content, normal memory, good eye contact, a 16 cooperative and attentive manner, and a euthymic affect. AR 22 (citing AR 546– 17 47). 18 The regulations that took effect on March 27, 2017, provide a new framework 19 for the ALJ’s consideration of medical opinion evidence and require the ALJ to 20 articulate how persuasive he finds all medical opinions in the record, without any 21 ORDER DENYING PLAINTIFF’S BRIEF AND GRANTING DEFENDANT’S BRIEF ~ 11 1 hierarchy of weight afforded to different medical sources. See Rules Regarding the 2 Evaluation of Medical Evidence, 82 Fed. Reg. 5844-01, 2017 WL 168819 (Jan. 18, 3 2017). Instead, for each source of a medical opinion, the ALJ must consider several 4 factors, including supportability, consistency, the source’s relationship with the 5 claimant, any specialization of the source, and other factors such as the source’s 6 familiarity with other evidence in the claim or an understanding of Social Security’s 7 disability program. 20 C.F.R. §§ 404.1520c(c)(1)-(5); 416.920c(c)(1)-(5). 8 9 Supportability and consistency are the “most important” factors, and the ALJ must articulate how he considered those factors in determining the persuasiveness of 10 each medical opinion or prior administrative medical finding. 20 C.F.R. §§ 11 404.1520c(b)(2); 416.920c(b)(2). With respect to these two factors, the regulations 12 provide that an opinion is more persuasive in relation to how “relevant the objective 13 medical evidence and supporting explanations presented” and how “consistent” with 14 evidence from other sources the medical opinion is. 20 C.F.R. §§ 404.1520c(c)(1); 15 416.920c(c)(1). The ALJ may explain how he considered the other factors, but is 16 not required to do so, except in cases where two or more opinions are equally well- 17 supported and consistent with the record. 20 C.F.R. §§ 404.1520c(b)(2), (3); 18 416.920c(b)(2), (3). Courts also must continue to consider whether the ALJ’s 19 finding is supported by substantial evidence. See 42 U.S.C. § 405(g) (“The findings 20 21 ORDER DENYING PLAINTIFF’S BRIEF AND GRANTING DEFENDANT’S BRIEF ~ 12 1 of the Commissioner of Social Security as to any fact, if supported by substantial 2 evidence, shall be conclusive . . . .”). 3 Prior to revision of the regulations, the Ninth Circuit required an ALJ to 4 provide clear and convincing reasons to reject an uncontradicted treating or 5 examining physician’s opinion and provide specific and legitimate reasons where the 6 record contains a contradictory opinion. See Revels v. Berryhill, 874 F.3d 648, 654 7 (9th Cir. 2017). However, the Ninth Circuit has held that the Social Security 8 regulations revised in March 2017 are “clearly irreconcilable with [past Ninth 9 Circuit] caselaw according special deference to the opinions of treating and 10 examining physicians on account of their relationship with the claimant.” Woods v. 11 Kijakazi, No. 21-35458, 2022 U.S. App. LEXIS 10977, at *14 (9th Cir. Apr. 22, 12 2022). The Ninth Circuit continued that the “requirement that ALJs provide 13 ‘specific and legitimate reasons’ for rejecting a treating or examining doctor’s 14 opinion, which stems from the special weight given to such opinions, is likewise 15 incompatible with the revised regulations.” Id. at *15 (internal citation omitted). 16 Recently, the Ninth Circuit has further held that the updated regulations comply with 17 both the Social Security Act and the Administrative Procedure Act, despite not 18 requiring the ALJ to articulate how he or she accounts for the “examining 19 relationship” or “specialization factors.” Cross v. O’Malley, No. 23-35096, 2024 20 U.S. App. LEXIS 302 at *7–12 (9th Cir. Jan. 5, 2024). 21 ORDER DENYING PLAINTIFF’S BRIEF AND GRANTING DEFENDANT’S BRIEF ~ 13 1 Accordingly, as Plaintiff’s claim was filed after the new regulations took 2 effect, the Court refers to the standard and considerations set forth by the revised 3 rules for evaluating medical evidence. See AR 240–53. 4 In addition, as Plaintiff’s record contains significant evidence of alcohol and 5 drug use, the ALJ was required to conduct a drug addiction and alcoholism (“DAA”) 6 analysis to determine whether Plaintiff’s disabling limitations remain in the absence 7 of drug and alcohol use. 20 C.F.R. §§ 404.1535, 416.935; see also Bustamante v. 8 Massanari, 262 F.3d 949, 955 (9th Cir. 2001) (holding that if an ALJ finds Plaintiff 9 disabled, and there is evidence of drug or alcohol abuse, then the ALJ must 10 determine whether the drug and/or alcohol use is a contributing factor material to the 11 determination of disability). If a claimant’s remaining limitations would not be 12 disabling without DAA, then the claimant’s substance use is material and the ALJ 13 must deny benefits. Parra v. Astrue, 481 F.3d 742, 747–48 (9th Cir. 2007). The 14 claimant “bears the burden of proving that drug or alcohol addiction is not a 15 contributing factor material to his disability.” Id. at 748. 16 The ALJ, here, found that based on all of Plaintiff’s impairments, including 17 his substance use disorder, Plaintiff’s impairments would meet the criteria of several 18 listings and, therefore, qualify Plaintiff as disabled at step three. AR 18. However, 19 the ALJ then found that if Plaintiff stopped his substance use, Plaintiff would still 20 have a severe impairment or combination impairments but would no longer meet a 21 ORDER DENYING PLAINTIFF’S BRIEF AND GRANTING DEFENDANT’S BRIEF ~ 14 1 listing. AR 20. Moreover, the ALJ found, in the absence of substance use, there are 2 jobs that exist in significant numbers in the national economy that Plaintiff can 3 perform. AR 27. 4 In assessing the persuasiveness of medical source opinions in the record, the 5 ALJ found Dr. Porchia’s opinion unpersuasive. AR 25. The ALJ reasoned, in part: 6 [Dr. Porchia’s] testimony demonstrated insufficient grasp of the record and the agency’s policy for evaluating drug and alcohol abuse. She repeatedly mischaracterized the record and failed to evaluate the evidence during periods of sobriety with any specificity. In particular, she testified that she was unable to even identify any periods of sobriety, yet she offered an opinion regarding the “B” criteria only in the absence of substance abuse, which has no basis whatsoever. When the representative pointed her to evidence of one period of sobriety at 5F, pages 23 to 35 between November 2019 to December 2019, she asserted generally that the claimant remained markedly impaired during that period, but when I questioned her about the specific basis for that opinion, she did not cite objective evidence from that period, but rather from other periods when claimant was actively abusing drugs. She asserted, contrary to exhibit 5F/58-68 that the claimant's insight and judgment were poor even when sober. She failed to address any of the evidence discussed above in my symptom evaluation. She did not even mention exhibits 4F or 11F, which I find to be the most compelling evidence of the claimant’s functioning in the absence of drug abuse. She claimed two psychiatric evaluations opined that the claimant would be significantly limited without substance abuse, but they do no such thing (Ex 1F, 16F). While I agree with her that the claimant is markedly limited, I find this only to be the case when substance abuse is included, and I find her analysis of claimant’s functioning without substance abuse illogical and inconsistent with the evidence in the record. 7 8 9 10 11 12 13 14 15 16 17 18 AR 25. 19 The ALJ’s reasoning is supported by substantial evidence. For instance, as 20 the ALJ detailed earlier in his decision, Dr. Porchia cited to a July 2020 record to 21 ORDER DENYING PLAINTIFF’S BRIEF AND GRANTING DEFENDANT’S BRIEF ~ 15 1 support her opinion that Plaintiff “started to slowly decline again being depressed, 2 anxious, feeling overwhelmed, stressed out” even while he had “been clean in terms 3 of his report since March of 2020[.]” AR 48. However, that July 2020 treatment 4 record indicates only that Plaintiff had ceased his medications, not substance use, in 5 March 2020. AR 952–53. In addition, as the ALJ cites, another record supports 6 that Plaintiff reported substance use in May 2020, in the middle of that alleged 7 period of sobriety. AR 25, 688. In addition, Dr. Porchia testified that, even if 8 Plaintiff did not abuse drugs or alcohol his “extreme difficulties” with anxiety and 9 depression would still be present. AR 51. However, Dr. Porchia did not refer to any 10 record demonstrating “a period when [Plaintiff] was engaged in treatment, was being 11 regularly observed, and was clean and sober.” AR 58. Rather, when Plaintiff’s 12 counsel directed Dr. Porchia to evidence of one period of sobriety between 13 November 2019 to December 2019, Dr. Porchia asserted generally that the claimant 14 remained markedly impaired during that period. When the ALJ requested cites to 15 findings in that November to December 2019 period supporting marked limitations 16 even without substance use, Dr. Porchia cited to other portions of the record, from 17 other periods in time, when substance use was present. See AR 58–60 (hearing 18 transcript), 511–514 (December 2019 records cited by Dr. Porchia, but which 19 contain unremarkable mental status examination findings); 359–60 (2016 treatment 20 record in which Plaintiff reported that he was intoxicated by methamphetamine). 21 ORDER DENYING PLAINTIFF’S BRIEF AND GRANTING DEFENDANT’S BRIEF ~ 16 1 In sum, the ALJ’s reasoning goes to the key factor of supportability, and the 2 ALJ relied on substantial evidence. Furthermore, Plaintiff does not proffer support 3 other than Dr. Porchia’s testimony, the ALJ’s treatment of which the Court finds 4 reasonable, for finding that Plaintiff’s substance use was not a contributing factor 5 material to Plaintiff’s disability. See Parra, 481 F.3d 748. Accordingly, the Court 6 shall enter judgment in favor of the Commissioner and affirm the ALJ’s decision 7 with respect to his treatment of Dr. Porchia’s opinion and his assessment that DAA 8 is a contributing factor material to the determination of disability. 9 CONCLUSION 10 Having reviewed the record and the ALJ’s findings, this Court concludes that 11 the ALJ’s decision is supported by substantial evidence and free of harmful legal 12 error. Accordingly, IT IS HEREBY ORDERED that: 13 1. Plaintiff’s Opening Brief, ECF No. 13, is DENIED. 14 2. Defendant the Commissioner’s Brief, ECF No. 16, is GRANTED. 15 4. Judgment shall be entered for Defendant. 16 5. The District Court Clerk shall amend the docket in this matter to substitute 17 Martin O’Malley as the Commissioner of the Social Security 18 Administration. 19 / / / 20 21 ORDER DENYING PLAINTIFF’S BRIEF AND GRANTING DEFENDANT’S BRIEF ~ 17 1 IT IS SO ORDERED. The District Court Clerk is directed to enter this 2 Order, enter judgment as directed, provide copies to counsel, and close the file in 3 this case. 4 DATED March 19, 2024. 5 6 s/ Rosanna Malouf Peterson ROSANNA MALOUF PETERSON Senior United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 ORDER DENYING PLAINTIFF’S BRIEF AND GRANTING DEFENDANT’S BRIEF ~ 18

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