Chester v. Colvin, No. 1:2014cv03113 - Document 21 (E.D. Wash. 2015)

Court Description: ORDER Granting In Part 14 Plaintiff's Motion for Summary Judgment. Signed by Magistrate Judge John T. Rodgers. (MO, Courtroom Deputy)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF WASHINGTON 9 10 JADE DEVERE CHESTER, 11 No. 1:14-CV-03113-JTR Plaintiff, ORDER GRANTING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 12 13 v. 14 CAROLYN W. COLVIN, 15 Commissioner of Social Security, 16 Defendant. 17 18 BEFORE THE COURT are cross-Motions for Summary Judgment. ECF 19 Nos. 14, 19. Attorney D. James Tree represents Jade Devere Chester (Plaintiff); 20 Special Assistant United States Attorney Leisa A. Wolf represents the 21 Commissioner of Social Security (Defendant). The parties have consented to 22 proceed before a magistrate judge. ECF No. 5. After reviewing the administrative 23 record and the briefs filed by the parties, the Court GRANTS, in part, Plaintiff’s 24 Motion for Summary Judgment; DENIES Defendant’s Motion for Summary 25 Judgment; and REMANDS the matter to the Commissioner for additional 26 proceedings pursuant to 42 U.S.C. § 405(g). 27 28 JURISDICTION Plaintiff filed an application for Supplemental Security Income (SSI) on July ORDER GRANTING IN PART PLAINTIFF’S MOTION . . . - 1 1 21, 2010, with an amended disability onset date of July 21, 2010. Tr. 42, 129. 2 The application was denied initially and upon reconsideration. Administrative 3 Law Judge (ALJ) Gene Duncan held a video hearing on September 5, 2012, Tr. 34- 4 71, at which Plaintiff, represented by counsel, testified as did medical expert 5 Donna Veraldi, Ph.D., and vocational expert (VE) Trevor Duncan. The ALJ issued 6 an unfavorable decision on October 24, 2012. Tr. 15-33. The Appeals Council 7 denied review. Tr. 1-6. The ALJ’s 2012 decision became the final decision of the 8 Commissioner, which is appealable to the district court pursuant to 42 U.S.C. § 9 405(g). Plaintiff filed this action for judicial review on August 12, 2014. ECF No. 10 1. 11 STATEMENT OF FACTS 12 The facts of the case are set forth in the administrative hearing transcript, the 13 ALJ’s decision, and the briefs of the parties. They are only briefly summarized 14 here. 15 Plaintiff was 47 years old at the start of the hearing. Tr. 72. Plaintiff 16 stopped going to school in the ninth grade, but later earned a GED. Tr. 37. 17 Plaintiff can read but has trouble doing math. Tr. 38. Plaintiff previously worked 18 as a mechanic in a seafood processing plant and last attempted to work driving a 19 tractor at a cherry orchard. Tr. 38-39. Plaintiff testified that he can get a job, but 20 after a matter of weeks or months, he will “just walk away from it.” Tr. 38. 21 Plaintiff attributes his inability to hold a job to getting angry with people and his 22 bipolar disorder. Tr. 38. 23 Plaintiff testified that he regularly drinks alcohol. Tr. 40. Plaintiff drinks 24 about eighteen cans of beer every three or four days. Tr. 40. Plaintiff testified that 25 he last used street drugs in 2007. Tr. 40. Plaintiff testified that he drinks because 26 he cannot afford medication. Tr. 40. 27 28 Plaintiff testified that he is anxious and depressed, doesn’t like or get along with people, and doesn’t like authority figures. Tr. 41. ORDER GRANTING IN PART PLAINTIFF’S MOTION . . . - 2 1 2 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 3 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 4 1039 (9th Cir. 1995). The Court reviews the ALJ’s determinations of law de novo, 5 deferring to a reasonable interpretation of the statutes. McNatt v. Apfel, 201 F.3d 6 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed only if it is 7 not supported by substantial evidence or if it is based on legal error. Tackett v. 8 Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as 9 being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put 10 another way, substantial evidence is such relevant evidence as a reasonable mind 11 might accept as adequate to support a conclusion. Richardson v. Perales, 402 12 U.S. 389, 401 (1971). If the evidence is susceptible to more than one rational 13 interpretation, the court may not substitute its judgment for that of the ALJ. 14 Tackett, 180 F.3d at 1097. Nevertheless, a decision supported by substantial 15 evidence will still be set aside if the proper legal standards were not applied in 16 weighing the evidence and making the decision. Brawner v. Secretary of Health 17 and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). If substantial evidence 18 supports the administrative findings, or if conflicting evidence supports a finding 19 of either disability or non-disability, the ALJ’s determination is conclusive. 20 Sprague v. Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). 21 SEQUENTIAL EVALUATION PROCESS 22 The Commissioner has established a five-step sequential evaluation process 23 for determining whether a person is disabled. 20 C.F.R. § 416.920(a); see Bowen 24 v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through four, the burden of 25 proof rests upon claimants to establish a prima facie case of entitlement to 26 disability benefits. Tackett, 180 F.3d at 1098-1099. This burden is met once 27 claimants establish that physical or mental impairments prevent them from 28 engaging in their previous occupations. 20 C.F.R. § 416.920(a)(4). If claimants ORDER GRANTING IN PART PLAINTIFF’S MOTION . . . - 3 1 cannot do their past relevant work, the ALJ proceeds to step five, and the burden 2 shifts to the Commissioner to show that (1) the claimants can make an adjustment 3 to other work, and (2) specific jobs exist in the national economy which claimants 4 can perform. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193-1194 5 (2004). If claimants cannot make an adjustment to other work in the national 6 economy, a finding of “disabled” is made. 20 C.F.R. § 416.920(a)(4)(i-v). 7 8 9 10 11 12 ADMINISTRATIVE DECISION On October 24, 2012, the ALJ issued a decision finding Plaintiff was not disabled as defined in the Social Security Act. At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since July 21, 2010, the application date. Tr. 20. At step two, the ALJ determined Plaintiff had the following severe 13 impairments: Left Ear Hearing Loss—Tinnitus Partial; Depressive Disorder, NOS; 14 Posttraumatic Stress Disorder (PTSD); and, Alcohol Abuse. Tr. 20. 15 At step three, the ALJ found Plaintiff’s impairments met Listings 12.04, 16 12.06, and 12.09 when Plaintiff’s substance abuse was taken into account. Tr. 21. 17 If Plaintiff stopped the substance use, the ALJ found that Plaintiff’s remaining 18 limitations would still have a severe impairment or combination of impairments, 19 but his impairments would not meet the Listings singly or in combination. Tr. 23. 20 At step four, the ALJ found that if Plaintiff stopped the substance use, 21 Plaintiff would have the residual function capacity (RFC) to perform detailed 22 medium to heavy work with the following limitations: 23 24 25 26 27 28 [H]e would need to rest one to two minutes every hour; daily physical therapy for his first few weeks of employment so he can condition himself, but if employer won’t allow it, he will have to do it on his own time; work on objective criteria of the job goals regarding objectives not quotas; work independently; his assignments should focus on using tools and working with material, not involving people as the subject matter; he would need frequent supervision by a ORDER GRANTING IN PART PLAINTIFF’S MOTION . . . - 4 5 supervisor for the first month on the job; should have no direct access to drugs or alcohol; not perform security, medical, or health work; he would be off task 4.5% of the work day in small increments; should not be responsible for executive decision-making; should have superficial contact with the public more than face-to-face; should not perform fast paced production work or conveyor belt work; and should have only occasional interaction with coworkers. 6 Tr. 25. The ALJ concluded that, if Plaintiff stopped the substance use, he would be 7 able to perform his past relevant work as a material handler. Tr. 29. 1 2 3 4 The ALJ further found that Plaintiff’s substance use disorder is a 8 9 contributing factor material to Plaintiff’s disability because Plaintiff would not be 10 disabled if he stopped the substance use; therefore, the ALJ determined that 11 Plaintiff was not disabled at any time from the date of Plaintiff’s application to the 12 date of the ALJ’s decision. Tr. 29. 13 ISSUES The question presented is whether substantial evidence supports the ALJ’s 14 15 decision denying benefits and, if so, whether that decision is based on proper legal 16 standards. Plaintiff contends the ALJ erred by (1) not making required factual 17 determinations at step four; (2) not including all of Plaintiff’s functional limitations 18 in his hypothetical questions to the VE; (3) finding Plaintiff did not provide 19 adequate proof for not being able to afford mental health treatment; and, (4) failing 20 to properly evaluate Plaintiff’s substance use in light of his mental impairments. 21 22 DISCUSSION A. Drug Addiction or Alcoholism (DAA) 23 Plaintiff argues that his substance use and mental impairments are 24 inexorably intertwined and that the ALJ erred by not following Social Security 25 Ruling (SSR) 13-2p in evaluating the effect of Plaintiff’s substance abuse on his 26 mental impairments. ECF No. 14 at 20-22. 27 The Social Security Act bars payment of benefits when DAA is a 28 contributing factor material to a disability claim. 42 U.S.C. §§ 423(d)(2)(C) & ORDER GRANTING IN PART PLAINTIFF’S MOTION . . . - 5 1 1382(a)(3)(J); Bustamante v. Massanari, 262 F.3d 949 (9th Cir. 2001). If there is 2 evidence from an acceptable medical source that Plaintiff has a substance abuse 3 disorder and the claimant succeeds in proving disability, the Commissioner must 4 determine whether DAA is material to the determination of disability. 20 C.F.R. § 5 416.935 (emphasis added); SSR 13-2p at ¶ 8(2) (Feb. 20, 2013), available at 2013 6 WL 621536 at *4. That is, the ALJ must perform the sequential evaluation process 7 a second time, separating out the impact of the claimant’s DAA, to determine if he 8 would still be found disabled if he stopped using drugs or alcohol. Bustamante, 9 262 F.3d at 955. DAA is a materially contributing factor if the claimant would not 10 meet the Commissioner’s definition of disability if claimant were not using drugs 11 or alcohol. 20 C.F.R. § 416.935(b). A claimant has the burden of showing that 12 DAA is not a contributing factor material to disability. Parra v. Astrue, 481 F.3d 13 742, 748 (9th Cir. 2007). 14 Taking into account Plaintiff’s substance abuse, the ALJ found Plaintiff 15 disabled at step three as Plaintiff met Listings 12.04, 12.06, and 12.09. Tr. 21. 16 Due to evidence of Plaintiff’s alcohol abuse, the ALJ went through the sequential 17 process a second time separating the effects of Plaintiff’s substance abuse from his 18 mental impairments. At step three, the ALJ found that, without alcohol abuse, 19 Plaintiff’s impairments did not meet the Listings singly or in combination as 20 Plaintiff would have only mild limitations in activities of daily living, moderate 21 limitations in social functioning, and moderate limitations in concentration, 22 persistence, and pace, and no episodes of decompensation. Tr. 23-24. At step 23 four, the ALJ formulated Plaintiff’s RFC (without substance abuse) and found that 24 Plaintiff was capable of engaging in his past relevant work as a material handler. 25 Tr. 29. Because the ALJ found that Plaintiff would not be disabled if he stopped 26 the substance use, the ALJ concluded that Plaintiff’s substance use disorder was a 27 contributing factor material to Plaintiff’s disability. Tr. 29. 28 Preliminary, Plaintiff criticizes the ALJ for “not follow[ing] the ORDER GRANTING IN PART PLAINTIFF’S MOTION . . . - 6 1 requirements of SSR 13-2p.” ECF No. 14 at 21. But the Court notes that SSR 13- 2 2p was not published until February 20, 2013, and did not go into effect until 3 March 22, 2013. As the ALJ conducted the hearing and issued a decision in this 4 case well before these dates, the ALJ is excused from specifically relying on SSR 5 13-2p. Furthermore, SSR 13-2p does not change existing regulations, but rather 6 consolidates and explains them. Despite not relying on SSR 13-2p, the ALJ’s 7 materiality analysis is still in accord with the regulatory framework and case law. 8 See 20 C.F.R. § 416.935; Bustamante, 262 F.3d 949. 9 Plaintiff points to “policy” language in SSR 13-2p that states the 10 Commissioner does “not know of any research data that [it] can use to reliably 11 predict that any given claimant’s co-occurring mental disorder would improve, or 12 the extent to which it would improve, if the claimant were to stop using drugs or 13 alcohol.” ECF No. 14 at 20 (citing SSR 13-2p). Plaintiff argues that this policy 14 language requires that ALJ to look “for periods of sobriety in order to evaluate the 15 actual effect of substance abuse on mental health.” Id. The Court agrees with 16 Plaintiff that periods of sobriety are useful in evaluating whether a claimant’s 17 substance abuse is material to his or her disability. See Radford v. Colvin, 2014 18 WL 688285, at *7 (E.D. Wash. Feb. 21, 2014) (ALJ should “consider additional 19 evidence, including periods of abstinence, to determine whether a claimant would 20 still be disabled in the absence of DAA”). But the ALJ did consider evidence 21 gathered during Plaintiff’s periods of alleged sobriety. As discussed infra, Plaintiff 22 reported being sober for two years at the time of Dr. Dougherty’s December 2010 23 consultative examination. Tr. 250-58. The Court finds the ALJ made no error in 24 not identifying specific periods of sobriety. 25 Plaintiff’s argument that the ALJ failed to identify periods of sobriety is 26 further undermined because it is uncertain whether Plaintiff actually had periods of 27 extended sobriety for the ALJ to identify. “[W]hen the claimant is actively 28 abusing alcohol or drugs, [the DAA] determination will necessarily be hypothetical ORDER GRANTING IN PART PLAINTIFF’S MOTION . . . - 7 1 and therefore more difficult than the same task when the claimant has stopped.” 2 Brueggemann v. Barnhart, 348 F.3d 689, 695 (8th Cir. 2003). As noted by the 3 ALJ, Plaintiff was an inconsistent historian regarding his alcohol use. Tr. 23. For 4 instance, in January 2011, Plaintiff admitted to drinking occasionally, Tr. 283, but 5 this was only one month after Dr. Dougherty’s evaluation at which Plaintiff stated 6 he had consumed alcohol for most of his life but had been sober for two years, Tr. 7 252-53. At the hearing, Plaintiff testified that he was regularly drinking beer. Tr. 8 40. Plaintiff’s admission of alcohol use contemporaneous to the hearing date, 9 combined with his past inconsistent reporting, casts doubt on whether Plaintiff has 10 ever obtained extended sobriety. Plaintiff’s active alcohol use makes the DAA 11 analysis “more difficult” and makes the ALJ’s attempt to determining his 12 functioning when sober somewhat “hypothetical.” Brueggemann, 348 F.3d at 695. 13 Contrary to Plaintiff’s argument, the Court finds substantial evidence 14 supports the ALJ’s DAA materiality analysis. See Benelli v. Comm'r of Soc. Sec., 15 2015 WL 3441992, at *23 (D. Mass. May 28, 2015) (“The dispositive inquiry is 16 whether substantial evidence supports the [DAA] materiality finding.”). 17 Dr. Dougherty completed a consultative evaluation of Plaintiff in December 18 2010. Tr. 250-58. Plaintiff reported to Dr. Dougherty that he had been clean and 19 sober for two years and Dr. Dougherty found Plaintiff’s substance dependence 20 disorders were all in sustained remission. Tr. 257. Dr. Dougherty noted that 21 Plaintiff reported that his alcohol use caused past relationship, financial, and legal 22 problems, and made it so “[h]e could not keep a job.” Tr. 252. Dr. Dougherty 23 concluded that Plaintiff’s social skills were “good,” his “thinking was basically 24 logical and goal-directed,” his “intelligence appears to be good,” and that Plaintiff 25 “should be able to understand, remember, and follow both simple and complex 26 instructions.” Tr. 258. 27 28 The ALJ did not specifically state what weight he gave to Dr. Dougherty’s opinions, but he appeared to credit Dr. Dougherty’s evaluation as the ALJ ORDER GRANTING IN PART PLAINTIFF’S MOTION . . . - 8 1 mentioned it throughout the his decision. The ALJ summarized Dr. Dougherty’s 2 opinion as finding that Plaintiff “was capable of maintaining superficial social 3 interactions and if he remained clean and sober he could maintain a job, as that was 4 one of the main reasons he alleged he could not in the past.” Tr. 27. This is not an 5 unreasonable reading of Dr. Dougherty’s evaluation. Dr. Dougherty did not 6 specifically state that “if [Plaintiff] remained clean and sober he could maintain a 7 job,” as found by the ALJ, Tr. 27, but the question of whether a claimant possesses 8 the ability to work is a question reserved for the Commissioner. Edlund v. 9 Massanari, 253 F.3d 1152, 1156 (9th Cir. 2011). To the extent that Dr. 10 Dougherty’s opinion is subject to multiple reasonable interpretations, the Court 11 must defer to the ALJ. Tackett, 180 F.3d at 1097. 12 The testimony of Dr. Veraldi, the medical expert, is consistent with Dr. 13 Dougherty’s evaluation. At the hearing, the ALJ asked Dr. Veraldi whether 14 Plaintiff’s alcohol use could be separated from his other mental impairments; Dr. 15 Veraldi stated that the two issues were “really intermingled.” Tr. 53-54. But Dr. 16 Veraldi concluded that Plaintiff “would function better if he was sober,” and that, 17 without substance use, Plaintiff’s other mental impairments, particularly his PTSD, 18 would cause mild limitations in activities of daily living, moderate limitations in 19 social functioning, and moderate limitations in concentration, persistence, and 20 pace. Tr. 54. The ALJ gave Dr. Veraldi’s opinions significant weight reasoning, 21 in part, that Dr. Veraldi’s opinions were consistent with Dr. Dougherty’s. Tr. 28. 22 Plaintiff argues that the ALJ erred in relying on Dr. Veraldi’s opinions as Dr. 23 Veraldi testified that separating Plaintiff’s substance abuse from his other mental 24 impairments was “complicated, perhaps beyond [Dr. Veraldi’s] ability to sort out.” 25 ECF No. 14 at 21 (quoting Tr. 52-53). Plaintiff’s argument that Dr. Veraldi made 26 the “explicit caveat of not being able to truly separate [Plaintiff’s] PTSD from his 27 alcohol use,” ECF No. 14 at 21-22, is not unreasonable. Again, however, where 28 the evidence is susceptible to more than one rational interpretation, the Court may ORDER GRANTING IN PART PLAINTIFF’S MOTION . . . - 9 1 not substitute its judgment for that of the ALJ. Tackett, 180 F.3d at 1097. In conclusion, the Court finds the ALJ’s DAA materiality analysis legally 2 3 sound and supported by substantial evidence. 4 B. 5 Credibility Plaintiff does not contest the ALJ’s finding that Plaintiff’s symptom 6 reporting is not entirely credible. Nevertheless, Plaintiff takes issue with the ALJ’s 7 finding that Plaintiff’s credibility is diminished because he failed to seek regular 8 treatment. Plaintiff argues that he could not afford treatment and that the ALJ 9 erred in placing “an impossibly high burden” on Plaintiff to explain why he did not 10 seek additional treatment. ECF No. 14 at 18-20. 11 It is generally the province of the ALJ to make credibility determinations, 12 Andrews, 53 F.3d at 1039, but the ALJ’s findings must be supported by specific 13 cogent reasons, Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Absent 14 affirmative evidence of malingering, the ALJ’s reasons for rejecting the claimant’s 15 testimony must be “specific, clear and convincing.” Smolen v. Chater, 80 F.3d 16 1273, 1281 (9th Cir. 1996). “General findings are insufficient: rather the ALJ 17 must identify what testimony is not credible and what evidence undermines the 18 claimant’s complaints.” Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). 19 The ALJ provided a number of reasons for finding Plaintiff less than 20 credible. The ALJ found that objective medical evidence did not support the level 21 of physical and mental limitation claimed by Plaintiff. Tr. 26-27. The ALJ noted 22 that Plaintiff inconsistently reported the severity of his depression and mental 23 disorders. Tr. 27. The ALJ also noted that Plaintiff made inconsistent statements 24 about his alcohol use. Tr. 27-29. The ALJ rejected Plaintiff’s claim that he could 25 not afford treatment and that he was ineligible for state medical benefits because of 26 his wife’s income. Tr. 28. At the hearing, the ALJ asked Plaintiff to provide 27 documentation or proof that that he could not receive mental health treatment or 28 medications due to his financial situation. Tr. 28, 62. The ALJ also required ORDER GRANTING IN PART PLAINTIFF’S MOTION . . . - 10 1 Plaintiff to show that medication cost more than the beer Plaintiff purchased. Tr. 2 28, 62. The ALJ gave Plaintiff “more than three weeks” to provide such proof. Tr. 3 28. 4 The Court agrees with Plaintiff that the ALJ likely erred in requiring 5 Plaintiff to make this showing.1 An unexplained failure to seek treatment may be 6 grounds to find a claimant less than credible, 20 C.F.R. § 416.930, but failure to 7 seek treatment is generally excused if the claimant cannot afford it, Gamble v. 8 Chater, 68 F.3d 319, 321 (9th Cir. 1995). But given the ALJ’s other reasons for 9 finding Plaintiff less than credible, the Court find the error harmless. An error is 10 harmless when “it is clear from the record that the . . . error was inconsequential to 11 the ultimate nondisability determination.” Tommasetti v. Astrue, 533 F.3d 1035, 12 1038 (9th Cir. 2008). The ALJ’s imposition of a high standard on Plaintiff to 13 prove he could not afford treatment is inconsequential to the ultimate nondisability 14 determination because the ALJ provided several other specific, clear, and 15 convincing reasons for finding Plaintiff less than credible. See Tr. 26-29; Bray v. 16 Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009) (ALJ may cite 17 inconsistencies between a claimant’s testimony and the objective medical evidence 18 in discounting the claimant’s testimony); Smolen, 80 F.3d at 1284 (ALJ may 19 consider “ordinary techniques of credibility evaluation, such as the claimant’s . . . 20 prior inconsistent statements . . . and other testimony by the claimant that appears 21 less than candid”); Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (ALJ’s 22 finding that claimant was not a reliable historian regarding drug and alcohol usage 23 supports negative credibility determination). Plaintiff does not argue that these 24 25 1 The Court considers Plaintiff’s argument that the ALJ imposed too short of 26 a time frame to provide the documentation, ECF No. 14 at 18, somewhat 27 disingenuous. At the hearing, Plaintiff’s counsel specifically requested three 28 weeks in which to provide the documentation. Tr. 62. ORDER GRANTING IN PART PLAINTIFF’S MOTION . . . - 11 1 reasons are based on legal error or not supported by substantial evidence. The ALJ 2 gave sufficient reasons in support of his adverse credibility determination and any 3 error is harmless. 4 C. 5 Evaluation of Medical Evidence Plaintiff argues the ALJ erred in rejecting the opinions of social workers 6 Gabriela Mondragon and Russell Anderson who completed evaluations for 7 Plaintiff for purposes of his applications for state benefits.2 ECF No. 14 at 14-17. 8 Only acceptable medical sources, including licensed physicians and 9 psychologists, can provide evidence to establish an impairment. 20 C.F.R. § 10 11 2 The ALJ noted that Mr. Anderson and Ms. Mondragon were supervised by 12 Phillip Rodenberger, Ph.D. Tr. 22 (citing Tr. 219-41). The Court can find no 13 evidence of Dr. Rodenberger’s supervision in any part of these evaluations. Mr. 14 Anderson and Ms. Mondragon signed their evaluations as the “examining 15 professional[s].” Tr. 224, 233, 239. There are signatures of a “releasing authority” 16 at Tr. 224 and 233, but it is impossible to tell if either of these signatures are Dr. 17 Rodenberger’s. Defendant appears to concede that Mr. Anderson and Ms. 18 Mondragon’s evaluations were made under Dr. Rodenberger’s supervision as 19 Defendant analyzes the ALJ’s weighing of these evaluations under the “specific 20 and legitimate” standard (used in analyzing the weight given to opinions of an 21 acceptable medical source that are contradicted by other acceptable medical 22 sources). ECF No. 19 at 12. It is unclear how Plaintiff classifies Mr. Anderson 23 and Ms. Mondragon as Plaintiff sets forth the “specific and legitimate” standard, 24 ECF No. 14 at 14, but also mentions the rules for evaluating non-acceptable 25 medical sources, ECF No. 14 at 15. As there is no conclusive evidence of Dr. 26 Rodenberger’s involvement in Mr. Anderson’s and Ms. Mondragon’s evaluations, 27 the Court considers Mr. Anderson and Ms. Mondragon “other” sources. 20 C.F.R. 28 § 416.913(d). ORDER GRANTING IN PART PLAINTIFF’S MOTION . . . - 12 1 416.913(a). The ALJ should give more weight to the opinion of an acceptable 2 medial source than to the opinion of an “other source,” such as a therapist or social 3 worker. 20 C.F.R. § 416.913(d). An ALJ is required, however, to consider 4 evidence from “other sources,” 20 C.F.R. § 416.913(d); SSR 06-03p, “as to how an 5 impairment affects a claimant’s ability to work,” Sprague, 812 F.2d at 1232. An 6 ALJ must give “germane” reasons to discount evidence from “other sources.” 7 Dodrill v. Shalala, 12 F.3d 915 (9th Cir. 1993). Germane reasons to discount an 8 opinion include contradictory opinions and lack of support in the record. Thomas, 9 278 F.3d at 957. 10 Mr. Anderson completed a psychological/psychiatric evaluation of Plaintiff 11 in March 2009. Tr. 236-41. Mr. Anderson noted that Plaintiff exhibited a number 12 of mild and moderate mental health symptoms. Tr. 237. Mr. Anderson diagnosed 13 Plaintiff with Bipolar II Disorder, PTSD, and Alcohol Abuse. Tr. 237. Mr. 14 Anderson opined that Plaintiff’s impairments were not caused by alcohol abuse, 15 but alcohol “[e]xacerbates [P]laintiff’s depressive episodes [and] impairs [his] 16 thinking and concentration.” Tr. 237-38. Mr. Anderson found Plaintiff had a 17 number of mild and moderate limitations relating to his cognitive and social 18 functioning. Tr. 238. Mr. Anderson thought alcohol treatment would likely 19 “improve [Plaintiff’s] concentration [and] memory,” medication would likely 20 “stabilize” Plaintiff’s mood swings, and psychotherapy would be necessary to 21 address Plaintiff’s trauma issues. Tr. 237-38. Mr. Anderson concluded that, 22 “[a]fter protracted treatment, Plaintiff may be able to work at solitary, low stress 23 work to accommodate anxiety, and relational [problems].” Tr. 239. 24 Mr. Anderson completed a second psychological/psychiatric evaluation of 25 Plaintiff in December 2009. Tr. 228-35. Mr. Anderson noted Plaintiff had 26 symptoms of depression, anxiety, and hypomania. Tr. 229. Mr. Anderson 27 diagnosed Plaintiff with Bipolar II disorder, PTSD, and alcohol abuse. Tr. 230. 28 Mr. Anderson noted that Plaintiff’s alcohol use “[c]ontributes to depression, ORDER GRANTING IN PART PLAINTIFF’S MOTION . . . - 13 1 disrupts[] concentration and memory impair[ments], thinking and judgment.” Tr. 2 230. Mr. Anderson found Plaintiff had mostly moderate and marked limitations 3 relating to his cognitive and social functioning. Tr. 231. In his medical source 4 statement, Mr. Anderson concluded: “Plaintiff has not been able to demonstrate an 5 ability to gain or sustain employment for the past 3 years. In addition to his mental 6 health problems, his legal problems are a factor in getting and maintaining 7 employment, as well as his age. He is currently too unstable to work.” Tr. 231. 8 Ms. Mondragon completed a psychological/psychiatric evaluation of 9 Plaintiff in June 2010. Tr. 219-26. Ms. Mondragon noted that Plaintiff’s 10 symptoms included poor concentration, sleep disturbance, flashbacks, and 11 hypervigilance. Tr. 220-21. Ms. Mondragon diagnosed Plaintiff with PTSD and 12 alcohol abuse based on Plaintiff’s report of sustained full remission for two years. 13 Tr. 221. Ms. Mondragon noted that there was no indication of recent alcohol use. 14 Tr. 221. Ms. Mondragon found Plaintiff markedly limited in a number of 15 cognitive and social areas of functioning. Tr. 222-23. Ms. Mondragon’s medical 16 source statement states: 17 18 19 20 [Plaintiff] reports he had obtained his GED and studied for 2 years in college for a line mechanic. He earned 2 certificates at that time, however is unable of validity due to length of time when obtained. He has an interest in returning to school and interested in contacting DVR for additional support to return to school. 21 22 Tr. 223. Ms. Mondragon opined that Plaintiff could benefit from mental health 23 treatment including individual/group therapy, case management services, and 24 medication management. Tr. 223. 25 The ALJ gave limited weight to the psychological evaluations completed by 26 Ms. Mondragon and Mr. Anderson. Tr. 22. The ALJ reasoned that these 27 evaluations were “largely based” on Plaintiff’s “self-reported symptoms and 28 complaints,” which the ALJ did not find entirely credible. Tr. 22. The ALJ also ORDER GRANTING IN PART PLAINTIFF’S MOTION . . . - 14 1 reasoned that Plaintiff had an incentive to exaggerate his symptoms, as he sought 2 the evaluations for “the continuation of his state assistance.” Tr. 22. The ALJ 3 further reasoned that “DSHS evaluators usually do not have a treating relationship 4 with the claimant.” Tr. 22. The ALJ reasoned that the evaluation forms were 5 “completed by checking boxes and contain few objective findings in support of the 6 degree of limitation opined.” Tr. 22. Finally, the ALJ reasoned that the 7 “definitions of limitations used by DSHS differ from the definitions of the Social 8 Security Act Regulations for assessing mental disorders.” Tr. 23. 9 10 11 The ALJ gave at least three germane reasons for giving little weight to Mr. Anderson and Ms. Mondragon’s evaluations. First, an ALJ may reject a medical opinion if it is based on a claimant’s 12 subjective complaints which were properly discounted. Tonapetyan v. Halter, 242 13 F.3d 1144, 1149 (9th Cir. 2001). As discussed supra, the Court finds the ALJ’s 14 adverse credibility determination supported by substantial evidence and any errors 15 harmless. Plaintiff argues that the ALJ did not make an adequate finding that the 16 DSHS evaluations are based more heavily on Plaintiff’s self-report than the 17 evaluators’ clinical observations. ECF No. 14 at 15-16. But Mr. Anderson and 18 Ms. Mondragon’s significant reliance on Plaintiff’s (less than credible) self-reports 19 is apparent, as they did not conduct any psychological testing and both of their 20 medical source statements simply reiterate Plaintiff’s problems rather than provide 21 insight into what Plaintiff can do despite his limitations. See Tr. 223, 231. 22 Reliance on Plaintiff’s unreliable self-reporting was a germane reason for 23 discounting the opinions of Mr. Anderson and Ms. Mondragon. 24 Second, the ALJ reasoned that “[Department of Social and Health Services 25 (DSHS)] evaluators usually do not have a treating relationship with the claimant.” 26 Tr. 22. Although this a generalization, the reasoning applies to this case as the 27 record contains no treatment notes, or other evidence, indicating that either Mr. 28 Anderson or Ms. Mondragon treated Plaintiff on a regular, or even periodical, ORDER GRANTING IN PART PLAINTIFF’S MOTION . . . - 15 1 basis. Just as the opinions of examining physicians are generally entitled to less 2 weight than the opinions of treating physicians, Lester, 81 F.3d at 830, the opinions 3 of an examining “other” source is not entitled to as much weight as the opinion of 4 a treating “other” source.3 Lack of a treating relationship is a germane reason to 5 discount the opinions of Mr. Anderson and Ms. Mondragon. 6 Third, the fact that definitions of limitations used by DSHS differ from the 7 definitions of the Social Security Act regulations used for assessing mental 8 disorders is a germane reason to discount the opinions of “other” sources. See 9 Martin v. Astrue, 2011 WL 3626771, at *10 (E.D. Wash. Aug. 17, 2011) 10 (comparing DSHS definitions to definitions contained in Social Security 11 regulations and noting the “differences [between the definitions] reduce the value 12 of an opinion based on the DSHS definitions”). 13 14 In light of these germane reasons, the Court need not address the ALJ’s additional reasons for giving limited weight to Mr. Anderson and Ms. 15 16 3 Plaintiff argues that, “[g]iven the growing prominence of non-acceptable 17 medical sources, the same preference for examining sources should be given to all 18 examining medical sources.” ECF No. 14 at 15 (citing SSR 06-3p). The Court 19 agrees that there are cases where an opinion of an “other” medical source may 20 outweigh the opinion of an acceptable medical source. For instance, SSR 06-3p 21 suggests that an “other” medical source might outweigh an acceptable medical 22 source when the “other” medical source “has seen the individual more often than 23 the [acceptable medical] source and has provided better supporting evidence and a 24 better explanation for his or her opinion.” But neither Mr. Anderson nor Ms. 25 Mondragon appear to have acted as Plaintiff’s primary care provider or treated 26 Plaintiff for purposes other than his DSHS evaluations. The Court disagrees that 27 Mr. Anderson and Ms. Mondragon’s opinions are entitled to the same, or greater, 28 weight as the opinions of acceptable medical sources. ORDER GRANTING IN PART PLAINTIFF’S MOTION . . . - 16 1 Mondragon’s evaluations. The ALJ did not err in giving little weight to the 2 opinions of Mr. Anderson and Ms. Mondragon. 3 D. Step four 4 Plaintiff argues that the ALJ erred at step four by not including a noise 5 limitation in the ALJ’s hypothetical questions to the VE and by not making explicit 6 findings supporting the ALJ’s conclusion that Plaintiff was capable of performing 7 his past relevant work (PRW) as a material handler. ECF No. 14 at 7-12. 8 At step four of the sequential evaluation process, the ALJ must examine a 9 claimant’s RFC and the physical and mental demands of the claimant’s PRW. 20 10 C.F.R. § 416.920(e). In finding that a claimant has the capacity to perform a past 11 relevant job, the ALJ’s decision must contain the following: 12 1. A finding of fact as to the individual’s RFC, 13 2. A finding of fact as to the physical and mental demands of the past 14 job/occupation, and 3. A finding of fact that the individual’s RFC would permit a return to his or 15 16 her past job or occupation. 17 SSR 82-62. “Although the burden of proof lies with the claimant at step four, the 18 ALJ still has a duty to make the requisite factual findings to support his 19 conclusion.” Pinto v. Massanari, 249 F.3d 840, 844 (9th Cir. 2001) (citing SSR 20 82–62). 21 1. Residual functional capacity (RFC) 22 Plaintiff argues that the ALJ should have included a noise limitation in his 23 hypothetical questions to the VE. ECF No. 14 at 12-14. As “[h]ypothetical 24 questions posed to the [VE] must set out all the limitations and restrictions of the 25 particular claimant,” Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988), the 26 Court finds Plaintiff’s argument also applies to the ALJ’s formulation of Plaintiff’s 27 RFC. 28 A claimant’s RFC is “the most [a claimant] can still do despite [her] ORDER GRANTING IN PART PLAINTIFF’S MOTION . . . - 17 1 limitations.” 20 C.F.R. § 416.945(a); see also 20 C.F.R. Part 404, Subpart P, 2 Appendix 2, § 200.00(c) (defining RFC as the “maximum degree to which the 3 individual retains the capacity for sustained performance of the physical-mental 4 requirements of jobs.”). In formulating an RFC, the ALJ weighs medical and other 5 source opinion and also considers the claimant’s credibility and ability to perform 6 daily activities. See, e.g., Bray v. Comm’r, Soc. Sec. Admin., 554 F.3d 1219, 1226 7 (9th Cir. 2009). 8 9 State agency medical consultant Alfred Scottolini, M.D., reviewed Plaintiff’s medical records in December 2010, noting a diagnosis of mild to 10 moderate sensorineural loss in the right ear. Tr. 246. Dr. Scottolini opined that 11 Plaintiff should “avoid all exposure to noise representing acoustic trauma.” Tr. 12 246. Dr. Scottolini based this limitation on an audiological evaluation dated 13 December 2, 2010. Tr. 249, 278. The ALJ gave significant weight to Dr. 14 Scottolini’s opinions. Tr. 26. The ALJ also found that Plaintiff had a severe 15 impairment of Left Ear Hearing Loss—Tinnitus Partial at step two. Tr. 20. But 16 the ALJ did not include a noise limitation in his formulation of Plaintiff’s RFC. 17 Tr. 25. The ALJ seemed to discount any limitations associated with Plaintiff’s 18 hearing by reasoning that state agency evaluator Guillermo Rubio, M.D., reviewed 19 Plaintiff’s most recent audiological evaluation (Tr. 278) and concluded that 20 Plaintiff did not meet any listing level for hearing impairment. Tr. 23 (citing Tr. 21 293). The ALJ further noted that Plaintiff did not have any auditory difficulties 22 during the hearing and Plaintiff never alleged any physical limitations, but rather 23 focused solely on his mental impairments, Tr. 23. 24 The ALJ erred in rejecting Dr. Scottolini’s assessment that Plaintiff should 25 “avoid all exposure to noise representing acoustic trauma.” Tr. 246. Simply 26 because this limitation does not meet a Listing does not mean that it does not limit 27 Plaintiff’s ability to work to some lesser degree. Furthermore, the ALJ’s assertion 28 that Plaintiff never alleged physical impairments is incorrect. Although Plaintiff ORDER GRANTING IN PART PLAINTIFF’S MOTION . . . - 18 1 focused on his mental impairments at the hearing, see Tr. 41, in his September 2 2010 Function Report, he checked a box indicated he had problems with hearing 3 and further stated, “I can[’]t hear in one ear and hearing is going in the other [ear].” 4 Tr. 168; see also Tr. 250 (Plaintiff reporting to Dr. Dougherty that “[h]e is deaf in 5 the left ear [and] losing hearing in his right ear”). Finally, the fact that Plaintiff did 6 not have difficulty hearing at the administrative hearing is not necessarily 7 inconsistent with the limitation assessed by Dr. Scottolini, i.e., Plaintiff’s need to 8 avoid “noise representing acoustic trauma.” Tr. 246. In conclusion, the ALJ found 9 Plaintiff had a severe hearing impairment at step two; the ALJ gave significant 10 weight to Dr. Scottolini’s opinion, which found Plaintiff’s hearing resulted in a 11 functional limitation; and, the ALJ did not provide adequate reasons for 12 discounting this limitation. On remand, the ALJ should give reasons for rejecting 13 this limitation or should include a noise limitation in his RFC formulation and 14 inquiries to the VE consistent with Dr. Scottolini’s opinions.4 15 2. Past relevant work (PRW) 16 Based on the testimony of the VE, the ALJ concluded that Plaintiff had 17 PRW as a material handler. Tr. 29. Plaintiff argues that the ALJ failed to make 18 specific findings regarding which of Plaintiff’s past jobs qualified as work as a 19 material handler. ECF No. 14 at 8-9; see also U.S. Dep’t of Labor, Dictionary of 20 Occupational Titles (DOT) 929.687-030 available at 1991 WL 688174 (Material 21 Handler). 22 23 PRW is work that (1) claimants performed in the last 15 years, (2) lasted long enough for claimants to learn how to do the job, and (3) rises to the level of 24 25 4 As no evidence currently in the record contradicts Dr. Scottolini’s opinions 26 regarding Plaintiff’s hearing limitations, the Court posits that the ALJ would need 27 to provide “clear and convincing” reasons for rejecting such limitation. See Baxter 28 v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991). ORDER GRANTING IN PART PLAINTIFF’S MOTION . . . - 19 1 “substantial gainful activity,” (SGA). 20 C.F.R. § 416.965(a); § 416.960(b)(1). 2 SGA is work that “involves doing significant physical or mental activities” that is 3 done “for pay or profit.” 20 C.F.R. § 416.972(a)-(b). 4 Plaintiff argues that based on his earning records, he only engaged in SGA 5 in the year 1998. Defendant does not appear to contest this assertion. Rather, 6 Defendant argues that “[a]lthough the record contains inconsistencies between the 7 job titles Plaintiff might have held, all records indicate Plaintiff performed the job 8 for at least three months, which was long enough for him to learn how to perform 9 the job according to the DOT.” ECF No. 19 at 19 (citing Tr. 65, 152). 10 The Court finds that the ALJ did not make an adequate factual finding 11 regarding which of Plaintiff’s past jobs constituted PRW as a material handler. 12 Plaintiff reported doing “[v]arious [g]eneral [l]abor [j]obs” in 1998. Tr. 152; see 13 also Tr. 137 (Plaintiff’s earning records). But it is unclear what the physical and 14 mental demands of these jobs were or how the VE reached the conclusion that 15 these jobs “boil[ed] down,” Tr. 65, to the job of material handler. SSR 82-62 16 requires the ALJ to make a “finding of fact as to the physical and mental demands 17 of the past job/occupation.” The ALJ failed to make such a finding in this case. 18 Furthermore, the job of material handler involves a noise level of “[l]oud.” U.S. 19 Dep’t of Labor, Dictionary of Occupational Titles (DOT) 929.687-030 available at 20 1991 WL 688174. The Court found supra that the ALJ erred in rejecting the noise 21 limitation assessed by Dr. Scottolini. If, on remand, the ALJ credits this limitation, 22 Plaintiff would likely be precluded from performing the job of material handler. 23 3. Residual functional capacity and past relevant work compared 24 “To determine whether a claimant has the [RFC] to perform his past relevant 25 work, the [ALJ] must ascertain the demands of the claimant’s former work and 26 then compare the demands with his present capacity.” Villa v. Heckler, 797 F.2d 27 794, 797–798 (9th Cir. 1986). 28 Given the ALJ’s errors in the first two parts of the step four analysis, on ORDER GRANTING IN PART PLAINTIFF’S MOTION . . . - 20 1 remand, the ALJ will need to make a factual finding that Plaintiff’s RFC would 2 permit a return to his past job or occupation. SSR 82-62. 3 E. 4 Hypothetical Question Plaintiff argues that the ALJ erred by not including a noise limitation in the 5 ALJ’s hypothetical question to the VE. ECF No. 14 at 12-14. As discussed supra, 6 the Court found the ALJ improperly rejected Dr. Scottolini’s opinion that Plaintiff 7 should avoid “noise representing acoustic trauma.” Tr. 246. On remand, the ALJ 8 shall reevaluate Plaintiff’s RFC consistent with this opinion and propound 9 hypothetical questions to the VE that set out all of Plaintiff’s limitations. 10 REMEDY 11 The decision whether to remand for further proceedings or reverse and 12 award benefits is within the discretion of the district court. McAlliser v. Sullivan, 13 888 F.2d 599, 603 (9th Cir. 1989). An immediate award of benefits is appropriate 14 where “no useful purpose would be served by further administrative proceedings, 15 or where the record has been thoroughly developed,” Varney v. Secretary of Health 16 & Human Servs., 859 F.2d 1396, 1399 (9th Cir. 1988), or when the delay caused 17 by remand would be “unduly burdensome,” Terry v. Sullivan, 903 F.2d 1273, 1280 18 (9th Cir. 1990). See also Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir. 2014) 19 (noting that a district court may abuse its discretion not to remand for benefits 20 when all of these conditions are met). This policy is based on the “need to 21 expedite disability claims.” Varney, 859 F.2d at 1401. But where there are 22 outstanding issues that must be resolved before a determination can be made, and it 23 is not clear from the record that the ALJ would be required to find a claimant 24 disabled if all the evidence were properly evaluated, remand is appropriate. See 25 Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); Harman v. Apfel, 211 26 F.3d 1172, 1179-80 (9th Cir. 2000). 27 28 In this case, it is not clear from the record that the ALJ would be required to find Plaintiff disabled if all the evidence were properly evaluated. Additional ORDER GRANTING IN PART PLAINTIFF’S MOTION . . . - 21 1 proceedings are necessary for the ALJ to reevaluate Plaintiff’s RFC, determine 2 whether Plaintiff can perform his PRW, and, if necessary, determine whether 3 Plaintiff can perform other work that exists in significant numbers in the national 4 economy. The ALJ shall obtain supplemental testimony from a VE and take into 5 consideration any other evidence or testimony relevant to Plaintiff’s disability 6 claim. 7 8 9 CONCLUSION Having reviewed the record and the ALJ’s findings, the Court affirms the ALJ’s decision at steps two and three, but vacates the ALJ’s decision at step four 10 because the ALJ did not provide adequate reasons for rejecting Plaintiff’s noise 11 limitation assessed by Dr. Scottolini and did not make adequate findings regarding 12 Plaintiff’s functional ability to perform his past work. 13 Accordingly, IT IS ORDERED: 14 1. 15 16 Defendant’s Motion for Summary Judgment, ECF No. 19, is DENIED. 2. Plaintiff’s Motion for Summary Judgment, ECF No. 14, is 17 GRANTED, in part, and the matter is REMANDED to the Commissioner for 18 additional proceedings consistent with this Order. 19 3. Application for attorney fees may be filed by separate motion. 20 The District Court Executive is directed to file this Order and provide a copy 21 to counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff 22 and the file shall be CLOSED. 23 DATED October 1, 2015. 24 25 26 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 27 28 ORDER GRANTING IN PART PLAINTIFF’S MOTION . . . - 22

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