Boe v. Colvin, No. 2:2015cv00163 - Document 19 (E.D. Wash. 2016)

Court Description: ORDER Denying Plaintiff's 15 Motion for Summary Judgment and Granting Defendant's 16 Motion for Summary Judgment. Signed by Magistrate Judge Mary K. Dimke. (MO, Courtroom Deputy)

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Boe v. Colvin Doc. 19 1 2 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 3 Sep 16, 2016 SEAN F. MCAVOY, CLERK 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 DARREN A. BOE, No. 2:15-CV-00163-MKD 8 10 CAROLYN W. COLVIN, ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 11 Acting Commissioner of Social Security, ECF Nos. 15, 16 Plaintiff, 9 vs. 12 Defendant. 13 BEFORE THE COURT are the parties’ cross-motions for summary 14 judgment. ECF Nos. 15, 16. The parties consented to proceed before a magistrate 15 judge. ECF No. 6. The Court, having reviewed the administrative record and the 16 parties’ briefing, is fully informed. For the reasons discussed below, the Court 17 denies Plaintiff’s motion (ECF No. 15) and grants Defendant’s motion (ECF No. 18 16). 19 20 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 1 Dockets.Justia.com 1 2 JURISDICTION The Court has jurisdiction over this case pursuant to 42 U.S.C. §§ 405(g); 3 1383(c)(3). 4 5 STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 6 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 7 limited; the Commissioner’s decision will be disturbed “only if it is not supported 8 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 9 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a 10 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159 11 (quotation and citation omitted). Stated differently, substantial evidence equates to 12 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 13 citation omitted). In determining whether the standard has been satisfied, a 14 reviewing court must consider the entire record as a whole rather than searching 15 for supporting evidence in isolation. Id. 16 In reviewing a denial of benefits, a district court may not substitute its 17 judgment for that of the Commissioner. If the evidence in the record “is 18 susceptible to more than one rational interpretation, [the court] must uphold the 19 ALJ’s findings if they are supported by inferences reasonably drawn from the 20 record.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). Further, a district 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 2 1 court “may not reverse an ALJ’s decision on account of an error that is harmless.” 2 Id. An error is harmless “where it is inconsequential to the [ALJ’s] ultimate 3 nondisability determination.” Id. at 1115 (quotation and citation omitted). The 4 party appealing the ALJ’s decision generally bears the burden of establishing that 5 it was harmed. Shineski v. Sanders, 556 U.S. 396, 409-410 (2009). 6 7 FIVE-STEP EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within 8 the meaning of the Social Security Act. First, the claimant must be “unable to 9 engage in any substantial gainful activity by reason of any medically determinable 10 physical or mental impairment which can be expected to result in death or which 11 has lasted or can be expected to last for a continuous period of not less than twelve 12 months.” 42 U.S.C. §§ 423(d)(1)(A); 1382c(a)(3)(A). Second, the claimant’s 13 impairment must be “of such severity that he is not only unable to do his previous 14 work[,] but cannot, considering his age, education, and work experience, engage in 15 any other kind of substantial gainful work which exists in the national economy.” 16 42 U.S.C. §§ 423(d)(2)(A); 1382c(a)(3)(B). 17 The Commissioner has established a five-step sequential analysis to 18 determine whether a claimant satisfies the above criteria. See 20 C.F.R. §§ 19 404.1520(a)(4)(i)-(v); 416.920(a)(4)(i)-(v). At step one, the Commissioner 20 considers the claimant’s work activity. 20 C.F.R. §§ 404.1520(a)(4)(i); 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 3 1 416.920(a)(4)(i). If the claimant is engaged in “substantial gainful activity,” the 2 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 3 404.1520(b); 416.920(b). 4 If the claimant is not engaged in substantial gainful activity, the analysis 5 proceeds to step two. At this step, the Commissioner considers the severity of the 6 claimant’s impairment. 20 C.F.R. §§ 404.1520(a)(4)(ii); 416.920(a)(4)(ii). If the 7 claimant suffers from “any impairment or combination of impairments which 8 significantly limits [his or her] physical or mental ability to do basic work 9 activities,” the analysis proceeds to step three. 20 C.F.R. §§ 404.1520(c); 10 416.920(c). If the claimant’s impairment does not satisfy this severity threshold, 11 however, the Commissioner must find that the claimant is not disabled. 20 C.F.R. 12 §§ 404.1520(c); 416.920(c). 13 At step three, the Commissioner compares the claimant’s impairment to 14 severe impairments recognized by the Commissioner to be so severe as to preclude 15 a person from engaging in substantial gainful activity. 20 C.F.R. §§ 16 404.1520(a)(4)(iii); 416.920(a)(4)(iii). If the impairment is as severe or more 17 severe than one of the enumerated impairments, the Commissioner must find the 18 claimant disabled and award benefits. 20 C.F.R. §§ 404.1520(d); 416.920(d). 19 If the severity of the claimant’s impairment does not meet or exceed the 20 severity of the enumerated impairments, the Commissioner must pause to assess 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 4 1 the claimant’s “residual functional capacity.” Residual functional capacity (RFC), 2 defined generally as the claimant’s ability to perform physical and mental work 3 activities on a sustained basis despite his or her limitations, 20 C.F.R. §§ 4 404.1545(a)(1); 416.945(a)(1), is relevant to both the fourth and fifth steps of the 5 analysis. 6 At step four, the Commissioner considers whether, in view of the claimant’s 7 RFC, the claimant is capable of performing work that he or she has performed in 8 the past (past relevant work). 20 C.F.R. §§ 404.1520(a)(4)(iv); 416.920(a)(4)(iv). 9 If the claimant is capable of performing past relevant work, the Commissioner 10 must find that the claimant is not disabled. 20 C.F.R. §§ 404.1520(f); 416.920(f). 11 If the claimant is incapable of performing such work, the analysis proceeds to step 12 five. 13 At step five, the Commissioner considers whether, in view of the claimant’s 14 RFC, the claimant is capable of performing other work in the national economy. 15 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v). In making this determination, 16 the Commissioner must also consider vocational factors such as the claimant’s age, 17 education and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v); 18 416.920(a)(4)(v). If the claimant is capable of adjusting to other work, the 19 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 20 404.1520(g)(1); 416.920(g)(1). If the claimant is not capable of adjusting to other 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 5 1 work, analysis concludes with a finding that the claimant is disabled and is 2 therefore entitled to benefits. 20 C.F.R. §§ 404.1520(g)(1); 416.920(g)(1). 3 The claimant bears the burden of proof at steps one through four above. 4 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 5 step five, the burden shifts to the Commissioner to establish that (1) the claimant is 6 capable of performing other work; and (2) such work “exists in significant 7 numbers in the national economy.” 20 C.F.R. §§ 404.1560(c)(2); 416.920(c)(2); 8 Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). 9 “A finding of ‘disabled’ under the five-step inquiry does not automatically 10 qualify a claimant for disability benefits.” Parra v. Astrue, 481 F. 3d 742, 746 (9th 11 Cir. 2007) (citing Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001)). 12 When there is medical evidence of drug or alcohol addiction, the ALJ must 13 determine whether the drug or alcohol addiction is a material factor contributing to 14 the disability. 20 C.F.R. §§ 404.1535(a), 416.935(a). In order to determine 15 whether drug or alcohol addiction is a material factor contributing to the disability, 16 the ALJ must evaluate which of the current physical and mental limitations would 17 remain if the claimant stopped using drugs or alcohol, then determine whether any 18 or all of the remaining limitations would be disabling. Id. §§ 404.1535(b)(2), 19 416.935(b)(2). If the remaining limitations would not be disabling, drug or alcohol 20 addiction is a contributing factor material to the determination of disability. Id. If 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 6 1 the remaining limitations would be disabling, the claimant is disabled independent 2 of the drug or alcohol addiction and the addiction is not a contributing factor 3 material to disability. Id. Plaintiff has the burden of showing that drug and alcohol 4 addiction is not a contributing factor material to disability. Parra, 481 F.3d at 748. 5 6 ALJ’S FINDINGS Plaintiff applied for supplemental security income benefits on July 13, 2009, 7 Tr. 394-396, and for disability insurance benefits on August 20, 2009, Tr. 3878 393. Plaintiff’s applications were denied initially, Tr. 199-209, and on 9 reconsideration, Tr. 213-223. Plaintiff appeared at a hearing before an 10 Administrative Law Judge (ALJ) on August 30, 2011. Tr. 40-78. On September 11 16, 2011, the ALJ denied Plaintiff’s claim. Tr. 170-192. The Appeals Council 12 remanded the matter to the ALJ on May 29, 2013. Tr. 193-198. 13 After remand, Plaintiff appeared at two hearings before an ALJ on October 14 29, 2013, Tr. 79-108, and on February 4, 2014, Tr. 109-140. On February 28, 15 2014, the ALJ denied Plaintiff’s claim. Tr. 17-39. 16 At the outset, the ALJ found that Plaintiff met the insured status 17 requirements of the Act with respect to his disability insurance benefit claim 18 through September 30, 2008. Tr. 23. At step one, the ALJ found that Plaintiff has 19 not engaged in substantial gainful activity since the alleged onset date, February 7, 20 2008. Tr. 24. At step two, the ALJ found that Plaintiff has the following severe 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 7 1 impairments: HIV; hepatitis C; asthma; depressive disorder, NOS; anxiety 2 disorder, NOS; borderline personality disorder, NOS; and polysubstance abuse 3 disorder. Tr. 24. At step three, the ALJ found that Plaintiff’s impairments, 4 considering his substance abuse, met Listings 12.04, 12.06, 12.08, 12.09 and 12.10. 5 Tr. 24. The ALJ found that if Plaintiff stopped substance use, his impairments 6 would be severe but would not meet or medically equal the requirements of any 7 listed impairment. Tr. 25. The ALJ found that if Plaintiff stopped substance 8 abuse, he would have the RFC to perform a range of light work, with the following 9 additional limitations: 10 11 12 13 He should avoid concentrated exposure to pulmonary irritants and extreme cold. The claimant would have the following mental nonexertional limitations: he can perform repetitive tasks with simple 1-3 step instruction, and with no public contact. In addition, the claimant takes medication for his symptomology; however, despite any side effects of the medicine, the claimant would be able to remain reasonably attentive in a work setting and would be able to carry out normal work assignments satisfactorily. 14 Tr. 26-27. 15 The ALJ found that if Plaintiff stopped substance use, he would be unable to 16 perform his past relevant work, but, considering Plaintiff’s age, education, work 17 experience, and RFC, there are jobs in significant numbers in the national economy 18 that Plaintiff can perform, such as production assembler, sorter, mail clerk, account 19 clerk, and final assembler. Tr. 32. The ALJ found substance abuse disorder is thus 20 a contributing factor material to the disability determination. Tr. 33. On that basis, 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 8 1 the ALJ concluded that Plaintiff is not disabled as defined by the Act because 2 substance abuse renders him ineligible for benefits. Tr. 33. 3 On May 6, 2015, the Appeals Council denied review, making the ALJ’s 4 decision the Commissioner’s final decision for purposes of judicial review. See 42 5 U.S.C. § 1383(c)(3); 20 C.F.R. §§ 416.1481, 422.210. 6 7 ISSUES Plaintiff seeks judicial review of the Commissioner’s final decision denying 8 him disability insurance benefits under Title II and supplement security income 9 benefits under Title XVI of the Social Security Act. ECF No. 15. Plaintiff raises 10 the following issues for this Court’s review: 11 1. Whether the ALJ properly discredited Plaintiff’s symptom claims; 12 2. Whether the ALJ properly weighed the medical opinion evidence; and 13 ECF No. 15 at 11. 14 DISCUSSION 15 A. Adverse Credibility Finding 16 First, Plaintiff faults the ALJ for failing to provide specific findings with 17 clear and convincing reasons for discrediting his symptom claims. ECF No. 15 at 18 12-17. 19 An ALJ engages in a two-step analysis to determine whether a claimant’s 20 testimony regarding subjective pain or symptoms is credible. “First, the ALJ must 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 9 1 determine whether there is objective medical evidence of an underlying 2 impairment which could reasonably be expected to produce the pain or other 3 symptoms alleged.” Molina, 674 F.3d at 1112 (internal quotation marks omitted). 4 “The claimant is not required to show that her impairment could reasonably be 5 expected to cause the severity of the symptom she has alleged; she need only show 6 that it could reasonably have caused some degree of the symptom.” Vasquez v. 7 Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (internal quotation marks omitted). 8 Second, “[i]f the claimant meets the first test and there is no evidence of 9 malingering, the ALJ can only reject the claimant’s testimony about the severity of 10 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 11 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (internal 12 citations and quotations omitted). “General findings are insufficient; rather, the 13 ALJ must identify what testimony is not credible and what evidence undermines 14 the claimant’s complaints.” Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th 15 Cir. 1995)); see also Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) 16 (“[T]he ALJ must make a credibility determination with findings sufficiently 17 specific to permit the court to conclude that the ALJ did not arbitrarily discredit 18 claimant’s testimony.”). “The clear and convincing [evidence] standard is the most 19 demanding required in Social Security cases.” Garrison v. Colvin, 759 F.3d 995, 20 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 10 1 1015 (9th Cir. 2014) (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 2 924 (9th Cir. 2002)). 3 In making an adverse credibility determination, the ALJ may consider, inter 4 alia, (1) the claimant’s reputation for truthfulness; (2) inconsistencies in the 5 claimant’s testimony or between her testimony and her conduct; (3) the claimant’s 6 daily living activities; (4) the claimant’s work record; and (5) testimony from 7 physicians or third parties concerning the nature, severity, and effect of the 8 claimant’s condition. Thomas, 278 F.3d at 958-59. 9 This Court finds the ALJ provided specific, clear, and convincing reasons 10 for finding Plaintiff's statements concerning the intensity, persistence, and limiting 11 effects of his symptoms are less than fully credible. Tr. 27-29. 12 1. Lack of Objective Evidence of Physical Impairments 13 First, the ALJ found that Plaintiff’s alleged physical impairments and their 14 corresponding symptoms were not supported by the medical evidence. Tr. 27. 15 Subjective testimony cannot be rejected solely because it is not corroborated by 16 objective medical findings, but medical evidence is a relevant factor in determining 17 the severity of a claimant’s impairments. Rollins v. Massanari, 261 F.3d 853, 857 18 (9th Cir. 2001); see also Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). 19 The ALJ noted that the medical evidence was inconsistent with allegedly 20 disabling limitations, and most of the physical examinations showed essentially 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 11 1 normal findings. Tr. 27-28. For instance, the ALJ observed that although Plaintiff 2 complained of severe fatigue, the ALJ observed that in March 2011, when Plaintiff 3 reported thirty days of sobriety to his treatment provider, he also reported no 4 fatigue, night sweats or fever. Tr. 28 (citing Tr. 759). Similarly, while Plaintiff 5 alleged severe limitations related to asthma, Plaintiff’s treating physician, Dr. 6 Zugec, found that Plaintiff’s “respiratory was normal to inspection, lungs clear to 7 percussion and auscultation and he denied any cough, dyspnea or wheezing,” Tr. 8 28 (citing Tr. 754), and a doctor testified that Plaintiff “is not on any anti-asthma 9 medicine at this time, no inhalers.” Tr. 86. An exam in February 2008 revealed 10 “no exam findings”; Plaintiff was described as “healthy appearing.” Tr. 541. In 11 November 2008, an examination again was essentially unremarkable, except that 12 Plaintiff complained of pain on range of motion in the lumbar spine. Tr. 644. An 13 October 2010 exam revealed no spinal abnormalities, normal musculature, no joint 14 abnormalities and normal range of motion in all extremities. Tr. 706. Moreover, 15 the ALJ accurately observed that records from treating and consulting doctors did 16 not support Plaintiff’s allegation that he was unable to perform any work activities. 17 Tr. 28. 18 These inconsistencies, between Plaintiff’s alleged limitations and the 19 medical evidence, provided a permissible reason for discounting Plaintiff’s 20 credibility. See Thomas, 278 F.3d at 958-59 (“If the ALJ finds that the claimant’s 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 12 1 testimony as to the severity of her pain and impairments is unreliable, the ALJ 2 must make a credibility determination. . . [t]he ALJ may consider . . . testimony 3 from physicians and third parties concerning the nature, severity and effect of the 4 symptoms of which the claimant complains.”) (internal citations and modifications 5 omitted). 6 Here, Plaintiff does not support his argument with citations to medical 7 evidence that the ALJ should have relied on as supporting his allegations, giving 8 greater credence to the ALJ’s determination. Because an ALJ may discount pain 9 and symptom testimony based on lack of medical evidence, as long as it is not the 10 sole basis for discounting a claimant’s testimony (and here it is not), the ALJ did 11 not err when he found Plaintiff’s complaints exceeded and were not supported by 12 objective and physical exam findings. 13 2. Lack of Compliance with Medical Treatment 14 Next, the ALJ discounted Plaintiff’s credibility because Plaintiff was 15 noncompliant with medical recommendations and in taking prescribed 16 medications. Tr. 28-29. Failing to comply with medical treatment casts doubt on a 17 claimant’s allegations of disabling impairment, since one with severe impairments 18 would presumably follow prescribed medical treatment to obtain relief. 19 Accordingly, failing to follow a prescribed course of medical treatment is a 20 permissible reason for discounting Plaintiff’s credibility. Smolen v. Chater, 80 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 13 1 F.3d 1273, 1284 (9th Cir. 1996) (An ALJ may consider a claimant’s unexplained 2 or inadequately explained failure to follow a prescribed course of treatment when 3 assessing a claimant’s credibility.) (citations omitted); Fair v. Bowen, 885 F.2d 4 597, 603 (9th Cir. 1989) (unexplained or inadequately explained failure to comply 5 with medical treatment is a factor the ALJ may properly consider when 6 determining a claimant’s credibility). 7 The ALJ noted Plaintiff’s lack of compliance included failing to attend 8 appointments for HIV follow up, as well as failing to take prescribed medication. 9 Tr. 28-29. For example, the ALJ observed that treatment providers in January of 10 2010 indicated Plaintiff missed several appointments for regular HIV follow up. 11 Tr. 28 (citing Tr. 668). In September 2010, Plaintiff had bronchitis; however, he 12 failed to pick up prescribed medication and “continues smoking and is not 13 interested [in quitting] at the present time.” Tr. 702. In March 2012, treatment 14 providers noted that Plaintiff had been “on the coast” and has had no treatment for 15 five months. Tr. 801. 16 Treatment providers indicated that Plaintiff failed to consistently take 17 prescribed medication. See, e.g., Tr. 630 (in June 2009, treating physician Dr. 18 Zugec noted Plaintiff stated that he takes HAART only 75% of the time; he forgets 19 to take it and does not like taking pills); Tr. 668 (in January 2010, a treatment 20 provider noted that Plaintiff was “hit or miss” with taking medications); Tr. 697 (in 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 14 1 August 2010, Plaintiff had not recently been compliant with medication); Tr. 759 2 (in March 2011, Dr. Zugec noted lab results after one month of not taking 3 medication could explain Plaintiff’s worsening numbers); Tr. 798 (in September 4 2011, Plaintiff had been out of HIV medication for several weeks); Tr. 801 (in 5 March 2012, Plaintiff “ha[d] been out of HIV meds for the last months, stopped all 6 at once.”). 7 Plaintiff contends his testimony and the medical record support his position 8 that medications had side effects “that actually [contributed] to his symptoms 9 rather than diminishing them.” ECF No. 15 at 13 (citing Tr. 88-89 (records 10 indicate that taking Clindamycin caused diarrhea); Tr. 117-119 (Plaintiff testified 11 that he had diarrhea whether he took his HIV medication or not -- it made no 12 difference); Tr. 510-520 (a Wikipedia entry discussing antiretroviral drugs); Tr. 13 549-550 (in May 2007 Plaintiff presents to establish primary care; complaints 14 include persistent “loose stools of unclear etiology”); Tr. 661-663 (on February 18, 15 2010, Plaintiff complains of diarrhea that began “after he completed the Rx for 16 staph infection-MRSA, last month”); Tr. 693-696 (a repeat of Dr. Zugec’s 17 February 18, 2010 record); and Tr. 877-899 (a document printed from PDR.net on 18 the drug Norivr)). 19 Plaintiff’s citations purportedly illustrating his reasons for noncompliance 20 are inconsistent with his reports to treatment providers. As noted, when Plaintiff 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 15 1 explained why he was not medication compliant, he said that he forgot and that he 2 did not like to take pills – he did not say it was due to adverse side effects. See Tr. 3 630. Similarly, Plaintiff testified that he experienced diarrhea fifteen days a month 4 regardless of whether he took prescribed HIV medication, it made no difference. 5 Tr. 117, 119. Plaintiff’s own testimony is inconsistent with the reason he now 6 offers on appeal for failing to comply with taking prescribed medication. 7 The ALJ properly relied on Plaintiff’s unexplained and inadequately 8 explained reasons for failing to take prescribed medication when the ALJ assessed 9 Plaintiff as less than fully credible. 10 3. Lack of Objective Medical Evidence of Mental Health Symptoms and Minimal Mental Health Treatment 11 Further, despite allegedly disabling mental limitations, the ALJ noted that 12 mental health treatment has been “very infrequent.” Tr. 29. While the failure to 13 seek mental health treatment may not be a legitimate basis to reject a claimant’s 14 symptom claims, see Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996), the 15 lack of credible evidence in the record corroborating the extent of mental 16 limitations can be, see Molina, 674 F.3d at 1113-14. 17 As an example, in February 2008, treatment providers described Plaintiff as 18 healthy appearing and in no apparent distress. Tr. 541. In October 2008, Plaintiff 19 was alert, well-groomed, oriented to person, time and place, and apparently a good 20 historian, as his memory was deemed grossly intact. His mood and affect were 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 16 1 congruent. Significantly, Plaintiff was “not interested” in medication for 2 depression. Tr. 646-648. The ALJ points out that if Plaintiff’s health problems 3 were not serious enough to motivate him to seek or comply with treatment, it is 4 difficult to accept his assertion that these problems are disabling. Tr. 29. 5 Plaintiff contends that he testified, and the record supports, that he “had 6 difficulty leaving the house and isolated himself from people,” and “the inability to 7 attend all of his appointments only supports his claim[,]” that is, further supported 8 claimed severe mental limitations. ECF No. 15 at 13 (citing Tr. 114 (Plaintiff’s 9 testimony), Tr. 122-123 (Plaintiff’s testimony), Tr. 725 (Dr. Mabee opined it is 10 likely that Plaintiff is socially isolated), Tr. 733 (Dr. Arnold noted Plaintiff 11 indicated that he will isolate himself and withdraw from others), Tr. 791 (Dr. 12 Arnold noted Plaintiff reported no changes in his mental health; Dr. Arnold opined 13 current symptoms would interfere with productivity and social interactions, and 14 Plaintiff admitted DAA is active at the time of this evaluation). 15 Based on this record, it was reasonable for the ALJ to conclude that 16 Plaintiff’s failure to follow prescribed treatment for physical or mental conditions 17 was not necessarily caused by his mental impairments. For example, in March of 18 2012, a treatment provider noted that Plaintiff has not been seen “in approximately 19 five months,” has a long history of failing to comply with taking prescribed 20 medication, and continues to drink. Tr. 801-803. The ALJ cited Plaintiff’s 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 17 1 testimony that he stopped mental health treatment, not because of social anxiety, 2 but because Plaintiff’s counselor retired. Tr. 27 (citing Tr. 125). Nor was the ALJ 3 required to credit Plaintiff’s own testimony when determining the veracity of that 4 testimony. 5 Plaintiff also relies on psychological evaluations in August 2008 (Tr. 725); 6 May 2011 (Tr. 733), and April 2012 (Tr. 791), to support his alleged reason for 7 noncompliance with treatment. However, these evaluations do not explain 8 Plaintiff’s five months of non-compliance with medical treatment from November 9 of 2011 until March of 2012, nor do they refute his stated reason, his counselor’s 10 retirement, for stopping mental health treatment. Here, Plaintiff’s lack of 11 compliance with respect to mental health treatment was consistent with his lack of 12 compliance with his other treatment. It is a reasonable conclusion that such lack of 13 compliance was evidence that his symptoms are not as severe as alleged. For 14 example, Plaintiff’s failure to take HIV medication cannot be explained by his 15 mental health symptoms. Although Plaintiff alleges the ALJ should have found 16 mental limitations were so severe that they prevented him from attending medical 17 appointments for both mental and physical problems, the record does not compel 18 this conclusion. Moreover, the ALJ was entitled to draw inferences from the 19 record. The ALJ concluded Plaintiff’s failure to comply “suggests that the 20 symptoms may not have been as limiting as the claimant has alleged in connection 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 18 1 with this application.” Tr. 28. With no opinion evidence stating that Plaintiff 2 failed to keep his medical appointments specifically due to mental limitations, the 3 asserted “reason” is quite possibly an after-the-fact contention, and Plaintiff fails to 4 show that the ALJ’s interpretation is not a rational one. See Burch, 400 F.3d at 679 5 (Where evidence is susceptible to more than one rational interpretation, it is the 6 ALJ’s conclusion that must be upheld). The amount and type of treatment is “an 7 important indicator of the intensity and persistence of [a claimant’s] symptoms.” 8 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3); Burch, 400 F.3d at 681. As noted, an 9 ALJ may rely on an unexplained or inadequately explained failure to seek 10 treatment when assessing a claimant’s credibility. Tommasetti v. Astrue, 533 F.3d 11 1035, 1039 (9th Cir. 2008). 12 Plaintiff alleges further alleges that both Dr. Belzer and Dr. Layton testified 13 noncompliance can be attributable to Plaintiff’s “uncontradicted diagnosed 14 personality disorder.” ECF No. 15 at 13 (citing Tr. 94, 106). Dr. Belzer was asked 15 whether Plaintiff’s non-compliance “could” be due to his psychological problems, 16 like depression or personality disorder, to which Dr. Belzer answered “Yes.” Tr. 17 94. However, while in the abstract this could be the reason, here, Plaintiff gave his 18 treatment providers different reasons: he said that he forgot to take pills and he did 19 not like to take pills, he left the area for five months, and he failed to continue 20 mental health treatment because his counselor retired. The ALJ did not err when 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 19 1 he weighed the evidence and found that Plaintiff’s unexplained and inadequately 2 explained non-compliance diminished his credibility. 3 Dr. Lawson’s testimony is less clear, but it appears he testified that with 4 some personality disorders, a person would be more, rather than less, compliant 5 with treatment. Tr. 106. This answer does not support Plaintiff’s contention that 6 his diagnosis caused medical noncompliance. 7 4. Evidence of Exaggeration 8 Next, the ALJ discredited Plaintiff’s testimony due to evidence suggesting 9 that Plaintiff has exaggerated symptoms and limitations. Specifically, the ALJ 10 found 11 12 13 14 15 Dr. Mabee reported the claimant’s score on the Beck Depression Inventory [BDI] was of a severe level of reported depression. He noted that elevated scores such as the claimant’s in an outpatient setting were typically considered as reflecting an over-endorsing response style. He also note[d] that while the Personality Assessment Inventory [PAI] test was deemed valid, it was also noted that the results suggest there was a possibility the claimant might have over-represented or exaggerated the actual degree of psychopathology. It was also noted that his report further suggested his past drug use might be the sources of some of the difficulties he was experiencing (citing Tr. 724-25). 16 17 18 19 20 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 20 1 Ms. Osborne-Elmer examined the claimant and noted the claimant demonstrated poor performance on the Rey 15-item test.1 She also noted that while he appeared to be somewhat depressed and anxious, it was difficult to determine if his depression and anxiety were directly related to the effects of his substance use (citing Tr. 569, 572). If the claimant has shown he is willing to exaggerate his mental health problems, it causes the undersigned to question his credibility with regard to all his alleged limitations. 2 3 4 5 Tr. 29. 6 The tendency to exaggerate provided a permissible reason for discounting 7 Plaintiff’s credibility. See Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 8 2001) (the ALJ appropriately considered Plaintiff’s tendency to exaggerate when 9 assessing Plaintiff’s credibility, which was shown in a doctor’s observation that 10 Plaintiff was uncooperative during cognitive testing but was “much better” when 11 giving reasons for being unable to work.). The ALJ properly relied on test scores 12 on the BDI, PAI and RMT when he assessed Plaintiff’s credibility. 13 Plaintiff challenges the ALJ’s finding by citing the PAI result indicating 14 “there is a possibility he may have over represented or exaggerated the actual 15 degree of psychopathology.” ECF No. 15 at 14. Plaintiff points to the portion of 16 the PAI indicating that profile patterns similar to his are usually associated with 17 18 1 The Rey 15-Item Memory Test (RMT) is a memory test for malingering. 19 National Center for Biotechnology Information, 20 www.ncbi.nlm.nih.gov/pubmed/8337088. 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 21 1 marked distress. He alleges, “Clearly, the potential for exaggeration in testing is 2 associated with [Plaintiff’s] condition and not related to his credibility.” ECF No. 3 15 at 14 (citing Tr. 725). 4 However, this is simply Plaintiff’s alternate interpretation of the evidence. 5 Even if the PAI only identified the possibility of exaggeration, Plaintiff’s 6 “condition” does not explain over-reporting on the BDI nor the noted lack of effort 7 on the RMT. Plaintiff’s test results as a whole constitute substantial evidence 8 supporting the ALJ’s finding that Plaintiff’s tendency to exaggerate undermines his 9 credibility. 10 5. Daily Activities 11 Last, the ALJ found that Plaintiff’s activities of daily living are not as 12 limited as reported symptoms suggest. Tr. 28-29. A claimant’s reported daily 13 activities can form the basis for an adverse credibility determination if they consist 14 of activities that contradict the claimant’s “other testimony” or if those activities 15 are transferable to a work setting. Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 16 2007); see also Fair, 885 F.2d at 603 (daily activities may be grounds for an 17 adverse credibility finding “if a claimant is able to spend a substantial part of his 18 day engaged in pursuits involving the performance of physical functions that are 19 transferable to a work setting.”). 20 The ALJ found, for example, that Plaintiff told a treatment provider in 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 22 1 February 2008 that he wanted to work full time as a waiter, Tr. 541, indicating he 2 believed he was capable of much greater exertion than alleged. In addition, 3 Plaintiff’s activities have included regularly playing pool (Tr. 124); window 4 shopping or people watching at the mall (Tr. 723); cleaning, doing laundry, 5 weeding flower beds, doing homework, and walking the dog (Tr. 732); gardening, 6 writing, playing with the dog, going to the movies, spending time with friends, 7 walking and listening to music (Tr. 743). “While a claimant need not vegetate in a 8 dark room in order to be eligible for benefits, the ALJ may discredit a claimant’s 9 testimony when the claimant reports participation in everyday activities indicating 10 capacities that are transferable to a work setting” or when activities “contradict 11 claims of a totally debilitating impairment.” Molina, 674 F.3d at 1112-13 (internal 12 quotation marks and citations omitted). 13 Plaintiff alleges “the ALJ pointed out things that [Plaintiff] told his treatment 14 providers that he liked to do, not that he could do [them] every day or for extended 15 periods like that expected of a full-time employee.” ECF No. 15 at 15. 16 However, even though this level of activity may not itself show that Plaintiff 17 can work, it allows a reasonable mind to conclude that Plaintiff’s symptom 18 allegations are inconsistent with his actual level of activity. See, e.g., Molina, 674 19 F.3d at 1113 (even when a claimant’s activities suggest some difficulty 20 functioning, they can support an adverse credibility determination to the extent 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 23 1 they contradict a claimant’s claims of a totally debilitating impairment.). Plaintiff 2 is correct that the record shows Plaintiff stated he “likes gardening,” Tr. 743, and 3 this may not reflect his actual daily functioning. However, Plaintiff stated he that 4 he engaged in the remainder of the activities cited by the ALJ. See, e.g., Tr. 732 5 (Plaintiff states that on a daily basis, he cleans house, weeds the flower beds, does 6 homework and takes the dog for a walk); Tr. 119-20, 123-24 (Plaintiff testified that 7 he lives alone, gets around by walking or taking the bus, and shops for groceries; 8 he also plays pool, which he thinks he is good at). Plaintiff alleges he has such 9 disabling anxiety that he has difficulty leaving the house and isolates himself from 10 people. See Tr. 114, 122-23 (Plaintiff’s own testimony); Tr. 725 (Dr. Mabee’s 11 2008 opinion it is “likely” that Plaintiff is socially isolated); Tr. 733 (Plaintiff 12 reports that he isolates himself); and Tr. 791 (Plaintiff reports he shops 13 independently, rides the bus, and in the afternoons may walk around until 14 bedtime). The ALJ is correct that Plaintiff’s contention he seldom leaves his 15 apartment is refuted by activities he has said he spends time engaged in. 16 An ALJ may properly support his adverse credibility finding by citing to 17 daily activities that are inconsistent with claims of disabling limitations. Molina, 18 674 F.3d at 1113 (a claimant’s activities can support an adverse credibility 19 determination to the extent they contradict a claimant’s claims of a totally 20 debilitating impairment). However, even assuming that the ALJ erred in relying 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 24 1 on Plaintiff’s daily activities, any error is harmless because, as discussed in detail 2 in this section, the ALJ offered additional reasons, supported by substantial 3 evidence, for the ultimate adverse credibility finding. See Carmickle v. Comm’r of 4 Soc. Sec. Admin., 533 F.3d 1155, 1162-63 (9th 2008). 5 Plaintiff alleges that the Commissioner “culled the record” for rationale to 6 support the ALJ’s credibility finding, and identified evidence that the ALJ did not 7 rely on in making the decision. ECF No. 16 at 6-12 (citing Orn, 495 F.3d at 630). 8 Plaintiff contends that the Court may not affirm the ALJ on a ground upon which 9 the ALJ did not rely. ECF No. 17 at 2. It is not error, however, to examine the 10 record to see if it supports the ALJ’s reasoning. Andrews v. Shalala, 53 F.3d 1035, 11 1039 (9th Cir. 1995) (“To determine whether substantial evidence supports the 12 ALJ’s decision, we review the administrative record as a whole, weighing both the 13 evidence that supports and that which detracts from the ALJ’s conclusion.”) 14 (quotation and citation omitted). More importantly, Plaintiff’s citations to 15 Defendant’s brief do not support his argument; rather, the cited portions reflect 16 factors that the ALJ explicitly relied upon. See ECF No. 16 at 6-7 (exaggeration); 17 ECF No. 16 at 6-7, 11-12 (possible effects of drug use noted by some examiners); 18 ECF No. 16 at 7-8 (activities and statements inconsistent with allegations); ECF 19 No. 16 at 8-10 (lack of evidence supporting complaints); and ECF No. 16 at 9-12 20 (lack of treatment and noncompliance with treatment). Accordingly, the Court’s 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 25 1 examination of the record in this context is not “supplying a ground not invoked” 2 by the ALJ.2 3 In sum, despite Plaintiff’s arguments to the contrary, the ALJ provided 4 specific, clear, and convincing reasons for rejecting Plaintiff’s testimony. See 5 Ghanim, 763 F.3d at 1163. 6 B. Medical Opinion Evidence 7 Next, Plaintiff faults the ALJ for discounting the opinion of examining 8 psychologist John Arnold, Ph.D. ECF No. 15 at 17-20. 9 There are three types of physicians: “(1) those who treat the claimant 10 (treating physicians); (2) those who examine but do not treat the claimant 11 (examining physicians); and (3) those who neither examine nor treat the claimant 12 but who review the claimant’s file (nonexamining or reviewing physicians).” 13 Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001) (brackets omitted). 14 “Generally, a treating physician’s opinion carries more weight than an examining 15 physician’s, and an examining physician’s opinion carries more weight than a 16 17 2 Plaintiff challenges one of Defendant’s citations to the record. ECF No. 17 at 2 18 (referring to ECF No. 16 at 8 (citing Tr. 753)). The correct reference is Tr. 743. 19 This typographical error is harmless since the ALJ appropriately relied on the 20 record of Plaintiff’s stated activities when he assessed credibility. 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 26 1 reviewing physician’s.” Id. “In addition, the regulations give more weight to 2 opinions that are explained than to those that are not, and to the opinions of 3 specialists concerning matters relating to their specialty over that of 4 nonspecialists.” Id. (citations omitted). 5 If a treating or examining physician’s opinion is uncontradicted, an ALJ may 6 reject it only by offering “clear and convincing reasons that are supported by 7 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 8 “However, the ALJ need not accept the opinion of any physician, including a 9 treating physician, if that opinion is brief, conclusory and inadequately supported 10 by clinical findings.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 11 (9th Cir. 2009) (internal quotation marks and brackets omitted). “If a treating or 12 examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ 13 may only reject it by providing specific and legitimate reasons that are supported 14 by substantial evidence.” Bayliss, 427 F.3d at 1216 (citing Lester, 81 F.3d at 83015 31). 16 Dr. Arnold conducted two psychological examinations of Plaintiff, in May 17 2011 and April 2012. Tr. 730-737; 790-796. Following the first in May 2011, he 18 diagnosed, in part, alcohol dependence, in early full remission (per client report); 19 cannabis abuse, in early full remission (per client report); and amphetamine (meth) 20 abuse, in sustained full remission (per client report). Tr. 731. Dr. Arnold opined, 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 27 1 using a check-box form, that Plaintiff suffered a marked limitation in the ability to 2 communicate and perform effectively in a work setting with public contact, and he 3 assessed five moderate work-related limitations. He opined that these assessed 4 limitations “are without the effects of DA & A” (drug and alcohol abuse). Tr. 732. 5 During the second examination in April 2012, Plaintiff stated he drank twice 6 a month and last used marijuana a month earlier. Tr. 791. Dr. Arnold opined that 7 “[o]ngoing substance abuse could impact treatment cooperation.” Id. As to 8 functional limitations, Dr. Arnold opined that Plaintiff is capable of understanding 9 and carrying out simple instructions, is able to concentrate for short periods of 10 time, and can complete simple tasks without close supervision and not disrupt 11 others. He would work best in positions that have minimal interaction with others. 12 Id. 13 The ALJ gave little weight to Dr. Arnold’s opinions. Tr. 30. Because Dr. 14 Arnold’s opinions are contradicted, in part, by the opinions of Dr. Layton and Dr. 15 Moore (Tr. 103-104), the ALJ was required to give specific and legitimate reasons 16 supported by substantial evidence for giving Dr. Arnold’s opinion little weight. 17 See Flaten v. Secretary of Health and Human Serv., 44 F.3d 1453, 1463 (9th Cir. 18 1995) (when there is conflicting medical evidence, the Secretary need only set 19 forth “specific, legitimate reasons” constituting substantial evidence for 20 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 28 1 disregarding a treating [or examining] physician’s opinion) (internal quotation and 2 citations omitted). 3 1. Check-box Form 4 With respect to Dr. Arnold’s evaluations, the ALJ noted, in part: 5 The undersigned accords little weight to the check block form reports prepared for the Department of Social and Health Services [DSHS] in a secondary gain context. Opinions rendered on check-box or form reports which do not contain significant explanation of the basis for the conclusions may appropriately be accorded little or no weight. See Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996); Johnson v. Chater, 87 F.3d 1015, 1018 (9th Cir. 1996). The definition of “marked” used by the [DSHS] differs from the definition contained in the regulations for assessing mental disorders. Moreover, the comments in the section entitled “Mental Health Priority Populations” in the [DSHS] form, make it clear that both the standards for completing the form, and the public interest served by the form, are different from the standards and objectives of these hearings under the authority of the Social Security Administration. 6 7 8 9 10 11 12 Tr. 30. An ALJ may reject a contradicted examining source’s medical opinion 13 rendered on a check-box form which fails to explain the basis for the examiner’s 14 conclusions. See Crane, 76 F.3d at 253. As noted, Dr. Arnold used a check-box 15 form to indicate the severity of Plaintiff’s assessed limitations. Tr. 732. As 16 Plaintiff notes, Dr. Arnold provided some narrative explanations for the limitations 17 set forth in the check-box form. However, an ALJ may reject limitations not based 18 on clinical findings or consistent with the medical record, see infra. 19 Plaintiff further alleges the ALJ erred by relying on the fact that this is a 20 form used for secondary gain related to state benefits. ECF No. 15 at 18 (citing 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 29 1 Henderson v. Astrue, 634 F. Supp. 2d 1182, 1191-92 (E.D. Wash. 2009)). Plaintiff 2 is correct that the purpose for which medical reports are prepared does not provide 3 a legitimate basis for rejecting them. See Lester, 81 F.3d at 832 (the ALJ 4 improperly relied on fact that reports were obtained by the claimant’s attorney for 5 the purpose of litigation; purpose for which reports are obtained does not provide a 6 legitimate basis for rejecting them). 7 Next, the ALJ rejected Dr. Arnold’s opinion because the DSHS rules 8 governing the definition and assessment of disability differ from those of the 9 Social Security Administration. Tr. 30. The regulations provide that the amount 10 of an acceptable source’s knowledge of Social Security disability programs and 11 their evidentiary requirements may be considered in evaluating an opinion, 12 regardless of the source of that understanding. 20 C.F.R. § 404.1527. Although 13 state agency disability rules may differ from Social Security Administration rules 14 regarding disability, it is not always apparent that the differences in rules affect a 15 particular physician’s report without further analysis by the ALJ.3 There may be 16 17 3 Here, the ALJ merely asserted, without analysis, that DSHS forms define 18 “marked” differently from the Social Security Administration, and the DSHS 19 forms “make it clear that both the standards for completing the form, and the 20 public interest served by the form,” differ from “the standards and objectives of 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 30 1 situations where less weight should be assigned to a DSHS medical opinion based 2 on the differences in definitions and rules, but substantial evidence does not 3 support that finding here. This is therefore not a specific and legitimate reason for 4 rejecting Dr. Arnold’s 2011 opinion. However, because the ALJ cited other 5 specific, legitimate reasons supported by substantial evidence which justify 6 rejecting the opinion, there is no error. See Parra, 481 F.3d at 747 (finding ALJ 7 error harmless because it did not affect the result). 8 2. Inadequate and Unsupported Bases for Assessed Limitations 9 As noted above, the ALJ found Dr. Arnold’s check box form did not contain 10 significant explanation for the limitations assessed. Tr. 30. The ALJ need not 11 accept the opinion of any physician if that opinion is brief, conclusory, and 12 inadequately supported by clinical findings. See Thomas, 278 F.3d at 957; see also 13 Matney v. Sullivan, 981 F.2d. 1016, 1019 (9th Cir. 1992) (“The ALJ need not 14 15 these hearings under the authority of the [SSA].” Tr. 30. The DSHS form defines 16 “marked limitations as “causing very significant interference” with the ability to 17 perform work-related activities; the regulations indicate that a marked limitation is 18 one of such degree as “to interfere seriously with [a claimant’s] ability to function 19 independently, appropriately, effectively, and on a sustained basis.” 20 C.F.R. Pt. 20 404, Subpt. P., App. 1, Listing 12.00(C)(1). 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 31 1 accept an opinion of a physician—even a treating physician—if it is conclusory 2 and brief and is unsupported by clinical findings.”). In addition, contradictions 3 between a doctor’s opinion and his own medical results provide a permissible basis 4 to reject his opinion. See Bayliss, 427 F.3d at 1216. The ALJ found, for example, 5 that Plaintiff’s results on the Mini Mental Status Exam indicated normal cognitive 6 functioning. Tr. 30. This finding contradicts, rather than supports, Dr. Arnold’s 7 assessed moderately severe limitations in cognitive functioning in the check-box 8 portion of the form. Compare Tr. 732 (assessing three moderately severe 9 limitations in cognitive functioning) with Tr. 736 (noting the results of MSE, 10 30/30, were normal). Similarly, in activities of daily living, Dr. Arnold’s findings 11 indicate that Plaintiff was moderately limited in only two areas: 12 driving/transportation and friends/socialization. Tr. 736. This finding is contrary 13 to the numerous limitations assessed in the check-box portion of the form. Tr. 732. 14 Moreover, Dr. Arnold did not conduct additional, more formalized testing on 15 which the assessed limitations in the check-box form could have been based. 16 Because the ALJ may discount an opinion that is unsupported by clinical findings, 17 Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004), the 18 ALJ provided another specific and legitimate reason for affording Dr. Arnold’s 19 opinion limited weight. 20 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 32 1 Plaintiff alleges that Dr. Arnold’s assessed marked limitation in the ability to 2 perform effectively in a work setting with public contact “was justified.” ECF No. 3 16 at 18 (citing Tr. 732). The ALJ apparently agreed, because the ALJ 4 incorporated the limitation. The assessed RFC limits Plaintiff to work with no 5 public contact. Tr. 26. Plaintiff fails to identify any error. 6 3. Effects of Substance Use 7 With respect to Dr. Arnold’s 2012 opinion, and the opinion of examining 8 psychologist Dr. Mabee in 2008, the ALJ correctly found these opinions do not 9 address Plaintiff’s limitations without substance abuse. Tr. 30. In 2012, Dr. 10 Arnold diagnosed, in part, alcohol dependence and cannabis use (with a reported 11 valid medical marijuana card), that Plaintiff failed to produce. Tr. 790. As noted, 12 in his prior evaluation, Dr. Arnold assessed alcohol dependence and cannabis 13 abuse (both in early full remission per client report) and methamphetamine abuse 14 (in sustained full remission per client report). The difference is that in 2012, 15 Plaintiff told Dr. Arnold that he drank twice a month, last drank over a week ago, 16 and last used marijuana a month earlier. Tr. 791. Dr. Arnold did not assess 17 moderate, marked or severe limitations in the more recent report. The only 18 symptom Dr. Arnold reports that he observed was “depression/recurrent suicidal 19 ideation.” In 2012, Dr. Arnold failed to distinguish between Plaintiff’s functioning 20 with and without substance use, because Plaintiff was actively using substances at 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 33 1 that time, making it impossible to separate out how Plaintiff would function if not 2 using substances. 3 Plaintiff contends the ALJ erred when he gave “little weight” to Dr. 4 Arnold’s opinions, in part, because Dr. Arnold did not consider the effects of 5 “alcohol and drugs in his opinions.” ECF No. 15 at 17. Plaintiff is partially 6 correct. In 2011, Dr. Arnold separated out Plaintiff’s functioning and assesses 7 limitations without the effects of substance abuse.4 However, as noted, the ALJ 8 rejected the 2011 opinion, in part, because it was unsupported by clinical findings 9 and inconsistent with the record as a whole. The ALJ’s error, if any, in 10 characterizing both reports as failing to separate out the effects of DAA, is 11 harmless. When an ALJ’s decision is supported by substantial evidence, an error 12 that does not affect the ultimate nondisability determination is harmless. 13 Carmickle, 533 F.3d at 1162. Here, the error is harmless. 14 The ALJ found Plaintiff was disabled when DAA is included. Tr. 24. This 15 meant the only real question remaining for the ALJ was to determine how Plaintiff 16 functioned without DAA, in order to determine if it was a contributing factor 17 18 4 As noted, Dr. Arnold specifically stated that the ratings in section G are “without 19 the effects of DA &A” (Drug and Alcohol Abuse). Tr. 732. In section G, Dr. 20 Arnold assessed one marked and five moderate limitations. Id. 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 34 1 material to disability. The ALJ’s determination that Dr. Arnold’s 2012 report does 2 not reflect Plaintiff’s limitations without substance abuse is accurate, Tr. 30, since 3 Plaintiff admitted he was no longer in remission from substance use disorder at the 4 time of the evaluation. Therefore, the ALJ did not err in giving little weight to Dr. 5 Arnold’s 2012 opinion because it was not relevant to whether DAA was material to 6 the disability analysis. Notably, Plaintiff does not challenge the ALJ’s materiality 7 determination, meaning it is a verity on appeal. Bray, 554 F.3d at 1226 n.7 (an 8 argument not made in the opening brief is deemed waived). 9 In addition, the ALJ notes that Dr. Arnold’s reports do not reference 10 Plaintiff’s well-documented substantial lack of medical compliance and ongoing 11 substance abuse, demonstrating that Dr. Arnold lacked accurate information. Tr. 12 30. The ALJ properly gave less weight to Dr. Arnold’s later opinion because it 13 did not adequately address Plaintiff’s limitations when substance abuse is 14 excluded, records showing significant noncompliance with treatment and ongoing 15 substance abuse do not appear to have been provided to Dr. Arnold for review, the 16 severity of the limitations assessed by Dr. Arnold is based on definitions that differ 17 from those in the social security regulations, and the assessed limitations are not 18 supported by clinical findings. As noted, the ALJ improperly considered the 19 reason the reports were obtained, however, when substantial evidence supports the 20 ALJ’s decision and the error does not affect the ultimate nondisability 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 35 1 determination, the error is harmless. Carmickle, 533 F.3d at 1162. Here, the error 2 is clearly harmless. 3 4. Contradiction with Medical Record 4 Next, the ALJ concluded that Dr. Arnold’s opinion was contradicted by 5 other medical evidence in the record, including the opinions of Dr. Vu, Dr. Belzer, 6 and Dr. Layton. Tr. 30. Unlike Dr. Arnold, all of these doctors had the 7 opportunity to review the entire record prior to testifying. Tr. 30. 8 Plaintiff contends that the ALJ erred by relying on the opinions of testifying 9 experts Dr. Vu and Dr. Belzer. Citing, in part, Lester5 and Gallant6, Plaintiff 10 contends that the opinion of a non-examining, non-treating source “cannot by itself 11 constitute substantial evidence that justifies the rejection of either an examining or 12 a treating physician.” ECF No. 16 at 19-20. Here, the ALJ provided specific and 13 legitimate reasons for discrediting Dr. Arnold’s opinion of extreme limitations. 14 15 5 Lester v. Chater, 81 F.3d at 831 (citations omitted). 16 6 Gallant v. Heckler, 753 F.2d 1450, 1454 (9th Cir. 1984) (“A report of a non- 17 examining, non-treating physician should be discounted and is not substantial 18 evidence when contradicted by all other evidence in the record.”) (quotation and 19 citation omitted). Here, other evidence in the record supports the testifying 20 experts’ opinions. 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 36 1 The ALJ did not solely rely on the opinions of testifying experts Dr. Vu and Dr. 2 Belzer, as Plaintiff alleges. 3 Plaintiff challenges the ALJ’s reliance on Dr. Vu’s testimony because Dr. 4 Vu stated that Plaintiff has Hepatitis B; when in fact, Plaintiff has Hepatitis C. 5 Plaintiff contends, had Dr. Vu reviewed the entire record – the reason the ALJ 6 gave more weight to Dr. Vu’s testimony – Dr. Vu would have identified the correct 7 diagnosis. ECF No. 15 at 19 (citing Tr. 52-53). However, Dr. Vu corrected his 8 mistake at the hearing and acknowledged Plaintiff suffered from Hepatitis C. 9 Plaintiff fails to establish harmful error. 10 Similarly, Plaintiff challenges the ALJ’s reliance on Dr. Belzer’s testimony, 11 contending that Dr. Belzer’s lack of awareness “that treatment noncompliance 12 would make the claimant ineligible to meet a listing,” shows that he lacks 13 familiarity with Social Security Regulations. ECF No. 15 at 19-20 (citing Tr. 9114 92). First, Plaintiff fails to identify the evidence the ALJ should have relied on 15 instead, other than Dr. Arnold’s previously discounted opinion. Second, experts 16 testified that Plaintiff met Listing 12.09 for substance abuse when DAA is 17 included. Noncompliance with treatment is irrelevant to meeting this Listing, 18 contrary to Plaintiff’s unsupported allegation. 19 As the Commissioner correctly observes, the ALJ relied in part on Dr. 20 Layton’s testimony when he considered Dr. Arnold’s opinion. ECF No. 16 at 15. 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 37 1 Dr. Layton reviewed the entire record, including Plaintiff’s long history of 2 substance use, and opined Plaintiff met listing 12.09 (substance abuse). Tr. 1033 04. Plaintiff cannot challenge the finding that he met the listing because that is a 4 finding in his favor. See, e.g., Burch, 400 F.3d at 682 (no prejudice where ALJ 5 resolves a step in the claimant’s favor). 6 The ALJ cited adequate specific, legitimate reasons constituting substantial 7 evidence in giving little weight to Dr. Arnold’s opinions. 8 C. DAA 9 Finally, Plaintiff’s reply alleges the ALJ did not find that DAA was a 10 contributing factor material to disability; therefore, it is not at issue. ECF No. 17 at 11 2. Contrary to Plaintiff’s contention, however, the ALJ plainly stated: “The 12 substance abuse disorder is a contributing factor material to the determination of 13 disability because the claimant would not be disabled if he stopped the substance 14 abuse.” Tr. 33. Plaintiff fails to show any error. 15 16 CONCLUSION After review, the Court finds that the ALJ’s decision is supported by 17 substantial evidence and free of harmful legal error. 18 IT IS ORDERED: 19 1. Plaintiff’s motion for summary judgment, ECF No. 15, is denied. 20 2. Defendant’s motion for summary judgment, ECF No. 16, is granted. 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 38 1 2 3 4 5 The District Court Executive is directed to file this Order, provide copies to counsel, enter judgment in favor of defendant and CLOSE the file. DATED this 16th day of September, 2016. S/Mary K. Dimke MARY K. DIMKE UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 39

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