Raab v. Commissioner of Social Security, No. 1:2018cv03069 - Document 17 (E.D. Wash. 2019)
Court Description: ORDER GRANTING 12 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING 14 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. Case Closed. Signed by Judge Rosanna Malouf Peterson. (SG, Case Administrator).
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Raab v. Commissioner of Social Security Doc. 17 1 2 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 3 May 31, 2019 4 SEAN F. MCAVOY, CLERK 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 HEATHER R., NO: 1:18-CV-3069-FVS 8 9 10 Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 11 Defendant. 12 13 BEFORE THE COURT are the parties’ cross motions for summary 14 judgment. ECF Nos. 12, 14. This matter was submitted for consideration without 15 oral argument. The plaintiff is represented by Attorney D. James Tree. The 16 defendant is represented by Special Assistant United States Attorney Jeffrey E. 17 Staples. The Court has reviewed the administrative record and the parties’ 18 completed briefing and is fully informed. For the reasons discussed below, the 19 court GRANTS Plaintiff’s Motion for Summary Judgment, ECF No. 12, and 20 DENIES Defendant’s Motion for Summary Judgment, ECF No. 14. 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 1 Dockets.Justia.com 1 JURISDICTION Plaintiff Heather R.1 protectively filed for supplemental security income and 2 3 disability insurance benefits on March 20, 2014, alleging an onset date of July 11, 4 2013. Tr. 229-43. Benefits were denied initially, Tr. 125-31, and upon 5 reconsideration, Tr. 132-42. Plaintiff requested a hearing before an administrative 6 law judge (“ALJ”), which was held before ALJ Mary Gallagher Dilley on March 14, 7 2017. Tr. 51-79. Plaintiff had representation and testified at the hearing. Id. The 8 ALJ denied benefits, Tr. 13-35, and the Appeals Council denied review. Tr. 1. The 9 matter is now before this Court pursuant to 42 U.S.C. §§ 405(g); 1383(c)(3). 10 BACKGROUND 11 The facts of the case are set forth in the administrative hearing and 12 transcripts, the ALJ’s decision, and the briefs of Plaintiff and the Commissioner. 13 Only the most pertinent facts are summarized here. 14 Plaintiff was 27 years old at the time of the hearing. See Tr. 56. She 15 graduated from high school and had “some college.” Tr. 57. Plaintiff lives with 16 her parents. Tr. 56. She has work history as a housekeeper, caregiver, fast food 17 worker, and kitchen supervisor. Tr. 61-62, 74-75. Plaintiff testified that she 18 19 1 20 name and last initial, and, subsequently, Plaintiff’s first name only, throughout this 21 decision. In the interest of protecting Plaintiff’s privacy, the Court will use Plaintiff’s first ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 2 1 cannot do any of her past work because the stressful environment “brings on a 2 manic episode and a manic attack basically and brings me to being back to being 3 unstable.” Tr. 62. 4 Plaintiff testified that she has a clean and sober date of May 31, 2014. Tr. 5 58. She reported that after becoming clean and sober, her mental health symptoms 6 “became more prevalent” but she has since developed better coping mechanisms. 7 Tr. 64. Plaintiff testified that she suffers from anxiety, seizures, manic and 8 depressive episodes, conversion disorder, PTSD, and joint pain. Tr. 63-67, 72. 9 She testified that she lives with her parents and they are her caregivers, including: 10 cooking for her, taking care of her money, disbursing her medications, and 11 reminding her to do self-care. Tr. 68. Plaintiff “stay[s] close to home,” aside from 12 going to NA meetings, and counseling twice a month. Tr. 70-73. 13 14 STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 15 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 16 limited; the Commissioner’s decision will be disturbed “only if it is not supported 17 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 18 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a 19 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159 20 (quotation and citation omitted). Stated differently, substantial evidence equates to 21 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 3 1 citation omitted). In determining whether the standard has been satisfied, a 2 reviewing court must consider the entire record as a whole rather than searching 3 for supporting evidence in isolation. Id. 4 In reviewing a denial of benefits, a district court may not substitute its 5 judgment for that of the Commissioner. If the evidence in the record “is 6 susceptible to more than one rational interpretation, [the court] must uphold the 7 ALJ’s findings if they are supported by inferences reasonably drawn from the 8 record.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). Further, a district 9 court “may not reverse an ALJ’s decision on account of an error that is harmless.” 10 Id. An error is harmless “where it is inconsequential to the [ALJ’s] ultimate 11 nondisability determination.” Id. at 1115 (quotation and citation omitted). The 12 party appealing the ALJ’s decision generally bears the burden of establishing that 13 it was harmed. Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009). 14 15 FIVE–STEP SEQUENTIAL EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within 16 the meaning of the Social Security Act. First, the claimant must be “unable to 17 engage in any substantial gainful activity by reason of any medically determinable 18 physical or mental impairment which can be expected to result in death or which 19 has lasted or can be expected to last for a continuous period of not less than twelve 20 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). Second, the claimant’s 21 impairment must be “of such severity that he is not only unable to do his previous ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 4 1 work[,] but cannot, considering his age, education, and work experience, engage in 2 any other kind of substantial gainful work which exists in the national economy.” 3 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). 4 The Commissioner has established a five-step sequential analysis to 5 determine whether a claimant satisfies the above criteria. See 20 C.F.R. §§ 6 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v). At step one, the Commissioner 7 considers the claimant’s work activity. 20 C.F.R. §§ 404.1520(a)(4)(i), 8 416.920(a)(4)(i). If the claimant is engaged in “substantial gainful activity,” the 9 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 10 11 404.1520(b), 416.920(b). If the claimant is not engaged in substantial gainful activity, the analysis 12 proceeds to step two. At this step, the Commissioner considers the severity of the 13 claimant’s impairment. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the 14 claimant suffers from “any impairment or combination of impairments which 15 significantly limits [his or her] physical or mental ability to do basic work 16 activities,” the analysis proceeds to step three. 20 C.F.R. §§ 404.1520(c), 17 416.920(c). If the claimant’s impairment does not satisfy this severity threshold, 18 however, the Commissioner must find that the claimant is not disabled. 20 C.F.R. 19 §§ 404.1520(c), 416.920(c). 20 21 At step three, the Commissioner compares the claimant’s impairment to severe impairments recognized by the Commissioner to be so severe as to preclude ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 5 1 a person from engaging in substantial gainful activity. 20 C.F.R. §§ 2 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the impairment is as severe or more 3 severe than one of the enumerated impairments, the Commissioner must find the 4 claimant disabled and award benefits. 20 C.F.R. §§ 404.1520(d), 416.920(d). 5 If the severity of the claimant’s impairment does not meet or exceed the 6 severity of the enumerated impairments, the Commissioner must pause to assess 7 the claimant’s “residual functional capacity.” Residual functional capacity (RFC), 8 defined generally as the claimant’s ability to perform physical and mental work 9 activities on a sustained basis despite his or her limitations, 20 C.F.R. §§ 10 404.1545(a)(1), 416.945(a)(1), is relevant to both the fourth and fifth steps of the 11 analysis. 12 At step four, the Commissioner considers whether, in view of the claimant’s 13 RFC, the claimant is capable of performing work that he or she has performed in 14 the past (past relevant work). 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). 15 If the claimant is capable of performing past relevant work, the Commissioner 16 must find that the claimant is not disabled. 20 C.F.R. §§ 404.1520(f), 416.920(f). 17 If the claimant is incapable of performing such work, the analysis proceeds to step 18 five. 19 At step five, the Commissioner considers whether, in view of the claimant’s 20 RFC, the claimant is capable of performing other work in the national economy. 21 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). In making this determination, ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 6 1 the Commissioner must also consider vocational factors such as the claimant’s age, 2 education and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 3 416.920(a)(4)(v). If the claimant is capable of adjusting to other work, the 4 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 5 404.1520(g)(1), 416.920(g)(1). If the claimant is not capable of adjusting to other 6 work, analysis concludes with a finding that the claimant is disabled and is 7 therefore entitled to benefits. 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). 8 The claimant bears the burden of proof at steps one through four above. Tackett v. 9 Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to step five, 10 the burden shifts to the Commissioner to establish that (1) the claimant is capable 11 of performing other work; and (2) such work “exists in significant numbers in the 12 national economy.” 20 C.F.R. §§ 404.1560(c)(2), 416.960(c)(2); Beltran v. Astrue, 13 700 F.3d 386, 389 (9th Cir. 2012). 14 A finding of “disabled” does not automatically qualify a claimant for 15 disability benefits. Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001). 16 When there is medical evidence of drug or alcohol addiction (“DAA”), the ALJ 17 must determine whether the DAA is a material factor contributing to the disability. 18 20 C.F.R. § 416.935(a). It is the claimant’s burden to prove substance addiction is 19 not a contributing factor material to her disability. Parra v. Astrue, 481 F.3d 742, 20 748 (9th Cir. 2007). 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 7 1 ALJ’S FINDINGS 2 At step one, the ALJ found Plaintiff has not engaged in substantial gainful 3 activity since July 11, 2013, the alleged onset date. Tr. 18. At step two, the ALJ 4 found Plaintiff has the following severe impairments: substance abuse with 5 psychosis; affective disorders variously diagnosed as bipolar, depressive, and 6 unspecified mood disorders; anxiety; borderline personality disorder; and 7 posttraumatic stress disorder. Tr. 18-19. At step three, the ALJ found that 8 Plaintiff’s impairments, including the substance use disorder, meet Listing 12.03 of 9 20 C.F.R. Part 404, Subpt. P, App’x 1. Tr. 20. However, the ALJ found that if 10 Plaintiff stopped the substance use, she would continue to have a severe 11 impairment or combination of impairments at step two, but the impairments would 12 not meet or medically equal the severity of a listed impairment at step three. Tr. 13 21. The ALJ then determined that if the Plaintiff stopped the substance use, she 14 would have the RFC 15 16 17 to perform a full range of work at all exertional levels. In terms of nonexertional limitations, she must avoid concentrated exposure to hazards such as moving machinery and heights. She can perform simple, routine tasks. She can have superficial contact with the public and coworkers. 18 Tr. 22. At step four, the ALJ found that if Plaintiff stopped substance use, she 19 would be able to perform her past relevant work as a cleaner, housekeeping. Tr. 20 28. At step five, the ALJ found that if Plaintiff stopped substance abuse, 21 considering Plaintiff’s age, education, work experience, and RFC, there would be a ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 8 1 significant number of jobs in the national economy that Plaintiff could perform, 2 such as industrial cleaner, kitchen helper, and laundry worker II. Tr. 28-29. 3 Finally, the ALJ found that substance use disorder is a contributing factor material 4 to the determination of disability because Plaintiff would not be disabled if she 5 stopped the substance use. Tr. 29-30. Thus, the ALJ concluded that Plaintiff has 6 not been disabled within the meaning of the Social Security Act at any time from 7 the alleged onset date through the date of the decision. Tr. 30. 8 9 ISSUES Plaintiff seeks judicial review of the Commissioner’s final decision denying 10 her disability insurance benefits under Title II of the Social Security Act and 11 supplemental security income benefits under Title XVI of the Social Security Act. 12 ECF No. 12. Plaintiff raises the following issues for this Court’s review: 13 1. Whether the ALJ properly weighed the medical opinion evidence; 14 2. Whether the ALJ erred by finding substance use was a factor material to the 15 finding of disability; 16 3. Whether the ALJ improperly discredited Plaintiff’s symptom claims; and 17 4. Whether the ALJ erred at step three. 18 19 20 21 DISCUSSION A. Medical Opinions There are three types of physicians: “(1) those who treat the claimant (treating physicians); (2) those who examine but do not treat the claimant ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 9 1 (examining physicians); and (3) those who neither examine nor treat the claimant 2 [but who review the claimant's file] (nonexamining [or reviewing] physicians).” 3 Holohan v. Massanari, 246 F.3d 1195, 1201–02 (9th Cir. 2001) (citations omitted). 4 Generally, a treating physician's opinion carries more weight than an examining 5 physician's, and an examining physician's opinion carries more weight than a 6 reviewing physician's. Id. If a treating or examining physician's opinion is 7 uncontradicted, the ALJ may reject it only by offering “clear and convincing 8 reasons that are supported by substantial evidence.” Bayliss v. Barnhart, 427 F.3d 9 1211, 1216 (9th Cir.2005). Conversely, “[i]f a treating or examining doctor's 10 opinion is contradicted by another doctor's opinion, an ALJ may only reject it by 11 providing specific and legitimate reasons that are supported by substantial 12 evidence.” Id. (citing Lester, 81 F.3d at 830–831). “However, the ALJ need not 13 accept the opinion of any physician, including a treating physician, if that opinion 14 is brief, conclusory and inadequately supported by clinical findings.” Bray v. 15 Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009) (quotation and 16 citation omitted). 17 Plaintiff argues the ALJ erroneously considered the 2013 and 2014 opinions 18 of treating provider Mara Fusfield, ARNP, “along with the accompanying 19 disability/incapacity determinations and reviews of medical evidence”; the opinion 20 of examining psychologist, R.A. Cline, Ph.D.; and the opinion of agency reviewing 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 10 1 psychologist Beth Fitterer, Ph.D. ECF No. 12 at 12-14. The ALJ and Plaintiff’s 2 briefing considered these opinions together; thus, the Court will do the same. 3 In November 2014, agency reviewing psychologist Beth Fitterer, Ph.D. 4 opined that Plaintiff “would be able to perform simple and some difficulty with 5 complex tasks for a normal work day/week [with] occasional interruptions from 6 [her psychological symptoms].” Tr. 26, 105, 118. 7 In August 2013, Mara Fusfield, ARNP, Plaintiff’s treating provider, opined 8 that due to “sudden change [in] mental status,” she had marked to severe 9 limitations in her ability to sit, stand, walk, lift, carry, handle, push, pull, reach, 10 stoop, crouch, and communicate. Tr. 393. Ms. Fusfield noted that Plaintiff 11 required direction to “keep her tracking,” and “can’t find words or finish 12 sentences.” Tr. 393. While not specifically identified by the ALJ, this opinion was 13 reviewed by DSHS physician J. Dalton, M.D. who opined that Plaintiff had a 14 marked limitation in “environmental/non-exertional restrictions” and a severe 15 limitation in her ability to perform activities within a schedule, maintain regular 16 attendance and be punctual within customary tolerances. Tr. 399-400. 17 In December 2013, Ms. Fusfield opined that Plaintiff had marked to severe 18 limitations in her ability to hear and communicate; marked limitations in her ability 19 to walk, lift, carry, handle, push, pull, reach, stoop, and crouch; and was capable of 20 only sedentary work. Tr. 397-98. Again, while not specifically identified by the 21 ALJ, Ms. Fusfield’s August and December 2013 opinions were reviewed by Myrna ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 11 1 Palasi, M.D., who found marked limitation in postural restrictions and gross or fine 2 motor skill restrictions, and limited Plaintiff to sedentary work. Tr. 402-03. All of 3 the above referenced opinions specifically noted that the effect on Plaintiff’s work 4 activity was not “due primarily to alcohol or drug abuse/addiction.” Tr. 394, 398, 5 401, 404. Finally, in August 2014, Ms. Fusfield noted that Plaintiff continued to 6 have difficulty following directions, focusing on topics, reading, comprehending, 7 and retaining information; and she opined that Plaintiff was capable of light work. 8 Tr. 405-07. 9 In July 2016, Dr. R.A. Cline examined Plaintiff and opined that she had 10 moderate limitations in six basic work activities, and marked limitations in her 11 ability to (1) communicate and perform effectively in a work setting, and (2) 12 maintain appropriate behavior in a work setting. Tr. 973-77. 13 The ALJ collectively assigned little weight to (1) the portion of Dr. Fitterer’s 14 opinion indicating that Plaintiff would have occasional interruptions from her 15 psychological symptoms; (2) the marked limitations assessed by Dr. Cline; and (3) 16 “Ms. Fusfield’s assessments, along with the accompanying disability/incapacity 17 determinations and reviews of medical evidence, indicating that the claimant was 18 limited to sedentary or light exertion with postural and motor skill restrictions, that 19 she had some neurobehavioral problem resulting in marked to severe functional 20 limitations, and that she was severely limited in performing activities within a 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 12 1 schedule, maintaining regular attendance, and being punctual within customary 2 tolerances.” Tr. 26. 3 First, as to her physical capacity, the ALJ generally found, without citation 4 to the record, that Ms. Fusfield’s assessments and “the accompanying 5 disability/incapacity determinations and reviews of medical evidence indicating 6 [Plaintiff] was limited to sedentary or light exertion with postural and motor skill 7 restrictions are inconsistent with [Plaintiff’s] physical treatment history and the 8 objective clinical findings.” Tr. 27. Similarly, as to her mental capacity, in the 9 absence of substance abuse, the ALJ found the above cited “portion of Dr. 10 Fitterer’s opinion, Ms. Fusfield’s opinions and the accompanying 11 disability/incapacity determinations and reviews of medical evidence, Dr. Cline’s 12 opinion, and the low GAF scores are inconsistent with [Plaintiff’s] longitudinal 13 mental health treatment history and performance on mental status examinations 14 during periods of sobriety.” Tr. 27. In support of this finding, the ALJ generally 15 found that with one possible relapse in May 2015, Plaintiff “has maintained her 16 sobriety since mid-2014 with largely unremarkable mental status and tolerable if 17 any side effects of medication.” Tr. 27 (citing Tr. 445, 518-19, 537-50, 558, 562, 18 566-70, 586, 800, 889, 908, 923, 936, 946-48, 1080, 1106, 1227, 1231-57). 19 Plaintiff argues that the ALJ failed to explain with requisite specificity how 20 the marked to severe portions of the opinions cited by the ALJ were inconsistent 21 with the medical record and objective medical findings. ECF No. 12 at 12-13. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 13 1 The Court agrees. The consistency of a medical opinion with the record as a whole 2 is a relevant factor in evaluating that medical opinion. See Orn v. Astrue, 495 F.3d 3 625, 631 (9th Cir. 2007). Batson v. Comm’r Soc. Sec. Admin., 359 F.3d 1190, 4 1195 (9th Cir. 2004) (ALJ may discount an opinion that is conclusory, brief, and 5 unsupported by the record as a whole, or by objective medical findings). 6 However, when explaining his reasons for rejecting medical opinion evidence, the 7 ALJ must do more than state a conclusion; rather, the ALJ must “set forth his own 8 interpretations and explain why they, rather than the doctors’, are correct.” 9 Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998). “This can be done by setting 10 out a detailed and thorough summary of the facts and conflicting clinical evidence, 11 stating his interpretation thereof, and making findings.” Id. Here, the Court finds 12 the ALJ failed to summarize and interpret the entirety of the clinical findings in 13 each of the seven distinct medical opinions that were assigned little weight. Tr. 14 26-27. Thus, the ALJ’s wholesale rejection of the marked to severe findings by 15 these treating, examining, and reviewing providers as generally inconsistent with 16 the mental status examination results, without the requisite interpretations of the 17 “facts and conflicting clinical evidence,” is not supported by substantial evidence. 18 This was not a specific and legitimate reason for the ALJ to reject the opinions of 19 Dr. Fitterer, Ms. Fusfield, Dr. Dalton, Dr. Palasi, and Dr. Cline. 20 21 Second, the ALJ found that Ms. Fusfield’s opinions and the accompanying disability/incapacity determinations and reviews of medical evidence, and Dr. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 14 1 Cline’s opinion, were “based in part” on Plaintiff’s self-report; “however, 2 [Plaintiff’s] statements concerning the intensity, persistence, and limiting effects of 3 her symptoms in the absence of substance use are not entirely consistent with the 4 evidence.” Tr. 27. An ALJ may reject a physician’s opinion if it is based “to a 5 large extent” on Plaintiff’s self-reports that have been properly discounted as not 6 credible. Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). Here, the 7 only evidence cited by the ALJ in support of this finding was Dr. Cline’s indication 8 that he did not review any records as part of his evaluation of Plaintiff. Tr. 27 9 (citing Tr. 973). However, the ALJ entirely failed to consider Dr. Cline’s mental 10 status examination, which included findings of abnormal thought process and 11 content, abnormal perception, abnormal memory, abnormal abstract thought, and 12 abnormal insight and judgment. Tr. 977. Similarly, the ALJ failed to consider 13 portions of Ms. Fusfield’s opinions that referenced objective test results, and 14 corresponding treatment notes from Ms. Fusfield that included mental status 15 findings of impaired insight and judgment, agitated and apathetic affect, and 16 impaired thinking, attention, and concentration. See Tr. 392 (negative CT and 17 lumbar puncture, and elevated white blood cell count), 394 (negative drug 18 screens), 411, 422, 589, 600. Neither the ALJ, nor the Defendant, offers any 19 evidence that Dr. Cline and Ms. Fusfield relied “to a large extent” on Plaintiff’s 20 subjective complaints as opposed to these clinical findings. Moreover, as 21 conceded by Defendant, “an ALJ may not reject an opinion about a claimant’s ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 15 1 mental health for its ‘partial reliance’ on the claimant’s unreliable self-reports.” 2 ECF No. 14 at 8; Cf. Tommasetti, 533 F.3d at 1041 (ALJ may reject a physician’s 3 opinion if it is based “to a large extent” on Plaintiff’s self-reports). Based on the 4 foregoing, the ALJ’s rejection of these opinions because they were based only “in 5 part” on Plaintiff’s self-report was not a specific and legitimate reason, supported 6 by substantial evidence. For all of these reasons, the ALJ did not properly consider Ms. Fusfield, 2 Dr. 7 8 Fitterer, Dr. Dalton, Dr. Palasi, and Dr. Cline’s opinions, and they must be 9 reconsidered on remand. 10 11 12 13 14 15 16 17 18 19 20 21 2 The ALJ also noted that Ms. Fusfield “may not have been fully aware of [Plaintiff’s] drug use.” Tr. 27. In support of this finding, the ALJ cited Ms. Fusfield’s January 2014 treatment note indicating that Plaintiff had not used heroin in “more than a year, but in mid-2013 [Plaintiff] was noted to be possibly attending to hallucinations and her providers suspected that she was not being entirely forthright about her drug use.” Tr. 27 (citing Tr. 347, 369, 497-98). Defendant argues the “ALJ reasonably concluded that Plaintiff’s willingness to mislead Ms. Fusfield on the subject of her impairments reflected negatively on the value of Ms. Fusfield’s opinions.” ECF No. 14 at 8. However, as noted by Plaintiff, the evidence cited by the ALJ does not support a conclusion that Plaintiff intentionally misled Ms. Fusfield about her heroin use, and therefore “does not undermine the ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 16 1 2 B. DAA A social security claimant is not entitled to benefits “if alcoholism or drug 3 addiction would . . . be a contributing factor material to the Commissioner's 4 determination that the individual is disabled.” 42 U.S.C. § 423(d)(2)(C), 5 1382c(a)(3)(J). Therefore, when there is medical evidence of drug or alcohol 6 addiction, the ALJ must conduct a DAA analysis and determine whether drug or 7 alcohol addiction is a material factor contributing to the disability. 20 C.F.R. §§ 8 404.1535(a), 416.935(a). In order to determine whether drug or alcohol addiction 9 is a material factor contributing to the disability, the ALJ must evaluate which of 10 the current physical and mental limitations would remain if the claimant stopped 11 using drugs or alcohol, then determine whether any or all of the remaining 12 limitations would be disabling. 20 C.F.R. §§ 404.1535(b)(2), 416.935(b)(2). If the 13 remaining limitations without DAA would still be disabling, then the claimant's 14 drug addiction or alcoholism is not a contributing factor material to his disability. 15 If the remaining limitations would not be disabling without DAA, then the 16 claimant's substance abuse is material and benefits must be denied. Parra v. 17 Astrue, 481 F.3d 742, 747-48 (9th Cir. 2007). “The claimant bears the burden of 18 19 20 21 validity of her opinions.” ECF No. 15 at 6-7. Regardless, as discussed above, the ALJ’s rejection of Ms. Fusfield’s opinions was not supported by substantial evidence, and they must be reconsidered on remand. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 17 1 proving that drug or alcohol addiction is not a contributing factor material to his 2 disability.” Id. at 748. 3 Plaintiff argues the ALJ failed to “clearly distinguish[] between periods of 4 use and abstinence” and “failed to consider the context of [Plaintiff’s] treatment 5 setting and that any improvement to her co-occurring mental disorders was due to 6 this treatment.” ECF No. 12 at 8. Social Security Ruling (“SSR”) 13-2p, which 7 explains the Commissioner’s policy on “the analysis of substance abuse (or 8 ‘DAA’) in a case involving co-occurring mental disorders,” directs, in pertinent 9 part, that the ALJ must consider periods of abstinence from drug and alcohol use 10 11 that are 13 long enough to allow the acute effects of drug and alcohol use to abate. Especially in cases involving co-occurring mental disorders, the documentation of a period of abstinence should provide information about what, if any, medical findings and impairment-related limitations remained after the acute effects of drug and alcohol use abated. 14 SSR 13-2p (February 20, 2013), available at 2013 WL 621536 at *12. Moreover, 15 SSR 13-2p explicitly directs that if “the case record does not demonstrate the 16 separate effects of the treatment for DAA and for the co-occurring mental 17 disorder(s), we will find that DAA is not material.” SSR 13-2p at *12. 12 18 Defendant argues the ALJ properly found that Plaintiff’s impairments, 19 including substance abuse, satisfied the requirements of Listing 12.03; and, based 20 on “evidence from a period when Plaintiff was not using drugs,” the ALJ 21 “reasonably concluded that when Plaintiff was not using drugs, she did not have ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 18 1 marked limitations in any area of functioning.” ECF No. 14 at 3-4; Tr. 21-22 2 (citing Tr. 416, 434-36, 518-19, 537, 539, 541, 545, 558, 974, 1221). In finding 3 that Plaintiff met the Listing “including substance use,” the ALJ relied heavily on 4 evidence of Plaintiff’s “psychotic break in July/August 2014” and “exhibit[ion] 5 [of] increased symptoms in May/June 2015.” Tr. 20. However, as noted by 6 Plaintiff, the ALJ failed to consider evidence that “exacerbations in her symptoms 7 were not wholly due to substance use, but persisted during periods of sobriety,” 8 including: (1) treatment notes indicating Plaintiff was abstinent from substance use 9 after her admitted relapse in May 2014; (2) treatment notes indicating that Plaintiff 10 had been incarcerated “for at least 3-4 weeks prior to her removal from jail and 11 placement as an inpatient at Fairfax Hospital” for a psychotic break in July 2014, 12 during which time she was sober and refused to take her medication; and perhaps 13 most notably, (3) Plaintiff had negative urine and blood drug screens in May 2014, 14 July 2014, May 2015, and July 2015. Tr. 7, 58, 524-29, 658, 959, 968, 1045, 1171, 15 1247. Moreover, while the ALJ correctly noted that treatment providers 16 “suspected” Plaintiff’s increased mental health symptoms in May 2015 were due to 17 substance use, and Plaintiff refused to provide a urine sample at that time, those 18 same providers also acknowledged it was “unclear” whether Plaintiff’s symptoms 19 were due to mental health issues or substance use. Tr. 864-77, 1056. An ALJ may 20 not “cherry-pick[ ]” aspects of the medical record and focus only on those aspects 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 19 1 that fail to support a finding of disability. Ghanim v. Colvin, 763 F.3d 1154, 1164 2 (9th Cir. 2014). 3 Finally, the ALJ’s decision and Defendant’s briefing acknowledge that prior 4 to Plaintiff’s increased mental health symptoms in May 2015, as cited by the ALJ 5 to support the DAA finding, the record also indicates that Plaintiff was not taking 6 her medications. Tr. 20, 579, 584, 862, 865, 877, 958-59, 969, 1149, 1154. 7 Notably, Defendant recognized that “[a]fter being back on medication for a few 8 weeks, Plaintiff’s symptoms were only mild,” and Defendant appears to concede 9 that “[t]his shows that Plaintiff’s psychotic episode occurred . . . because she 10 temporarily stopped taking her medication.” ECF No. 14 at 5-6 (citing Tr. 568, 11 579, 860). As noted by Plaintiff, the improvement in Plaintiff’s symptoms after 12 periods of sobriety coincided with “participating in a myriad of intensive treatment 13 programs, aimed at treating both her DAA and her co-occurring mental disorders”; 14 thus, Plaintiff contends that when “there is no evidence demonstrating the separate 15 effects of [Plaintiff’s] DAA treatment and her treatment for her co-occurring 16 mental impairments, . . . [the] SSA directs a finding of non-materiality in such 17 instances, because there is no clear evidence demonstrating that sobriety was the 18 sole factor in [Plaintiff’s] relative improvement.” ECF No. 12 at 9. 19 Based on the foregoing, and in light of the need to reconsider the medical 20 opinion evidence, which included findings that Plaintiff’s impairments were not 21 “primarily the result of alcohol or drug use within the past 60 days” (Tr. 394, 398, ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 20 1 401, 404, 976), the ALJ should reevaluate on remand whether substance use 2 disorder was a contributing factor material to the determination of disability. 3 4 C. Additional Assignments of Error Plaintiff also challenges the ALJ's consideration of Plaintiff's symptom 5 claims and the ALJ's conclusions at step three if Plaintiff stopped the substance 6 use. ECF No. 12 at 9-12, 14-20. Because the analysis of these questions is 7 dependent on the ALJ's evaluation of the medical opinion evidence and alleged 8 improvement during periods of sobriety, which the ALJ is instructed to reconsider 9 on remand, the Court declines to address these challenges here. On remand, the 10 ALJ is instructed to conduct a new sequential analysis after reconsidering the 11 medical opinion evidence and DAA analysis. 12 REMEDY 13 The decision whether to remand for further proceedings or reverse and 14 award benefits is within the discretion of the district court. McAllister v. Sullivan, 15 888 F.2d 599, 603 (9th Cir. 1989). An immediate award of benefits is appropriate 16 where “no useful purpose would be served by further administrative proceedings, 17 or where the record has been thoroughly developed,” Varney v. Sec'y of Health & 18 Human Servs., 859 F.2d 1396, 1399 (9th Cir. 1988), or when the delay caused by 19 remand would be “unduly burdensome[.]” Terry v. Sullivan, 903 F.2d 1273, 1280 20 (9th Cir. 1990); see also Garrison v. Colvin, 759 F.3d 995, 1021 (noting that a 21 district court may abuse its discretion not to remand for benefits when all of these ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 21 1 conditions are met). This policy is based on the “need to expedite disability 2 claims.” Varney, 859 F.2d at 1401. But where there are outstanding issues that 3 must be resolved before a determination can be made, and it is not clear from the 4 record that the ALJ would be required to find a claimant disabled if all the 5 evidence were properly evaluated, remand is appropriate. See Benecke v. 6 Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); Harman v. Apfel, 211 F.3d 1172, 7 1179-80 (9th Cir. 2000). 8 9 The Court finds that further administrative proceedings are appropriate. See Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1103-04 (9th Cir. 2014) 10 (remand for benefits is not appropriate when further administrative proceedings 11 would serve a useful purpose). Here, the ALJ improperly considered medical 12 opinion evidence and the DAA analysis, which calls into question whether the step 13 three analysis, rejection of Plaintiff’s symptom claims, and assessed RFC, are 14 supported by substantial evidence. “Where,” as here, “there is conflicting evidence, 15 and not all essential factual issues have been resolved, a remand for an award of 16 benefits is inappropriate.” Treichler, 775 F.3d at 1101. 17 The Court remands this case for further proceedings. On remand, the ALJ 18 must reconsider the medical opinion evidence, and provide legally sufficient reasons 19 for evaluating each of the opinions, supported by substantial evidence. If necessary, 20 the ALJ should order additional consultative examinations and, if appropriate, take 21 additional testimony from medical experts. The ALJ must reexamine whether ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 22 1 substance use disorder was a contributing factor to the determination of disability. 2 The ALJ also should reconsider the step three analysis, Plaintiff’s symptom claims, 3 and the remaining steps in the sequential evaluation analysis. Finally, the ALJ 4 should reassess Plaintiff's RFC and, if necessary, take additional testimony from a 5 vocational expert which includes all of the limitations credited by the ALJ. 6 ACCORDINGLY, IT IS ORDERED: 7 1. Plaintiff’s Motion for Summary Judgment, ECF No. 12, is GRANTED, 8 and the matter is REMANDED to the Commissioner for additional 9 proceedings consistent with this Order. 10 2. Defendant’s Motion for Summary Judgment, ECF No. 14, is DENIED. 11 3. Application for attorney fees may be filed by separate motion. 12 The District Court Clerk is directed to enter this Order and provide copies to 13 14 counsel. Judgment shall be entered for Plaintiff and the file shall be CLOSED. DATED May 31, 2019. 15 16 s/ Rosanna Malouf Peterson ROSANNA MALOUF PETERSON United States District Judge 17 18 19 20 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 23
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