France v. Saul, No. 1:2019cv03207 - Document 23 (E.D. Wash. 2020)

Court Description: ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. Plaintiff's Motion for Summary Judgment (ECF No. 14 ) is DENIED. Defendant's Motion for Summary Judgment (ECF No. 21 ) is GRANTED. The file is CLOSED. Signed by Chief Judge Thomas O. Rice. (LLH, Courtroom Deputy)

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France v. Saul Doc. 23 Case 1:19-cv-03207-TOR ECF No. 23 filed 05/15/20 PageID.1273 Page 1 of 34 1 2 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 DUFF F., NO. 1:19-CV-3207-TOR Plaintiff, 8 9 10 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT v. ANDREW M. SAUL, Commissioner of Social Security, 11 Defendant. 12 13 BEFORE THE COURT are the parties’ cross-motions for summary 14 judgment (ECF Nos. 14, 21). Plaintiff is represented by D. James Tree. Defendant 15 is represented by Martha A. Boden. This matter was submitted for consideration 16 without oral argument. The Court has reviewed the administrative record and the 17 parties’ completed briefing and is fully informed. For the reasons discussed below, 18 the Court DENIES Plaintiff’s motion and GRANTS Defendant’s motion. 19 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 1 Dockets.Justia.com Case 1:19-cv-03207-TOR 1 2 3 4 5 ECF No. 23 filed 05/15/20 PageID.1274 Page 2 of 34 JURISIDCTION The Court has jurisdiction over this case pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3). 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 1158-59 (9th Cir. 2012) (citing 42 U.S.C. § 405(g)). “Substantial evidence” means 10 relevant evidence that “a reasonable mind might accept as adequate to support a 11 conclusion.” Id. at 1159 (quotation and citation omitted). Stated differently, 12 substantial evidence equates to “more than a mere scintilla[,] but less than a 13 preponderance.” Id. (quotation and citation omitted). In determining whether this 14 standard has been satisfied, a reviewing court must consider the entire record as a 15 whole rather than searching 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. Edlund v. Massanari, 253 F.3d 1152, 18 1156 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one 19 rational interpretation, [the court] must uphold the ALJ’s findings if they are 20 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 2 Case 1:19-cv-03207-TOR ECF No. 23 filed 05/15/20 PageID.1275 Page 3 of 34 1 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court “may not reverse an 2 ALJ’s decision on account of an error that is harmless.” Id. An error is harmless 3 “where it is inconsequential to the [ALJ’s] ultimate nondisability determination.” 4 Id. at 1115 (quotation and citation omitted). The party appealing the ALJ’s 5 decision generally bears the burden of establishing that it was harmed. Shinseki v. 6 Sanders, 556 U.S. 396, 409-10 (2009). 7 8 9 FIVE STEP SEQUENTIAL EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within the meaning of the Social Security Act. First, the claimant must be “unable to 10 engage in any substantial gainful activity by reason of any medically determinable 11 physical or mental impairment which can be expected to result in death or which 12 has lasted or can be expected to last for a continuous period of not less than twelve 13 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). Second, the claimant’s 14 impairment must be “of such severity that [he or she] is not only unable to do [his 15 or her] previous work[,] but cannot, considering [his or her] age, education, and 16 work experience, engage in any other kind of substantial gainful work which exists 17 in the national economy.” 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). 18 The Commissioner has established a five-step sequential analysis to 19 determine whether a claimant satisfies the above criteria. See 20 C.F.R. § 20 416.920(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s work ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 3 Case 1:19-cv-03207-TOR ECF No. 23 filed 05/15/20 PageID.1276 Page 4 of 34 1 activity. 20 C.F.R. § 416.920(a)(4)(i). If the claimant is engaged in “substantial 2 gainful activity,” the Commissioner must find that the claimant is not disabled. 20 3 C.F.R. § 416.920(b). 4 If the claimant is not engaged in substantial gainful activities, 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. § 416.920(a)(4)(ii). If the claimant suffers from 7 “any impairment or combination of impairments which significantly limits [his or 8 her] physical or mental ability to do basic work activities,” the analysis proceeds to 9 step three. 20 C.F.R. § 416.920(c). If the claimant’s impairment does not satisfy 10 this severity threshold, however, the Commissioner must find that the claimant is 11 not disabled. Id. 12 At step three, the Commissioner compares the claimant’s impairment to 13 several impairments recognized by the Commissioner to be so severe as to 14 preclude a person from engaging in substantial gainful activity. 20 C.F.R. § 15 416.920(a)(4)(iii). If the impairment is as severe or more severe than one of the 16 enumerated impairments, the Commissioner must find the claimant disabled and 17 award benefits. 20 C.F.R. § 416.920(d). 18 If the severity of the claimant’s impairment does meet or exceed the severity 19 of the enumerated impairments, the Commissioner must pause to assess the 20 claimant’s “residual functional capacity.” Residual functional capacity (“RFC”), ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 4 Case 1:19-cv-03207-TOR ECF No. 23 filed 05/15/20 PageID.1277 Page 5 of 34 1 defined generally as the claimant’s ability to perform physical and mental work 2 activities on a sustained basis despite his or her limitations (20 C.F.R. § 3 416.945(a)(1)), is relevant to both the fourth and fifth steps of the analysis. 4 At step four, the Commissioner considers whether, in view of the claimant’s 5 RFC, the claimant is capable of performing work that he or she has performed in 6 the past (“past relevant work”). 20 C.F.R. § 416.920(a)(4)(iv). If the claimant is 7 capable of performing past relevant work, the Commissioner must find that the 8 claimant is not disabled. 20 C.F.R. § 416.920(f). If the claimant is incapable of 9 performing such work, the analysis proceeds to step five. 10 At step five, the Commissioner considers whether, in view of the claimant’s 11 RFC, the claimant is capable of performing other work in the national economy. 12 20 C.F.R. § 416.920(a)(4)(v). In making this determination, the Commissioner 13 must also consider vocational factors such as the claimant’s age, education and 14 work experience. Id. If the claimant is capable of adjusting to other work, the 15 Commissioner must find that the claimant is not disabled. 20 C.F.R. § 16 416.920(g)(1). If the claimant is not capable of adjusting to other work, the 17 analysis concludes with a finding that the claimant is disabled and is therefore 18 entitled to benefits. Id. 19 20 The claimant bears the burden of proof at steps one through four above. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 5 Case 1:19-cv-03207-TOR ECF No. 23 filed 05/15/20 PageID.1278 Page 6 of 34 1 step five, the burden shifts to the Commissioner to establish that (1) the claimant is 2 capable of performing other work; and (2) such work “exists in significant 3 numbers in the national economy.” 20 C.F.R. § 416.960(c)(2); Beltran v. Astrue, 4 700 F.3d 386, 389 (9th Cir. 2012). 5 “A finding of ‘disabled’ under the five-step inquiry does not automatically 6 qualify a claimant for disability benefits.” Parra v. Astrue, 481 F.3d 742, 746 (9th 7 Cir. 2007) (citing Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001)). 8 When there is medical evidence of drug or alcohol addiction (“DAA”), the ALJ 9 must determine whether the DAA is a material factor contributing to the disability. 10 20 C.F.R. § 416.935(a). In order to determine whether DAA is a material factor 11 contributing to the disability, the ALJ must evaluate which of the current physical 12 and mental limitations would remain if the claimant stopped using drugs or 13 alcohol, then determine whether any or all of the remaining limitations would be 14 disabling. 20 C.F.R. § 416.935(b)(2). If the remaining limitations would not be 15 disabling, DAA is a contributing factor material to the determination of disability. 16 Id. If the remaining limitations would be disabling, the claimant is disabled 17 independent of the drug or alcohol addiction and the addiction is not a contributing 18 factor material to disability. Id. The claimant has the burden of showing that DAA 19 is not a contributing factor material to disability. Parra, 481 F.3d at 748. 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 6 Case 1:19-cv-03207-TOR ECF No. 23 1 2 filed 05/15/20 PageID.1279 Page 7 of 34 ALJ’S FINDINGS On June 28, 2016, Plaintiff filed an application for Title XVI supplemental 3 security income benefits, alleging a disability onset date of December 8, 2014. Tr. 4 188-202. The application was denied initially, Tr. 115-18, and on reconsideration, 5 Tr. 122-24. Plaintiff appeared at a hearing before an administrative law judge 6 (“ALJ”) on June 20, 2018. Tr. 37-65. On August 13, 2018, the ALJ denied 7 Plaintiff’s claim. Tr. 12-34. 8 At step one of the sequential evaluation analysis, the ALJ found Plaintiff had 9 engaged in substantial gainful activity from July 2017 through the date of the 10 ALJ’s decision, but that there had been a continuous 12-month period during 11 which Plaintiff did not engage in substantial gainful activity. Tr. 18-19. At step 12 two, the ALJ found Plaintiff had the following severe impairments: chronic 13 depression, personality disorder, ongoing methamphetamine abuse and 14 dependence, mild lumbago, and hepatitis C. Tr. 19. At step three, the ALJ found 15 that Plaintiff’s impairments, including the substance use disorder, met section 16 12.04 of the listed impairments. Tr. 20. However, the ALJ found that if Plaintiff 17 stopped the substance use, Plaintiff would not have an impairment or combination 18 of impairments that meets or medically equals the severity of a listed impairment. 19 Tr. 22. The ALJ then found that, if Plaintiff stopped the substance use, Plaintiff 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 7 Case 1:19-cv-03207-TOR ECF No. 23 filed 05/15/20 PageID.1280 Page 8 of 34 1 would have the RFC to perform medium work with the following nonexertional 2 limitations: 3 [H]e is able to understand, remember, and complete simple repetitive tasks; he is able to maintain attention and concentration on simple repetitive tasks for two hour intervals between regularly scheduled breaks; there should be a predictable work environment with seldom changes; there should only be simple judgment/decision making; there should be fast paced production rate of pace; interaction with the public should be brief and superficial; interaction with coworkers should be non-collaborative, no teamwork; and he should deal with things, rather than people. 4 5 6 7 8 Tr. 23. At step four, the ALJ found that, if Plaintiff stopped the substance use, he 9 10 would be able to perform past relevant work as a laborer, salvage. Tr. 28-29. The 11 ALJ concluded that substance use disorder is a contributing factor material to the 12 determination of disability because Plaintiff would not be disabled if he stopped 13 the substance use, so Plaintiff was not under a disability, as defined in the Social 14 Security Act, from June 28, 2016, the filing date, through August 13, 2018, the 15 date of the ALJ’s decision. Tr. 29. On July 10, 2019, the Appeals Council denied review, Tr. 1-6, making the 16 17 ALJ’s decision the Commissioner’s final decision for purposes of judicial review. 18 See 42 U.S.C. § 1383(c)(3). 19 // 20 // ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 8 Case 1:19-cv-03207-TOR ECF No. 23 1 filed 05/15/20 PageID.1281 Page 9 of 34 ISSUES 2 Plaintiff seeks judicial review of the Commissioner’s final decision denying 3 him supplemental security income benefits under Title XVI of the Social Security 4 Act. Plaintiff raises the following issues for this Court’s review: 5 6 1. Whether substantial evidence supports the ALJ’s finding that Plaintiff’s DAA was material; 7 2. Whether the ALJ properly weighed Plaintiff’s symptom testimony; and 8 3. Whether the ALJ properly weighed the medical opinion evidence. 9 ECF No. 14 at 2. 10 11 12 DISCUSSION A. Material DAA Plaintiff challenges the ALJ’s conclusion that Plaintiff’s substance use was 13 material to the disability determination. ECF No. 14 at 4-7. Social Security 14 claimants may not receive benefits where DAA is a material contributing factor to 15 disability. See 20 C.F.R. § 416.935(a); 42 U.S.C. § 423(d)(2)(c). DAA is a 16 materially contributing factor if the claimant would not meet the SSA’s definition 17 of disability if the claimant were not using drugs or alcohol. 20 C.F.R. § 18 416.935(b). Plaintiff has the burden of showing that drug and alcohol addiction is 19 not a contributing factor material to disability. Parra, 481 F.3d at 748; see also 20 SSR 13-2p, 2013 WL 621536, at *4. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 9 Case 1:19-cv-03207-TOR ECF No. 23 filed 05/15/20 PageID.1282 Page 10 of 34 1 Here, the ALJ found that Plaintiff’s ongoing methamphetamine use was 2 material to Plaintiff’s disability determination. Tr. 22, 29. The ALJ found that 3 Plaintiff’s impairments met the severity of a listed impairment when Plaintiff’s 4 substance use disorder was included in the analysis. Tr. 20. However, the ALJ 5 noted that when Plaintiff maintained a period of sobriety in the spring and summer 6 of 2017, Plaintiff’s functioning improved significantly to the point that he could 7 return to full-time work. Tr. 23-25; see Tr. 836 (May 4, 2017: Plaintiff completed 8 intensive inpatient treatment); Tr. 767 (June 7, 2017: Plaintiff reported putting out 9 job applications, volunteering at a food bank, and attending résumé-writing 10 classes); Tr. 758-59 (June 22, 2017: Plaintiff reported being 72 days sober and 11 attributed a decrease in his depressive symptoms to his sobriety; Plaintiff reported 12 that his mental health symptoms were “well controlled”); Tr. 835 (July 3, 2017: 13 Plaintiff completed intensive outpatient treatment); Tr. 731 (July 3, 2017: Plaintiff 14 reported looking for full-time employment); Tr. 753 (August 3, 2017: Plaintiff 15 reported he was able to open a bank account and had been saving money). The 16 ALJ also identified evidence in the record that attributed Plaintiff’s mental 17 impairments to his ongoing substance use. Tr. 20-21, 26; see Tr. 515-16 18 (September 21, 2016: Dr. Billings noted Plaintiff’s mental health symptoms were 19 “common among individuals who are methamphetamine users”); Tr. 549 (October 20 21, 2016: Dr. Chase observed “much of [Plaintiff’s] psychiatric symptoms appear ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 10 Case 1:19-cv-03207-TOR ECF No. 23 filed 05/15/20 PageID.1283 Page 11 of 34 1 to be meth related”). Based on this record, the ALJ reasonably concluded that 2 Plaintiff’s methamphetamine use was material to the disability determination. 3 Plaintiff challenges the ALJ’s finding by arguing for a different 4 interpretation of the medical opinion evidence. ECF No. 14 at 5-6. Plaintiff’s 5 specific challenges to the ALJ’s evaluation of the medical opinion evidence are 6 addressed below. 7 Additionally, Plaintiff challenges the ALJ’s DAA finding by identifying 8 evidence in the record showing Plaintiff had mental impairments during times of 9 sobriety and evidence that Plaintiff was able to continue working full-time after 10 relapsing on methamphetamine. ECF No. 14 at 7. However, it is the ALJ’s 11 responsibility to resolve conflicts in the medical evidence. Andrews v. Shalala, 53 12 F.3d 1035, 1039 (9th Cir. 1995). Even if the “evidence is susceptible to more than 13 one rational interpretation, the ALJ’s decision should be upheld.” Ryan v. Comm’r 14 of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (internal quotation marks 15 omitted). The ALJ noted that Plaintiff’s own testimony was that his 16 methamphetamine use decreased significantly during the period in which he 17 worked while continuing to use methamphetamine. Tr. 24; see Tr. 58. The ALJ 18 reasonably concluded that Plaintiff’s improved functioning while sober or using 19 methamphetamine at a significantly decreased level indicated that his heavy 20 methamphetamine use during the relevant period was material to the disability ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 11 Case 1:19-cv-03207-TOR ECF No. 23 filed 05/15/20 PageID.1284 Page 12 of 34 1 analysis. Tr. 22-23. Although Plaintiff urges this Court to adopt a different 2 interpretation of the evidence, the reviewing court is not a finder of fact. Fair v. 3 Bowen, 885 F.2d 597, 604 (9th Cir. 1989). Where the ALJ’s interpretation of the 4 record is reasonable as it is here, it should not be second-guessed. Rollins v. 5 Massanari, 261 F.3d 853, 857 (9th Cir. 2001). The ALJ’s DAA materiality 6 finding is supported by substantial evidence. 7 B. Plaintiff’s Symptom Testimony 8 9 10 Plaintiff contends the ALJ failed to rely on clear and convincing reasons to discredit his symptom testimony. ECF No. 14 at 16-20. An ALJ engages in a two-step analysis to determine whether to discount a 11 claimant’s testimony regarding subjective symptoms. SSR 16-3p, 2016 WL 12 1119029, at *2. “First, the ALJ must determine whether there is ‘objective 13 medical evidence of an underlying impairment which could reasonably be 14 expected to produce the pain or other symptoms alleged.’” Molina, 674 F.3d at 15 1112 (quoting Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009)). “The 16 claimant is not required to show that [the claimant’s] impairment ‘could reasonably 17 be expected to cause the severity of the symptom [the claimant] has alleged; [the 18 claimant] need only show that it could reasonably have caused some degree of the 19 symptom.’” Vasquez, 572 F.3d at 591 (quoting Lingenfelter v. Astrue, 504 F.3d 20 1028, 1035-36 (9th Cir. 2007)). ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 12 Case 1:19-cv-03207-TOR 1 ECF No. 23 filed 05/15/20 PageID.1285 Page 13 of 34 Second, “[i]f the claimant meets the first test and there is no evidence of 2 malingering, the ALJ can only reject the claimant’s testimony about the severity of 3 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 4 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citations 5 omitted). General findings are insufficient; rather, the ALJ must identify what 6 symptom claims are being discounted and what evidence undermines these claims. 7 Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)); Thomas v. 8 Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (requiring the ALJ to sufficiently 9 explain why he or she discounted claimant’s symptom claims). “The clear and 10 convincing [evidence] standard is the most demanding required in Social Security 11 cases.” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v. 12 Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). 13 Factors to be considered in evaluating the intensity, persistence, and limiting 14 effects of a claimant’s symptoms include: (1) daily activities; (2) the location, 15 duration, frequency, and intensity of pain or other symptoms; (3) factors that 16 precipitate and aggravate the symptoms; (4) the type, dosage, effectiveness, and 17 side effects of any medication an individual takes or has taken to alleviate pain or 18 other symptoms; (5) treatment, other than medication, an individual receives or has 19 received for relief of pain or other symptoms; (6) any measures other than 20 treatment an individual uses or has used to relieve pain or other symptoms; and (7) ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 13 Case 1:19-cv-03207-TOR ECF No. 23 filed 05/15/20 PageID.1286 Page 14 of 34 1 any other factors concerning an individual’s functional limitations and restrictions 2 due to pain or other symptoms. SSR 16-3p, 2016 WL 1119029, at *7-*8; 20 3 C.F.R. § 416.929(c). The ALJ is instructed to “consider all of the evidence in an 4 individual’s record,” “to determine how symptoms limit ability to perform work- 5 related activities.” SSR 16-3p, 2016 WL 1119029, at *2. 6 The ALJ found that, if Plaintiff stopped the substance use, Plaintiff’s 7 impairments could reasonably be expected to cause the alleged symptoms; 8 however, Plaintiff’s statements concerning the intensity, persistence, and limiting 9 effects of those symptoms were not entirely consistent with the evidence. Tr. 24. 10 1. Inconsistent Reporting of Drug Use 11 The ALJ found Plaintiff’s symptom reporting was less credible because the 12 record showed Plaintiff inconsistently reported his drug use. Tr. 24-25. The ALJ 13 may consider “ordinary techniques of credibility evaluation,” such as reputation for 14 lying, prior inconsistent statements concerning symptoms, and other testimony that 15 “appears less than candid.” Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). 16 Inconsistent statements about drug use are appropriate grounds for the ALJ to 17 discount a claimant’s reported symptoms. Thomas, 278 F.3d at 959. 18 Here, the ALJ noted that Plaintiff repeatedly reported himself to be sober at 19 times when other evidence in the record indicated he was still using 20 methamphetamine. Tr. 24-25; compare Tr. 335 (September 15, 2015: Plaintiff ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 14 Case 1:19-cv-03207-TOR ECF No. 23 filed 05/15/20 PageID.1287 Page 15 of 34 1 reported being sober since March 2015) with Tr. 499 (September 30, 2015: 2 Plaintiff reported he had not used methamphetamine since January 2015) and Tr. 3 291 (August 4, 2015: Plaintiff reported that he had used methamphetamine twice 4 since April 2015). The ALJ reasonably concluded that this inconsistent reporting 5 of his methamphetamine use undermined the credibility of Plaintiff’s symptom 6 reporting. Tr. 24-25. This finding is supported by substantial evidence. 7 2. Work Activity 8 The ALJ found Plaintiff’s symptom reporting was inconsistent with his own 9 work history. Tr. 25. Working with an impairment supports a conclusion that the 10 impairment is not disabling. See Drouin v. Sullivan, 966 F.2d 1255, 1258 (9th Cir. 11 1992); see also Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 12 2009) (seeking work despite impairment supports inference that impairment is not 13 disabling). Here, the ALJ noted that Plaintiff reported looking for employment 14 throughout the record. Tr. 25; see Tr. 531 (November 15, 2016: Plaintiff reported 15 applying to jobs because he was “fed up waiting around to get approved for SSI”); 16 Tr. 767 (June 7, 2017: Plaintiff reported volunteering at a food bank and putting 17 out job applications); Tr. 731 (July 6, 2017: Plaintiff reported working part-time 18 and applying for full-time work). The ALJ reasonably concluded that Plaintiff’s 19 history of applying for jobs and working, particularly when not using 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 15 Case 1:19-cv-03207-TOR ECF No. 23 filed 05/15/20 PageID.1288 Page 16 of 34 1 methamphetamine, was inconsistent with his allegations of disability despite 2 ongoing drug use. Tr. 25. This finding is supported by substantial evidence. 3 3. Symptom Improvement 4 The ALJ found Plaintiff’s symptom allegations were inconsistent with his 5 record of symptom improvement when he was sober and compliant with drug 6 treatment. Tr. 25. The effectiveness of mitigating measures is a relevant factor in 7 determining the severity of a claimant’s symptoms. 20 C.F.R. § 416.929(c)(3). 8 Here, the ALJ found that Plaintiff reported an improvement in his mental health 9 symptoms during his period of extended sobriety in the spring and summer of 10 2017. Tr. 25; see Tr. 770 (May 31, 2017: Plaintiff reported an improvement in 11 symptoms with a medication adjustment); Tr. 764 (June 14, 2017: Plaintiff 12 reported feeling good now that he was sober and taking medications as prescribed); 13 Tr. 758-59 (June 22, 2017: Plaintiff attributed a decrease in his depressive 14 symptoms to sobriety, stated that he felt his mental health symptoms were “well 15 controlled,” and scored a 3 on the PHQ-9, which exceeded his treatment goal of 16 scoring a 5 on the PHQ-9). Plaintiff challenges the ALJ’s reliance on evidence 17 from after the closed period as irrelevant to Plaintiff’s functioning during the 18 closed period. ECF No. 14 at 20. However, the ALJ’s reliance on this evidence 19 from Plaintiff’s period of sobriety is relevant to the ALJ’s DAA analysis and 20 consideration of Plaintiff’s functioning if Plaintiff were to stop the substance use. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 16 Case 1:19-cv-03207-TOR ECF No. 23 filed 05/15/20 PageID.1289 Page 17 of 34 1 See SSR 13-2p, 2013 WL 621536, at *12. The ALJ reasonably concluded that the 2 evidence showing improvement in Plaintiff’s symptoms while sober was 3 inconsistent with his symptom allegations. Tr. 25. This finding is supported by 4 substantial evidence. 5 4. Lack of Supporting Medical Evidence 6 The ALJ found that Plaintiff’s symptom allegations were not supported by 7 the medical evidence. Tr. 24, 26. An ALJ may not discredit a claimant’s symptom 8 testimony and deny benefits solely because the degree of the symptoms alleged is 9 not supported by objective medical evidence. Rollins, 261 F.3d at 857; Bunnell v. 10 Sullivan, 947 F.2d 341, 346-47 (9th Cir. 1991). However, the objective medical 11 evidence is a relevant factor, along with the medical source’s information about the 12 claimant’s pain or other symptoms, in determining the severity of a claimant’s 13 symptoms and their disabling effects. Rollins, 261 F.3d at 857; 20 C.F.R. § 14 416.929(c)(2). Additionally, evidence of “conservative treatment” is sufficient to 15 discount a claimant’s testimony regarding the severity of an impairment. Parra, 16 481 F.3d at 751 (citing Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995)). 17 Here, the ALJ noted that despite alleging disabling psychiatric conditions, 18 Plaintiff never required emergent psychiatric intervention. Tr. 24; see Tr. 45. The 19 ALJ also summarized the consultative examination findings and opinions but noted 20 that opinions based on Plaintiff’s subjective reporting were less credible because of ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 17 Case 1:19-cv-03207-TOR ECF No. 23 filed 05/15/20 PageID.1290 Page 18 of 34 1 Plaintiff’s inconsistent reporting of his own substance use to those providers. Tr. 2 24-26. Considering Plaintiff’s physical impairments, the ALJ found that despite 3 alleging physical limitations such that he could only walk for a “couple blocks” 4 before needing to rest, objective imaging showed only mild findings and Plaintiff 5 never sought more extensive treatment than physical therapy. Tr. 24, 26; see Tr. 6 710 (November 30, 2016: spinal imaging showed minimal scoliosis, multilevel 7 spondylosis with facet arthrosis, and degenerative disc changes); Tr. 685-706 8 (physical therapy records). The ALJ reasonably concluded that these mild findings 9 did not support the level of limitation Plaintiff alleged. Tr. 24-26. This finding is 10 supported by substantial evidence. 11 5. Daily Activities 12 The ALJ found Plaintiff’s symptom reporting was inconsistent with his daily 13 activities. Tr. 25. The ALJ may consider a claimant’s activities that undermine 14 reported symptoms. Rollins, 261 F.3d at 857. If a claimant can spend a substantial 15 part of the day engaged in pursuits involving the performance of exertional or non- 16 exertional functions, the ALJ may find these activities inconsistent with the 17 reported disabling symptoms. Fair, 885 F.2d at 603; Molina, 674 F.3d at 1113. 18 “While a claimant need not vegetate in a dark room in order to be eligible for 19 benefits, the ALJ may discount a claimant’s symptom claims when the claimant 20 reports participation in everyday activities indicating capacities that are ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 18 Case 1:19-cv-03207-TOR ECF No. 23 filed 05/15/20 PageID.1291 Page 19 of 34 1 transferable to a work setting” or when activities “contradict claims of a totally 2 debilitating impairment.” Molina, 674 F.3d at 1112-13. Here, the ALJ found that 3 Plaintiff’s daily activities included riding bicycles, playing sports, hunting, and 4 fishing. Tr. 25; see Tr. 718. The evidence cited by the ALJ indicates that Plaintiff 5 expressed an interest in these activities, but it does not document whether Plaintiff 6 actually did these activities or with what frequency. Tr. 718. Accordingly, this 7 finding is not supported by substantial evidence. 8 9 Although the ALJ’s finding here was error, the error is harmless. Error in evaluating a claimant’s subjective symptom testimony is harmless where the ALJ 10 lists additional reasons, supported by substantial evidence, for discrediting 11 Plaintiff’s symptom complaints. Molina, 674 F.3d at 1115 (“[S]everal of our cases 12 have held that an ALJ’s error was harmless where the ALJ provided one or more 13 invalid reasons for disbelieving a claimant’s testimony, but also provided valid 14 reasons that were supported by the record.”); Batson v. Comm’r of Soc. Sec. 15 Admin., 359 F.3d 1190, 1197 (9th Cir. 2004) (holding that any error the ALJ 16 committed in asserting one impermissible reason for claimant’s lack of credibility 17 did not negate the validity of the ALJ’s ultimate conclusion that the claimant’s 18 testimony was not credible). Here, because the ALJ provided several other clear 19 and convincing reasons to discredit Plaintiff’s symptom testimony, the ALJ’s error 20 is harmless. Plaintiff is not entitled to relief on this ground. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 19 Case 1:19-cv-03207-TOR 1 ECF No. 23 filed 05/15/20 PageID.1292 Page 20 of 34 C. Medical Opinion Evidence 2 Plaintiff challenges the ALJ’s evaluation of the medical opinions of Rebekah 3 Cline, Psy.D.; Ivonne Garcia, M.S.W.; Marybeth Wheeler, ARNP; Emma Billings, 4 Ph.D.; Rita Flanagan, Ph.D.; John Gilbert, Ph.D.; and Donna LaVallie, D.O. ECF 5 No. 14 at 8-16. 6 There are three types of physicians: “(1) those who treat the claimant 7 (treating physicians); (2) those who examine but do not treat the claimant 8 (examining physicians); and (3) those who neither examine nor treat the claimant 9 [but who review the claimant’s file] (nonexamining [or reviewing] physicians).” 10 Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001) (citations omitted). 11 Generally, the opinion of a treating physician carries more weight than the opinion 12 of an examining physician, and the opinion of an examining physician carries more 13 weight than the opinion of a reviewing physician. Id. In addition, the 14 Commissioner’s regulations give more weight to opinions that are explained than 15 to opinions that are not, and to the opinions of specialists on matters relating to 16 their area of expertise over the opinions of non-specialists. Id. (citations omitted). 17 If a treating or examining physician’s opinion is uncontradicted, an ALJ may 18 reject it only by offering “clear and convincing reasons that are supported by 19 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 20 “However, the ALJ need not accept the opinion of any physician, including a ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 20 Case 1:19-cv-03207-TOR ECF No. 23 filed 05/15/20 PageID.1293 Page 21 of 34 1 treating physician, if that opinion is brief, conclusory and inadequately supported 2 by clinical findings.” Bray, 554 F.3d at 1228 (internal quotation marks and 3 brackets omitted). “If a treating or examining doctor’s opinion is contradicted by 4 another doctor’s opinion, an ALJ may only reject it by providing specific and 5 legitimate reasons that are supported by substantial evidence.” Id. (citing Lester, 6 81 F.3d at 830-831). The opinion of a nonexamining physician may serve as 7 substantial evidence if it is supported by other independent evidence in the record. 8 Andrews, 53 F.3d at 1041. 9 The opinion of an acceptable medical source such as a physician or 10 psychologist is different from that of a non-acceptable medical source. 20 C.F.R. § 11 416.927(f)(1). The ALJ is required to consider the opinions of non-acceptable 12 medical sources. 20 C.F.R. § 416.927(c). The factors used to weigh the opinion of 13 a non-acceptable medical source are the same as those used to weigh the opinion of 14 an acceptable medical source, although not every factor will apply in every case. 15 20 C.F.R. § 416.927(c)(1)-(6), (f)(1). The ALJ is only required to provide germane 16 reasons to reject the opinion of an “other source,” including that of a non- 17 acceptable medical source. Popa v. Berryhill, 872 F.3d 901, 906 (9th Cir. 2017) 18 (citing Molina, 674 F.3d at 1111). 19 // 20 // ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 21 Case 1:19-cv-03207-TOR 1 2 ECF No. 23 filed 05/15/20 PageID.1294 Page 22 of 34 1. Dr. Cline On September 30, 2015, Dr. Cline evaluated Plaintiff and opined Plaintiff 3 had marked impairment in his ability to understand, remember, and persist in tasks 4 by following detailed instructions; maintain appropriate behavior in a work setting; 5 and complete a normal work day and work week without interruptions from 6 psychologically based symptoms; that Plaintiff’s impairments were not primarily 7 the result of drug or alcohol use within the past 60 days; and that Plaintiff’s 8 impairments would be expected to last 9-12 months with treatment. Tr. 498-502. 9 On August 31, 2016, Dr. Cline evaluated Plaintiff again and opined Plaintiff had a 10 series of moderate limitations in basic work activities, that Plaintiff’s overall 11 severity rating was moderate, that Plaintiff’s impairments were not primarily the 12 result of alcohol or drug use in the past 60 days, and that Plaintiff’s impairments 13 would be expected to last 3-9 months with treatment. Tr. 503-08. In considering 14 the evidence of Plaintiff’s functioning if he stopped the substance abuse, the ALJ 15 gave these opinions little weight. Tr. 27. Because Dr. Cline’s opinion was 16 contradicted by Dr. Rubin, Tr. 46-49, Dr. Billings, Tr. 515-16, Dr. Flanagan, Tr. 17 95-96, and Dr. Gilbert, Tr. 108-10, the ALJ was required to provide specific and 18 legitimate reasons for rejecting Dr. Cline’s opinions. Bayliss, 427 F.3d at 1216. 19 20 First, the ALJ found Dr. Cline’s opinions were entitled to less weight because they were based on Plaintiff’s own reporting of his drug use, which the ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 22 Case 1:19-cv-03207-TOR ECF No. 23 filed 05/15/20 PageID.1295 Page 23 of 34 1 ALJ noted was inconsistent and indicated Plaintiff may have been using at the time 2 of Dr. Cline’s examinations. Tr. 24, 27. An ALJ may properly reject a medical 3 opinion that is rendered without knowledge or acknowledgement of a claimant’s 4 substance abuse. Cothrell v. Berryhill, 742 F. App’x 232, 236 (9th Cir. July 18, 5 2018); Coffman v. Astrue, 469 F. App’x 609, 611 (9th Cir. Feb. 28, 2012). 6 Importantly, when conducting a DAA analysis, the “key factor” for the ALJ to 7 consider is whether the claimant would still be disabled if the claimant stopped 8 using drugs or alcohol. 20 C.F.R. § 416.935(b)(1). Therefore, a medical source’s 9 understanding of the claimant’s substance use is a relevant consideration when 10 11 weighing the opinion evidence in a DAA analysis. Here, the ALJ noted that during the September 30, 2015 examination, 12 Plaintiff reported to Dr. Cline that he had not used methamphetamine in about 13 eight months, placing his last use in approximately January or February 2015. Tr. 14 24-25; see Tr. 499. However, the ALJ noted that other evidence in the record 15 indicated Plaintiff had used methamphetamine several times between January 2015 16 and September 2015. Tr. 25; see Tr. 335 (September 15, 2015: Plaintiff reported 17 being sober since March 2015); Tr. 291 (August 4, 2015: Plaintiff reported that he 18 had used methamphetamine twice since April 2015). During Dr. Cline’s August 19 31, 2016 examination, Plaintiff reported his last use of methamphetamine was on 20 July 11, 2016. Tr. 508. However, the ALJ noted that Plaintiff missed a series of ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 23 Case 1:19-cv-03207-TOR ECF No. 23 filed 05/15/20 PageID.1296 Page 24 of 34 1 treatment sessions immediately prior to Dr. Cline’s evaluation and reported a 2 relapse shortly thereafter. Tr. 27; see Tr. 597-600 (Plaintiff did not attend group or 3 individual treatment from August 26, 2016 through September 1, 2016); Tr. 596 4 (September 6, 2016: Plaintiff reported a relapse and using methamphetamine over 5 the weekend); see also Tr. 647 (August 16, 2016: urine drug screen positive for 6 amphetamines and ecstasy two weeks before Dr. Cline’s evaluation). The ALJ 7 reasonably concluded that Dr. Cline’s opinions were entitled to less weight for 8 being rendered without full knowledge of Plaintiff’s drug use. Tr. 27. This finding 9 is supported by substantial evidence. 10 Second, the ALJ found Dr. Cline’s opinion was entitled to less weight 11 because it was inconsistent with her own examination findings. Tr. 27. 12 Inconsistency between a doctor’s medical opinion and treatment records or notes is 13 a specific and legitimate reason to discount a doctor’s opinion. Tommasetti v. 14 Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). Here, the ALJ noted that despite 15 opining that Plaintiff would have marked limitation in understanding, 16 remembering, and persisting in tasks, the mental status examinations administered 17 by Dr. Cline showed only moderate limitations with memory and good 18 concentration. Tr. 25, 27; see Tr. 502 (September 30, 2015: memory assessed in 19 the above average range and concentration within normal limits); Tr. 507 (August 20 31, 2016: memory and concentration within normal limits). The ALJ reasonably ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 24 Case 1:19-cv-03207-TOR ECF No. 23 filed 05/15/20 PageID.1297 Page 25 of 34 1 concluded that this evidence was inconsistent with Dr. Cline’s opined limitations. 2 Tr. 27; see, e.g., Buck v. Berryhill, 869 F.3d 1040, 1050 (9th Cir. 2017) (ALJ 3 reasonably rejected medical opinion that Plaintiff experienced severe symptoms 4 when evidence showed only moderate symptoms). This finding is supported by 5 substantial evidence. 6 Third, the ALJ found Dr. Cline’s opinion was entitled to less weight because 7 it was inconsistent with evidence of Plaintiff’s improvement with sobriety. Tr. 27. 8 Relevant factors when evaluating a medical opinion include the amount of relevant 9 evidence that supports the opinion and the consistency of the medical opinion with 10 the record as a whole. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). Plaintiff 11 challenges the ALJ’s conclusion by arguing that the ALJ failed to cite “any 12 evidence or give an explanation to support this conclusion.” ECF No. 14 at 11. 13 However, a reviewing court is “not deprived of [its] faculties for drawing specific 14 and legitimate inferences from the ALJ’s opinion.” Magallanes v. Bowen, 881 15 F.2d 747, 755 (9th Cir. 1989). The ALJ noted that Dr. Cline opined Plaintiff’s 16 impairments were not caused by Plaintiff’s methamphetamine use. Tr. 27. As 17 discussed supra, the ALJ identified evidence throughout the written findings 18 demonstrating that Plaintiff’s functioning and mental health symptoms improved, 19 including a return to work, when he tapered or stopped his methamphetamine use. 20 See, e.g., Tr. 767 (June 7, 2017: Plaintiff reported putting out job applications, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 25 Case 1:19-cv-03207-TOR ECF No. 23 filed 05/15/20 PageID.1298 Page 26 of 34 1 volunteering at a food bank, and attending résumé-writing classes); Tr. 764 (June 2 14, 2017: Plaintiff reported feeling good now that he was sober and taking 3 medications as prescribed); Tr. 758-59 (June 22, 2017: Plaintiff reported being 72 4 days sober and attributed a decrease in his depressive symptoms to his sobriety; 5 Plaintiff reported that his mental health symptoms were “well controlled,” and 6 scored a 3 on the PHQ-9, which exceeded his treatment goal of scoring a 5 on the 7 PHQ-9); Tr. 835 (July 3, 2017: Plaintiff completed intensive outpatient treatment); 8 Tr. 731 (July 3, 2017: Plaintiff reported looking for full-time employment); Tr. 753 9 (August 3, 2017: Plaintiff reported he was able to open a bank account and had 10 been saving money). The ALJ’s reasoning is sufficiently explained to “allow[] for 11 meaningful review.” Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015). 12 The ALJ reasonably concluded that the evidence in the record of Plaintiff’s 13 improved functioning during periods of sobriety was inconsistent with Dr. Cline’s 14 opinion that his impairments were not attributable to his methamphetamine use. 15 Tr. 27. This finding is supported by substantial evidence. 16 2. Ms. Garcia 17 Ms. Garcia, Plaintiff’s counselor, opined on March 23, 2017 had marked and 18 moderate limitations in all basic work activities, that Plaintiff would be off-task for 19 approximately 12-20% of the time in a 40-hour work week schedule, that 20 Plaintiff’s impairments would cause him to miss 2 days of work per month, and ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 26 Case 1:19-cv-03207-TOR ECF No. 23 filed 05/15/20 PageID.1299 Page 27 of 34 1 that these opined limitations did not include limitations from Plaintiff’s then- 2 current alcohol or drug use. Tr. 667-70. The ALJ did not give this opinion credit. 3 Tr. 28. As a counselor, Ms. Garcia is not an acceptable medical source. 20 C.F.R. 4 § 416.902(a). Therefore, the ALJ was required to provide germane reason to 5 discredit Ms. Garcia’s opinion.1 Popa, 872 F.3d at 906 (citing Molina, 674 F.3d at 6 1111). 7 First, the ALJ found Ms. Garcia’s opinion was entitled to less weight 8 because it did not differentiate between Plaintiff’s limitations with or without 9 substance abuse. Tr. 28. As discussed supra, the question of whether Plaintiff’s 10 impairments were attributable to substance use is central to the DAA analysis. 20 11 C.F.R. § 416.935(b)(1). However, the ALJ erred in concluding that Ms. Garcia’s 12 opinion did not distinguish between Plaintiff’s limitations with or without 13 14 1 Plaintiff also challenges certain findings the ALJ made regarding Ms. 15 Garcia’s opinion before conducting the DAA analysis. ECF No. 14 at 13. The 16 ALJ found Plaintiff was disabled at step three of the sequential evaluation analysis 17 before considering DAA, so any error prior to the DAA analysis would be 18 harmless because those steps were resolved in Plaintiff’s favor. See Stout v. 19 Comm’r of Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006); Burch v. 20 Barnhart, 400 F.3d 676, 682 (9th Cir. 2005). ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 27 Case 1:19-cv-03207-TOR ECF No. 23 filed 05/15/20 PageID.1300 Page 28 of 34 1 substance use. The form on which Ms. Garcia’s opinion was rendered clearly 2 states “The limitations noted do not include limitations from current alcohol or 3 drug use.” Tr. 669. The ALJ’s finding here is not supported by substantial 4 evidence. However, the ALJ’s error is harmless because the ALJ provided other 5 germane reason to discredit Ms. Garcia’s opinion. Valentine v. Comm’r Soc. Sec. 6 Admin., 574 F.3d 685, 694 (9th Cir. 2009). 7 The ALJ also found Ms. Garcia’s opinion was inconsistent with the 8 longitudinal evidence. Tr. 28. Inconsistency with the evidence is a germane 9 reason for rejecting other source testimony. 20 C.F.R. § 416.927(c)(4); Bayliss, 10 427 F.3d at 1218. As discussed supra, the ALJ noted that Plaintiff reported 11 improved symptoms and improved functioning during his sobriety in the spring 12 and summer of 2017. See, e.g., Tr. 767 (June 7, 2017: Plaintiff reported putting 13 out job applications, volunteering at a food bank, and attending résumé-writing 14 classes); Tr. 764 (June 14, 2017: Plaintiff reported feeling good now that he was 15 sober and taking medications as prescribed); Tr. 758-59 (June 22, 2017: Plaintiff 16 reported being 72 days sober and attributed a decrease in his depressive symptoms 17 to his sobriety; Plaintiff reported that his mental health symptoms were “well 18 controlled,” and scored a 3 on the PHQ-9, which exceeded his treatment goal of 19 scoring a 5 on the PHQ-9); Tr. 835 (July 3, 2017: Plaintiff completed intensive 20 outpatient treatment); Tr. 731 (July 3, 2017: Plaintiff reported looking for full-time ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 28 Case 1:19-cv-03207-TOR ECF No. 23 filed 05/15/20 PageID.1301 Page 29 of 34 1 employment); Tr. 753 (August 3, 2017: Plaintiff reported he was able to open a 2 bank account and had been saving money). 3 Plaintiff challenges the ALJ’s reliance on this evidence as irrelevant because 4 it is from after the end of the closed period. ECF No. 14 at 14. Again, this 5 evidence is directly relevant to the ALJ’s DAA analysis because it demonstrates 6 Plaintiff’s functioning during a period in which Plaintiff stopped using controlled 7 substances. See SSR 13-2p, 2013 WL 621536, at *12. Indeed, Plaintiff amended 8 his application for benefits to a closed period claim precisely because Plaintiff’s 9 functioning during this time improved to the point that he could return to work. Tr. 10 42-43. This evidence is relevant, and the ALJ’s conclusion that it is inconsistent 11 with Ms. Garcia’s opined limitations is supported by substantial evidence. 12 3. Ms. Wheeler 13 Ms. Wheeler, Plaintiff’s treating ARNP, opined on April 5, 2017 that 14 Plaintiff was limited to light work. Tr. 671-73. The ALJ gave this opinion little 15 weight. Tr. 28. As an ARNP, Ms. Wheeler is not an acceptable medical source.2 16 17 2 Plaintiff notes that new Social Security regulations recognize ARNPs as 18 acceptable medical sources. ECF No. 14 at 8. However, because Plaintiff’s case 19 was filed before March 27, 2017, these new regulations do not apply to Plaintiff’s 20 claim. 20 C.F.R. §§ 416.902(7), 416.325. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 29 Case 1:19-cv-03207-TOR ECF No. 23 filed 05/15/20 PageID.1302 Page 30 of 34 1 20 C.F.R. § 416.902(a). Therefore, the ALJ was required to provide germane 2 reason to discredit Ms. Wheeler’s opinion. Popa, 872 F.3d at 906 (citing Molina, 3 674 F.3d at 1111). 4 First, the ALJ found Ms. Wheeler’s opinion was inconsistent with the 5 longitudinal evidence. Tr. 28. Inconsistency with the evidence is a germane 6 reason for rejecting other source testimony. 20 C.F.R. § 416.927(c)(4); Bayliss, 7 427 F.3d at 1218. The ALJ noted that Ms. Wheeler supported her opined 8 limitations by citing to an x-ray of Plaintiff’s elbow, and that Ms. Wheeler’s 9 opinion made minimal discussion of Plaintiff’s lumbar impairment. Tr. 28; see Tr. 10 671-72, 709 (March 23, 2017: x-ray imaging showed no acute fracture or 11 dislocation and multiple calcific bodies in Plaintiff’s elbow). The ALJ also noted 12 that the record contained evidence of mild lumbar impairment for which Plaintiff 13 did not seek more intensive treatment than physical therapy. Tr. 26; see Tr. 710 14 (November 30, 2016: spinal imaging showed minimal scoliosis, multilevel 15 spondylosis with facet arthrosis, and degenerative disc changes); Tr. 685-706 16 (physical therapy records). The ALJ reasonably concluded that this mild evidence 17 did not support Ms. Wheeler’s opinion that Plaintiff should be limited to light 18 work. Tr. 28. This finding is supported by substantial evidence. 19 20 Second, the ALJ found Ms. Wheeler’s opinion was inconsistent with the opinion of Dr. LaVallie, who had the opportunity to review the longitudinal record. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 30 Case 1:19-cv-03207-TOR ECF No. 23 filed 05/15/20 PageID.1303 Page 31 of 34 1 Tr. 28. An ALJ may choose to give more weight to an opinion that is more 2 consistent with the evidence in the record. 20 C.F.R. § 416.927(c)(4) (“[T]he more 3 consistent an opinion is with the record as a whole, the more weight we will give to 4 that opinion.”). Additionally, the opinion of a nonexamining physician may serve 5 as substantial evidence if it is supported by other evidence in the record and is 6 consistent with it. Andrews, 53 F.3d at 1041. The ALJ noted that Dr. LaVallie 7 reviewed the medical evidence from 2014 through 2016 and found that there was 8 little evidence submitted after Dr. LaVallie’s review that related to Plaintiff’s 9 physical condition. Tr. 27-28. The ALJ found that Dr. LaVallie’s opined 10 limitations were more consistent with the minimal physical findings discussed 11 supra. Tr. 27. The ALJ reasonably credited Dr. LaVallie’s opinion over that of 12 Ms. Wheeler. Tr. 28. This finding is supported by substantial evidence. 13 4. Dr. Billings 14 Dr. Billings examined Plaintiff on September 21, 2016 and opined that 15 Plaintiff’s methamphetamine abuse was likely ongoing, that Plaintiff’s anxiety was 16 common among individuals who are methamphetamine users, and that Plaintiff 17 would likely have difficulty working in any situation requiring frequent public 18 contact. Tr. 515-16. The ALJ gave Dr. Billings’ opinion significant weight. Tr. 19 27. 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 31 Case 1:19-cv-03207-TOR 1 ECF No. 23 filed 05/15/20 PageID.1304 Page 32 of 34 Plaintiff challenges the ALJ’s finding that Dr. Billings’ opinion supports a 2 conclusion that Plaintiff’s mental impairments are related to substance abuse, 3 arguing that this conclusion is not supported. ECF No. 14 at 15. Dr. Billings’ 4 diagnoses included Methamphetamine Induced Anxiety Disorder, and Dr. Billings 5 specifically opined that Plaintiff’s methamphetamine abuse was likely ongoing and 6 that Plaintiff’s anxiety was common among individuals who are methamphetamine 7 users. Tr. 515-16. The ALJ also found that Dr. Billings’ opinion was consistent 8 with the longitudinal evidence, discussed throughout this Order, that Plaintiff’s 9 functioning improved with sobriety. Tr. 27. The ALJ reasonably concluded that 10 Dr. Billings’ opinion supported a finding that Plaintiff’s impairments were related 11 to his substance use. Id. This finding is supported by substantial evidence. 12 To the extent Plaintiff challenges the ALJ’s evaluation of Dr. Billings’ 13 opinion prior to conducting the DAA analysis, any such error would be harmless 14 because those steps were resolved in Plaintiff’s favor. See Stout, 454 F.3d at 1055; 15 Burch, 400 F.3d at 682. Plaintiff does not establish harmful error here. 16 5. Reviewing Medical Sources 17 Dr. Flanagan, Dr. Gilbert, and Dr. LaVallie each reviewed the record and 18 rendered opinions on Plaintiff’s functional limitations. Tr. 95-96, 108-10. The 19 ALJ gave each of these opinions significant weight. Tr. 27. Plaintiff challenges 20 the ALJ’s finding by arguing that the ALJ failed to sufficiently explain why these ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 32 Case 1:19-cv-03207-TOR ECF No. 23 filed 05/15/20 PageID.1305 Page 33 of 34 1 opinions were found to be consistent with the evidence. ECF No. 14 at 16. 2 However, Plaintiff’s argument relies on authority governing the ALJ’s rejection of 3 medical opinion evidence, not an ALJ’s decision to credit medical opinion 4 evidence. Id.; see Garrison, 759 F.3d at 1012-13. Because the ALJ credited these 5 opinions, Plaintiff identifies no error. 6 Additionally, as explained throughout this Order, the ALJ observed that the 7 longitudinal evidence of record showed evidence of only mild physical 8 impairments and mental impairments that, while disabling when Plaintiff’s 9 substance abuse was included, decreased in severity to the point that Plaintiff was 10 able to return to full-time work when he tapered and stopped using 11 methamphetamine. Tr. 20-26. The ALJ’s finding that the reviewing sources’ 12 opinions were consistent with the longitudinal evidence is sufficiently explained. 13 Brown-Hunter, 806 F.3d at 492. Moreover, the Court may not reverse the ALJ’s 14 decision based on Plaintiff’s disagreement with the ALJ’s interpretation of the 15 record. See Tommasetti, 533 F.3d at 1038 (“[W]hen the evidence is susceptible to 16 more than one rational interpretation” the court will not reverse the ALJ’s 17 decision). Plaintiff establishes no harmful error in the ALJ’s evaluation of the 18 reviewing source medical opinion evidence. 19 // 20 // ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 33 Case 1:19-cv-03207-TOR ECF No. 23 1 filed 05/15/20 PageID.1306 Page 34 of 34 CONCLUSION 2 Having reviewed the record and the ALJ’s findings, this Court concludes the 3 ALJ’s decision is supported by substantial evidence and free of harmful legal error. 4 ACCORDINGLY, IT IS HEREBY ORDERED: 5 1. Plaintiff’s Motion for Summary Judgment (ECF No. 14) is DENIED. 6 2. Defendant’s Motion for Summary Judgment (ECF No. 21) is 7 8 9 10 GRANTED. The District Court Executive is directed to enter this Order, enter judgment accordingly, furnish copies to counsel, and close the file. DATED May 15, 2020. 11 12 THOMAS O. RICE Chief United States District Judge 13 14 15 16 17 18 19 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 34

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