McAndrews v. Saul, No. 1:2019cv03222 - Document 20 (E.D. Wash. 2020)

Court Description: ORDER Granting 18 Defendant's Motion for Summary Judgment. Signed by Magistrate Judge John T. Rodgers. (MO, Courtroom Deputy)

Download PDF

McAndrews v. Saul Doc. 20 Case 1:19-cv-03222-JTR ECF No. 20 filed 09/09/20 PageID.4100 Page 1 of 14 1 2 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 3 Sep 09, 2020 4 SEAN F. MCAVOY, CLERK 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 8 9 BARRY M., No.1:19-CV-03222-JTR Plaintiff, 10 11 12 13 14 15 v. ANDREW SAUL, COMMISSIONER OF SOCIAL SECURITY, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Defendant. 16 17 18 19 20 21 22 23 24 25 26 27 28 BEFORE THE COURT are cross-motions for summary judgment. ECF Nos. 14, 18. Attorney D. James Tree represents Barry M. (Plaintiff); Special Assistant United States Attorney Jeffrey R. McClain represents the Commissioner of Social Security (Defendant). The parties have consented to proceed before a magistrate judge. ECF No. 9. After reviewing the administrative record and briefs filed by the parties, the Court GRANTS Defendant’s Motion for Summary Judgment and DENIES Plaintiff’s Motion for Summary Judgment. JURISDICTION Plaintiff filed applications for Supplemental Security Income (SSI) and Disability Insurance Benefits (DIB) on August 14, 2006, Tr. 264, alleging disability since October 15, 2001, Tr. 242, 245, due to asthma, attention deficit hyperactivity disorder (ADHD), and sinus problems, Tr. 269. The applications ORDER GRANTING DEFENDANT’S MOTION . . . - 1 Dockets.Justia.com Case 1:19-cv-03222-JTR ECF No. 20 filed 09/09/20 PageID.4101 Page 2 of 14 1 were denied initially and upon reconsideration. Tr. 159-62, 164-67. Administrative 2 Law Judge (ALJ) R.S. Chester held a hearing on March 27, 2009 and heard 3 testimony from Plaintiff and vocational expert, Daniel McKinney. Tr. 50-71. The 4 ALJ issued an unfavorable decision on April 14, 2009. Tr. 134-47. The Appeals 5 Council granted review and remanded the case back to the ALJ on February 16, 6 2011. Tr. 153-56. On July 21, 2011, ALJ Caroline Siderius held a remand hearing and heard 7 8 testimony from Plaintiff, psychological expert, Margaret Moore, Ph.D., and 9 vocational expert, Daniel McKinney. Tr. 72-126. The ALJ issued an unfavorable 10 decision on August 25, 2011. Tr. 21-39. The Appeals Council denied review on 11 July 24, 2013. Tr. 1-3. On September 24, 2013, Plaintiff requested judicial review 12 of the ALJ’s August 25, 2011 decision in the Eastern District of Washington. Tr. 13 1538-40. On October 9, 2014, this Court issued an order remanding the case to the 14 Commissioner for additional proceedings. Tr. 1545-61. 15 On December 17, 2015 and May 18, 2016, ALJ Virginia M. Robinson held 16 two additional hearings. Tr. 1427-99. The ALJ heard testimony from Plaintiff and 17 vocational expert, Kimberly Molinex. Id. The ALJ issued an unfavorable decision 18 on December 21, 2016. Tr. 1390-1415. The Appeals Council did not assume 19 jurisdiction of the case within the prescribed period set forth in 20 C.F.R. § 20 404.984, and Plaintiff filed a second action for judicial review on April 20, 2017. 21 Tr. 3369. On April 5, 2018, this Court issued an order remanding the case to the 22 Commissioner for additional proceedings. Tr. 3368-89. 23 On March 12, 2019, ALJ Robinson held another hearing. Tr. 3305-26. The 24 ALJ heard testimony from Plaintiff and vocational expert Leta Berkshire. Id. She 25 issued an unfavorable decision on June 5, 2019. Tr. 3247-64. The Appeals Council 26 did not assume jurisdiction of the case and Plaintiff filed the present action for 27 judicial review on September 18, 2019. ECF No. 1. 28 /// ORDER GRANTING DEFENDANT’S MOTION . . . - 2 Case 1:19-cv-03222-JTR 1 ECF No. 20 filed 09/09/20 PageID.4102 Page 3 of 14 STATEMENT OF FACTS 2 The facts of the case are set forth in the administrative hearing transcripts, 3 the ALJ decisions, and the briefs of the parties. They are only briefly summarized 4 here. 5 Plaintiff was 37 years old at the alleged date of onset. Tr. 242. His highest 6 level of education was the tenth grade, completed in 1982. Tr. 275. His work 7 history includes the jobs of baker, cook, and laborer. Tr. 270, 285. He alleged that 8 asthma, ADHD, depression, and sinus problems limited his ability to work. Tr. 9 269. Plaintiff reported that he stopped working on January 10, 2005 due to his 10 11 12 conditions. Id. STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 13 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 14 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with 15 deference to a reasonable interpretation of the applicable statutes. McNatt v. Apfel, 16 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed 17 only if it is not supported by substantial evidence or if it is based on legal error. 18 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is 19 defined as being more than a mere scintilla, but less than a preponderance. Id. at 20 1098. Put another way, substantial evidence is such relevant evidence as a 21 reasonable mind might accept as adequate to support a conclusion. Richardson v. 22 Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one 23 rational interpretation, the Court may not substitute its judgment for that of the 24 ALJ. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin., 25 169 F.3d 595, 599 (9th Cir. 1999). If substantial evidence supports the 26 administrative findings, or if conflicting evidence supports a finding of either 27 disability or non-disability, the ALJ’s determination is conclusive. Sprague v. 28 Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). Nevertheless, a decision ORDER GRANTING DEFENDANT’S MOTION . . . - 3 Case 1:19-cv-03222-JTR ECF No. 20 filed 09/09/20 PageID.4103 Page 4 of 14 1 supported by substantial evidence will be set aside if the proper legal standards 2 were not applied in weighing the evidence and making the decision. Brawner v. 3 Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). 4 5 SEQUENTIAL EVALUATION PROCESS The Commissioner has established a five-step sequential evaluation process 6 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 7 416.920(a); Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through 8 four, the burden of proof rests upon the claimant to establish a prima facie case of 9 entitlement to disability benefits. Tackett, 180 F.3d at 1098-1099. This burden is 10 met once a claimant establishes that a physical or mental impairment prevents the 11 claimant from engaging in past relevant work. 20 C.F.R. §§ 404.1520(a)(4), 12 416.920(a)(4). If a claimant cannot perform past relevant work, the ALJ proceeds 13 to step five, and the burden shifts to the Commissioner to show (1) the claimant 14 can make an adjustment to other work; and (2) the claimant can perform specific 15 jobs that exist in the national economy. Batson v. Comm’r of Soc. Sec. Admin., 16 359 F.3d 1190, 1193-94 (9th Cir. 2004). If a claimant cannot make an adjustment 17 to other work in the national economy, the claimant will be found disabled. 20 18 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 19 20 21 22 23 ADMINISTRATIVE DECISION On June 5, 2019, the ALJ issued a decision finding Plaintiff was not disabled as defined in the Social Security Act. At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since October 15, 2001, the alleged onset date. Tr. 3250. 24 At step two, the ALJ determined Plaintiff had the following severe 25 impairments: substance abuse, attention deficit hyperactivity disorder (ADHD), 26 affective disorder, anxiety disorder, learning disorder, personality disorder, 27 borderline intellectual function, and asthma. Tr. 3250. 28 At step three, the ALJ found Plaintiff did not have an impairment or ORDER GRANTING DEFENDANT’S MOTION . . . - 4 Case 1:19-cv-03222-JTR ECF No. 20 filed 09/09/20 PageID.4104 Page 5 of 14 1 combination of impairments that met or medically equaled the severity of one of 2 the listed impairments. Tr. 3251-53. The ALJ assessed Plaintiff’s residual functional capacity and determined he 3 4 could perform work at a light exertional level with the following limitations: 5 he can only occasionally climb ramps or stairs, and cannot climb ladders, ropes, or scaffolds. He can frequently stoop, kneel, crouch, and crawl. He must avoid concentrated exposure to excessive vibration and to workplace hazards such as dangerous machinery and working at unprotected heights. He must avoid exposure to pulmonary irritants such as fumes, odors, dusts and gases. He is limited to simple, routine tasks in a routine work environment with simple, work-related decisions. He can have no more than occasional, superficial interaction with coworkers and incidental interaction with the public. 6 7 8 9 10 11 12 Tr. 3253. 13 14 15 At step four, the ALJ determined Plaintiff had no past relevant work. Tr. 3262. At step five, the ALJ determined that, considering Plaintiff’s age, education, 16 work experience and residual functional capacity, and based on the testimony of 17 the vocational expert, there were other jobs that existed in significant numbers in 18 the national economy that Plaintiff was capable of performing, including the jobs 19 of electrical accessory assembler, marker, and wire worker. Tr. 3262-63. The ALJ 20 concluded Plaintiff was not under a disability within the meaning of the Social 21 Security Act at any time from October 15, 2001, through the date of the decision. 22 Tr. 3263. 23 24 ISSUES The question presented is whether substantial evidence supports the ALJ’s 25 decision denying benefits and, if so, whether that decision is based on proper legal 26 standards. 27 Plaintiff contends the ALJ erred by improperly rejecting the medical opinion 28 ORDER GRANTING DEFENDANT’S MOTION . . . - 5 Case 1:19-cv-03222-JTR 1 ECF No. 20 4 PageID.4105 Page 6 of 14 evidence. 2 3 filed 09/09/20 DISCUSSION 1. Medical Opinions Plaintiff argues the ALJ failed to properly consider and weigh the medical 5 opinions expressed by Fady F. Sabry, M.D., Philip Johnson, Ph.D., Tae-Im Moon, 6 Ph.D., Phillip Barnard, Ph.D., Kathryn Jolin, PMHNP, and Tasmyn Bowes, Psy.D. 7 ECF No. 14 at 9-21. 8 When a treating or examining physician’s opinion is contradicted by another 9 physician, the ALJ is required to provide “specific and legitimate reasons,” based 10 on substantial evidence, to reject the opinion. Andrews v. Shalala, 53 F.3d 1035, 11 1041 (9th Cir. 1995); Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995). The 12 specific and legitimate standard can be met by the ALJ setting out a detailed and 13 thorough summary of the facts and conflicting clinical evidence, stating her 14 interpretation thereof, and making findings. Magallanes v. Bowen, 881 F.2d 747, 15 751 (9th Cir. 1989). The ALJ is required to do more than offer her conclusions, 16 she “must set forth her interpretations and explain why they, rather than the 17 doctors’, are correct.” Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988). 18 The parties both noted that the specific and legitimate standard applies to the 19 treating and examining doctors’ opinions in this case. ECF No. 14 at 9; ECF No. 20 18 at 9. 21 In evaluating the opinions of non-acceptable medical sources, an ALJ may 22 discount such an opinion if she provides “reasons germane to each witness for 23 doing so.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). 24 A. Fady Sabry, M.D. 25 On August 11, 2009, Dr. Sabry completed a Physical Evaluation form for 26 the Washington State Department of Social and Health Services (DSHS). Tr. 1313- 27 16. He opined asthma resulted in mild to moderate limitation in Plaintiff’s ability 28 to sit, stand, walk, lift, handle, and carry and Plaintiff’s anxiety resulted in mild ORDER GRANTING DEFENDANT’S MOTION . . . - 6 Case 1:19-cv-03222-JTR ECF No. 20 filed 09/09/20 PageID.4106 Page 7 of 14 1 limitations in the same six functions. Tr. 1315. He then limited Plaintiff to 2 sedentary work. Id. He stated Plaintiff was able to participate in pre-employment 3 activities such as job searches or employment classes, stating that Plaintiff needed 4 medicine for asthma control and if he got the asthma under control the limitations 5 would be none to mild instead of mild to moderate. Tr. 1316. Dr. Sabry completed a second Physical Evaluation form for DSHS on June 6 7 18, 2010. Tr. 1328-31. Dr. Sabry diagnosed Plaintiff with asthma and hypertension 8 and opined that they resulted in mild limitations in Plaintiff’s ability to sit, stand, 9 walk, lift, handle, and carry. Tr. 1330. He again limited Plaintiff to sedentary work. 10 Id. He opined that without treatment Plaintiff’s conditions would continue for at 11 least twelve months. Tr. 1331. Again, he stated that Plaintiff needed medications. 12 Id. 13 The ALJ gave these opinions little weight, finding them to be poorly 14 supported and inconsistent with the longitudinal evidence. Tr. 3259. The ALJ 15 noted Dr. Sabry did not include or refer to exam findings consistent with the 16 extreme limitations and did not explain how mild to moderate asthma and mild 17 anxiety would cause the assessed limitations. Id. Finally, she found the opinions 18 inconsistent with contemporary records showing Plaintiff’s symptoms responded 19 to medication and that he had few or no physical complaints. Id. 20 Plaintiff argues the ALJ improperly found insufficient objective evidence to 21 support the opinions, as the record as a whole and Dr. Sabry’s notes indicated 22 objective findings of Plaintiff’s breathing problems. ECF No. 14 at 9-10. Plaintiff 23 also notes two other sources opined he was limited to sedentary work, making Dr. 24 Sabry’s opinions consistent with the record. Id. at 11. Defendant argues the ALJ’s 25 rationale and interpretation of the record were reasonable and supported by 26 substantial evidence, and notes Plaintiff failed to challenge most of the ALJ’s 27 rationale. ECF No. 18 at 3-7. 28 The Court finds no error in the ALJ’s analysis. An ALJ may reasonably ORDER GRANTING DEFENDANT’S MOTION . . . - 7 Case 1:19-cv-03222-JTR ECF No. 20 filed 09/09/20 PageID.4107 Page 8 of 14 1 consider the supportability and consistency of an opinion. 20 C.F.R. §§ 2 404.1527(c), 416.927(c) (“The better an explanation a source provides for a 3 medical opinion, the more weight we will give that medical opinion…. Generally, 4 the more consistent a medical opinion is with the record as a whole, the more 5 weight we will give to that medical opinion.”). The ALJ accurately noted that Dr. 6 Sabry’s opinions were lacking in explanation for how Plaintiff’s conditions 7 resulted in the assessed limitations, and what medical evidence supported his 8 opinions. Furthermore, the ALJ reasonably interpreted the contemporaneous 9 records as showing a few flares of Plaintiff’s asthma, but that his symptoms 10 responded to medication and he often had few, if any, complaints of functional 11 limitations, with few objective findings of breathing problems. Tr. 1197-1221, 12 1274-77. The ALJ’s analysis is supported by substantial evidence. 13 B. 14 On October 16, 2006, Dr. Johnson completed a psychological evaluation. 15 Tr. 723-28. He diagnosed Plaintiff with alcohol dependence in early remission, 16 cannabis dependence in early remission, amphetamine dependence in sustained full 17 remission, major depressive disorder, recurrent, in partial remission, ADHD, and 18 borderline intellectual functioning. Tr. 727. In Dr. Johnson’s medical source 19 statement, he opined that Plaintiff’s ability to understand, reason, and remember 20 fell in the borderline range of intellectual functioning; his ability to sustain 21 concentration, persistence, and paces was adequate when sober, with some 22 limitations from ADHD; his ability to interact socially was adequate; and his 23 ability to cope with stress had some limitations. Tr. 728. The ALJ gave this opinion 24 significant weight, noting it was consistent with the exam findings, the overall 25 medical evidence, and Plaintiff’s activities. Tr. 3260. 26 Philip Johnson, Ph.D. Plaintiff argues the ALJ erred by giving the opinion significant weight while 27 failing to account for Plaintiff’s limited ability to cope with stress, which Plaintiff 28 argues implies he is limited to sheltered work. ECF No. 14 at 11. Defendant argues ORDER GRANTING DEFENDANT’S MOTION . . . - 8 Case 1:19-cv-03222-JTR ECF No. 20 filed 09/09/20 PageID.4108 Page 9 of 14 1 the ALJ reasonably translated Dr. Johnson’s opinion into specific functional 2 limitations, and that the limitation to simple routine tasks with simple decisions 3 and limited contact with others all account for Plaintiff’s limited ability to cope 4 with stress. ECF No. 18 at 7-8. Defendant further argues that Dr. Johnson did not 5 specifically state that Plaintiff was limited to sheltered work, and the ALJ’s 6 interpretation of the report was rational. Id. at 8-9. 7 The Court finds no error in the ALJ’s treatment of this opinion. An ALJ is 8 not required to specifically credit or reject an examining doctor’s opinion when it 9 does not include opinions as to specific functional limitations. Valentin v. Comm’r 10 Soc. Sec. Admin., 574 F.3d 685, 691-92 (9th Cir. 2009). The ALJ is responsible for 11 translating and incorporating clinical findings into a succinct RFC. See Stubbs- 12 Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008). Dr. Johnson stated only 13 that “there have been limitations in his ability to cope with stress,” and recounted 14 Plaintiff’s reports of work-place difficulties. Tr. 728. The doctor did not assess any 15 specific functional limits. The ALJ reasonably interpreted Dr. Johnson’s opinion in 16 concluding Plaintiff was limited to simple, routine tasks with no more than 17 occasional superficial interaction with coworkers and incidental interaction with 18 the public. Tr. 3253. 19 C. Tae-Im Moon, Ph.D. 20 On July 12, 2012, Dr. Moon completed a Psychological/Psychiatric 21 Evaluation form for DSHS. Tr. 2069-73. He diagnosed Plaintiff with major 22 depressive disorder, anxiety disorder, ADHD, alcohol dependence in sustained 23 remission, cannabis dependence, and personality disorder. Tr. 2070. He opined that 24 Plaintiff had a marked limitation in eight and a moderate limitation in an additional 25 two of the thirteen areas of functioning provided on the form. Tr. 2071. He opined 26 that none of the impairments were primarily the result of alcohol or drug use. Tr. 27 2072. He stated that the above limitations would persist for twelve to twenty-four 28 months with available treatment. Id. ORDER GRANTING DEFENDANT’S MOTION . . . - 9 Case 1:19-cv-03222-JTR ECF No. 20 filed 09/09/20 PageID.4109 Page 10 of 14 1 The ALJ gave this opinion little weight, noting Dr. Moon reviewed no 2 treatment notes, and thus had minimal understanding of the longitudinal record on 3 which to form an opinion, including being unaware of evidence of Plaintiff’s 4 symptom exaggeration, inconsistent statements, and drug seeking behavior. Tr. 5 3260. She further reasoned Dr. Moon did not provide specific rationale for the 6 assessed limitations, and that the mostly normal mental status exam results were 7 not consistent with his assessment of marked limits. Id. Finally, she found the 8 opinion to be inconsistent with the record as a whole and with Plaintiff’s daily 9 activities, and pointed to a 2017 opinion from Dr. Harmon who found the 10 11 assessment to not be consistent with the medical evidence. Tr. 3260-61. Plaintiff argues the ALJ’s reasoning is flawed, as Dr. Moon did review 12 previous DSHS exam reports, and argues that an in-person exam is due greater 13 weight than a review of records. ECF No. 14 at 12-13. He further argues that the 14 ALJ’s finding of inconsistency with the record as a whole is not supported by 15 substantial evidence, given the waxing and waning of mental health symptoms, and 16 that the ALJ failed to explain what was inconsistent between Dr. Moon’s opinion 17 and Plaintiff’s demonstrated activities. Id. at 13-14. Finally, he asserts the ALJ’s 18 rejection based on a lack of support from the mental status exam was previously 19 invalidated by this court, and thus violates the law of the case doctrine. Id. at 14. 20 Defendant argues the ALJ’s rationale regarding Dr. Moon’s familiarity with 21 the record was reasonable, and that opinions can be properly rejected when based 22 on an inaccurate picture. ECF No. 18 at 9-10. Defendant further argues the ALJ 23 reasonably rejected the opinion for lack of explanation and documented support in 24 the mental status exam, noting that the previous remand order did not preclude the 25 use of this argument, but merely found the ALJ did not accurately portray the 26 findings in the previous denial. Id. at 10-11. Finally, Defendant asserts the ALJ’s 27 interpretation of the record as a whole and Plaintiff’s activities as inconsistent with 28 Dr. Moon’s opinion was supported by substantial evidence, and Dr. Harmon’s ORDER GRANTING DEFENDANT’S MOTION . . . - 10 Case 1:19-cv-03222-JTR ECF No. 20 filed 09/09/20 PageID.4110 Page 11 of 14 1 opinion was an additional specific and legitimate basis for the rejection. Id. at 11- 2 12. 3 The Court finds the ALJ did not err. As noted above, the amount of 4 explanation provided by a source in support of their opinion and the opinion’s 5 consistency with the record as a whole are legitimate factors for an ALJ to 6 consider. 20 C.F.R. §§ 404.1527(c), 416.927(c). The ALJ’s interpretation of Dr. 7 Moon’s report as lacking in explanation and support is a reasonable interpretation 8 of the record. This Court previously found the ALJ’s rejection of Dr. Moon’s 9 opinion to be flawed, as the ALJ inaccurately summarized Dr. Moon’s mental 10 status exam findings as normal other than deficiencies in abstract thought. Tr. 11 3381-82. However, here the ALJ accurately summarized the findings, and still 12 found them insufficient to support the marked limitations assessed. Furthermore, 13 the ALJ pointed to numerous instances in the record of objective findings she 14 found to be inconsistent with Dr. Moon’s opinion. While Plaintiff argues for an 15 alternative interpretation of the record, the Court finds the ALJ’s interpretation to 16 be supported by substantial evidence. “When the evidence is susceptible to more 17 than one rational interpretation, we must uphold the ALJ’s findings if they are 18 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 19 F.3d 1104, 1111 (9th Cir. 2012). 20 Additionally, an ALJ may consider a source’s familiarity with the record in 21 weighing the reliability of their opinion. 20 C.F.R. § 404.1527(c)(6). The ALJ 22 pointed to a number of factors in the case with which Dr. Moon was not familiar, 23 including evidence of symptom exaggeration, inconsistent statements, and drug 24 seeking behavior. Tr. 3260. The ALJ reasonably considered this factor in assessing 25 Dr. Moon’s opinion. 26 The Court finds the ALJ erred in finding Dr. Moon’s opinion inconsistent 27 with Plaintiff’s documented activities, as none of the identified activities conflict 28 with Dr. Moon’s opinion regarding Plaintiff’s ability to maintain work-related ORDER GRANTING DEFENDANT’S MOTION . . . - 11 Case 1:19-cv-03222-JTR ECF No. 20 filed 09/09/20 PageID.4111 Page 12 of 14 1 functions on a continuous and ongoing basis. The Court further finds Dr. Harmon’s 2 opinion did not state that Dr. Moon’s report was inconsistent with the record at that 3 time, but rather found that records more contemporaneous to his 2017 review 4 indicated Plaintiff’s limitations were not as extreme as they had been found to be 5 in 2012. Tr. 3576. However, as the ALJ provided other specific and legitimate 6 reasons for discounting Dr. Moon’s opinion, any such error was harmless. 7 Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (an error is harmless 8 when “it is clear from the record that the . . . error was inconsequential to the 9 ultimate nondisability determination”). 10 D. Phillip Barnard, Ph.D. 11 On July 25, 2013, Dr. Barnard completed a Psychological/Psychiatric 12 Evaluation form for DSHS after examining Plaintiff. Tr. 2874-77. He diagnosed 13 Plaintiff with ADHD/Combined type, learning disorder not otherwise specified, 14 alcohol dependence in sustained full remission, and bipolar disorder not otherwise 15 specified. Tr. 2875. He opined that Plaintiff had a severe limitation in four areas of 16 mental functioning, a marked limitation in four areas of mental functioning, and a 17 moderate limitation in the remaining five areas of mental functioning addressed on 18 the form. Tr. 2876. He found that the current impairments were not the primary 19 result of drug or alcohol use in the past sixty days. Id. He further opined that 20 Plaintiff’s impairments would continue for twenty-four to forty-eight months with 21 available treatment. Id. 22 The ALJ gave this opinion little weight for the same reasons as Dr. Moon, 23 additionally noting the inaccurate information Plaintiff provided to Dr. Barnard 24 regarding his substance abuse. Tr. 3260-61. The Court finds the ALJ’s analysis is 25 specific and legitimate as applied to Dr. Barnard for the same reasons as it was 26 sufficient for Dr. Moon. 27 E. Kathryn Jolin, PMHNP 28 In July of 2015, Ms. Jolin completed a mental source statement in which she ORDER GRANTING DEFENDANT’S MOTION . . . - 12 Case 1:19-cv-03222-JTR ECF No. 20 filed 09/09/20 PageID.4112 Page 13 of 14 1 opined that Plaintiff had a marked limitation in the ability to maintain attention and 2 concentration for extended periods and a moderate limitation in twelve additional 3 areas of mental functioning. Tr. 1935-37. Additionally, she opined that Plaintiff 4 would be off task over 30% of the time and would miss four or more days a month 5 if employed forty hours a week. Tr. 1937. 6 The ALJ gave the opinion little weight, noting it was conclusory, 7 unsupported, and inconsistent with the longitudinal record. Tr. 3261. The ALJ 8 noted Ms. Jolin did not provide objective findings consistent with her opinion, did 9 not point to other evidence to support her opinion, and found that the opinion was 10 generally inconsistent with Plaintiff’s activities and his presentation in most 11 medical records. 12 As this Court previously found, the ALJ’s assessment of Ms. Jolin’s opinion 13 as being inconsistent with the medical records is sufficient to meet the germane 14 standard. Tr. 3386. The ALJ also reasonably considered the lack of explanation or 15 supportive contemporaneous objective findings in assigning little weight to Ms. 16 Jolin’s opinion. 17 F. 18 In June 2018, Dr. Bowes completed a consultative psychological exam, and 19 diagnosed Plaintiff with ADHD, generalized anxiety disorder, panic disorder, and 20 alcohol use disorder in reported sustained full remission, along with a rule out 21 diagnosis of borderline IQ. Tr. 3581. She opined Plaintiff was markedly limited in 22 his ability to understand, remember, and persist in tasks by following detailed 23 instructions, and maintain appropriate behavior in a work setting. Id. She stated the 24 impairments were not primarily the result of substance use, but noted Plaintiff 25 needed a chemical dependency evaluation. Tr. 3582. 26 Tasmyn Bowes, Psy.D. The ALJ gave this opinion little weight, noting Dr. Bowes reviewed no 27 treatment notes and Plaintiff gave her a misleading report of his substance abuse, 28 resulting in Dr. Bowes not having “the full diagnostic picture on which to form a ORDER GRANTING DEFENDANT’S MOTION . . . - 13 Case 1:19-cv-03222-JTR 1 2 ECF No. 20 filed 09/09/20 PageID.4113 Page 14 of 14 reliable opinion.” Tr. 3261-62. Plaintiff argues Dr. Bowes’ failure to review records does not negate the 3 objective findings she made on her exam, and argues there is no evidence she 4 unduly relied on Plaintiff’s statements, as she seemed to question his reports of 5 sobriety. ECF No. 14 at 19-21. He further points out that the ALJ did not find 6 substance abuse to be material to the disability determination. Id. Defendant argues 7 the ALJ reasonably discounted the opinion due to Dr. Bowes’ lack of knowledge 8 of the longitudinal record. 9 The Court finds the ALJ did not err. As noted above, a source’s familiarity 10 with the record is a legitimate factor for the ALJ to consider. Throughout the 11 decision, the ALJ noted evidence of Plaintiff’s symptom exaggeration, inconsistent 12 statements, and drug seeking behaviors, all of which Dr. Bowes was unaware of. 13 This was a specific and legitimate reason to question Dr. Bowes’ opinion. Chaudry 14 v. Astrue, 688 F.3d 661, 670-71 (9th Cir. 2012). CONCLUSION 15 16 Accordingly, IT IS ORDERED: 17 1. 18 Defendant’s Motion for Summary Judgment, ECF No. 18, is GRANTED. Plaintiff’s Motion for Summary Judgment, ECF No. 14, is DENIED 19 2. 20 The District Court Executive is directed to file this Order and provide a copy 21 to counsel for Plaintiff and Defendant. Judgment shall be entered for Defendant 22 and the file shall be CLOSED. 23 24 IT IS SO ORDERED. DATED September 9, 2020. 25 26 27 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 28 ORDER GRANTING DEFENDANT’S MOTION . . . - 14

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.