Gonzales v. Colvin (previously Astrue), No. 2:2012cv03120 - Document 27 (E.D. Wash. 2014)
Court Description: ORDER Granting 20 Defendant's Motion for Summary Judgment; denying 17 Plaintiff's Motion for Summary Judgment. Signed by Senior Judge Wm. Fremming Nielsen. (PL, Case Administrator)
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Gonzales v. Colvin (previously Astrue) Doc. 27 1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF WASHINGTON 6 RICHARD DANIEL GONZALES, Plaintiff, 7 8 No. -vs- 9 CAROLYN W. COLVIN, Commissioner of Social Security, 1 10 Defendant. 11 CV-12-3120-WFN ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 12 Before the Court are cross-Motions for Summary Judgment (ECF Nos. 17 and 20). 13 Attorney D. James Tree represents Plaintiff. Special Assistant United States Attorney 14 Lars Nelson represents Defendant. The Court has reviewed the administrative record and 15 briefs filed by the parties and is fully informed. JURISDICTION 16 17 Plaintiff protectively applied for supplemental security income benefits on 18 March 20, 2007, alleging disability beginning on July 1, 2005, due to physical and mental 19 impairments. The application was denied initially and on reconsideration. 20 A video hearing was held before Administrative Law Judge (ALJ) Marie Palachuk 21 on June 17, 2010. At the hearing, Plaintiff, represented by attorney Chad Hatfield, 22 testified as did Richard A. Hutson, M.D., a medical expert, R. Thomas McKnight, Ph.D., a 23 24 1 Carolyn W. Colvin became the Acting Commissioner of Social Security on 25 February 14, 2013. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, 26 Carolyn W. Colvin is substituted for Michael J. Astrue as the defendant in this suit. No 27 further action need be taken to continue this suit by reason of the last sentence of 42 28 U.S.C. § 405(g). ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT - 1 Dockets.Justia.com 1 medical expert, and Sharon Welter, a vocational expert (VE). The ALJ concluded that 2 Plaintiff was not disabled. The Appeals Council denied Plaintiff's request for review 3 making the ALJ's decision the final decision of the Commissioner. Pursuant to 42 U.S.C. 4 § 405(g), this final decision is appealable to the district court. Plaintiff sought judicial 5 review on October 4, 2012. FACTS 6 7 8 The facts of the case are set forth in detail in the transcript of the proceedings and are briefly summarized here. 9 Plaintiff was 36 years old at the time of the hearing. (Tr. at 163.) Plaintiff attended 10 school through 11th grade, but did not graduate from high school. Plaintiff later earned 11 his GED while in prison. Plaintiff has a history of alcohol abuse, marijuana use, and 12 violent crimes. Plaintiff has previously worked as a segregator in cold storage, cook, 13 roofer, custodian, dishwasher, and waiter. (Tr. at 215.) While in prison, Plaintiff worked 14 in the kitchen, did computer refurbishing, and did some barbering. 15 Plaintiff allegedly suffers from several physical and mental impairments, including 16 nerve impingement of the lower back, arthritis of the right shoulder, anxiety, depression, 17 and obsessive compulsive disorder (OCD). (Tr. at 248, 273, 332.) 18 Despite his alleged impairments, Plaintiff is still able to do some household chores 19 (Tr. at 249), occasionally go shopping (Tr. at 210), take care of personal hygiene (Tr. at 20 208), and prepare simple meals (Tr. at 209). Plaintiff can also go on walks and use public 21 transportation. (Tr. at 210.) He likes to read and watch television. (Tr. at 211.) 22 SEQUENTIAL PROCESS 23 The Commissioner has established a five-step sequential evaluation process for 24 determining whether a person is disabled. 20 C.F.R. § 416.920(a); see Bowen v. Yuckert, 25 482 U.S. 137, 140-42 (1987). In steps one through four, the burden of proof rests upon 26 the claimant to establish a prima facie case of entitlement to disability benefits. Tackett v. 27 Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999). This burden is met once a claimant 28 establishes that a physical or mental impairment prevents him from engaging in his ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT - 2 1 previous occupation. 20 C.F.R. § 416.920(a)(4). If a claimant cannot do his past relevant 2 work, the ALJ proceeds to step five, and the burden shifts to the Commissioner to show 3 that (1) the claimant can make an adjustment to other work; and (2) specific jobs exist in 4 the national economy which claimant can perform. Batson v. Comm'r, Soc. Sec. Admin., 5 359 F.3d 1190, 1193-94 (9th 2004). If a claimant cannot make an adjustment to other 6 work in the national economy, a finding of "disabled" is made. 7 416.920(a)(4)(I-v). ADMINISTRATIVE DECISION 8 9 10 11 12 20 C.F.R. § At step one, the ALJ determined that Plaintiff did not engage is substantial gainful activity since March 20, 2007, the application date. At step two, the ALJ found that Plaintiff had the following severe impairments: degenerative disc disease, lumbar spine and mild osteoarthritis of the left ankle. 13 At step three, the ALJ found that Plaintiff did not have an impairment or 14 combination of impairments that met or medically equaled any of the listed impairments 15 described at 20 C.F.R. Part 404, Subpart P, Appendix 1(20 C.F.R. §§ 416.920(d), 416.925, 16 and 416.926). 17 18 19 20 At step four, the ALJ found that Plaintiff had the residual functional capacity (RFC) to perform light work subject to some physical and environmental limitations. At step five, the ALJ concluded that Plaintiff is capable of performing past relevant work as a cleaner/housekeeper or as a "touch up" cleaner. STANDARD OF REVIEW 21 22 23 24 25 26 27 28 In Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001), the court set out the standard of review: A district court’s order upholding the Commissioner’s denial of benefits is reviewed de novo. Harman v. Apfel, 211 F.3d 1172, 1174 (9th Cir. 2000). The decision of the Commissioner may be reversed only if it is not supported by substantial evidence or if it is based on legal error. [Tackett, 180 F.3d at 1097]. Substantial evidence is defined as being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put another way, substantial ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT - 3 1 2 3 4 5 evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one rational interpretation, the court may not substitute its judgment for that of the Commissioner. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin. 169 F.3d 595, 599 (9th Cir. 1999). 8 The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, although deference is owed to a reasonable construction of the applicable statutes. McNatt v. Apfel, 201 F.3d 1084, 1087 (9th Cir. 2000). 9 It is the role of the trier of fact, not this court, to resolve conflicts in evidence. 10 Richardson, 402 U.S. at 400. If evidence supports more than one rational interpretation, 11 the court may not substitute its judgment for that of the Commissioner. Tackett, 180 12 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984). Nevertheless, a 13 decision supported by substantial evidence will still be set aside if the ALJ did not 14 apply the proper legal standards in weighing the evidence and making the decision. 15 Brawner v. Secretary of Health and Human Servs., 839 F.2d 432, 433 (9th Cir. 1988). 16 If substantial evidence exists to support the administrative findings, or if conflicting 17 evidence exists that will support a finding of either disability or non-disability, 18 the Commissioner's determination is conclusive. 19 1229-1230 (9th Cir. 1987). 6 7 20 21 22 23 24 Sprague v. Bowen, 812 F.2d 1226, ISSUES 1. Did the ALJ err in concluding that Plaintiff had past relevant work and that Plaintiff could perform such work? 2. Did the ALJ err in evaluating the medical evidence, including the statements of Plaintiff's treating physicians? 25 3. 26 impairments? 27 4. 28 Did the ALJ err at step two by finding Plaintiff had no severe mental Did the ALJ err by failing to complete a separate step five analysis separating the effects of drugs and alcohol from Plaintiff's impairments? ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT - 4 1 2 3 DISCUSSION 1. Did the ALJ err in concluding that Plaintiff had past relevant work and that Plaintiff could perform such work? 4 Plaintiff argues that, in the last fifteen years, he has never engaged in substantial 5 gainful activity (SGA). Therefore, Plaintiff argues that the ALJ erred by finding that he 6 had past relevant work. Plaintiff also argues that he never worked as a housekeeper and 7 the ALJ erred in finding that Plaintiff had past relevant work as a housekeeper. 8 Past relevant work is work that a claimant performed within the last 15 years, which 9 was SGA, and lasted long enough for him or her to learn to do it. 20 C.F.R. § 416.965(a). 10 SGA is work activity that is both "substantial" and "gainful." Work activity is 11 "substantial" if it "involves doing significant physical or mental activities," and can 12 include part time work. 20 C.F.R. § 416.972(a). Work activity is "gainful" if done for pay 13 or profit, whether or not a profit is realized. 20 C.F.R. § 416.972(b). 14 At step one, the ALJ found that Plaintiff has not engaged in SGA since March 20, 15 2007, the date of Plaintiff's application. (Tr. at 19.) At step five, the ALJ found that 16 Plaintiff has past relevant work as a cook helper, cleaner/housekeeper, construction 17 worker II, short order cook, stores (laborer), and a touchup cleaner. (Tr. at 28.) Plaintiff 18 argues that this finding was in error because none of this past work rose to the level of 19 SGA. See 20 C.F.R. §§ 404.1565(a), 416.965(a) (Work activity can only be "past relevant 20 work" if it was SGA). There is substantial evidence in the record that Plaintiff engaged in 21 these jobs, at least to some extent. See Tr. at 66-67, 81, 169, 215-221. Whether Plaintiff 22 engaged in SGA in each of these positions is less clear. 23 But even if the Court accepted Plaintiff's argument that he did not engage in SGA in 24 these positions, any error made by the ALJ is harmless because the ALJ proceeded to 25 make a step five determination. An ALJ's finding of past relevant work is "significant" 26 when the ALJ combines a claimant's past relevant work with the claimant's RFC to 27 determine that the claimant is not disabled at step four. Gallegos v. Astrue, 237 Fed. 28 Appx. 135, *136 (9th Cir. 2007) (citing 20 C.F.R. § 416.920(a)(4)). But when the ALJ ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT - 5 1 proceeds to step five after finding relevant past experience, it is immaterial whether 2 claimant's past relevant work was SGA. See Tommasetti v. Astrue, 533 F.3d 1035, 1042 3 (9th Cir. 2008) ("Although the ALJ's step four determination constitutes error, it is 4 harmless in light of the ALJ's alternative finding at step five."); Reynolds v. Astrue, 252 5 Fed. Appx. 161, *165 (9th Cir. 2007) (ALJ's failure to make specific findings regarding 6 the demands of claimant's past relevant work and claimant's ability to meet those demands 7 was harmless error in light of ALJ's RFC assessment and step-five determination). Any 8 error the ALJ might have made in determining Plaintiff's past relevant work was harmless 9 because the ALJ made a step five determination that was consistent with Plaintiff's RFC. 10 Plaintiff points out that the ALJ also erred by finding that he had past relevant work 11 as a housekeeper/cleaner. While the ALJ likely erred in this respect, such error is again 12 harmless. Although Plaintiff periodically worked as a custodian, nothing in the record 13 suggests that Plaintiff worked as a cleaner/housekeeper. While these jobs obviously share 14 certain characteristics, the Dictionary of Occupational Titles (DOT) distinguishes between 15 a cleaner/housekeeper and a janitor; the latter being (arguably) a better designation of the 16 work Plaintiff performed as a custodian. The DOT states that "cleaner, housekeeping" is 17 unskilled, light work with a Specific Vocational Preparation (SVP) of 2 (DOT 323.687- 18 014) while work as a "janitor" is semi-skilled, medium work with an SVP of 3 (DOT 19 382.664-010). Although the ALJ may have mischaracterized Plaintiff's past relevant work, 20 such mischaracterization is harmless because it is "inconsequential to the ultimate 21 nondisability determination." Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1055 22 (9th Cir. 2006). Based on the Plaintiff's RFC and the hypothetical the ALJ presented to 23 the VE, the ALJ properly concluded that Plaintiff could perform work as a touchup 24 cleaner or as a cleaner/housekeeper. It is inconsequential to the ultimate nondisability 25 determination 26 "cleaner/housekeeper." 27 28 that the ALJ characterized Plaintiff's past custodial work as 2. Did the ALJ err in evaluating the medical evidence in this case, including the statements of Plaintiff's treating physicians? ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT - 6 1 Plaintiff argues that the ALJ erred in considering the medical opinions in this case, 2 particularly the opinions concerning Plaintiff's mental health issues. "In making a 3 determination of disability, the ALJ must develop the record and interpret the medical 4 evidence." Howard ex. rel. Wolff v. Barhart, 341 F.3d 1006, 1012 (9th Cir. 2003). In 5 weighing medical source opinions, the ALJ should distinguish between three different 6 types of physicians: (1) treating physicians, who actually treat the claimant; (2) examining 7 physicians, who examine but do not treat the claimant; and (3) nonexamining physicians 8 who neither treat nor examine the claimant. Lester v. Chater, 81 F.3d 821, 830 (9th 9 Cir. 1995). The ALJ should give more weight to the opinion of a treating physician 10 than to the opinion of an examining physician. Orn v. Astrue, 495 F.3d 625, 631 (9th 11 Cir. 2007) (citing 20 C.F.R. § 404.1527(d)(1)-(2)). The ALJ should give more weight 12 to the opinion of an examining physician than to the opinion of a nonexamining 13 physician. Id. 14 When a physician’s opinion is not contradicted by another physician, the ALJ may 15 reject the opinion only for “clear and convincing” reasons. Baxter v. Sullivan, 923 F.2d 16 1391, 1396 (9th Cir. 1991) (quoting Davis v. Heckler, 868 F.2d 323, 326 (9th Cir. 1989)). 17 When a physician's opinion is contradicted by another physician, the ALJ is only required 18 to provide “specific and legitimate reasons” for rejecting the opinion of the first physician. 19 Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983). 20 "[I]n interpreting the evidence and developing the record, the ALJ does not need to 21 'discuss every piece of evidence.'" Howard, 341 F.3d at 386 (quoting Black v. Apfel, 143 22 F.3d 383, 386 (8th Cir. 1998)). An ALJ is not required to discuss evidence that "is neither 23 significant nor probative." Id. 24 a. Dr. Roger Bracchi 25 Dr. Bracchi examined Plaintiff on December 31, 2009 and completed a physical 26 evaluation as part of Plaintiff's application for Medicaid through the state agency. (See Tr. 27 at 308-11, 315-16, 325-28, 349-51; see also Tr. at 267-68 (documenting a January 28, 28 2008 office visit).) Dr. Bracchi diagnosed Plaintiff with "lumbar disc disease," but found ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT - 7 1 Plaintiff capable of "sedentary work." (Tr. at 327.) The ALJ gave some weight to Dr. 2 Bracchi's evaluation to the extent that Dr. Bracchi "found the [Plaintiff] capable of work." 3 (Tr. at 27.) The ALJ rejected Dr. Bracchi's opinion that Plaintiff was limited to sedentary 4 work. The ALJ reasoned that this opinion was "not consistent with the objective findings 5 of only mild osteoarthritis and mild degenerative disc disease." (Tr. at 27.) Plaintiff 6 argues that the ALJ erred in dismissing Dr. Bracchi's opinion that Plaintiff was only 7 capable of "sedentary work." 8 As noted by the ALJ, other medical evidence in the record suggests that Plaintiff's 9 physical impairments do not limit him to sedentary work. Dr. Marie Ho, an examining 10 physician, opined that Plaintiff could stand and walk six hours in an eight-hour day and 11 lift/carry 20 pounds occasionally and 10 pounds frequently. (Tr. at 252.) Likewise, Dr. 12 Richard Hudson, the testifying medical expert, opined that Plaintiff's lumbar spine MRI 13 revealed only "mild multi-level degenerative changes." (Tr. at 45.) Dr. Hudson opined 14 that Plaintiff was capable of "light work." (Tr. at 46.) Light work involves "lifting no 15 more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 16 10 pounds" and might require "a good deal of walking or standing." 20 C.F.R. § 17 416.967(b). 18 Because Drs. Ho and Hudson's opinions contradict Dr. Bracchi's opinion, the 19 ALJ was only required to give "specific and legitimate" reasons for rejecting Dr. 20 Bracchi's "sedentary work" opinion. 21 degenerative changes" in Plaintiff's lumbar spine. (Tr. at 277.) 22 medical opinion is inconsistent with objective findings is a legitimate reason for the 23 ALJ to discredit the opinion. Batson, 359 F.3d at 1196. Furthermore, the ALJ did 24 not reject 25 Bracchi's "sedentary work" finding. Where there is conflicting medical evidence, the 26 ALJ, not the Court, must resolve the ambiguities. Molina v. Astrue, 674 F.3d 1104, 27 1111 (9th Cir. 2012). The ALJ did not err in rejecting Dr. Bracchi's "sedentary work" 28 opinion. all Plaintiff's MRI revealed only "mild multilevel of Dr. Bracchi's opinions; ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT - 8 the ALJ The fact that a specifically rejected Dr. 1 b. Dr. Jacobo Rivero 2 Plaintiff argues that the ALJ erred by not mentioning, discussing, or giving reasons 3 for rejecting the opinions of Dr. Rivero. Dr. Rivero was apparently Plaintiff's primary 4 care physician at Central Washington Family Medicine (CWFM). (Tr. at 270.) Although 5 the ALJ does not mention Dr. Rivero by name, the ALJ does summarize and evaluate the 6 CWFM records. (Tr. at 19-20 (citing Ex. 2F [Tr. at 245-47]; 7F [Tr. at 265-77]); 24 (citing 7 Ex. 7F).) 8 The ALJ summarized Dr. Rivero's report documenting Plaintiff's April 10, 2007 9 office visit where Plaintiff complained of body aches, chills, cough, diarrhea, and chronic 10 back pain. (Tr. at 19, 246-47). None of these symptoms appear related to Plaintiff's 11 severe degenerative disc disease, osteoarthritis, or his alleged mental disorders. The 12 ALJ also discussed Dr. Rivero's report from Plaintiff's September 12, 2007 office visit 13 where Plaintiff sought treatment for impotence and reported feelings of anxiety and 14 depression. (Tr. at 24, 270-71.) At that office visit, Dr. Rivero noted that Plaintiff had 15 been to the emergency room twice in the past month on account of his anxiety. (Tr. at 16 270.) Dr. Rivero also noted that Plaintiff had recently been discharged from jail and 17 was upset about had breaking up with his live-in girlfriend. (Tr. at 270-71.) Under 18 the "Comment" heading of his report, Dr. Rivero listed, "Impotence," "Depression," and 19 "Anxiety." (Tr. at 270.) 20 It is unclear whether Dr. Rivero actually diagnosed Plaintiff with anxiety and 21 depression. Even if the Court accepted that Dr. Rivero did make such diagnoses, other 22 medical evidence in the record contradicts Dr. Rivero's opinion. 23 McKnight, the testifying psychological expert, opined that Plaintiff's depression and 24 possible adjustment order were temporary and should not last longer than 6 months. 25 (Tr. at 56.) 26 pointing to Plaintiff's self-reports that are "at odds" with diagnoses of anxiety and 27 depression. 28 Plaintiff's anxiety." (Tr. at 58.) Dr. R. Thomas Dr. McKnight also questioned the seriousness of Plaintiff's anxiety by (Tr. at 57.) Dr. McKnight opined that "there's nothing serious about ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT - 9 1 In light of Dr. McKnight's opinions, the ALJ was only required to give legitimate 2 and specific reasons for discrediting Dr. Rivero's opinions. In discrediting Dr. Rivero's 3 opinions, the ALJ observed that Plaintiff reported that medication (imipramine) 4 "somewhat helped his mood." (Tr. at 24, 270.) The ALJ also observed that Dr. Rivero 5 offered Plaintiff counseling, but Plaintiff declined. (Tr. at 24, 271.) The fact that a 6 condition can be remedied by medication is a legitimate reason for discrediting an 7 opinion. See Warre v. Comm'r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) 8 ("Impairments that can be controlled effectively with medication are not disabling for the 9 purpose of determining eligibility for SSI benefits.") Likewise, a claimant's "unexplained, 10 or inadequately explained, failure to seek treatment or follow a prescribed course of 11 treatment" casts doubt on a claimant's sincerity. Fair v. Bowen, 885 F.2d 597, 603 (9th 12 Cir. 1989). Although the ALJ did not mention Dr. Rivero by name, the ALJ properly 13 addressed Dr. Rivero's opinions. 14 The ALJ does not discuss reports created by Dr. Rivero documenting Plaintiff's 15 office visit on September 10, 2007. (Tr. at 271-72.) In that report, Dr. Rivero notes that he 16 was seeing Plaintiff as part of a "DSHS Incapacity Exam." (Tr. at 271.) Dr. Rivero also 17 comments on Plaintiff's history of back pain, observes that Plaintiff suffers from 18 "Lumbalia, chronic and incapacitating," and orders an MRI of Plaintiff's lumbar spine. 19 (Tr. at 271-72.) Dr. Rivero's observations and recommendation that Plaintiff undergo a 20 MRI are not medical opinions that contradict the ALJ's conclusion that Plaintiff has a 21 severe impairment of degenerative disc disease. The ALJ is not required to discuss 22 evidence that is "neither significant nor probative." Howard, 341 F.3d at 1012. The ALJ 23 did not err in failing to discuss the record of Plaintiff's September 10, 2007 office visit 24 with Dr. Rivero. 25 c. Dr. Russell Maier 26 The ALJ also properly evaluated the opinions of CWFM physician, Dr. Maier. In 27 an August 30, 2007 report, Dr. Maier noted that Plaintiff "present[ed] with acute grief 28 reaction" on account of his breakup with his live-in girlfriend. (Tr. at 272.) At the time of ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT - 10 1 the office visit, Plaintiff had not seen his girlfriend, or the three children they were raising, 2 for a week. (Tr. at 272.) Dr. Maier described Plaintiff as "a pleasant, mildly anxious 3 gentleman who becomes tearful at times." (Tr. at 273.) Dr. Maier "[a]ssess[ed]" Plaintiff 4 as having "Adjustment Reaction With Brief Depressive Reaction Adjustment disorder 5 with depressed mood; Grief reaction" and "Depressive Disorder, NEC Depressive disorder 6 NOS; Depressive state NOS; Depression NOS." (Tr. at 273.) 7 The ALJ's opinion does not explicitly mention Dr. Maier, but the ALJ does 8 reference Dr. Maier's report as it was discussed by Dr. McKnight. (Tr. at 22-23.) The 9 ALJ's opinion references an "August 2007" report concerning the "recent breakup of 10 [Plaintiff's] significant relationship." (Tr. at 23.) The ALJ gave at least two reasons for 11 finding that Plaintiff's anxiety and depression associated with Plaintiff's breakup were not 12 severe mental impairments. First, the ALJ noted Dr. McKnight's contradictory opinion 13 that "sadness" and "adjustment disorder . . . goes away in 6 months or turns into something 14 more interesting." (Tr. at 23; 56.) Second, the ALJ pointed to evidence that indicates 15 Plaintiff exhibits normal behavior, is "capable of independent living activities," and 16 amenable to changes in his environment and supervision in the workplace. (Tr. at 23; 17 57-58.) To the extent that medical evidence is inconsistent, the ALJ is responsible for 18 resolving ambiguities. Molina, 674 F.3d at 1111; see also Fair, 885 F.2d at 603 ("[I]t 19 would not be farfetched for an ALJ to conclude that the claimant's pain does not prevent 20 him from working" when the claimant can perform "household chores and other activities 21 that involve many of the same physical tasks as a particular type of job"). The ALJ 22 properly considered Dr. Maier's opinions and gave specific and legitimate reasons for 23 discrediting them. 24 d. Dr. Trula Thompson 25 Plaintiff argues that the ALJ erred because the ALJ did not mention, discuss, or give 26 reasons for rejecting the opinion of Dr. Thompson. Dr. Thompson reviewed Plaintiff's 27 medical records as part of Plaintiff's application for Medicaid through the state agency. 28 (Tr. at 332.) Dr. Thompson did not treat or personally examine Plaintiff. In determining ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT - 11 1 whether Plaintiff met state Medicaid requirements, Dr. Thompson summarized the 2 psychological/psychiatric evaluation completed by Mr. Christopher Clark, M.Ed., (Tr. at 3 334-39), the physical evaluation completed by Dr. Roger Bracchi (Tr. at 325-31), 4 Plaintiff's lumbar spine MRI report (Tr. at 264), and notes documenting Plaintiff's 5 attendance at "group sessions" (presumably associated with Plaintiff's drug treatment). 6 (Tr. at 332.) Dr. Thompson found Plaintiff disabled and noted that Plaintiff may meet 7 "SSI [Listing] 12.08." 2 (Tr. at 332.) As discussed elsewhere in this opinion, the Court 8 finds that the ALJ properly evaluated each of the medical opinions relied upon by Dr. 9 Thompson. The ALJ did not err in failing to discuss Dr. Thompson's opinion to the extent 10 that the opinion simply reviewed records that the ALJ did consider. 11 Furthermore, the ALJ did not err by failing to discuss or credit Dr. Thompson's 12 equivocal opinion that Plaintiff "may meet SSI [Listing] 12.08." (Tr. at 332.) This 13 opinion is conclusory and is not supported by objective medical evidence or by Plaintiff's 14 self-reporting. Plaintiff points to no medical evidence that he suffers from a personality 15 disorder. To the contrary, Plaintiff reports that he gets along well with other people and 16 has never been fired from a job because of problems getting along with others. (Tr. at 17 213.) 18 impairments actually combine to meet the criteria of a personality disorder under Listing 19 12.08. Lewis v. Apfel, 236 F.3d 503, 514 (9th Cir. 2001). The ALJ was not required to 20 discuss or credit Dr. Thompson's "listing" opinion because it was "neither significant nor 21 probative." Howard, 341 F.3d at 386. Tellingly, Plaintiff offers no theory, "plausible or otherwise," as to how his 22 Plaintiff also argues Dr. Thompson's opinion should have been given substantial 23 weight because a state agency adopted Dr. Thompson's disability determination for 24 25 26 27 28 2 Listing 12.08 sets forth the criteria to find that a claimant has a personality disorder: "A personality disorder exists when personality traits are inflexible and maladaptive and cause either significant impairment in social or occupation functioning or subjective distress." 20 C.F.R. Part 404, Subpart P, Appendix 1, 12.08. ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT - 12 1 purposes of finding Plaintiff eligible for GAX and Medicaid. (ECF No. 17 at 12-13.) 2 Plaintiff analogizes Washington's Medicaid and GAX disability determinations to the 3 Department of Veterans Affairs' (VA) disability decisions. Generally, "a VA rating of 4 disability does not . . . compel the [Social Security Administration] to reach an identical 5 result, [but] the ALJ must consider the VA's finding in reaching his decision and the ALJ 6 must ordinarily give great weight to a VA determination of disability." McLeod v. Astrue, 7 640 F.3d 881, 886 (9th Cir. 2011). Plaintiff fails to cite to any authority requiring the 8 Court to treat state agency disability determinations the same as VA disability 9 determinations. In absence of such authority, the Court finds controlling 20 C.F.R. § 10 416.904, which states that disability determinations made by other governmental agencies 11 are "not binding" on the ALJ. 12 e. Dr. Gregory Wright 13 Plaintiff argues that the ALJ erred because the ALJ did not mention, discuss, or give 14 reasons for rejecting the opinion of Dr. Wright. Plaintiff argues that Dr. Wright diagnosed 15 Plaintiff with anxiety, adjustment disorder with depressed mood, and depressive disorder. 16 ECF No. 17 at 15 (citing Tr. at 353). But, as pointed out by Defendant, the record created 17 by Dr. Wright was not before the ALJ. (ECF No. 20 at 9.) Rather, the Plaintiff submitted 18 Dr. Wright's record directly to the Appeals Council after the ALJ's decision. (Compare Tr. 19 at 4 with Tr. at 33.) The district court must consider new evidence submitted to the 20 Appeals Council when reviewing the Commissioner's final decision for substantial 21 evidence. Brewes v. Comm'r, Soc. Sec. Admin, 682 F.3d 1157, 1163 (9th Cir. 2012). 22 The Court finds that Dr. Wright's "diagnoses" do not constitute substantial evidence 23 that would support a finding that Plaintiff suffers from severe mental impairments, which 24 appears to be what Plaintiff is arguing. Plaintiff saw Dr. Wright on January 12, 2010 to 25 address his complaint of lower back pain. Under the subheading, "Temporary Problems," 26 Dr. Wright lists diagnoses of anxiety and depression. (Tr. at 353.) The "mere diagnosis of 27 an impairment," however, is "not sufficient to sustain a finding of disability." Key v. 28 Heckler, 754 F.2d 1545, 1549 (9th Cir. 1985). Dr. Wright gives no opinion as to the ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT - 13 1 severity or possible duration of Plaintiff's mental impairments or how these impairments 2 would limit Plaintiff's ability to work. The Court, like the ALJ, may reject medical 3 opinions that are "conclusory, brief, and unsupported by the record as a whole." Batson, 4 359 F.3d at 1195. Dr. Wright's diagnoses do not constitute substantial evidence requiring 5 the Court to find that the Plaintiff has severe mental impairments. 6 3. Did the ALJ err at step two by finding there were no severe mental 7 impairments? 8 Plaintiff argues that, due to the ALJ's erroneous evaluation of the medical evidence, 9 the ALJ improperly concluded that Plaintiff did not suffer from severe mental 10 impairments. Specifically, Plaintiff argues that the ALJ gave insufficient reasons to reject 11 the opinion of therapist Christopher Clark when she concluded that Mr. Clark's opinions 12 "contrast[ed] sharply with the other evidence of the record." (Tr. at 27.) Plaintiff argues 13 that Mr. Clark's diagnosis is, in fact, consistent with the weight of the evidence. 14 The step-two analysis is “a de minimis screening device used to dispose of 15 groundless claims.” Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005). An impairment 16 is "not severe" if it does not "significantly limit" the ability to conduct "basic work 17 activities." 20 C.F.R. § 416.921(a). Basic work activities are "abilities and aptitudes 18 necessary to do most jobs." 20 C.F.R. § 416.921(b). "An impairment or combination of 19 impairments can be found not severe only if the evidence establishes a slight abnormality 20 that has no more than a minimal effect on an individual's ability to work." Smolen v. 21 Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) (internal quotation marks omitted). 22 As discussed above, Dr. Rivero, Dr. Maier, and Dr. Wright each found that Plaintiff 23 suffered some degree of depression and anxiety. The ALJ gave little weight to these 24 opinions for various legitimate and specific reasons. Plaintiff points out that Dr. Dana 25 Harmon also opined that Plaintiff has "serious mental health difficulties." (Tr. at 324.) 26 Despite making such a finding, however, Dr. Harmon, ultimately denied Plaintiff's 27 certification for Medicaid. (Tr. at 324.) Dr. Harmon recommended that, if Plaintiff were 28 to reapply, he should provide "documentation that he has continued to be disabled by his ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT - 14 1 mental health difficulties." (Tr. at 324.) Neither Dr. Harmon nor any of the other 2 physicians discussed in this opinion concluded that Plaintiff's mental impairments 3 precluded Plaintiff from performing basic work activities or that Plaintiff's mental 4 impairments had more than a minimal effect on Plaintiff's ability to work. In the absence 5 of such medical evidence, the Court finds that Plaintiff has not met his burden of proving 6 that his mental impairments constitute severe impairments. Tackett, 180 F.3d at 1098-99. 7 Plaintiff argues that the ALJ erred in evaluating the opinion of Mr. Christopher 8 Clark, the therapist who conducted Plaintiff's psychiatric exam as part of Plaintiff's 9 application for Medicaid benefits. Mr. Clark observed Plaintiff as having symptoms of 10 anxiety, paranoia, and obsessive thinking that had a "marked" effect on his ability to work. 11 (Tr. at 297.) 12 Disorder," "Alcohol Dependence, in reported remission," and "Cannabis Dependence, [in] 13 reported remission." (Tr. at 299.) Mr. Clark did not diagnose any other mental disorders 14 but did note that Plaintiff presented "antisocial [and] avoidant features." (Tr. at 299.) Mr. 15 Clark concluded that Plaintiff's mental impairments resulted in several severe and marked 16 functional limitations on his ability to perform day-to-day tasks. (Tr. at 300.) Mr. Clark went on to diagnose Plaintiff with "Obsessive Compulsive 17 The ALJ rejected Mr. Clark's opinions because they "contrast[ed] sharply with the 18 other evidence of record." (Tr. at 27.) Mr. Clark, a therapist, is an "other source." 20 19 C.F.R. § 416.913(d)(1). "The ALJ may discount testimony from . . . 'other sources' if the 20 ALJ gives reasons germane to each witness for doing so." Molina, 674 F.3d at 1111. 21 Although it is true that several physicians diagnosed, or noted symptoms of, depression 22 and anxiety, not one physician opined that Plaintiff's mental impairments caused the 23 degree of functional limitation found by Mr. Clark. Furthermore, as noted by the ALJ, 24 Mr. Clark's diagnosis of OCD is unsupported by any objective medical evidence or other 25 evidence in the record. (Tr. at 27-28.) The Court agrees with the ALJ that Mr. Clark's 26 opinions concerning Plaintiff's functional limitations are inconsistent with the great weight 27 of medical evidence in the record. Inconsistency with medical evidence is a germane 28 reason to discredit other source testimony. Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT - 15 1 Cir. 2005). The ALJ did not err in rejecting Mr. Clark's opinions and did not err in finding 2 Plaintiff's mental impairments not severe. 3 4 4. Did the ALJ err by failing to complete a separate step five analysis separating the effects of drugs and alcohol from Plaintiff's impairments? 5 The ALJ declined to address "the materiality of drug and alcohol abuse" because the 6 ALJ found that Plaintiff did not have any severe mental impairments. (Tr. at 24.) Plaintiff 7 argues that the ALJ erred by failing to find that Plaintiff has a drug and alcohol addiction 8 (DAA) and by failing to conduct an alternate step five analysis to determine whether 9 Plaintiff's DAA materially contributed to his disability. 10 Generally, the Social Security Act bars payment of benefits when drug addiction 11 and/or alcoholism is a contributing factor material to a disability claim. 42 U.S.C. §§ 12 423(d)(2)(C) and 1382(a)(3)(J); Bustamante v. Massanari, 262 F.3d 949 (9th Cir. 2001). 13 A claimant has the burden of showing that DAA is not a contributing factor material to 14 disability. Ball v. Massanari, 254 F.3d 817, 823 (9th Cir.2001). If there is evidence from 15 an acceptable medical source that Plaintiff has a substance abuse disorder and the claimant 16 succeeds in proving disability, the Commissioner must determine whether DAA is 17 material to the determination of disability. 20 C.F.R. §§ 404.1535 & 416.935; SSR 132p 18 (Feb. 20, 2013), available at 2013 WL 621536. Conversely, if an ALJ finds that the 19 claimant is not disabled, then the claimant is not entitled to benefits and there is no need to 20 proceed with the analysis to determine whether substance abuse is a contributing factor 21 material to disability. 22 Plaintiff's argument is flawed because it is based on the assumption that the ALJ 23 erred by not finding Plaintiff disabled and not suffering from severe mental impairments. 24 But as discussed above, the ALJ did not err in either of these respects. Because the ALJ's 25 conclusion of nondisability is supported by substantial evidence and free from legal error, 26 the ALJ was not required to make alternate findings to determine whether Plaintiff would 27 be disabled if he stopped using drugs and alcohol. The ALJ did not err by not making an 28 alternate step five determination regarding the materiality of DAA. ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT - 16 1 CONCLUSION 2 Having reviewed the record and the ALJ's findings, the Court concludes the ALJ's 3 decision is supported by substantial evidence and is not based on legal error. Accordingly 4 IT IS ORDERED that: 5 1. Defendant's Motion for Summary Judgment, filed July 1, 2013, ECF No. 20, is 6 GRANTED. 2. Plaintiff's Motion for Summary Judgment, filed May 20, 2013, ECF No. 17, is 7 8 DENIED. The District Court Executive is directed to file this Order and provide copies to 9 10 counsel. Judgment shall be entered for Defendant and the file shall be CLOSED. DATED this 23 day of January, 2014. 11 12 13 14 15 01-08-14 s/ Wm. Fremming Nielsen WM. FREMMING NIELSEN SENIOR UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT - 17
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