Mekic v. Commissioner of Social Security, No. 2:2018cv00147 - Document 15 (E.D. Wash. 2019)
Court Description: ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 13 - denying 12 Plaintiff's Motion for Summary Judgment Signed by Senior Judge Robert H. Whaley. (VR, Courtroom Deputy)
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Mekic v. Commissioner of Social Security Doc. 15 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 1 Aug 27, 2019 2 SEAN F. MCAVOY, CLERK 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 HUSNIJA M., 8 Plaintiff, No. 2:18-CV-00147-RHW 9 v. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 10 11 12 13 COMMISSIONER OF SOCIAL SECURITY, Defendant. Before the Court are the parties’ cross-motions for summary judgment. ECF 14 Nos. 12, 13. Plaintiff brings this action seeking judicial review pursuant to 42 15 U.S.C. § 405(g) of the Commissioner of Social Security’s final decision, which 16 denied her application for Disability Insurance Benefits under Title II of the Social 17 Security Act, 42 U.S.C. § 401-434, and her application for Supplemental Security 18 Income under Title XVI of the Act, 42 U.S.C. §1381-1383F. See Administrative 19 Record (AR) at 1, 30, 44. After reviewing the administrative record and briefs filed 20 by the parties, the Court is now fully informed. For the reasons set forth below, the ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 1 Dockets.Justia.com 1 Court GRANTS Defendant’s Motion for Summary Judgment and DENIES 2 Plaintiff’s Motion for Summary Judgment. 3 4 I. Jurisdiction Plaintiff filed her applications for Disability Insurance Benefits and 5 Supplemental Security Income on April 14, 2015. See AR 30, 234-240, 241-46. In 6 both applications, Plaintiff’s initial alleged onset date of disability was August 1, 7 2013. 1 AR 234, 241. Plaintiff’s applications were initially denied on August 20, 8 2015, see AR 155-162, and on reconsideration on October 9, 2015. See AR 165- 9 176. Plaintiff then filed a request for a hearing on November 2, 2015. AR 177-78. 10 A hearing with Administrative Law Judge (“ALJ”) Jesse K. Shumway 11 occurred on February 23, 2017. AR 30, 68, 70. On April 13, 2017, the ALJ issued 12 a decision concluding that Plaintiff was not disabled as defined in the Act and was 13 therefore ineligible for disability benefits or supplemental security income. AR 27- 14 44. On March 14, 2018, the Appeals Council denied Plaintiff’s request for review, 15 AR 1-6, thus making the ALJ’s ruling the final decision of the Commissioner. See 16 20 C.F.R. § 404.981. 17 On May 11, 2018, Plaintiff timely filed the present action challenging the 18 denial of benefits. ECF No. 1. Accordingly, Plaintiff’s claims are properly before 19 this Court pursuant to 42 U.S.C. § 405(g). 20 1 Plaintiff later amended her alleged onset date to April 1, 2015. AR 30, 73. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 2 1 2 II. Five-Step Sequential Evaluation Process The Social Security Act defines disability as the “inability to engage in any 3 substantial gainful activity by reason of any medically determinable physical or 4 mental impairment which can be expected to result in death or which has lasted or 5 can be expected to last for a continuous period of not less than twelve months.” 42 6 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A claimant shall be determined to be 7 under a disability only if the claimant’s impairments are so severe that the claimant 8 is not only unable to do his or her previous work, but cannot, considering 9 claimant’s age, education, and work experience, engage in any other substantial 10 11 gainful work that exists in the national economy. 42 U.S.C. § 1382c(a)(3)(B). The Commissioner has established a five-step sequential evaluation process 12 for determining whether a claimant is disabled within the meaning of the Act. 20 13 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); Lounsburry v. Barnhart, 468 F.3d 1111, 14 1114 (9th Cir. 2006). 15 Step one inquires whether the claimant is presently engaged in “substantial 16 gainful activity.” 20 C.F.R. §§ 404.1520(b), 416.920(b). Substantial gainful 17 activity is defined as significant physical or mental activities done or usually done 18 for profit. 20 C.F.R. §§ 404.1572, 416.972. If the claimant is engaged in substantial 19 activity, he or she is not entitled to disability benefits. 20 C.F.R. §§ 404.1571, 20 416.920(b). If not, the ALJ proceeds to step two. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 3 1 Step two asks whether the claimant has a severe impairment, or combination 2 of impairments, that significantly limits the claimant’s physical or mental ability to 3 do basic work activities. 20 C.F.R. §§ 404.1520(c), 416.920(c). A severe 4 impairment is one that has lasted or is expected to last for at least twelve months, 5 and must be proven by objective medical evidence. 20 C.F.R. §§ 404.1508-09, 6 416.908-09. If the claimant does not have a severe impairment, or combination of 7 impairments, the disability claim is denied and no further evaluative steps are 8 required. Otherwise, the evaluation proceeds to the third step. 9 Step three involves a determination of whether one of the claimant’s severe 10 impairments “meets or equals” one of the listed impairments acknowledged by the 11 Commissioner to be sufficiently severe as to preclude substantial gainful activity. 12 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526 & 416.920(d), 416.925, 416.926; 13 20 C.F.R. § 404 Subpt. P. App. 1 (“the Listings”). If the impairment meets or 14 equals one of the listed impairments, the claimant is per se disabled and qualifies 15 for benefits. Id. If the claimant is not per se disabled, the evaluation proceeds to the 16 fourth step. 17 Step four examines whether the claimant’s residual functional capacity 18 enables the claimant to perform past relevant work. 20 C.F.R. §§ 404.1520(e)-(f), 19 416.920(e)-(f). If the claimant can still perform past relevant work, the claimant is 20 not entitled to disability benefits and the inquiry ends. Id. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 4 1 Step five shifts the burden to the Commissioner to prove that the claimant is 2 able to perform other work in the national economy, taking into account the 3 claimant’s age, education, and work experience. See 20 C.F.R. §§ 404.1512(f), 4 404.1520(g), 404.1560(c) & 416.912(f), 416.920(g), 416.960(c). To meet this 5 burden, the Commissioner must establish that (1) the claimant is capable of 6 performing other work; and (2) such work exists in “significant numbers in the 7 national economy.” 20 C.F.R. §§ 404.1560(c)(2); 416.960(c)(2); Beltran v. Astrue, 8 676 F.3d 1203, 1206 (9th Cir. 2012). 9 10 III. Standard of Review A district court’s review of a final decision of the Commissioner is governed 11 by 42 U.S.C. § 405(g). The scope of review under § 405(g) is limited, and the 12 Commissioner’s decision will be disturbed “only if it is not supported by 13 substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1144, 14 1158-59 (9th Cir. 2012) (citing § 405(g)). In reviewing a denial of benefits, a 15 district court may not substitute its judgment for that of the ALJ. Matney v. 16 Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992). When the ALJ presents a reasonable 17 interpretation that is supported by the evidence, it is not the role of the courts to 18 second-guess it. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). Even if 19 the evidence in the record is susceptible to more than one rational interpretation, if 20 inferences reasonably drawn from the record support the ALJ’s decision, then the ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 5 1 court must uphold that decision. Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2 2012); see also Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). 3 4 IV. Statement of Facts The facts of the case are set forth in detail in the transcript of proceedings 5 and only briefly summarized here. Plaintiff was 23 years old on the amended 6 alleged date of onset, which the regulations define as a younger individual. AR 7 109; see 20 C.F.R. § 404.1563. She attended school through the 10th grade and can 8 communicate in English. AR 42, 90, 276, 278. Plaintiff has no past relevant work. 9 AR 42. 10 11 V. The ALJ’s Findings The ALJ determined that Plaintiff was not under a disability within the 12 meaning of the Act at any time from April 1, 2015 (the amended alleged onset 13 date) through April 13, 2017 (the date the ALJ issued his decision). AR 44. 14 At step one, the ALJ found that Plaintiff had not engaged in substantial 15 gainful activity since the alleged onset date (citing 20 C.F.R. § 404.1571 et seq.). 16 AR 32. 17 At step two, the ALJ found Plaintiff had the following severe impairments: 18 personality disorder, cannabis use disorder, depression, and general anxiety 19 disorder (citing 20 C.F.R. § 404.1520(c)). AR 32-34. 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 6 1 At step three, the ALJ found that Plaintiff did not have an impairment or 2 combination of impairments that met or medically equaled the severity of one of 3 the listed impairments in 20 C.F.R. § 404, Subpt. P, Appendix 1. AR 34-36. 4 At step four, the ALJ found that Plaintiff had the residual functional 5 capacity to perform a full range of work at all levels of exertion. AR 36. However, 6 the ALJ found that Plaintiff had a number of non-exertional limitations, which 7 included: that she was limited to simple, routine tasks with reasoning levels of two 8 or less; that she needed to learn by demonstration; that she required a routine, 9 predictable work environment with no more than occasional changes and simple 10 decision-making; that she could only have occasional, superficial contact with the 11 public, supervisors, and coworkers; and, finally, that she could not engage in 12 collaborative tasks. AR 36. Transferability of job skills was not an issue because 13 Plaintiff had no past relevant work. AR 42. 14 At step five, the ALJ found that in light of Plaintiff’s age, education, work 15 experience, and residual functional capacity, there were jobs that existed in 16 significant numbers in the national economy that she could perform. AR 43. These 17 included a laundry worker, a small parts assembler, and an officer cleaner. AR 43. 18 In the alternative, the ALJ found that even if Plaintiff were limited to sedentary 19 work, she could still perform the jobs of a document preparer, a printed circuit 20 board assembler, and a charge account clerk. AR 43. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 7 1 VI. 2 Issues for Review Plaintiff argues that the Commissioner’s decision is not free of legal error 3 and not supported by substantial evidence. ECF No. 12 at 11. Specifically, she 4 argues the ALJ: (1) improperly discredited her subjective pain complaint 5 testimony; and (2) improperly weighed the medical opinion evidence. Id. 6 7 8 VII. Discussion A. The ALJ did not Improperly Reject Plaintiff’s Subjective Complaints Plaintiff argues the ALJ erred by discounting the credibility of her testimony 9 regarding her subjective symptoms. ECF No. 12 at 11-12. Specifically, she argues 10 that the ALJ attributed her psychological symptoms solely to her substance abuse 11 problems, but contends she quit using marijuana a year before the hearing. Id. at 12 11. She argues that even after quitting marijuana, she continued suffering from 13 significant psychological symptoms. Id. 14 An ALJ engages in a two-step analysis to determine whether a claimant’s 15 testimony regarding subjective symptoms is credible. Tommasetti v. Astrue, 533 16 F.3d 1035, 1039 (9th Cir. 2008). First, the claimant must produce objective 17 medical evidence of an underlying impairment or impairments that could 18 reasonably be expected to produce some degree of the symptoms alleged. Id. 19 Second, if the claimant meets this threshold, and there is no affirmative evidence 20 suggesting malingering, the ALJ can reject the claimant’s testimony about the ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 8 1 severity of her symptoms only by offering “specific, clear, and convincing 2 reasons” for doing so. Id. 3 In weighing a claimant’s credibility, the ALJ may consider many factors, 4 including, “(1) ordinary techniques of credibility evaluation, such as the claimant’s 5 reputation for lying, prior inconsistent statements concerning the symptoms, and 6 other testimony by the claimant that appears less than candid; (2) unexplained or 7 inadequately explained failure to seek treatment or to follow a prescribed course of 8 treatment; and (3) the claimant’s daily activities.” Smolen v. Chater, 80 F.3d 1273, 9 1284 (9th Cir. 1996). 10 Here, the ALJ found that the medically determinable impairments could 11 reasonably be expected to produce some degree of the symptoms Plaintiff alleged. 12 AR 36. However, the ALJ determined that Plaintiff’s statements concerning the 13 intensity, persistence, and limiting effects of her symptoms were not entirely 14 consistent with the medical evidence and other evidence in the record. AR 36-37. 15 As an initial matter, the ALJ found evidence of malingering, which Plaintiff 16 does not contest. AR 37-39; ECF No. 12 at 11-12. Plaintiff underwent a 17 psychological evaluation in September 2016. AR 778-782. Although the 18 examining psychologist noted Plaintiff’s significant deficits in cognitive 19 functioning, she found that Plaintiff “appeared to be malingering.” AR 780-81. 20 Despite Plaintiff’s difficulty understanding words, responding to questions, and ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 9 1 struggling with directions, “she was able to sign in and navigate the computer 2 system at DSHS with absolutely no difficulty or assistance.” AR 780. The 3 psychologist noted that Plaintiff “did not put forth valid effort” during testing, that 4 her performance was “very inconsistent,” and that “her difficulties bec[ame] 5 progressively more pronounced as the evaluation progressed.” AR 780-81. The 6 psychologist then administered a test specifically designed to measure memory 7 malingering, with positive results. AR 781. The psychologist diagnosed Plaintiff 8 with malingering and concluded that her poor test scores did “not seem an accurate 9 reflection of her functioning.” AR 781. Affirmative evidence of malingering 10 supports rejecting a claimant’s testimony. See Benton ex. el. Benton v. Barnhart, 11 331 F.3d 1030, 1040 (9th Cir. 2003). 12 In addition to the evidence of malingering, the ALJ offered four clear and 13 convincing reasons for discrediting Plaintiff’s subjective complaint testimony and 14 supported those reasons with specific references to the medical record. See AR 36- 15 40. First, the ALJ reasoned that Plaintiff’s mental examination and observational 16 findings throughout the treatment record were generally inconsistent with her 17 alleged level of limitation. AR 37. The ALJ noted that essentially none of 18 Plaintiff’s monthly mental status examinations indicated or suggested any 19 significant psychological abnormalities. AR 37-38; see AR 498-99, 500-01, 502- 20 03, 550, 556, 560, 753-54, 757-58, 761-62, 765-66, 770-71, 796, 820-21, 824-25. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 10 1 The ALJ acknowledged that Plaintiff demonstrated significant mental limitations 2 in three consultative examinations (including the one discussed above) but 3 discounted their reliability, given that the examiners all opined that Plaintiff was 4 either malingering or under the influence of substances during the examinations. 5 AR 37-39. An ALJ may discount a claimant’s subjective symptom testimony when 6 it is inconsistent with the medical evidence. Carmickle v. Comm’r of Soc. Sec. 7 Admin., 533 F.3d 1155, 1161 (9th Cir. 2008); Tonapetyan v. Halter, 242 F.3d 8 1144, 1148 (9th Cir. 2001). 9 Plaintiff argues that the “ALJ concluded that [her] symptoms were due to 10 substance abuse,” and contends this was error because she “had stopped smoking 11 marijuana at least a year before the hearing.” 2 ECF No. 12 at 11. Plaintiff fails to 12 specify where the ALJ concluded that her psychological symptoms were due to 13 marijuana use. Id. However, it appears she is referring to the two consultative 14 examinations that the ALJ discounted—despite her exhibiting significant mental 15 limitations—because she was under the influence of substances during those 16 examinations. AR 37-38. 17 The ALJ first noted a physical consultative examination in July 2015 during 18 which the physician noted that Plaintiff had substantial issues answering questions, 19 2 20 Although Plaintiff testified at the hearing that she had stopped using marijuana a year prior, see AR 92-93, the ALJ specifically found that this statement was not credible in light of the medical expert’s express opinion to the contrary. AR 39; see AR 74-78, 89. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 11 1 following instructions, and with mental function. AR 37, 618-620. The physician 2 believed this indicated “extreme sedation and/or medication-related intoxication.” 3 AR 620. The ALJ also noted a psychiatric consultative examination during which 4 Plaintiff also exhibited significant mental issues. AR 38, 627-29. The psychiatrist, 5 Dr. Amy Dowell, noted that during the examination, Plaintiff “appeared to be on 6 the edge of nodding off,” “her eyes would appear to roll back in her head as she 7 was talking,” she “was wobbly when she walked,” and “appeared to be under the 8 influence of an unknown substance.” AR 628. Dr. Dowell opined that if Plaintiff 9 “were sober and not on any medications or substances, she likely would have 10 performed much better during this evaluation.” AR 629. The ALJ noted that 11 Plaintiff’s performance during these examinations was highly inconsistent with her 12 treatment notes from around the same time, which did not indicate any cognitive 13 issues. AR 38; see AR 639-650. 14 Contrary to Plaintiff’s suggestion, the ALJ did not conclude that all her 15 symptoms were caused by her substance abuse and then discount her credibility on 16 this sole basis. Rather, the ALJ reasoned that the limitations Plaintiff demonstrated 17 during these two consultative examinations were not accurate, given that Plaintiff 18 was under the influence of substances during them. The ALJ then found that 19 Plaintiff treatment notes were a more reliable indicator of her true mental abilities. 20 This was not improper. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 12 1 2 /// In any event, the ALJ provided three additional clear and convincing reasons 3 for discounting Plaintiff’s subjective complaint testimony, none of which are 4 contested. See ECF No. 12 at 11-12. Second, the ALJ discounted Plaintiff’s 5 subjective complaint testimony because of her noncompliance with recommended 6 treatment. AR 37. The ALJ noted that in January and February 2015, Plaintiff 7 missed several scheduled counseling sessions. AR 37; see AR 560-66. The 8 therapist called Plaintiff, left voicemail messages, and then sent multiple follow-up 9 letters. AR 562, 564, 566. Each letter scheduled a time for a new appointment and 10 advised Plaintiff that if she continued to miss sessions, therapy would be 11 terminated. AR 562, 564, 566. Plaintiff did not respond and the therapist closed her 12 file. AR 561. Even after she began attending treatment again, her treatment record 13 contains nearly two dozen other instances of missed appointments, despite the 14 therapist stressing the importance of attendance.3 See AR 658, 663, 664, 667, 668, 15 671, 673, 675, 687, 689, 692, 694, 701, 702, 703, 725, 728, 741, 745, 787, 790, 16 795. Following these missed sessions, the therapist again sent Plaintiff letters 17 scheduling new appointments and advising her that if she did not attend, therapy 18 3 19 20 Even when she did attend treatment, Plaintiff’s therapist noted that she “appeared disengaged and distracted by her cell phone throughout session.” AR 556. She was often disinterested in therapy and was mainly concerned with her counselors providing the Department of Social and Health Services information about her attendance. AR 550, 556. This suggested to the ALJ that her reason for attending treatment was maintaining benefits rather than an actual belief that she was impaired. AR 37. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 13 1 would be terminated. AR 673, 791. Plaintiff again did not respond and the therapist 2 closed her file. AR 795, 800. The ALJ found that Plaintiff’s failure to attend 3 treatment suggested that she did not believe that her impairments were serious 4 enough to require treatment. AR 37. An ALJ may properly discount a claimant’s 5 subjective complaints when treatment is inconsistent with the level of complaints 6 or a claimant is not following prescribed treatment without good reason. Molina, 7 674 F.3d at 1114; Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). If a claimant’s 8 condition is not severe enough to motivate them to follow the prescribed course of 9 treatment, this calls their alleged limitations into question. Burch v. Barnhart, 400 10 11 F.3d 676, 681 (9th Cir. 2005). Third, the ALJ discounted Plaintiff’s subjective complaints because her lack 12 of ongoing employment was due to a factor unrelated to her allegedly disabling 13 impairments. AR 39. In November 2015, Plaintiff applied for a job but was 14 rejected because she failed the drug test. AR 669. She then stated, “I failed it but I 15 am not going to stop smoking weed because it’s how I cope. I don’t care.” AR 669. 16 The ALJ reasoned that if Plaintiff was as severely limited as she alleged, it was 17 unlikely that she would have been seeking employment. AR 38. Thus, the ALJ 18 concluded that Plaintiff’s main barrier to employment was not her psychological 19 conditions, but her “refusal to give up marijuana in order to pass an employer’s 20 drug screen.” AR 40. Lack of ongoing employment due to factors unrelated to ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 14 1 one’s allegedly disabling impairments is a sufficient basis to discredit subjective 2 pain testimony. Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001). 3 Finally, the ALJ discounted Plaintiff’s subjective complaints of completely 4 disabling limitations because they were belied by her daily activities. AR 39. The 5 ALJ noted that Plaintiff is generally able to engage in day-to-day activities, 6 including doing the laundry, cooking, doing chores, and being the primary 7 caregiver for her young child. AR 39; see AR 96-97, 100. The ALJ found that 8 these activities were inconsistent with Plaintiff’s claimed limitations and spoke to 9 her generally intact functioning. AR 39. Activities inconsistent with the alleged 10 symptoms—even when they suggest some difficulty functioning—are proper 11 grounds for questioning the credibility of subjective complaints when the person 12 claims a totally disabling impairment. Molina, 674 F.3d at 1113; see also Rollins, 13 261 F.3d at 857; 20 C.F.R. §§ 404.1529(c)(3)(i). 14 When the ALJ presents a reasonable interpretation that is supported by 15 substantial evidence, it is not the Court’s role to second-guess it. For the reasons 16 discussed above, the ALJ did not err when discounting Plaintiff’s subjective 17 complaint testimony because there was evidence of malingering, and ALJ also 18 provided four clear and convincing reasons for doing so. 19 /// 20 /// ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 15 1 2 B. The ALJ did not Err in Weighing the Medical Opinion Evidence Plaintiff argues the ALJ erred in weighing the medical opinion evidence 3 from four providers: (1) examining psychiatrist Dr. Amy Dowell, M.D.; and (2) 4 examining counselor Angela Velasco, examining counselor Steven Sample, and 5 intern Chante Alvarado. ECF No. 12 at 12. 6 1. 7 Title II’s implementing regulations distinguish among the opinions of three Dr. Amy Dowell 8 types of physicians: (1) those who treat the claimant (treating physicians); (2) those 9 who examine but do not treat the claimant (examining physicians); and (3) those 10 who neither examine nor treat the claimant but who review the claimant’s file 11 (non-examining physicians). Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th 12 Cir. 2001); see 20 C.F.R. § 404.1527(c)(1)-(2). Generally, a treating physician’s 13 opinion carries more weight than an examining physician’s, and an examining 14 physician’s opinion carries more weight than a non-examining physician’s. 15 Holohan, 246 F.3d at 1202. 16 If a treating or examining doctor’s opinion is contradicted by another 17 doctor’s opinion—as Dr. Dowell’s is—an ALJ may only reject it by providing 18 “specific and legitimate reasons that are supported by substantial evidence.” 19 Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). An ALJ satisfies the 20 “specific and legitimate” standard by “setting out a detailed and thorough summary ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 16 1 of the facts and conflicting clinical evidence, stating her [or her] interpretation 2 thereof, and making findings.” Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 3 2014) (internal quotation marks omitted). In contrast, an ALJ fails to satisfy the 4 standard when she or she “rejects a medical opinion or assigns it little weight while 5 doing nothing more than ignoring it, asserting without explanation that another 6 medical opinion is more persuasive, or criticizing it with boilerplate language that 7 fails to offer a substantive basis for her [or her] conclusion.” Id. at 1012-13. 8 9 Dr. Dowell is an examining psychiatrist who evaluated Plaintiff in August 2015. AR 626-630. Dr. Dowell opined that Plaintiff would have difficulty 10 performing detailed and complex tasks but “would not have difficulty performing 11 simple and routine tasks” like working in a deli. AR 630. She opined that Plaintiff 12 “would have difficulty performing work activities on a consistent basis without 13 special or additional instruction.” AR 630. 14 However, as discussed above, Dr. Dowell also noted that during the 15 examination, Plaintiff “appeared to be on the edge of nodding off,” “her eyes 16 would appear to roll back in her head as she was talking,” she “was wobbly when 17 she walked,” and “appeared to be under the influence of an unknown substance.” 4 18 AR 628. Dr. Dowell opined that if Plaintiff “were sober and not on any 19 20 4 Plaintiff argues that she was “tired and not feeling well that day and that was the reason that she appeared to be under the influence of a substance.” ECF No. 12 at 12; see AR 98. Although this is one interpretation of the evidence, the ALJ concluded differently and substantial evidence supports the ALJ’s conclusion. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 17 1 medications or substances, she likely would have performed much better during 2 this evaluation.” AR 629. 3 The ALJ assigned little weight to Dr. Dowell’s opinion. AR 41. First, as 4 discussed above, the ALJ discounted the results of this examination because 5 Plaintiff was under the influence during the examination and could have performed 6 better if she were sober. AR 41; see infra at 12. This was proper. See Cooper v. 7 Colvin, No. 2:13-CV-1693 CKD, 2014 WL 5473128, at *3 (E.D. Cal. 2014) 8 (holding that ALJ properly gave little weight to consultative psychologist’s opinion 9 because claimant engaged in substance abuse at the time of the evaluation, which 10 undermined the validity of the examination findings); see also Edlund v. 11 Massanari, 253 F.3d 1152, 1159 (9th Cir. 2001); Morgan v. Comm’r of the Soc. 12 Sec. Admin., 169 F.3d 595, 602-03 (9th Cir. 1999). Second, the ALJ discounted Dr. 13 Dowell’s opinion because it was inconsistent with Plaintiff’s treatment notes, 14 which contained no suggestion of a cognitive impairment or other noteworthy 15 abnormalities. AR 41; see infra at 10-11. This was also proper. See Batson v. 16 Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004); Morgan, 169 17 F.3d at 602. 18 /// 19 /// 20 /// ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 18 1 2. 2 3 Nonmedical “Other Source” Opinions a. Lower legal standard Importantly, the “specific and legitimate” standard discussed above only 4 applies to evidence from “acceptable medical sources.” Molina, 674 F.3d at 1111. 5 These include licensed physicians (e.g., Dr. Dowell), licensed psychologists, and 6 various other specialists. See former 20 C.F.R. §§ 404.1513(a) (2014). 7 “Other sources” for opinions—such as nurse practitioners, physician’s 8 assistants, therapists, teachers, social workers, chiropractors, and other nonmedical 9 sources—are not entitled to the same deference as acceptable medical sources.5 10 Molina, 674 F.3d at 1111; Dale v. Colvin, 823 F.3d 941, 943 (9th Cir. 2016); see 11 20 C.F.R. § 404.1527(f). An ALJ may discount a nonmedical source’s opinion by 12 providing reasons “germane” to each witness for doing so. Popa v. Berryhill, 872 13 F.3d 901, 906 (9th Cir. 2017); Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993). 14 b. Angela Velasco, Steven Sample, Chante Alvarado 15 Plaintiff also contends the ALJ erred in considering the opinions of 16 examining counselor Angela Velasco, examining counselor Steven Sample, and 17 intern Chante Alvarado. ECF No. 12 at 12. These providers evaluated Plaintiff and 18 submitted “WorkFirst” assessment forms to the Washington State Department of 19 5 20 For claims filed on or after March 27, 2017, licensed nurse practitioners and physician assistants can qualify as acceptable medical sources in certain situations. See 20 C.F.R. § 404.1502(a)(7)-(8). ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 19 1 Social and Health Services as part of Plaintiff’s application for state public 2 assistance benefits. See AR 469-72, 476-79, 481-83, 802-04; ECF No. 12 at 7-9. 3 The ALJ assigned little weight to these providers’ opined limitations. AR 41. 4 As an initial matter, both of Chante Alvarado’s assessments were completed before 5 Plaintiff’s alleged onset of disability. 6 See AR 30 (alleged onset date of April 1, 6 2015), 469-71 (assessment dated October 13, 2014), 476-78 (assessment dated 7 December 17, 2014). Medical opinions that predate the alleged onset of disability 8 are of limited relevance. Carmickle, 533 F.3d at 1165. 9 Moreover, Angela Velasco noted that Plaintiff’s conditions were not 10 permanent and would only limit her ability to work for six months. See AR 482. 11 Medical opinions that assess only temporary limitations lasting less than 12 months 12 are of little probative value. See Carmickle, 533 F.3d at 1165 (explaining that 13 doctor’s “two-week excuse from work” was not indicative of “claimant’s long- 14 term functioning”); Cf. 42 U.S.C. § 423(d)(1)(A). 15 Additionally, the ALJ assigned these assessment forms little weight because 16 they were “little more than check box forms with little explanation or support,” and 17 “provide[d] no explanation as to the extent of [Plaintiff’s mental] limitations.” AR 18 41. This was proper. Bayliss, 427 F.3d at 1216 (ALJs need not accept opinions that 19 20 6 In any event, Ms. Alvarado actually opined that Plaintiff was able to work, see AR 476, contradicting Plaintiff’s assertions to the contrary. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 20 1 are brief, conclusory, and inadequately supported by clinical findings); Holohan, 2 246 F.3d at 1202 (explained opinions are afforded more weight than unexplained 3 ones). 4 Finally, the ALJ assigned these assessment forms little weight because they 5 were inconsistent with Plaintiff’s treatment notes, which did not indicate any 6 noteworthy abnormalities. AR 41; see infra at 10-11. This was also proper. See 7 Batson, 359 F.3d at 1195; Morgan, 169 F.3d at 602. 8 VIII. Order 9 Having reviewed the record and the ALJ’s findings, the Court finds the 10 ALJ’s decision is supported by substantial evidence and is free from legal error. 11 Accordingly, IT IS ORDERED: 12 1. Plaintiff’s Motion for Summary Judgment, ECF No. 12, is DENIED. 13 2. Defendant’s Motion for Summary Judgment, ECF No. 13, is GRANTED. 14 3. Judgment shall be entered in favor of Defendant and the file shall be 15 CLOSED. 16 IT IS SO ORDERED. The District Court Executive is directed to enter this 17 Order, forward copies to counsel, and close the file. 18 DATED this 27th day of August, 2019. 19 20 s/Robert H. Whaley ROBERT H. WHALEY Senior United States District Judge ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 21
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