Manship v. Commissioner of Social Security, No. 4:2016cv05153 - Document 22 (E.D. Wash. 2018)

Court Description: ORDER Granting 20 Defendant's Motion for Summary Judgment. Signed by Magistrate Judge John T. Rodgers. (MO, Courtroom Deputy)

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Manship v. Commissioner of Social Security Doc. 22 1 2 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 3 Jan 24, 2018 4 SEAN F. MCAVOY, CLERK 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 10 ROBERT MANSHIP, No. 4:16-cv-05153-JTR Plaintiff, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 11 12 13 14 15 v. COMMISSIONER OF SOCIAL SECURITY, Defendant. 16 17 BEFORE THE COURT are cross-motions for summary judgment. ECF 18 Nos. 19, 20. Attorney Chad Hatfield represents Robert Manship (Plaintiff); 19 Special Assistant United States Attorney Franco L. Becia represents the 20 Commissioner of Social Security (Defendant). The parties have consented to 21 proceed before a magistrate judge. ECF No. 4. After reviewing the administrative 22 record and briefs filed by the parties, the Court GRANTS Defendant’s Motion for 23 Summary Judgment and DENIES Plaintiff’s Motion for Summary Judgment. 24 JURISDICTION 25 Plaintiff filed applications for Supplemental Security Income (SSI) and 26 Disability Insurance Benefits (DIB) on October 30, 2012, Tr. 266, alleging 27 disability since April 30, 2012, Tr. 187-209, due to learning disabilities, cognitive 28 disorder, anxiety, attention deficit hyperactivity disorder (ADHD), bipolar mood ORDER GRANTING DEFENDANT’S MOTION . . . - 1 Dockets.Justia.com 1 disorder, and schizophrenia, Tr. 269. The applications were denied initially and 2 upon reconsideration. Tr. 131-38, 141-47. Administrative Law Judge (ALJ) 3 Caroline Siderius held a hearing on March 11, 2015 and heard testimony from 4 Plaintiff, psychological expert, Stephen Rubin, Ph.D., and vocational expert, K. 5 Diane Kramer. Tr. 43-84. The ALJ issued an unfavorable decision on June 15, 6 2015. Tr. 23-38. The Appeals Council denied review on September 26, 2016. Tr. 7 1-4. The ALJ’s June 15, 2015 decision became the final decision of the 8 Commissioner, which is appealable to the district court pursuant to 42 U.S.C. § 9 405(g). Plaintiff filed this action for judicial review on November 23, 2016. ECF 10 Nos. 1, 9. STATEMENT OF FACTS 11 The facts of the case are set forth in the administrative hearing transcript, the 12 13 ALJ’s decision, and the briefs of the parties. They are only briefly summarized 14 here. 15 Plaintiff was 24 years old at the alleged date of onset. Tr. 187. He attended 16 special education classes in school and completed the twelfth grade in 2006. Tr. 17 270. His reported work history includes the jobs of asbestos remover, construction 18 laborer, freight unloader, general laborer, and restaurant worker. Tr. 271, 276, 19 286. Plaintiff reported that he stopped working on April 23, 2012 due to his 20 conditions. Tr. 270. 21 22 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 23 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 24 1039 (9th Cir. 1995). The Court reviews the ALJ’s determinations of law de novo, 25 deferring to a reasonable interpretation of the statutes. McNatt v. Apfel, 201 F.3d 26 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed only if it is 27 not supported by substantial evidence or if it is based on legal error. Tackett v. 28 Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as ORDER GRANTING DEFENDANT’S MOTION . . . - 2 1 being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put 2 another way, substantial evidence is such relevant evidence as a reasonable mind 3 might accept as adequate to support a conclusion. Richardson v. Perales, 402 4 U.S. 389, 401 (1971). If the evidence is susceptible to more than one rational 5 interpretation, the court may not substitute its judgment for that of the ALJ. 6 Tackett, 180 F.3d at 1097. If substantial evidence supports the administrative 7 findings, or if conflicting evidence supports a finding of either disability or non- 8 disability, the ALJ’s determination is conclusive. Sprague v. Bowen, 812 F.2d 9 1226, 1229-30 (9th Cir. 1987). Nevertheless, a decision supported by substantial 10 evidence will be set aside if the proper legal standards were not applied in 11 weighing the evidence and making the decision. Brawner v. Secretary of Health 12 and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). 13 14 SEQUENTIAL EVALUATION PROCESS The Commissioner has established a five-step sequential evaluation process 15 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 16 416.920(a); see Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). In steps one 17 through four, the burden of proof rests upon the claimant to establish a prima facie 18 case of entitlement to disability benefits. Tackett, 180 F.3d at 1098-99. This 19 burden is met once the claimant establishes that physical or mental impairments 20 prevent him from engaging in his previous occupations. 20 C.F.R. §§ 21 404.1520(a)(4), 416.920(a)(4). If the claimant cannot do his past relevant work, 22 the ALJ proceeds to step five, and the burden shifts to the Commissioner to show 23 that (1) the claimant can make an adjustment to other work, and (2) specific jobs 24 exist in the national economy which the claimant can perform. Batson v. Comm’r 25 of Soc. Sec. Admin., 359 F.3d 1190, 1193-94 (9th Cir. 2004). If the claimant 26 cannot make an adjustment to other work in the national economy, a finding of 27 “disabled” is made. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 28 ORDER GRANTING DEFENDANT’S MOTION . . . - 3 1 ADMINISTRATIVE DECISION 2 On June 15, 2015, the ALJ issued a decision finding Plaintiff was not 3 disabled as defined in the Social Security Act. At step one, the ALJ found Plaintiff had not engaged in substantial gainful 4 5 activity since April 30, 2012, the alleged date of onset. Tr. 25 At step two, the ALJ determined Plaintiff had the following severe 6 7 impairments: borderline IQ; drug abuse and alcoholism; anxiety; and depression. 8 Tr. 25. 9 At step three, the ALJ found Plaintiff did not have an impairment or 10 combination of impairments that met or medically equaled the severity of one of 11 the listed impairments. Tr. 26. At step four, the ALJ assessed Plaintiff’s residual function capacity and 12 13 determined he could perform work at all exertional levels with the following 14 nonexertional limitations: 15 simple, routine 1-2 step tasks (no detailed work); only rare changes in work duties; repetitive, well learned tasks; ordinary production requirements in a low stress work environment; superficial, brief, noncollaborative contact with coworkers and supervisors; and little if no public contact. 16 17 18 19 20 Tr. 27-28. The ALJ identified Plaintiff’s past relevant work as general laborer, 21 asbestos removal worker, fence installer, janitor, cashier II, and material handler 22 and concluded that Plaintiff was not able to perform this past relevant work. Tr. 23 36. 24 At step five, the ALJ determined that, considering Plaintiff’s age, education, 25 work experience and residual functional capacity, and based on the testimony of 26 the vocational expert, there were other jobs that exist in significant numbers in the 27 national economy Plaintiff could perform, including the jobs of laundry worker 28 and production helper. Tr. 37. The ALJ concluded Plaintiff was not under a ORDER GRANTING DEFENDANT’S MOTION . . . - 4 1 disability within the meaning of the Social Security Act at any time from April 30, 2 2012, through the date of the ALJ’s decision. Id. ISSUES 3 The question presented is whether substantial evidence supports the ALJ’s 4 5 decision denying benefits and, if so, whether that decision is based on proper legal 6 standards. Plaintiff contends the ALJ erred by (1) failing to properly weigh the 7 medical opinions and (2) failing to make a proper step five determination. DISCUSSION 8 9 10 1. Medical Opinions Plaintiff argues the ALJ failed to properly consider and weigh the medical 11 opinions expressed by Philip G. Barnard, Ph.D., N.K. Marks, Ph.D., and Jill 12 Gerber, MA, LMHC, CDP. ECF No. 19 at 9-15. 13 In weighing medical source opinions, the ALJ should distinguish between 14 three different types of physicians: (1) treating physicians, who actually treat the 15 claimant; (2) examining physicians, who examine but do not treat the claimant; 16 and, (3) nonexamining physicians who neither treat nor examine the claimant. 17 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). The ALJ should give more 18 weight to the opinion of a treating physician than to the opinion of an examining 19 physician. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). Likewise, the ALJ 20 should give more weight to the opinion of an examining physician than to the 21 opinion of a nonexamining physician. Id. 22 When an examining physician’s opinion is not contradicted by another 23 physician, the ALJ may reject the opinion only for “clear and convincing” reasons, 24 and when an examining physician’s opinion is contradicted by another physician, 25 the ALJ is only required to provide “specific and legitimate reasons” to reject the 26 opinion. Lester, 81 F.3d at 830-31. The specific and legitimate standard can be 27 met by the ALJ setting out a detailed and thorough summary of the facts and 28 conflicting clinical evidence, stating her interpretation thereof, and making ORDER GRANTING DEFENDANT’S MOTION . . . - 5 1 findings. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). The ALJ is 2 required to do more than offer her conclusions, she “must set forth [her] 3 interpretations and explain why they, rather than the doctors’, are correct.” 4 Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988). 5 A. 6 Dr. Barnard completed a Psychological/Psychiatric Evaluation on September Philip G. Barnard, Ph.D. 7 19, 2012. Tr. 357-61. He diagnosed Plaintiff with ADHD/combined type, 8 cognitive disorder not otherwise specified, and learning disorder not otherwise 9 specified. Tr. 358. He gave Plaintiff a GAF of 60. Tr. 359. He opined that 10 Plaintiff had a severe limitation in the abilities to (1) perform activities within a 11 schedule, maintain regular attendance, and be punctual within customary 12 tolerances without special supervision, (2) learn new tasks, (3) complete a normal 13 work day and work week without interruptions from psychologically based 14 symptoms, and (4) maintain appropriate behavior in a work setting. Tr. 359. He 15 opined that Plaintiff had a marked limitation in the abilities to (1) understand, 16 remember, and persist in tasks by following detailed instructions, (2) perform 17 routine tasks without special supervision, (3) adapt to changes in a routine work 18 setting, (4) make simple work-related decisions, (5) communicate and perform 19 effectively in a work setting, and (6) set realistic goals and plan independently. Id. 20 Additionally, he opined that Plaintiff had moderate limitations in the abilities to (1) 21 understand, remember, and persist in tasks by following very short and simple 22 instructions, (2) be aware of normal hazards and take appropriate precautions, and 23 (3) ask simple questions or request assistance. Id. 24 The ALJ gave Dr. Barnard’s opinion “little weight” because (1) it was 25 internally inconsistent, (2) it was inconsistent with Plaintiff’s reported daily 26 activities, and (3) Dr. Barnard referred Plaintiff to Division of Vocational 27 Rehabilitation (DVR). Tr. 34. Plaintiff asserts that these reasons fail to meet even 28 the lowest threshold of the specific and legitimate standard. ECF No. 19 at 12. ORDER GRANTING DEFENDANT’S MOTION . . . - 6 1 Defendant’s briefing appears to assert that the ALJ was only required to provide 2 specific and legitimate reasons. ECF No. 20 at 6-7. The Court finds that the ALJ 3 was required to meet the specific and legitimate standard when providing reasons 4 for discounting Dr. Barnard’s opinion because it is contrary to the opinions of 5 nonexamining psychologists, Jerry Gardner, Ph.D. and Kent Reade, Ph.D., that 6 Plaintiff was able to understand, remember, and carry out simple routine tasks, 7 sustain concentration persistence and pace for simple routine tasks, and maintain 8 superficial interactions with co-workers and supervisor. Tr. 93-94, 116-17. 9 The opinion of a nonexamining physician cannot by itself constitute 10 substantial evidence that justifies the rejection of the opinion of either an 11 examining physician. Lester, 81 F.3d at 831. However, an ALJ may reject the 12 testimony of an examining physician, in favor of a nonexamining physician when 13 she gives specific, legitimate reasons for doing so, and those reasons are supported 14 by substantial evidence in the record. See Roberts v. Shalala, 66 F.3d 179, 184 15 (9th Cir. 1995) (upholding ALJ’s decision to reject the examining psychologist’s 16 functional assessment that conflicted with his own written report and test results). 17 The ALJ’s first reason for rejecting Dr. Barnard’s opinion, that it was 18 internally inconsistent, meets the specific and legitimate standard. An ALJ 19 rejecting an opinion due to internal inconsistencies meets the heightened standard 20 of clear and convincing. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 21 The ALJ stated that the level of limitations opined was inconsistent with the global 22 assessment of function (GAF) score of 60. Tr. 34. The DSM-IV-TR defines a 23 GAF score from 51 to 60 as “Moderate symptoms (e.g., flat affect and 24 circumstantial speech, occasional panic attacks) OR moderate difficulty in social, 25 occupational, or school functioning (e.g., few friends, conflicts with peers or co- 26 workers),” and a GAF score from 61 to 70 as “Some mild symptoms (e.g., 27 depressed mood and mild insomnia) OR some difficulty in social, occupational, or 28 school functioning (e.g., occasional truancy, or theft within the household), but ORDER GRANTING DEFENDANT’S MOTION . . . - 7 1 generally functioning pretty well, has some meaningful interpersonal 2 relationships.”1 AM. PSYCHIATRIC ASS’N, DIAGNOSTIC AND STATISTICAL MANUAL 3 OF MENTAL DISORDERS 4 measure a claimant’s ability to function in a work setting, Garrison v. Colvin, 759 5 F.3d 995, 1002 n.4 (9th Cir. 2014), the Social Security Administration has 6 endorsed their use as evidence of mental functioning for a disability analysis. SSA 7 Revised Administrative Message 13066 (“AM-13066-REV”) (effective October 8 14, 2014); See Craig v. Colvin, 659 Fed.Appx 381, 382 (9th Cir. 2016). Therefore, 9 the GAF score is substantial evidence, and the ALJ did not error in her reliance on 10 11 34 (4th ed. TR 2000). Although GAF scores alone do not the score in judging the internal consistency of Dr. Barnard’s opinion. Plaintiff additionally argued that the GAF of 60 is not inconsistent with the 12 limitations opined because the limitations are the result of a low IQ which is not 13 reflected in a GAF score. ECF No. 19 at 10. However, “[t]he GAF scale is to be 14 rated with respect only to psychological, social, and occupational functioning,” and 15 the diagnosis of a learning disability includes the consideration of Plaintiff’s IQ 16 score. AM. PSYCHIATRIC ASS’N, DSM-IV-TR at 32, 49, 56. Therefore, the GAF 17 score of 60 includes a consideration of Plaintiff’s IQ score, and the ALJ did not 18 error in her reliance on the score when weighing Dr. Barnard’s opinion. 19 The ALJ’s second reason, that the opinion was inconsistent with Plaintiff’s 20 daily activities, meets the specific and legitimate standard. A claimant’s testimony 21 about his daily activities may be seen as inconsistent with the presence of a 22 23 1 The DSM-5, which was released in May of 2013 and after Dr. Barnard’s 24 opinion, eliminated the GAF scale stating “[i]t was recommended that the GAF be 25 dropped from DSM-5 for several reasons, including its conceptual lack of clarity 26 (i.e., including symptoms, suicide risk, and disabilities in its descriptors) and 27 questionable psychometrics in routine practice.” AM. PSYCHIATRIC ASS’N, 28 DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 16 (5th ed. 2013). ORDER GRANTING DEFENDANT’S MOTION . . . - 8 1 disabling condition. See Curry v. Sullivan, 925 F.2d 1127, 1130 (9th Cir. 1990). 2 In this case, the ALJ found that Plaintiff’s activities of babysitting an infant, taking 3 care of himself, cleaning and mowing the lawn, cooking, surfing the internet, 4 working on game systems, playing the guitar, and maintain at least one friendship 5 and one relationship with a significant other suggested he had “better cognitive and 6 social abilities than he demonstrated and Dr. Barnard found.” Tr. 34. Plaintiff 7 asserts that these activities are not consistent with the ability to perform work. 8 ECF No. 19 at 11. However, the ALJ does not find that Plaintiff’s activities show 9 that he is capable of work activity, but that the activities are inconsistent with the 10 opined limitation. Tr. 34. Therefore, this reason meets the specific and legitimate 11 reason. 12 The ALJ’s third reason is that Dr. Barnard referred Plaintiff to DVR. The 13 Ninth Circuit has held that “[a] willingness to try to engage in rehabilitative 14 activity and a release by one’s doctor to engage in such an attempt is clearly not 15 probative of a present ability to engage in such activity.” Cox v. Califano, 587 16 F.2d 988, 991 (9th Cir. 1978). In Cox, the ALJ improperly relied on a treating 17 doctor’s referral to vocational rehabilitation as proof of the claimant’s ability to 18 work. Id. Here, the ALJ did not base her finding of nondisability on Dr. Barnard’s 19 recommendation that Plaintiff engage in vocational rehabilitation, but rather, the 20 ALJ found that Dr. Barnard’s recommendation was inconsistent with the level of 21 limitations he reported on the Psychological/Psychiatric Evaluation form. Indeed, 22 Dr. Barnard stated that “vocational training or services [would] minimize or 23 eliminate barriers to employment,” Tr. 359, and this is inconsistent with the severe 24 level of impairment opined by Dr. Barnard earlier on the form. 2 As such, this 25 26 2 The Court declines to find that all referrals to DVR are inconsistent with 27 opinions of severe functional limitations. The State of Washington DVR includes 28 services for supported employment for a limited period and works with non-profit ORDER GRANTING DEFENDANT’S MOTION . . . - 9 1 reason meets the specific and legitimate standard. See Shinn v. Astrue, No. C08- 2 1786-RSL, 2009 WL 2473513, at *5 (W.D. Wash. Aug. 10, 2009). 3 4 The ALJ provided legally sufficient reasons for discounting Dr. Barnard’s opinion. As such, the Court will not disturb the ALJ’s determination. 5 B. 6 On August 7, 2014, Dr. Marks completed a Psychological/Psychiatric N.K. Marks, Ph.D. 7 Evaluation. Tr. 519-24. He diagnosed Plaintiff with ADHD, dementia due to 8 multiple etiologies with behavioral changes, alcohol dependence in self-stated 9 remission, and panic disorder with agoraphobia. Tr. 521. He opined that Plaintiff 10 had a severe limitation in the ability to set realistic goals and plan independently. 11 Tr. 522. He further opined that Plaintiff had marked limitations in the abilities to 12 (1) understand, remember, and persist in tasks by following detailed instructions, 13 (2) perform activities within a schedule, maintain regular attendance, and be 14 punctual within customary tolerances without special supervision, (3) learn new 15 tasks, (4) perform routine tasks without special supervision, (5) adapt to changes in 16 a routine work setting, (6) make simple work-related decisions, (7) complete a 17 normal work day and workweek without interruptions from psychologically based 18 symptoms, and (8) maintain appropriate behavior in a work setting. Id. 19 Additionally, he opined that Plaintiff had moderate limitations in the abilities to (1) 20 21 organizations to extend supported services to citizens who qualify. See WAC 388- 22 891-0800, 388-891-050, 388-891-855, 388-891-0860. These supported services 23 are analogous to Social Security’s definition of sheltered work and provide a 24 subsidized work opportunity for disabled individuals. See S.S.R. 83-33. A referral 25 to DVR could include a referral to supported employment, and therefore would not 26 be inconsistent with finding severe functional limitations. Here, however, Dr. 27 Barnard’s findings that Plaintiff’s barriers to work would be minimized or 28 eliminated with DVR is inconsistent with a referral for supported work. ORDER GRANTING DEFENDANT’S MOTION . . . - 10 1 understand, remember, and persist in tasks by following very short and simple 2 instructions, (2) be aware or normal hazards and take appropriate precautions, and 3 (3) ask simple questions or request assistance. Id. 4 The ALJ gave Dr. Marks’ opinion “little weight” because (1) it was 5 inconsistent with Plaintiff’s reported daily activities, (2) Plaintiff had no 6 contemporaneous mental health treatment besides a prescription for Adderall, and 7 (3) Dr. Marks recommended DVR. Tr. 35. Plaintiff alleges that the ALJ’s reasons 8 failed to meet the specific and legitimate standard. ECF No. 19 at 13. Defendant 9 does not allege which standard applies. ECF No. 20 at 8-9. The ALJ was required 10 to provide specific and legitimate reasons to discount Dr. Marks’ opinion because 11 it is also contradicted by the opinions of Dr. Gardner and Dr. Reade. Tr. 93-94, 12 116-17; See Roberts, 66 F.3d at 184. 13 The ALJ’s first reason, that the opinion was inconsistent with Plaintiff’s 14 reported activities, is not legally sufficient. A claimant’s testimony about his daily 15 activities may be seen as inconsistent with the presence of a disabling condition. 16 See Curry, 925 F.2d at 1130. Here, the ALJ found that Dr. Marks’ opinion was 17 inconsistent with Plaintiff’s report of helping around the house, cleaning the house, 18 mowing the lawn, cooking, spending time on the internet and computer, attending 19 AA meetings, visiting with his daughter, and riding the bus or getting rides from 20 others. Tr. 35. However, unlike the ALJ’s earlier determination that these 21 activities suggested he had “better cognitive and social abilities than he 22 demonstrated and Dr. Barnard found,” the ALJ in reference to Dr. Marks’ opinion 23 failed to state how these activities were inconsistent with the opinion or 24 inconsistent with a finding of disability. Therefore, this reason fails to meet the 25 specific and legitimate standard. 26 The ALJ’s second reason, that Plaintiff had no other contemporaneous 27 mental health treatment besides a prescription for Adderall, is not supported by 28 substantial evidence. Medical Exhibit 7F contains over a hundred pages of ORDER GRANTING DEFENDANT’S MOTION . . . - 11 1 counseling records from Catholic Family and Child Service from April of 2013 2 through October of 2014. Tr. 525-653. Plaintiff was seen on July 30, 2014, just 3 two weeks prior to Dr. Marks’ evaluation, and it was his “last scheduled session at 4 this time due to his insurance changing.” Tr. 531. The therapist, Eric William 5 Thoma, MA, stated that he would hold the file open for a few weeks for Plaintiff to 6 “sort through his insurance issues.” Id. Plaintiff then returned to counseling in 7 October 22, 2014. Tr. 529. Dr. Marks even stated that Plaintiff was currently 8 seeking counseling through Catholic Family Services. Tr. 520. Therefore, the 9 ALJ’s conclusion that Plaintiff “had received no mental health treatment, except 10 11 for Adderall,” is not supported by substantial evidence. The ALJ’s third reason, that Dr. Marks recommended DVR, meets the 12 specific and legitimate standard. As discussed above, a referral to DVR can be 13 inconsistent with the severity of limitations opined. Here, Dr. Marks stated that 14 “vocational training or services would minimize or eliminate barriers to 15 employment” and that Plaintiff “may benefit from assistance from the Department 16 of Vocational Rehabilitation to help him find a job placement or pursue further 17 training.” Tr. 522. Therefore, it is clear that Dr. Marks’ referral was not for 18 supportive services, but as a means to reenter the workforce. This is inconsistent 19 with the severity of the limitations opined. 20 While the first two reasons the ALJ provided for rejecting Dr. Marks’ 21 opinion failed to meet the specific and legitimate standard, the third did. 22 Therefore, any error resulting from the first two reasons was harmless. See 23 Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (An error is harmless 24 when “it is clear from the record that the . . . error was inconsequential to the 25 ultimate nondisability determination.”). The Court will not disturb the ALJ’s 26 findings regarding Dr. Marks’ opinion. 27 C. Jill Gerber, MA, LMHC, CDP 28 On May 5, 2014, mental health therapist, Jill Gerber, completed a Mental ORDER GRANTING DEFENDANT’S MOTION . . . - 12 1 Residual Functional Capacity form and a Psychiatric Review Technique form. Tr. 2 501-16. Ms. Gerber opined that Plaintiff met listings 12.04 and 12.07.3 Tr. 507- 3 16. On the Mental Residual Functional Capacity form, she opined that Plaintiff 4 had a severe limitation in five out of the twenty functional abilities listed. Tr. 501- 5 03. She also opined that Plaintiff had a marked limitation in eleven and a moderate 6 limitation in four of the functional abilities identified on the form. Id. The ALJ 7 gave Ms. Gerber’s opinion no weight because (1) she did not provide a narrative, 8 (2) it did not address Plaintiff’s alcohol use, (3) it was inconsistent with Plaintiff’s 9 daily activities, and (4) it was based on Plaintiff’s unreliable self-reports. TR. 34. 10 Ms. Gerber is a therapist, not a psychologist, and, therefore, is not an 11 acceptable medical source. See 20 C.F.R. §§ 404.1513(a), 416.913(a) (2016).4 12 Generally, the ALJ should give more weight to the opinion of an acceptable medial 13 source than to the opinion of an “other source,” such as a therapist or counselor. 14 20 C.F.R. §§ 404.1513, 416.913 (2016). 5 An ALJ is required, however, to 15 consider evidence from “other sources,” 20 C.F.R. §§ 404.1513(d), 416.913(d) 16 (2016),6 “as to how an impairment affects a claimant’s ability to work,” Sprague, 17 18 3 The requirements of listing 12.04 and 12.07 were amended on January 17, 19 2017, but this is a reviewing Court, and it will apply the requirements of the 20 listings that were in effect at the time of the ALJ’s decision. See Revised Medical 21 Criteria for Evaluating Mental Disorders, 81 Fed. Reg. 66,137 (Sept. 26, 2016). 22 23 24 4 On March 27, 2017, these regulations were amended and the definitions of an acceptable medical source now appear in 20 C.F.R. §§ 404.1502(a), 416.902(a). 5 On March 27, 2017, these regulations were amended and instructions on 25 how to weigh evidence for cases filed before March 27, 2017 now appear in 20 26 C.F.R. §§ 404.1527, 416.927. 27 28 6 On March 27, 2017, these regulations were amended and the instructions on how to weigh “other sources” now appear at 20 C.F.R. §§ 404.1527(f), 416.927(f). ORDER GRANTING DEFENDANT’S MOTION . . . - 13 1 812 F.2d at 1232. An ALJ must give “germane” reasons to discount evidence from 2 “other sources.” Dodrill v. Shalala, 12 F.3d 915 (9th Cir. 1993). 3 The ALJ’s first reason, that Ms. Gerber did not provide a narrative, is not 4 supported by substantial evidence. The Psychiatric Review Technique form is 5 filled with handwritten explanations for the opinion expressed. Tr. 504-16. 6 Additionally, the record contains notes from Ms. Gerber’s counseling sessions with 7 Plaintiff. Tr. 544-73, 579-88, 592-601, 605-19, 623-24, 628-29, 635-38, 643-45. 8 Therefore, this reason is not supported by substantial evidence. However, any 9 error resulting from the ALJ’s reliance on this reason is harmless as she provided 10 other legally sufficient reasons for rejecting Ms. Gerber’s opinion. Tommasetti, 11 533 F.3d at 1038. 12 The ALJ’s second reason, that the opinion did not address Plaintiff’s alcohol 13 use, meets the germane standard. Plaintiff had visits to the emergency room with 14 evidence of heavy drinking on June 26, 2013, September 7, 2014, October 5, 2014, 15 and February 22, 2015. Tr. 657-59, 672, 680, 696. On June 28, 2013, Ms. Gerber 16 took a call from Dr. Kiki informing her that Plaintiff’s alcohol level was over 200 17 in the emergency room and she wrote that “this was new information and there had 18 been no other incidents of binge drinking during the time Robert had been coming 19 to CFCS reported or determined.” Tr. 606. Therefore, she was aware of at least 20 one of Plaintiff’s emergency rooms visits associated with drinking alcohol. But, 21 her statement to Dr. Kiki indicates that she did not consider it an ongoing problem: 22 “This therapist let Dr. Kiki know that if Robert was actively alcoholic this office 23 would pursue inpatient treatment if medical was clear.” Id. No inpatient treatment 24 was pursued. The ALJ noted that at the time of her opinion, Ms. Gerber was under 25 the impression that Plaintiff was not currently drinking, but given the evidence of 26 continued drinking in the file found this to be unlikely. Tr. 35. Considering the 27 record as a whole, the ALJ’s determination that Plaintiff was not honest about his 28 drinking is supported by substantial evidence. See Tr. 648 (On April 2, 2013 ORDER GRANTING DEFENDANT’S MOTION . . . - 14 1 Plaintiff stated he had not drank alcohol since May 16, 2011); Tr. 631 (on April 17, 2 2013 Plaintiff admitted to drinking once a month). Therefore, this reason meets 3 the germane standard. 4 The ALJ’s third reason, that the opinion was inconsistent with Plaintiff’s 5 daily activities, meets the germane standard. The ALJ found that Ms. Gerber’s 6 opinion was inconsistent with Plaintiff’s report of being the primary caregiver to 7 an infant child. Tr. 34. As stated previously, a claimant’s testimony about his 8 daily activities may be seen as inconsistent with the presence of a disabling 9 condition. See Curry, 925 F.2d at 1130. Here, the ALJ found that the opinion was 10 inconsistent with the mental abilities necessary to care for an infant child. Tr. 34. 11 This meets the germane standard. 12 The ALJ’s fourth reason, that the opinion was based on Plaintiff’s unreliable 13 self-reports, is legally sufficient. An ALJ can discount the opinions of treating 14 providers if the opinion is based “to a large extent” on the claimant’s self-reports 15 and not on clinical evidence so long as the ALJ provides a basis for her conclusion 16 that the opinion was based on such self-reports. Ghanim v. Colvin, 763 F.3d 1154, 17 1162 (9th Cir. 2014). Here, the ALJ found that Ms. Gerber’s limitations relied on 18 Plaintiff’s reported hallucinations, but that Plaintiff’s previous reports showed that 19 the hallucinations only occurred at night and did not limit him. Tr. 34. Ms. Gerber 20 did cite to Plaintiff’s reported hallucinations in her opinion, but the reports did not 21 infer any resulting limitations. Tr. 506. Therefore, the reliance on the 22 hallucinations as evidence of reliance on Plaintiff’s self-reports in assigning 23 limitations is not supported by substantial evidence. The ALJ also cited to Ms. 24 Gerber’s reliance on Plaintiff’s reported physical symptoms without any diagnosis 25 as evidence of meeting listing 12.07. Tr. 510. This does show that Ms. Gerber 26 relied on Plaintiff’s reports in assigning limitation. This in combination with the 27 ALJ’s finding that the intensity, persistence, and limiting effects of Plaintiff’s 28 symptoms as he reports them were not entirely credible, Tr. 32, that went ORDER GRANTING DEFENDANT’S MOTION . . . - 15 1 unchallenged by Plaintiff, supports the ALJ’s determination and is sufficient under 2 Ghanim. The Court will not disturb the ALJ’s findings regarding the opinion of 3 Ms. Gerber. 4 2. 5 Step Five Plaintiff argues that the ALJ failed to meet her step five burden by relying 6 on vocational expert testimony based on an incomplete hypothetical that failed to 7 account for the opinions of Dr. Barnard, Dr. Marks, Ms. Gerber, and Dr. Rubin. 8 ECF No. 19 at 15-17. 9 An ALJ is only required to present the vocational expert with those 10 limitations the ALJ finds to be credible and supported by the evidence. Osenbrock 11 v. Apfel, 240 F.3d 1157, 1165-66 (9th Cir. 2001). As addressed above, the ALJ 12 provided adequate reasons for discounting the opinions of Dr. Barnard, Dr. Marks, 13 and Ms. Gerber. Plaintiff asserts that the ALJ’s hypothetical excluded most of the 14 limitations opined by Dr. Rubin. ECF No. 19 at 16. The ALJ gave some weight to 15 the testimony of Dr. Rubin at the hearing, stating that alcohol and drugs were a 16 bigger problem than Dr. Rubin testified. Tr. 33. The residual functional capacity 17 assessment “must always consider and address medical source opinions. If the 18 [residual functional capacity] assessment conflicts with an opinion from a medical 19 source, the adjudicator must explain why the opinion was not adopted.” S.S.R. 96- 20 8p. Here, the ALJ provided a reason for not adopting Dr. Rubin’s opinion in full: 21 that Dr., Rubin did not view the alcohol and drugs as a significant problem. Tr. 33. 22 Plaintiff failed to challenge this reason in his briefing. Therefore, the Court will 23 not address the challenge to Dr. Rubin’s opinion. See Carmickle v. Comm’r, Soc. 24 Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008). 25 Seeing as Plaintiff has failed to successfully show that the ALJ erred in her 26 residual functional capacity determination, there is no resulting error at step five. 27 CONCLUSION 28 Having reviewed the record and the ALJ’s findings, the Court finds the ORDER GRANTING DEFENDANT’S MOTION . . . - 16 1 ALJ’s decision is supported by substantial evidence and free of harmful legal error. 2 Accordingly, IT IS ORDERED: 3 4 1. Defendant’s Motion for Summary Judgment, ECF No. 20, is GRANTED. 5 2. 6 The District Court Executive is directed to file this Order and provide a copy 7 to counsel for Plaintiff and Defendant. Judgment shall be entered for Defendant 8 and the file shall be CLOSED. 9 Plaintiff’s Motion for Summary Judgment, ECF No. 19, is DENIED. DATED January 24, 2018. 10 11 12 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING DEFENDANT’S MOTION . . . - 17

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