Wright v. Kijakazi

1 FILED IN THE U.S. DISTRICT COURT 2 EASTERN DISTRICT OF WASHINGTON Oct 08, 2021 [3] 4 SEAN F. MCAVOY, CLERK 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON [7] 8 BILLY W., 9 Plaintiff, No. 1:20-CV-03079-SAB 10 v. 11 ACTING COMMISSIONER OF SOCIAL ORDER GRANTING 12 SECURITY,1 DEFENDANT’S MOTION FOR 13 Defendant. SUMMARY JUDGMENT AND 14 DENYING PLAINTIFF’S 15 MOTION FOR SUMMARY 16 JUDGMENT [17] 18 Before the Court are Plaintiff’s and Defendant’s Motions for Summary 19 Judgment, ECF Nos. 17, 18. Plaintiff is represented by Victoria Chhagan. 20 Defendant is represented by Erin Highland, Jeffrey Staples, Sarah Moum, and 21 Timothy M. Durkin. The motions were heard without oral argument. Having 22 considered the briefing and the applicable law, the Court grants Defendant’s 23 motion and denies Plaintiff’s motion. [24] 25 1 Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9, 26 2021. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Kilolo 27 Kijakazi is substituted for Andrew M. Saul as the defendant in this suit. See 42 28 U.S.C. § 405 (g). 1 Jurisdiction 2 Plaintiff filed a disability insurance benefits application on June 29, 2016, 3 alleging disability as of his filing date. Plaintiff’s claims were initially denied on 4 October 20, 2016, and again upon reconsideration on January 5, 2017. The ALJ 5 held a hearing on August 27, 2018, and then a supplemental hearing on April 2, 6 2019. On June 25, 2019, the ALJ issued an opinion affirming the denial of 7 Plaintiff’s claims for benefits. 8 Plaintiff requested review of the ALJ decision, which the Appeals Council 9 denied on April 2, 2020. Plaintiff then filed a timely appeal with the United States 10 District Court for the Eastern District of Washington on June 2, 2020. ECF No. 1. 11 The matter is before this Court under 42 U.S.C. § 405 (g). 12 Sequential Evaluation Process 13 The Social Security Act defines disability as the “inability to engage in any 14 substantial gainful activity by reason of any medically determinable physical or 15 mental impairment which can be expected to result in death or which has lasted or 16 can be expected to last for a continuous period of not less than twelve months.” 42 17 U.S.C. § 1382c(a)(3)(A). A claimant shall be determined to be under a disability 18 only if his impairments are of such severity that the claimant is not only unable to 19 do his previous work, but cannot, considering claimant’s age, education, and work 20 experiences, engage in any other substantial gainful work that exists in the national 21 economy. 42 U.S.C. § 1382c(a)(3)(B). 22 The Commissioner has established a five-step sequential evaluation process 23 for determining whether a person is disabled. 20 C.F.R. § 416.920 (a)(4); Bowen v. 24 Yuckert, 482 U.S. 137 , 140–42 (1987). The steps are as follows: 25 (1) Is the claimant engaged in substantial gainful activities? 20 C.F.R. 26 § 404.1520(b). Substantial gainful activity is work done for pay and requires 27 compensation above the statutory minimum. Id.; Keyes v. Sullivan, 894 F.2d 1053 , [28] 1 1057 (9th Cir. 1990). If the claimant is engaged in substantial activity, benefits are 2 denied. 20 C.F.R. § 404.1520 (b). If he is not, the ALJ proceeds to step two. 3 (2) Does the claimant have a medically severe impairment or combination of 4 impairments? 20 C.F.R. § 404.1520 (c). If the claimant does not have a severe 5 impairment or combination of impairments, the disability claim is denied. A severe 6 impairment is one that lasted or must be expected to last for at least 12 months and 7 must be proven through objective medical evidence. 20 C.F.R. § 404.1509 . If the 8 impairment is severe, the evaluation proceeds to the third step. 9 (3) Does the claimant’s impairment meet or equal one of the listed 10 impairments acknowledged by the Commissioner to be so severe as to preclude 11 substantial gainful activity? 20 C.F.R. § 404.1520 (d); 20 C.F.R. § 404 Subpt. P. 12 App. 1 . If the impairment meets or equals one of the listed impairments, the 13 claimant is conclusively presumed to be disabled. Id. If the impairment is not one 14 conclusively presumed to be disabling, the evaluation proceeds to the fourth step. 15 Before considering Step 4, the ALJ must first determine the claimant’s residual 16 functional capacity. 20 C.F.R. § 404.1520 (e). An individual’s residual functional 17 capacity is his ability to do physical and mental work activities on a sustained basis 18 despite limitations from his impairments. 19 (4) Does the impairment prevent the claimant from performing work he has 20 performed in the past? 20 C.F.R. § 404.1520 (f). If the claimant is able to perform 21 his previous work, he is not disabled. Id. If the claimant cannot perform this work, 22 the evaluation proceeds to the fifth and final step. 23 (5) Is the claimant able to perform other work in the national economy in 24 view of his age, education, and work experience? 20 C.F.R. § 404.1520 (g). The 25 initial burden of proof rests upon the claimant to establish a prima facie case of 26 entitlement to disability benefits. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 27 1999). This burden is met once a claimant establishes that a physical or mental 28 impairment prevents him from engaging in his previous occupation. Id. At Step 1 Five, the burden shifts to the Commissioner to show that the claimant can perform 2 other substantial gainful activity. Id. 3 Standard of Review 4 The ALJ’s determination will be set aside only when their findings are based 5 on legal error or are not supported by substantial evidence in the record as a whole. 6 See Matney v. Sullivan, 981 F.2d 1016 , 1018 (9th Cir. 1992) (citing 42 U.S.C. § 7 405(g)). Substantial evidence is “more than a mere scintilla,” Richardson v. 8 Perales, 402 U.S. 389, 401 (1971), but “less than a preponderance.” Sorenson v. 9 Weinberger, 514 F.2d 1112 , 1119 n.10 (9th Cir. 1975). Substantial evidence is 10 “such relevant evidence as a reasonable mind might accept as adequate to support a 11 conclusion.” Richardson, 402 U.S. at 401 . The Court must uphold the ALJ’s denial 12 of benefits if the evidence is susceptible to more than one rational interpretation, 13 one of which supports the decision of the administrative law judge. Batson v. 14 Barnhart, 359 F.3d 1190, 1193 (9th Cir. 2004). The Court reviews the entire 15 record. Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). “If the evidence can 16 support either outcome, the court may not substitute its judgment for that of the 17 ALJ.” Matney, 981 F.2d at 1019. 18 A decision supported by substantial evidence will be set aside if the proper 19 legal standards were not applied in weighing the evidence and making the decision. 20 Brawner v. Secr’y of Health & Human Servs., 839 F.2d 432, 433 (9th Cir. 1988). 21 An ALJ is allowed “inconsequential” errors as long as they are immaterial to the 22 ultimate nondisability determination. Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 23 1050, 1055 (9th Cir. 2006). 24 Facts 25 Plaintiff was 29 years old at the time of his alleged disability onset date. 26 Plaintiff did not complete high school or obtain his GED. He states that, while he 27 was in school, he was in special education for learning disabilities and behavioral 28 problems. Plaintiff also alleges that he has been assessed with a verbal IQ of 67, a 1 performance IQ of 81, and a full-scale IQ of 72. Plaintiff has worked primarily as a 2 laborer, janitor, and dishwasher. 3 In Plaintiff’s application, he alleged that he had mental limitations— 4 specifically anxiety, depression, and PTSD. AR at 228. In his opening brief, 5 Plaintiff alleges that he has other long-standing mental impairments, including 6 bipolar disorder, schizoaffective disorder, psychotic disorder, panic disorder, 7 PTSD, and a borderline personality disorder. ECF No. 17 at 3-4. Plaintiff also 8 alleges that he has severe behavioral problems, including physical aggression, 9 threatening and intimidating others, refusing to work, and disrupting others. 10 Finally, Plaintiff has a history of alcohol and drug abuse, particularly of 11 methamphetamine. 12 The ALJ’s Findings 13 On June 25, 2019, the ALJ issued an opinion affirming denial of benefits. 14 The ALJ concluded that Plaintiff was capable of making a successful adjustment to 15 work that exists in significant numbers in the national economy. Thus, the ALJ 16 held that Plaintiff was not disabled. AR at 26. 17 At step one, the ALJ found that Plaintiff has not engaged in substantial 18 gainful activity since June 29, 2016, the alleged disability onset date. Id. at 15. 19 At step two, the ALJ found that Plaintiff had the following severe 20 impairments: post-traumatic stress disorder (PTSD); panic disorder; 21 schizoaffective disorder; and drug and alcohol abuse. Id. at 15–16. 22 At step three, the ALJ found that Plaintiff did not have an impairment or a 23 combination of impairments that meets or medically equals any Listing. Id. at 1624 17. The ALJ concluded that Plaintiff had a residual function capacity to perform: [25] medium work as defined in 20 CFR 416.967(c) except the claimant [26] can perform simple, routine, and repetitive tasks with only ordinary 27 production requirements. He can perform no fast paced work. The [28] 1 claimant would work best independently with superficial contact with coworkers and the general public. [2] Id. at 17. [3] 4 At step four, the ALJ found that Plaintiff was unable to perform past 5 relevant work as a Janitor or Agricultural Produce Sorter. Id. at 24–25. 6 At step five, the ALJ found that Plaintiff was not disabled and that he was 7 capable of making a successful adjustment to other work that exists in significant 8 numbers in the national economy, including Industrial Cleaner, Laundry Worker, 9 and Cleaner II. Id. at 25–26. 10 Issues for Review 11 1. Did the ALJ err by failing to adhere to Social Security rules and regulations 12 pertaining to drug and alcohol abuse? 13 2. Did the ALJ err by failing to provide sufficient reasons for rejecting medical 14 opinions? 15 Discussion 16 1. Did the ALJ err by failing to adhere to Social Security rules and regulations 17 pertaining to drug and alcohol abuse? 18 Plaintiff argues that the ALJ erred by failing to follow Social Security 19 guidelines regarding drug and alcohol abuse. Specifically, Plaintiff argues that the 20 ALJ can only find that drug and alcohol abuse is material to a finding of disability 21 if (1) the record is fully developed and (2) the evidence establishes that a claimant 22 with co-occurring mental disorder(s) would not be disabled in the absence of drug 23 and alcohol abuse. However, here, Plaintiff argues that Dr. Sally Clayton, Ph.D. 24 (“Dr. Clayton”) testified that she could not offer an opinion about Plaintiff’s 25 limitations in the absence of a six- to twelve-month period of abstinence from 26 substance abuse. Thus, Plaintiff argues that—because Dr. Clayton could not 27 conclude that Plaintiff would not be disabled in the absence of drug and alcohol [28] 1 abuse—the ALJ should have found Plaintiff’s drug and alcohol abuse immaterial 2 and awarded him disability benefits. 3 Defendant argues that the ALJ correctly applied the Social Security 4 guidelines regarding drug and alcohol abuse. Defendant states that the ALJ found 5 that Plaintiff’s drug and alcohol abuse was a severe impairment. However, 6 Defendant states that the ALJ found that Plaintiff was not disabled, even when 7 considering the effects of his drug and alcohol abuse. Thus, Defendant argues that 8 the Court should affirm the ALJ’s findings that Plaintiff is not disabled. 9 Plaintiff in reply argues that, though the ALJ did not make a finding of 10 disability, she in effect found that substance abuse was material because she rejected 11 medical opinion evidence supporting a finding of disability based on Plaintiff’s drug 12 and alcohol abuse. Thus, Plaintiff argues that the ALJ should have (1) assessed 13 Plaintiff’s limitations based on both his mental impairments and his drug and alcohol 14 abuse in order to determine whether he had a disability and then (2) determined 15 whether substance abuse was material to the finding of Plaintiff’s disability. But 16 here, Plaintiff argues that the ALJ instead ignored the effects of substance abuse 17 when making her disability finding. 18 Legal Standard 19 Generally, a claimant “cannot receive disability benefits ‘if alcoholism or 20 drug addiction would . . . be a contributing factor material to the Commissioner’s 21 determination that the individual is disabled.’” Parra v. Astrue, 481 F.3d 742 , 746 22 (9th Cir. 2007) (citing 42 U.S.C. § 423 (d)(2)(C)). In reaching a finding of 23 disability status, the ALJ must follow a specific analysis that incorporates the 24 sequential evaluation discussed above. 20 C.F.R. §§ 404.1535 (a), 416.935(a). The 25 ALJ first must conduct the five-step inquiry without attempting to determine the 26 impact of a substance abuse disorder. Id. If the ALJ finds that the claimant is not 27 disabled under the five-step inquiry, the claimant is not entitled to benefits, and 28 there is no need to proceed with further analysis. Id. If the ALJ finds the claimant 1 disabled, and there is evidence of substance abuse, the ALJ must then proceed 2 under the sequential evaluation and §§ 404.1535 and 416.935 to determine if the 3 claimant would still be disabled absent the substance abuse. Bustamante v. 4 Massanari, 262 F.3d 949, 955 (9th Cir. 2001). If there is substantial evidence to 5 support the administrative findings, or if there is conflicting evidence supporting a 6 finding of either disability or non-disability, the finding of the Commissioner is 7 conclusive. Sprague v. Bowen, 812 F.2d 1226 , 1229–30 (9th Cir. 1987). 8 Analysis 9 Having considered the ALJ’s opinion and Plaintiff’s medical records, the 10 Court upholds the ALJ’s decision because there is substantial evidence in the 11 record to support that Plaintiff was not disabled. 12 The ALJ found that Plaintiff was not disabled because he had the residual 13 functional capacity to perform medium work. AR at 25-26. In making this finding, 14 the ALJ followed a two-step process. First, the ALJ considered whether there was 15 an underlying medically determinable physical or mental impairment(s) that could 16 reasonably be expected to produce Plaintiff’s symptoms. 20 C.F.R. § 416.929 , 17 Social Security Ruling (SSR) 16-3p. Second, the ALJ evaluated the intensity, 18 persistence, and limiting effects of Plaintiff’s symptoms to determine the extent to 19 which they limited his functional limitations. Id. For statements about the intensity, 20 persistence, or functionally limiting effects of Plaintiff’s pain or other symptoms 21 that were not substantiated by objective medical evidence, the ALJ considered 22 other evidence in the record to determine if Plaintiff’s symptoms limited his ability 23 to work. Id. 24 For the first step, the ALJ concluded that Plaintiff’s medically determinable 25 impairments could reasonably be expected to cause the alleged symptoms. AR at 26 19. To reach this conclusion, the ALJ considered Plaintiff’s testimony at two 27 hearings: an initial hearing in August 2018 and a supplemental hearing in April 28 2019 specifically to address Plaintiff’s substance use and disability. At the first 1 hearing, Plaintiff testified that his most limiting impairment was his post-traumatic 2 stress disorder. Id. at 18 , 43–48. He further testified that he was depressed, 3 experienced traumatic flashbacks, and did not like to talk about his trauma. Id. 4 Finally, he testified that talking about his trauma drove him to use substances and 5 that he would isolate socially and sleep in episodes that could last up to three or 6 four weeks. Id. When the ALJ asked what Plaintiff did during the day, Plaintiff 7 replied that he would sleep, help clean his aunt’s house, or babysit his cousin’s 8 children. Id. He also stated that he cared for these children every day by feeding 9 them and taking them to school. Id. However, Plaintiff explained to the ALJ that he 10 could not perform work—even in the absence of substance use—because he had 11 difficulty interacting with others. Id. When asked about his substance use, Plaintiff 12 stated that he last drank alcohol in 2016 and that he last used methamphetamine “a 13 couple days ago.” Id. 14 At the second hearing, Plaintiff again testified about his impairments, their 15 limiting effects, and his activities of daily living. Id. at 18–19, 65–67, 68–73. 16 Plaintiff testified that he stopped using drugs unassisted and outside of a treatment 17 setting, but that he was still limited by his mental health impairments. Id. However, 18 at this hearing, Plaintiff also provided testimony that cast doubt on his credibility. 19 For example, Plaintiff denied that he had ever been a sex worker or on probation, 20 even after the ALJ presented evidence of past sworn testimony of Plaintiff 21 describing his history with sex work and probation. Id. Furthermore, Plaintiff 22 provided testimony that called into question the severity of his impairments. For 23 example, when the ALJ cited to evidence in the record showing a lower level of 24 impairment, Plaintiff discounted this evidence as being due to care providers “[not] 25 listen[ing] to what [he’s] really saying” and “putting words in [his] mouth, like 26 always.” Id. at 71 . Similarly, when asked about the treatment advice from his care 27 providers recommending that he apply for work every day, Plaintiff simply stated 28 that he was too stressed to work and had no motivation. Id. at 81 . 1 At the second step, the ALJ concluded that Plaintiff’s statements concerning 2 the intensity, persistence, and limiting effects of his symptoms were not entirely 3 consistent with the medical evidence and other evidence in the record. Specifically, 4 the ALJ noted that Plaintiff’s inconsistent accounts of his sobriety, ability to work, 5 work history, history with the criminal justice system, and failure to cooperate with 6 multiple clinical providers and treatment recommendations led her to scrutinize 7 Plaintiff’s subjective testimony more carefully when determining the impact of his 8 impairments. Id. at 19–20. The ALJ also noted that the objective medical evidence 9 in the record showed that Plaintiff was able to express himself with normal speech, 10 cooperative, pleasant, able to maintain eye contact and act within normal 11 behavioral limits, and oriented in all spheres; further, that Plaintiff exhibited a 12 normal memory and was otherwise within normal cognitive limits. Id. at 21, 392 , 13 471, 497, 503, 509, 511, 521, 591, 612, 718. Finally, several medical opinions in 14 the record described Plaintiff’s ability to learn new tasks, perform tasks after short 15 instructions, and adapt to work environments as only mildly or moderately limited. [16] Id. at 574–75, 584, 786–87. Therefore, even taking into account Plaintiff’s 17 impairments, the ALJ concluded that Plaintiff had the residual functional capacity 18 to perform medium, non-fast paced, independent work and thus was not disabled. [19] Id. at 21, 25, 26 . 20 Additionally, the Court finds that there is substantial evidence supporting 21 that Plaintiff’s substance abuse was not material to the ALJ’s finding of non22 disability. Plaintiff argues that, pursuant to SSR 13-2p, the ALJ cannot find 23 substance abuse material if the evidence in the record does not establish that 24 Plaintiff’s co-occurring mental disorder(s) would improve to the point of non25 disability in the absence of substance abuse. ECF No. 17 at 5. However, Plaintiff 26 argues that the ALJ in effect found that substance abuse was material because she 27 rejected medical opinion evidence supporting a finding of disability even absent 28 Plaintiff’s drug and alcohol abuse. Id.; ECF No. 19 at 2. 1 In finding Plaintiff not disabled, the ALJ rejected the medical opinion of 2 Laurie Jones, MS LMFT (“Ms. Jones”), who continuously treated Plaintiff as his 3 therapist during the relevant period. AR at 60. Ms. Jones reported that Plaintiff 4 would have marked limitations absent substance abuse. Id. at 24 , 587–90, 1024– 5 28. Conversely, the ALJ assigned great weight to the opinion of Dr. Clayton, who 6 testified at Plaintiff’s April 2019 hearing as an objective medical expert after 7 reviewing Plaintiff’s medical records. Id. at 20–21, 62–62. In contrast to Ms. 8 Jones, Dr. Clayton stated that there was difficulty in assessing the degree of 9 Plaintiff’s limitation given his ongoing substance abuse. Id. at 20, 65, 78 . Dr. 10 Clayton testified that she did not agree with the opinions of other experts in the 11 record finding Plaintiff disabled because it was impossible to determine Plaintiff’s 12 limitations without a six-to-twelve-month period of sobriety. Id. 13 The ALJ properly weighed the opinions of Ms. Jones and Dr. Clayton. The 14 ALJ heavily weighed the opinion of Dr. Clayton because she had the opportunity 15 to review the entire medical record, her opinions were well supported by specific 16 references to the medical evidence, and her opinions were consistent with other 17 medical reports in the record. AR at 22; see also id. at 522–25 (Dr. Steven Olmer, 18 M.D. reported that he could not recommend Plaintiff for disability due to 19 inconsistently reported symptoms and a lack of enough sustained objective 20 information). Conversely, the ALJ assigned no weight to the opinion of Ms. Jones 21 because her opinion was inconsistent with the overall record and Plaintiff’s own 22 descriptions of his abilities. Id. at 24 . Notably, Ms. Jones reported that Plaintiff 23 was not capable of maintaining a regular schedule and getting up in the morning, 24 which contradicts Plaintiff’s own testimony that he was able to regularly care for 25 his cousin’s children by feeding them and taking them to school. Id. at 18, 24 , 43– 26 48. Such inconsistencies suggest that Ms. Jones overly relied on Plaintiff’s own 27 subjective complaints of his limitations, which the ALJ noted reduced the 28 supportability of her opinion. Id. at 24 . When taking into account the medical 1 opinion evidence in the record and the unreliability of Plaintiff’s self-reported 2 symptoms, there is substantial evidence to support the ALJ’s conclusion that 3 Plaintiff could perform medium work and therefore was not disabled. 4 The ALJ properly adhered to Social Security rules and regulations by 5 engaging in the five-step inquiry without attempting to determine the impact of any 6 substance abuse disorder that Plaintiff might have. 20 C.F.R. §§ 404.1535 (a), 7 416.935(a). Because the ALJ found that Plaintiff was not disabled, the ALJ was not 8 required to proceed with any further analysis regarding Plaintiff’s substance abuse. 9 Moreover, there was substantial evidence supporting both the ALJ’s finding of non10 disability and the fact that substance abuse was not material to her decision. Thus, 11 the Court upholds the ALJ’s decision. 12 2. Did the ALJ err by failing to provide sufficient reasons for rejecting medical 13 opinions? 14 Plaintiff also argues that the ALJ failed to properly weigh the opinions of 15 four different people or sets of persons: (1) Ms. Jones; (2) Dr. Clayton; (3) Patrick 16 Metoyer, Ph.D. (“Dr. Metoyer”); and (4) the Department of Social and Health 17 Services (DSHS) examiners, including R.A. Cline, Psy.D. (“Dr. Cline”); Holly 18 Petaja, Ph.D. (“Dr. Petaja”); and Tasmyn Bowes, Psy.D. (“Dr. Bowes”) 19 (collectively the “DSHS examiners”). The Court shall discuss each in turn. 20 a. Ms. Jones 21 Plaintiff argues that the ALJ improperly rejected Ms. Jones’ opinion. 22 Plaintiff states that the ALJ rejected Ms. Jones’ opinion because (1) she did not 23 address Plaintiff’s drug and alcohol abuse when proffering her conclusions on 24 Plaintiff’s limitations and (2) she relied on Plaintiff’s subjective complaints of 25 limitation. However, Plaintiff states that (1) in her first assessment, Ms. Jones 26 clearly indicated that her conclusions excluded any limitations due to drug and 27 alcohol abuse and (2) in her second assessment, which occurred more than six 28 months after Plaintiff testified that he had stopped using methamphetamines, she 1 still noted that Plaintiff had marked limitations in all the functional areas. Plaintiff 2 also states that Ms. Jones based her conclusions not only on Plaintiff’s subjective 3 complaints, but also on her numerous encounters with Plaintiff, her knowledge 4 about his background, and her observations and impressions. Thus, Plaintiff argues 5 that the ALJ rejecting Ms. Jones’ opinion constitutes harmful error because her 6 assessment supported a finding of Plaintiff’s disability, even without the drug and 7 alcohol abuse. 8 Defendant in response argues that the ALJ had valid reasons for rejecting 9 Ms. Jones’ opinion. Defendant states that Ms. Jones indicated that she excluded the 10 effects of drug and alcohol abuse from her first assessment of Plaintiff, but that this 11 exclusion was not valid because Plaintiff’s drug and alcohol abuse could not 12 reliably be differentiated from his other mental health concerns. Additionally, 13 Defendant states that Ms. Jones’ opinion about Plaintiff’s mental limitations came 14 “in the form of checklists with minimal supporting narrative explanations” and that 15 her contemporaneous mental status examinations of Plaintiff were inconsistent 16 with her assessment conclusions. ECF No. 18 at 10. Finally, Defendant states that 17 Ms. Jones’ August 2018 opinion that Plaintiff was unable to maintain a schedule 18 and get up in the morning was inconsistent with Plaintiff’s self-described activities 19 of taking his cousin’s children to school every morning. Thus, Defendant argues 20 that these constituted sufficient reasons for the ALJ to reject Ms. Jones’ opinion. 21 Plaintiff in reply first argues that Ms. Jones could both validly assess 22 Plaintiff’s mental limitations and exclude any limitations stemming from the drug 23 and alcohol abuse. Second, Plaintiff argues that the ALJ’s finding that Ms. Jones 24 overly relied on Plaintiff’s subjective complaints was not supported by any 25 discussion or evidence, whereas Ms. Jones’ report specifically states that she based 26 her assessment on many other factors besides Plaintiff’s symptom testimony. 27 Finally, Plaintiff argues that Defendant’s example of inconsistency between Ms. 28 Jones’ assessment and Plaintiff’s self-described activities was taken out of 1 context—instead, Plaintiff argues that he told Dr. Clayton that he could only take 2 his cousin’s children to school every day “80% of the time” due to his mental 3 health limitations. ECF No. 19 at 5–6. Thus, Plaintiff argues that the ALJ 4 improperly discounted Ms. Jones’ opinion. 5 In determining whether a claimant’s impairments are severe at step two, the 6 ALJ evaluates medical evidence submitted and explains the weight given to the 7 opinions of acceptable medical sources in the record. SSR 85–28. Primary weight 8 is given to the views of treating physicians, absent specific and legitimate reasons 9 for rejecting them that are supported by substantial evidence. 20 C.F.R. 10 § 404.1527.2 The opinion of an acceptable medical source, such as a physician or 11 psychologist, is generally given more weight than that of an “other source.” See 12 SSR 06-03p. “Other sources” for opinions—such as nurse practitioners, 13 physician’s assistants, therapists, teachers, social workers, chiropractors, and 14 nonmedical sources—are not entitled to the same deference as acceptable medical 15 sources. 20 C.F.R. §§ 404.1502 (e), 404.1527(f); Dale v. Colvin, 823 F.3d 941 , 943 16 (9th Cir. 2016). An ALJ may discount an “other source’s” opinion by providing a 17 relevant reason for doing so. Popa v. Berryhill, 872 F.3d 901, 906 (9th Cir. 2017); 18 Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993). Where a medical source 19 opinion is based primarily on a claimant’s self-reported symptoms, claimant 20 credibility is an appropriate factor to consider in the evaluation of medical 21 evidence at step two. Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir.2005). 22 Generally, more weight is given to the opinions of professionals who have a more 23 substantial treatment relationship with the claimant. 20 C.F.R. § 416.927 (c)(2). [24] 25 2 For Social Security disability claims filed on or after March 27, 2017, the ALJ 26 “will not defer or give[] any specific evidentiary weight . . . to any medical 27 opinion(s).” 20 C.F.R. § 404 .1520c(a). However, this claim was filed on June 29, 28 2016. AR at 228. 1 The Court finds that there is substantial evidence supporting the ALJ’s 2 decision to assign no weight to Ms. Jones’ opinion. While Ms. Jones—whose 3 official title is a Licensed Marriage and Family Therapist—is a certified health 4 care professional and was a source of ongoing continuing treatment to Plaintiff 5 during the relevant period, Ms. Jones is not a medical physician and is therefore 6 not a qualified medical source. AR at 38, 47, 49, 60. Thus, Ms. Jones constitutes an 7 “other source” and her opinion is not entitled to the same deference as an opinion 8 from an acceptable medical source. 9 In her reports, Ms. Jones stated that Plaintiff experienced moderate to 10 marked limitations in all four of the Paragraph B criteria. Id. at 24 , 587–90, 1024– 11 28. Specifically, Ms. Jones stated that Plaintiff was not capable of maintaining a 12 regular schedule, could not tolerate stress, and could not tolerate interpersonal 13 interactions. Id. Pursuant to the instructions that she was provided for her 14 examination, Ms. Jones evaluated Plaintiff without considering his ongoing 15 substance use. Id. 16 However, as discussed above, Ms. Jones’ conclusions were inconsistent with 17 Plaintiff’s reports about his own abilities, suggesting that Ms. Jones overly relied 18 on Plaintiff’s self-reports of his limitations. For example, Ms. Jones concluded that 19 Plaintiff would have difficulty maintaining a regular schedule. Id. at 590 . But this 20 is contradicted by Plaintiff’s testimony that he cares for his cousin’s children and 21 takes them to school daily.3 Id. at 18 , 44–46. Additionally, Ms. Jones’ conclusion [22] 23 3 At the initial hearing in 2018, Plaintiff testified that he would take his cousin’s 24 children to school and help clean his aunt’s house every day. AR at 44–45. When 25 the ALJ asked to what extent Plaintiff’s impairments affected his ability to do these 26 things, Plaintiff responded, “I’d say about 80 percent.” Id. at 46 . When the ALJ 27 asked Plaintiff to elaborate on the effects of his impairments, Plaintiff responded: 28 “Like, the rushing. Trying to rush to get the kids dressed. Sometime drivers driving 1 that Plaintiff had moderate to marked limitations in all four of the Paragraph B 2 criteria was inconsistent with several other expert and medical opinions on the 3 record. See, e.g., Id. at 61 , 83–95, 97–110, 572–76, 781–85. Thus, because Ms. 4 Jones is an “other source” and because there was substantial evidence supporting 5 the ALJ discounting Ms. Jones’ conclusions, the Court upholds the ALJ’s decision 6 regarding Ms. Jones’ opinion. 7 b. Dr. Clayton 8 Plaintiff argues that the ALJ improperly relied on Dr. Clayton’s opinion to 9 reach a conclusion of non-disability. Plaintiff states that Dr. Clayton testified that 10 she could not offer an opinion about Plaintiff’s functioning in the absence of a six11 to twelve-month period of sobriety, which Plaintiff had not yet achieved at that 12 time. Plaintiff also states that the ALJ gave “great weight” to Dr. Clayton’s opinion 13 in reaching her conclusion that Plaintiff was not disabled. But Plaintiff argues that 14 Social Security guidelines state that, if the evidence fails to establish that a 15 claimant with a co-occurring mental disorder(s) would improve to the point of non16 disability without drug and alcohol abuse, the ALJ must find that the drug and 17 alcohol abuse immaterial to the disability determination. Thus, Plaintiff argues 18 that—because Dr. Clayton expressly refused to offer an opinion on whether [20] 21 extra slow but you’ve got to go the speed limit and I don [sic] not like the speed 22 limit. I just make sure I get the kids there on time because I feed them too.” Id. 23 From the testimony, it is unclear what Plaintiff’s report of an 80% effect is 24 referencing. If this referred to Plaintiff’s impairments having an 80% effect on his 25 ability to engage in daily tasks, the ALJ could have properly discounted that due to 26 Plaintiff’s other unreliable testimony. If, conversely, Plaintiff meant that he was 27 only able to engage in these tasks 80% of the time, that is still significant and 28 suggests that Plaintiff can keep a regular schedule. 1 Plaintiff’s mental impairments would improve without drug and alcohol abuse— 2 the ALJ improperly relied on her opinion to reach a conclusion of non-disability. 3 Defendant in response argues that Dr. Clayton’s opinions do not contradict 4 the ALJ’s conclusion. Defendant states that the ALJ found that Plaintiff was not 5 disabled, even considering his drug and alcohol abuse. Thus, especially because 6 Dr. Clayton did not identify any functional limitations in Plaintiff, Defendant 7 argues that her testimony provides no basis for overturning the ALJ’s finding of 8 non-disability. 9 Plaintiff in reply argues that, by relying on Dr. Clayton’s testimony—which 10 was given as part of a supplemental hearing to help assist the ALJ with a drug and 11 alcohol abuse materiality finding—the ALJ in effect determined that Plaintiff was 12 not disabled due to his substance abuse. Thus, Plaintiff argues that the ALJ should 13 have engaged in the full drug and alcohol abuse analysis when determining 14 whether Plaintiff was disabled. 15 The Court finds that there is substantial evidence supporting the ALJ’s 16 decision to assign great weight to Dr. Clayton’s opinion. The ALJ can give greater 17 weight to an acceptable medical source—such as a physician or psychologist— 18 whose opinion is consistent with the record and supported with relevant 19 explanation. 20 C.F.R. § 416.927 . Here, the ALJ assigned great weight to Dr. 20 Clayton’s opinion because (1) though she was not a treating source, she was able to 21 review Plaintiff’s entire medical record prior to providing her opinion and (2) her 22 opinion was both supported with relevant explanation and consistent with the 23 entire record, including with opinions of other experts. AR at 22. 24 Plaintiff suggests that Dr. Clayton’s opinion was paramount to the ALJ’s 25 finding of non-disability. However, given that other medical experts had the same 26 opinion as Dr. Clayton, there is still substantial evidence supporting the ALJ’s 27 conclusion. For example, Dr. Olmer also stated that he could not provide a 28 recommendation for disability “[a]s a result of inconsistent reports of symptoms 1 and treatment attendance.” Id. at 524-25 . Thus, the Court upholds the ALJ’s 2 decision to give greater weight to Dr. Clayton’s opinion. 3 c. Dr. Metoyer 4 Plaintiff argues that the ALJ erred in (1) giving weight to Dr. Metoyer’s 5 opinion because he did not review Plaintiff’s medical records in order to reach his 6 conclusions; (2) finding that Dr. Metoyer had not offered an opinion about 7 Plaintiff’s residual functional capacity; and (3) finding that the ALJ’s conclusion 8 about Plaintiff’s residual functional capacity was consistent with that of Dr. 9 Metoyer. First, Plaintiff states that, of all of Plaintiff’s mental records, Dr. Metoyer 10 only reviewed one report from 2009. Second, Plaintiff asserts that Dr. Metoyer 11 assessed Plaintiff’s functional limitations in both his narrative report and on the 12 form attached to his report. Third, Plaintiff claims that, whereas Dr. Metoyer 13 concluded that Plaintiff had moderate to marked limitations in various work 14 situations, the ALJ did not account for these limitations in her own conclusions 15 regarding Plaintiff’s residual functional capacity. 16 Defendant in response argues that the ALJ’s conclusions about Plaintiff’s 17 residual functional capacity were supported by substantial evidence, including Dr. 18 Metoyer’s opinion. Defendant states that Dr. Metoyer concluded that Plaintiff’s 19 ability to deal with usual stress in the workplace would be markedly impaired if he 20 had to perform persistent activities or complex tasks, withstand task pressures, or 21 interact with other individuals. Thus, Defendant argues that the ALJ relied on this 22 conclusion and translated it into a residual functional capacity of simple, routine 23 tasks with ordinary production requirements; no fast-paced work; and independent 24 work with superficial contact with others. Defendant also argues that, just because 25 Plaintiff may have found Dr. Metoyer’s opinion less persuasive had he been the 26 trier of fact, that is insufficient grounds to overturn the ALJ’s findings. 27 Plaintiff in reply argues that the ALJ’s conclusion about Plaintiff’s residual 28 function capacity is not consistent with Dr. Metoyer’s opinion. Plaintiff states 1 that—while the ALJ’s conclusion took into account some of Dr. Metoyer’s 2 conclusions, such as limiting Plaintiff to simple, routine, repetitive tasks—it did 3 not account for others, such as Dr. Metoyer concluding that Plaintiff would be 4 markedly limited in his ability to deal with usual stress in the workplace if it 5 involved persistent activities, task pressure, or interacting with other individuals. 6 The Court finds that there is substantial evidence supporting the ALJ’s 7 decision to assign great weight to Dr. Metoyer’s opinion. As discussed above, the 8 ALJ can give greater weight to an acceptable medical source—such as a physician 9 or psychologist—whose opinion is consistent with the record and supported with 10 relevant explanation. 20 C.F.R. § 416.927 . Here, Dr. Metoyer concluded that 11 Plaintiff experienced mild and moderate limitations in most of the assessed 12 categories but had a marked limitation in “responding appropriately to usual work 13 situations and changes in a routine work setting.” AR at 786–87. Specifically, Dr. 14 Metoyer stated that Plaintiff “appears to have the ability to reason and understand” 15 and Plaintiff’s “ability to maintain regular attendance in the workplace is 16 moderately impaired.” Id. at 785 . However, Dr. Metoyer stated that Plaintiff would 17 experience marked limitations in the workplace with complex tasks and interacting 18 with other individuals. Id. 19 Thus, when determining Plaintiff’s residual functional capacity, the ALJ 20 stated that Plaintiff could perform simple, routine, and repetitive tasks with 21 superficial contact with coworkers and the general public. Id. at 17 . This is a 22 reasonable interpretation and incorporation of Dr. Metoyer’s opinion that Plaintiff 23 had a marked limitation in completing complex tasks and interacting with others. 24 Thus, Dr. Metoyer’s opinion is consistent with the ALJ’s determination of 25 Plaintiff’s residual functional capacity. 26 Plaintiff also argues that Dr. Metoyer did not review Plaintiff’s medical 27 records to reach his conclusions and that Dr. Metoyer only reviewed one report 28 from 2009. This is contradicted by Dr. Metoyer’s report, which stated “[a] review 1 of records was conducted including Yakima Neighborhood Health Services, record 2 dated 08/03/2018, 07/18/2018, physical evaluation record dated 09/06/2016, 3 psychological evaluation record dated 03/19/2009, The Psychological Corporation 4 WAUS 3, full scale IQ score 58, less than 1% extremely low range, record dated 5 02/20/2009.” Id. at 782 . Thus, Dr. Metoyer’s opinion was formed based on a direct 6 examination of Plaintiff and a comprehensive review of his relevant medical 7 records. 8 Because Dr. Metoyer is a medical source who engaged in a medical 9 examination and review of medical records before providing an opinion about 10 Plaintiff’s limitations that was consistent with the ALJ’s conclusion, the Court 11 uphold the ALJ’s decision to give great weight to Dr. Metoyer’s opinion. 12 d. The DSHS examiners 13 Plaintiff argues that the ALJ assigned insufficient weight to Drs. Cline, 14 Petaja, and Bowes’ opinions. Plaintiff states that the ALJ only gave their opinions 15 partial weight because the ALJ found that these doctors had relied on Plaintiff’s 16 subjective testimony, which the ALJ deemed not credible. However, Plaintiff states 17 that these doctors’ opinions were not solely based on Plaintiff’s subjective 18 testimony but were also based on their own observations and testing. Thus, 19 Plaintiff argues that the ALJ discounting their opinions constitutes harmful error 20 because these doctors’ opinions supported a greater degree of mental limitation 21 than the ALJ assessed in her findings. 22 Defendant in response argues that there was substantial evidence supporting 23 the ALJ’s decision to only give these doctors’ opinions partial weight. For 24 example, Dr. Cline stated that she based her evaluation on “information that is 25 made available to the examiner . . . and the claimant’s self-report”—however, 26 Defendant states that no information was made available to Dr. Cline, which meant 27 that she solely relied on Plaintiff’s self-reporting. ECF No. 18 at 17. Similarly, for 28 Drs. Petaja and Bowes, they stated that they relied on Dr. Cline’s description of 1 Plaintiff’s symptoms and Plaintiff’s client report, respectively. Moreover, 2 Defendant states that the ALJ was justified in giving these doctors’ opinions less 3 weight because their opinions were inconsistent with Plaintiff’s record as a whole 4 and because the doctors did not offer detailed explanations to support their 5 opinions. 6 Plaintiff in reply once again argues that, by discounting the DSHS 7 examiners’ opinions, the ALJ essentially made a finding that Plaintiff was not 8 disabled due to his substance abuse. Plaintiff also argues that the DSHS examiners 9 based their opinions on more than Plaintiff’s self-report—they also considered 10 their own observations and testing. 11 The Court finds that there is substantial evidence supporting the ALJ’s 12 decisions regarding the DSHS examiner opinions. As stated above, the ALJ can 13 assign weight to the opinion of experts based on consistency with the record, 14 relevant examination of the claimant, and supporting explanations. 20 C.F.R. 15 § 416.927. 16 First, there is substantial evidence supporting the ALJ’s decision to give Dr. 17 Cline’s decision partial weight. AR at 23. Dr. Cline reported that, because Plaintiff 18 experienced moderate limitations in several basic work activities like 19 understanding, remembering, and persisting in tasks by following instructions, 20 Plaintiff’s overall impairment level was moderate. Id. at 574–75. This conclusion 21 is consistent with the opinion of Dr. Metoyer, who similarly concluded Plaintiff 22 had moderate limitations in understanding, remembering, and carrying out 23 instructions, and making judgments on work-related decisions. Id. at 786. 24 However, while Dr. Cline reached a conclusion consistent with the overall 25 record, Dr. Cline’s review of Plaintiff’s medical record suggest a reliance on 26 Plaintiff’s own self-reporting. In the report, Dr. Cline stated that the evaluation was 27 based on “information that is made available to the examiner . . . and the 28 claimant’s self-report.” Id. at 572. However, Dr. Cline’s report notes that no 1 records were reviewed. Id. (stating “[r]ecords reviewed: N/A”). This suggests Dr. 2 Cline’s conclusion was solely based on Plaintiff’s self-reporting, which the ALJ 3 deemed inconsistent and unreliable. Id. at 19–21. Thus, because Dr. Cline’s 4 opinion—though consistent with the overall record—was based on Plaintiff’s 5 inconsistent self-reporting, the Court upholds the ALJ’s decision to partially weigh 6 Dr. Cline’s opinion. 7 Second, there is substantial evidence supporting the ALJ’s decision to give 8 Dr. Bowes’ opinion partial weight. Dr. Bowes is a psychologist—thus, as an 9 acceptable medical source who directly examined Plaintiff, her opinion is allowed 10 some weight. Id. at 580–86; SSR 06-03p. However, Dr. Bowes did not review any 11 of Plaintiff’s records before reaching her conclusion. AR at 581 (stating “[r]ecords 12 reviewed: None”). Thus, because Dr. Bowes did not review any of Plaintiff’s 13 medical records, the Court upholds the ALJ’s decision to give Dr. Bowes’ opinion 14 partial weight. 15 Finally, there is substantial evidence supporting the ALJ’s decision to give 16 little weight to Dr. Petaja’s opinion. Id. at 23-24. In forming her opinion, Dr. Petaja 17 did not directly examine Plaintiff, but instead relied on only three medical records, 18 one of which was Dr. Cline’s evaluation that relied on Plaintiff’s inconsistent self19 reporting. Id. at 578. Thus, the Court upholds the ALJs decision to give Dr. 20 Petaja’s opinion little weight. 21 // 22 // 23 // 24 // 25 // 26 // 27 // 28 // 1 Accordingly, IT IS HEREBY ORDERED: 1. Plaintiff's Motion for Summary Judgment, ECF No. 17, is DENIED. 3 2. Defendant’s Motion for Summary Judgment, ECF No. 18, is GRANTED. 5 3. The District Court Clerk is directed to enter judgment in favor of Defendant and against Plaintiff. IT IS SO ORDERED. The District Court Clerk is hereby directed to file 8| this Order, provide copies to counsel, and close the file. 9 DATED this 8th day of October 2021. [11] 12 ‘ Souler Ses tran 4 Stanley A. Bastian 15 Chief United States District Judge [28] ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY WINOCMAGNIT 449