United States District Court, W.D. Washington, Seattle
A. TSUCHIDA, CHIEF UNITED STATES MAGISTRATE JUDGE
Clayton C. seeks review of the denial of his application for
Supplemental Security Income. He contends the ALJ improperly
(1) found substance use to be material and rejected opinions
of treating and examining providers, (2) presented a flawed
RFC to the vocational expert, and (3) rejected
plaintiff's testimony and lay witness statements. Dkt.
16. The Court AFFIRMS the Commissioner's
final decision and DISMISSES the case with
is currently 42 years old, has a GED, and has worked as a
machine oiler, fast food worker, sales clerk, small engine
mechanic, and apartment house manager. Tr. 52, 81-82, 301. In
July 2015, he applied for benefits, alleging disability as of
September 2013. Tr. 301. After his application was denied
initially and on reconsideration, the ALJ conducted a hearing
and, on February 2, 2018, issued a decision finding plaintiff
not disabled. Tr. 15-37. The Appeals Council denied
plaintiff's request for review, making the ALJ's
decision the Commissioner's final decision. Tr. 1.
the five-step disability evaluation process and the framework
for evaluating the effects of substance use,  the ALJ found
that plaintiff had not engaged in substantial gainful
activity since the application date; he had the following
severe impairments: right toe amputations, spinal impairment,
arthritis, affective disorder, anxiety disorder, personality
disorder, and substance use disorder; and, when including the
effects of substance use, these impairments did not meet or
equal the requirements of a listed impairment. Tr. 18-19. The
ALJ found that including the substance use disorder,
plaintiff had the residual functional capacity to perform
light work with additional physical and mental limitations,
including that he was unable to sustain work forty hours a
week on a regular and consistent basis and would miss at
least two days of work per month. Tr. 21. The ALJ found that
plaintiff was unable to perform any past relevant work. Tr.
23. The ALJ found that including the substance use disorder,
there were no jobs in the national economy that plaintiff
could perform. Tr. 25.
found that without the effects of his substance use disorder,
plaintiff would continue to have severe impairments and these
severe impairments would not meet or equal a listed
impairment. Tr. 25. The ALJ found that without the effects of
his active substance use, plaintiff would have the residual
functional capacity to perform light work with largely the
same additional physical and mental limitations as when his
substance use disorder was included, except for the
limitation that he was unable to sustain work forty hours a
week on a regular and consistent basis and would miss at
least two days of work per month, which the ALJ did not
include in this RFC finding. Tr. 26. The ALJ found that if
plaintiff stopped the substance use, there would be a
significant number of jobs in the national economy that he
could perform. Tr. 36. The ALJ found that plaintiff's
substance use disorder was a contributing factor material to
the determination of disability because plaintiff would not
be disabled if he stopped the substance use and, for this
reason, plaintiff was not disabled. Tr. 36.
Materiality of substance use
argues that the ALJ erred in finding that plaintiff's
substance use was a material factor contributing to his
disability, arguing that (1) the ALJ failed to provide clear
and convincing reasons to reject uncontradicted opinions of
treating and examining physicians that plaintiff has marked
limitations in ability to complete a normal workday, perform
effectively in a work setting, or adapt to changes in a
routine work setting; (2) there is minimal evidence of
substance use by plaintiff; and (3) the ALJ failed to
separate out and cite to any evidence that plaintiff would be
able to complete a normal workday, perform effectively in a
work setting, or adapt to changes in a routine work setting
without substance use. Dkt. 16 at 2. The court addresses each
argument in turn.
gave weight to the opinions of Dr. Widlan, Dr. Cavanee, Dr.
Andersen, Dr. Mashburn, and ARNP Paluga, but “only in
the context of the claimant's functioning when including
the effects of his substance use disorder.” Tr. 23. The
ALJ discounted these opinions when evaluating plaintiff's
functioning without the effects of substance use. Tr. 31-34.
Plaintiff argues that the ALJ erred in evaluating these
general, more weight should be given to the opinion of a
treating physician than to a non-treating physician, and more
weight to the opinion of an examining physician than to a
non-examining physician. Lester v. Chater, 81 F.3d
821, 830 (9th Cir. 1996). Where not contradicted by another
physician, a treating or examining physician's opinion
may be rejected only for “clear and convincing
reasons.” Id. at 830-31. Where contradicted, a
treating or examining physician's opinion may not be
rejected without “specific and legitimate
reasons” that are supported by substantial evidence in
the record. Id. at 830-31 (quoting Murray v.
Heckler, 722 F.2d 499, 502 (9th Cir. 1983)). An ALJ does
this by setting out a detailed and thorough summary of the
facts and conflicting evidence, stating his interpretation of
the facts and evidence, and making findings. Magallanes
v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). The ALJ
must do more than offer his conclusions; he must also explain
why his interpretation, rather than the treating doctor's
interpretation, is correct. Orn v. Astrue, 495 F.3d
625, 632 (9th Cir. 2007) (citing Embrey v. Bowen,
849 F.2d 418, 421-22 (9th Cir. 1988)).
Widlan examined plaintiff in November 2014. He opined that
plaintiff would have marked limitations in the ability to
adapt to changes in a routine work setting, communicate and
perform effectively in a work setting, and complete a normal
work day and work week without interruptions from
psychologically based symptoms, along with numerous other
moderate limitations. Tr. 438. Dr. Widlan noted that
plaintiff reported no history of drug or alcohol abuse and no
chemical dependency treatment or legal difficulties; he
opined that plaintiff's impairments were not primarily
the result of alcohol or drug use within the last 60 days and
that they would persist following 60 days of sobriety. Tr.
gave Dr. Widlan's opinion minimal weight in regard to
plaintiff's functioning without the effects of his
substance use disorder since his application date. Tr. 31.
The ALJ noted that Dr. Widlan's assessment occurred nine
months before plaintiff's application date, at a time
when he had no mental health care besides case management.
Id. The ALJ found that plaintiff's functioning
improved when he began complying with psychiatric medication
after his application date. Id. The ALJ also found
that plaintiff told Dr. Widlan that he had no history of drug
or alcohol abuse and no history of legal difficulties or
chemical dependency treatment, whereas a prior ALJ decision
established that he has a history of alcohol dependence and
marijuana use disorder with unreliable self-reporting of his
substance use, and he was convicted of burglary in 1999 and
otherwise has an abundance of criminal charges. Tr. 31. And
the ALJ found that Dr. Widlan found marginal grooming, flat
affect, impaired memory, and impaired judgment, whereas in
treatment settings plaintiff typically exhibited adequate
grooming, appropriate affect, unimpaired memory, and intact
judgment. Tr. 31-32. The ALJ found that these inconsistencies
indicate that Dr. Widlan's assessment is not accurate, at
least not concerning plaintiff's functioning without the
effects of his substance use disorder. Tr. 32.
argues that there was no evidence that plaintiff was under
the influence of alcohol or drugs at the time of Dr.
Widlan's evaluation, and Dr. Widlan opined that
plaintiff's impairments would persist following 60 days
of sobriety, so plaintiff's non-disclosure would not have
affected Dr. Widlan's professional opinion. Dkt. 16 at 3.
The court disagrees. Even if plaintiff was not under the
influence of drugs or alcohol during the examination, his
omission of his history of drug and alcohol abuse left Dr.
Widlan unaware of information that could have affected his
assessment of the nature and severity of plaintiff's
impairments and his functional limitations. Plaintiff also
denied legal difficulties and chemical dependency treatment,
when the record demonstrates that he experienced both. An ALJ
may properly reject a treating physician's opinion that
is inconsistent with the record and not supported by
objective evidence. See Meanel v. Apfel, 172 F.3d
1111, 1113-14 (9th Cir. 1999). The information plaintiff gave
Dr. Widlan was inconsistent with the evidence in the record,
and Dr. Widlan based his opinion on that inconsistent and
inaccurate information. This was a specific and legitimate
reason to reject the opinion.
gave other reasons for discounting Dr. Widlan's opinion.
But even if these reasons were invalid, any error would be
inconsequential to the decision. See Molina v.
Astrue, 674 F.3d 1104, 1122 (9th Cir. 2012) (an error is
harmless where it is inconsequential to the ALJ's
ultimate nondisability determination). The ALJ did not
validly gave Dr. Widlan's ...