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Clayton C. v. Commissioner of Social Security

United States District Court, W.D. Washington, Seattle

August 5, 2019

CLAYTON C., Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          ORDER

          BRIAN A. TSUCHIDA, CHIEF UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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 prejudice.

         BACKGROUND

         Plaintiff 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 ALJ'S DECISION

         Utilizing the five-step disability evaluation process and the framework for evaluating the effects of substance use, [1] 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.[2] 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.

         The ALJ 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.

         DISCUSSION

         A. Materiality of substance use

         Plaintiff 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.

         1. Medical opinions

         The ALJ 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 medical opinions.

         In 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)).

         a. Dr. Widlan

         Dr. 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. 436, 438.

         The ALJ 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.

         Plaintiff 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.

         The ALJ 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 ...


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