Opinion

Brown v. Berryhill

Court
District Court, N.D. California
Filed
Mar 24, 2020
Cited by
0 cases
Authority
More cited than 18.6%

“[A] reviewing 21 court must consider the entire record as a whole and may not affirm simply by isolating a specific 22 quantum of supporting evidence.”

How later courts described this case

  • “[A] reviewing 21 court must consider the entire record as a whole and may not affirm simply by isolating a specific 22 quantum of supporting evidence.”
  • the regulations give more weight to the opinions of specialists 4 concerning matters relating to their specialty than they do to opinions of non-specialists
  • “If a treating or 16 examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ may only reject it 17 by providing specific and legitimate reasons that are supported by substantial evidence.”
  • an ALJ need not agree with everything contained in the medical opinion and can consider 5 some portions less significant than others

Written by the judges who cited it.

The opinion

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8 UNITED STATES DISTRICT COURT

9 NORTHERN DISTRICT OF CALIFORNIA

10 San Francisco Division

11 TONI V. BROWN, Case No. 18-cv-06957-LB

12 Plaintiff,

ORDER GRANTING PLAINTIFF’S

13 v. MOTION FOR SUMMARY

JUDGMENT

14 ANDREW SAUL,1

Re: ECF No. 22

15 Defendant.

16

17

INTRODUCTION

18

Plaintiff Toni Brown seeks judicial review of a final decision by the Commissioner of the

19

Social Security Administration denying her claim for social-security disability insurance (“SSDI”)

20

benefits under Title II of the Social Security Act (“SSA”).2 The plaintiff moved for summary

21

judgment.3 The Commissioner opposed the motion and filed a cross-motion for summary

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1 Andrew Saul is now the Commissioner of Social Security and is automatically substituted as a party

25 pursuant to Fed. R. Civ. P. 25(d). See also 42 U.S.C. § 405(g) (action survives regardless of any

change in the person occupying the office of Commissioner of Social Security).

26

2 Motion for Summary Judgment (“Mot.”) – ECF No. 22. Citations refer to material in the Electronic

27 Case File (“ECF”); pinpoint citations are to the ECF-generated page numbers at the top of documents.

3Id.

1 judgment.4 Under Civil Local Rule 16–5, the matter is submitted for decision by this court without

2 oral argument.

3 The court grants the plaintiff’s motion, denies the Commissioner’s motions, and remands for

4 further proceedings.

5 STATEMENT

6 1. Procedural History

7 On March 31, 2015, the plaintiff, then age 56, filed a claim for SSDI benefits under Title II of

8 the SSA.5 The plaintiff alleged post-traumatic stress disorder (“PTSD”) and a torn ligament in her

9 right ankle.6 The Commissioner denied the plaintiff’s SSDI claim initially and on reconsideration.7

10 The plaintiff timely requested a hearing.8

11 On May 30, 2017 an Administrative Law Judge (the “ALJ”) held a hearing and heard

12 testimony from the plaintiff and a vocational expert (“VE”).9 On October 6, 2017, the ALJ issued

13 an unfavorable decision.10 The plaintiff timely appealed the decision to the Appeals Council on

14 November 29, 2017.11 The Appeals Council denied her request for review on September 21,

15 2018.12

16

17

18 4 Cross-Mot. – ECF No. 23.

19

5 AR 94. Administrative Record (“AR”) citations refer to the page numbers in the bottom-right hand

corner of the AR.

20 6 These are the impairments that the plaintiff asserted in her initial Disability Determination

Explanation. AR 94. In the plaintiff’s request for reconsideration, she added back pain, which she

21 alleged started in April 2015. AR 110. The ALJ found that the plaintiff had the following severe

impairments: affective disorders, anxiety disorders, post-traumatic stress disorder, cervical and lumbar

22 degenerative disc disease, history of ankle sprain, and substance abuse disorder. AR 18, 38. The

plaintiff’s motion alleges degenerative disc disease of the cervical and lumbar spine, chronic right-

23 ankle pain, bipolar disorder, PTSD, and depression.” Mot. – ECF No. 22 at 6.

24

7 AR 106, 122 (initial determination); 125, 133 (reconsideration).

8 AR 140–141.

25

9 AR 57–90.

26 10 AR 13, 33.

27

11 AR 186–187.

12 AR 1–6.

1 On November 16, 2018, the plaintiff timely filed this action for judicial review and

2 subsequently moved for summary judgment on June 13, 2019.13 The Commissioner opposed the

3 motion and filed a cross-motion for summary judgment on July 11, 2019.14 The plaintiff filed a

4 reply on August 8, 2019.15 All parties consented to magistrate-judge jurisdiction.16

5

6 2. Medical Records

7 Mental-Health Records

8 The plaintiff submitted the following mental-health records to support her claim for disability:

9 (1) notes from CURA, a residential-drug-rehabilitation clinic where the plaintiff stayed and was

10 treated from August to December 2014;17 (2) records from the Schuman-Liles Clinic where, from

11 December, 2014 to August, 2015, the plaintiff saw psychiatrist, Kermit Johnson, M.D., for

12 anxiety, depression, and PTSD;18 (3) notes from the Portia Belle Hume Center where the plaintiff

13 was treated by doctors (including Nithya Narayan, Psy.D., and Nancy Morgan, Ph.D.) and social

14 workers from December 2014 to March 2015;19 (4) notes from the John George Psychiatric

15 Pavilion where the plaintiff was held under a psychiatric hold (or 5150 under the California Health

16 and Safety Code) in January 2015 and was treated for suicidal ideations in 2017;20 notes from

17 Kambiz Sakhai, Psy.D., who treated the plaintiff in weekly psychotherapy sessions from January

18 2016, to at least May 2017, and who filled out a mental-impairment questionnaire for the

19 plaintiff;21 records form Pathways to Wellness, where the plaintiff was treated for, among other

20

21

13 Compl. – ECF No. 1; Mot. – ECF No. 22.

22

14 Cross Mot. – ECF No. 23.

23 15 Reply – ECF No. 26.

24

16 Consent Forms – ECF Nos. 9, 11.

17 AR 316414

25

18 AR 570602.

26 19 AR 452480.

27

20 AR 415451, 815839.

21 AR 658701, 840845.

1 things, depression, PTSD, and bipolar disorder from several doctors from January 2016 to

2 February 2017;22 records from the Bay Area Community Services SAGE Program from February

3 2016 to April 2017, where the plaintiff received counseling from social workers and marriage-

4 family therapists; 23 and a March 2017 psychological examination and medical-source statement

5 from Ute Kollath, Ph.D..24

6 Physical-Health Records

7 The plaintiff submitted the following physical-health records to support her claim for

8 disability: (1) treatment notes from the Highland Hospital Emergency Department for pain she had

9 in her right hand and right ankle in August 2014;25 (2) notes from her primary-care physician,

10 Mythri Gollapalle, M.D., at Tri-City Health, from September 2014, to February 2017;26 (3) 2014

11 records from Mission Peak Orthopedics where the plaintiff was treated for pain in her right

12 ankle;27 (4) notes from Nguyen Chiropractic where the plaintiff was treated for back pain resulting

13 from a car accident from May 2015 to August 2015 by Linh Nguyen, M.D.;28 and a March 2017

14 physical examination and medical-source statement from Eugene McMillan, M.D..29

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16 3. Administrative Proceedings

17 Disability Determination Explanations

18 During the administrative process, non-examining doctors generated two disability-

19 determination explanations (“DDE”), one on July 25, 2015, for the plaintiff’s initial application,

20 and another October 8, 2015, for the reconsideration level.

21

22

22 AR 620646.

23 23 AR 702778.

24

24 AR 612–619.

25 AR 317–322.

25

26 AR 481569, 779802.

26 27 AR 302315.

27

28 AR 846870.

29 AR 603611.

1 At the initial level, the plaintiff was found to have affective disorders, anxiety disorders, and

2 “Drugs, Substance Addiction Disorders” which were severe, and spine disorders, which were non-

3 severe.30 Hillary Weiss, Ph.D., developed a mental residual-functioning capacity (“RFC”)

4 determining that the plaintiff was moderately limited in her abilities to carry out detailed

5 instructions, maintain attention and concentration for extended periods, complete a normal

6 workday and workweek without interruptions from psychologically based symptoms, perform at a

7 consistent pace without an unreasonable number and length of rest periods, interact appropriately

8 with the general public, get along with coworkers or peers without distracting them or exhibiting

9 behavioral extremes, and respond appropriately to changes in the work setting.31 Dr. Weis

10 determined that the plaintiff was not significantly limited in any other area.32 Based on these

11 findings, Alan Coleman, M.D., determined the plaintiff was not disabled.33

12 On reconsideration, JoAnne Coyle, Ph.D., had the same mental RFC findings as Dr. Weiss,

13 except she determined that the plaintiff was moderately limited in her ability to understand and

14 remember detailed instructions, accept instructions and respond appropriately to criticism from

15 supervisors and set realistic goals or make plans independently of others.34 She also found that the

16 plaintiff was “not disabled.”35

17 Administrative Hearing

18 On May 30, 2017, the ALJ held a hearing at which the plaintiff and a vocational expert

19 testified.36

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21

22

23 30 AR 101.

24

31 AR 104–105.

32 Id.

25

33 AR 106107.

26 34 AR 120–121.

27

35 AR 123.

36 AR 52–92.

1 Plaintiff’s Testimony

2 The plaintiff said she worked for Wells Fargo for two years, until Wells Fargo fired her (about

3 thirty years ago).37 Thereafter, she worked as an escort (as a sex-worker) but has not engaged in

4 prostitution since entering CURA in 2014.38

5 The plaintiff stated she was in a car accident that exacerbated her back and neck problems and

6 revealed arthritis was in 90% of her back.39 She had “a hard time lifting things, turning [her] neck,

7 and [she’s] in pain most of the time.”40 The heaviest thing she could carry was “two or three

8 pounds.”41 Her neck pain felt “really sharp and it’s like somebody pulling your hair.”42 The pain in

9 her back was “dull, aching pain.”43 The pain limited her, she “can’t think straight….”44 She cannot

10 “go [thirty] minutes after waking up without taking a pain pill” and had a torn ligament in her

11 ankle; an orthopedic surgeon gave her a hydraulic boot but it was not working.45 She was taking

12 “five psych meds and three pain killers an [she was] losing the lining in [her] stomach.”46 She said

13 that her “neck [was] getting worse” and was going to look into physical therapy.47

14 The plaintiff said many of her issues stemmed from being a victim of child molestation and

15 being abused by her adoptive parents.48 While she was a sex worker, she took crack cocaine to

16 help her “get through a few clients” and began to use more and more.49 Her clients Tried to kill her

17

18

37 AR 59–60.

19

38 AR 71.

20 39 AR 61.

21

40 Id.

41 AR 81.

22

42 AR 80.

23 43 AR 81.

24

44 Id.

45 AR 62, 64.

25

46 AR 64.

26 47 AR 68–69.

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48 AR 62, 68.

49 AR 63.

1 two or three times, held a gun to her head, robbed her, beat her up, and thrown her out of cars.50

2 She was being treated for PTSD and bipolar disorder. 51 She had a lot of nightmares, could not

3 concentrate well, and tried to kill herself twice.52 She had been sober for eighteen to nineteen

4 months and attended NA meetings.53 Her prior “brushes with the law” was for “petty stuff; petty

5 theft. Nothing big.”54

6 On an ordinary day, the plaintiff wakes up and takes her pain medication and her “psych” pills

7 at night; the medications kept her “comatose” and made it hard to “do too much of anything.”55

8 She “can’t really help with a lot of stuff around the house anymore.”56 She wrote in her journal,

9 watched a lot of TV, talked to her aunt, talked to her sponsor, and went to meetings.57 Her “back

10 hurt[] all the time” and the “medicine’s not working as well as it used to;” she was “building up a

11 resistance.”58 The plaintiff saw a therapist once a week, a psychiatrist once a month, and her

12 primary-care physician every two weeks.59 She went to the grocery store once or twice a month.60

13 When she tried to carry her laundry basket, “pain shot up her back….”61

14 The plaintiff went to “the Box program” for therapy.62 She no longer socialized because she

15 had “no friends really,” she had a family, her sponsor was her friend, and she had difficulty

16 trusting people.63 When she felt anxious — which was “[a]ll the time, … six out of seven days a

17

18

50 Id.

51 Id.

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52 Id.

20 53 AR 6566.

21

54 AR 66.

55 AR 70.

22

56 AR 69–70.

23 57 AR 70.

24

58 Id.

59 AR 71.

25

60 AR 70, 72.

26 61 AR 72.

27

62 AR 73.

63 Id.

1 week” — she would “go under the covers” and “lay down and pray she would go to sleep[.]”64

2 The plaintiff missed appointments, did not want to deal with the public, had nightmares three

3 times a week, woke up in the middle of the night, and took hours-long naps every day due to her

4 anxiety.65 She was building a resistance to the medication she took for her nightmares.66 The

5 plaintiff experienced depression and felt irritable or angry every day and had trouble concentrating

6 and focusing.67 She needed reminders to take her medication and pick up refills.68

7 After she stopped using crack, “[e]verything got worse. [Her] outlook got better until [she]

8 started having all the problems and getting help for different things and then started going

9 downhill.”69

10 Vocational Expert Testimony

11 The VE said that the plaintiff had “no legitimate or legal past work.”70

12 The VE testified that a hypothetical person of the plaintiff’s age and education — who was

13 limited to standing for four hours, walking for two hours, operating foot controls with her right

14 foot and left foot occasionally, climbing ramps and stairs occasional but never ladders, ropes or

15 scaffolds, and could not work at unprotected heights — could work as a linen attendant (DOT

16 222387010), senior industrial (DOT 381687018), and a ticket taker (DOT 344667010).71 The VE

17 said there were no jobs in the national economy for a second hypothetical individual, who was the

18 same as the first, but would be “absent one day per month” and “late for work two days per

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20

21

22

64 AR 74.

23 65 AR 73.

24

66 AR 74–76.

67 AR 77−79.

25

68 AR 80.

26 69 AR 81–82.

27

70 AR 85.

71 AR 85−86.

1 month” by thirty minutes on an unscheduled basis” because the individual would “get laid off or

2 let go or fired.”72

3 The plaintiff’s attorney asked the VE a hypothetical that assumed the plaintiff’s age and

4 education and a long list of limitations.73 The VE could not take the entire list of limitations as a

5 whole into consideration, but responded that the following limitations, taken individually, would

6 preclude an individual from work: being absent four times a month, being off task consistently 30

7 percent of the day, responding to requests, suggestions, criticisms from supervisors if they had a

8 hard time or an outburst more than twenty percent of the time, and adapting to changes.74

9 Administrative Findings

10 The ALJ followed the five-step sequential evaluation process to determine whether the

11 plaintiff was disabled and concluded she was not.75

12 At step one, the ALJ found that that the plaintiff had not engaged in substantial gainful activity

13 since her application date of March 31, 2015.76

14 At step two, the ALJ found that the plaintiff had the following severe impairments: “Affective

15 Disorders; Anxiety Disorder; Post-Traumatic Stress Disorder (PTSD); Cervical and Lumbar

16 Degenerative Disc Disease; History of Ankle Sprain; and Substance Abuse Disorder[.]”77

17 At step three, the ALJ found that the plaintiff had an impairment or combination of

18 impairments that met or medically equaled the severity of a listed impairment.78 Specifically, the

19 “paragraph A” criteria were satisfied because her mental impairments, including the substance use

20 disorders, met the listings 12.04 affective disorder, 12.06 anxiety related disorders, and 12.15

21

22

23 72 AR 86−87.

24

73 AR 88.

74 AR 89–90.

25

75 AR 13–28, 33–49.

26 76 AR 18, 38.

27

77 Id.

78 AR 19, 39.

1 trauma- and stressor-related disorders.79 The plaintiff satisfied “paragraph B” criteria because the

2 plaintiff’s mental impairments cause at least two “marked” limitations or one “marked”

3 limitation.80 The ALJ found that she had a marked limitation in (1) understanding, remembering,

4 and applying information; (2) in interacting with others; in concentrating, persisting, or

5 maintaining pace; and (3) in managing herself.81 When the plaintiff was under the influence of

6 substances, she had “marked limitations in all areas of mental functioning.”82

7 The ALJ found that if the plaintiff stopped using illicit substances, the remaining limitations

8 would cause more than a minimal impact on her ability to perform basic work activities; therefore,

9 she would continue to have a severe impairment or combination of impairments.83 The ALJ stated

10 that the plaintiff’s “mental condition significantly improved following medication management

11 and abstinence from drugs,” but “even during periods of sustained sobriety, the claimant continued

12 to be treated for affective and PTSD related symptoms,” and “there is no evidence that the

13 claimant’s physical impairments are neither caused nor exacerbated by her substance use, and they

14 remain at the same level of severity.”84

15 The ALJ held that if the plaintiff stopped using illicit substances, the remaining impairments or

16 combination of impairments would not meet or medically equal any of the impairments in the

17 “paragraph B” criteria.85 For the plaintiff’s physical impairments, there was insufficient evidence

18 to satisfy the pertinent requirements under 1.02 (major dysfunction of a joint(s)) and 1.04

19 (disorders of the spine).86 The plaintiff did not have the “manipulative restrictions to meet listing

20

21

22

79 Id.

23 80 Id.

24

81 Id.

82 Id.

25

83 AR 20, 40.

26 84 Id.

27

85 Id.

86 Id.

1 level severity” and would “not result in an extreme limitation of the ability to walk.”87 For the

2 plaintiff’s mental impairments, there was insufficient evidence to satisfy the pertinent

3 requirements under 12.04 (depressive, bipolar, and related disorders), 12.06 (anxiety and

4 obsessive-compulsive disorders), or 12.15 (trauma- and stressor-related disorders).88 The plaintiff

5 would have moderate limitations in understanding, remembering, or applying information and

6 concentrating, persisting, or maintaining pace and mild limitations in interacting with others and

7 adapting or managing oneself. 89

8 The ALJ also found that the “paragraph C” criteria would not be satisfied.90 The plaintiff

9 showed adequate mental functioning “outside inpatient treatment/hospitalization adjusted to

10 various life stressors, and with medication compliance” and that “no State agency psychological

11 consultant concluded that a mental listing is medically equaled if the claimant stopped the

12 substance use.”91

13 At step four, the ALJ determined that the plaintiff had the residual-functional capacity

14 (“RFC”) to perform a medium range of work at all exertional levels limited to simple, routine, and

15 repetitive tasks if she stopped the substance use.92

16 At step five, the ALJ found that the plaintiff had no past relevant work to examine and so

17 transferability of job skills was not relevant.93 The plaintiff was defined as an individual of

18 advanced age on the date the application was filed.94 She had a high-school education and can

19 communicate in English.95 Considering the plaintiff’s RFC, age, education, and work experience

20

21

87 Id.

22

88 Id.

23 89 AR 20–21, 40–41.

24

90 AR 22, 42.

91 Id.

25

92 Id.

26 93 AR 27, 47.

27

94 Id.

95 Id.

1 in conjunction with the Medical-Vocational Guidelines, the ALJ concluded she was “not disabled”

2 under the framework of section 203.14.96 The ALJ concluded that the substance-abuse disorder

3 was a contributing factor material to the determination of disability because the plaintiff would not

4 be disabled if she stopped the substance use, and thus she was not disabled.97

5

6 STANDARD OF REVIEW

7 Under 42 U.S.C. § 405(g), district courts have jurisdiction to review any final decision of the

8 Commissioner if the claimant initiates a suit within sixty days of the decision. A court may set

9 aside the Commissioner’s denial of benefits only if the ALJ’s “findings are based on legal error or

10 are not supported by substantial evidence in the record as a whole.” Vasquez v. Astrue, 572 F.3d

11 586, 591 (9th Cir. 2009) (internal citation and quotation marks omitted); 42 U.S.C. § 405(g).

12 “Substantial evidence means more than a mere scintilla but less than a preponderance; it is such

13 relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”

14 Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). The reviewing court should uphold “such

15 inferences and conclusions as the [Commissioner] may reasonably draw from the evidence.” Mark

16 v. Celebrezze, 348 F.2d 289, 293 (9th Cir. 1965). If the evidence in the administrative record

17 supports the ALJ’s decision and a different outcome, the court must defer to the ALJ’s decision

18 and may not substitute its own decision. Tackett v. Apfel, 180 F.3d 1094, 1097– 98 (9th Cir. 1999).

19 “Finally, [a court] may not reverse an ALJ’s decision on account of an error that is harmless.”

20 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012).

21

22 GOVERNING LAW

23 A claimant is considered disabled if (1) she suffers from a “medically determinable physical or

24 mental impairment which can be expected to result in death or which has lasted or can be expected

25 to last for a continuous period of not less than twelve months,” and (2) the “impairment or

26

27

96 AR 28, 48.

1 impairments are of such severity that [she] is not only unable to do [her] previous work but

2 cannot, considering [her] age, education, and work experience, engage in any other kind of

3 substantial gainful work which exists in the national economy....” 42 U.S.C. § 1382c(a)(3)(A) &

4 (B). The five-step analysis for determining whether a claimant is disabled within the meaning of

5 the Social Security Act is as follows.

6 Step One. Is the claimant presently working in a substantially gainful activity? If so, then

the claimant is “not disabled” and is not entitled to benefits. If the claimant is not working

7 in a substantially gainful activity, then the claimant’s case cannot be resolved at step one,

and the evaluation proceeds to step two. See 20 C.F.R. § 404.1520(a)(4)(i).

8

Step Two. Is the claimant’s impairment (or combination of impairments) severe? If not,

9 the claimant is not disabled. If so, the evaluation proceeds to step three. See 20 C.F.R. §

404.1520(a)(4)(ii).

10

Step Three. Does the impairment “meet or equal” one of a list of specified impairments

11 described in the regulations? If so, the claimant is disabled and is entitled to benefits. If the

claimant’s impairment does not meet or equal one of the impairments listed in the

12

regulations, then the case cannot be resolved at step three, and the evaluation proceeds to

13 step four. See 20 C.F.R. § 404.1520(a)(4)(iii).

Step Four. Considering the claimant’s RFC, is the claimant able to do any work that he or

14

she has done in the past? If so, then the claimant is not disabled and is not entitled to

15 benefits. If the claimant cannot do any work he or she did in the past, then the case cannot

be resolved at step four, and the case proceeds to the fifth and final step. See 20 C.F.R. §

16 404.1520(a)(4)(iv).

17 Step Five. Considering the claimant’s RFC, age, education, and work experience, is the

claimant able to “make an adjustment to other work?” If not, then the claimant is disabled

18 and entitled to benefits. See 20 C.F.R. § 404.1520(a)(4)(v). If the claimant is able to do

other work, the Commissioner must establish that there are a significant number of jobs in

19 the national economy that the claimant can do. There are two ways for the Commissioner

to show other jobs in significant numbers in the national economy: (1) by the testimony of

20

a vocational expert or (2) by reference to the Medical-Vocational Guidelines at 20 C.F.R.,

21 part 404, subpart P, app. 2.

22 Tackett, 180 F.3d at 1098 (citing 20 C.F.R. § 404.1520).

23 For steps one through four, the burden of proof is on the claimant. At step five, the burden

24 shifts to the Commissioner. Gonzales v. Sec’y of Health & Human Servs., 784 F.2d 1417, 1419

25 (9th Cir. 1986).

26 ANALYSIS

27 The plaintiff contends that the ALJ erred by (1) improperly weighing medical-opinion

1 of drug and alcohol abuse, (4) failing to base the plaintiff’s RFC on substantial evidence; and (5)

2 failing to base his step-five findings on substantial evidence.98

3 For the reasons below, the court grants the plaintiff’s motion for summary judgment, denies

4 the Commissioner’s cross-motion for summary judgment, and remands for further proceedings

5 consistent with this order.

6

7 1. Whether the ALJ Erred in Weighing Medical-Opinion Evidence

8 The plaintiff contends that the ALJ erred by (1) rejecting the opinion of consultative examiner

9 Dr. McMillan, (2) rejecting the opinions of treating psychiatrists Dr. Newsom and Dr. Chopra, (3)

10 rejecting the opinion of treating psychologist Dr. Sakhai, (4) ignoring the opinions of treating

11 clinicians Dr. Johnson, Dr. Narayan, Dr. Morgan, and Dr. Caruso-Maxey, and (5) rejecting the

12 opinions of treating social workers Chika and A’za Williams.99

13 The court holds that the ALJ erred in weighing the opinions of Drs. Newsom, Chopra, Sakhai,

14 Narayan, Morgan, and Caruso-Maxey.

15 Legal Standard

16 The ALJ is responsible for “‘resolving conflicts in medical testimony and for resolving

17 ambiguities.’” Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014) (quoting Andrews, 53 F.3d

18 at 1039). In weighing and evaluating the evidence, the ALJ must consider the entire case record,

19 including each medical opinion in the record, together with the rest of the relevant evidence.

20 20 C.F.R. § 416.927(b); see Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (“[A] reviewing

21 court must consider the entire record as a whole and may not affirm simply by isolating a specific

22 quantum of supporting evidence.”) (internal quotation marks and citation omitted).

23 “In conjunction with the relevant regulations, [the Ninth Circuit has] developed standards that

24 guide [the] analysis of an ALJ’s weighing of medical evidence.” Ryan v. Comm’r of Soc. Sec., 528

25

26

27

98 Mot. – ECF No. 22 at 13–28.

99 Id. at 13–20.

1 F.3d 1194, 1198 (9th Cir. 2008) (citing 20 C.F.R. § 404.1527).100 Social Security regulations

2 distinguish between three types of physicians: (1) treating physicians; (2) examining physicians;

3 and (3) non-examining physicians. 20 C.F.R. § 416.927(c), (e); Lester v. Chater, 81 F.3d 821, 830

4 (9th Cir. 1995). “Generally, a treating physician’s opinion carries more weight than an examining

5 physician’s, and an examining physician’s opinion carries more weight than a reviewing [non-

6 examining] physician’s.” Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001) (citing

7 Lester, 81 F.3d at 830); Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996).

8 An ALJ, “may disregard the opinion of a treating physician, whether or not controverted.”

9 Andrews, 53 F.3d at 1041. “To reject [the] uncontradicted opinion of a treating or examining

10 doctor, an ALJ must state clear and convincing reasons that are supported by substantial

11 evidence.” Ryan, 528 F.3d at 1198 (alteration in original) (internal quotation marks and citation

12 omitted). By contrast, if the ALJ finds that the opinion of a treating physician is contradicted, a

13 reviewing court will require only that the ALJ provide “specific and legitimate reasons supported

14 by substantial evidence in the record.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)

15 (internal quotation marks and citation omitted); see Garrison, 759 F.3d at 1012 (“If a treating or

16 examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ may only reject it

17 by providing specific and legitimate reasons that are supported by substantial evidence.”) (internal

18 quotation marks and citation omitted). “The opinions of non-treating or non-examining physicians

19 may also serve as substantial evidence when the opinions are consistent with independent clinical

20 findings or other evidence in the record.” Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002).

21 An ALJ errs when he “rejects a medical opinion or assigns it little weight” without explanation

22 or without explaining why “another medical opinion is more persuasive, or criticiz[es] it with

23 boilerplate language that fails to offer a substantive basis for his conclusion.” Garrison, 759 F.3d

24 at 1012–13. “[F]actors relevant to evaluating any medical opinion, not limited to the opinion of the

25 treating physician, include the amount of relevant evidence that supports the opinion and the

26

27 100 The Social Security Administration promulgated new regulations, including a new § 404.1521,

effective March 27, 2017. The previous version, effective to March 26, 2017, applies here. See 20

1 quality of the explanation provided[,] the consistency of the medical opinion with the record as a

2 whole[, and] the specialty of the physician providing the opinion....” Orn, 495 F.3d at 631. (citing

3 20 C.F.R. § 404.1527(d)(3)–(6)); see also Magallanes v. Bowen, 881 F.2d 747, 753 (9th Cir.

4 1989) (an ALJ need not agree with everything contained in the medical opinion and can consider

5 some portions less significant than others).

6 “A treating physician’s opinion is not binding on the Commissioner with respect to the

7 existence of an impairment or the ultimate issue of disability.” Alcala v. Colvin, SACV 12–0626

8 AJWW, 2013 WL 1620352, at *5 (C.D. Cal., Apr. 15, 2013) (citing Tonapetyan v. Halter, 242

9 F.3d 1144, 1148 (9th Cir. 2001)). “However, a treating physician’s medical opinion as to the

10 nature and severity of an individual’s impairment is entitled to controlling weight when that

11 opinion is well-supported and not inconsistent with other substantial evidence in the record.” Id.

12 (citing Edlund v. Massanari, 253 F.3d 1152, 1157 (9th Cir. 2001); Holohan v. Massanari, 246

13 F.3d 1195, 1202 (9th Cir. 2001)). “Even when not entitled to controlling weight, ‘treating source

14 medical opinions are still entitled to deference and must be weighed’ in light of (1) the length of

15 the treatment relationship; (2) the frequency of examination; (3) the nature and extent of the

16 treatment relationship; (4) the supportability of the diagnosis; (5) consistency with other evidence

17 in the record; and (6) the area of specialization. Id. (quoting Edlund, 253 F.3d at 1157 & n.6).

18 The ALJ must consider the opinions of other “medical sources who are not acceptable medical

19 sources and [the testimony] from nonmedical sources.” 20 C.F.R. § 404.1527(f). The ALJ is

20 required to consider observations by “other sources” as to how an impairment affects a claimant’s

21 ability to work. Id. Nonetheless, an “ALJ may discount [the] testimony” or an opinion “from these

22 other sources if the ALJ gives … germane [reasons] for doing so.” Molina v. Astrue, 674 F.3d

23 1104, 1111 (9th Cir. 2012) (internal quotations and citations omitted). “[A]n opinion from a

24 medical source who is not an acceptable medical source may outweigh the medical opinion of an

25 acceptable medical source[.]” 20 C.F.R. § 404.1527(f)(1). “For example, it may be appropriate to

26 give more weight to the opinion of a medical source who is not an acceptable medical source if he

27 or she has seen the individual more often than the treating source, has provided better supporting

1 evidence as a whole.” Id.

2 Dr. McMillan

3 Dr. McMillan examined the plaintiff and filled out a medical-source statement opining that the

4 plaintiff was limited to the full range of light-exertional work in March of 2017.101 The ALJ gave

5 little weight to his opinion, and the plaintiff contends this was error.102

6 Dr. McMillan is an examining physician and his opinion is contradicted. Thus, the ALJ was

7 required to give specific and legitimate reasons based on substantial evidence to discount his

8 opinion. Garrison, 759 F.3d at 1012

9 The ALJ gave Dr. McMillan’s opinion little weight because of the following:

10 Dr. McMillan limited the claimant to the full range of light exertion, and able to engage in

activities that require stooping, kneeling, and crouching for more than one third of a

11 workday.... The undersigned gives little weight to this assessment because her conservative

yet infrequent treatment for her physical impairments, and her good response to

12

chiropractic treatment, show that she is not as limited as alleged or assessed by Dr.

13 McMillan.103

14 This is a specific and legitimate reason that is supported by substantial evidence.

15 Dr. Nguyen, a chiropractor, treated the plaintiff for neck and back pain between May and

16 August 2015 following her car accident.104 Notes from the plaintiff’s appointments with Dr.

17 Nguyen indicate the plaintiff improved to mostly normal ranges of motion in her back and self-

18 reported 90% improvement on her last appointment. The above reasons the ALJ provided are

19 based on these findings. Because Dr. Nguyen is a treating source, with specialized knowledge,

20 who treated the plaintiff multiple times, her opinion and findings trump those of Dr. McMillan.

21 Holohan, 246 F.3d 1195 (A treating physician’s opinion carries more weight than an examining

22 physician’s.). The ALJ did not err here.

23

24

25

101 AR 603–605.

26 102 AR 45; Mot.  ECF No. 22 at 1416.

27

103 AR 25, 45.

104 AR 851–862, 863–864, 865–866, 867–868.

1 Dr. Newsom and Dr. Chopra

2 Peter Newsom, M.D., and Kapil Chopra, M.D., among others, treated the plaintiff from

3 January 2016 to February 2017 at Pathways to Wellness and diagnosed her with PTSD and bipolar

4 disorder.105 The ALJ gave little weight to their opinions.106 The plaintiff argues this was error.107

5 The opinions of the providers at Pathways to Wellness are contradicted by the non-examining

6 sources of record, and therefore the ALJ was required to provide specific and legitimate reasons

7 based on substantial evidence in the record to reject them. Reddick, 157 F.3d at 725.

8 The ALJ gave little weight to their opinions for the following reason:

9 The claimant was under sustained remission from drug abuse other than marijuana use

during this period. The undersigned gives overly restrictive and inconsistent with the GAF

10 scores contained in the same treatment notes. The GAF scores[,] ranging between 55 and

65, indicated only mild and/or moderate limitations in social and occupational functioning

11

despite the assessed marked/severe functional limitations…. These marked limitations are

12 also inconsistent with the objective findings that consistently document good/fair attention

and concentration, and intact immediate, remote and recent memory.108

13

14 First, the ALJ argues that the assessments were overly restrictive and inconsistent with the

15 GAF scores given to the plaintiff. This reason is not supported by substantial evidence. Dr.

16 Newsom found that the plaintiff had mild restriction of activities of daily living, marked

17 difficulties in maintaining social functioning and relationships and maintaining concentration, and

18 extreme episodes of decomposition and increase of symptoms for extended durations.109 Dr.

19 Chopra noted that the plaintiff was unable to live independently because of hallucinations and

20 limited insight and had a severe difficulty with socialization and medication compliance due to

21 missing medication appointments.110 The court does not find that these are overly restrictive

22 findings. Although both doctors gave the plaintiff GAF scores ranging from 55 to 65,111 which

23

105 AR 624–646.

24

106 AR 21, 41.

25 107 Mot.  ECF No. 22 at 1617.

26

108 AR 21, 41.

109 AR 628.

27

110 AR 644.

1 conflict somewhat with their findings, the plaintiff argues persuasively that those GAF scores, by

2 themselves, are not sufficient grounds to discount the treating doctors’ findings. See Macias v.

3 Colvin, No. 1:15-cv-00107-SKO, WL 1224067 at *8 (E.D. Cal. Mar. 29, 2016) (“Although the

4 ALJ is to weigh the medical evidence and interpret it, … he or she is not empowered to

5 independently assess clinical findings and reject multiple medical opinions based on the ALJ’s

6 own independent interpretation of unexplained GAF scores[.]”) (citing Tackett, 180 F.3d at

7 110302) (internal citations omitted). This reason was not based on substantial evidence.

8 The ALJ’s contentions — that the marked findings from the providers at Pathways to Wellness

9 are “inconsistent with the objective findings that consistently document good/fair attention and

10 concentration, and intact immediate, remote and recent memory” — lack the specificity required.

11 See Williams v. Astrue, No. ED CV 08-549-PLA, 2010 WL 431432, at *6 (C.D. Cal. Feb 1, 2010)

12 (“[T]o the extent that the ALJ determined that Dr. Porcelli’s October 2004 opinion was

13 inconsistent with the objective evidence that was an inadequate reason to reject Dr. Porcelli’s

14 findings as it fails to reach the level of specificity required for rejecting and opinion of a treating

15 physician”) (citing Embrey v. Bowen, 849 F.2d 418, 421–23 (9th Cir.1988). Furthermore, the ALJ

16 does not point to such specific findings of good attention, concentration, or memory in the record;

17 he referred to them only generally. This is not a specific or legitimate reason supported by

18 substantial evidence.

19 The court finds the ALJ erred by weighing the opinions of the treating doctors at Pathways to

20 Wellness.

21 Dr. Sakhai

22 Dr. Sakhai, a psychologist, treated the plaintiff for, among other things, PTSD, depression, and

23 anxiety, in weekly psychotherapy sessions from January 2016 to February 2017, and he wrote a

24 medical-source statement.112 The ALJ accorded his opinions little weight, and the plaintiff

25 contends that this was error.113

26

27

112 AR 659–701.

1 Dr. Sakhai is a treating source, and his opinions are contradicted. Thus, the ALJ was required

2 to provide specific and legitimate reasons based on substantial evidence in the record to discount

3 his opinions. Reddick, 157 F.3d at 725.

4 The ALJ provided the following reasons to accord Dr. Sakhai little weight:

5 Kambiz Sakhai, Psy.D., another treating psychiatrist, indicated mostly marked limitations

in understanding, remembering, and applying information; in interacting with others;

6 adapting and managing oneself, and ability to have only marginal adjustment in daily life

(Exhibits 16F). This assessment indicating listing level severity is given little weight

7

because it is inconsistent with the claimant’s treatment notes following her sustained

8 sobriety from substances other than marijuana. First, Dr. Sakhai provided his assessment

on a check-box form with no explanation for the severity of these limitations or any

9 evidence of correlated objective findings that would support the degree of these

limitations. Second, looking at his treatment notes, other than the initial mental status

10

evaluation, he did not provide subsequent objective evaluations to assess her improved

11 condition, even though he noted after most sessions that she expressed satisfaction with

therapy and had improved symptoms.114

12

13 These reasons were not specific, legitimate, or supported by substantial evidence.

14 First, the ALJ cannot conclude that Dr. Sakhai’s opinions are inconsistent with the plaintiff’s

15 treatment notes after her sobriety without identifying the inconsistencies and without referencing

16 specific pieces of evidence (e.g. a particular medical-source statement or findings from an

17 examination). In Belanger v. Berryhill, the Ninth Circuit found that it was error for an ALJ to

18 reject the opinion of a treating physician because it was purportedly “inconsistent with the record

19 as a whole,” and it “appeared to be based on [the plaintiff’s] subjective reporting of pain.” 685

20 Fed. Appx. 596, 598 (9th Cir. 2017). Here, the ALJ’s critique was similarly “boilerplate criticism”

21 and was “insufficient to reject a treating physician’s opinion….” Id.

22 Second, forms with check-boxes may be persuasive opinion evidence when well supported. In

23 Garrison, the Ninth Circuit held that it was an egregious and important error to discount the

24 check-list box that was “based on the [treating source’s] significant experience” with the plaintiff

25 and “supported by numerous records.” 759 F.3d 1013. Similarly in Fleenor v. Berryhill, the Ninth

26 Circuit held it was error for an ALJ to give little weight to a treating source’s check-box

27

1 assessment without evaluating “length, nature, and extent of the treatment relationship; frequency

2 of examination; supportability; and consistency with the overall record.” 752 Fed. Appx. 451, 452

3 (9th Cir. 2018). Dr. Sakhai’s treatment notes for the 13 months that he treated the plaintiff

4 provided ample evidence of the plaintiff’s psychological symptoms and how they affected her

5 daily life. For example, he detailed how nightmares prevented her from sleeping, which affected

6 her ability to function during the day, how apathy and anhedonia prevented her from leaving the

7 house, and how her memory and concentration issues worsened over time.115 The ALJ overlooked

8 this evidence and did not consider the length, nature, and extent of their treatment relationship or

9 consistency with the other opinions. This was error.

10 Third, criticizing Dr. Sakhai’s opinions for failing to have objective evaluations is not a

11 legitimate ground supported by substantial evidence. As the court held in Ortiz v. Colvin, “courts

12 have recognized that a psychiatric impairment is not as readily amenable to substantiation by

13 objective laboratory testing as is a medical impairment and that consequently, the diagnostic

14 techniques employed in the field of psychiatry may be somewhat less tangible than those in the

15 field of medicine.” No. 2:15-cv-1456 AC, 2016 WL 4992674, *6 (E.D. Cal. Sept. 19, 2016)

16 (quoting Lebus v. Harris, 526 F. Supp. 56, 60 (N.D. Cal. 1981); Averbach v. Astrue, 731 F. Supp.

17 2d 977, 986 (C.D. Cal. 2010). “The report of a psychiatrist should not be rejected simply because

18 of the relative imprecision of the psychiatric methodology or the absence of substantial

19 documentation, unless there are other reasons to question the diagnostic technique.” Id.

20 Furthermore, Dr. Sakhai’s notes contain observations of the plaintiff’s objective symptoms to

21 support his restrictive findings.116

22 The ALJ failed to provide specific and legitimate reasons to accord Dr. Sakhai’s opinions little

23 weight and thus, erred

24

25

26

27

115 AR 676–79, 682–683, 685–686, 689–690, 692, 694, 698–699, 701.

116 AR 675–676, 677–701.

1 Dr. Johnson, Dr. Narayan, Dr. Morgan, and Dr. Caruso-Maxey

2 The plaintiff argues that the ALJ failed to discuss the opinions of Dr. Johnson, who treated the

3 plaintiff at the Schuman-Liles Clinic, or Drs. Narayan, Morgan, or Caruso-Maxey, who treated her

4 at the Portia Belle Hume center, and that this was error.117

5 The Ninth Circuit has held that “[b]ecause a court must give ‘specific and legitimate reasons’

6 for rejecting a treating doctor’s opinions, it follows even more strongly that an ALJ cannot in its

7 decision totally ignore a treating doctor and his or her notes, without even mentioning them.”

8 Marsh v. Colvin, 792 F.3d 1170, 117273. (9th Cir. 2015). While the ALJ did discuss Dr.

9 Johnson’s findings in his decision,118 the ALJ did not address those of the other three providers at

10 issue, and the Commissioner concedes as much.119 This is error.

11 Chika and A’Zah Williams

12 Chika and A’Zah Williams are social workers for the Sage program, where the plaintiff was

13 treated between October 2016 and April 2017.120 They are considered “other sources.” Their

14 opinions are contradicted by treating physicians in the record. Thus, the ALJ must provide

15 germane reasons for rejecting their opinions. See Molina, 674 F.3d at 1111.

16 The ALJ rejected their testimony because:

17 Her complaints of uncontrolled PTSD related symptoms to these therapists are

contradicted by her reports to Dr. Newsom[] regarding her good response to her

18 medications, improved symptoms, decreased nightmares, and controlled mood swings (See

Exhibit 9F/21; 12F/15). Though she voluntarily checked herself into the hospital in

19

February 2017, secondary to suicidal ideation and increased depression, on exam, she

20 denied any delusions, hallucination, and was cooperative without any evidence of

psychomotor agitation or retardation. She was started on Depakote, Risperdal, and Prozac

21 (Exhibit 15F/2). She was diagnosed with schizoaffective disorder, bipolar type. After a

night's sleep, the claimant’s condition improved and she was discharged in stable

22 condition….121

23

24

25 117 Mot.  ECF No. 22 at 1920.

26

118 AR 24, 44.

119 Cross-Mot. – ECF No. 23 at 7.

27

120 AR 722–727, 73133, 738, 741, 745, 74954, 753–54, 767775.

1 Here, the ALJ rejected the social workers’ opinions because they were inconsistent with the

2 opinion of Dr. Newsom, a psychiatrist who is entitled to greater weight. Id. at 1112 (citing

3 Holohan, 246 F.3d at 1202 (the regulations give more weight to the opinions of specialists

4 concerning matters relating to their specialty than they do to opinions of non-specialists)). This a

5 germane reason for rejecting their opinion evidence .

6

7 2. Whether the ALJ Improperly Rejected the Plaintiff’s Testimony

8 The plaintiff argues that the ALJ erred by rejecting her testimony, specifically, by failing

9 identify what parts of her testimony were not credible and by failing to supply clear and

10 convincing reasons supported by substantial evidence.122

11 The ALJ found the following about the plaintiff’s testimony:

12 [T]he claimant’s medically determinable impairment could reasonably be expected to

produce the alleged symptoms; however, the claimant's statements concerning the

13 intensity, persistence and limiting effects of these symptoms are not entirely consistent

with the objective medical and other evidence.123

14

15 In assessing a claimant’s credibility, an ALJ must make two determinations. Molina, 674 F.3d

16 at 1112. “First, the ALJ must determine whether [the claimant has presented] ‘objective medical

17 evidence of an underlying impairment which could reasonably be expected to produce the pain or

18 other symptoms alleged.’” Id. (quoting Vasquez, 572 F.3d at 591). Second, if the claimant

19 produces that evidence, and “there is no evidence of malingering,” the ALJ must provide

20 “specific, clear and convincing reasons for” rejecting the claimant’s testimony regarding the

21 severity of the claimant’s symptoms. Id. (internal quotation marks and citations omitted).

22 “At the same time, the ALJ is not ‘required to believe every allegation of disabling pain, or else

23 disability benefits would be available for the asking, a result plainly contrary to 42 U.S.C. §

24 423(d)(5)(A).’” Id. at 1112 (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). “Factors

25 that an ALJ may consider in weighing a claimant’s credibility include reputation for truthfulness,

26

27

122 Mot.  ECF No. 22 at 20.

1 inconsistencies in testimony or between testimony and conduct, daily activities, and unexplained,

2 or inadequately explained, failure to seek treatment or follow a prescribed course of treatment.”

3 Orn v. Astrue, 495 F.3d 625, 636 (9th Cir. 2007) (internal punctuation omitted). “[T]he ALJ must

4 identify what testimony is not credible and what evidence undermines the claimant’s complaints.”

5 Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014) (quoting Lester v. Chater, 81 F.3d 821, 834

6 (9th Cir. 1995)); see, e.g., Morris v. Colvin, No. 16-CV-0674-JSC, 2016 WL 7369300, at *12

7 (N.D. Cal. Dec. 20, 2016).

8 The ALJ discredited the plaintiff’s testimony, in part, based on his assessment of the medical-

9 opinion evidence. Because the court remands for reconsideration of that medical evidence, the

10 court remands on this ground too. The ALJ can reassess the plaintiff’s credibility in context of the

11 entire record.

12

13 3. Whether the ALJ Erred by Assessing the Materiality of the Substance Abuse.

14 The plaintiff contends that the ALJ erred because his materiality finding is not supported by

15 substantial evidence.124 The ALJ found that if the plaintiff stopped her substance abuse, then she

16 would have the RFC to perform medium work limited to simple, routine, and repetitive tasks.125

17 “A finding of ‘disabled’ under the five-step inquiry does not automatically qualify a claimant

18 for disability benefits.” Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001). “Under 42

19 U.S.C. § 423(d)(2)(C), a claimant cannot receive disability benefits ‘if alcoholism or drug

20 addiction would... be a contributing factor material to the Commissioner’s determination that the

21 individual is disabled.’” Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007) (quoting 42 U.S.C. §

22 423(d)(2)(C)) (alteration in original).

23 The Ninth Circuit has held that when a Social Security disability claim involves substance

24 abuse, the ALJ must first conduct the five-step sequential evaluation without determining the

25 impact of substance abuse on the claimant. Bustamante, 262 F.3d at 954–55. If the ALJ finds that

26

27

124 Mot. – ECF No. 22 at 26.

1 the claimant is not disabled, then the ALJ proceeds no further. Id. at 955. If, however, the ALJ

2 finds that the claimant is disabled, then the ALJ conducts the sequential evaluation a second time

3 and considers whether the claimant would still be disabled absent the substance abuse. Id. (citing

4 20 C.F.R. §§ ; C.F.R. § 404.1535, 416.935); Parra, 481 F.3d. at 747 (under the Social Security

5 Act’s regulations, “the ALJ must conduct a drug abuse and alcoholism analysis” to determine

6 “which of the claimant’s disabling limitations would remain if the claimant stopped using drugs or

7 alcohol.”) (citing 20 C.F.R. § 404.1535(b)). The Ninth Circuit has stressed that courts must not

8 “fail to distinguish between substance abuse contributing to the disability and the disability

9 remaining after the claimant stopped using drugs or alcohol.” Kroeger v. Calvin, 2015 WL

10 2398398, at *10 (N.D. Cal. May 19, 2015) (quoting Sousa v. Callahan, 143 F.3d 1240, 1245 (9th

11 Cir. 1998)). “Just because substance abuse contributes to a disability does not mean that when the

12 substance abuse ends, the disability will too.” Id. The claimant has the burden to prove that the

13 drug or alcohol abuse is not a contributing factor material to disability. Parra, 481 F.3d at 748.

14 Because the court remands for a reweighing of medical-opinion evidence and the plaintiff’s

15 testimony, and because the materiality of drug and alcohol abuse was based on those assessments,

16 the court remands on this ground too.

17

18 4. Whether the ALJ’s RFC is Supported by Substantial Evidence

19 The plaintiff argues that the ALJ erred because his RFC determination was not supported by

20 substantial evidence.126 The ALJ found that “[i]f the claimant stopped the substance use, the

21 claimant would have the residual functional capacity to perform medium work as defined in 20

22 CFR 416.967(c) except is limited to simple, routine, and repetitive tasks.”127 Because the court

23 remands for a reweighing of medical-opinion evidence and the plaintiff’s testimony, and because

24 the RFC was based on those assessments, the court remands on this ground too.

25

26

27

126 Mot. – ECF No. 22 at 26.

127 AR 27, 47.

1 5. Whether the ALJ’s Step-Five Finding is Supported by Substantial Evidence

2 The plaintiff argues that the ALJ erred when he used the Medical Vocational Guidelines to

3 find the plaintiff not disabled.!”°

4 At step five, the ALJ said that he “must consider the claimant's residual functional capacity,

5 age, education, and work experience in conjunction with the Medical-Vocational Guidelines

6 || (“MVD”)” to determine whether an adjustment to other work can be made.!”? Using the MVD’s

7 framework, the ALJ found that:

8 If the claimant stopped the substance use, the claimant would not have the residual

functional capacity to perform the full range of medium work. However, the additional

9 limitations that would remain have little or no effect on the occupational base of unskilled

10 medium work. Considering this residual functional capacity, and the claimant's age,

education and work experience, a finding of “not disabled” is therefore appropriate under

11 the framework.'°°

a 12 Because the court remands for a reweighing of medical-opinion evidence and the plaintiff's

□

13 |) testimony, and because step-five was based on those assessments, the court remands on this

14 ground.

15 CONCLUSION

A 16 The court grants the plaintiffs motion for summary judgment, denies the Commissioner’s cross-

17 || motion for summary judgment, and remands for further proceedings consistent with this order.

18

19 IT IS SO ORDERED. Ld AC

20 Dated: March 24, 2020

LAUREL BEELER

21 United States Magistrate Judge

22

23

24

25

'28 Mot. — ECF No. 22 at 27.

27 '29 AR 27, 47.

28 3° AR 28, 48.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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