Schotthoefer v. Commissioner Social Security Administration

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

Jacob S., Case No. 2:20-cv-00993-AC

Plaintiff, OPINION AND ORDER

v.

COMMISSIONER SOCIAL

SECURITY ADMINISTRATION,

Defendant.

_________________________________________

ACOSTA, United States Magistrate Judge:

Plaintiff Jacob S.1 seeks judicial review of a final decision of the Commissioner of Social

Security (the “Commissioner”) denying his application for a period of disability and disability

insurance benefits (“DIB”) pursuant to Title II of the Social Security Act, 42 U.S.C. §§ 401-403.

This court has jurisdiction pursuant to 42 U.S.C. § 405(g). All parties have consented to allow a

Magistrate Judge to enter final orders and a judgment in this case in accordance with 28 U.S.C. §

636(c). For the following reasons, the Commissioner’s decision is affirmed.

1 In the interest of privacy, this Opinion and Order uses only the first name and the initial of the

last name of the non-governmental party in this case.

Procedural Background

On June 6, 2017, Plaintiff filed a Title II application for DIB. Tr. Soc. Sec. Admin. R.

(“Tr.”) 15, ECF No. 12. Plaintiff alleged disability based on depression, traumatic brain injury

(“TBI”), memory problems, and anxiety. Tr. 236. Plaintiff alleged an initial onset date of April

1, 2014, and he later amended his onset date to October 1, 2015. Tr. 15. Plaintiff’s claims were

denied initially and upon reconsideration. Id. Plaintiff subsequently requested a hearing, which

convened on March 20, 2019, before Administrative Law Judge (“ALJ”) Mark Triplett. Tr. 39-

74. Plaintiff appeared and testified at the hearing, represented by a non-attorney representative.

Tr. 15, 39-74. A vocational expert (“VE”), Francene Geers, also testified. Tr. 39-74. On July 1,

2019, the ALJ issued an unfavorable decision denying Plaintiff’s claim. Tr. 15-32. The Appeals

Council denied Plaintiff’s request for review, and therefore, the ALJ’s decision became the final

decision of the Commissioner for purposes of review. Tr. 1-3.

Plaintiff was born in 1983, and he was 31 years old at the time of his amended alleged

onset date. Tr. 30, 232. He has completed education through the eleventh grade and has past

relevant work experience as a construction worker and painter. Tr. 30, 237.

ALJ’s Decision

The ALJ determined that Plaintiff meets the insured status requirements through December

31, 2016, and at step one, found that he has not engaged in substantial gainful activity since his

amended alleged onset date of October 1, 2015, through the date of the decision. Tr. 18. At step

two, the ALJ determined that Plaintiff has the following severe impairments: methamphetamine

use disorder; alcohol use disorder; marijuana use disorders; depression; personality disorder; and

adjustment disorder with depressed mood. Id.

\ \ \ \ \

At step three, the ALJ determined that Plaintiff’s severe impairments, when including his

substance use disorders, met the severity of two listed impairments: Listings 12.04 and 12.08. Tr.

19. The ALJ further found that if Plaintiff stopped his substance use, he would continue to have a

severe impairment or combination of impairments because “the remaining limitations would cause

more than a minimal impact on his ability to perform basic work activities.” Tr. 20. The ALJ

reasoned, however, that if Plaintiff stopped his substance use, he would not have an impairment

or combination of impairments that meets or medically equals any listed impairment. Tr. 21.

Reviewing all the evidence in the record, the ALJ determined that if Plaintiff stopped his

substance use, he would have the residual function capacity (“RFC”) to perform a full range of

work at all exertional levels with the following non-exertional limitations: he is limited to

performing simple, routine tasks involving one- to two-step instructions that can be learned in 30

days or less and tolerating occasional contact with coworkers and the general public. Tr. 21-22.

At step four, the ALJ found that even if Plaintiff stopped his substance use, he would be unable to

perform his past relevant work. Tr. 30.

At step five, after considering Plaintiff’s age, education, work experience, and RFC, the

ALJ found that—if Plaintiff stopped his substance use—a significant number of jobs existed in the

national economy that Plaintiff could perform, including work as a floor waxer, wall cleaner, and

hand packager. Tr. 31. The ALJ concluded that Plaintiff’s substance use disorders are a

contributing factor material to the determination of disability because Plaintiff would not be

disabled if he stopped his substance use. Tr. 31. Based on this finding, the ALJ concluded that

Plaintiff has not been disabled since October 1, 2015, through the date of the decision, and

therefore, the he denied Plaintiff’s application for disability benefits. Tr. 31-32.

\ \ \ \ \

Issues on Review

Plaintiff contends that the ALJ made the following errors: (1) the ALJ improperly rejected

two medical opinions; (2) the ALJ erroneously rejected Plaintiff’s subjective symptom testimony;

(3) the ALJ’s finding that Plaintiff’s impairments did not meet Listings 12.04 and 12.08 absent his

substance use disorders was not supported by substantial evidence; and (4) the ALJ’s computation

of Plaintiff’s RFC did not include all Plaintiff’s mental limitations. Pl. Opening Br. 13-30, ECF

No. 18. The Commissioner responds that the ALJ’s decision is supported by substantial evidence

and is free of legal error. Def. Br. 2, ECF No. 19.

Standard of Review

The district court must affirm the Commissioner’s decision if the Commissioner applied

proper legal standards and the findings are supported by substantial evidence in the record. 42

U.S.C. § 405(g); Trevizo v. Berryhill, 871 F.3d 664, 674 (9th Cir. 2017). Substantial evidence is

“more than a mere scintilla” and is “such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (internal

quotation and citation omitted); Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020); Garrison v.

Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). To determine whether substantial evidence exists, the

court must weigh all the evidence, whether it supports or detracts from the Commissioner’s

decision. Trevizo, 871 F.3d at 675; Garrison, 759 F.3d at 1009. “‘If the evidence can reasonably

support either affirming or reversing,’ the reviewing court ‘may not substitute its judgment’ for

that of the Commissioner.” Gutierrez v. Comm’r, 740 F.3d 519, 523 (9th Cir. 2014) (quoting

Reddick v. Chater, 157 F.3d 715, 720-21 (9th Cir. 1996)).

Discussion

I. Medical Opinion Evidence

A. Legal Standards

For claims filed on or after March 27, 2017, new regulations for evaluating medical opinion

evidence apply. Revisions to Rules Regarding the Evaluation of Medical Evidence (“Revisions to

Rules”), 2017 WL 168818, 82 Fed. Reg. 5844-01, at *5867-68 (Jan. 18, 2017). Under the new

regulations, the ALJ no longer must “defer or give any specific evidentiary weight, including

controlling weight, to any medical opinion(s).” 20 C.F.R. § 404.1520c(a). Instead, the ALJ must

consider all the medical opinions in the record and evaluate each medical opinion’s persuasiveness

using factors. Id. The two most important factors in determining a medical opinion’s

persuasiveness are the opinion’s “supportability” and “consistency.” 20 C.F.R. §§ 404.1520c(a),

416.920c(a). The ALJ must articulate “how [he or she] considered the supportability and

consistency factors for a medical source’s medical opinions . . . in [his or her] decision.” 20 C.F.R.

§§ 404.1520c(b)(2), 416.1520c(b)(2).

With regard to supportability, the “more relevant the objective medical evidence and

supporting explanations presented by a medical source are to support his or her medical opinion(s),

the more persuasive the medical opinions . . . will be.” 20 C.F.R. §§ 404.1520c(c)(1),

416.920c(c)(1). As to consistency, the “more consistent a medical opinion(s) is with the evidence

from other medical sources and nonmedical sources in the claim, the more persuasive the medical

opinion(s) . . . will be.” 20 C.F.R. §§ 404.1520c(c)(2), 416.920c(c)(2). The ALJ is not required to

explain how he considered other factors, unless the ALJ finds that two or more medical opinions

about the same issue are equally well-supported and consistent with the record but not identical.

See 20 C.F.R. §§ 404.1520c(b)(3), 416.1520c(b)(3). Moreover, in reviewing the ALJ’s decision,

the Court must consider whether the ALJ’s analysis has the support of substantial evidence. See

42 U.S.C. § 405(j); see also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989).

B. Analysis

i. Ms. Porterfield

Plaintiff visited Counselor Hope Porterfield, a Certified Alcohol and Drug Counselor III

(“CADC”), Certified Social Worker Associate (“CSWA”), and Certified Gambling Addiction

Counselor (C-GACR), in March 2019. Tr. 27, 950. Ms. Porterfield found that Plaintiff: (1) meets

the criteria of major depressive disorder; (2) struggles to remember instructions long-term and

carry out those instructions; (3) suffers from “mood irregularities due to mental health[, which]

negatively impact[s] his ability to interact with peers as well as supervisors”; (4) has mental health

impairments that affect his ability to attend work consistently; and (5) would be off-task at least

20% of the work day. Tr. 950-51, 953. Importantly, Ms. Porterfield opined that Plaintiff’s “past

history of substance use is seperate [sic] from current difficulties. Substance use is not active and

does not contribute to current mental health impairments.” Tr. 951.

The ALJ rejected Ms. Porterfield’s opinion, finding that her “opinion is not persuasive

because it is not entirely consistent with or supported by the evidence of record, including

[Plaintiff’s] longitudinal medical records and objective findings.” Tr. 28. The ALJ reasoned that

although Ms. Porterfield noted Plaintiff’s marked deficits in memory and concentration, “those

deficits [were] not addressed in his treatment planning. Rather, his treatment plan focuses on

improving coping skills and interpersonal skills. Nor are such extreme limitations supported by

[Plaintiff’s] subsequent treatment notes showing improved symptoms with sobriety and regular

counseling.” Tr. 28.

\ \ \ \ \

Additionally, the ALJ concluded that Ms. Porterfield’s opinion regarding Plaintiff’s

absenteeism and time of task is not supported by the evidence in the record, because Plaintiff “was

generally attentive and participatory during individual and group therapy sessions,” and because

his work activity since the amended alleged onset date has generally ended because of factors other

than his mental health impairments. Tr. 28. Lastly, the ALJ noted that Ms. Porterfield’s finding

of “excessive restrictions are inconsistent with [Plaintiff’s] documented activities of daily living,

which show that [Plaintiff] socializes with others, reads, attends church, and engages in work

activity.” Tr. 28.

Plaintiff argues that the ALJ improperly rejected Ms. Porterfield’s opinion in four ways.

First, the ALJ erred in relying on the lack of treatment planning for Plaintiff’s memory and

concentration deficits. Pl. Opening Br. 13-14. Second, the ALJ improperly found that Ms.

Porterfield’s opinion was “not supported by [Plaintiff’s] subsequent treatment notes showing

improved symptoms with sobriety and regular counseling,” because this finding runs afoul Ninth

Circuit precedent, Garrison v. Colvin, 759 F.3d 995 (9th Cir. 1014). Pl. Opening Br. 15 (quoting

Tr. 28). Third, the ALJ did not sufficiently explain his rationale for rejecting Ms. Porterfield’s

opinion regarding excessive absenteeism and time of tasks. Pl. Opening Br. 16-17. Finally, the

ALJ’s reliance on Plaintiff’s activities of daily living (“ADLs”) was not a legitimate basis to reject

Ms. Porterfield’s opinion, because the record contained no information detailing Plaintiff’s work

activity after his alleged onset date. Id. at 17-18.

The ALJ’s rejection of Ms. Porterfield’s assessment was supported by substantial evidence.

A medical opinion is generally less persuasive when it is inconsistent with the remaining evidence

in the record. 20 C.F.R. §§ 404.1520c(c)(2), 416.920c(c)(2). Additionally, another factor that an

ALJ may consider, but is not required to explain, is the extent of a medical provider’s treatment

relationship with the claimant. See 42 C.F.R. § 404.1520c(b)(2) (explaining that ALJs “may, but

are not required to, explain how [they] considered the factors in paragraphs (c)(3) and (c)(5) of

this section”); 404.1520c(c)(3)(iv) (detailing the factor of the “[e]xtent of the treatment

relationship”). As such, when evaluating the persuasiveness of Ms. Porterfield’s opinion, the ALJ

appropriately considered the lack of a treatment plan concerning Plaintiff’s memory and

concentration deficits. That consideration was appropriate under the regulations.

Further, Plaintiff’s reliance on Garrison is misplaced. In Garrison, the Ninth Circuit held

that, in the context of mental health issues, an ALJ may not “reject a claimant’s testimony merely

because symptoms wax and wane in the course of treatment.” 759 F.3d at 1017-18 (emphasis

added). Here, the ALJ did not point to subsequent treatment notes to reject Plaintiff’s testimony;

rather, the ALJ merely concluded that Ms. Porterfield’s medical opinion was not persuasive

because it was not consistent with or supported by medical evidence as a whole.

Finally, the ALJ sufficiently explained his rationale for rejecting Ms. Porterfield’s opinion

regarding absenteeism and time of focus, and he appropriately considered evidence of Plaintiff’s

work activity. In rejecting Ms. Porterfield’s opinion, the ALJ explained that “though the

claimant’s objective findings show the claimant was at times tangential, he was generally attentive

and participatory during individual and group sessions.” Tr. 28. Moreover, evidence in the record

demonstrates that while Plaintiff’s work activity did not rise to the level of substantial gainful

activity, he did work during his period of alleged disability. Tr. 453, 472, 723, 725, 745, 772, 846,

853, 855, 857, 859, 876. Thus, the ALJ sufficiently considered the supportability of Ms.

Porterfield’s opinion with the record as a whole, and his rejection of Ms. Porterfield’s opinion was

based on substantial evidence and free from legal error.

\ \ \ \ \

ii. Dr. Whitehead

Plaintiff had a consultative psychological evaluation with Dr. Michelle Whitehead, Ph.D.,

in May 2019. Tr. 28, 954. The ALJ found persuasive Dr. Whitehead’s opinions that Plaintiff: (1)

has adequate persistence and pace but has intermittent problems with focus and attention; (2) has

stimulant use disorder, amphetamine type, in sustained remission and alcohol use disorder in

sustained remission; (3) “has problematic character traits that have caused clinically significant

distress and impairment in social, occupational, and other areas of functioning”; and (5) has “made

suicidal ideation reports often seeking attention” and that “likely behavior changes [are] due to

multiple head injuries.” Tr. 28, 956, 57. The ALJ noted that these findings were persuasive

because those findings are “generally consistent with the record as a whole.” Tr. 28.

Dr. Whitehead also noted, however, that Plaintiff suffered from “anger management issues,

disturbance of mood and motivation, attention seeking, [and] problem personality traits” and had

marked limitations in social functioning and responding appropriately to workplace changes. Tr.

29, 961-62. Dr. Whitehead further explained that Plaintiff’s “past h[istory] of [alcohol] & Drug

Abuse has caused impairment in social & occupation activities.” Tr. 962. The ALJ did not find

these portions of Dr. Whitehead’s opinion persuasive.

The ALJ reasoned that, although Dr. Whitehead acknowledged that Plaintiff’s history of

substance use caused social and occupational issues, he did “not indicate the degree of impairment

caused by [Plaintiff’s] substance use.” Tr. 29. The ALJ reasoned that the evidence in the record

supported marked limitations in social functioning and adapting or managing oneself during

periods of substance use, but that “such extreme limitations are not supported during periods of

sobriety.” Id. The ALJ recognized that Plaintiff presented as angry, hostile, frustrated, and

irritable, and engaged in threatening or assaultive behaviors during periods of substance use, but

found that “such symptoms are significantly diminished and largely resolved during period of

sobriety.” Id. In sum, the ALJ rejected this portion of Dr. Whitehead’s opinion for not being

supported by the other evidence in the record.

Plaintiff argues that the ALJ’s reasons for rejecting Dr. Whitehead’s opinions were neither

clear and convincing, nor specific and legitimate reasons supported by substantial evidence in the

record. Pl. Opening Br. 19. Plaintiff asserts that Dr. Whitehead’s report does address Plaintiff’s

functioning in the absence of substance use, because Dr. Whitehead diagnosed Plaintiff with

stimulant use disorder–amphetamine type and alcohol use disorder, both in sustained remission.

Id. at 20 (citing Tr. 957). Plaintiff contends that while Plaintiff’s substance use exacerbates his

signs and symptoms, his depression and personality disorder persist during periods of sobriety. Id.

at 21. Further, Plaintiff contends that if the ALJ had any valid concerns that Dr. Whitehead’s

opinions included limitations caused by alcohol or substance use, the ALJ had a duty to make an

appropriate inquiry. Id. at 20 (citing McLeod v. Astrue, 640 F.3d 881, 885 (9th Cir. 2010)).

The ALJ did not err in rejecting the portion of Dr. Whitehead’s opinion. In reaching this

conclusion, the ALJ looked at the supportability and consistency of Dr. Whitehead’s opinions of

Plaintiff’s functioning absent substance use. He appropriately considered other evidence, such as

Plaintiff’s work activity and other evidence concerning his functioning without substance use, to

conclude that Dr. Whitehead’s opinion was not consistent with and supported by other evidence

in the record. Tr. 29, 839-41, 847. Notably, other evidence in the record was inconsistent with

Dr. Whitehead’s opinion and demonstrated that Plaintiff’s functioning improved when he was not

using substances (Tr. 839-41, 847) and he was able to work after his alleged onset date, Tr. 723,

725, 772, 846. “An ALJ’s duty to develop the record further is triggered only when there is

ambiguous evidence or when the record is inadequate to allow for proper evaluation of the

evidence.” Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001). In sum, the ALJ did not

commit legal error in rejecting the portion of Dr. Whitehead’s medical opinion.

II. Subjective Symptom Testimony

A. Legal Standard

To determine whether a claimant’s testimony regarding subjective pain or symptoms is

credible, an ALJ must perform two stages of analysis. Trevizo, 871 F.3d at 678; 20 C.F.R. §

404.1529. The first stage is a threshold test in which the claimant must produce objective medical

evidence of an underlying impairment that reasonably could be expected to produce the symptoms

alleged. Treichler v. Comm’r Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014); Tommasetti

v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). At the second stage, absent affirmative evidence

that the claimant is malingering, the ALJ must provide clear and convincing reasons for

discounting the claimant’s testimony regarding the severity of the symptoms. Carmickle v.

Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1160 (9th Cir. 2008); Lingenfelter v. Astrue, 504 F.3d

1028, 1036 (9th Cir. 2007).

The ALJ must make findings that are sufficiently specific to permit the reviewing court to

conclude that the ALJ did not arbitrarily discredit the claimant’s testimony. Brown-Hunter v.

Colvin, 806 F.3d 487, 493 (9th Cir. 2015). Factors that the ALJ may consider when making such

credibility determinations include the objective medical evidence, the claimant’s treatment history,

the claimant’s daily activities, and inconsistencies in testimony. Ghanim v. Colvin, 763 F.3d 1154,

1163 (9th Cir. 2013); Tommasetti, 533 F.3d at 1039.

B. Analysis

At the March 20, 2019, disability hearing before the ALJ, Plaintiff testified that he was

unable to work full-time because he could not concentrate, had trouble remembering things, and

was unable to show up for work due to his depression and anxiety. Tr. 61. In applying the first

step of the credibility framework, the ALJ found that “if [Plaintiff] stopped his substance use, his

medically determinable impairments could reasonably be expected the produce some of the alleged

symptoms.” Tr. 24. In applying the second step, however, the ALJ found that “[Plaintiff’s]

statements concerning the intensity, persistence and limiting effects of these symptoms are not

entirely consistent with the medical evidence and other evidence in the record for the reasons

explained in this decision.” Id.

Plaintiff alleges the ALJ failed to make specific, clear, and convincing findings to justify

his rejection of Plaintiff’s testimony. Pl. Opening Br. 26. Plaintiff asserts the ALJ’s rejection of

is testimony solely because it is not substantiated by objective medical evidence is legal error. Id.

at 27. Further, Plaintiff contends the ALJ failed to sufficiently explain how his interpretation of

the medical evidence warranted an adverse evaluation of Plaintiff’s testimony. Id. at 27.

The ALJ offered specific, clear, and convincing reasons for rejecting Plaintiff’s testimony

about the intensity and limiting effects of his mental impairments in the absence of substance use.

See Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). The ALJ did not rely exclusively

on an absence of objective medical evidence in rejecting Plaintiff’s testimony. Rather, he reasoned

that Plaintiff’s testimony of the effect of his mental impairments was inconsistent with (1) evidence

from the medical record; (2) evidence of his daily activities, which included work activity after the

amended alleged onset date; and (3) evidence demonstrating that Plaintiff stopped working for

reasons other than his mental impairments.

First, the objective medical record conflicted with Plaintiff’s testimony. “Contradiction

with the medical record is a sufficient basis for rejecting the claimant’s subjective testimony.”

Carmickle v. Comm’r, 533 F.3d 1155, 1161 (9th Cir. 2008). Although subjective symptom

testimony may not be wholly rejected based on a lack of corroborating objective medical evidence,

medical evidence is still a relevant factor in determining the severity of a claimant's symptoms.

See Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). Here, the ALJ appropriately

considered inconsistences between Plaintiff’s alleged limitations and the medical evidence in the

record.

For instance, the ALJ reasoned that Plaintiff frequently failed to follow through with

treatment, but his mental health impairments improved when he did not use substances and

engaged in therapy and medication management. Tr. 26. Plaintiff’s medical history demonstrated

instances of refusing mental health treatment and multiple month-long gaps in his mental health

treatment and medication use. Tr. 416, 420-21, 790, 791, 819-20. Although Plaintiff still noted

some symptoms of depression and hopelessness when he was sober, he received counseling on a

regular basis and was able to perform work activities around the home. Tr. 839-41, 847. Because

an ALJ can consider the type and effectiveness of medication and other treatment that a claimant

takes to relieve his symptoms when weighing a claimant’s allegations, 20 C.F.R. §§

404.1529(c)(3), 416.929(c)(3), the ALJ appropriately considered the medical record in weighing

Plaintiff’s testimony.

Second, the ALJ also discounted Plaintiff’s testimony because it was inconsistent with his

daily activities. Tr. 27. When assessing credibility, an ALJ “may consider, among other factors,

. . . the claimant’s daily activities.” Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996, 1006 (9th

Cir. 2015); see also Ford v. Saul, 950 F.3d 1141, 1156 (9th Cir. 2020) (“[A]n ALJ may consider

any work activity, including part-time work, in determining whether a claimant is disabled.”).

Notably, Plaintiff performed some work activities after his amended alleged onset date. Plaintiff

helped remodel a home in September 2017, Tr. 723, 725, performed part-time work in November

2017, Tr. 772, and painted houses, laid carpet, and built reclaimed furniture in July 2018, Tr. 846.

Finally, the ALJ discounted Plaintiff’s testimony because his testimony was inconsistent

with evidence demonstrating that he stopped working for reasons unrelated to his mental

impairments. When weighing a claimant’s testimony, the ALJ may use the fact that a claimant

stopped work for reasons other than his impairments as a sufficient basis for discounting subjective

symptom testimony. See Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001). For example,

evidence in the record indicated that Plaintiff “report[ed] going from job to job and struggle[ed] to

have stable employment due to unreliable transportation and lack of skills to navigate additional

barriers.” Tr. 853. Evidence further demonstrated that Plaintiff was unable to keep employment

due to a lack of transportation or because of his construction projects ended—not because of his

mental impairments. Tr. 453 (noting that Plaintiff reported that he was unable to keep a painting

job due to unreliable transportation); Tr. 472 (reporting Plaintiff “states that he cannot get a job

because he has no driver’s license related to his prior DUIs”); Tr. 745 (reporting Plaintiff “finished

his work at a construction job, and now has no other jobs lined up”).

The court finds the evidence of Plaintiff’s medical evidence, daily activities, and reasons

for not securing employment, contradicts Plaintiff’s testimony and therefore constituted

convincing reasons to reject Plaintiff’s testimony. Although Plaintiff may disagree with the ALJ’s

interpretation of the record, the ALJ’s interpretation is supported by substantial evidence, which

precludes the Court from engaging in second-guessing. See Thomas v. Barnhart, 278 F.3d 947,

954 (9th Cir. 2002) (“Where the evidence is susceptible to more than one rational interpretation,

one of which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.”).

III. Step Three Findings Absent Substance Use

If an ALJ finds a claimant is disabled, but drug addiction or alcoholism is a contributing

factor material to the disabling condition, then the claimant is disqualified from receiving benefits.

42 U.S.C. §§ 423(d)(2)(C), 1382c(a)(3)(J). An “ALJ must conduct a drug abuse and alcoholism

analysis . . . by determining which of the claimant’s disabling limitations would remain if the

claimant stopped using drugs or alcohol.” Parra v. Astrue, 481 F.3d 742, 747 (9th Cir.

2007)(citing20 C.F.R. § 404.1535(b)). “If the remaining limitations would still be disabling, then

the claimant’s drug addiction or alcoholism is not a contributing factor material to his disability.

If the remaining limitations would not be disabling, then the claimant’s substance abuse is material

and benefits must be denied.” Id. (citing 20 C.F.R. § 404.1535(b)).

At step three, the ALJ must determine whether a claimant’s impairment meets or equals an

impairment listed in the Listing of Impairments (“the Listings”). See 20 C.F.R. Part 404, Subpt.

P, App. 1. A mere diagnosis is insufficient to meet or equal a listed impairment. See 20 C.F.R.

§§ 404.1525(d), 416.925(d). To meet a listed impairment, a claimant must establish that he

“satisfies all of the criteria of that listing, including any relevant criteria in the introduction, and

meets the duration requirement.” 20 C.F.R. §§ 404.1525(c)(3), 416.925(c)(3).

Listing 12.04 concerns depressive, bipolar, and related disorders, and Listing 12.08

concerns personality and impulse-control disorders. 20 C.F.R. Part 404, Subpt. P., App. 1, §

12.00(A)(1). A claimant’s mental disorders must satisfy both paragraphs A and B of the stated

listing: Paragraph A includes the medical criteria, and Paragraph B provides the functional criteria

used to assess how the claimant’s mental disorder limits his functioning. Id. § 12.00(2)(a), (b).

Paragraph B considers a claimant’s ability to “[u]nderstand, remember, or apply information;

interact with others; concentrate, persist, or maintain pace; and adapt or manage oneself. . . .

function independently, appropriately, effectively, and on a sustained basis.” Id. § 12.00(a)(b).

Further, to satisfy the Paragraph B criteria, a claimant’s “mental disorder must result in ‘extreme’

limitation of one, or ‘marked’ limitation of two, of the four areas of mental functioning.” Id.

Here, the ALJ determined that, when considering Plaintiff’s substance use disorders, he

met Listings 12.04 and Listing 12.08. Tr. 19. The ALJ further concluded, however, that if Plaintiff

stopped his substance use, he would not have an impairment or combination of impairments that

meets or medically equals any of the listed impairments. Tr. 21. In particular, the ALJ reasoned

that Plaintiff did not satisfy the Paragraph B criteria of either listing absent substance use, because

he had only “moderate” limitations in the functional criteria. Tr. 21-22.

Plaintiff contends that the ALJ incorrectly concluded that Plaintiff’s impairments do not

meet the listings, because the ALJ underestimated the severity of Plaintiff’s limitations in the

Paragraph B criteria. Pl. Opening Br. 23-24. He argues that both Dr. Whitehead and Dr.

Porterfield’s opinions were consistent in establishing that Plaintiff had marked limitations in the

Paragraph B criteria of Listings 12.04 and 12.08. Pl. Opening Br. 24-25. As such, Plaintiff argues

that the ALJ erred, because if the ALJ had properly credited Dr. Whitehead’s and Ms. Porterfield’s

opinions, then the he then would have found that Plaintiff satisfied the Paragraph B criteria of both

listings absent Plaintiff’s substance use. Pl. Opening Br. 24-26.

The court disagrees. In asserting this argument, Plaintiff solely contends that, if the ALJ

had not rejected the Ms. Porterfield’s and Dr. Whitehead’s medical opinions, then the ALJ erred

in its Step Two finding. The court previously concluded above that the ALJ did not err in rejecting

Ms. Porterfield’s opinion and portions of Dr. Whitehead’s opinion concerning Plaintiff’s mental

functioning in the absence of substance use. Moreover, the ALJ’s findings that Plaintiff did not

satisfy the Paragraph B criteria of either listing were supported by substantial evidence. See Tr.

21-22. Accordingly, the ALJ did not err in rejecting the medical opinion evidence and relied on

substantial evidence in making the step-three determination absent Plaintiff’s substance use.

IV. Plaintiff’s RFC

At the hearing, the ALJ asked the VE, Ms. Geers, a hypothetical question. Tr. 66. The

hypothetical involved an “individual [who] can perform simple, routine tasks, involving one to

two step instructions that can be learned in 30 days or less. The individual can tolerate occasional

contact with coworkers and the general public.” Tr. 66. The ALJ then asked Ms. Geers whether,

under that hypothetical set of facts, that individual could perform any of the past work identified

as Plaintiff’s past work. Tr. 66-67. Ms. Geers answered “no”. Tr. 67.

Ms. Geers also testified based on her 35 years of experience as a vocational expert. She

testified that an individual who is off-task more than ten percent of the workday is not able to

maintain employment. Tr. 68. Additionally, Ms. Geers testified that if an individual misses more

than one day a month of work, that individual would not be able to maintain employment. Id.

Plaintiff contends that the ALJ erred in calculating Plaintiff’s RFC and posing hypothetical

questions to the VE based on Plaintiff’s RFC, because the ALJ erroneously rejected Ms.

Porterfield’s and Dr. Whitehead’s medical opinions. Pl. Opening Br. 29-30. In determining a

claimant’s RFC, an ALJ considers “all the relevant evidence in [the] case record.” 20 C.F.R. §

416.945(A)(1); see Laborin v. Berryhill, 867 F.3d 1151, 1153 (9th Cir. 2017). The court already

has concluded, however, that the ALJ did not err in rejecting Ms. Porterfield’s or Dr. Whitehead’s

medical opinions. Thus, the ALJ’s calculation of Plaintiff’s RFC was based on substantial

evidence, and the ALJ did not commit legal error in computing Plaintiff’s RFC or posing

hypothetical questions to the VE.

\ \ \ \ \

Conclusion

For the reasons stated above, the Commissioner’s final decision is AFFIRMED, and this

action is DISMISSED.

IT IS SO ORDERED.

DATED this 29th day of December, 2021.

__________________________________

JOHN V. ACOSTA

United States Magistrate Judge