# Andrew Brown v. Kilolo Kijakazi

> District Court, C.D. California · August 11, 2022

URL: https://www.frixlaw.com/law-library/cases/9980898

## Case

- **Court:** District Court, C.D. California
- **Decided:** August 11, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

Case 8:20-cv-02383-KES Document 31 Filed 08/11/22 Page 1 of 9 Page ID #:2600

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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

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11 ANDREW B., Case No. 8:20-cv-02383-KES

12 Plaintiff,
MEMORANDUM OPINION AND
13 v.
ORDER

14 KILOLO KIJAKAZI, Acting
Commissioner of Social Security,
15
Defendant.
16

17 I.

18 BACKGROUND

19 In March 2017, Plaintiff Andrew B. (“Plaintiff”) applied for disability

20 insurance benefits (“DIB”) and supplemental security income (“SSI”), alleging a
21 disability onset date of December 1, 2008, at age 21, with a last date insured
22 (“LDI”) of March 31, 2015. AR 828-36. On October 17, 2019, an Administrative
23 Law Judge (“ALJ”) conducted a hearing at which Plaintiff, who was represented
24 by counsel, testified along with a medical expert (“ME”) David Peterson, M.D.,
25 and a vocational expert (“VE”). AR 537-65.
26 On January 9, 2020, the ALJ issued an unfavorable decision. AR 11-31.
27 The ALJ found that Plaintiff suffered from the severe, medically determinable
28 impairments (“MDIs”) of “bipolar disorder and substance disorder present and
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1 | material.” AR 17. The ALJ found that with substance abuse, Plaintiff's mental
2 | MDIs satisfied Listing 12.04. AR 17-18. Without substance abuse, however,
3 | Plaintiff would have the residual functional capacity (““RFC’”’) to work at all
4 | exertional levels with a restriction to “simple repetitive tasks with only occasional
5 || interaction with coworkers, supervisors, and the general public.” AR 20.
6 Based on this RFC and other evidence, the ALJ found that Plaintiff could
7 | work as a day worker, store labeler, or floor waxer. AR 25. The ALJ concluded,
8 || “Because the substance use disorder is a contributing factor material to the
9 | determination of disability, [Plaintiff] has not been disabled within the meaning of
10 | the Social Security Act at any time from the alleged onset date through the date of
11 | this decision.” AR 25.
12 II.
13 ISSUE PRESENTED
14 This appeal presents the sole issue of whether the ALJ erred in rejecting the
15 | work-preclusive opinions of Plaintiff's treating psychiatrist, Binna Chahal, M.D.
16 IL.
17 DISCUSSION
18 A. Rules Governing the ALJ’s Evaluation of Medical Opinions.
19 An ALJ must consider all medical opinions of record. 20 C.F.R.
20 | §§ 404.1527(b), 416.927(b). For applications filed before March 27, 2019, like
21 | Plaintiff's, the regulations “distinguish among the opinions of three types of
22 | physicians: (1) those who treat the claimant (treating physicians); (2) those who
23 || examine but do not treat the claimant (examining physicians); and (3) those who
24 | neither examine nor treat the claimant (nonexamining physicians).” Lester v.
25 | Chater, 81 F.3d 821, 830 (9th Cir. 1995), as amended (Apr. 9, 1996). “Generally,
26 | a treating physician’s opinion carries more weight than an examining physician’s,
27 | and an examining physician’s opinion carries more weight than a reviewing
28 | physician’s.” Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001).

Case 8:20-cv-02383-KES Document 31 Filed 08/11/22 Page 3 of 9 Page ID #:2602

1 The medical opinion of a claimant’s treating physician is given “controlling
2 weight” so long as it “is well-supported by medically acceptable clinical and
3 laboratory diagnostic techniques and is not inconsistent with the other substantial
4 evidence in [the claimant’s] case record.” 20 C.F.R. §§ 404.1527(c)(2),
5 416.927(c)(2). “When a treating doctor’s opinion is not controlling, it is weighted
6 according to factors such as the length of the treatment relationship and the
7 frequency of examination, the nature and extent of the treatment relationship,
8 supportability, and consistency with the record.” Revels v. Berryhill, 874 F.3d
9 648, 654 (9th Cir. 2017); 20 C.F.R. §§ 404.1527(c)(2)-(6), 416.927(c)(2)-(6).
10 “If a treating or examining doctor’s opinion is contradicted by another
11 doctor’s opinion, an ALJ may only reject it by providing specific and legitimate
12 reasons that are supported by substantial evidence.” Bayliss v. Barnhart, 427 F.3d
13 1211, 1216 (9th Cir. 2005). “The ALJ can meet this burden by setting out a
14 detailed and thorough summary of the facts and conflicting clinical evidence,
15 stating his interpretation thereof, and making findings.” Trevizo v. Berryhill, 871
16 F.3d 664, 675 (9th Cir. 2017).
17 The Social Security Act provides that a claimant “shall not be considered
18 disabled … if alcoholism or drug addiction would … be a contributing factor
19 material to the … determination that the individual is disabled.” 42 U.S.C.
20 § 423(d)(2)(C). To determine whether a claimant’s drug addiction and alcoholism
21 is material, the test is whether the claimant would still be found disabled if he
22 stopped using drugs or alcohol. 20 C.F.R. §§ 404.1535(b), 416.935(b). The ALJ
23 must “evaluate which of [the claimant’s] current physical and mental limitations …
24 would remain if [the claimant] stopped using drugs or alcohol and then determine
25 whether any or all of [the claimant’s] remaining limitations would be disabling.”
26 20 C.F.R. §§ 404.1535(b)(2), 416.935(b)(2). The claimant bears the burden of
27 proving that substance use is not a material contributing factor to his disability.
28 Parra v. Astrue, 481 F.3d 742, 748 (9th Cir. 2007).

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1 B. Summary of the Medical Opinion Evidence.
2 In January 2018, State agency consultant Phaedra Caruso-Radin, Psy.D.,
3 | reviewed Plaintiff's medical records and observed that they were “marked by
4 | continued meth use. However, when not using is cog[natively] intact. Overall,
5 | without DA&A [drug abuse and alcoholism] the [Plaintiff] can complete srts
6 | [simple repetitive tasks] at least.” AR 608.
7 In October 2018, Plaintiff underwent a psychological consultative
8 || examination (“CE”) with Charlene K. Krieg, Ph.D. AR 1723-30. Plaintiff
9 | reported a history of using cannabis, methamphetamine, and mushrooms, but he
10 | had not used drugs for ten months. AR 1724. Dr. Krieg administered a variety of
11 | tests and concluded that Plaintiff displayed average intellectual functioning, scored
12 | in the “normal to mild deficit range” on tasks involving attention/concentration,
13 | and did not have any mental impairments that would limit his ability to perform
14 | simple, repetitive work tasks or complete a normal work schedule. AR 1727.
15 On September 25, 2019, treating psychiatrist Dr. Chahal authored a Medical
16 | Source Statement Concerning the Nature and Severity of an Individual’s Mental
17 | Impairment (“MSS”). Dr. Chahal diagnosed Plaintiff with Bipolar I disorder only.
18 | AR 2339. Dr. Chahal described Plaintiff’s bipolar symptoms as including low
19 | energy, poor concentration, neglected self-care, social withdrawal, poor impulse
20 | control, aggression, and “manic episodes that last several days and had resulted in
21 | him being hospitalized.” AR 2239. Dr. Chahal found that Plaintiff had “extreme”
22 | or “marked” limitations in nearly every area of mental functioning, including
23 | “marked” limitations on carrying out “simple 1 or 2 step instructions,”
24 | understanding information, and remembering information. AR 2340-41. Dr.
25 | Chahal opined that substance abuse did not contribute to “any” of Plaintiff's
26 | limitations. AR 2341.
27 At the October 2019 hearing, ME Dr. Peterson first asked whether the record
28 || contained evidence of any sustained period of sobriety. Plaintiff's counsel referred

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1 him to records from Plaintiff’s “most recent hospitalization” when Plaintiff tested
2 positive for marijuana. AR 543 (referring to May-June 2019 hospitalization at UCI
3 precipitated by marijuana use [AR 2342-2405]). Counsel also referred to
4 Plaintiff’s subsequent representations to Dr. Chahal about his reduced cannabis
5 use. See AR 2432 (On 5/24/19, Plaintiff reported using cannabis every day.); AR
6 2426 (On 7/31/19, Plaintiff reported using cannabis twice since discharge from
7 UCI.); AR 2420 (On 9/25/19, Plaintiff reported last using marijuana “three weeks
8 prior.”). Counsel ultimately agreed there was no evidence of sustained sobriety, to
9 which Dr. Peterson replied, “I just wanted to make sure that I didn’t overlook
10 anything.” AR 544.
11 Dr. Peterson next testified that Plaintiff’s cannabis use exacerbated his mood
12 instability. AR 545. Dr. Peterson testified that Plaintiff’s drug abuse caused
13 marked functional limitations, but Plaintiff had no observable functional
14 limitations when his drug abuse was in remission, per Dr. Krieg’s CE findings.
15 AR 545-47. Dr. Peterson opined that without drug abuse, Plaintiff had the
16 “cognitive capacity to complete simple, repetitive tasks.” AR 546.
17 Plaintiff’s counsel asked Dr. Peterson about Dr. Chahal’s MSS. AR 548.
18 Dr. Peterson agreed with assigning a Global Assessment of Functioning score of
19 35 or 40 “given that substances are still in the picture.” AR 548. When counsel
20 pointed out that Dr. Chahal had not diagnosed Plaintiff as suffering from a
21 substance abuse disorder, Dr. Peterson commented, “That’s unusual.” AR 548.
22 He added, “The treating record is really clear about the three substances being
23 diagnosed.” AR 548. Dr. Peterson cited progress notes written by Dr. Chahal
24 reflecting diagnoses of “cannabis dependence, alcohol abuse, [and] other stimulant
25 abuse” in additional to bipolar disorder. AR 550-51. Finally, he testified that “the
26 science that cannabis, for people with bipolar, can increase mood instability and
27 cause psychosis …that research is crystal clear.” AR 549-50. He also opined that
28 cannabis use also “lowers cognitive functioning in testing, and … affects memory,

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1 | and concentration, and, and motor speed.” AR 552.
2 At the October 2019 hearing, Plaintiff testified that he last used cannabis two
3 | months earlier, but he did not feel any better as a result of his two-month
4 | abstinence; he felt depressed. AR 553. He had experienced manic episodes
5 | without marijuana usage, but “usually” the manic episodes were triggered after he
6 | “smoked for a certain amount of time” then “cut it off cold turkey.” AR 556. His
7 | mental impairments do not cause any difficulties driving. AR 555.
8 C. The ALJ’s Treatment of the Medical Opinion Evidence.
9 The ALJ gave “great weight” to the opinions of Dr. Peterson as consistent
10 | with the “record as a whole,” including Plaintiff's treating progress notes and his
11 | testimony that he “is able to drive, meditate, and go to the movies.” AR 22.
12 The ALJ gave “little weight” to Dr. Krieg’s opinions, endorsing her test
13 | results but finding that she had overstated Plaintiff's RFC by not assessing any
14 | functional limitations caused by mental MDIs. AR 19, 21, 23.
15 The ALJ gave “some weight” to Dr. Caruso-Radin’s opinions, finding her
16 | opinion that Plaintiff could sustain simple, repetitive tasks consistent with other
17 | evidence. The ALJ disagreed with Dr. Caruso-Radin’s failure to propose any RFC
18 | restrictions on Plaintiff's social interactions. AR 23.
19 Finally, the ALJ gave “little weight” to Dr. Chahal’s MSS. AR 23. As
20 | reasons, the ALJ first cited inconsistency between the “numerous marked and
21 || extreme limitations” indicated in the MSS and Dr. Chahal’s own mental status
22 | examination (“MSE”) findings, which the ALJ characterized as “generally normal
23 | ... except for depressed mood and at times impaired concentration and memory
24 | ....” AR 23. Asa second reason, the ALJ also wrote, “Further, despite
25 | consistently reporting substance abuse disorders in the medical notes, Dr. Chahal
26 | failed to mention a diagnosis of substance abuse in this opinion.” AR 23.
27 D. Analysis of Claimed Error.
28 Plaintiff contends that the ALJ failed to give specific and legitimate reasons

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1 supported by substantial evidence for rejecting Dr. Chahal’s opinions in favor of
2 Dr. Peterson’s. (JS at 8.) In challenging the ALJ’s first reason, Plaintiff focuses
3 on arguing why Dr. Chahal’s MSE findings were not “generally normal.” (JS at 6-
4 8.) But the real issue is whether substantial evidence supports the ALJ’s finding of
5 inconsistency between Dr. Chahal’s MSS and MSE findings. It does. While the
6 MSEs note the existence of some mild or moderate psychological symptoms, they
7 also note many normal findings and fail to document any extreme symptoms, as
8 partially summarized in the chart below.
AR Date MSE Findings
9
1701-02 1/27/17 Normal but for “fair” insight and judgment
10 1696-97 3/22/17 Same
11 1693-94 5/3/17 Same
1690-91 5/31/17 Same
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1687-88 6/29/17 Same
13 1874-75 4/5/18 Same but “conc. was much improved”
1871-72 5/3/18 Same but “conc. was quite good”
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1868-69 6/6/18 Same but “conc. has improved”
15 1865-66 7/5/18 Same but “conc. has improved”
1862-63 8/1/18 Same but “mood depressed”
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1859-60 9/5/18 Same but “conc. has improved”
17 1856-57 10/1/18 Same but “conc. was not very good”
1853-54 11/14/18 Normal but for “fair” insight and judgment
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2426-27 7/31/19 Normal but for “depressed” mood, impaired memory,
19 “fair” concentration, insight, and judgment
20 2420-21 9/25/19 Normal but for “bland” mood, “constricted” affect,
impaired memory, poor concentration, “fair” insight and
21 judgment
22 Such MSE findings, made over several years, are inconsistent with Dr. Chahal’s
23 MSS opinions of extreme or marked limitations in so many functional areas
24 unrelated to drug use (AR 2340-41).
25 In challenging the ALJ’s second reason, Plaintiff argues that Dr. Chahal’s
26 failure to mention substance abuse disorder as a diagnosis is unimportant, since Dr.
27 Chahal opined that Plaintiff’s drug use did not contribute to any of his functional
28

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1 limitations. (JS at 8-9.) But Dr. Chahal’s failure to list substance abuse disorder as
2 a diagnosis in her MSS is yet another inconsistency between the MSS and treating
3 records. See, e.g., AR 2420 (listing cannabis dependence, alcohol abuse, and
4 stimulant abuse as diagnoses in September 2019, the same month when Dr. Chahal
5 wrote the MSS). More fundamentally, Dr. Peterson’s testimony provides
6 substantial evidence on which the ALJ could rely to conclude that Plaintiff’s drug
7 abuse did diminish his functional capacity. The ALJ was justified in concluding
8 that Dr. Peterson’s opinions were more consistent with the overall record.
9 As the ALJ noted, Plaintiff experienced worsening symptoms with substance
10 abuse. Plaintiff’s medical records indicate that his concentration appeared to be
11 “good” or “improved” when he denied drug and alcohol use (see, e.g., AR 1859-84
12 and chart above), but when he began using cannabis, his concentration appeared to
13 deteriorate (see, e.g., AR 1853-57). Similarly, Plaintiff had good adherence to his
14 treatment plan when not using substances, but his adherence appeared to falter
15 when he began using cannabis. Compare AR 1859-60 (9/5/18: treatment
16 adherence “good” but “started using Cannabis 1 week ago 2 to 3 bowls a day;”
17 euthymic mood, appropriate affect, concentration improved) and AR 1853
18 (11/14/18: “uses a gram of Weed every day” and “may miss a pill here and there;”
19 concentration “not very good”).
20 Substance use was involved at the time of each hospitalization. When
21 Plaintiff was hospitalized in July 2017, he admitted that he stopped taking one of
22 his medications a week prior. AR 972. Plaintiff also said he had used cocaine
23 twice a month a few months prior, and he had been smoking methamphetamine six
24 times in six months. AR 18, 972, 986. He reported being manic and unable to
25 sleep for three days, which also coincided with the time he most recently smoked
26 methamphetamine. AR 972 (used meth three days prior).
27 Plaintiff was hospitalized again in August 2017, at which time it was noted
28 Plaintiff had “worsening manic symptoms in context of medication non-adherence

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1 | and drug use.” AR 1015. He reported recent morphine, LSD, and marijuana use,
2 | as well as crystal methamphetamine a couple weeks prior and cocaine previously.
3 | AR 1005. His condition improved after resuming medications. AR 1015.
4 In early 2019, Plaintiff was using marijuana on a daily basis. AR 2345,
5 | 2432 (May 2019: “Cannabis uses every day up to 2 gram or less”). When he was
6 || hospitalized at UCI in May 2019, he had smoked marijuana just hours earlier. AR
7 | 2345. He used substances less frequently after this hospitalization (AR 2420,
8 | 2426) and displayed symptom improvement, as observed by Dr. Krieg in October
9 | 2018 after an eight-month period of sobriety. AR 1724-27.
10 Given this record, the ALJ did not err by adopting the opinions of Dr.
11 || Peterson who recognized that Plaintiff's drug use exacerbated his mental health
12 || symptoms (AR 545-47) over those of Dr. Chahal, who opined that Plaintiff's drug
13 | use did not contribute at all to the mental health symptoms that caused functional
14 | limitations (AR 2341).
15 IV.
16 CONCLUSION
17 For the reasons stated above, IT IS ORDERED that Judgment shall be
18 | entered AFFIRMING the decision of the Commissioner denying benefits.
19
20 | DATED: August 11, 2022
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03 Tos E Seat)
KAREN E. SCOTT
24 United States Magistrate Judge
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9980898. Public record. Not legal advice.