Opinion
CASE NO. 3:15-CV-05532-DWC
02-01-2016
DIANE HUGHES, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security Defendant.
ORDER ON PLAINTIFF'S COMPLAINT
Plaintiff filed this action, pursuant to 42 U.S.C § 405(g), seeking judicial review of the denial of Plaintiff's applications for Supplemental Security Income Benefits ("SSI"). The parties have consented to proceed before a United States Magistrate Judge. See 28 U.S.C. § 636(c), Fed. R. Civ. P. 73 and Local Magistrate Judge Rule MJR 13. See also Consent to Proceed before a United States Magistrate Judge, Dkt. 7.
After reviewing the record, the Court concludes the Administrative Law Judge ("ALJ") did not err in performing a Drug Abuse and Alcoholism ("DAA") analysis, nor did the ALJ err in evaluating Plaintiff's credibility, or in giving less than full weight to the opinions of two of Plaintiff's examining psychologists. Therefore, this matter is affirmed pursuant to sentence four of 42 U.S.C. § 405(g).
PROCEDURAL& FACTUAL HISTORY
On November 30, 2011, Plaintiff filed an application for SSI. See Dkt. 10, Administrative Record ("AR") 196-204. Plaintiff alleges she became disabled on January 1, 2009, due to post-traumatic stress disorder ("PTSD"), anxiety disorder, depression, and personality disorder. See AR 222. Plaintiff's application was denied upon initial administrative review and on reconsideration. See AR 129, 135. A hearing was held before an ALJ on July 19, 2013, at which Plaintiff, represented by counsel, appeared and testified. See AR 41.
On August 23, 2013, the ALJ found Plaintiff was not disabled within the meaning of Section 1614(a)(3)(A) of the Social Security Act. AR 34. Plaintiff's request for review of the ALJ's decision was denied by the Appeals Council on May 29, 2015, making that decision the final decision of the Commissioner of Social Security (the "Commissioner"). See AR 1, 20 C.F.R. § 404.981, § 416.1481. On July 30, 2015, Plaintiff filed a complaint in this Court seeking judicial review of the Commissioner's final decision.
Plaintiff argues the denial of benefits should be reversed and remanded for further proceedings, because the ALJ erred by: 1) improperly analyzing Plaintiff's DAA impairments; 2) improperly discounting the opinions of two of Plaintiff's examining psychiatrists; 3) improperly discrediting Plaintiff's testimony; and 4) as a result of the foregoing errors, making an incorrect residual functional capacity finding and incorrect findings at Step Five of the sequential evaluation. Dkt. 12, pp. 1-2.
STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), this Court may set aside the Commissioner's denial of social security benefits only if the ALJ's findings are based on legal error or not supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)). "Substantial evidence" is more than a scintilla, less than a preponderance, and is such "'relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989) (quoting Davis v. Heckler, 868 F.2d 323, 325-26 (9th Cir. 1989)).
DISCUSSION
I. Whether the ALJ Properly Evaluated Plaintiff's DAA Impairments
A. Standard
A drug abuse or alcoholism impairment, like any other severe impairment, has the potential to render an individual "unable to engage in any substantial gainful activity," thus meeting the threshold definition of disability under the Social Security Act. See 42 U.S.C. §§ 423(d)(1), 1382c(a)(3)(A). However, in 1996, Congress amended the Social Security Act "to discourage alcohol and drug abuse, or at least not to encourage it with a permanent government subsidy." Ball v. Massanari, 254 F.3d 817, 824 (9th Cir. 2001). If an individual only meets the definition of disability because of a DAA impairment (whether on its own or in combination with other impairments), the DAA impairment is "a contributing material factor" to the disability finding, and the Social Security Act requires that individual "not be considered to be disabled." Contract with America Advancement Act, Pub. L. No. 104-121, § 105, 110 Stat. 847 (1996) (codified as amended at 42 U.S.C. §§ 423(d)(2)(C), 1382c(a)(3)(J)). See also SSR 13-2p, 2013 WL 621536, *4 ("DAA is material to the determination of disability if the claimant would not meet [the] definition of disability if he or she were not using drugs or alcohol."). In order to determine whether a DAA impairment is material to a finding of disability,
the ALJ must conduct a drug abuse and alcoholism analysis ("DAA Analysis") by determining which of the claimant's disabling limitations would remain if the claimant stopped using drugs or alcohol. 20 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.Parra v. Astrue, 481 F.3d 742, 747 (9th Cir. 2007).
B. Application of Standard
Here, the ALJ found Plaintiff had the severe impairments of substance abuse (a DAA impairment), anxiety disorder, PTSD, personality disorder, major depressive disorder, and migraines/headaches. AR 18. After considering all of these impairments—including the DAA impairment—and performing the full five-step sequential evaluation, the ALJ found Plaintiff to be disabled. AR 22. However, because one of Plaintiff's severe impairments was a DAA impairment, the ALJ proceeded with the DAA analysis mandated by Social Security Administration regulation and rulings. AR 22-34; 20 C.F.R. §§ 404.1535(b), 416.935(b). See also Social Security Ruling ("SSR") 13-2p, 2013 WL 621536, corrected at 2013 WL 1221979. The ALJ found Plaintiff's non-DAA impairments—considered separately from Plaintiff's DAA impairment—resulted in a nearly identical residual functional capacity, with one critical exception. While the ALJ found all of Plaintiff's impairments, including the DAA impairment, would lead Plaintiff to be absent or late no fewer than four times per month, the ALJ found Plaintiff would not have any absenteeism or tardiness limitations if she were to cease her substance abuse. AR 20, 23. The Vocational Expert subsequently testified an individual with Plaintiff's limitations (not including the absenteeism or tardiness limitation) could perform jobs existing in substantial numbers in the national economy, provided the individual was not absent from work or late more than one day per month. AR 100-103. As a result, the ALJ found Plaintiff's DAA impairment was a contributing factor material to the disability determination, and therefore Plaintiff was not disabled within the meaning of Section 1614(a)(3)(A) of the Social Security Act. AR 33-34. Plaintiff argues this analysis was erroneous for four reasons.
In both residual functional capacity findings, the ALJ found Plaintiff was able:
to perform a full range of work at all exertional levels. [Plaintiff] can perform unskilled work with simple repetitive tasks. She cannot have interaction with the general public as part of her job duties but she can have occasional, superficial interaction with coworkers. She should deal with things rather than people. She would be off-task 5% of the time.
First, Plaintiff contends the ALJ erred by analyzing the effects of Plaintiff's DAA from her other severe limitations by comparing Plaintiff's condition before and during an alleged period of abstinence. Dkt. 12, p. 5-6. However, Plaintiff claims because the ALJ also found Plaintiff's substance abuse continued throughout the alleged period of abstinence, the ALJ could not have found Plaintiff had a period of abstinence. Id., citing AR 20-21. Plaintiff thereby contends her residual functional capacity should have been identical with and without the DAA impairment and the Plaintiff should be found disabled. Id. The Court disagrees. "The claimant bears the burden of proving that drug or alcohol addiction is not a contributing factor material to [her] disability." Parra, 481 F.3d at 748. If the facts of a particular case require a period of abstinence to separate out Plaintiff's other impairments from her DAA impairments, and no such period of abstinence is available in the record, the proper result would be to conclude Plaintiff failed to meet her burden of proving her DAA impairment is not a contributing factor material to AR 20, 23. her disability, and find her not to be disabled. See Laffoon v. Astrue, 2011 WL 3924810, *3 (W.D.Wash. 2011) (citing Parra, 481 F.3d at 749-50 & n.5); Smith v. Astrue, 2012 WL 3779769, *4-6 (E.D. Wash. 2012). See also Quill v. Washington, 2014 WL 3608894, *9-10 (E.D. Wash. 2014). Plaintiff's argument is undermined by the Parra court, which reasoned:
An alcoholic claimant who presents inconclusive evidence of materiality has no incentive to stop drinking, because abstinence may resolve his disabling limitations and cause his claim to be rejected or his benefits terminated. His claim would be guaranteed only as long as his substance abuse continues—a scheme that effectively subsidizes substance abuse in contravention of the statute's purpose.Parra, 481 F.3d at 749-50.
In any event, the ALJ did in fact rely on a period of abstinence established in the record. The ALJ cited Plaintiff's longitudinal history of urinalysis testing to find Plaintiff last used methamphetamine in July, 2012, and—with the exception of one admitted relapse in May, 2013—Plaintiff last used marijuana in November, 2012. AR 20-21, 63, 577, 588-89. The ALJ also observed Plaintiff's mental health symptoms improved between July, 2012 and the date of the hearing. AR 27, 30. For example, the ALJ documented claimant's reports of improvement in her depression in April, 2013 (AR 555), as well as her improvements in timeliness and attendance at mental health court and counseling sessions, most of which occurred after July, 2012. AR 30, 590-616, 638-39. This was substantial evidence in support of a period of abstinence, and the ALJ was entitled to rely upon it. See Martinelli v. Astrue, 2010 WL 1490591, *5 (W.D. Wash. 2010) (finding the ALJ properly documented periods of abstinence with medical records reflecting Plaintiff had not used methamphetamines for several months); Evans v. Colvin, 2014 WL 4068641, *6 (E.D. Wash. 2014) (suggesting it was proper to conclude the claimant was abstinent from drugs and alcohol for almost one year, based solely on the claimant's incarceration during that time).
The exhaustive longitudinal urinalysis testing was performed as a requirement of Plaintiff's ongoing monitoring by Mental Health Court, which appears to be a pretrial diversion program. See AR 51-52. --------
Second, Plaintiff argues the ALJ was not competent to assess whether Plaintiff had a period of abstinence, but was instead required to call a medical expert to separate out Plaintiff's DAA impairments from her remaining limitations. Dkt. 12, p. 6-7. Plaintiff does not provide, nor can the Court find, any authority which suggests the ALJ was required to consult with a medical expert in order to assess whether Plaintiff had abstained from drugs for a sufficient period of time. Instead, Plaintiff relies upon a general citation to Day v. Weinberger for the proposition the ALJ impermissibly acted as her own expert in assessing whether Plaintiff had a period of abstinence. Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975). However, in Day, the court found the ALJ impermissibly went outside of the available medical records to medical textbooks, and used those medical textbooks to make an independent assessment of a claimant's physical condition. Id. Unlike Day, the ALJ in this case relied upon medical records indicating Plaintiff had continuous periods of sobriety between July and November of 2012, and between November, 2012 and May, 2013. AR 20-21, 577, 588-89. See Martinelli, 2010 WL 1490591, *5; Evans, 2014 WL 4068641, *6. Materiality findings in the DAA Analysis are reserved to the Commissioner. See 20 C.F.R. §§ 404.1527(e) and 416.927(e). See also SSR 13-2P, 2013 WL 621536, at *8, n. 19. Further, Social Security Ruling 13-2P indicates an acceptable medical source opinion is not required to assess materiality provided there is a period of abstinence in the record. SSR 13-2P, 2013 WL 621536, at *9. See also id. at *8 (noting in the context of physical impairments and their interplay with DAA, "[period of abstinence] evidence need not always come from an acceptable medical source. If we are evaluating whether a claimant's work-related functioning would improve, we may rely on evidence from 'other' medical sources, such as nurse practitioners, and other sources, such as family members, who are familiar with how the claimant has functioned during a period of abstinence"). There was sufficient evidence in the record for the ALJ to determine Plaintiff had a period of abstinence, and the Court will not disturb this finding.
Third, Plaintiff argues the ALJ erred in her DAA Analysis by relying upon Dr. Clifford Eather's opinion of Plaintiff's functional limitations. Dkt. 12, p. 7. Dr. Eather's opinion was rendered before Plaintiff had ceased her methamphetamine use in July, 2012. Dkt. 12, p. 7. Because the ALJ found Plaintiff had disabling limitations when Plaintiff's DAA impairment was considered, Plaintiff contends the ALJ was required to reject Dr. Eather's less restrictive opinion as inconsistent with the ALJ's conclusion Plaintiff was disabled when DAA impairments were considered. The Court disagrees. The ALJ specifically indicated she was not fully adopting Dr. Eather's opinion into the residual functional capacity finding, because of "later medical records and the testimony of the claimant which Dr. Eather did not have the opportunity to consider." AR 29. Further, the ALJ noted Dr. Eather's opinion of Plaintiff's functional limitations was "supported by the evidence as a whole in the absence of substance abuse." AR 22, 23 (emphasis added). See also AR 29. The ALJ was allowed to consider the consistency of Dr. Eather's opinion with Plaintiff's demonstrated abilities during her period of abstinence in choosing to give Dr. Eather's opinion more weight. See 20 C.F.R. § 416.927(c)(4) (an ALJ may give greater weight to an opinion which is more consistent with the whole record).
Finally, Plaintiff argues the ALJ failed to follow the requirements of SSR 13-2P, as the ALJ failed to provide specific and legitimate reasons supported by substantial evidence for rejecting the medical opinions stating Plaintiff's disabilities would continue in the absence of DAA. Dkt. 12, p. 7-8. As discussed in Section III, below, however, the ALJ did offer specific and legitimate reasons, supported by substantial evidence, for giving less than full weight to the opinions of Dr. Wingate and Dr. Kemp. Section III, infra. Thus, Plaintiff's argument is without merit.
II. Whether the ALJ Properly Evaluated Plaintiff's Credibility
A. Standard
If an ALJ finds a claimant has a medically determinable impairment which reasonably could be expected to cause the claimant's symptoms, and there is no evidence of malingering, the ALJ may reject the claimant's testimony only "by offering specific, clear and convincing reasons." Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996) (citing Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir.1993)). See also Reddick, 157 F.3d at 722. However, sole responsibility for resolving conflicting testimony and questions of credibility lies with the ALJ. Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1999) (citing Waters v. Gardner, 452 F.2d 855, 858 n.7 (9th Cir. 1971); Calhoun v. Bailar, 626 F.2d 145, 150 (9th Cir. 1980)). Where more than one rational interpretation concerning a plaintiff's credibility can be drawn from substantial evidence in the record, a district court may not second-guess the ALJ's credibility determinations. Fair, 885 F.2d at 604. See also 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."). In addition, the Court may not reverse a credibility determination where that determination is based on contradictory or ambiguous evidence. See Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984). That some of the reasons for discrediting a claimant's testimony should properly be discounted does not render the ALJ's determination invalid, as long as that determination is supported by substantial evidence. Tonapetyan , 242 F.3d at 1148.
B. Application of Standard
In assessing a claimant's credibility, the ALJ may consider "ordinary techniques of credibility evaluation," such as reputation for lying, prior inconsistent statements concerning symptoms, and other testimony which "appears less than candid." Smolen, 80 F.3d at 1284. The ALJ may also consider inconsistencies between a claimant's testimony and her activities of daily living. See Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). Here, the ALJ documented numerous inconsistencies between Plaintiff's testimony at the hearing, Plaintiff's prior statements, and Plaintiff's activities of daily living. For example, though Plaintiff testified to extreme panic and anxiety in public, the ALJ noted she volunteered at a clothing bank, used public transportation, and went grocery shopping for an hour or more at a time. AR 75-76, 299, 347, 599. Though Plaintiff testified to a history of domestic abuse in California, an extreme fear of running into an individual from California related to her history of abuse, and an inability to return to the state of California, the ALJ noted Plaintiff took a month-long recreational road trip in May, 2013 which included a return to California. AR 53, 75, 553, 567-68, 610-12. Though Plaintiff testified she could not work in part because she could not be separated from her service animal, the ALJ noted she was willing to part from her dog in order to obtain specific housing. AR 89, 597. Though Plaintiff testified she had difficulty adhering to a schedule, the ALJ noted Plaintiff attended numerous mental health court appointments during her period of abstinence, followed a routine, and kept calendars. AR 27-28, 88, 567-574, 590-616. In fact, Plaintiff testified her attendance at appointments has improved since she began working with mental health court. AR 85. The ALJ noted Plaintiff had previously stated her inability to obtain work arose from preexisting felony warrants, rather than her other impairments. AR 536. See Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001) The ALJ also relied upon records indicating Plaintiff's anxiety symptoms were well-controlled through medication. AR 503. See 20 C.F.R. § 404.1529(c)(3)(iv) and (v); Tommasetti v. Astrue, 533 F.3d 1035, 1039-40 (9th Cir. 2008); Morgan v. Commissioner of Social Sec. Admin., 169 F.3d 595, (9th Cir. 1999). These were clear and convincing reasons, supported by substantial evidence, for the ALJ to discredit Plaintiff's testimony.
Plaintiff argues the above-stated reasons were not sufficiently clear and convincing reasons to discount Plaintiff's testimony, as "all of these factors could be valid and still Plaintiff's testimony about her inability to sustain a schedule could be true." Dkt. 12, p. 16. In essence, Plaintiff argues the Court should make a different interpretation of the evidence. However, the ALJ discredited aspects of Plaintiff's testimony which bore directly on Plaintiff's claims of her inability to maintain a schedule. AR 27-28, 88, 567-574, 590-616. Further, the ALJ supported her conclusions concerning Plaintiff's credibility with substantial evidence, and made a rational interpretation of Plaintiff's credibility based on that evidence. As a result, this Court will not disturb the ALJ's credibility findings. Fair, 885 F.2d at 604; Thomas, 278 f.3d at 954.
III. Whether the ALJ Properly Evaluated the Medical Opinion Evidence
A. Standard
The ALJ must provide "clear and convincing" reasons for rejecting the uncontradicted opinion of either a treating or examining physician or psychologist. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996) (citing Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988); Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir. 1990)). However, "[i]n order to discount the opinion of an examining physician in favor of the opinion of a nonexamining medical advisor, the ALJ must set forth specific, legitimate reasons that are supported by substantial evidence in the record." Van Nguyen v. Chater, 100 F.3d 1462, 1466 (9th Cir. 1996) (citing Lester, 81 F.3d at 831). The ALJ can accomplish this by "setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings." Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (citing Magallanes, 881 F.2d at 751). In addition, the ALJ must explain why the ALJ's own interpretations, rather than those of the doctors, are correct. Reddick, 157 F.3d at 725 (citing Embrey, 849 F.2d at 421-22). The ALJ "may not reject 'significant probative evidence' without explanation." Flores v. Shalala, 49 F.3d 562, 570-71 (9th Cir. 1995) (quoting Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984) (quoting Cotter v. Harris, 642 F.2d 700, 706-07 (3d Cir. 1981))). The "ALJ's written decision must state reasons for disregarding [such] evidence." Flores, 49 F.3d at 571.
B. Application of Standard
As part of the DAA Analysis, the ALJ determined Plaintiff would have the residual functional capacity to perform the full range of work at all exertional levels, subject to certain nonexertional limitations, if Plaintiff ceased her substance use. AR 23. However, the ALJ did not find Plaintiff would have any limitations or restrictions relating to absenteeism or tardiness. AR 23. Plaintiff contends this finding was erroneous, as the ALJ failed to offer specific and legitimate reasons to reject the more restrictive mental limitations and global assessment of functioning ("GAF") scores opined to by two examining psychologists.
1. Fred Kemp, Ph.D.
Dr. Kemp examined Plaintiff on December 22, 2012. AR 329. On mental status examination, Dr. Kemp found Plaintiff was pleasant and cooperative, with normal speech, adequate comprehension, and coherent and goal-directed thought processes. AR 330. However, Dr. Kemp also found Plaintiff's affect was congruent with her stated mood, "antsy, nervous, sweaty, and out of it," had marked impairments in her recent memory, and deficiencies in concentration, abstract thinking, insight and judgment. AR 330-31. Dr. Kemp diagnosed Plaintiff with Anxiety disorder, NOS, Depression, NOS, and PTSD. AR 332. As a result of these impairments, Dr. Kemp found Plaintiff would have marked limitations in her ability to make judgments on complex work-related decisions and respond appropriately to usual work situations and changes in a routine work setting. AR 326-27. Dr. Kemp also found Plaintiff would have moderate limitations in her ability to make judgments on simple work related decisions, understand and remember complex instructions, carry out complex instructions and interact appropriately with supervisors, and found Plaintiff would have mild limitations understanding, remembering, and carrying out simple instructions, and interacting appropriately with the public and with coworkers. AR 326-27.
The ALJ gave some weight to Dr. Kemp's opinion because Dr. Kemp had the opportunity to observe the claimant during a period of sobriety. AR 30. However, the ALJ did not give full weight to Dr. Wingate's opinion for three reasons:
[1] the degree of limitation found by Dr. Kemp is inconsistent with the claimant's various activities discussed above, such as attending numerous NA meetings, regularly caring for children, making arrangements to undertake a road trip, taking a road trip to various states, taking care of her parents, and laying tile. [2] The degree of limitation found by Dr. Kemp is also inconsistent with the clinical observations of the claimant during treatment discussed above, such as having normal speech and being cooperative. [3] Dr. Kemp placed too much reliance on the claimant's less than credible complaints.AR 30 (numbering added). Plaintiff contends these were not specific and legitimate reasons supported by substantial evidence for giving Dr. Kemp's opinion less than full weight. The Court disagrees.
First, "when an opinion is not more heavily based on a patient's self reports than on clinical observations, there is no evidentiary basis for rejecting the opinion." Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014). However, this does not mean it is inappropriate to reject a psychologist's opinion when the opinion is based largely on self-reports which have properly been found incredible. See Tonapetyan, 242 F.3d at 1149. See also Woodsum v. Astrue, 2012 WL 1388346 (W.D. Wash. 2012). In the section of Dr. Kemp's opinion pertaining to Plaintiff's functional limitations, Dr. Kemp was asked to identify the factors which support his assessment. AR 326-27. Though Dr. Kemp conducted a mental status examination and record review, Dr. Kemp stated he only relied on "claimant's responses on the Brief Work History, Chief Complaints, and concentration sections of the interview," as the basis for limitations pertaining to Plaintiff's ability to understand, remember, and carry out instructions, and "claimant's responses primarily on the Chief Complaints [and] Brief Work [History] sections" as the basis for limitations pertaining to Plaintiff's ability to interact with supervisors, coworkers, and the public, as well as her ability to respond to changes in her routine work setting. AR 326-27. As the ALJ found Plaintiff's self-reports were incredible, the ALJ properly discounted Dr. Kemp's opinion on this basis.
Second, the ALJ cited several of Plaintiff's activities of daily living, such as her regular attendance of NA meetings, her care-giving to her parents and children, and her prior work activity laying tile, as inconsistent with Dr. Kemp's opined limitations. As the ALJ elaborated during her discussion of Plaintiff's credibility, these activities were inconsistent with deficiencies in Plaintiff's ability to concentrate, maintain attention, ability to respond to changes in the workplace, and ability to complete a normal workweek. The ALJ was allowed to consider these inconsistencies in discounting Dr. Kemp's opinion. AR 27-28, 30, Burrell v. Colvin, 775 F.3d 1133, 1137-38 (9th Cir. 2014).
Finally, the ALJ did not explain, nor is it self-evident from Dr. Kemp's opinion, how Plaintiff's normal speech and cooperative behavior during Dr. Kemp's evaluation was contradictory with Dr. Kemp's opined limitations. However, in light of the ALJ's other specific and legitimate reasons for discounting Dr. Kemp's opinion, any error in this reasoning was harmless. See Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012).
As the ALJ offered specific and legitimate reasons supported by substantial evidence to give less than full weight to Dr. Kemp's opinion, the ALJ did not err.
2. Terilee Wingate, Ph.D.
Dr. Wingate examined Plaintiff on December 26, 2012. AR 536. On mental status examination, Dr. Wingate documented deficiencies in Plaintiff's insight, judgment, ability to parse abstract thought, and memory, but indicated Plaintiff's perception was not impaired by hallucinations or thought disorder, and her thought process and content were within normal limits. AR 539-40. While Plaintiff demonstrated a labile affect and was tearful, depressed, and irritable during the examination, she was also well-groomed, demonstrated logical, linear speech, and was oriented to all spheres. AR 539-40. Dr. Wingate diagnosed Plaintiff with PTSD, personality disorder, NOS, and polysubstance dependence in reported early remission. AR 537. Dr. Wingate opined these conditions would lead to marked limitations in Plaintiff's ability to perform activities within a schedule, maintain regular attendance, be punctual within customary tolerances without special supervision, and in her ability to complete a normal work day and work week without interruptions from psychologically based symptoms. AR 538. Dr. Wingate also opined plaintiff would have moderate limitations in understanding, remembering, and persisting in tasks by following detailed instructions, learning new tasks, performing routine tasks without special supervision, setting realistic goals and planning independently, adapting to changes, communicating and performing effectively, and maintaining appropriate behavior in a work setting. AR 538. However, Dr. Wingate opined Plaintiff had none to mild limitations in understanding, remembering, and persisting in tasks by following short and simple instructions, making simple work-related decisions, being aware of normal hazards, and asking simple questions or requesting assistance. AR 538.
As with Dr. Kemp, the ALJ gave some weight to Dr. Wingate's opinion because Dr. Wingate's observations occurred during a period of sobriety, and because Dr. Wingate's opinion of Plaintiff's mild to moderate limitations were supported by her observations and her mental status examination. AR 30. However, the ALJ did not give full weight to Dr. Wingate's opinion for two reasons:
[1] her opinion of marked limitations is inconsistent with the medical record as a whole. Dr. Wingate found marked limitations in the claimant's ability to complete a normal workweek or even maintain regular attendance. However, the claimant has demonstrated that she is able to maintain sufficient attendance to meet her goals with mental health court. While she did not attend every session, she was careful to attend sufficient sessions to be in compliance with treatment [AR 638]. She was also careful to get advanced permission to miss certain sessions in order to take her road trip or in order to watch children [AR 566-616]. [2] Clinical observations of the claimant discussed above also indicate that the claimant was generally cooperative and that she improved with sobriety and following her medication regime.AR 30 (emphasis and numbering added). Plaintiff contends these were not specific and legitimate reasons, supported by substantial evidence, for giving less than full weight to Dr. Wingate's opinion. The Court disagrees.
First, Plaintiff argues her mental health court attendance record does not contradict Dr. Wingate's opinion Plaintiff would have marked limitations in maintaining regular attendance, as the mental health court requirements were not "a good proxy for the world of work." Dkt. 12, p. 11. Plaintiff notes the vocational expert testified employers would not retain an employee who was absent more than one day per month, yet Plaintiff missed several appointments throughout her year-long tenure with mental health court. AR 101, 590-616. However, the ALJ correctly notes Plaintiff was able to attend sufficient counseling sessions and in-court appearances to remain in compliance with the requirements of mental health court, and was conscientious in obtaining prior approval before missing certain sessions. AR 30, 567-73, 596, 599, 601, 608-09, 611, 615. Though Plaintiff disputes the significance of this evidence, the ALJ's interpretation of Plaintiff's attendance records is a rational one this Court will not disturb. Thomas, 278 F.3d at 954.
Second, Plaintiff argues the ALJ could not elevate Dr. Eather's opinion over Dr. Wingate's, because the opinion of a non-examining medical reviewer whose opinion was rendered prior to Dr. Wingate's opinion does not constitute substantial evidence. However, a non-examining physician's opinion may constitute substantial evidence when it is consistent with other independent evidence in the record. Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). As the ALJ noted, Dr. Eather's opinion was consistent with Plaintiff's activities, as well as the record evidence from Plaintiff's periods of abstinence. AR 22, 23, 29. For example, Plaintiff demonstrated moderate impairments in concentration, persistence, or pace and in social functioning, but was able to keep most of her appointments and adhere to a schedule. See AR 77 285-291, 299-300, 331, 590-616, 638. Dr. Eather's opinion was substantial evidence the ALJ could rely upon.
As the ALJ offered specific and legitimate reasons supported by substantial evidence to give less than full weight to Dr. Wingate's opinion, the ALJ did not err.
3. GAF Scores
In addition to Dr. Wingate and Dr. Kemp's opinions on Plaintiff's functional limitations, both doctors assigned Plaintiff a GAF score of 45. AR 332, 538. The ALJ gave little weight to all GAF scores in the record by discussing general methodological problems with GAF scores, the fact GAF scores are "an attempt to rate symptoms or functioning," and the fact GAF scores do "not have a direct correlation to the severity requirements in our mental disorders listings." AR 31. Plaintiff contends this summary rejection of GAF scores was in error, as the ALJ was required by Social Security Administration regulation to consider GAF scores as opinion evidence requiring the same attention as other functional assessments. Dkt. 12, p. 10, 14. It is true, GAF scores are competent evidence which must be considered by an ALJ. See Garrison v. Colvin, 759 F.3d 995, 1003 (9th Cir. 2014); VanBibber v. Carolyn [Colvin], 2014 WL 29665, *3 (W.D.Wa. 2014) (observing GAF scores constitute medical opinions which cannot be summarily dismissed). However, GAF scores "do not control determinations of whether a person's mental impairments rise to the level of a disability[.]" Garrison, 759 F.3d at 1002, n. 4. See also Hughes v. Colvin, 599 Fed.Appx. 765, 766 (9th Cir. 2015) (noting GAF scores "do[] not have any direct correlative work-related or functional limitations."). Importantly, the only GAF scores in the record Plaintiff contends the ALJ failed to properly consider were contained in the opinions of Dr. Wingate and Dr. Kemp. The ALJ fully considered both opinions and offered specific and legitimate reasons, supported by substantial evidence, for giving those opinions less than full weight. See Section III(B)(1)-(2), supra. Further, Plaintiff has failed to demonstrate how re-weighing Dr. Wingate and Dr. Kemp's opined GAF scores, would change the ALJ's residual functional capacity analysis. See Hughes, 599 Fed. Appx. at 766 (9th Cir. 2015) (holding any error in failing to consider the GAF score of a treating nurse practitioner was harmless, as the ALJ's residual functional capacity nonetheless incorporated all credible functional limitations, and the claimant failed to identify any additional limitations the ALJ should have imposed in light of the GAF score). Consequently, Plaintiff has not shown how a rejection of these GAF scores caused any harm. See Molina, 674 F.3d at 1115-17; VanBibber, 2014 WL 29665, *4.
IV. Whether the ALJ Properly Evaluated Plaintiff's Residual Functional Capacity, and Properly Evaluated Plaintiff's Ability to Perform Other Jobs Existing in Substantial Numbers in the National Economy at Step Five of the Sequential Evaluation
Plaintiff argues, in conclusory fashion, the ALJ's residual functional capacity determination is flawed as it did not include all of the limitations associated with all of the plaintiff's non-DAA severe impairments, and instead should have included all of the limitations both she and her doctors articulated. As a result, Plaintiff contends the ALJ's findings at Step Five were erroneous. However, as discussed in Sections I, II, and III, above, the ALJ properly performed a DAA Analysis, properly discounted plaintiff's credibility, properly weighed the medical evidence, and properly evaluated the plaintiff's impairments. Thus, there was no error in the ALJ's assessed residual functional capacity or the Step Five findings, as the residual functional capacity included all of the plaintiff's credible limitations.
CONCLUSION
Based on the above stated reasons and the relevant record, the undersigned finds the ALJ properly concluded Plaintiff was not disabled. Therefore, the court orders this matter be affirmed pursuant to sentence four of 42 U.S.C. § 405(g). Judgment should be for Defendant and the case should be closed.
Dated this 1st day of February, 2016.
/s/_________
David W. Christel
United States Magistrate Judge