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 1 Case 8:20-cv-02383-KES Document 31 Filed 08/11/22 Page 2of9 Page ID #:2601

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).

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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 12 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” 14 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” 16 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 18 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 21 22 03 Tos E Seat)

KAREN E. SCOTT

24 United States Magistrate Judge 25 26 27 28