1 – OPINION AND ORDER

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

WILLIAM CARR,

Plaintiff, 

v.

CAROLYN COLVIN, Acting 

Commissioner, Social Security

Administration,

Defendant.

Case No. 3:14-cv-01486-ST

OPINION AND ORDER

STEWART, Magistrate Judge:

INTRODUCTION

Plaintiff, William Carr (“Carr”), seeks judicial review of the final decision by the Social 

Security Commissioner (“Commissioner”) denying his applications for Disability Insurance 

Benefits (“DIB”) under Title II of the Social Security Act (“SSA”), 42 USC §§ 401-433, and 

Supplemental Security Income (“SSI”) under Title XVI of the SSA, 42 USC §§ 1381-1383f. 

This court has jurisdiction to review the Commissioner’s decision pursuant to 42 USC §§ 405(g) 

and 1383(c)(3). All parties have consented to allow a Magistrate Judge to enter final orders and 

judgments in this case in accordance with FRCP 73 and 28 USC § 686(c) (docket #6).

Because the Commissioner’s decision is supported by substantial evidence, it is 

AFFIRMED.

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2 – OPINION AND ORDER

ADMINISTRATIVE HISTORY

 Carr protectively filed for DIB and SSI on August 30, 2010, alleging a disability onset 

date of May 30, 2009. Tr. 186-97. Carr’s applications were denied initially and on 

reconsideration. Tr. 115-32. On January 4, 2013, a hearing was held before Administrative Law 

Judge (“ALJ”) David DeLaittre. Tr. 38-54. The ALJ issued a decision on February 4, 2013, 

finding Carr not disabled. Tr. 17-31. The Appeals Council denied a request for review on July 

17, 2014. Tr. 1-5. Therefore, the ALJ’s decision is the Commissioner’s final decision subject to 

review by this court. 20 CFR § 410.670a.

BACKGROUND

Born in 1956, Carr was 57 years old at the time of the hearing before the ALJ. Tr. 186. 

Carr has a high school education and past relevant work experience as an auto parts salesman. 

Tr. 42, 219-20. Carr alleges that he has been unable to work since May 30, 2009, due to the 

combined impairments of depression, anxiety, PTSD, and a traumatic brain injury (“TBI”) from 

a motor vehicle accident in 1996. Tr. 211, 229, 269.

DISABILITY ANALYSIS

Disability is the “inability to engage in any substantial gainful activity by reason of any 

medically determinable physical or mental impairment which can be expected to result in death 

or which has lasted or can be expected to last for a continuous period of not less than 12 

months.” 42 USC § 423(d)(i)(A). The ALJ engages in a five-step sequential inquiry to 

determine whether a claimant is disabled under the meaning of the Act. 20 CFR §§ 404.1520, 

416.920; Tackett v. Apfel, 180 F3d 1094, 1098-99 (9th Cir 1999).

At step one, the ALJ determines if the claimant is performing substantial gainful activity. 

If so, the claimant is not disabled. 20 CFR §§ 404.1520(a)(4)(i) & (b), 416.920(a)(4)(i) & (b).

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At step two, the ALJ determines if the claimant has “a severe medically determinable 

physical or mental impairment” that meets the 12-month durational requirement. 20 CFR 

§§ 404.1520(a)(4)(ii) & (c), 416.909, 416.920(a)(4)(ii) & (c). Absent a severe impairment, the 

claimant is not disabled. Id.

At step three, the ALJ determines whether the severe impairment meets or equals an 

impairment “listed” in the regulations. 20 CFR §§ 404.1520(a)(4)(iii) & (d), 416.920(a)(4)(iii) 

& (d); 20 CFR Pt. 404, Subpt. P, App. 1 (“Listing of Impairments”). If the impairment is 

determined to meet or equal a listed impairment, then the claimant is disabled.

However, the payment of benefits is prohibited when drug and alcohol use is a material 

factor in a claimant’s disability. 42 USC §§ 423(d)(2)(C), 1382c(a)(3)(j); 20 CFR § 416.936. 

An ALJ must conduct a drug and alcohol analysis (“DAA”) by determining which of the 

claimant’s disabling factors would remain if the claimant stopped using drugs or alcohol. 20 

CFR § 414.1535(b). If the remaining limitations would not be disabling, then the claimant’s 

substance abuse is material and benefits must be denied. Id; Parra, 481 F3d at 745. The 

claimant bears the burden of proving that substance abuse is not a material contributing factor to 

the alleged disability. Parra, 481 F3d at 745. To carry this burden, the claimant must offer 

evidence that the disabling effects of his impairments would have remained had he stopped 

abusing drugs or alcohol. Id at 748-49. Evidence that is inconclusive does not satisfy this 

burden. Id. 

If adjudication proceeds beyond step three, the ALJ must first evaluate medical and other 

relevant evidence in assessing the claimant=s residual functional capacity (“RFC”). The 

claimant=s RFC is an assessment of work-related activities the claimant may still perform on a 

regular and continuing basis, despite the limitations imposed by his or her impairments. 20 CFR 

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4 – OPINION AND ORDER

§§ 404.1520(e), 416.920(e); Social Security Ruling (“SSR”) 96-8p, 1996 WL 374184 (July 2, 

1996).

At step four, the ALJ uses the RFC to determine if the claimant can perform past relevant 

work. 20 CFR §§ 404.1520(a)(4)(iv) & (e), 416.920(a)(4)(iv) & (e). If the claimant cannot 

perform past relevant work, then at step five, the ALJ must determine if the claimant can perform 

other work in the national economy. 20 CFR §§ 404.1520(a)(4)(v) & (g), 416.920(a)(4)(v) & 

(g); Bowen v. Yuckert, 482 US 137, 142 (1987); Tackett, 180 F3d at 1099.

The initial burden of establishing disability rests upon the claimant. Tackett, 180 F3d at 

1098. If the process reaches step five, the burden shifts to the Commissioner to show that jobs 

exist in the national economy within the claimant=s RFC. Id. If the Commissioner meets this 

burden, then the claimant is not disabled. 20 CFR §§ 404.1520(a)(4)(v) & (g), 416.920(a)(4)(v) 

& (g), 416.960(c).

ALJ’S FINDINGS

At step one, the ALJ concluded that Carr has not engaged in substantial gainful activity 

since May 30, 2009, the alleged onset date. Tr. 19.

At step two, the ALJ concluded that Carr has the severe impairments of depressive 

disorder, anxiety disorder, and alcohol abuse. Tr. 20.

At step three, the ALJ found that Carr=s impairments, taking his substance abuse disorder 

into consideration, met the criteria of Listings 12.04 (affective disorders), 12.06 (anxiety-related 

disorders), and 12.09 (substance addiction disorders). However, conducting the DAA, the ALJ 

found that factoring out the impact of his substance abuse, the remaining limitations would not 

cause more than a minimal impact on Carr’s ability to perform basic work activities. Tr. 23. 

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5 – OPINION AND ORDER

Accordingly, the ALJ determined that Carr was not disabled at any time through the date 

of the decision and did not proceed to steps four and five. Tr. 31.

STANDARD OF REVIEW

The reviewing court must affirm the Commissioner=s decision if it is based on proper 

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

§ 405(g); Lewis v. Astrue, 498 F3d 909, 911 (9th Cir 2007). This court must weigh the evidence 

that supports and detracts from the ALJ=s conclusion. Lingenfelter v. Astrue, 504 F3d 1028, 

1035 (9th Cir 2007), citing Reddick v. Chater, 157 F3d 715, 720 (9th Cir 1998). The reviewing 

court may not substitute its judgment for that of the Commissioner. Ryan v. Comm’r of Soc. Sec. 

Admin., 528 F3d 1194, 1205 (9th Cir 2008), citing Parra v. Astrue, 481 F3d 742, 746 (9th Cir 

2007). Where the evidence is susceptible to more than one rational interpretation, the 

Commissioner=s decision must be upheld if it is “supported by inferences reasonably drawn from 

the record.” Tommasetti v. Astrue, 533 F3d 1035, 1038 (9th Cir 2008), quoting Batson v. 

Comm’r of Soc. Sec. Admin., 359 F3d 1190, 1193 (9th Cir 2004).

DISCUSSION

Carr argues the ALJ erred because the record demonstrates that he has impairments 

which would continue to be severe in the absence of his alcohol use. In particular, Carr contends 

the ALJ erred in his DAA analysis by improperly: (1) finding him not credible; (2) rejecting the 

opinion of his treating physician, Charles N. Buser, M.D.; and (3) rejecting the opinion of his 

examining psychologist, James E. Bryan, Ph.D.

I. Carr’s Credibility

The Ninth Circuit has developed a two-step process for evaluating the credibility of a 

claimant’s own testimony about the severity and limiting effect of the claimant’s symptoms. 

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6 – OPINION AND ORDER

Vasquez v. Astrue, 572 F3d 586, 591 (9th Cir 2009). First the ALJ “must determine whether the 

claimant has presented objective medical evidence of an underlying impairment which could 

reasonably be expected to produce the pain or other symptoms alleged.” Lingenfelter, 504 F3d 

1036. Second, “if the claimant meets the first test, and there is no evidence of malingering, ‘the 

ALJ can reject the claimant’s testimony about the severity of her symptoms only by offering 

specific, clear and convincing reasons for doing so.’” Id, quoting Smolen v. Chater, 80 F3d 

1273, 1281 (9th Cir 1996).1 

The ALJ found that Carr’s statements regarding his symptoms and limitations while 

using alcohol were credible. Tr. 21. The ALJ also found that if Carr stopped the substance 

abuse, his medically determinable impairments could reasonably be expected to produce the 

alleged symptoms. Tr. 24. However, the ALJ found that Carr’s statements concerning the 

intensity, persistence, and limiting effects of his symptoms when sober were not credible 

“because they are inconsistent with finding that [Carr] has no severe impairment or combination 

of impairments.” Tr. 25. In so finding, the ALJ noted a “paucity of purely objective findings”

regarding Carr’s impairments in the absence of substance abuse.2

 Tr. 23. Nonetheless, the ALJ 

gave a number of reasons why Carr’s alleged symptoms when sober are not supported by the 

record, including clinical observations, inconsistent statements, and Carr’s criminal history. As 

discussed below, those reasons are clear and convincing.

Although Carr alleged disabling mental impairments from his 1996 motor vehicle 

accident, the ALJ noted that he “continued to work at levels consistent with substantial gainful 

 1 Although the Commissioner disagrees with this standard, this court is obligated to follow the rulings of the Ninth Circuit. 2

 Indeed, with the exception of the time period when Carr was undergoing inpatient rehabilitation treatment at Bridgeway 

Recovery from January through April of 2012, it is difficult to ascertain from the record the true amount of time that he was 

abstaining from alcohol use. At the hearing before the ALJ on January 4, 2013, Carr testified that he had been sober since 

January 17, 2012. Tr. 43. During office visits with Dr. Buser from September through December of 2012, however, Carr 

reported to Dr. Buser that he was drinking two to three large cans of “24 oz. high gravity beer” per week. Tr. 536, 539, 550, 569, 

587, 650.

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7 – OPINION AND ORDER

activity, for approximately 13 years after this injury.” Tr. 25. He added that the record 

contained “no evidence of any special accommodations” during this period; to the contrary, Carr 

“wrote that he was a highly sought-after employee by several GM dealerships for his skills as an 

auto parts salesman.” Id, citing Tr. 245. Moreover, no disabling physical or mental impairment 

caused him to leave his employment; he was terminated for theft. Id. The ALJ also noted that, 

when sober,3 Carr had been able to work with a Salvation Army program and perform volunteer 

work with a food bank. Id. Activities that are inconsistent with alleged symptoms are a relevant 

credibility consideration. Rollins v. Massanari, 261 F3d 853, 857 (9th Cir 2001). Although the 

Salvation Army and food bank work was not substantial gainful activity, it nonetheless indicates 

a greater level of activity than Carr alleges he is capable of performing.

Carr contends that the ALJ ignored portions of the medical records showing that he has 

grown progressively worse since 1996 due to degenerative changes in both his knee and brain

which persist even when not using alcohol. However, as discussed below, the medical records

do not support that contention. 

In addition, the ALJ appropriately found that Carr’s criminal conviction for theft 

undermined his credibility. Tr. 25. See Albidrez v. Astrue, 504 F Supp2d 814, 822 (CD Cal 

2007) (the ALJ may use ordinary techniques of credibility evaluation, such as considering a 

claimant=s reputation for truthfulness, including any convictions for crimes involving 

dishonesty). Although Carr denies that he committed theft and believes that the accusation was 

unfair (Tr. 312, 473, 475),

4

no medical provider blames his conviction on his mental impairment

in the absence of alcohol use, as Carr suggests.

 3 This period of sobriety apparently occurred from late 2010 into early 2011. See Tr. 229-30, 242, 315-16. 4

Despite his repeated denials, Carr admits in his Pain & Fatigue Questionnaire that he “stole from my work for money for 

alcohol.” Tr. 238.

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8 – OPINION AND ORDER

The ALJ cited references in Carr’s medical record that do not support his claims of 

extreme symptoms and impairments when sober. In March 2012, when Carr had been sober for 

approximately two months, his treating counselor, Debra Sherman, noted that his “level of 

participation and engagement with his written assignments has been exceptional.” Tr. 25, citing 

Tr. 338. She further noted that Carr would “be looking for employment” which he believed was 

the main reason for conflict in his marriage. Id. The ALJ concluded that “ [s]uch statements are 

notably inconsistent with [Carr=s] allegations that impairments prevent him from functioning.” 

Id. 

Carr disagrees with this selective reliance on Ms. Sherman’s summary note because it is 

contradicted by the actual weekly service notes describing only “medium” levels of participation. 

Tr. 361-63. The weekly notes dated February 8, 15, and 22, 2012, do state that Carr’s level of 

participation in individual groups was “medium” and on February 8 and 15, 2012, that his 

progress towards individual treatment goals was “medium.” Id. However, by February 22, 

2012, his progress was “high” and by the last session on March 22, 2012, his level of 

participation was “medium to high” with full completion of his written assignments and goals. 

Tr. 355. Therefore, the weekly notes do not contradict Ms. Sherman’s summary note at the 

successful conclusion of his counseling.

Finally, the ALJ noted several “unguarded statements” made by Carr to treating providers 

as inconsistent with his allegations of disabling impairments. Tr. 25. These included a February 

2012 discussion with his counselor of “his internal conflict with going back to school vs. seeking 

Social Security,” a statement to his counselor “that he had wanted to return to school for a couple 

of years but had not been able to stay sober,” and his report “that he was interested in becoming 

an addictions counselor.” Tr. 25, citing Tr. 359, 362. Carr also told his counselor that it was 

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9 – OPINION AND ORDER

“just hard to find a job at my age with my felony.” Id, citing Tr. 357. The ALJ noted that during 

his December 17, 2012 appointment with his treating physician, Dr. Buser, Carr reported that he 

continued to see a mental health counselor and that his mood had improved. Id, citing Tr. 658. 

Carr takes issue with the ALJ’s reliance on Ms. Sherman’s summary note that he was 

“considering attending the local college” (Tr. 338) because Ms. Sherman was the person who 

mentioned college. Tr. 359 (“so [I] encouraged him to consider going back to a community 

college as he has stated that he would be interested in becoming an addictions counselor”). 

However, at an earlier session, Carr stated his desire to go back to school “for a couple of years 

but he ha[d] not been able to stay sober.” Tr. 362. Therefore, the counselor did not invent Carr’s 

desire to attend college.

In light of this evidence, the ALJ concluded that Carr’s “statements to his treating 

providers are not consistent with his testimony in pursuit of disability benefits.” Tr. 26. “Rather

[his] allegations of disabling impairments are highly suggestive of secondary gain, which further 

diminishes his credibility.” Id. Because the ALJ provided clear and convincing reasons 

supported by substantial evidence in the record to support this finding, he did not err.

II. Treating and Examining Providers

A. Legal Standard

Disability opinions are reserved for the Commissioner. 20 CFR §§ 404.1527(e)(1), 

416.927(e)(1). If no conflict arises between medical source opinions, the ALJ generally must 

accord greater weight to the opinion of a treating physician than that of an examining physician. 

Lester v. Chater, 81 F3d 821, 830 (9th Cir 1995). The ALJ should also give greater weight to the 

opinion of an examining physician over that of a reviewing physician. Orn v. Astrue, 495 F3d 

625, 632 (9th Cir 2007). If a treating or examining physician’s opinion is not contradicted by 

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10 – OPINION AND ORDER

another physician, the ALJ may reject it only for clear and convincing reasons. Id (treating 

physician); Widmark v. Barnhart, 454 F3d 1063, 1067 (9th Cir 2006) (examining physician). 

Even if one physician is contradicted by another physician, the ALJ may not reject the opinion 

without providing specific and legitimate reasons supported by substantial evidence in the 

record. Orn, 495 F3d at 632; Widmark, 454 F3d at 1066. The opinion of a nonexamining 

physician, by itself, is insufficient to constitute substantial evidence to reject the opinion of a 

treating or examining physician. Widmark, 454 F3d at 1066 n2. In addition, the ALJ may reject 

physician opinions that are “brief, conclusory, and inadequately supported by clinical findings.” 

Bayliss v. Barnhart, 427 F3d 1211, 1216 (9th Cir 2005).

B. Dr. Buser

After treating Carr for three months “focusing on depression/PTSD,” Dr. Buser 

completed a questionnaire provided by Carr’s attorney in December 2012. Tr. 638-41. Despite 

his focused treatment, Dr. Buser opined that Carr could only carry less than 10 pounds 

occasionally or frequently, could stand for only 15 minutes at one time up to a total of 3 hours in 

an 8-hour workday, and could sit for 2 hours at a time, up to 6 hours in an 8-hour workday. 

Tr. 639. He wrote that Carr needed frequent rest and position changes to relieve symptoms of 

pain in his lower and upper extremities and that he was limited in his ability to push and pull, 

including the operation of hand and foot controls. Id. Dr. Buser added that Carr=s 

dizziness/unsteadiness limits his pace, and that his pain, mood, and unsteadiness will affect his 

ability to have sustained periods of concentration. Tr. 640-41.

With respect to Carr’s mental status, Dr. Buser opined that Carr’s “depression limits his 

persistence/concentration” and makes “social situations markedly difficult.” Tr. 640. Dr. Buser 

declined to estimate the percentage of an average workweek that Carr’s attention and 

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11 – OPINION AND ORDER

concentration would be impaired to such a degree that he could not be expected to perform even 

simple work tasks. Tr. 641. He did, however, write that he expected Carr to miss the equivalent 

of two or more full workdays a month because Carr’s “mood (depression) or pain may become 

exacerbated requiring him to miss work.” Id.

In his DAA analysis, the ALJ gave “little weight” to Dr. Buser’s opinion. Tr. 28. As 

discussed below, Dr. Buser’s opinion is contradicted by opinions of other examining physicians. 

Therefore, the ALJ was required to provide specific and legitimate reasons for rejecting it. Orn, 

495 F3d at 632.

With respect to Carr’s physical limitations, the ALJ found that Dr. Buser’s opinion was 

“inconsistent with the unremarkable objective findings during [Carr’s] comprehensive 

consultative physical examination with” Kim Webster, M.D. Tr. 326-31. After examining Carr

on June 1, 2011, Dr. Webster found no objective evidence to support limitations on sitting, 

standing, walking, or lifting, or for postural, manipulative, visual, communicative, or 

environmental restrictions. Tr. 331. That opinion was confirmed upon a review of the records in

June 2011 by Sharon Eder, M.D., and James L. Greco, M.D. Tr. 25, citing Tr. 100-14, 337.

Carr contests the accuracy of Dr. Webster’s musculoskeletal examination because she did 

not consider Carr’s TBI and degenerative atrophy or review the MRI. However, the record is 

devoid of medical evidence of any adverse effect of TBI or degenerative atrophy on Carr’s 

physical abilities. In any event, Carr told Dr. Webster of his current complaints, including 

balance problems, depression and anxiety, and decreased memory. Tr. 327. Therefore, her 

evaluation is not suspect.

In addition, the ALJ found that Dr. Buser’s opinion as to Carr’s physical limitations was

“based on [Carr=s] subjective complaints and self-reports, “rather than any objective clinical 

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12 – OPINION AND ORDER

findings.” Id. An ALJ may discredit a treating physician’s opinion if it is largely based on 

uncritically accepted, incredible, and subjective claimant reports rather than objective medical 

findings. Cotton v. Astrue, 374 F App’x 769, 771 (9th Cir 2010); see also Morgan v. Comm=r of 

Soc. Sec., 169 F3d 595, 600-02 (9th Cir 1999) (the opinion of a physician that is “premised to a 

large extent upon the claimant’s own accounts of his symptoms and limitations may be 

disregarded where those complaints have been ‘properly discounted’”). 

Dr. Buser’s opinion regarding Carr’s mental impairments is contradicted by a 

psychologist, Sandra Lundblad, Psy.D., and psychiatrist, Carole Rosanova, M.D., based on their 

earlier review of the medical record in June 2011. Tr. 111, 332. As reasons to reject Dr. Buser’s 

opinion that Carr’s depression limited his concentration, the ALJ stated that it was “not 

consistent with treatment records” or with Carr’s test results on a mental status examination 

performed by Dr. Bryan. Tr. 28, citing Tr. 311-19, 649-71. In particular, he noted that “during a 

routine appointment in December 2012,” the same month Dr. Buser completed the questionnaire, 

Carr “told Dr. Buser that he did not have any problems with his prescribed medications, and his 

mood had improved.” Id, citing Tr. 658. In addition, the ALJ noted that Dr. Buser’s opinion 

was inconsistent with “his contemporaneous interpretation of [Carr’s] MRI, which he indicated 

was ‘normal’ for [Carr’s] age.” Id, citing Tr. 647. 

Carr contends that the ALJ erred by ignoring medical evidence of his overall diagnostic 

picture of degenerative mental changes stemming from his 1996 head injury. In support, he 

points to the fact that Dr. Buser found his symptoms sufficiently severe to warrant an MRI and 

an evaluation by a neurologist. Tr. 657. However, Dr. Buser recommended an MRI based solely 

on Carr’s self-reported symptoms of unsteadiness and occasional falls, “[n]o obvious focal 

findings on neuro exam to suggest stroke,” and the 1996 head injury. Tr. 653. Contrary to 

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13 – OPINION AND ORDER

Carr’s suggestion, Dr. Buser considered the possibility that Carr may suffer degenerative 

changes due to his 1996 TBI, but never came to that conclusion. 

The MRI revealed “mild to moderate age-related atrophy and minimal white matter 

signal abnormalities with microvascular ischemia.” Tr. 668. Carr misinterprets the MRI as an 

objective finding of a worsening TBI. To the contrary, on December 18, 2012, Dr. Buser

interpreted the MRI as “normal” for Carr’s age with “no findings to explain [his] current 

symptoms.” Tr. 647. Given that he had no changes to his brain, Dr. Buser concluded that “we 

still need to figure out why you are having these symptoms.” Id. 

Carr further argues that Dr. Buser’s opinion was consistent with the treatment notes of 

Raymond Baculi, M.D. However, Dr. Baculi’s treatment notes are dated a year earlier on 

December 9, 2011, and are supported primarily by Carr’s subjective reports, as opposed to any 

objective medical findings. Tr. 446-47. 

Despite his improved mood as noted by the ALJ, Carr contends that he remained severely 

impaired mentally. He points to Dr. Buser’s September 12, 2012 note which attributed his 

improved mood to starting Fluoxetine and stated that his “affect and PHQ[-]9 seem incongruent 

at today’s office visit” when his PHQ-9 was “elevated at 26.” Tr. 598. The PHQ-9 is a nineitem depression scale of the Patient Health Questionnaire. Thus, Dr. Buser’s reference to the 

PHQ-9 is to Carr’s self-reporting of his symptoms, not a medical finding as to the severity of the 

limitations resulting from Carr’s depression and anxiety.

Carr also complains that the ALJ erred by rejecting Dr. Buser’s opinion based on his 

improved mood at one visit. However, Dr. Buser saw Carr on several occasions when Carr 

reported an improved mood in September and October (Tr. 573, 594), more agitation in 

November (Tr. 557), and an improved mood again in December 2012. Tr. 668. 

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14 – OPINION AND ORDER

Because the ALJ gave specific and legitimate reasons supported by substantial evidence 

in the record for assigning little weight to Dr. Buser=s opinion, he did not err. 

C. Dr. Bryan

Carr met with Dr. Bryan in January 2011 for a psychological evaluation. Tr. 311-19. 

The ALJ provided a lengthy summary of that evaluation, starting with Carr’s complaints: 

[Carr] told Dr. Bryan that he experienced anxiety with intermittent 

panic, anger at coworkers, memory deficits, and difficulties with 

organization, due to his 1996 head injury from a motor vehicle 

accident. [Carr] also told Dr. Bryan that he was dependent on 

alcohol, particularly during times of stress. [Carr] reported 

symptoms of anger, impatience, fatigue, lack of stamina, insomnia, 

ruminative worry, decreased appetite, loss of interest in previously 

enjoyed activities, sadness, discouragement, tearfulness, 

pessimism, and panic attacks including shortness of breath, chest 

pain, and fearfulness. Despite these numerous symptoms, [Carr]

also told Dr. Bryan he had goals of returning to school to become a 

drug counselor. 

Tr. 26, citing Tr. 311-14.

He then summarized Dr. Bryan’s observations and conclusions:

[Carr’s] gait was normal with no gross motor abnormalities. In 

addition, [Carr’s] psychomotor pace was within normal limits, and 

his speech was normal without articulation difficulties. Although 

[Carr] appeared depressed, Dr. Bryan observed that [his] social 

manner was open, cordial, and carefully polite and he readily 

established a working rapport. Dr. Bryan noted that [Carr’s] 

interaction skills were strong and agreeable, without evidence of 

irritability, impatience, or resistance. Dr. Bryan found only mild 

difficult in [Carr’s] ability to track interview questions, which 

required occasional interruption and re-direction. Dr. Bryan noted 

some difficulties on the mental status examination, although he 

was able to answer a simple math calculation, recall five words 

with cues, and spell the word “world” correctly forward and 

backward accurately.

Despite [Carr’s] unremarkable presentation and only mild 

difficulties on the mental status examination, Dr. Bryan opined that 

[Carr] had debilitating symptoms of depression, panic, and 

cognitive deficits that were “beyond what would be accounted for 

by complications of alcohol alone.” As a result, Dr. Bryan opined 

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15 – OPINION AND ORDER

that [Carr] would not be expected to meet minimum competitive 

employment standards because he could not understand and 

remember instructions, sustain concentration, or engage in 

appropriate social interaction. 

Id, citing Tr. 316-18. 

In his DAA analysis, the ALJ afforded Dr. Bryan’s opinion “little weight” because it:

(1) “is not internally consistent with the objective observations and clinical findings from the 

evaluation;” (2) “relies heavily on the subjective reporting of [Carr] who is not a credible 

source;” and (3) “is also not consistent with [Carr’s] overall record, including routine treatment 

notes, when abstinent from alcohol abuse.” Tr. 25-26. 

If supported by substantial evidence in the record, all three reasons are sufficient to reject 

Dr. Bryan’s opinion. A discrepancy between a physician’s notes and his opinions is a clear and 

convincing reason for giving little weight to the opinion. Bayliss, 427 F3d at 1216. Moreover, 

as noted, an opinion may be discredited if it is largely based on uncritically accepted, incredible, 

and subjective claimant reports rather than objective medical findings. Cotton, 374 F App’x at 

771. Finally, inconsistency with the medical record is a specific, legitimate reason for rejecting a 

physician’s opinion. Tommasetti, 533 F3d at 1040. 

Carr disagrees with the ALJ’s first reason by pointing out that Dr. Bryan’s opinion is not 

inconsistent with his observations of Carr’s normal gait, desire to return to school, normal 

speech, and open social presentation. Instead, he asserts that Dr. Bryan’s opinion is based on 

other findings that the ALJ ignored. However, as noted by the ALJ, those other findings are 

primarily based on Carr’s subjective description of his symptoms, which the ALJ found not 

credible, and are not consistent with any medical treatment records. Moreover, the record 

supports the ALJ’s conclusion that Carr’s presentation to Dr. Bryan was unremarkable with only 

mild difficulties on the mental status examination. 

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16 – OPINION AND ORDER

In support of the third reason that Dr. Bryan’s opinion was inconsistent with Carr’s 

overall record when abstinent from alcohol abuse, the ALJ cited routine treatment notes from 

Carr’s treatment at Bridgeway Recovery. Tr. 27, citing Tr. 338-444. Those notes indicate that 

Carr’s level of participation in group discussions was uniformly medium to high; his progress 

toward individual goals was generally high; he completed coping skills for decreasing his 

depression; his progress was stable; and he timely completed assignments. Tr. 338-444. The 

ALJ also cited the treatment notes from Carr’s routine appointment with Dr. Buser on 

December 13, 2012, when Carr reported an improved mood, feeling “less cranky,” no issues with 

his medication, and a good relationship with his counselor. Tr. 27, citing Tr. 654. Finally, the 

ALJ pointed to Dr. Webster’s findings only six months after Dr. Bryan’s opinion that Carr had 

no problems with thought process or social interactions during the examination, was alert and

oriented, had no problems with communications, and was able to follow both simple and 

complex commands. Id.

Dr. Bryan’s opinion as to the severity of Carr’s mental impairments “beyond what would 

be accounted for by complications of alcohol alone” appears to be supported only by Carr’s 

subjective symptoms. Dr. Bryan does mention the 1996 TBI as a prominent risk factor for Carr’s 

cognitive deficits. Tr. 317. However, Dr. Buser found that the December 17, 2012 MRI results 

were normal for Carr’s age with “no findings to explain [his] current symptoms.” Tr. 647. He 

added: “This is reassuring that your [sic] have not had changes to your brain to cause your 

symptoms but we will need to figure out why you are having these symptoms.” Id. This 

conclusion refutes Carr’s contention that he suffers from any degeneration of his brain from the 

1996 TBI that could support Dr. Bryan’s opinion. 

In sum, the ALJ provided specific, legitimate reasons to reject Dr. Bryan’s opinion. 

Case 3:14-cv-01486-ST Document 21 Filed 10/22/15 Page 16 of 17
17 – OPINION AND ORDER

CONCLUSION

Because Carr has not established that his impairments would be severe in the absence of 

alcohol use, the ALJ’s conclusion that he would not be disabled if he refrained from alcohol use 

is supported by substantial evidence in the record. Thus, the Commissioner=s decision is 

AFFIRMED.

DATED this 22nd day of October, 2015.

s/ Janice M. Stewart

Janice M. Stewart

United States Magistrate Judge

Case 3:14-cv-01486-ST Document 21 Filed 10/22/15 Page 17 of 17