MEMORANDUM OPINION AND ORDER
CRAIG KELLISON, Magistrate Judge
Plaintiff, who is proceeding with retained counsel, brings this action for judicial review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g). Pursuant to the written consent of all parties, this case is before the undersigned as the presiding judge for all purposes, including entry of final judgment. See 28 U.S.C. § 636(c). Pending before the court are plaintiff's motion for summary judgment (Doc. 18) and defendant's cross-motion for summary judgment (Doc. 19).
I. PROCEDURAL HISTORY
Plaintiff applied for social security benefits on January 9, 2004. In the application, plaintiff claims that disability began on January 1, 1999. Plaintiff claims that disability is caused by a combination of "depression, personality disorder, and suicide attempts." Plaintiff's claim was initially denied. Following denial of reconsideration, plaintiff requested an administrative hearing. The notice of hearing was sent on September 28, 2005. Plaintiff did not appear at the hearing and a notice to show cause was issued on October 31, 2005. After plaintiff failed to respond, plaintiff's case was dismissed by order issued on January 3, 2006. On July 27, 2007, the Appeals Council set aside the dismissal. A new hearing was held on March 13, 2008, before Administrative Law Judge ("ALJ") Brenton L. Rogozen. In a March 24, 2008, decision, the ALJ concluded that plaintiff is not disabled based on the following relevant findings:
The ALJ's most recent hearing decision reflects the following relevant procedural history:
The record informs that the claimant had filed prior concurrent applications for Social Security disability benefits . . . which were denied initially . . . then at the reconsideration level. . . . Even though the claimant currently contends the same disability onset date as before, the undersigned finds no evidence that the Administration erred in any way in reaching those denials. Further, the determinations were not reviewed at that time. Therefore, the undersigned finds no "good cause" to reopen the prior determinations, and they shall remain in force pursuant to res judicata. . . .
The Appeals Council concluded that plaintiff's on-and-off-again homelessness and incarceration "lends some credibility that he may not have received the hearing notices."
1. The medical evidence establishes that the claimant that the "severe" impairments of a mood disorder, not otherwise specified, a personality disorder, not otherwise specified, and a history of polysubstance abuse and alcohol dependence/abuse in reportedly nearly-complete sustained remission since October 30, 2007;
2. The severity of the claimant's impairments, in combination, has medically equaled the requirements of Sections 12.04 and 12.06 of the regulations since October 30, 2007, and they are expected to preclude him from working for at least 12 continuous months:
3. The claimant's history of polysubstance and alcohol dependence/abuse is not a factor material to the findings of "disability" as of the determined onset date of October 30, 2007, but was prior to that date; because the record includes no documented period of sustained sobriety for the claimant prior to October 30, 2007, there is no contraindication to the undersigned's finding that independent of his polysubstance and alcohol dependence and abuse disorders, he would have been able to perform at least simple repetitive tasks; based then on his age, education, and vocational experience, a findings of "not disabled" would be reached for all periods prior to October 30, 2007, as directed by SSR 85-15P,
20 C.F.R. 426.935(b) and Section 1614(a)(3) of the Social Security Act; and
4. The claimant has been under a "disability" since October 30, 2007, but not before that date, making him not entitled to Disability Insurance Benefits, but eligible at least on medical grounds to receive Supplemental Security Income payments beginning on that date.
After the Appeals Council declined review on April 30, 2009, this appeal followed.
II. SUMMARY OF THE EVIDENCE
The certified administrative record ("CAR") contains the following evidence, summarized chronologically below:
April 21, 1997 — Plaintiff voluntarily reported to the hospital complaining of depression and increasing suicidal ideation. Plaintiff was diagnosed with major depression, marijuana abuse, methamphetamine abuse, and alcohol abuse.
July 2, 1997 — Plaintiff was admitted to the hospital as a danger to self. Plaintiff arrived at the hospital smelling of alcohol and obviously intoxicated. The treating doctor noted: "The patient's drug behavior dates back at least one decade and has been unremitting."
April 28, 1998 — Plaintiff was admitted to the hospital as a danger to self. His toxicology screen was positive for illegal drugs though he denied recent use. On discharge, plaintiff refused any follow-up treatment.
November 4, 1999 — Pavitar Cheema, M.D., performed a comprehensive psychiatric evaluation. At that time, plaintiff complained of bipolar disorder. He also told the doctor that he had been sober for the past 11 months. November 25, 2002 — Plaintiff was admitted to Sequoia Hospital as a danger to self. On discharge, the doctor stated:
He was initially noted to be somewhat dysphoric but over the next few days he seemed very pleasant and interacted appropriately with staff and peers. He was very focused on wanting to return home. He reported that he does have a job to go to. He works as a carpenter and had temporary housing with his boss. He was agreeable to follow up at mental health clinic upon discharge from the hospital. He was more stable in his mood and affect. With continued structured support and milieu therapy, he showed significant improvement and was discharged. . . .
The doctor diagnosed bipolar affective disorder in remission and amphetamine dependence.
December 13, 2002 — Plaintiff was admitted to San Mateo County Health as a danger to self. Plaintiff's blood tested positive for methamphetamine and marijuana. Plaintiff was diagnosed with amphetamine abuse, marijuana abuse, alcohol abuse, and "rule out mood disorder NOS." The doctor's instruction on discharge was: "The patient to stop substance use."
December 28, 2002 — Plaintiff was hospitalized after being brought in by police as a danger to self. The chart notes reflect that, while plaintiff was diagnosed two years prior with a bipolar disorder, it was unclear if plaintiff was clean and sober at the time of the diagnosis. The treating physician gave plaintiff a discharge diagnosis of amphetamine abuse, marijuana abuse, alcohol abuse, and a personality disorder, NOS. Plaintiff's toxicology screen was negative for drugs.
December 31, 2002 — Plaintiff was discharged from the hospital following his having self-reported with a complaint of "My emotions and feelings, they're all mixed up and confusing." The doctor noted a long history of substance abuse which plaintiff stated he did not see as a problem. Plaintiff stated: "I need it with the lifestyle that I live, since I have no place to live." On discharge, plaintiff was diagnosed with amphetamine abuse, marijuana abuse, alcohol abuse, and a mood disorder, NOS. January 5, 2003 — A form entitled "Assessment of Suicide or Self-Harm" prepared by staff at San Mateo County Health indicates that the only risk factor for suicide or self-harm is substance abuse.
February 4, 2003 — A "Physical Nursing Assessment" form prepared at San Mateo County Health indicates that plaintiff admitted methamphetamine use one and one-half days prior.
January 6, 2003 — Plaintiff was admitted to San Mateo County Health following a suicide attempt. Plaintiff's blood tested positive for methamphetamine and marijuana. On discharge, plaintiff was diagnosed with amphetamine abuse, marijuana abuse, alcohol abuse, and mood disorder, NOS.
June 7, 2003 — Plaintiff completed a daily activities questionnaire. Plaintiff stated that, at the time, he was living in a mental hospital. Plaintiff stated that he has no difficulties with providing for himself except lack of funds. Similarly, he says he does no shopping due to lack of funds. He added that he does his own laundry, cleans his room, and requires no assistance with personal care. He stated that he enjoys gardening and art. Plaintiff stated that he remembers what he sees on television, reads on a daily basis, and can remember what he reads. He did state that he has trouble concentrating and often becomes sidetracked.
September 9, 2003 — A form entitled "Assessment of Suicide or Self-Harm" prepared by staff at San Mateo County Health indicates that the only risk factor for suicide or self-harm is substance abuse. Another form, entitled Physical Nursing Assessment," indicates that plaintiff used methamphetamine two days prior and was not taking any prescription medications.
September 25, 2003 — Admission assessment notes from San Mateo County Health indicates that plaintiff last used methamphetamine 4 days prior. October 7, 2003 — A form entitled "Assessment of Suicide or Self-Harm" prepared by staff at San Mateo County Health indicates that the only risk factor for suicide or self-harm is substance abuse.
October 8, 2003 — Discharge notes from San Mateo County Health indicate that plaintiff's blood had tested positive for methamphetamine. The notes also indicate that plaintiff was not currently taking any psychiatric medications.
October 20, 2003 — Discharge notes from San Mateo County Health Center reflect that plaintiff was hospitalized after a suicide attempt. The notes indicate that plaintiff has a significant history of substance and alcohol abuse and that plaintiff admitted methamphetamine use four to five days before being admitted.
October 28, 2003 — Plaintiff was hospitalized again following a suicide attempt. At the time, plaintiff was not taking any medications. The doctor noted a history of drug and alcohol abuse.
November 24, 2003 — Nia T. Lozano, M.D., prepared a psychiatric discharge report following plaintiff's hospitalization incident to a suicide attempt. The doctor noted plaintiff's chief complaint as ". . . history of polysubstance abuse, mood disorder, and unclear personality disorder. . . ." Dr. Lozano noted that, at the time, plaintiff was not taking any medications. On discharge, the doctor provided the following assessment:
This is an appropriately groomed well-nourished male who is sitting calmly in the day room. He smiles on approach. He is pleasant and exhibits good eye contact. His speech is of normal rate and rhythm. His mood is "fine." His affect is appropriate. His thoughts are linear. He denies suicidal ideation, homicidal ideation, and ACH. His insight and judgment are both fair.
Dr. Lozano diagnosed mood disorder, NOS, and polysubstance abuse in "early partial remission."
February 1, 2004 — Plaintiff was taken to the hospital following complaints of chest pain. On admission, plaintiff denied any illegal drug use. August 16, 2004 — Agency consultative doctor Danilo Lucila, M.D., completed a mental residual functional capacity assessment. The doctor opined that plaintiff is moderately limited in the ability to understand, remember, and carry out detailed instructions. In all other areas, no limitations were noted.
October 4, 2006 — Plaintiff self-reported to the hospital, having walked through the night to get there, complaining of grief and depression over the recent death of his mother. Plaintiff was diagnosed at that time with methamphetamine abuse and drug-inducted psychotic and mood disorders. The doctor stated that plaintiff does not have a "pure" psychiatric illness, but opined that plaintiff's problems likely stem from drug and alcohol abuse. The chart notes also reveal that plaintiff "recently" lost his job in construction due to methamphetamine use.
October 27, 2006 — The CAR indicates that plaintiff presented to the hospital with "some feeling of chills and malaise." Toxicology notes reveal that plaintiff's blood tested positive for illegal drugs. Plaintiff was diagnosed with alcohol dependence, methamphetamine dependence, substance abuse, and substance-inducted psychotic disorder.
October 14, 2007 — Plaintiff was admitted to the hospital as a danger to self. Hospital admission notes indicate that plaintiff's blood tested positive for methamphetamine and marijuana.
January 30, 2008 — Plaintiff was examined by agency examining doctor Ubaldo Sanchez submitted a report following a comprehensive psychological evaluation. Plaintiff reported that he last worked two to three years ago in construction. Plaintiff also reported that he had been clean and sober for "over three months." On mental status examination, Dr. Ubaldo noted that plaintiff "did not have any difficulties understanding instructions and repetition and emphasis were not needed." The doctor diagnosed bipolar disorder, polysubstance abuse, and indicated a need to rule out mood disorder, NOS. The doctor offered the following functional assessment:
Mr. Suitt is not limited to daily activities such as dressing, bathing, and eating.
He would have some difficulties being socially appropriate given his mood swings.
He needs to continue his medication and ongoing mental health treatment.
He is able to perform mildly to moderately complex tasks. He is currently unable to tolerate the stressors encountered in a normal working environment. He appears emotionally volatile, has a history of numerous suicide attempts, and has difficulty modulating his emotions.
March 13, 2008 — Medical expert Dr. Dusay testified at the administrative hearing.
III. STANDARD OF REVIEW
The court reviews the Commissioner's final decision to determine whether it is: (1) based on proper legal standards; and (2) supported by substantial evidence in the record as a whole.See Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). "Substantial evidence" is more than a mere scintilla, but less than a preponderance. See Saelee v. Chater, 94 F.3d 520, 521 (9th Cir. 1996). It is ". . . such evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 402 (1971). The record as a whole, including both the evidence that supports and detracts from the Commissioner's conclusion, must be considered and weighed. See Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986); Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The court may not affirm the Commissioner's decision simply by isolating a specific quantum of supporting evidence. See Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative findings, or if there is conflicting evidence supporting a particular finding, the finding of the Commissioner is conclusive. See Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). Therefore, where the evidence is susceptible to more than one rational interpretation, one of which supports the Commissioner's decision, the decision must be affirmed, see Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002), and may be set aside only if an improper legal standard was applied in weighing the evidence,see Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988).
IV. DISCUSSION
In his motion for summary judgment, plaintiff argues the ALJ erred as a matter of law when he concluded that drug and alcohol abuse were a contributing factor material to disability prior to October 30, 2007. Plaintiff also argues that the ALJ's finding with respect to drugs and alcohol abuse is not supported by substantial evidence. Plaintiff seeks a remand for the direct award of benefits.
If drug or alcohol use is a contributing factor material to a determination of disability, an individual is not entitled to benefits. See 20 C.F.R. §§ 404.1535 and 416.945; see also Sousa v. Callahan, 143 F.3d 1240, 1245 (9th Cir. 1998). The burden is on the plaintiff to demonstrate that drug and alcohol addiction is not a material factor by showing that an impairment would have been disabling even if drug and alcohol use ceased. See Parra v. Astrue, 481 F.3d 742, 748 (9th Cir. 2007). To do so, the plaintiff would have to demonstrate that the impairment ". . . would remain during periods when she stopped using drugs and alcohol." See Ball v. Massanari, 254 F.3d 817, 821 (9th Cir. 2001) (citing Sousa, 143 F.3d at 1245).
With respect to drugs and alcohol, the ALJ stated:
The claimant acknowledges that he has had a long history of polysubstance and alcohol abuse, and that in 1998-1999 he served jail time for domestic violence. The claimant was also diagnosed in 1999 with a bipolar disorder (Exh. 11-F). As discussed above, his prior claims were denied at the reconsideration level on January 31, 2000, and there was no further review granted at that time. The undersigned finds no significant medical evidence from the years 2000-2001. The current record informs that on January 5, 2002, he received the diagnoses of amphetamine abuse and dependence but only "rule-out" secondary to mood and personality
disorders (Exh. 4-F, p. 97). The claimant received a July 24, 2002 `5150' psychiatric hold secondary to an intentional overdose on sleeping pills. On November 25, 2002, repeat `5150,' the claimant was described as an individual with an "extensive" history of bipolar affective disorder complicated by polysubstance dependence. The claimant reported that he would be willing to attend A on this date (Exh. 3-F, pp. 20-21). However, his December 13-18, 2002 `5150' was characterized by findings of ongoing amphetamine abuse, marijuana abuse, and alcohol abuse, and again, only rule-out mood disorder. (Exh. 4-F, p. 29). The claimant was encouraged by clinicians to stop abusing substances (Exh. 3-F, pp. 13-15). The claimant apparently initially listened to this advice, but admitted on December 31, 2002, that he "went back to using methamphetamine, marijuana, and alcohol" as he "does not see it as a problem" stating, "I need it with the lifestyle that I have. . . . I could stop tomorrow." (Exh. 3-F, p. 10).
The claimant's Axis I impressions on January 6, 2003, were only amphetamine abuse and marijuana abuse (Exh. 3-F, p. 17), although by January 21, 2003, psychiatric evaluation these included amphetamine abuse, marijuana abuse, alcohol abuse, and mood disorder, not otherwise specified, but also provisionally rule-out drug-induced mood disorder (Exh. 4-F, p. 103). September 9, 2003's `5150' found at Axis I only "methamphetamine abuse" and provisionally "rule-out borderline personality disorder" when the claimant admitted that he used methamphetamine "as often as he can" and added, "they won't even accept me in mental health (due to) history of non-compliance" (Exh. 4-F, pp. 65, 68 80). On October 7, 2003, the sole Axis I impression was "methamphetamine abuse" (Exh. 4-F, p. 68). Although his polysubstance dependence was said to be "in early partial remission" on October 9, 2003, evaluation (Exh. 3-F, p. 4), the claimant returned to the emergency room on October 28, 2003, following an intentional overdose (Exh. 4-F, p. 29). On November 24, 2003, the claimant was restarted on psychotropic medications, and received the diagnoses of "mood disorder, not otherwise specified, polysubstance abuse in early partial remission" (Exh. 3-F, pp. 1-2).
On February 1, 2004, the claimant was brought in by ambulance to the hospital from an inpatient psychiatric facility he was living, to evaluate for chest pain. However, on testing, all examination and vital signs were normal (Exh. 4-F, pp. 50-52). On February 25, 2004, the claimant's "primary diagnosis" was identified as "amphetamine dependence disorder" but he was reportedly trying to stop using (Exh. 7-F, p. 21). Circa September 2004, the claimant was described by clinicians as "doing better" having broken up with his girlfriend who was a drug abuser, and remaining "clean and sober" (Exh. 7-F, pp. 8-9). As of November 2004, the claimant promised that he was not taking methamphetamine and overall appeared to be taking medications as prescribed. The claimant's treating clinician observed that at this time he was able to interact better, and displayed better focus while abstaining from substances (Exh. 7-F, p. 4). However, the record does not include any significant psychiatric records from 2005. On October 4, 2006, treating psychiatrist Stephen
Cummings, M.D., opined, ". . . he does not have a pure psychiatric illness. . . . the patient abuses methamphetamine and alcohol by his own free admission" (Exh. 9-F, pp. 26-28).
The record includes a series of drug-related emergency room presentations in 2007 (Exh. 9-F, pp. 14-16). For example, on October 16, 2007, the claimant refused a physical examination and all vital sign testing (Exh. 9-F, pp. 1-2).
On October 30, 2007, the claimant entered an at least 6 month inpatient program at Eagle Recovery. According to Deborah Couvillion, a clinician or administrator at that facility, the claimant's prognosis for medical improvement depended upon his approval for SSI, presumably to continue to pay for that treatment and housing. Ms. Couvillion suggested that a full year duration would be necessary to meet the goals of being able to function in society without dependence upon drugs and alcohol (Exh. 12-F, p. 1).
In a consultative psychological evaluation dated February 9, 2008, the claimant informed Ubaldo F. Sanchez, M.D., that he was depressed that he was unable to work, contending that he was being compliant with his prescriptions for seroquel, topamax, and depakote, and also taking ibuprofen for right shoulder pain. The claimant further reported that with the exception of only a single episode of relapse over 3 months ago, he had been "clean and sober" for 1 1/2 years. Dr. Sanchez observed that the claimant was of average intelligence on testing, and diagnosed "bipolar disorder (and provisionally) rule-out mood disorder, not otherwise specified, (and) polysubstance abuse" with a "guarded" prognosis (Exh. 10-F).
The medical expert, a board certified specialist in the field of psychiatry, testified that according to the record, the claimant had a severe mood disorder, not otherwise specified, and a personality disorder, not otherwise specified, which in combination would have equaled Listings 12.04 and 12.06. However, the medical expert further opined that the claimant has also had severe, chronic addiction to methamphetamine, alcohol, and marijuana that according to the record would have definitely been material to the findings of "disability" until he entered prolonged residential treatment on October 30, 2007.
After giving careful consideration to all the documentary evidence, the undersigned Administrative Law Judge has concluded that the claimant has had impairments that would in combination equal the criterial of Sections 12.04 and 12.06 of the impairments listed [in the regulations]; but also, that prior to October 30, 2007, his drug and alcohol dependence/abuse would have been a contributing factor material to the finding of "disability."
The undersigned primarily basis this determination upon the medical opinions of the testifying medical expert during the hearing, as well as in considering of the totality of medical evidence and restrictive medical
opinions in the record.
The claimant insists that he has remained almost entirely "clean and sober" since his October 30, 2007, residential treatment admission. On February 9, 2008, consultative psychologist Dr. Sanchez still gave the claimant a GAF score of only `50' with findings of a decline of memory skills on WMS-III. Dr. Sanchez further opined that the claimant could not tolerate the pressures of a normal working environment and that he needs to continue medication and treatment (Exh. 10-F). The undersigned has considered the medical opinions of the non-examining State Agency evaluators . . . but in view of the significantly more restrictive and severe medical opinions subsequently received from the testifying medical expert and psychiatric specialist during the hearing, along with corroborative reports of his sobriety from the Eagle Recovery Program and Transition Home (Exh. 12-F), they are no longer found to be consistent with the overall medical evidence — at least as and after October 30, 2007, the date he entered that prolonged inpatient program. Therefore, the undersigned has accorded the State Agency evaluator opinions less weight as of October 30, 2007, and thereafter. . . .
* * *
As testified by the medical expert and detailed above, prior to October 30, 2007, there is no documented period of extended sobriety for the claimant in the record. Therefore, to the extent that the claimant contends that prior to October 30, 2007, even if he had been fully medically compliant and abstinent to illegal drugs and alcohol, he still would have been unable to perform even simple repetitive tasks, the undersigned finds these contentions to be less than fully credible when compared to the record as a whole. . . . Thus a finding of "not disabled" would be reached for all periods prior to October 30, 2007. . . .
In his first argument, plaintiff contends that the ALJ misapplied the legal standards relating to drugs and alcohol abuse. Plaintiff argues:
Here, the ALJ found that Mr. Suitt was disabled by his mental impairments throughout the entire relevant period (Tr. 28). However, the ALJ found that drugs and alcohol were a contributing factor material to Mr. Suitt's disability prior to October 30, 2007, and denied any benefits prior to that date (Tr. 28, 32-33). The ALJ then found that Mr. Suitt was still disabled by his mental impairments as of October 30, 2007, the date that Mr. Suitt entered the Eagle Recovery Program and became clean and sober (Tr. 28, 32-33). The ALJ awarded Mr. Suitt SSI benefits as of October 30, 2007 (Tr. 28, 32-33). . . .
The ALJ erred as a matter of law when he found that drugs and alcohol were a contributing factor material to the finding of disability because Mr. Suitt continued to be disabled by his mental impairments even after he became clean and sober. The regulations and controlling case law clearly states that the SSA will find that "drug addiction or alcoholism is not a contributing factor material to the determination of disability" if a
claimant is disabled independent of drug addiction or alcoholism. The ALJ's "materiality" determination was a clear error of law. For this reason alone, the Court should remand this case to the SSA for the payment of [benefits] dating back to January 1, 1999, the date Mr. Suitt claimed he became disabled.
The court disagrees with plaintiff that the ALJ's legal analysis is flawed. Plaintiff's argument flows from the ALJ's finding that, after October 30, 2007, he was disabled by mental impairments which were not related directly to drug and/or alcohol abuse. Plaintiff appears to conclude that, if he had a disabling mental impairment independent of drug/alcohol use after October 30, 2007, he must have also had the same impairment before that date. While plaintiff is correct that the existence of a disabling impairment after October 30, 2007, may suggest that such an impairment existed before that date, such is not necessarily the situation in all cases. It is the plaintiff's obligation to present evidence that, during extended periods of sobriety occurring before October 30, 2007, plaintiff still had a disabling mental impairment. The ALJ concluded that no such evidence was presented and, based on this finding, properly concluded that plaintiff had not met his burden of proof.
In his second argument, plaintiff asserts that, even if the ALJ applied the correct legal standards, substantial evidence of record does not support the ALJ's ultimate disability finding with respect to drugs and alcohol use. Specifically, plaintiff argues: (1) the ALJ improperly relied on Dr. Dusay's hearing testimony; and (2) drug/alcohol use is not a material factor because plaintiff's mental impairment predates his drug/alcohol use. The court rejects any argument that the evidence does not support the ALJ's materiality conclusion for the period prior to October 30, 2007.
At the outset, the court notes that there is evidence in the record that plaintiff actually worked in the construction industry prior to October 30, 2007, but after the alleged January 1999 onset date. In October 2006, plaintiff reported upon admission to the hospital that he had "recently" lost his job due to methamphetamine use. In January 2008, plaintiff told Dr. Ubaldo that he last worked two to three years ago, consistent with his report in October 2006 that he had "recently" lost his job. This evidence indicates that plaintiff worked sometime in 2006. If plaintiff was able to work in 2006, it stands to reason that his mental impairment was not disabling at that time.
Next, contrary to plaintiff's assertion, the evidence does not establish any extended periods of sobriety between the alleged onset date of January 1999 and October 30, 2007. While plaintiff alleges an 11-month period of sobriety in 1999, there is no objective evidence to support this contention. Plaintiff merely relies on his own subjective report to Dr. Cheema in November 1999. The ALJ correctly concluded that plaintiff's contention was less than credible in light of the weight of all the evidence. In July 1997, hospital notes indicate that plaintiff's "drug behavior dates back at least one decade and has been unremitting." In April 1998, plaintiff's toxicology screen showed positive results for illegal drugs. The evidence also indicates that, between November 2002 and October 2007, plaintiff consistently tested positive for methamphetamine and/or marijuana. The vast majority of the diagnoses offered during this period were directly related to drug use. In October 2006, a doctor opined that plaintiff did not have any "pure" psychological problem independent of drug and/or alcohol abuse.
Defendant is correct in noting that evidence pre-dating January 31, 2000, is not material as the agency previously determined that plaintiff was not disabled prior to this date and plaintiff did not challenge the decision which is entitled to administrative res judicata.
The evidence indicating "unremitting" drug use since 1987 (i.e., a decade prior to July 1997) as well as consistent positive drug tests between 2002 and 2007 undermine plaintiff's statement that he was sober for 11 months in 1999. Moreover, the court finds that the ALJ was correct in stating that plaintiff has not provided significant medical records for 2001 or 2002. Plaintiff has simply failed to carry his burden of showing that he was sober for any extended period of time let alone showing that, during such time of sobriety, he still had a disabling mental impairment.
Plaintiff's own summary of the evidence skips from Dr. Cheema's November 1999 report to a hospitalization in November 2002.
Finally, the court finds no error with respect to the ALJ's consideration of Dr. Dusay's testimony. As the ALJ noted, Dr. Dusay stated that he could find no periods of extended sobriety prior to October 2007. In fact, Dr. Dusay stated that he could not be sure that polysubstance abuse was not the cause of plaintiff's problems.
V. CONCLUSION
Based on the foregoing, the court concludes that the Commissioner's final decision is based on substantial evidence and proper legal analysis. Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's motion for summary judgment (Doc. 18) is denied;
2. Defendant's cross-motion for summary judgment (Doc. 19) is granted; and
3. The Clerk of the Court is directed to enter judgment and close this file.
DATED: November 22, 2010
significant negative impact on salmonid decline or recovery in light of its positive environmental assessments of harvest plans having greater mortality impacts. The absence of an explanation is particularly concerning with respect to the 2005 fishery environmental assessment. In that assessment, NMFS found that a plan providing for fisheries to take between 5.5 and 17 percent of listed salmonids annually, depending on run size, would be expected to result in "minimal adverse effects on Listed Salmonid [populations] in the Columbia River Basin," and that the "[c]umulative impacts from NMFS's Proposed Action would be minor if at all measurable." Those findings are in apparent conflict with NMFS's finding in this case that sea lions responsible for less or comparable salmonid mortality have a "significant negative impact" on the decline or recovery of these same populations, yet the agency has not offered a rationale to explain the disparate findings.
Cf. FCC v. Fox Television Stations, Inc.,
___ U.S. ___,
129 S.Ct. 1800, 1811,
173 L.Ed.2d 738 (2009) (explaining that an agency must offer "a reasoned explanation" when its current course "rests upon factual findings that contradict those which underlay" a previous course). Without an adequate explanation, we are precluded from undertaking meaningful judicial review. Divergent factual findings with respect to seemingly comparable causes of salmonid mortality raise questions as to whether the agency is fulfilling its statutory mandates impartially and competently. A satisfactory explanation is therefore required.
We cannot gloss over the absence of a cogent explanation by the agency by relying on the post hoc rationalizations offered by defendants in their appellate briefs. Defendants' briefs offer several explanations designed to reconcile NMFS's findings: that "[t]he facile percentage-based comparisons that [plaintiffs' brief] offers oversimplify and, in several instances, mischaracterize the complex facts addressed in those [earlier] analyses"; that the 2005 fishery take environmental assessment is not comparable to the MMPA determination here because the former "cover[s] all fishing on over 280 miles of the Columbia River, Snake, and Clearwater rivers" whereas "the decision at issue here involves mortality from a single source at a single location"; that the fishery plans reviewed under the 2003 Lower Columbia River environmental assessment "completely prohibited the retention of any unmarked wild steelhead," limiting mortality to "incidental injuries associated with catch and release of listed steelhead"; that the fishery plans under review in the 2007 Middle Columbia River fishery environmental assessment "completely prohibit[ed] the retention of wild listed salmonids"; and that, "unlike fishing, NMFS lacks the ability to regulate sea lion predation from year to year so as to reduce the effects in years when salmon and steelhead runs are low." These distinctions might be valid, but with one exception they are raised for the first time in defendants' briefs and were not mentioned by NMFS in the decision under review. They are therefore not part of our review. See Nw. Envtl. Def. Ctr. v. Bonneville Power Admin., 477 F.3d 668, 688 (9th Cir. 2007) ("[W]e `may not accept appellate counsel's post hoc rationalizations for agency action.'" (quoting Burlington Truck Lines, 371 U.S. at 168, 83 S.Ct. 239)). Defendants' post hoc explanations serve only to underscore the absence of an adequate explanation in the administrative record itself.
The only one of these rationales mentioned in NMFS's decision is that fishery takes can be reduced to adjust for a smaller run size, whereas sea lion predation cannot be. See Pinniped Removal Authority, 73 Fed.Reg. at 15,485 ("In contrast to a managed harvest regime, which can reduce mortality in response to decreased run sizes, pinniped predation has the potential to increase even when run sizes are depressed, magnifying the impact."). We agree with defendants that this distinction could help reconcile the apparent inconsistency between the finding that sea lion predation has a significant negative impact on the decline or recovery of listed salmonid populations and the finding that comparable fishery activities do not. NMFS's decision, however, did not adequately develop this possible rationale, so we cannot say that it resolves the apparent inconsistency. Furthermore, even at 5.5 percent, fishery takes appear to be roughly comparable to sea lion predation rates.
Defendants also object to the very premise that an agency is obligated to address apparent inconsistencies such as those at issue here. They point out that the previous environmental assessments addressed the impact of fisheries under NEPA, whereas the present action assessed the impact of pinnipeds under the MMPA. They contend that the MMPA action here cannot reasonably be construed as a "swerve" from "prior precedent." We agree with defendants' argument up to a point: NMFS's MMPA action here is not a swerve from prior precedent, as the courts have applied that principle in administrative law cases. But an agency's duty to explain cogently the bases of its decisions is not limited to circumstances in which the agency departs directly from an earlier path. An agency "must examine the relevant data and articulate a satisfactory explanation for its action including a ` rational connection between the facts found and the choice made.'" State Farm, 463 U.S. at 43, 103 S.Ct. 2856 (emphasis added) (quoting Burlington Truck Lines, 371 U.S. at 168, 83 S.Ct. 239). In the circumstances of this case, NMFS's factual findings in the earlier environmental assessments appear to be "relevant data," such that it was incumbent on the agency to offer a "satisfactory explanation" for its decision in light of the earlier findings.
We therefore reject plaintiffs' argument that the agency's decision in this case constitutes an unexplained "swerve" from "prior precedent." Plaintiffs are correct that an agency has a duty to explain a departure from precedent. See Atchison, Topeka Santa Fe Ry. Co. v. Wichita Bd. of Trade, 412 U.S. 800, 808, 93 S.Ct. 2367, 37 L.Ed.2d 350 (1973) (plurality opinion) (describing an "agency's duty to explain its departure from prior norms" and holding that when an agency departs from prior norms, its reasons "must be clearly set forth so that the reviewing court may understand the basis of the agency's action and so may judge the consistency of that action with the agency's mandate"). This principle indisputably applies when an agency rescinds an existing rule, see, e.g., State Farm, 463 U.S. at 41-42, 103 S.Ct. 2856 (holding that "an agency changing its course by rescinding a rule is obligated to supply a reasoned analysis"), applies a legal standard inconsistently, see, e.g., W. States Petroleum Ass'n v. EPA, 87 F.3d 280, 285 (9th Cir. 1996), or departs from long-standing practice "without supplying a reasoned analysis for its change of course," Nw. Envtl. Def. Ctr., 477 F.3d at 690. In addition, at least one district court in this circuit has applied this principle to an agency's unexplained departure from an earlier factual finding. See Defenders of Wildlife v. Hall, 565 F.Supp.2d 1160, 1170 (D.Mont. 2008) (holding that the agency acted arbitrarily when it failed to explain its departure from an earlier determination that genetic exchange between wolves located in three distinct recovery areas would be a precondition to delisting the northern Rocky Mountain gray wolf under the ESA). But plaintiffs' attempt to apply this principle here extends it too far. The factual findings contained in NMFS's earlier environmental assessments, which the agency completed under NEPA rather than the MMPA, and which analyzed the effects of fishery activities rather than sea lion predation, do not constitute "precedents" within the meaning of the Atchison line of authority. Hall is distinguishable. There, the U.S. Fish and Wildlife Service's factual determination that genetic exchange was unnecessary for the health of the wolf population directly contradicted its earlier determination that such exchange was required. Here, by contrast, NMFS's factual findings are at most potentially inconsistent, not directly contradictory. NMFS's action therefore cannot be faulted on plaintiffs' theory that the agency has "swerved from prior precedent" without explanation.
Plaintiffs also fault NMFS for failing to address an August 2007 biological assessment (BA) of the effects of the Federal Columbia River Power System (FCRPS) on salmonid species listed under the ESA. The FCRPS kills approximately 7.7 percent of listed juvenile salmonids, 9.9 percent of adult listed spring-run Chinook salmon and 16.8 percent of listed adult Snake River steelhead, but the BA concluded "that the net effects of the proposed actions, including the existence and operations of the dams with the proposed mitigation, meet or exceed the objectives of doing no harm and contributing to recovery with respect to the [listed salmonid populations] affected by the operation of the FCRPS" (emphasis added). Plaintiffs argue with some force that the factual findings in the 2007 dam take BA are at odds with the finding of significant negative impact in this case. The dam take BA, however, was compiled by the U.S. Army Corps of Engineers, the Bonneville Power Administration and the Bureau of Reclamation within the U.S. Department of Interior, not NMFS. The unexplained inconsistencies between NMFS's finding in this case and the findings in the dam take BA thus do not raise the same level of concern as apparent inconsistencies among NMFS's own environmental assessments. We do not, however, suggest that NMFS is necessarily free to ignore the dam take BA: to comply with the APA and provide a basis for meaningful judicial review, an agency must examine the "relevant data" and articulate a rational connection between the facts found and the choice made. State Farm, 463 U.S. at 43, 103 S.Ct. 2856. The dam take BA may fall within the category of relevant data.
NMFS cannot avoid its duty to confront these inconsistencies by blinding itself to them. We do not suggest that an agency has a duty to identify and address any potential tension between current and earlier factual determinations in marginally related administrative actions. But in this case the agency's seemingly inconsistent approach to, on the one hand, fishery and hydropower activities, which are deemed not to be significant obstacles to the recovery of listed salmonid populations, and, on the other hand, sea lion predation, which is deemed to be a significant barrier to salmonid recovery, has occupied the center of this controversy from the start. The issue surfaced prominently in the task force proceedings, see generally Minority Report, Final Report and Recommendations of the Marine Mammal Protection Act, Section 120 Pinniped-Fishery Interaction Task Force: Columbia River (Nov. 5, 2007), and has been raised repeatedly and forcefully by the Marine Mammal Commission, which is a federal entity possessing expertise on issues relating to the protection of marine mammals, see 16 U.S.C. § 1402, throughout the administrative decisional process, see, e.g., Letter from Timothy J. Ragen, Executive Director, Marine Mammal Commission, to Donna Darm, Assistant Regional Administrator, Protected Resources Division, NMFS, at 3 (Apr. 2, 2007) ("[T]o put the estimated level of pinniped predation on listed stocks in context, it should be compared to other sources of mortality, including the various forms of human-related take."); Letter from Timothy J. Ragen to D. Robert Lohn, Regional Administrator, Northwest Region, NMFS, at 1 (Nov. 23, 2007) (recommending that NMFS "compare the estimated level of removals of ESA-listed salmonids by pinnipeds with authorized levels of incidental and directed take from other sources and explain why some sources are considered significant while others are not"); id. at 3 (same); id. at 5 (noting that "the comparison of pinniped predation with authorized levels of takes from other sources is an area largely glossed over by the Task Force," and recommending that NMFS "provide[] clear explanations to support any determinations that some are significant while others are not"); id. at 6 (noting that "this issue is at the heart of the controversy over pinniped predation" and advising NMFS to "provide a rationale to support its decisions on how to reduce a significant take level when multiple risk factors are involved"); cf. H.R. Rep. No. 103-439, at 47 (1994) (House Committee Report on the Marine Mammal Protection Act Amendments of 1994, Pub.L. No. 103-238, which added section 120 to the MMPA) ("[T]he Committee recognizes that a variety of factors may be contributing to the declines of these stocks, and intends that the current levels of protection afforded to seals and sea lions under the Act should not be lifted without first giving careful consideration to other reasons for the decline, and to all other available alternatives for mitigation."). Under these circumstances, NMFS was required to provide some explanation for the apparent inconsistencies.
2.
We also conclude that further explanation is required for NMFS's conclusion that California sea lion predation greater than 1 percent would have a significant negative impact on the decline or recovery or the listed salmonid populations.
This finding is implicit in NMFS's decision to authorize lethal removal up to the point at which a 1 percent predation level is achieved. The MMPA authorizes the lethal removal only of "individually identifiable pinnipeds which are having a significant negative impact on the decline or recovery of salmonid fishery stocks." 16 U.S.C. § 1389(b)(1). Thus, by authorizing lethal removal up to the 1 percent level, NMFS has impliedly found that this level of predation would have the requisite adverse impact.
NMFS said only that the 1 percent target "is intended to balance the policy value of protecting all pinnipeds, as expressed in the MMPA, against the policy value of recovering threatened and endangered species, as expressed in the ESA." Pinniped Removal Authority, 73 Fed.Reg. at 15,486. This may be a worthy public policy goal, but the agency's explanation does not help us to understand why this level of predation amounts to a "significant negative impact" or how this level of removal is related to the decline or recovery of listed salmonids. Without that explanation, we cannot ascertain whether NMFS has complied with its statutory mandate under the MMPA.
In this respect we once again echo the concerns of the Marine Mammal Commission, which repeatedly emphasized to NMFS the need to "identify the level at which predation of salmonids by pinnipeds no longer would be considered significant," because "the taking authority should lapse once predation is reduced to a level where it no longer is having a significant impact." Letter from Timothy J. Ragen to D. Robert Lohn, Regional Administrator, Northwest Region, NMFS, at 1, 6 (Nov. 23, 2007); see also Letter from Timothy J. Ragen, Executive Director, Marine Mammal Commission, to Donna Darm, Assistant Regional Administrator, Protected Resources Division, NMFS, at 2 (Apr. 2, 2007) (imploring the task force to "take a hard look at the justification for the number of any lethal removals that it recommends be authorized"); Letter from Timothy J. Ragen, Executive Director, Marine Mammal Commission, to D. Robert Lohn, Regional Administrator, Northwest Region, NMFS, at 1 (Nov. 23, 2007) (recommending that NMFS "identify the level at which predation of salmonids by pinnipeds no longer would be considered significant and adopt that level as the goal of any authorized removal program"); id. at 6 (urging NMFS to determine "the level at which the impact would cease to be significant," at which point the taking authority would "lapse"); id. (criticizing the task force for adopting a 1 percent predation target without engaging "in any quantitative analyses to support" it); id. at 10 (indicating that some members of the task force "appeared to be driven more by the pragmatic goal of designing the authorization they thought most likely to resolve the pinniped-fishery conflict than by whether that authorization would satisfy the requirements of section 120" of the MMPA); Letter from Timothy J. Ragen, Executive Director, Marine Mammal Commission, to Garth Griffin, NMFS, at 3 (Feb. 19, 2008) (stating that "a justification should be provided for establishing [the 1 percent] level of predation as . . . a threshold" at which predation "would no longer be considered significant"); Letter from Timothy J. Ragen, Executive Director, Marine Mammal Commission, to Robert Lohn, Regional Administrator, Northwest Regional Office, NMFS, at 2 (Feb. 25, 2008) ("There are two issues about which the Service should be particularly clear in its rationale. The first is the basis for determining the extent to which predation must be reduced to promote conservation and recovery of the salmonid stocks. . . . The second is the manner and rationale by which the Service is, in effect, allocating allowable salmonid mortality among different sources of mortality."). The finding that predation at the 1 percent level is significant is not adequately explained.
For each of the foregoing reasons, we hold that NMFS's explanation is incomplete and inadequate to permit meaningful judicial review. On the current record, NMFS has not explained its significance determination in light of seemingly inconsistent factual determinations in earlier environmental assessments of fishery impacts. Nor has the agency properly explained the basis of its determination that California sea lion predation of salmonids is significant at the 1 percent level. The agency's action is therefore "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). Accordingly, we direct the district court to vacate NMFS's decision approving the states' MMPA application and remand to NMFS to afford the agency the opportunity either to articulate a reasoned explanation for its action or to adopt a different action with a reasoned explanation that supports it. See Local Joint Exec. Bd. v. NLRB, 309 F.3d 578, 585 (9th Cir. 2002).
In rare circumstances, when we deem it advisable that the agency action remain in force until the action can be reconsidered or replaced, we will remand without vacating the agency's action. See Heartland Reg'l Med. Ctr. v. Sebelius, 566 F.3d 193, 198 (D.C. Cir. 2009) (explaining that special circumstances may justify remand without vacatur "[w]hen an agency may be able readily to cure a defect in its explanation of a decision"); Idaho Farm Bureau Fed'n v. Babbitt, 58 F.3d 1392, 1405-06 (9th Cir. 1995) (holding that the court may remand without vacatur "when equity demands"). In this case, the government has not specifically requested that we remand without vacatur, and it is not otherwise apparent that the circumstances call for doing so. Accordingly, the appropriate remedy here is to direct the district court to vacate NMFS's action and remand to the agency.
In so holding, we do not impose an undue burden on NMFS on remand. The APA requires only a "cogent explanation." Nw. Envtl. Def. Ctr., 477 F.3d at 691. We recognize the challenges NMFS faces in addressing salmonid conservation and recovery in the Columbia River, the efforts it has taken to address multiple sources of mortality and the practical difficulties presented by uncertainties and changing conditions on the ground. We also recognize that sea lion predation is a serious and potentially significant problem in this location, and that Congress, in enacting section 120 of the MMPA, has authorized NMFS to give priority to ESA-listed salmonid populations over MMPA-protected pinnipeds under specific circumstances. As judges, our limited role is to ensure that NMFS has properly determined that those specific circumstances exist. To do so, we require an explanation from the agency that enables meaningful judicial review. We conclude that a remand is necessary in this case to permit us to fulfill our function.
B. Chevron Analysis
We are not persuaded by plaintiffs' argument that NMFS's interpretation of the MMPA is impermissible or unreasonable under the Chevron framework. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Chevron establishes a two-step framework for reviewing agency interpretations of statutes they administer. Under the first step, we determine "whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear," then we "must give effect to the unambiguously expressed intent of Congress." Id. at 842-43, 104 S.Ct. 2778. Under step two, "if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." Id. at 843, 104 S.Ct. 2778. "If a statute is ambiguous, and if the implementing agency's construction is reasonable, Chevron requires a federal court to accept the agency's construction of the statute, even if the agency's reading differs from what the court believes is the best statutory interpretation." Nat'l Cable Telecomm. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 980, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005).
As a threshold matter, all parties agree that Chevron deference applies to NMFS's interpretation of the MMPA in this case. We therefore assume without deciding that Chevron deference applies. We observe, however, that in some circumstances we have suggested that agencies' one-time statutory interpretations, if lacking in precedential force with respect to future agency actions, may not warrant this deference. See High Sierra Hikers, 390 F.3d at 648 (holding that the U.S. Forest Service's interpretation of the Wilderness Act was not entitled to Chevron deference because the agency "was not acting with the force of law" when it was "granting permits," an action that would not have "precedential value for subsequent parties"). Given the parties' agreement that Chevron governs, we have no occasion to decide whether High Sierra Hikers would preclude Chevron deference here.
Here, plaintiffs challenge NMFS's interpretation of the MMPA's requirement that "individually identifiable pinnipeds" are having a significant negative impact on the decline or recovery of listed salmonid populations. Following the suggestion of the Marine Mammal Commission, NMFS adopted a two-part interpretation for this requirement, in which it would first determine whether California sea lions collectively were having a significant negative impact on listed salmonids and would next determine which sea lions were significant contributors to that impact and therefore eligible for lethal removal. Plaintiffs contend that the agency's interpretation is contrary to the plain language and the legislative history of the statute, which, they argue, require a finding that an individual pinniped is having a significant negative impact on fishery stocks, not whether sea lions in the aggregate are having the requisite impact. The legislative history lends some support to plaintiffs' position, see S.Rep. No. 103-220, at 524 (1994), 1994 U.S.C.C.A.N. 518, 525 ("The Secretary would be authorized to allow the lethal removal of a nuisance pinniped if it is identified as habitually exhibiting dangerous or damaging behavior that cannot be deterred by other means." (emphasis added)), but the language and purpose of the statute as a whole do not preclude the agency's two-part interpretation. See 16 U.S.C. § 1389(b)(1) (authorizing "the intentional lethal taking of individually identifiable pinnipeds which are having a significant negative impact" (emphasis added)), (b)(2) (requiring applicants to specify "a means of identifying the individual pinniped or pinnipeds" sought to be removed (emphasis added)), (d)(3) (requiring the agency to consider "the extent to which such pinnipeds are causing undue injury or impact to, or imbalance with, other species in the ecosystem, including fish populations" (emphasis added)). We therefore cannot say that the agency's interpretation is an unreasonable one.
Plaintiffs also challenge NMFS's interpretation of the phrase "significant negative impact," arguing that the three factors relied on by the agency to make a finding of significance amount to an impermissible interpretation. Because we conclude that NMFS's action is inadequately explained and must be remanded under the APA for reasons we have explained above, we need not resolve this question here. See Shays v. FEC, 414 F.3d 76, 97 (D.C. Cir. 2005) ("[W]e need not decide whether these . . . rules represent altogether impermissible interpretations . . . — the Chevron step two inquiry — because in any event the [agency] has given no rational justification for them, as required by the APA's arbitrary and capricious standard.") (citation omitted).
II. National Environmental Policy Act Claim
We next address plaintiffs' argument that NMFS violated NEPA by failing to prepare an environmental impact statement (EIS). Under NEPA, a federal agency must prepare an EIS for any "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). An agency may first prepare an environmental assessment (EA) to determine whether the effects of a proposed action are significant. If the EA establishes that the action may have significant environmental impacts, the agency must prepare an EIS. If the agency makes a finding on the basis of an EA that the action will have no significant impact (FONSI), no EIS is required. See 40 C.F.R. § 1501.4. Plaintiffs contend an EIS was required in this case on two bases, which we discuss in turn.
A. Beneficial Impact
Plaintiffs first argue that NMFS's finding of significance under the MMPA in essence compels a finding of significance under NEPA. According to plaintiffs, NMFS's determination under the MMPA that sea lions are having a "significant negative impact on the decline or recovery" of listed salmonid populations necessarily implies that the environmental benefits of authorizing the lethal removal of sea lions will have a significant positive impact on these salmonid populations. They contend that this significant beneficial environmental impact triggers the duty to prepare an EIS under NEPA.
As a threshold matter, plaintiffs' argument appears to raise an issue of first impression in this circuit: whether NEPA requires an agency to prepare an EIS when an action has a significant beneficial impact but no significant adverse impact on the environment. This is a question we need not resolve, however, because even if solely beneficial impacts trigger an EIS, the record does not demonstrate a significant beneficial impact on the human environment in this instance. First, just because NMFS has concluded that sea lions are having a significant negative impact on listed salmonid populations does not mean that the agency has also determined that the removal action authorized here will have a significant positive impact on these same populations. Second, even if NMFS concluded that its action would have a "significant" positive impact on the fish populations involved, that would not necessarily translate into a finding of a significant effect on the quality of the human environment, as required by NEPA: although both statutes speak of significance, the legal standards under the MMPA and NEPA are distinct.
We reject defendants' argument that our decision in Bering Strait Citizens for Responsible Resource Development v. U.S. Army Corps of Engineers, 524 F.3d 938, 956 (9th Cir. 2008), addressed that issue. Bering Strait involved a permit issued by the Corps for a major gold-mining project near Nome, Alaska. We observed that the project would "favorably affect[] parts of the Nome area that suffered environmental damage from previously unconstrained resource development" and held that "the Corps was not required to prepare an EIS" because the project had "no significant detrimental effect on the environment in and near Nome." Id. at 957. The plaintiffs in Bering Strait did not contend that an EIS was required based on beneficial environmental effects, so we did not squarely address whether significant beneficial effects alone would trigger an EIS. Bering Strait therefore left this issue unresolved.
Other circuits are divided on this question. Compare Sierra Club v. Froehlke, 816 F.2d 205, 211 n. 3 (5th Cir. 1987) ("[Because] NEPA is concerned with accurate and informed decisionmaking as a general matter[, a]n environmental report that erroneously depicts positive environmental consequences poses as significant an obstacle to informed decisionmaking as one that inadequately assesses adverse circumstances."), Natural Res. Def. Council, Inc. v. Herrington, 768 F.2d 1355, 1431 (D.C. Cir. 1985) (stating in dictum that "both beneficial and adverse effects on the environment can be significant within the meaning of NEPA, and thus require an EIS"), Nat'l Wildlife Fed'n v. Marsh, 721 F.2d 767, 783 (11th Cir. 1983) (holding that post-EIS changes required a supplemental EIS where a "Mitigation Plan involves a number of proposed project changes that are likely to have a significant, though beneficial, impact on the environment"), and Envtl. Def. Fund v. Marsh, 651 F.2d 983, 993 (5th Cir. 1981) ("[E]ven if the Corps was correct in deciding that the new land use will be beneficial in impact, a beneficial impact must nevertheless be discussed in an EIS, so long as it is significant. NEPA is concerned with all significant environmental effects, not merely adverse ones."), with Friends of Fiery Gizzard v. Farmers Home Admin., 61 F.3d 501, 504-05 (6th Cir. 1995) (concluding that only adverse impacts trigger the obligation to prepare an EIS). Although we do not reach the question, plaintiffs' view is consistent with the weight of circuit authority and has the virtue of reflecting the plain language of the statute.
We do not intend to suggest that the legal standards under the two statutes are unrelated. A significant impact on listed salmonids, as defined by the MMPA, certainly could constitute a significant effect on the human environment under NEPA. See 40 C.F.R. § 1508.27(b)(9) (providing that one factor an agency should consider in making the determination of whether to prepare an EIS under NEPA is "[t]he degree to which the action may adversely affect an endangered or threatened species"). We hold only that a finding of significance under the MMPA does not ipso facto mandate a finding of significance under NEPA.
B. Adverse Impacts
In the alternative, plaintiffs contend that NMFS should have prepared an EIS based on significant adverse impacts. They rely on three theories of adverse impact, none of which is persuasive.
First, plaintiffs contend that an EIS was required based on the controversial and uncertain nature of the action. See 40 C.F.R. § 1508.27(b)(4) (in deciding whether an action has a significant impact, the agency should consider "[t]he degree to which the effects on the quality of the human environment are likely to be highly controversial"); id. § 1508.27(b)(5) (the agency also should consider "[t]he degree to which the possible effects on the human environment are highly uncertain or involve unique or unknown risks"). As plaintiffs correctly point out, the lethal removal of sea lions at Bonneville Dam has been the subject of some controversy. Most significantly, the Marine Mammal Commission criticized aspects of NMFS's decisionmaking. NMFS, however, acted reasonably in concluding that the Commission's concerns did not make the agency's action highly controversial within the meaning of the NEPA regulations. "The term `controversial' refers `to cases where a substantial dispute exists as to the size, nature, or effect of the major federal action rather than to the existence of opposition to a use.'" Found. for N. Am. Wild Sheep v. U.S. Dep't of Agric., 681 F.2d 1172, 1182 (9th Cir. 1982). "A substantial dispute exists when evidence . . . casts serious doubt upon the reasonableness of an agency's conclusions." Nat'l Parks Conservation Ass'n v. Babbitt, 241 F.3d 722, 736 (9th Cir. 2001) (emphasis added). Here, the Commission criticized some aspects of NMFS's draft EA, but it did not disagree with the EA's primary conclusions that an EIS was not required, that sea lions are having a significant impact under section 120 and that some sort of lethal removal is reasonable.
Second, plaintiffs contend an EIS was required based on the action's potentially deadly consequences for Steller sea lions that frequent the Bonneville Dam area. Plaintiffs contend that Steller sea lions, which, unlike California sea lions, are listed as threatened under the ESA, could be killed mistakenly because NMFS's decision authorizes shooting sea lions that are in the water, where Steller sea lions can be hard to distinguish from California sea lions. See 40 C.F.R. § 1508.27(b)(9) (in deciding the question of significance under NEPA, an agency should consider "[t]he degree to which the action may adversely affect an endangered or threatened species"). Plaintiffs' argument is unpersuasive because NMFS adopted a series of safeguards to ensure that only targeted sea lions would be killed, and concluded that, "[b]ecause of these requirements, it is highly unlikely that a marksman would shoot any sea lion other than one on the list of predatory sea lions." The record does not demonstrate that this conclusion is in error.
Third, plaintiffs contend an EIS was required based on the impacts to local wildlife viewing opportunities if sea lions are removed from the Bonneville Dam area. Plaintiffs correctly observe that the lethal removal program will reduce or eliminate sea lion viewing opportunities in the vicinity of the dam. But their argument is unpersuasive, in part because the NEPA regulations do not treat wildlife viewing opportunities as a major factor in deciding whether an EIS is required. See 40 C.F.R. § 1508.27(b)(8). Nor does the record contain substantial evidence showing that the dam is a popular site for sea lion viewing. We therefore reject this argument.
III. Defendants' Motion to Strike
Plaintiffs also contend that the district court abused its discretion by granting defendants' motion to strike NMFS's previous, fishery-related environmental assessments to the extent they were not included in the administrative record. As a general matter, judicial review of agency decisions is limited to the record considered by the agency in making its decision. See, e.g., Camp v. Pitts, 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973). A court may consider extra-record documents, however, "if necessary to determine `whether the agency has considered all relevant factors and has explained its decision.'" Sw. Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1450 (9th Cir. 1996) (quoting Inland Empire Pub. Lands Council v. Glickman, 88 F.3d 697, 703 (9th Cir. 1996)). As we have discussed, NMFS should have explained the apparent factual inconsistency between its significance finding here and its previous fishery assessments. Thus, supplementing the administrative record to include those earlier assessments is "necessary to determine `whether the agency has considered all relevant factors and has explained its decision.'" Id. We therefore vacate the order granting defendants' motion to strike.
IV. NMFS's Use of Bioenergetic Modeling
Finally, plaintiffs challenge NMFS's use of bioenergetic modeling to supplement the Corps' observation-based estimates of sea lion predation. Plaintiffs have not demonstrated that NMFS's estimates are arbitrary or capricious under the APA. We therefore uphold the agency's use of bioenergetic modeling.
As we have explained, the Corps observed pinniped predation at the Bonneville Dam between 2002 and 2007 and produced predation estimates based on those actual observations. NMFS determined that the Corps' observation-based method underestimated the number of fish killed by sea lions at the dam and therefore supplemented the Corps' figures with estimates produced through a bioenergetic consumption model. Although plaintiffs raise a number of objections to NMFS's reliance on the bioenergetic estimates to augment the Corps' predation rates, their arguments are unpersuasive.
NMFS inaccurately characterizes the predation numbers produced by the Corps as predation "actually observed." Although the Corps' numbers are based on actual observations, they in fact are estimates that reflect not only observed kills but also kills estimated to have occurred during breaks in observation. The Corps' numbers are therefore estimates, though they are based on actual observations rather than bioenergetic consumption calculations.
First, there is no meaningful dispute that the Corps' observation-based estimates lead to some undercounting. Thus, NMFS's conclusion that "[t]he actual number of salmonids consumed is certainly larger than the numbers" reported by the Corps is not unreasonable. The Marine Mammal Commission agreed with the agency's conclusion that the Corps understated predation, concurring in NMFS's conclusion "that the number of pinnipeds present at the dam likely is greater than the number observed." NMFS's decision to look beyond the Corps' observation-based estimates was therefore reasonable. See Lands Council v. McNair, 537 F.3d 981, 993-94 (9th Cir. 2008) (en banc) ("[A]s non-scientists, we decline to impose brightline rules on the [agency] regarding particular means that it must take in every case to show us that it has met the [statutory] requirements. Rather, we hold that the [agency] must support its conclusions that a project meets the requirements of the [statute] . . . with studies that the agency, in its expertise, deems reliable."), abrogated in part on other grounds by Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008).
Second, plaintiffs have not demonstrated that the bioenergetic models used by the agency produced unreliable estimates. Plaintiffs rely on a letter in which the Marine Mammal Commission questioned some of the agency's early estimates based on bioenergetic modeling. Plaintiffs have not shown, however, that the Commission criticized the agency's final bioenergetic calculations. Nor have they shown that the Commission asserted that modeling was an improper method of helping to estimate actual sea lion predation. Plaintiffs also rely on a declaration submitted by their expert, Dr. Andrew Trites, that challenges some of the assumptions of NMFS's bioenergetic consumption model. Dr. Trites' submission, however, demonstrates only that several of the agency's factual assumptions are subject to some dispute, not that the agency's assumptions were arbitrary or capricious. See Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989) ("When specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive."); see also Baltimore Gas Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87, 103, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983) (when an agency is "making predictions, within its area of special expertise . . ., as opposed to simple findings of fact, a reviewing court must generally be at its most deferential").
Furthermore, in measuring sea lion predation, NMFS relied primarily on the Corps' estimates and only secondarily on the bioenergetic consumption estimates. See Pinniped Removal Authority, 73 Fed. Reg. at 15,485, 15,486. NMFS used the bioenergetic data to supplement rather than supplant the Corps' estimates.
Finally, we observe that the bioenergetic consumption estimates do not appear to have been material to NMFS's decision. NMFS determined that sea lion predation was "significant" under the MMPA even at the mortality levels supplied by the Corps. See id. at 15,485. The agency's decision thus would have been the same even if the Corps' estimates were not supplemented by the bioenergetic consumption estimates.
CONCLUSION
We affirm summary judgment in favor of defendants on plaintiffs' NEPA claim. We reverse summary judgment on plaintiffs' MMPA claim and remand to the district court with instructions to vacate the decision of NMFS and remand to NMFS. We vacate the district court's order granting defendants' motion to strike. Each party shall bear its own costs on appeal.
AFFIRMED IN PART, REVERSED IN PART, REMANDED.