United States District Court, W.D. Washington, Tacoma
VITINA M. BURNS, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
ORDER ON SOCIAL SECURITY DISABILITY
RICARDO S. MARTINEZ, CHIEF UNITED STATES DISTRICT JUDGE
M. Burns brings this action pursuant to 42 U.S.C.
§§ 405(g), seeking judicial review of a final
decision of the Commissioner of Social Security denying his
application for Disability Insurance Benefits (DIB) and
Supplemental Security Income (SSI) under Title II and Title
XVI of the Social Security Act. This matter has been fully
briefed and, after reviewing the record in its entirety, the
Court REVERSES the Commissioner's final
decision and REMANDS the matter for further
administrative proceedings under sentence four of 42 U.S.C.
March 2008, Ms. Burns applied for DIB and SSI, alleging
disability as of July 18, 2001. Tr. 1077. Ms. Burns'
applications were denied initially and on reconsideration.
Id. Thereafter Ms. Burns amended her alleged onset
date to May 31, 2007. Id. On January 6, 2011,
Administrative Law Judge (“ALJ”) Verrell Dethloff
conducted a hearing. On January 28, 2011, ALJ Dethloff issued
a decision finding Ms. Burns was not disabled from May 31,
2007 through March 25, 2009, but became disabled on March 26,
2009, and remained disabled through the date of the decision.
Tr. 31-53. The Appeals Council denied Ms. Burns' request
for review and she appealed to the District Court. Tr. 1-6.
By order dated January 21, 2014, the District Court reversed
and remanded the case for further administrative proceedings.
Tr. 1184-1214. Pursuant to the District Court order the
Appeals Council vacated the prior decision and remanded the
case for further proceedings requiring that all of the
medical evidence, including the claimant's testimony, be
evaluated anew. Tr. 1215-17. On September 22, 2014, a
subsequent hearing was held before ALJ Steve Lynch. Tr.
1691-1729. Impartial psychological expert Stephen Rubin, Ph.
D., appeared and testified at the hearing. Id. A
supplemental hearing was held on February 4, 2015. Tr.
1143-46. Paul K. Morrison, an impartial vocational expert,
appeared and testified at the hearing. Id. On April
30, 2015, ALJ Lynch issued a decision finding Ms. Burns was
not disabled from her alleged onset date until April 25,
2011, but became disabled on that date and has continued to
be disabled through the date of the decision. Tr. 1077-1100.
The Appeals Council denied Ms. Burns' request for review
and Ms. Burns filed the instant action. Tr. 1067-72.
to review the Commissioner's decision exists pursuant to
42 U.S.C. § 405(g).
STANDARD OF REVIEW
to 42 U.S.C. § 405(g), this Court may set aside the
Commissioner's denial of social security benefits when
the ALJ's findings are based on legal error or not
supported by substantial evidence in the record as a whole.
Bayliss v. Barnhart, 427 F.3d 1211, 1214 (9th Cir.
2005). “Substantial evidence” is more than a
scintilla, less than a preponderance, and is such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion. Richardson v. Perales, 402
U.S. 389, 401 (1971); Magallanes v. Bowen, 881 F.2d
747, 750 (9th Cir. 1989). The ALJ is responsible for
determining credibility, resolving conflicts in medical
testimony, and resolving any other ambiguities that might
exist. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th
Cir. 1995). While the Court is required to examine the record
as a whole, it may neither reweigh the evidence nor
substitute its judgment for that of the Commissioner.
Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir.
2002). When the evidence is susceptible to more than one
rational interpretation, it is the Commissioner's
conclusion that must be upheld. Id.
Court may direct an award of benefits where “the record
has been fully developed and further administrative
proceedings would serve no useful purpose.”
McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir.
2002) (citing Smolen v. Chater, 80 F.3d 1273, 1292
(9th Cir. 1996)). The Court may find that this occurs when:
(1) the ALJ has failed to provide legally sufficient reasons
for rejecting the claimant's evidence; (2) there are no
outstanding issues that must be resolved before a
determination of disability can be made; and (3) it is clear
from the record that the ALJ would be required to find the
claimant disabled if he considered the claimant's
Id. at 1076-77; see also Harman v. Apfel,
211 F.3d 1172, 1178 (9th Cir. 2000) (noting that erroneously
rejected evidence may be credited when all three elements are
claimant, Mr. Barnett bears the burden of proving that he is
disabled within the meaning of the Social Security Act (the
“Act”). Meanel v. Apfel, 172 F.3d 1111,
1113 (9th Cir. 1999) (internal citations omitted). The Act
defines disability as the “inability to engage in any
substantial gainful activity” due to a physical or
mental impairment which has lasted, or is expected to last,
for a continuous period of not less than twelve months. 42
U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A claimant
is disabled under the Act only if his impairments are of such
severity that he is unable to do his previous work, and
cannot, considering his age, education, and work experience,
engage in any other substantial gainful activity existing in
the national economy. 42 U.S.C. §§ 423(d)(2)(A);
see also Tackett v. Apfel, 180 F.3d 1094, 1098-99
(9th Cir. 1999).
Commissioner has established a five step sequential
evaluation process for determining whether a claimant is
disabled within the meaning of the Act. See 20
C.F.R. §§ 404.1520, 416.920. The claimant bears the
burden of proof during steps one through four. At step five,
the burden shifts to the Commissioner. Id. If a
claimant is found to be disabled at any step in the sequence,
the inquiry ends without the need to consider subsequent
steps. Step one asks whether the claimant is presently
engaged in “substantial gainful activity” (SGA).
20 C.F.R. §§ 404.1520(b), 416.920(b). If she is,
disability benefits are denied. If she is not, the
Commissioner proceeds to step two. At step two, the claimant
must establish that she has one or more medically severe
impairments, or combination of impairments, that limit her
physical or mental ability to do basic work activities. If
the claimant does not have such impairments, she is not
disabled. 20 C.F.R. §§ 404.1520(c), 416.920(c). If
the claimant does have a severe impairment, the Commissioner
moves to step three to determine whether the impairment meets
or equals any of the listed impairments described in the
regulations. 20 C.F.R. §§ 404.1520(d), 416.920(d).
A claimant whose impairment meets or equals one of the
listings for the required twelve-month duration requirement
is disabled. Id.
the claimant's impairment neither meets nor equals one of
the impairments listed in the regulations, the Commissioner
must proceed to step four and evaluate the claimant's
residual functional capacity (RFC). 20 C.F.R. §§
404.1520(e), 416.920(e). Here, the Commissioner evaluates the
physical and mental demands of the claimant's past
relevant work to determine whether she can still perform that
work. 20 C.F.R. §§ 404.1520(f), 416.920(f). If the
claimant is able to perform her past relevant work, she is
not disabled; if the opposite is true, then the burden shifts
to the Commissioner at step five to show that the claimant
can perform other work that exists in significant numbers in
the national economy, taking into consideration the
claimant's RFC, age, education, and work experience. 20
C.F.R. §§ 404.1520(g), 416.920(g);
Tackett, 180 F.3d at 1099, 1100. If the Commissioner
finds the claimant is unable to perform other work, then the
claimant is found disabled.
abuse and alcoholism (DAA) is a contributing factor material
to the determination of disability, a claimant cannot be
considered disabled for purposes of awarding benefits. 42
U.S.C. § 1382c(a)(3)(J). Thus when DAA is present the
ALJ must follow a specific analysis to determine whether it
is a contributing factor material to the determination of
disability. See 20 C.F.R. §§ 404.1535 and
416.935; Bustamante v. Massanari, 262 F.3d 949, 955
(9th Cir. 2001). First, the ALJ must complete the five-step
disability analysis without separating out the effects of
DAA. See Bustamante, 262 F.3d at 956 (remanding
“with instructions that the ALJ proceed with step three
(and four and five, if necessary) of the disability
determination without attempting to separate out the impact
of … alcohol abuse.”). If the ALJ finds the
claimant disabled without separating out the impacts of DAA,
the ALJ must then perform the sequential evaluation process a
second time, separating out the impact of the DAA to
determine whether she would remain disabled if she stopped
using drugs or alcohol. See Id. If the ALJ finds the
claimant's remaining limitations are disabling after
completing that second evaluation, then DAA is not a
contributing factor material to the determination of
disability and the claimant is disabled. 20 C.F.R. §
416.935(b)(2)(ii). Even where a claimant's DAA causes her
other impairment, if the other impairment is irreversible or
would not improve to the point of nondisability in the
absence of DAA, DAA is not material to the disability. Social
Security Ruling (“SSR”) 13-2p. On the other hand,
if, after the second evaluation, the ALJ determines a
claimant's remaining limitations would not be disabling,
the ALJ must find that the claimant's DAA is a
contributing factor material to the determination of
disability and the claimant is not disabled. 20 C.F.R. §
416.935(b)(2)(i). “The claimant bears the burden of
proving that drug or alcohol addiction is not a contributing
factor material to [her] disability.” Parra v.
Astrue, 481 F.3d 742, 748 (9th Cir. 2007).
found, considering all of Ms. Burns' impairments prior to
April 25, 2011, including substance abuse:
Step one: Ms. Burns has not engaged in
substantial gainful activity since May 31, 2007, the amended
alleged onset date.
Step two: Since May 31, 2007, Ms. Burns has
had the following severe impairments: depression, anxiety,
substance abuse or dependence, congestive obstructive
pulmonary disorder (CPD), and coronary artery disease.
Beginning on the established onset date of disability, April
25, 2011, Ms. Burns has the following additional severe
impairments: after effects of stroke and colon cancer with
Step three: Since May 31, 2007, considering
the effects of substance use, Ms. Burns did not have an
impairment or combination of impairments that met or equaled
the requirements of a listed impairment.
Residual Functional Capacity (RFC): Based on
all of the impairments, including substance use disorders,
the claimant had the residual functional capacity to perform
medium work except she needed to avoid unprotected heights
and workplace hazards. Ms. Burns could perform simple,
entry-level work, could not have transactional dealing with
the public, and could have only occasional interaction with
coworkers. Ms. Burns would have marked limitations in
concentration, persistence, and pace, resulting [in] at least
two to three absences per month.
Step four: Ms. Burns could not perform past
relevant work as a driver/mover or furniture mover.
Step five: Considering Ms. Burns' age,
education, work experience, and RFC based on all of the
impairments, including substance use disorders, there were no
jobs that existed in significant numbers in ...