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Burns v. Berryhill

United States District Court, W.D. Washington, Tacoma

October 13, 2017

VITINA M. BURNS, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1]Defendant.




         Vitina 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. § 405(g).


         In 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.


         Jurisdiction to review the Commissioner's decision exists pursuant to 42 U.S.C. § 405(g).


         Pursuant 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.

         The 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 evidence.

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 met).


         As the 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).

         The 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).[2] 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.

         When 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.

         If drug 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).


         The ALJ 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 colectomy.
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.[3]
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 ...

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