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Dunbar v. Berryhill

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

December 27, 2017

JAMIE D. DUNBAR, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER REVERSING AND REMANDING CASE FOR FURTHER ADMINISTRATIVE PROCEEDINGS

          JOHN C. COUGHENOUR, UNITED STATES DISTRICT JUDGE.

         Jamie D. Dunbar seeks review of the denial of her application for Supplemental Security Income and Disability Insurance Benefits. Ms. Dunbar contends the ALJ erred in: (1) evaluating the medical evidence; (2) evaluating her own testimony; and, (3) evaluating the lay evidence. Dkt. 11 at 2. Ms. Dunbar contends these errors resulted in a residual functional capacity (RFC) determination, excluding the impact of substance abuse, which failed to account for all of her limitations and that this, in turn, resulted in an erroneous step five finding. Id. As relief, Ms. Dunbar requests that this case be remanded for an award of benefits or, alternatively, for further administrative proceedings. Id. at 19. As discussed below, 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).

         BACKGROUND

         On January 27, 2011, Ms. Dunbar protectively filed for benefits, alleging disability as of October 31, 2007. Tr. 12. Ms. Dunbar's applications were denied initially and on reconsideration. Tr. 217-47. The ALJ conducted a hearing on September 6, 2012, and on November 1, 2012, issued a decision finding Ms. Dunbar not disabled. Tr. 187-208. Ms. Dunbar requested review and the Appeals Council remanded the matter for a new hearing. Tr. 209-13. The ALJ conducted another hearing on February 5, 2015, and on April 29, 2015, issued a decision again finding Ms. Dunbar not disabled. Tr. 12-29.

         DRUG ABUSE AND ALOCOHOLISM ANALYSIS

         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, 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.[1] 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. §§ 404.1535(b)(2)(ii), 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. §§ 404.1535(b)(2)(i), 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'S DECISION

         Utilizing the five-step disability evaluation process, the ALJ found, considering all of Ms. Dunbar's impairments including substance abuse:

Step one: Ms. Dunbar has not engaged in substantial gainful activity since October 31, 2007, the alleged onset date.
Step two: Ms. Dunbar has the following severe impairments: substance abuse/dependence, bipolar disorder, posttraumatic stress disorder (PTSD), anxiety disorder, obesity, and lumbar degenerative disc disease.
Step three: These impairments do not meet or equal the requirements of a listed impairment.[2]
Residual Functional Capacity: Ms. Dunbar can perform light work with some exceptions. She can frequently balance, occasionally stoop, kneel, and crouch, and cannot crawl or climb ramps, stairs, ladders, ropes, or scaffolds. She must avoid concentrated exposure to extreme cold, vibrations, and hazards. She can perform simple, routine tasks and follow short, simple instructions, do work that needs little or no judgment, and perform simple duties that can be learned on the job in a short period. She requires a work environment with minimal supervisor contact. (Minimal contact does not preclude all contact, rather it means contact does not occur regularly. Minimal contact also does not preclude simple and superficial exchanges and it doesn't preclude being in proximity to the supervisor.). She can work in proximity to co-workers, but not in a cooperative or team effort, and requires a work environment that has no more than superficial interactions with co-workers. She also requires a work environment that is predictable and with few work setting changes and requires a work environment without public contact. She is unable to maintain regular attendance and to be punctual within customary tolerances secondary to mood instability caused by substance abuse.
Step four: Ms. Dunbar cannot perform past relevant work.
Step five: As there are no jobs that exist in significant numbers in the national economy that Ms. Dunbar can perform, she is disabled.

         Considering Ms. Dunbar's impairments in the absence of substance abuse, the ALJ found:

Step one: Ms. Dunbar has not engaged in substantial gainful activity since October 31, 2007, the alleged onset date.
Step two: If Ms. Dunbar stopped her substance use, the remaining limitations would cause more than a minimal impact on her ability to perform basic work activities; therefore she would continue to have a severe impairment or combination of impairments.
Step three: Ms. Dunbar would not have an impairment or combination of impairments that meets or equals a listed impairment.
RFC: Ms. Dunbar's RFC would remain the same excluding the limitation that she would be unable to maintain regular attendance and be punctual within customary tolerances secondary to mood instability caused by substance abuse.
Step four: Ms. Dunbar could not perform past relevant work.
Step five: As there are a significant number of jobs in the national economy that Ms. Dunbar could perform, she ...

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