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Johnson v. Colvin

United States District Court, D. Oregon, Portland Division

March 13, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


ROBERT B. JONES, Jr., Magistrate Judge.

Plaintiff Deborah Johnson, appearing prose, appeals the Commissioner's decision denying her concurrent applications for disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act. The court has jurisdiction under 42 U.S.C. § 405(g). I AFFIRM the Commissioner's decision.


Johnson alleged disability beginning March 31, 2002, due to anxiety, depression, traumatic brain injury, and cognitive impairment, leaving her unable to concentrate, think clearly, or remember instructions. She alleged that chronic pain in her feet, back, neck, and shoulders impaired her ability to lift and stand or walk for long periods. Admin. R. 257. She satisfied the insured status requirements for a disability insurance claim through June 30, 2011, and must establish that she was disabled on or before that date to prevail on her Title II claim. Tidwell v. Apfel, 161 P.3d 599, 601 (9th Cir. 1998).

The ALJ applied the sequential disability determination process described in 20 C.P.R. sections 404.1520 and 416.920. See Bowen v. Yuckert, 482 U.S. 137, 140 (1987). The ALJ found that Johnson's ability to work was adversely affected by opioid dependence, alcohol dependence, major depressive disorder, personality disorder, degenerative disc disease of the lumbar region of the spine, and chronic foot pain. Admin. R. 22. The ALJ found that the combination of these impairments left Johnson with the residual functional capacity ("RFC") to perform a range of light work with limited standing, walking, postural activities, and exposure to irritants or hazards. She could perform only unskilled work with limited exposure to the public. The ALJ found that Johnson's substance dependence would cause her to miss work at unpredictable times for up to eight hours per week. Admin. R. 24. Based on testimony from the vocational expert ("VE"), the ALJ concluded that, in light of her RFC assessment including the effects of substance dependence, Johnson could not work in competitive employment. Admin. R. 28.

A claimant cannot be considered disabled if drug addiction or alcoholism is a contributing factor material to the determination of disability. 42 U.S.C. § 1382c(a)(3)(J); Bustamante v. Massanari, 262 P.3d 949, 955 (9th Cir. 2001); 20 C.P.R.§§ 404.1535(a); 416.935(a). Substance abuse is a material factor when the claimant's remaining limitations would not be disabling if the claimant stopped using drugs or alcohol. 20 C.P.R.§§ 404.1535(b); 416.935(b).

Accordingly, the ALJ perfumed the sequential evaluation a second time, excluding the functional effects of substance abuse. He determined that, if Johnson ceased using alcohol and opioid substances, her RFC would remain the same, except that she would be able to maintain a normal work schedule without excessive unpredictable absences. Admin. R. 29. The VE testified that a person with Johnson's RFC in the absence of substance abuse could perform the activities required in light, unskilled occupations such as electronics worker, sporting goods assembly, and small product assembly, representing hundreds of thousands of jobs in the national economy. Admin. R. 34, 85. The ALJ concluded that substance abuse was a contributing factor material to Johnson's inability to work and that Johnson could not be considered disabled within the meaning of the Social Security Act. Admin. R. 35.


The district court must affirm the Commissioner's decision if it is based on proper legal standards and the findings of fact are supported by substantial evidence in the record as a whole. 42 U.S.C. § 405(g); Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). Under this standard, the Commissioner's factual findings must be upheld if supported by inferences reasonably drawn from the record even if evidence exists to support another rational interpretation. Batson, 359 F.3d at 1193; Andrews v. Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995).

On judicial review, the claimant bears the burden of showing that the ALJ erred and that any error was harmful. McLeod v. Astrue, 640 F.3d 881, 886-87 (9th Cir. 2011). In addition, in cases involving substance abuse, the claimant bears the burden of proving that drug addiction or alcoholism is not a contributing factor material to the disability determination. Ball v. Massanari, 254 F.3d 817, 821 (9th Cir. 2001),


I. Claims of Error

Although Johnson appears pro se in this appeal, she was represented by counsel during the administrative proceedings before the ALJ and the Appeals Council. Based on Johnson's pro se brief and the arguments presented by her former counsel during administrative proceedings, her challenge to the Commissioner's decision rests on the following grounds.

Johnson contends the ALJ failed to assess her RFC accurately because he erroneously discredited her subjective statements without providing legally sufficient reasons, improperly discounted the findings and opinions of Jeffrey Sher, Psy. D., and Bridget O'Neill, ...

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