United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
PATRICIA SULLIVAN UNITED STATES MAGISTRATE JUDGE
Emily Rinard brings this action pursuant to the Social
Security Act (the “Act”), 42 U.S.C. §
405(g), to obtain judicial review of a final decision of the
Commissioner of Social Security (the
“Commissioner”). The Commissioner denied
plaintiff Supplemental Security Income (“SSI”)
and Disability Insurance Benefits (“DIB”) under
Titles II and XVI of the Act. 42 U.S.C. §§ 401
et seq., 1381 et seq. For the following
reasons, the Court REVERSES the Commissioner's decision
and REMANDS for further administrative proceedings.
applied for SSI and DIB on November 20, 2012, claiming
disability beginning March 1, 2011. Tr.
186-201. Her claim was denied initially on March 5,
2013, and on reconsideration on November 4, 2013. Tr. 66-91,
92-111. A hearing was held April 10, 2015, in Portland,
Oregon, before Administrative Law Judge (“ALJ”)
Steve Lynch. Tr. 42-65. Plaintiff testified, represented by
counsel; a vocational expert (“VE”), Erin Martz,
also testified. Id. On June 12, 2015, the ALJ issued
a decision finding plaintiff not disabled under the Act and
denying her benefits. Tr. 16-37. Plaintiff requested Appeals
Council review, which was denied September 23, 2016. Tr. 1-7,
282-86. Plaintiff then sought review before this
1981, plaintiff has completed high school, has taken some
community college classes, and has a certificate in
photography. Tr. 46, 188, 349. Plaintiff has worked as a
waitress, barista, café supervisor, and photographer.
Tr. 47-49, 77, 220. Plaintiff suffers from bipolar disorder,
attention deficit hyperactivity disorder
(“ADHD”), and posttraumatic stress disorder; she
has also experienced depression and anxiety. Tr. 303-05, 336,
368, 402, 417-19, 656, 677. Plaintiff has a history of
substance abuse, chiefly methamphetamines
(“meth”), but she has also abused alcohol, and
used cocaine and marijuana. Tr. 364, 366, 391, 649, 654.
Plaintiff has completed outpatient and inpatient therapy for
substance use, and in 2011 and 2012 relapsed on meth. Tr.
342-54, 355-57, 376-93, 650-64, 665-70, 714, 719. The last
meth relapse evidenced in the record was February 28, 2013.
Tr. 810. Plaintiff suffered a “mental breakdown”
in 2011, and went on short-term disability. Tr. 48-49, 310,
365, 417. Plaintiff lives with roommates and her
ex-significant other. Tr. 50. Plaintiff has a teenage son who
lives with her half the week. Id. Plaintiff has a
criminal history of felony domestic violence and burglary,
arising from an incident with her son's father. Tr.
52-53, 417, 559.
Burden of Proof and Evidentiary Requirements
court must affirm the Commissioner's decision if it is
based on proper legal standards and the findings are
supported by substantial evidence in the record. Hammock
v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Substantial
evidence is “more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971) (quotation omitted).
The court must weigh “both the evidence that supports
and detracts from the [Commissioner's] conclusion.”
Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir.
1986). “Where the evidence as a whole can support
either a grant or a denial, [the court] may not substitute
[its] judgment for the ALJ's.” Massachi v.
Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (citation
omitted); see also Burch v. Barnhart, 400 F.3d 676,
680-81 (9th Cir. 2005) (holding that the court “must
uphold the ALJ's decision where the evidence is
susceptible to more than one rational interpretation”).
“[A] reviewing court must consider the entire record as
a whole and may not affirm simply by isolating a specific
quantum of supporting evidence.” Orn v.
Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (quotation
omitted). The initial burden of proof rests upon the claimant
to establish disability. Howard v. Heckler, 782 F.2d
1484, 1486 (9th Cir. 1986). To meet this burden, the claimant
must demonstrate an “inability to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be
expected . . . to last for a continuous period of not less
than 12 months.” 42 U.S.C. § 423(d)(1)(A).
Five-Step Sequential Process
Commissioner has established a five-step process for
determining whether a person is disabled. Bowen v.
Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R.
§§ 404.1520, 416.920. First, the Commissioner
determines whether a claimant is engaged in
“substantial gainful activity”; if so, the
claimant is not disabled. Yuckert, 482 U.S. at 140;
20 C.F.R. §§ 404.1520(b), 416.920(b). At step two,
the Commissioner determines whether the claimant has a
“medically severe impairment or combination of
impairments.” Yuckert, 482 U.S. at 140-41; 20
C.F.R. §§ 404.1520(c), 416.920(c). A severe
impairment is one “which significantly limits [the
claimant's] physical or mental ability to do basic work
activities[.]” 20 C.F.R. §§ 404.1520(c) &
416.920(c). If not, the claimant is not disabled.
Yuckert, 482 U.S. at 141. At step three, the
Commissioner determines whether the impairment meets or
equals “one of a number of listed impairments that the
[Commissioner] acknowledges are so severe as to preclude
substantial gainful activity.” Id.; 20 C.F.R.
§§ 404.1520(d), 416.920(d). If so, the claimant is
conclusively presumed disabled; if not, the analysis
proceeds. Yuckert, 482 U.S. at 141.
point, the ALJ must evaluate medical and other evidence to
determine the claimant's “residual functional
capacity” (“RFC”). This is an assessment of
work-related activities that the claimant can perform on a
regular and continuing basis, despite any limitations imposed
by her impairments. 20 C.F.R. §§ 404.1520(e),
404.1545(b)-(c), 416.920(e), 416.945(b)-(c). At the fourth
step, the ALJ determines whether the claimant can perform
“past relevant work.” Yuckert, 482 U.S.
at 141; 20 C.F.R. §§ 404.1520(e), 416.920(e). If
the claimant can perform past relevant work, he is not
disabled; if he cannot, the burden shifts to the
Commissioner. Yuckert, 482 U.S. at 146 n.5. At step
five, the Commissioner must establish that the claimant can
perform other work that exists in significant numbers in the
national economy. Id. at 142; 20 C.F.R. §§
404.1520(e) & (f), 416.920(e) & (f). If the
Commissioner meets this burden, the claimant is not disabled.
20 C.F.R. §§ 404.1566, 416.966.
Drug Addiction and Alcoholism Analysis
record includes evidence of drug abuse or alcoholism
(“DAA”), the ALJ must determine whether, absent
substance abuse, the claimant would still be disabled under
the Act. 42 U.S.C. §§ 423(d)(2)(C), 1382c(a)(3)(J);
20 C.F.R. §§ 404.1535(a), 416.935(a); Sousa v.
Callahan, 143 F.3d 1240, 1242 (9th Cir. 1998). First,
the ALJ must determine that medical evidence from an
acceptable medical source establishes the existence of a
substance use disorder. Social Security Regulation
(“SSR”) 13-2p, 2013 WL 621536, at *4 (Feb. 20,
2013). Next, considering all the claimant's impairments,
including substance use, the ALJ must determine if the
claimant is disabled under the Act. Parra v. Astrue,
481 F.3d 742, 747 (9th Cir. 2007).
must then determine if DAA is a contributing factor material
to the determination of disability. 20 C.F.R. §§
404.1535(a), 416.935(a). The relevant inquiry is whether the
claimant would still be deemed disabled if he were to
“stop using drugs or alcohol.” Id.
§§ 404.1535(b)(1), 916.935(b)(1). The determination
is made by evaluating “which of [claimant's]
current physical and mental limitations . . . would remain if
[claimant] stopped using drugs or alcohol and then
determin[ing] whether any or all of [claimant's]
remaining limitations would be disabling.” Id.
§§ 404.1535(b)(2), 416.935(b)(2). The ALJ thus
performs a second five-step sequential evaluation, to
determine if the claimant would still be disabled under the
Act absent substance use. Bustamante v. Massanari,
262 F.3d 949, 955 (9th Cir. 2001).
first found that plaintiff meets the insured status
requirements of the Act through December 31, 2017. Tr. 19. At
step one, the ALJ found that plaintiff had not engaged in
substantial gainful activity since the alleged disability
onset date. Id. At step two, the ALJ found that
plaintiff had the severe impairments of bipolar disorder and
methamphetamine dependence. Id. The ALJ thus
conducted the initial five-step sequential analysis
considering all plaintiff's impairments, including
substance use. At step three, the ALJ found that plaintiff
did not have an impairment or combination thereof that met or
medically equaled a listed impairment. Id. The ALJ
found that plaintiff had the RFC to perform work at all
exertional levels, limited to simple, entry-level work, with
no transactional public interaction; plaintiff also had
marked limitations in completing a normal workday or workweek
without interruptions from psychological symptoms, and in
performing at a consistent pace without unreasonable rest
breaks. Tr. 21. At step four, the ALJ found plaintiff unable
to perform past relevant work. Id. At step five, the
ALJ found that there were no jobs that exist in significant
numbers in the national economy that plaintiff could perform.
then conducted the DAA analysis, the second five-step
sequence that considered plaintiff's limitations assuming
she stopped substance use. Tr. 23. The ALJ determined that
plaintiff would continue to have the severe impairment of
bipolar disorder. Id. Plaintiff would not meet or
equal a listed impairment. Id. Plaintiff would have
the RFC to perform work at all exertional levels, but would
remain limited to simple, entry-level work, with no
transactional public interaction. Tr. 24. In so finding, the
ALJ discounted the opinions of treating counselor Aspen
Sartoris, M.A., QMHP, LPC, and treating primary care
physician Barbara Esselink, M.D. Tr. 35. The ALJ found that
plaintiff would continue to be unable to perform past
relevant work. Tr. 36. However, plaintiff would be able to
perform jobs that exist in significant numbers in the
economy, including laundry worker II and garment sorter.
Id. Plaintiff's substance use disorder was thus
a “contributing factor ...