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Rinard v. Berryhill

United States District Court, D. Oregon, Portland Division

December 12, 2017

EMILY RINARD, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Plaintiff 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.


         Plaintiff applied for SSI and DIB on November 20, 2012, claiming disability beginning March 1, 2011. Tr. 186-201.[1] 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 Court.[2]


         Born in 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.


         A. Burden of Proof and Evidentiary Requirements

         The 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).

         B. Five-Step Sequential Process

         The 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.

         At this 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.

         C. Drug Addiction and Alcoholism Analysis

         If the 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).

         The ALJ 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).


         The ALJ 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. Tr. 22.

         The ALJ 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 ‚Äúcontributing factor ...

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