United States District Court, D. Oregon, Medford Division
TAMMY J. C,  Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
OPINION AND ORDER
D. CLARKE UNITED STATES MAGISTRATE JUDGE
Tammy C. ("Plaintiff") seeks judicial review of the
final decision of the Commissioner of the Social Security
Administration denying her claims for a period of disability,
disability insurance benefits, and supplemental security
income under Titles II and XVI of the Social Security Act.
The Commissioner agrees that this case should be reversed and
. remanded, but the parties were unable to agree on the terms
of the remand. Therefore, the only issue before the Court is
whether this case should be remanded for further proceedings
or for payment of benefits. For the reasons provided below,
the Commissioner's decision is REVERSED and REMANDED for
was born in 1966 and has at least a high school education.
Tr. 23, 267, 269. Plaintiff has worked as a caregiver,
customer service representative, gas station attendant, and
cashier. Tr. 23. Plaintiff has a long history of substance
abuse, with some periods of sobriety and multiple relapses.
primary limitations stem from her mental health issues,
including alcoholism and drug addiction. Tr. 19. Plaintiff
filed applications for disability in February 2014, alleging
disability beginning March 1, 2010. Tr. 13, 267-74. Plaintiff
had previously filed applications for disability in September
2010, and a prior ALJ found Plaintiff not disabled on
September 21, 2012. Tr. 13. The ALJ did not reopen the prior
final decision and considered the relevant time period as
beginning September 22, 2012. Tr. 13, 14, 24. For Title II
purposes, Plaintiffs date last insured was September 30,
2012. Tr. 15.
a hearing, the ALJ issued a decision on April 12, 2017,
finding Plaintiff not disabled under the Social Security Act.
Tr. 10-29. The Appeals Council denied Plaintiffs request for
review, making the ALJ's decision the final decision of
the Commissioner. Tr. 1-6.
raises the issue of whether the ALJ gave legally sufficient
reasons supported by substantial evidence to discount medical
opinion evidence and expert testimony. Plaintiffs additional
arguments hinge on the ALJ's analysis of the medical
evidence, including whether Plaintiffs limitations met or
equaled a listing. The Commissioner concedes error and takes
the position that the ALJ should reevaluate the medical
source opinions and conduct a proper drug addiction and
alcoholism ("DAA") materiality analysis. Plaintiff
argues that the case should be remanded for immediate
calculation of benefits. Therefore, the only issue for the
Court to decide is the terms of the remand.
decision whether to remand for further proceedings or for an
award of benefits is within the discretion of the Court.
Treichler v. Comm 'r of Soc. Sec. Admin., 775
F.3d 1090, 1099-1100 (9th Cir. 2014). The issue turns on the
utility of further proceedings. A court may not award
benefits punitively and must conduct a
"credit-as-true" analysis on evidence that has been
improperly rejected by the ALJ before ordering an award of
benefits. Strauss v. Comm 'r of the Soc. Sec.
Admin., 635 F.3d 1135, 1138 (9th Cir. 2011). Under the
credit-as-true rule, the court first determines whether the
ALJ made a legal error and then reviews the record as a whole
to determine whether the record is fully developed, the
record is free from conflicts and ambiguities, and there is
any useful purpose in further proceedings. Dominguez v.
Colvin, 808 F.3d 403, 407 (9th Cir. 2015). Only if the
record has been fully developed and there are no outstanding
issues left to be resolved does the court consider whether
the ALJ would be required to find the claimant disabled on
remand if the improperly discredited evidence were credited
as true. Id. If so, the court can exercise its
discretion to remand for an award of benefits. Id.
The court retains flexibility, however, and is not required
to credit statements as true because the ALJ made a legal
error. Id. at 408.
the Commissioner concedes that the ALJ failed to evaluate
Plaintiffs substance abuse. The Social Security Act provides
that an individual "shall not be considered to be
disabled" if drug addiction of alcoholism would be
"a contributing factor material to the
Commissioner's determination that the individual is
disabled." 42 U.S.C. §§ 423(d)(2)(C),
1382c(a)(3)(J). To determine whether drug addiction or
alcoholism is a contributing factor material to the
determination of disability, the ALJ must assess whether the
individual would still be found disabled if he or she stopped
using drugs or alcohol. 20 C.F.R. §§ 404.1535(b),
416.935(b); Social Security Ruling (SSR) 13-2p, available
at 2013 WL621536. Plaintiff argues that the ALJ did
evaluate the materiality of Plaintiff s substance abuse and
"specifically found that, pursuant to 20 C.F.R. §
404.1535(b), the Commissioner would not find [Plaintiff]
disabled when she 'stopped using drugs or
alcohol.'" Plf.'s Br. at 2 (#22). However, after
careful review of the ALJ's decision, the Court found no
such specific finding. Instead, the ALJ discounted some
medical opinions because Plaintiff's mental health
symptoms appeared to improve when Plaintiff was sober. For
example, the ALJ discounted Dr. Nance's medical opinion
because "Dr. Nance did not have an opportunity to review
Exhibit B28F, which documents improvement in the
claimant's overall functioning in the presence of ongoing
sobriety." Tr. 21. The ALJ's reference to this
document in support of her decision to discount a
doctor's opinion is not a specific finding that the
Commission would not find Plaintiff disabled when she stopped
using drugs or alcohol. A proper DAA analysis pursuant to SSR
13-2p must be conducted on remand.
further proceedings are needed to make factual findings
clarifying the dates of sobriety and relapse. Under Title II
of the Social Security Act, a claimant must establish
disability on or before the date last insured. 42 U.S.C.
§ 416(i)(3); Burch v. Bamhart, 400 F.3d 676,
679-81 (9th Cir. 2005). Plaintiffs date last insured was
September 30, 2012. Tr. 15. Because a prior ALJ issued a
decision finding Plaintiff not disabled before September 21,
2012, and that record of decision was not reopened, Plaintiff
must establish disability between September 22 and September
30, 2012 in order to be entitled to Title II benefits. While
Plaintiff argues that she had been sober for "about two
years, from December 2012 through October 2014 with one
relapse in July 2013 and perhaps a second relapse in
October 2013," she has not shown that she was sober and
still suffering from mental health limitations during the
period of September 22 and September 30, 2012. See
Plf.'s Br. at 6 (emphasis added). Moreover, Plaintiff
argues that the ALJ lacked substantial evidence to conclude
that Plaintiffs impairments improved during periods of
sobriety. However, Plaintiffs own attempt to clarify when she
was sober and when she perhaps relapsed is unclear.
Therefore, for both Title II and Title XVI purposes, further
proceedings are needed to clarify when Plaintiff was sober in
order to determine whether her drug and alcohol use was a
contributing factor material to a finding of disability.
further proceedings are needed to reevaluate the medical
opinion evidence in light of a DAA evaluation, including the
opinions of Alison Prescott, Ph.D. and John Nance, Ph.D. In
discounting Dr. Prescott's opinion, the ALJ indicated
that Plaintiffs substance abuse "played a larger role in
her difficulties with functioning than indicated by Dr.
Prescott." Tr. 21-22. In discounting Dr. Nance's
medical opinion, the ALJ reasoned that Dr. Nance did not have
sufficient information to form an opinion because he did not
have an opportunity to review an exhibit that documented
improvement in functioning in the presence of sobriety. Tr.
21. The ALJ was required to conduct a DAA analysis under SSR
13-2p in order to reject these medical opinions on the basis
of substance abuse.
also argues that the ALJ should have found she met Listings
12.04 and 12.08 based on Dr. Nance's expert testimony,
and that the ALJ should not have ignored the low GAF scores
assessed by multiple providers. These arguments are
predicated upon the ALJ's analysis of the medical
evidence. Because the Court finds that a ...