IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
September 30, 2010
BEVERLY LAWS, PLAINTIFF,
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.
Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying applications for Disability Income Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act ("Act"), respectively. For the reasons discussed below, the court will remand this matter under sentence six of 42 U.S.C. § 405(g).
I. Factual and Procedural Background
In a decision dated May 21, 2008, the ALJ determined plaintiff was not disabled.*fn1
The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review. The ALJ found plaintiff has severe impairments of depression, borderline intellectual functioning, and substance abusebut these impairments do not meet or medically equal a listed impairment; plaintiff has the residual functional capacity to perform a full range of work at all exertional levels but with the non-exertional limitations that plaintiff must take numerous unscheduled rest breaks and cannot handle work stress, relate to co-workers, interact with supervisors and deal with the public; plaintiff cannot perform her past relevant work; considering plaintiff's age, education, work experience and residual functional capacity, based on all the impairments, including the substance abuse disorder, there are no jobs that exist in significant numbers in the national economy that plaintiff can perform; if plaintiff stopped the substance abuse, plaintiff would continue to have severe impairments; if plaintiff stopped the substance abuse, plaintiff would have the residual functional capacity to perform a full range of work at all exertional levels but with the non-exertional limitations that plaintiff could perform simple, repetitive tasks only and have contact with the public occasionally; if plaintiff stopped the substance abuse, based on the testimony of the vocational expert, there are a significant number of jobs that plaintiff can perform; because plaintiff would not be disabled if she stopped the substance abuse, plaintiff's substance abuse disorder is a contributing factor material to the determination of disability; and plaintiff is not disabled within the meaning of the Social Security Act at any time from the alleged onset date through the date of the ALJ's decision. Administrative Transcript ("AT") 14-19. Plaintiff contends the ALJ improperly disregarded functional limitations assessed by consulting examining psychiatrists, erred in finding that substance abuse was a contributing factor material to plaintiff's disability, improperly discredited plaintiff's testimony and that of laywitnesses, and relied on incomplete hypotheticals posed to the vocational expert and vocational testimony that conflicted with the Dictionary of Occupational Titles.
II. Standard of Review
The court reviews the Commissioner's decision to determine whether (1) it is based on proper legal standards under 42 U.S.C. § 405(g), and (2) substantial evidence in the record as a whole supports it. Copeland v. Bowen, 861 F.2d 536, 538 (9th Cir. 1988) (citing Desrosiers v. Secretary of Health and Human Services, 846 F.2d 573, 575-76 (9th Cir. 1988)). Substantial evidence means more than a mere scintilla of evidence, but less than a preponderance. Saelee v. Chater, 94 F.3d 520, 521 (9th Cir. 1996) (citing Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975)). "It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 402, 91 S.Ct. 1420 (1971) (quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229, 59 S.Ct. 206 (1938)). The record as a whole must be considered, Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986), and both the evidence that supports and the evidence that detracts from the ALJ's conclusion weighed. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The court may not affirm the ALJ's decision simply by isolating a specific quantum of supporting evidence. Id.; see also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative findings, or if there is conflicting evidence supporting a finding of either disability or non-disability, the finding of the ALJ is conclusive, see Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987), and may be set aside only if an improper legal standard was applied in weighing the evidence, see Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988).
The ALJ found that when all of plaintiff's impairments, including the substance abuse disorders, were considered, plaintiff is disabled. AT 17. However, a finding of "disabled" under the five-step inquiry does not automatically qualify a claimant for disability benefits. Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001). Under 42 U.S.C. § 423(d)(2)(C), a claimant cannot receive disability benefits "if alcoholism or drug addiction would ... be a contributing factor material to the determination that the individual is disabled." The purpose of the statute is "to discourage alcohol and drug abuse, or at least not to encourage it with a permanent government subsidy." Ball v. Massanari, 254 F.3d 817, 824 (9th Cir. 2001). Under the implementing regulations, the ALJ must conduct a drug abuse and alcoholism analysis ("DAA Analysis") by determining which of the claimant's disabling limitations would remain if the claimant stopped using drugs or alcohol. 20 C.F.R. § 404.1535(b). If the remaining limitations would still be disabling, then the claimant's drug addiction or alcoholism is not a contributing factor material to his or her disability. If the remaining limitations would not be disabling, then the claimant's substance abuse is material and benefits must be denied. Id. Plaintiff bears the burden of proving that drug or alcohol addiction is not a contributing factor material to the finding of disability. Parra v. Astrue, 481 F.3d 742, 748 (9th Cir. 2007).
As is required under the regulations, after finding plaintiff disabled when substance abuse is considered, the ALJ then considered whether plaintiff would be disabled absent the substance abuse. AT 17-19. As part of this evaluation, the ALJ considered the January 2008 report of a consultative psychiatrist, Les Kalman, M.D. AT 16. The ALJ concluded Dr. Kalman's functional assessment could be construed to cover the combined functional effects of plaintiff's mental impairments, including drug abuse. Id. The narrative report, however, is not in the administrative record, although it is referenced in the index of exhibits. See Court Transcript Index 11F, 14F; AT 255-259, 290-317.*fn2 Because the ALJ's interpretation of this report is seminal to the finding that plaintiff's substance abuse was a contributing factor material to plaintiff's disability, this court cannot conduct an appropriate review absent the report. The matter must therefore be remanded so the report can be incorporated into the administrative record.
Title 42 of the United States Code, section 405(g), governing judicial review in social security disability cases, authorizes two kinds of remand to the Commissioner. See Melkonyan v. Sullivan, 501 U.S. 89 (1991). First, sentence four (a "sentence four remand"), permits remand incident to affirmance, modification, or reversal of an agency decision. Remand on substantive grounds error is based on sentence four. Second, sentence six (a "sentence six remand"), permits remand to allow the agency to take some further action, or to consider new evidence not presented previously.*fn3 Under sentence six, the court retains jurisdiction until the Commissioner files the postremand results. See Shalala v. Schaefer, 509 U.S. 292, 298-99 (1993).
In this case, the court cannot properly review the ALJ's decision without the narrative report of Dr. Kalman. A remand under sentence six so that the Commissioner can locate the report and incorporate it into the record will cure this deficiency.
Accordingly, IT IS HEREBY ORDERED that this matter is remanded under sentence six of 42 U.S.C. § 405(g) for inclusion of the January 2008 narrative report of Les Kalman, M.D. in the evidentiary record.