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Sklaver v. Berryhill

United States District Court, C.D. California, Southern Division

February 28, 2018

MICHAEL A. SKLAVER, Plaintiff,
v.
NANCY BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.

          MEMORANDUM OPINION AND ORDER

          PAUL L ABRAMS UNITED STATES MAGISTRATE JUDGE

         I. PROCEEDINGS

         Plaintiff filed this action on March 9, 2017, seeking review of the Commissioner's denial of his applications for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) payments. The parties filed Consents to proceed before a Magistrate Judge on March 13, 2017, and April 13, 2017. Pursuant to the Court's Order, the parties filed a Joint Submission (alternatively “JS”) on October 16, 2017, that addresses their positions concerning the disputed issues in the case. The Court has taken the Joint Submission under submission without oral argument.

         II. BACKGROUND

         Plaintiff was born on September 24, 1981. [Administrative Record (“AR”) at 37, 570, 576.] He has past relevant work experience as a stock clerk. [AR at 36, 103-04.]

         On June 21, 2010, plaintiff filed an application for SSI payments, alleging that he has been unable to work since May 30, 2004. [AR at 21, 570.] After that application was denied, on May 9, 2011, plaintiff filed an application for DIB, alleging the same disability onset date of May 30, 2004. [AR at 21, 576.] On June 9, 2012, a hearing was held before an Administrative Law Judge (“ALJ”), and supplemental hearings were held on November 29, 2012, and April 2, 2013. [AR at 177-278.] The ALJ issued a decision on May 17, 2013, denying plaintiff's claims. [AR at 21, 284-95.] On November 26, 2013, the Appeals Council vacated that decision and remanded the case with instructions for further proceedings. [AR at 21, 303-05.]

         A hearing before a different ALJ was held on May 6, 2014, but was continued because the medical expert did not have the opportunity to review a large volume of new medical records submitted by plaintiff shortly before the hearing. [AR at 21, 127-76.] Before the continuance, however, plaintiff amended his alleged onset date to August 31, 2003. [AR at 21, 129-30.] A hearing before a different ALJ was then held on January 7, 2015, at which time plaintiff appeared represented by an attorney, and testified on his own behalf. [AR at 21, 47-126.] A medical expert (“ME”), a vocational expert (“VE”), and plaintiff's father also testified. [AR at 59-100, 102-08, 109-18.] On March 30, 2015, the ALJ issued a decision concluding that plaintiff was not under a disability from August 31, 2003, the alleged onset date, through March 30, 2015, the date of the decision. [AR at 21-38.] Plaintiff requested review of the ALJ's decision by the Appeals Council. [AR at 16-17.] When the Appeals Council denied plaintiff's request for review on January 12, 2017 [AR at 1-5], the ALJ's decision became the final decision of the Commissioner. See Sam v. Astrue, 550 F.3d 808, 810 (9th Cir. 2008) (per curiam) (citations omitted). This action followed.

         III. STANDARD OF REVIEW

         Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the Commissioner's decision to deny benefits. The decision will be disturbed only if it is not supported by substantial evidence or if it is based upon the application of improper legal standards. Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010) (citation omitted).

         “Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) (citation omitted). “Where evidence is susceptible to more than one rational interpretation, the ALJ's decision should be upheld.” Id. (internal quotation marks and citation omitted). However, the Court “must consider the entire record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion, and may not affirm simply by isolating a specific quantum of supporting evidence.” Id. (quoting Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) (internal quotation marks omitted)). The Court will “review only the reasons provided by the ALJ in the disability determination and may not affirm the ALJ on a ground upon which he did not rely.” Id. (internal quotation marks and citation omitted); see also SEC v. Chenery Corp., 318 U.S. 80, 87, 63 S.Ct. 454, 87 L.Ed. 626 (1943) (“The grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based.”).

         IV. THE EVALUATION OF DISABILITY

         Persons are “disabled” for purposes of receiving Social Security benefits if they are unable to engage in any substantial gainful activity owing to a physical or mental impairment that is expected to result in death or which has lasted or is expected to last for a continuous period of at least twelve months. Garcia v. Comm'r of Soc. Sec., 768 F.3d 925, 930 (9th Cir. 2014) (quoting 42 U.S.C. § 423(d)(1)(A)).

         A. THE FIVE-STEP EVALUATION PROCESS

         The Commissioner (or ALJ) follows a five-step sequential evaluation process in assessing whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995), as amended April 9, 1996. In the first step, the Commissioner must determine whether the claimant is currently engaged in substantial gainful activity; if so, the claimant is not disabled and the claim is denied. Id. If the claimant is not currently engaged in substantial gainful activity, the second step requires the Commissioner to determine whether the claimant has a “severe” impairment or combination of impairments significantly limiting his ability to do basic work activities; if not, a finding of nondisability is made and the claim is denied. Id. If the claimant has a “severe” impairment or combination of impairments, the third step requires the Commissioner to determine whether the impairment or combination of impairments meets or equals an impairment in the Listing of Impairments (“Listing”) set forth at 20 C.F.R. § 404, subpart P, appendix 1; if so, disability is conclusively presumed and benefits are awarded. Id. If the claimant's impairment or combination of impairments does not meet or equal an impairment in the Listing, the fourth step requires the Commissioner to determine whether the claimant has sufficient “residual functional capacity” to perform his past work; if so, the claimant is not disabled and the claim is denied. Id. The claimant has the burden of proving that he is unable to perform past relevant work. Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). If the claimant meets this burden, a prima facie case of disability is established. Id. The Commissioner then bears the burden of establishing that the claimant is not disabled, because he can perform other substantial gainful work available in the national economy. Id. The determination of this issue comprises the fifth and final step in the sequential analysis. 20 C.F.R. §§ 404.1520, 416.920; Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257.

         B. THE ALJ'S APPLICATION OF THE FIVE-STEP PROCESS

         At step one, the ALJ found that plaintiff had engaged in substantial gainful activity during the period of September 2014 to the date of the decision, March 30, 2015, [1] but that there had been a continuous 12-month period during which plaintiff did not engage in substantial gainful activity. [AR at 24.] At step two, the ALJ concluded the following:

• From August 31, 2003, the alleged onset date, through October 15, 2013, plaintiff had the severe impairments of schizoaffective disorder with history of bipolar disorder, as well as polysubstance abuse, and that during that time period, plaintiff's impairments, including the substance abuse disorders, “met sections 12.09 [polysubstance abuse, intermittent] with 12.03 [schizophrenia spectrum and other psychotic disorders][2] and 12.04 [bipolar disorder] ¶ 20 CFR Part 404, Subpart P, Appendix 1.” [AR at 25.] She also determined that if plaintiff stopped his substance use during this time period, the remaining limitations would cause more than a minimal impact on plaintiff's ability to perform basic work activities, and plaintiff would continue to have a severe impairment or combination of impairments, but the impairment or combination of impairments would not meet or medically equal a Listing [AR at 27]; thus, she concluded, plaintiff's substance use “is a material factor to [plaintiff's] mental status, ” because when he “is using drugs, he is completely nonfunctional, ” and when he is medication compliant and drug-free, he does not meet or functionally equal any of the requirements of the Listings [AR at 27, 29]; and
• Beginning on October 16, 2013, plaintiff had the severe impairments of schizoaffective disorder and anxiety disorder. The ALJ found that plaintiff's substance abuse was in remission since that date, “and is not material to the determination of disability since that date.” [AR at 27.]. At step three, the ALJ further determined that during this time period plaintiff did not have an impairment or a combination of impairments that meets or medically equals any of the impairments in the Listing. [AR at 26-27.]

         The ALJ further found that plaintiff retained the residual functional capacity (“RFC”)[3] to perform a full range of work at all exertional levels, as follows:

From August 31, 2003 through October 15, 2013, if [plaintiff] stopped the substance use, [he] would have the [RFC] to perform a full range of work at all exertional levels but with the following nonexertional limitations: capable of moderately complex tasks, meaning SVP [specific vocational preparation] ¶ 3-4 in an object-oriented work setting; unable to perform work involving hazardous machinery or be responsible for the safety of others. Beginning October 16, 2013, [plaintiff] has the [RFC] to perform a full range of work at all exertional levels but with the following nonexertional limitations: can understand and remember simple routine tasks; carry out short and simple instructions; make judgments and decisions consistent with simple routine duties; unable to perform work with high production quotas or rapid assembly line work; could not be responsible for the safety of others; and could not perform work around hazardous machinery.

[AR at 28.] At step four, based on plaintiff's RFC and the testimony of the VE, the ALJ concluded that from August 31, 2003, through October 15, 2013, if plaintiff stopped the substance use, he would be able to perform his past relevant work as a stock clerk. [AR at 36.] Beginning October 16, 2013, however, the ALJ found that plaintiff was unable to perform his past relevant work. [AR at 37.] At step five, based on plaintiff's RFC, vocational factors, and the VE's testimony, the ALJ found that beginning October 16, 2013, there are jobs existing in significant numbers in the national economy that plaintiff can perform, including work as a “hospital cleaner” (Dictionary of Occupational Titles (“DOT”) No. 323.687-010), “cleaner” (DOT No. 323.687-014), and “linen room attendant” (DOT No. 222.387-030). [AR at 31, 76-79.] Accordingly, the ALJ determined that plaintiff was not disabled at any time from the alleged onset date of August 31, 2003, through March 30, 2015, the date of the decision. [AR at 38.]

         V. THE ALJ'S DECISION

         Plaintiff contends that the ALJ erred when she: (1) considered the opinions of plaintiff's treating providers Dr. Eric Speare, Dr. Rebecca Hedrick, Dr. Amado, and Dr. L.O. Mallare; (2) failed to adequately consider the materiality concerning substance use and the ruling addressing substance use; (3) rejected plaintiff's subjective symptom testimony; and (4) failed to properly consider lay witness statements. [JS at 4.] As set forth below, the Court agrees with plaintiff, in part, and remands for further proceedings.

         A. MATERIALITY OF SUBSTANCE USE

         Under the Social Security Act, “[a]n individual shall not be considered disabled . . . if alcoholism or drug addiction would . . . be a contributing factor material to the Commissioner's determination that the individual is disabled.” 42 U.S.C. § 423(d)(2)(C). “The key factor in determining whether drug addiction or alcoholism is a contributing factor material to the determination of disability is whether an individual would still be found disabled if [he or she] stopped using alcohol or drugs.” Sousa v. Callahan, 143 F.3d 1240, 1245 (9th Cir.1998) (internal quotation marks and ellipsis omitted); see 20 C.F.R. §§ 404.1535, 416.935 (explaining how the Commissioner determines whether drug addiction or alcoholism is a contributing factor); see also Social Security Ruling (“SSR”)[4] 13-2p (explaining how the Commissioner evaluates cases involving drug addiction and alcoholism).

         The ALJ must first conduct the sequential five-step inquiry used to evaluate disability “without separating out the impact of alcoholism or drug addiction. If the ALJ finds that the claimant is not disabled under the five-step inquiry, then the claimant is not entitled to benefits and there is no need to proceed with the analysis under 20 C.F.R. §§ 404.1535 or 416.935.” Bustamante v. Massanari, 262 F.3d 949, 955 (9th Cir. 2001); see 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); SSR 13-2p. If, however, “the ALJ finds that the claimant is disabled and there is medical evidence of his or her drug addiction or alcoholism, then the ALJ should proceed under §§ 404.1535 or 416.935 to determine if” drug or alcohol use is a contributing factor material to the disability determination. Bustamante, 262 F.3d at 955 (internal quotation marks and brackets omitted); see 20 C .F.R. §§ 404.1535, 416.935; SSR 13-2p.

         A two-step analysis is required to determine whether drug addiction or alcoholism is a material contributing factor. First, the ALJ must determine which of the claimant's disabling limitations would remain if the claimant stopped using drugs or alcohol. Second, the ALJ must determine whether the remaining limitations would still be disabling. If so, then the claimant's drug addiction or alcoholism is not a material factor to the determination of disability. 20 C.F.R. §§ 404.1535(b)(2), 416.935(b)(2); Parra v. Astrue, 481 F.3d 742, 747 (9th Cir. 2007). The claimant bears the burden of proving that drug addiction and alcoholism are not contributing factors material to his or her disability, in that he or she would remain disabled if the drug and alcohol use ceased. Parra, 481 F.3d at 748.

         Here, the ALJ accepted the ME's opinion that drug and alcohol use was “a material factor contributing to [plaintiff's] mental problems through September 2013, ” and found that from August 31, 2003, through October 15, 2013, if plaintiff stopped the substance use, “the remaining limitations would cause more than a minimal impact on [his] ability to perform basic work activities; therefore [he] would continue to have a severe impairment or combination of impairments.” [AR at 27.] Additionally, she determined that if plaintiff stopped the substance use, “the severe impairment or combination of impairments would not meet or medically equal any of the ...


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