Rinard v. Commissioner Social Security Administration
Filing
20
OPINION AND ORDER: Pursuant to 42 U.S.C. § 405(g), sentence 4, this case is REVERSED and REMANDED for further administrative proceedings. (See 17 page opinion for more information) Signed on 12/12/17 by Magistrate Judge Patricia Sullivan. (dsg)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
EMILY RINARD,
Case No. 3:16-cv-02218-SU
Plaintiff,
OPINION
AND ORDER
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.
_________________________________________
SULLIVAN, United States Magistrate Judge:
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.
Page 1 – OPINION AND ORDER
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.
PROCEDURAL BACKGROUND
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
FACTUAL BACKGROUND
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
1
Citations “Tr.” refer to indicated pages in the official transcript of the Administrative Record
filed with the Commissioner’s Answer. (Docket Nos. 14, 15).
2
The parties have consented to the jurisdiction of the Magistrate Judge pursuant to 28 U.S.C.
§ 636. (Docket No. 4).
Page 2 – OPINION AND ORDER
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.
LEGAL STANDARDS
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
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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.”
§§ 404.1520(c), 416.920(c).
Yuckert, 482 U.S. at 140-41; 20 C.F.R.
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
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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).
Page 5 – OPINION AND ORDER
THE ALJ’S DECISION
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.
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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 material of the determination of disability” because she would not
be disabled but for substance use. Id. Because substance use was a contributing material factor,
the ALJ found plaintiff not disabled under the Act and not entitled to benefits. Tr. 36-37.
ANALYSIS
Plaintiff argues that the ALJ in three regards: (1) improperly discounting the opinions of
treating medical providers; (2) failing to address a behavioral health capacities evaluation; and
(3) improperly conducting the DAA analysis. The Court finds that the ALJ erred in each regard.
II.
Treating Medical Provider Opinions
Plaintiff argues that the ALJ erred in giving the opinions of treating counselor Aspen
Sartoris, M.A., QMHP, LPC, and treating physician Barbara Esselink, M.D., “little weight.”
The weight given to the opinion of a physician depends on whether the physician is a
treating, examining, or nonexamining physician. Holohan v. Massanari, 246 F.3d 1195, 1202
(9th Cir. 2001) (citing 20 C.F.R. § 404.1527). If a treating or examining physician’s opinion is
not contradicted by another physician, the ALJ may only reject it for clear and convincing
reasons. Id. (treating physician); Widmark v. Barnhart, 454 F.3d 1063, 1067 (9th Cir. 2006)
(examining physician). Even if it is contradicted by another physician, the ALJ may not reject
the opinion without providing specific and legitimate reasons supported by substantial evidence
in the record. Orn, 495 F.3d at 632; Widmark, 454 F.3d at 1066. “An ALJ can satisfy the
‘substantial evidence’ requirement by setting out a detailed and thorough summary of the facts
and conflicting clinical evidence, stating his interpretation thereof, and making findings.”
Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (quotation omitted).
Page 7 – OPINION AND ORDER
1.
Treating Counselor Sartoris
Sartoris was plaintiff’s counselor at Cascadia Behavioral Health, where plaintiff received
outpatient treatment for meth and alcohol abuse. Tr. 650-51, 916-19. Sartoris began treating
plaintiff in August 2013, and provided a medical source statement in April 2015. Tr. 916-19.3
Plaintiff contends that the ALJ gave Sartoris’ opinions little weight because she is not an
acceptable medical source, never treated plaintiff while plaintiff was sober, and did not
distinguish plaintiff’s functioning without substance use, and because her opinions contained
certain inconsistencies. Pl. Opening Br., at 5 (Docket No. 16); Tr. 35.
A counselor or therapist is not an “acceptable medical source,” but is an “other source”
who can provide evidence about the severity of a claimant’s impairments and how they affect her
ability to work. 20 C.F.R. § 404.1513; Haagenson v. Colvin, 656 F. App’x 800, 802 (9th Cir.
2016). “Opinions from these [‘other’] medical sources . . . are important and should be evaluated
on key issues such as impairment severity and functional effects . . . .” SSR 06-03p, 2006 WL
2329939, at *3 (Aug. 9, 2006). Factors the ALJ should consider when determining the weight to
give an opinion from these “important” sources include the length of time the source has known
the claimant, the number of times and frequency that the source has seen the claimant, the
consistency of the source’s opinion with other evidence in the record, the relevance of the
source’s opinion, the quality of the source’s explanation of that opinion, and the source’s training
and expertise. Id., at *4. “The ALJ may discount testimony from these ‘other sources’ if the
ALJ gives reasons germane to each witness for doing so.” Molina v. Astrue, 674 F.3d 1104,
1111 (9th Cir. 2012) (quotation omitted).
3
The ALJ claimed that Sartoris failed to treat plaintiff between November 2013 and December
2014, Tr. 34, but this seems inaccurate, as Sartoris completed an individual service plan, and
apparently saw plaintiff, on June 27 and/or July 23, 2014, Tr. 803-05.
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The ALJ has not provided competent, germane reasons to discount Sartoris’ opinions.
The ALJ writes that Sartoris “has never treated the claimant when she was not using
amphetamines and she did not distinguish functioning without amphetamines.” Tr. 35. Sartoris
began treating plaintiff in August 2013. Tr. 916. Plaintiff had been prescribed amphetamine
medication (Adderall, or amphetamine and dextroamphetamine, and Dexedrine, or
dextroamphetamine) since 2011 for ADHD. Tr. 327, 833, 839, 905, 911. Plaintiff’s urinalysis
results understandably indicate positive results for “amphetamines.” See Tr. 732-40. It was
error for the ALJ to refer to plaintiff’s use of “amphetamines” without acknowledging
prescription use. The ALJ thus erred when finding that Sartoris did not treat plaintiff while she
was not using drugs.
Plaintiff’s last relapse on meth evidenced in the record was February 28, 2013. Tr. 810.
Thereafter, the evidence is only of sobriety. Tr. 53, 760-63, 764-72. See Young v. Comm’r, 214
F. Supp. 3d 987, 996 (D. Or. 2016) (holding that the ALJ erred in failing to credit medical
opinion rendered during period of sobriety). The ALJ was also incorrect in saying that Sartoris
did not distinguish plaintiff’s functioning while sober. The form on which Sartoris provided her
opinions contained the proviso, “Social Security requires an analysis of functioning independent
of any on-going drug or alcohol abuse.” Tr. 917. It repeated on the next page, “Again, please
assume Ms. Rinard is clean and sober from all illicit drugs and/or alcohol.” Tr. 918.
The ALJ stated that there are inconsistencies in Sartoris’ opinion, but identifies only one,
regarding her evaluation of plaintiff’s social or interpersonal functioning. Tr. 35. There is no
inconsistency. The moderate limitations in social functioning Sartoris assessed pertained to
plaintiff’s relationship with her ex-partner and her interpersonal relationships, see, e.g., Tr. 76768, 771, 804, 927, 929, and which are different from interaction with the general public (where
Page 9 – OPINION AND ORDER
Sartoris noted no significant limitation), and in turn different from responding to instructions and
criticism, and getting along with coworkers, which are specific to the work context, Tr. 918. It
was error to treat these areas all together and overlook their distinctions. See Dennis v. Colvin,
No. 06:14-cv-00822-HZ, 2015 WL 3867506, at *7 (D. Or. June 20, 2015) (distinguishing
functional limitations on interaction with general public from interaction with coworkers and
interaction with supervisors).
The ALJ did not give legitimate reasons to discount Sartoris’ opinions. On remand, the
ALJ must reevaluate Sartoris’ opinions in accord with the above.
2.
Treating Physician Dr. Esselink
Plaintiff began seeing Barbara Esselink, M.D., her primary care physician, on March 3,
2010. Tr. 872-76. Dr. Esselink provided a medical source statement on May 28, 2015, although
the last appointment plaintiff had with Dr. Esselink reflected in the record was February 27,
2013. Tr. 910-13, 920-21. The ALJ faulted Dr. Esselink’s opinions because the questionnaire
“asked that Dr. Esselink indicate whether she agreed with the assessment provided by Ms.
Sartoris, which appeared to be in an effort to turn Ms. Sartoris’ opinion into an opinion from an
acceptable medical source.” Tr. 35. The ALJ thus gave Dr. Esselink’s opinions little weight “for
the same reasons cited above,” and because there had been a two year appointment gap. Id.
These are not valid reasons to discount Dr. Esselink’s opinions. Because Dr. Esselink
was a treating physician, and the ALJ has identified no contradictory opinion, the ALJ was
required to provide clear and convincing reasons to reject her opinions, Holohan, 246 F.3d at
1202, which the ALJ did not do. Treating physician opinions are entitled to controlling weight,
absent a finding that they are not well-supported by the record or are inconsistent with
substantial evidence. Orn, 495 F.3d at 631. Although Dr. Esselink last treated plaintiff in
Page 10 – OPINION AND ORDER
February 2013, she had treated plaintiff for nearly three years by that point, and the record
reflects at least fourteen appointments.4 This constitutes a considerable treating relationship.
See Watts v. Astrue, No. 3:10-cv-822-MA, 2011 WL 3159840, at *8 (D. Or. July 25, 2011)
(holding that two-year doctor-patient relationship, despite occasional missed appointments,
“reflect[ed]” that treating physician “was familiar with plaintiff’s medical and psychological
impairments”).
There is nothing inappropriate with Dr. Esselink reviewing Sartoris’ opinions and
explaining why she agreed with them. This is not a case of an attempt to transform an “other
source” into an acceptable medical source merely by appending a signature to a medical opinion.
Cf. Chapman v. Colvin, No. 3:13-cv-01299-HA, 2014 WL 4472699, at *5 (D. Or. Sept. 10,
2014); Doran v. Colvin, No. 6:14-cv-01669VJE, 2016 WL 4942001, at *7 (D. Or. Sept. 15,
2016). Dr. Esselink was asked to review Sartoris’ opinions, to mark whether she agreed with
specific limitations that Sartoris assessed, and to explain each area of limitation. Tr. 920-21.
The ALJ must thus consider the entirety of Dr. Esselink’s opinions as those of a treating
physician, and weight it accordingly. See Reddick v. Chater, 157 F.3d 715, 726 (9th Cir. 1998)
(“Our opinions reveal that the mere fact that a medical report is provided at the request of
counsel or, more broadly, the purpose for which an opinion is provided, is not a legitimate basis
for evaluating the reliability of the report.”).
Additionally, the ALJ’s reasons for discounting Sartoris’ opinions do not apply to Dr.
Esselink’s. There was no inconsistency in either opinion. By adopting Sartoris’ analysis, Dr.
Esselink did distinguish plaintiff’s functioning without meth. Also, Dr. Esselink’s time treating
4
See Tr. 872-76 (Mar. 3, 2010), 869-71 (July 7, 2010), 865-68 (Oct. 20, 2010), 860-64 (Mar. 17,
2011), 856-59 (April 1, 2011), 851-55 (April 20, 2011), 846-50 (May 12, 2011), 842-45 (July 7,
2011), 838-41 (Aug. 17, 2011), 833-36 (Sept. 21, 2011), 828-32 (Nov. 20, 2011), 900-03 (July
25, 2012), 904-07 (Aug. 17, 2012), 910-13 (Feb. 27, 2013).
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plaintiff did include periods of sobriety, such as the months near the end of plaintiff’s 2011
Cedar Hills treatment, see Tr. 414, 828-30, which period the ALJ relied on elsewhere in finding
that plaintiff’s functioning in certain areas improved during abstinence, Tr. 23. Dr. Esselink in
fact reported plaintiff’s substance abuse disorder as “in remission” at the time. Tr. 830; see also
Tr. 322, 323, 326, 328 (meth dependence in remission).
On remand, the ALJ must reevaluate Dr. Esselink’s opinions in accord with the above.
III.
Behavioral Health Capacities Evaluation
Plaintiff argues that the ALJ erred in failing to consider the August 2011 Behavioral
Health Capacities Evaluation completed by “C. Collette,” LCSW, CADC I. Tr. 311-13.
Collette provided a Mental Status Supplemental Questionnaire on August 4, 2011, as part
of plaintiff’s short-term disability claim. Tr. 311-13. Collette appears to have been plaintiff’s
Cedar Hills counselor. Tr. 309-13. She provided written answers to questions about plaintiff’s
limitations and functioning, and also completed a check-the-box page in which she assessed
plaintiff’s functioning in six areas as “moderately severe” and two as “severe.”5 Tr. 311.
Plaintiff argues, and defendant has not disputed, that when comparing the questionnaire’s fivepoint scale with the Commissioner’s, “moderately severe” limitations correspond to “marked”
limitations, and “severe” to “extreme.”
See 42 U.S.C. § 416.920a(c)(4).
This appears to
accurately reflect the qualitative descriptions of the impairment levels.6 The Collette assessment
5
Limitations assessed as “moderately severe”: ability to relate to other people, restriction of
daily activities, perform work requiring regular contact with others, independent judgment, and
supervise/manage others; as “severe”: constriction of interests and perform under stress. Tr. 311.
6
“Moderately severe” is “impairment significantly affects ability to function,” which would
correspond to the Commissioner’s “marked limitation” description of “functioning in this area
independently, appropriately, effectively, and on a sustained basis is seriously limited”; “severe”
is “extreme impairment of ability to function,” which would correspond to the Commissioner’s
“extreme.” 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.00(F)(2); Tr. 311.
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thus notes substantial limitations directly related to plaintiff’s ability to work (such as “severe”
limitation on “[a]bility to work relative to the attached job description,” Tr. 311).
Defendant concedes that the ALJ erred in failing to consider Collette’s opinions,7 but
argues this was harmless, because Collette’s opinions are “analogous” to Dr. Esselink’s and
Sartoris’, and because the reasons for discounting those opinions apply equally to Collette’s.
Def. Br., at 12 (Docket No. 17). These arguments lack merit. First, Collette assessed plaintiff in
areas where Dr. Esselink and Sartoris did not, such as “constriction of interests”
(“severe”/extreme), “makes independent judgment” (“moderately severe”/marked), “respond
appropriately to supervision” (“moderate”), and “supervise or manage others” (“moderately
severe”/marked), and so the opinions are not identical or duplicative. Tr. 311. Second, the
ALJ’s reasons for discounting Dr. Esselink’s and Sartoris’ opinions were erroneous, as discussed
above. By not acknowledging that this questionnaire came from a distinct medical provider, the
ALJ erroneously ignored a medical opinion in the record. Defendant cannot excuse as harmless
the admitted error of failing to consider Collette’s opinions. See Marsh v. Colvin, 792 F.3d
1170, 1173 (9th Cir. 2015). On remand, the ALJ must explicitly consider Collette’s opinions.
7
In fact, although both parties overlook this, the ALJ did refer to August 4, 2011 therapist notes,
which may be the Collette opinion: “In the beginning [of Cedar Hills outpatient], the therapist
noted severe limitations in most categories. However, by August 4, 2011, the responses were
much improved. The claimant indicated that she was better and had been able to sustain periods
of abstinence from meth . . . .” Tr. 28. If this is a discussion of the Collette questionnaire, it
emphasizes why the ALJ must explicitly discuss this evidence, because despite this report
apparently having been rendered during a period of abstinence from meth, Collette assessed
“moderately severe” (marked) limitations in six areas of functioning, and “severe” (extreme)
limitations in two, which amount to half the areas assessed. Tr. 311. Further, despite the ALJ’s
characterization of this assessment as showing plaintiff “much improved,” Tr. 28, the
assessment, in both the check-the-box sections and prose analyses, shows substantial
impairment.
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IV.
Drug Addiction and Alcoholism Analysis
In determining plaintiff’s RFC during the first five-step sequential process, which
considered all plaintiff’s impairments including substance use, the ALJ found that plaintiff
“would have marked limitation in her ability to complete a normal workday and workweek
without interruption from psychological based symptoms and to perform at a consistent pace
without unreasonable number and length of rest periods.” Tr. 21. The VE testified that someone
with these marked restrictions (in addition to a limitation to simple entry level work with no
transactional public interaction) would be unable to maintain employment. Tr. 61-63. The ALJ
found that there were no jobs existing in significant numbers in the national economy that
someone thus impaired could perform. Tr. 22-23.
During the DAA analysis, i.e., the second five-step sequential process that assumed no
substance use, the ALJ assessed plaintiff’s RFC as again limited to simple entry level work with
no transactional public interaction. Tr. 24. The only difference from the first RFC is that the
ALJ did not assess marked limitations in completing a workday/workweek without interruption
from psychological symptoms, or in performing consistently without unreasonable breaks.
As part of the DAA analysis, the ALJ must determine which of a claimant’s disabling
limitations would remain without substance use. 20 C.F.R. § 404.1535(b). The ALJ provided no
explanation for why the key limitations from the first RFC, the marked restrictions in completing
a workday without interruptions and performing consistently without breaks, would be alleviated
by ceasing substance use. These were the critical limitations in foreclosing plaintiff from
employment according to the VE, and were the only difference between the two RFCs, and thus
were determinative of disability. Although the ALJ conducted a longitudinal review of the
medical record, he never mentioned these limitations during the DAA analysis, nor tied any of
Page 14 – OPINION AND ORDER
the evidence to these limitations. It thus was error for the ALJ to find these limitations absent
from the second RFC without explanation. See Mustoe v. Colvin, No. 3:14-cv-00857-AC, 2015
WL 9487990, at *5 (D. Or. Nov. 9, 2015) (holding that ALJ erred in omitting limitations from
second RFC analysis without substantial evidence), report and recommendation adopted, 2015
WL 9462090 (Dec. 28, 2015).
Defendant’s arguments as to why this omission is not reversible error are unavailing.
Defendant points to a July 2012 appointment with Dr. Esselink after entering inpatient treatment,
where plaintiff presented as calm with normal mood and affect, and Dr. Esselink commented,
“This is the best I’ve seen her, really.” Def. Br., at 17 (quoting Tr. 906) (Docket No. 17).
Defendant mentions another appointment four months later, in November 2012, where plaintiff
said, “I’ve never felt so normal.” Id. (quoting Tr. 404). Defendant then notes that plaintiff
relapsed in February 2013. Id. (citing Tr. 754). These observations fail to address plaintiff’s
argument that the ALJ erred in concluding without analysis or evidence that she would not have
the decisive areas of marked limitation absent substance use.
They are neither pertinent
arguments nor meaningful evidence. (They also undermine the argument that Dr. Esselink never
observed plaintiff while sober.)
See Burden v. Colvin, No. 6:14-cv-00499-HZ, 2015 WL
4772895, at *10 (D. Or. Aug. 12, 2015) (“[Plaintiff’s] ‘improvement’ while undergoing intensive
therapy does not indicate that she is able to sustain competitive employment.”).
It was error for the ALJ to assume, without explanation, that plaintiff, without substance
use, would have no marked limitations in completing a workday/workweek without interruption
or in working at a consistent pace without breaks. The DAA analysis was also based on the
erroneous discounting of Sartoris’ and Dr. Esselink’s opinions, and omission of Collette’s. See
Baker v. Astrue, No. CIV. 07-6332TC, 2009 WL 902349, at *4 (D. Or. Mar. 31, 2009) (“[T]he
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ALJ shall then reevaluate all medical evidence and perform a new DAA Analysis and a new five
step disability evaluation.”) The ALJ must thus redo the DAA analysis, and in doing so assume
that the marked limitations would persist, or justify excluding them from the second RFC, and
also consider these medical opinions, or provide legitimate reasons to discount them.
V.
Remedy
It lies within the district court’s discretion whether to remand for further proceedings or
to order an immediate award of benefits. Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000).
“Remand for further administrative proceedings is appropriate if enhancement of the record
would be useful.
Conversely, where the record has been developed fully and further
administrative proceedings would serve no useful purpose, the district court should remand for
an immediate award of benefits.” Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004)
(citation and italics omitted). This “credit-as-true” rule has three steps: first, the court “ask[s]
whether the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether
claimant testimony or medical opinion”; second, if the ALJ has erred, the court “determine[s]
whether the record has been fully developed, whether there are outstanding issues that must be
resolved before a determination of disability can be made, and whether further administrative
proceedings would be useful”; and third, if the court “conclude[s] that no outstanding issues
remain and further proceedings would not be useful,” it may “find[] the relevant testimony
credible as a matter of law . . . and then determine whether the record, taken as a whole, leaves
not the slightest uncertainty as to the outcome of the proceeding.” Treichler v. Comm’r, 775
F.3d 1090, 1100-01 (9th Cir. 2014) (quotations, citations, and alterations omitted). The court
may then “remand to an ALJ with instructions to calculate and award benefits.” Garrison, 759
F.3d at 1020. If, “even though all conditions of the credit-as-true rule are satisfied, an evaluation
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of the record as a whole creates serious doubt that a claimant is, in fact, disabled,” the court
should remand for further proceedings. Garrison, 759 F.3d at 1021.
At the first step in the credit-as-true analysis, the Court finds that the ALJ erred in
considering the opinions of Dr. Esselink, and counselors Sartoris and Colette, and in conducting
the DAA analysis. At the second step, however, the Court finds that outstanding issues remain,
and that further administrative proceedings would be useful, specifically, on how much weight to
assign these medical opinions, and on which limitations would remain if plaintiff ceased
substance use, under the DAA analysis. Immediate award of benefits is not justified.
CONCLUSION
Pursuant to 42 U.S.C. § 405(g), sentence 4, this case is REVERSED and REMANDED
for further administrative proceedings consistent with this Opinion and Order.
IT IS SO ORDERED.
DATED this 12th day of December, 2017.
/s/ Patricia Sullivan
PATRICIA SULLIVAN
United States Magistrate Judge
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