Robinson v. Colvin

Filing 19

ORDER re 3 Complaint - by Judge J Richard Creatura. The Court ORDERS that this matter be REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) to the Acting Commissioner for further consideration consistent with this order. (SH)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

8
9
10

DENNIS J. ROBINSON,

11
12
13
14

Plaintiff,

CASE NO. 3:16-cv-06002 JRC
ORDER ON PLAINTIFF’S
COMPLAINT

v.
NANCY A. BERRYHILL, Acting
Commissioner of the Social Security
Administration,

15

Defendant.
16
17

This Court has jurisdiction pursuant to 28 U.S.C. § 636(c), Fed. R. Civ. P. 73 and
18
19
20
21
22
23

Local Magistrate Judge Rule MJR 13 (see also Notice of Initial Assignment to a U.S.
Magistrate Judge and Consent Form, Dkt. 5; Consent to Proceed Before a United States
Magistrate Judge, Dkt. 6). This matter has been fully briefed. See Dkt. 13, 17, 18.
The ALJ found that plaintiff is disabled when his substance use disorders are
considered. AR. 20. However, the ALJ also found that plaintiff “would not be disabled if

24

ORDER ON PLAINTIFF’S COMPLAINT - 1

1

he stopped the substance use,” and hence, plaintiff is not “disabled within the meaning of

2

the Social Security Act.” AR. 26.

3
4
5

The Social Security Act prohibits the award of disability benefits when drug
addiction and/or alcoholism is a contributing factor material to the determination of
disability. See 42 U.S.C. §§ 423 (d)(2)(C), 1382c(a)(3)(J); Sousa v. Callahan, 143 F.3d

6

1240, 1245 (9th Cir. 1998).
7

After considering and reviewing the record, although the ALJ used the correct
8
9
10

standard when reviewing plaintiff’s claimed disability, the ALJ erred by failing to discuss
the significant, probative evidence provided by a reviewing doctor. The reviewing doctor,

11

Dr. Phyllis N. Sanchez, Ph.D., issued opinions directly relevant to the important findings

12

providing the basis for the ALJ’s ultimate decision regarding disability in this matter,

13

including whether plaintiff would be disabled if he stopped the substance use.

14

Therefore, this matter is reversed and remanded pursuant to sentence four of 42

15

U.S.C. § 405(g) to the Acting Commissioner for further consideration consistent with this

16

order.

17
18

BACKGROUND
Plaintiff, DENNIS J. ROBINSON, was born in 1985 and was 27 years old on the

19

alleged date of disability onset of March 21, 2013. See AR. 211-17, 218-24. Plaintiff
20

completed high school. AR. 52. Plaintiff has some work history as a food warehouse
21
22
23

stocker, in telecommunications and in customer service. AR. 279-90. He was let go from
his last job for tardiness. AR. 42-43

24

ORDER ON PLAINTIFF’S COMPLAINT - 2

1

According to the ALJ, plaintiff has at least the severe impairments of

2

“schizoaffective disorder, bipolar affective disorder, poly substance abuse and antisocial

3

personality disorder (20 CFR 404.1520(c) and 416.920(c)).” AR. 15

4
5

At the time of the hearing, plaintiff was living in a house with his grandmother,
aunt and cousin. AR. 38.

6

PROCEDURAL HISTORY
7

Plaintiff’s applications for disability insurance benefits (“DIB”) pursuant to 42
8
9
10

U.S.C. § 423 (Title II) and Supplemental Security Income (“SSI”) benefits pursuant to 42
U.S.C. § 1382(a) (Title XVI) of the Social Security Act were denied initially and

11

following reconsideration. See AR. 90, 91, 112, 113. Plaintiff’s requested hearing was

12

held before Administrative Law Judge Robert P. Kingsley (“the ALJ”) on November 26,

13

2014. See AR. 32-66. On May 21, 2015, the ALJ issued a written decision in which the

14

ALJ concluded that plaintiff was not disabled pursuant to the Social Security Act. See

15

AR. 9-31.

16
17
18

In plaintiff’s Opening Brief, plaintiff raises the following issues: (1) Whether the
ALJ properly evaluated the medical evidence; (2) Whether the ALJ properly evaluated
plaintiff’s testimony; (3) Whether the ALJ properly evaluated the lay evidence; (4)

19

Whether the ALJ properly assessed plaintiff’s residual functional capacity (“RFC”) in the
20

absence of substance abuse (“DAA”) and erred by basing the step four and five findings
21
22
23

on his erroneous RFC assessment; and (5) Whether the ALJ erred by improperly
concluding that plaintiff’s DAA was a factor material to his disability. See Dkt. 13, p. 2.

24

ORDER ON PLAINTIFF’S COMPLAINT - 3

1

STANDARD OF REVIEW

2

Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's

3

denial of social security benefits if the ALJ's findings are based on legal error or not

4
5

supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d
1211, 1214 n.1 (9th Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir.

6

1999)).
7

DISCUSSION
8
9
10

(1)

Whether or not the ALJ properly evaluated the medical evidence.

Plaintiff argues that the “ALJ erred by failing to discuss Dr. Sanchez’s June 2013

11

opinion that substance abuse did not contribute significantly to [plaintiff]’s functional

12

impairments, and that the effects of [] impairments on his work activities were not due

13

primarily to alcohol or drug abuse/addiction.” Dkt. 13, p. 6 (citing AR. 353, 355).

14

Plaintiff contends that this opinion “is significant, probative evidence that the ALJ could

15

not simply disregard without explanation.” Id. (footnote omitted). Defendant concedes

16

that the “ALJ did err in not addressing this opinion, but given the different standard used

17
18

in making this assessment, this error should be considered harmless.” Dkt. 17, p. 6.
The Commissioner “may not reject ‘significant probative evidence’ without

19

explanation.” Flores v. Shalala, 49 F.3d 562, 570-71 (9th Cir. 1995) (quoting Vincent v.
20

Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984) (quoting Cotter v. Harris, 642 F.2d 700,
21
22
23
24

706-07 (3d Cir. 1981))). The “ALJ’s written decision must state reasons for disregarding
[such] evidence.” Flores, supra, 49 F.3d at 571. For example, “an ALJ cannot in its
decision totally ignore a treating doctor and his or her notes, without even mentioning

ORDER ON PLAINTIFF’S COMPLAINT - 4

1

them.” Marsh v. Colvin, 792 F.3d 1170, 1172-73 (9th Cir. 2015) (citing Garrison v.

2

Colvin, 759 F.3d 995, 1012 (9th Cir. 2014)).

3
4
5

Dr. Phyllis N. Sanchez, Ph.D., did not examine plaintiff, but reviewed some of the
medical evidence on June 4, 2013, including medical reports dated January 22, 2010;
February 2, 2011; March 7, 2013; and May 21, 2013. See AR. 353-56. She opined that

6

plaintiff suffered from many marked limitations. See AR. 355. Dr. Sanchez also opined
7

that the limitations on plaintiff’s ability to perform work were not primarily due to
8
9
10

alcohol or drug abuse/addiction. See AR. 356.
The Court agrees with defendant’s concession that the ALJ erred by failing to

11

discuss the opinions of Dr. Sanchez, because her opinion clearly is significant, probative

12

evidence. See Flores, supra, 49 F.3d at 571. Therefore, the next question to be decided is

13

whether or not this error is harmless.

14

The Ninth Circuit has concluded that it is not harmless error for the ALJ to fail to

15

discuss a medical opinion. Hill v. Astrue, 698 F.3d 1153, 1160 (9th Cir. 2012) (“the

16

ALJ’s disregard for Dr. Johnson’s medical opinion was not harmless error and Dr.

17
18

Johnson’s opinion should have been considered”) (citing 20 C.F.R. § 404.1527(c) (noting
that this Ruling requires the evaluation of “every medical opinion” received)).

19

The ALJ’s opinion differs from Dr. Sanchez’ opinion regarding whether or not
20

plaintiff’s substance abuse is a material factor contributing to plaintiff’s disability. The
21
22
23
24

ALJ found, at the initial steps in the evaluation process, that a “finding of ‘disability’ is []
appropriate” in this case when limitations from plaintiff’s substance use disorders are
considered. See AR. 20. Therefore, the question becomes “would the other impairments

ORDER ON PLAINTIFF’S COMPLAINT - 5

1

[other than substance abuse] improve to the point of non-disability in the absence of the

2

drug or alcohol abuse.” AR. 17 (citing SSR 12 – 2P).

3
4
5

In determining whether or not a claimant's alcoholism or drug addiction is material
pursuant to 42 U.S.C. § 423(d)(2)(C), the test is whether or not “an individual would still
be found disabled if []he stopped using alcohol or drugs." Sousa v. Callahan, 143 F.3d

6

1240, 1245 (9th Cir. 1998) (quoting 20 C.F.R. § 404.1535(b)(1)).
7

Here, Dr. Sanchez opined that the limitations on plaintiff’s ability to perform work
8
9
10

were not primarily due to alcohol or drug abuse/addiction. See AR. 356. A logical
inference from this opinion is that in the absence of drug and alcohol abuse, plaintiff still

11

would suffer close to the same amount of limitations on his ability to work. See id.

12

Therefore, Court concludes that the opinion from Dr. Sanchez is contrary to and very

13

relevant to one of the most important findings by the ALJ, that is, that plaintiff “would

14

not be disabled if he stopped the substance use (20 C.F.R. §§ 404.1520(f), 404.1535,

15

416.920(f) and 416.935).” See AR. 26. Therefore, the Court cannot conclude with

16

confidence that no ALJ when fully crediting the opinion from Dr. Sanchez “‘could have

17
18

reached a different disability determination.’” Marsh v. Colvin, 792 F.3d 1170, 1173 (9th
Cir. 2015) (quoting Stout, 454 F.3d at 1055-56).

19

The Ninth Circuit has reaffirmed the explanation in Stout that “ALJ errors in
20

social security are harmless if they are ‘inconsequential to the ultimate nondisability
21
22
23

determination’ and that ‘a reviewing court cannot consider [an] error harmless unless it
can confidently conclude that no reasonable ALJ, when fully crediting the testimony,

24

ORDER ON PLAINTIFF’S COMPLAINT - 6

1

could have reached a different disability determination.’” Marsh, 792 F.3d at 1173

2

(quoting Stout, 454 F.3d at 1055-56).

3
4
5

Therefore, the Court concludes that it was not harmless error for the ALJ to fail to
discuss the medical opinion from Dr. Sanchez. See id. Although plaintiff requests a
remand with a direction to award benefits, the Court concludes based on the record as a

6

whole, that further administrative proceedings would be useful in this case. See Treichler
7

v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1103-04 (9th Cir. 2014) (citations
8
9
10

omitted) (remand for benefits is not appropriate when further administrative proceedings
would serve a useful purpose). The ALJ should evaluate the medical opinion of Dr.

11

Sanchez in the first instance, and should have the opportunity to evaluate the new

12

evidence plaintiff submitted to the Appeals Council. See id.; see also Dkt. 13, pp 8-11.

13

Therefore, this matter is reversed and remanded to the administration for further

14

administrative proceedings consistent with this opinion.

15

(2)

16

The Court already has concluded that the ALJ erred in reviewing the medical

17
18

Whether or not the ALJ properly evaluated plaintiff’s testimony.

evidence and that this matter should be reversed and remanded for further consideration,
see supra, section 1. In addition, the evaluation of a claimant’s statements regarding

19

limitations relies in part on the assessment of the medical evidence, some of which the
20

ALJ did not have the opportunity to review. See 20 C.F.R. § 404.1529(c); SSR 16-3p,
21
22
23

2016 SSR LEXIS 4. Therefore, for this reason, plaintiff’s testimony and statements
should be assessed anew following remand of this matter.

24

ORDER ON PLAINTIFF’S COMPLAINT - 7

1
2

Whether or not the ALJ properly evaluated the lay evidence and the
RFC in the absence of substance abuse (“DAA”), and erred by basing
the step four and five findings on his erroneous RFC assessment.

3

Similarly, the lay evidence and the RFC in the absence of substance abuse should

4
5

(3)

be evaluated anew following remand of this matter. As a consequence, the steps four and
five findings based on the RFC in the absence of substance abuse (“DAA”) should be

6

evaluated anew following remand of this matter, as should the issue of the materiality of
7

plaintiff’s DAA to his disability.
8

CONCLUSION

9
10

Based on the stated reasons and the relevant record, the Court ORDERS that this

11

matter be REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. §

12

405(g) to the Acting Commissioner for further consideration consistent with this order.

13

JUDGMENT should be for plaintiff and the case should be closed.

14

Dated this 21st day of November, 2017.

A

15
16

J. Richard Creatura
United States Magistrate Judge

17
18
19
20
21
22
23
24

ORDER ON PLAINTIFF’S COMPLAINT - 8