Routh v. Commissioner Social Security Administration

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

EUGENE DIVISION

BENJAMIN R.,1 Case No. 6:22-cv-00930-HL

Plaintiff, OPINION AND ORDER

v.

COMMISSIONER, SOCIAL

SECURITY ADMINISTRATION,

Defendant.

_________________________________________

HALLMAN, United States Magistrate Judge:

Plaintiff Benjamin R. brings this action under 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 (“Commissioner”). The Commissioner denied plaintiff’s application for Disability

Insurance Benefits (“DIB”) under Title II of the Act. 42 U.S.C. § 401 et seq. For the following

reasons, the decision of the Commissioner is AFFIRMED.

1 In the interest of privacy, this Opinion uses only the first name and the initial of the last name

for non-governmental parties and their immediate family members.

STANDARD OF REVIEW

42 U.S.C. § 405(g) provides for judicial review of the Social Security Administration’s

disability determinations: “The court shall have power to enter . . . a judgment affirming,

modifying, or reversing the decision of the Commissioner of Social Security, with or without

remanding the cause for a rehearing.” 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, 679 (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).

BACKGROUND

I. Plaintiff’s Application

Plaintiff alleges disability based on post-traumatic stress disorder (“PTSD”), anxiety,

hypervigilance, high blood pressure (“HBP”), gastroesophageal reflux disease (“GERD”),

insomnia, sciatica, and degenerative disc disease of the lumbar spine. Tr. 202.2 At the time of his

alleged onset date, he was 49 years old. Tr. 76. He has completed high school. Tr. 590. He is

unable to perform his past relevant work as a gate guard, security guard, and crew member

infantry. Tr. 35, 590.

Plaintiff protectively applied for DIB on January 1, 2018, alleging an onset date of

November 14, 2007. Tr. 76-77. His application was denied initially on March 22, 2018, and on

reconsideration on May 7, 2018. Tr. 83-84, 94. Plaintiff subsequently requested a hearing, which

was held on March 6, 2019, before Administrative Law Judge (“ALJ”) John Sullivan. Tr. 42.

Plaintiff appeared and testified at the hearing, pro se. Tr. 15, 42-67. A vocational expert (“VE”),

Francene Geers, also testified. Tr. 60-61. On March 27, 2019, the ALJ issued a decision denying

plaintiff’s claim. Tr. 37. Plaintiff requested the Appeals Council to review ALJ Sullivan’s

decision, which was denied on August 2, 2019. Tr. 1-4. Plaintiff sought review in the District

Court and, on September 18, 2020, the District Court issued an order remanding plaintiff’s case,

inter alia, to evaluate additional evidence from the Department of Veteran Affairs, regarding

plaintiff’s PTSD and secondary depression. Tr. 633. On October 8, 2020, the Appeals council

remanded plaintiff’s case to ALJ Sullivan to evaluate his claim in accordance with that order. Tr.

637-38. On July 27, 2021, another hearing was held before ALJ Sullivan, and plaintiff appeared

and testified at the hearing, represented by counsel. Tr. 600-617. On August 10, 2021, ALJ

Sullivan issued a decision denying plaintiff’s claim. Tr. 592. On April 4, 2022, the Appeals

Council denied plaintiff’s request for review. Tr. 569-574. Plaintiff then sought review before

this Court.3

2 Citations to “Tr.” are to the Administrative Record. (ECF 10).

3 The parties have consented to the jurisdiction of a Magistrate Judge pursuant to 28 U.S.C. §

636. (ECF 6).

II. Sequential Disability Process and DAA Analysis

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 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).

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. At

step one, 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.” Yuckert, 482 U.S. at 140-41; 20 C.F.R. §§

404.1520(c), 416.920(c). 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 impairments meet or equal “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 step four, the Commissioner 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 work, he is not disabled; if he cannot perform past relevant work, the burden shifts to the

Commissioner. Yuckert, 482 U.S. at 146 n. 5.

Finally, 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.

Where alcohol or drug abuse are implicated in a disability proceeding, the ALJ must first

conduct the five-step inquiry without separating out the impact of alcoholism or drug addiction.

Bustamante v. Massanari, 262 F.3d 949, 955 (9th Cir.2001). If the ALJ finds 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 Drug and Alcohol Abuse Analysis (“DAA analysis”) under 20 C.F.R.

§§ 404.1535 or 416.935. Id.

On the other hand, if the ALJ finds the claimant is disabled and there is medical evidence

of the claimant’s drug addiction or alcoholism, then the ALJ should then determine if the

claimant would still be found disabled if the claimant stopped using alcohol or drugs. Id. If the

remaining limitations would not be disabling, then the claimant’s substance abuse is material and

benefits must be denied. Parra v. Astrue, 481 F.3d 742, 747–48 (9th Cir. 2007). At this point, the

Commissioner must evaluate medical and other relevant evidence to determine the claimant’s

“residual functional capacity” (“RFC”), an assessment of work-related activities that the claimant

may still perform on a regular and continuing basis, despite any limitations his impairments

impose. 20 C.F.R. §§ 404.1520(e), 404.1545(b)-(c), 416.920(e), 416.945(b)-(c).

III. The ALJ’s Decision

At step one, the ALJ determined that plaintiff had not engaged in substantial gainful

activity after his alleged onset date. Tr. 586.

At step two, the ALJ determined that plaintiff has the following severe impairments:

“PTSD and major depressive disorder.” Id.

At step three, because alcohol and drug abuse were implicated in this disability

proceeding, the ALJ first conducted the five-step inquiry without separating out the impact of

alcoholism or drug addiction. The ALJ determined that including plaintiff’s substance use,

plaintiff’s impairments met or medically equaled the severity of a listed impairment. Tr. 587-88.

The ALJ then stopped the five-step inquiry and proceeded with the DAA analysis to determine if

alcohol and drug abuse was a contributing factor material to the determination of disability. Tr.

588. The ALJ found that if the claimant stopped their substance use, the remaining limitations

would cause more than a minimal impact on the claimant’s ability to perform basic work

activities and therefore, the plaintiff would have a severe impairment or combination of

impairments. Id. However, the ALJ ultimately found that if plaintiff stopped his substance abuse,

he would not have an impairment or combination of impairments that meets or medically equals

the severity of a listed impairment. Id.

The ALJ then resolved that if the plaintiff stopped their substance abuse, they would have

the residual function capacity (“RFC”) to perform a full range of work at all exertional levels but

with the following non-exertional limitations:

He can understand, remember, and carry out simple, routine tasks involving

simple work-related decisions and reasoning level of 2 or less. He can tolerate

occasional interaction with supervisors, coworkers, or the public. He would be off-

task up to 5% of the workday or otherwise absent at least 1 day per month.

Tr. 590.

At step four, the ALJ found that plaintiff could not perform his past relevant work. Id.

But at step five—considering plaintiff’s age, education, work experience, and RFC—the

ALJ found that a significant number of jobs existed in the national economy that plaintiff could

perform if he stopped the substance use, including work as a janitor, automobile detailer, or hand

packager. Tr. 591. Thus, the ALJ concluded that plaintiff is not disabled if he stopped the

substance use, and that because the substance use disorder is a contributing factor material to the

determination of disability, plaintiff is not disabled. Id.

DISCUSSION

Plaintiff’s single assignment of error is that the ALJ analyzed the impact of plaintiff’s

alcohol abuse before determining whether plaintiff is disabled. Pl.’s Opening Br. 7. More

specifically, plaintiff contends that at step three, the ALJ found plaintiff’s impairments including

his alcohol abuse met listing 12.04 in 20 C.F.R. Part 404, Subpart P, Appendix 1, but the ALJ

did not make a disability finding. Id. Plaintiff further argues that therefore when the ALJ

proceeded directly to the DAA analysis, that was in error given that there was no finding of

disability. Tr. 587-88, Pl.’s Opening Br. 8. Plaintiff asserts that meeting the requirements of a

listing is not synonymous with a finding of disability in this instance because the ALJ did not

determine that plaintiff met the duration requirement as required by 20 C.F.R. § 404.1520(d); see

also 20 C.F.R. § 404.1520(a)(4)(iii). Pl.’s Reply Br. 2.

The Commissioner argues that plaintiff’s argument is mistaken because a finding that a

claimant’s impairments satisfy the requirements of a listing is synonymous with a finding of

disability. Def.’s Resp. Br. 2 (citing 20 C.F.R. 404.1520(d)). The Commissioner asserts that

when analyzing plaintiff’s impairments without separating the effects of substance abuse, the

ALJ correctly did not proceed to steps four and five because plaintiff was found disabled at step

three. Def.’s Resp. Br. 3. Therefore, the five-step inquiry ended there and that is where the DAA

analysis began. Id. The Commissioner further argues that any procedural error in this case was

harmless. Id. at 3-4.

Having carefully considered the parties arguments, this Court agrees with the

Commissioner and AFFIRMS the ALJ’s decision.

I. Legal standards.

If at any point during the five-step analysis a claimant is found to be disabled and there is

medical evidence of drug and alcohol abuse, then the Commissioner must consider whether the

claimant’s substance abuse is a contributing factor material to the determination of disability.

Ingram v. Barnhart, 72 F. App'x 631, 634 (9th Cir. 2003). “An individual shall not be considered

to be disabled for purposes of this subchapter 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 the Commissioner must examine in

determining whether drugs or alcohol are a contributing factor to the claim is whether the

claimant would still be disabled if they stopped using drugs or alcohol. 20 C.F.R. §

416.935(b)(1). The ALJ must evaluate which of plaintiff’s current physical and mental

limitations would remain if plaintiff stopped using drugs and alcohol, and then determine

whether any or all of plaintiff’s remaining limitations would be disabling. Id.4

4 The purpose of the Contract with America Advancement Act (CAAA), which precludes social

security disability benefits if alcoholism or drug addiction is contributing factor to the disability

determination, is to discourage alcohol and drug abuse, or at least not to encourage it with a

permanent government subsidy. 42 U.S.C.A. § 423(d)(2)(C)(”An individual shall not be

considered to be disabled for purposes of this subchapter if alcoholism or drug addiction would

(but for this subparagraph) be a contributing factor material to the Commissioner's determination

that the individual is disabled.”).

Regarding the procedure of the DAA Analysis, the implementing regulations make clear

that a finding of disability is a condition precedent to conducting the DAA analysis. 42 U.S.C. §

423(d)(2)(C), 20 C.F.R. § 416.935(a). In other words, the ALJ cannot begin to apply the DAA

analysis properly when he has not yet made a finding of disability. 42 U.S.C. § 423(d)(2)(C).

The ALJ must first conduct the five-step inquiry without separating out the impact of alcoholism

or drug addiction. Bustamante v. Massanari, 262 F.3d 949, 955 (9th Cir. 2001). In Bustamante

the court held that an ALJ errs by determining that a claimant’s mental impairments are “the

product and consequence of his alcohol abuse” before deciding that the claimant is disabled

under the five-step analysis. Id. The DAA analysis is necessary only if the ALJ finds Plaintiff

disabled. See White v. Colvin, 585 Fed. Appx. 425, 426 n. 2 (9th Cir. 2014).

In short, “Bustamante requires a two-step process.” Hoban v. Colvin, No. 3:15-CV-

01786-HZ, 2016 WL 4059200, at *3 (D. Or. July 27, 2016). If the ALJ first finds that the

claimant is disabled and substance abuse is a material factor in the disability claim, only then

should the ALJ proceed to the DAA analysis to make a determination as to whether the claimant

would still be found disabled if they stopped their substance abuse. 20 C.F.R. § 416.935(b)(1). If

so, then the substance abuse is not a contributing factor material to the finding of disability. Id. §

416.935(b)(2)(ii). If, however, the claimant’s impairments would not be disabling if they stopped

their substance abuse, then the substance abuse is a contributing factor material to the finding of

disability. Id. § 416.935(b)(2)(i).

II. Application.

Consistent with Bustamante, the ALJ first conducted the five-step inquiry without

separating out the impact of drug and alcohol abuse. Tr. 586-88. At step three, the ALJ

determined that including plaintiff’s substance use, the severity of the plaintiff’s impairments

met the criteria of section 12.15 (trauma- and stressor-related disorders). Tr. 587 (“Including the

claimant’s substance use, the severity of the claimant’s impairments met the criteria of section

12.04.”). The ALJ found that both the “paragraph a” and “paragraph b” criteria were satisfied. Id.

Regarding the duration requirement, see 20 C.F.R. § 404.1520(a)(4)(ii), the ALJ did not make an

express finding regarding duration, but he addressed that VA records during the period under

review indicate that plaintiff’s post-combat PTSD symptoms were “100 percent disabling

effective January 16, 2008.” Tr. 587-88 (citing Tr. 1432).

The ALJ then performed the first part of the DAA analysis and found that plaintiff’s

PTSD and secondary depression were severe impairments without regard to his alcohol abuse.

Tr. 589. The ALJ utilized the DAA analysis and determined that the severity of plaintiff’s

mental impairments did not meet or medically equal the criteria of listing 12.04 in 20 C.F.R. Part

404, Subpart P, Appendix 1 if plaintiff stopped his substance abuse. Tr. 588 (“If the claimant

stopped the substance use, the remaining limitations…). The ALJ proceeded with the five-step

analysis, concluding that Plaintiff’s limitations would not be disabling if he stopped his

substance abuse. Tr. 588 (If the claimant stopped the substance use, the claimant would not have

an impairment…”); Tr. 590 ([I]f the claimant stopped the substance use, the claimant has had

the residual functional capacity. . . ).

This decision substantially complied with Bustamante’s requirement that the ALJ first

find the claimant disabled before proceeding to with the DAA analysis. To be sure, the ALJ did

not expressly state that “the claimant’s impairments, including substance abuse, are disabling”

and he did not make an express finding regarding the duration requirement. However, even

when an ALJ fails to use the “magic words,” this Court must still draw specific and legitimate

inferences from the ALJ’s opinion. Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989). In

this case, the finding that a plaintiff’s impairments satisfied the requirements of a listing is

synonymous with a finding of disability, see 20 C.F.R. 404.1520(d), and there is nothing in the

record that would suggest that plaintiff did not meet the duration requirement. The only plausible

reading of the ALJ’s opinion is that he found the claimant disabled at step three, when

considering his substance abuse, and then proceeded with the DAA analysis.5 The ALJ had no

basis to proceed with steps four and five of his analysis because the finding at step three showed

that plaintiff was disabled when considering his substance use disorder in combination with his

other impairments. See 20 C.F.R. § 404.1520(a)(4) (“If we can find that you are disabled or not

disabled at a step, we make our determination or decision and we do not go on to the next step.”).

In sum, while the ALJ’s decision could have been clearer, he did not commit reversable

error because substantially complied with Bustamante’s two-step requirement and he did not

conflate the initial disability analysis with the DAA analysis. See Hoban, No. 2016 WL 4059200,

at *5 (affirming where “the ALJ substantially complied with Bustamante’s requirements and

considered [the] [p]laintiff’s impairments and functional limitations both with and without her

alcoholism.”); Norman K. v. Kijakazi, No. 6:21-CV-00518-SB, 2022 WL 16694734, at *6 (D.

Or. Nov. 3, 2022) (remanding where there was no initial step-five determination of disability in

part because the ALJ conflated the initial disability analysis with the DAA analysis).6

Accordingly, this Court concludes that the ALJ did not err in conducing the DAA analysis.

5 Indeed, the ALJ’s statement of applicable law specifically sets forth the procedure he followed

in making this determination. Tr. 586 (If it is found that the claimant is disabled and there is

medical evidence of a substance use disorder(s), the undersigned must determine if the substance

use disorder(s) is a contributing factor material to the determination of disability) (emphasis

added).

6 This Court has carefully reviewed Stephanie M. v. Saul, No. 20-CV-01711-MMA-BGS, 2022

WL 1037112, at *8 (S.D. Cal. Apr. 6, 2022), report and recommendation adopted Stephanie M.

v. Kijakazi, No. 20-CV-1711-MMA (BGS), 2022 WL 1214708 (S.D. Cal. Apr. 25, 2022), which

reversed the ALJ’s decision in a factually indistinguishable case. The Court in Stephanie M.

III. Harmless error.

Even if this Court were to conclude that the ALJ’s failure to explicitly state that plaintiff

was disabled at step three was error, any error was harmless. “Even when the ALJ commits legal

error, [courts] uphold the decision where that error is harmless, meaning that it is inconsequential

to the ultimate nondisability determination, or that, despite the legal error, the agency’s path may

reasonably be discerned, even if the agency explains its decision with less than ideal clarity.”

Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (citations and quotations omitted).

In Parra v. Astrue, 481 F.3d 742, 747 (9th Cir. 2007), the Ninth Circuit addressed

whether “the ALJ erred by failing to conduct the full [initial] five-step analysis ... before

conducting the DAA Analysis.” Id. at 747. The Court explained that any error was harmless

because although the ALJ’s decision did “not explicitly label [the claimants condition] as

disabling, the ALJ gave [the claimant] the benefit of the doubt: the DAA Analysis assumed that

[the condition] was disabling and focused correctly upon whether abstinence would have cured

this disability.” Id.; cf. Brock v. Berryhill, 707 F. App’x 459, 461 (9th Cir. 2017) (concluding

that multiple errors, including failure to follow the two-step process, were not harmless because

the court could not say that they were inconsequential to the ultimate disability determination);

but see Norman K., 2022 WL 16694734, at *4 (discussing unreported Ninth Circuit and district

court cases that call into question the applicability of the harmless error analysis when the ALJ

fails to conduct the two-step inquiry).

concluded that “the ALJ did not make a disability finding as required by SSA regulations, nor

[determine] that plaintiff met the duration requirement. Instead, the ALJ proceeded directly to

the DAA Analysis.” Id. at *8. This Court declines to follow Stephanie M. because the decision,

though well-reasoned, does not account for the specific and legitimate inferences that must be

drawn from the ALJ’s step-three finding.

Here, the harmless error analysis mirrors that in Parra: the ALJ may not have explicitly

stated that plaintiff was disabled at step three, but he clearly gave plaintiff the “benefit of the

doubt,” assuming that Plaintiff was disabled while focusing on whether he would be disabled

without consideration of his substance abuse. Indeed, even plaintiff refers to the ALJ’s error in

this case as “procedural.” Pl.’s Opening Br. 4 n. 2; 8 (asserting that the ALJ’s “failure to follow

the procedural requirements of 20 C.F.R. § 404.1535 is remandable error.”).’ The ALJ’s failure

to explicitly make a disability finding was was inconsequential to the ALJ’s ultimate decision,

and a remand to require the ALJ to insert that specific phrase in his opinion would serve no

purpose. Accordingly, the ALJ’s error, if any, was harmless.

CONCLUSION

Based on the foregoing, pursuant to 42 U.S.C. § 405(g), sentence four, the Court

AFFIRMS the Commissioner’s decision.

IT IS SO ORDERED.

DATED this 18th day of July, 2023. ( [

NDREW HALLMAN

United States Magistrate Judge

his reply, plaintiff asserts that the ALJ’s error was “particularly harmful” because he never

determined that plaintiff's alcoholism was a severe impairment. Pl. Reply Br. 4. Yet plaintiff

did not assign error to the ALJ’s determination regarding alcoholism at step two, and his

arguments before this Court focus exclusively on the ALJ’s alleged procedural failure.

Accordingly, this Court declines to consider plaintiffs arguments concerning the ALJ’s step two

analysis when considering harmless error.

PAGE 13 — OPINION AND ORDER