                                                                           FILED
                            NOT FOR PUBLICATION
                                                                            DEC 17 2019
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ARMIN BENDER,                                    No.    18-35817

              Plaintiff-Appellant,               D.C. No. 3:16-cv-02118-PK

 v.
                                                 MEMORANDUM*
ANDREW M. SAUL, Commissioner of
Social Security,

              Defendant-Appellee.


                   Appeal from the United States District Court
                            for the District of Oregon
                   Michael W. Mosman, District Judge, Presiding

                          Submitted December 13, 2019**
                               Seattle, Washington

Before: HAWKINS and McKEOWN, Circuit Judges, and PRATT,*** District
Judge.




      *
        This disposition is not appropriate for publication and is not precedent except
as provided by Ninth Circuit Rule 36-3.
      **
         The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
      ***
        The Honorable Robert W. Pratt, Senior United States District Judge for the
Southern District of Iowa, sitting by designation.
      Plaintiff Armin Bender (“Bender”) appeals the district court decision affirming

the Commissioner of Social Security’s (“Commissioner”) denial of disability benefits.

Reviewing the agency’s factfinding for substantial evidence, Biestek v. Berryhill, 139

S. Ct. 1148, 1154 (2019), we affirm.

      The Administrative Law Judge (“ALJ”) performed the five-step sequential

analysis and determined that Bender was disabled; that is, that taking into account his

age, education, work experience and limitations, Bender cannot engage in any other

substantial gainful activity existing in the national economy.          20 C.F.R. §

404.1520(a)(4). However, because there was also evidence of significant drug and

alcohol abuse (“DAA”), the ALJ was also required to determine the materiality of

DAA to the finding of disability. 20 C.F.R §§ 404.1535(a), 416.935(a).

      The “claimant bears the burden of proving that drug or alcohol addiction is not

a contributing factor material to his disability.” Parra v. Astrue, 481 F.3d 742, 748

(9th Cir. 2007). Here, the ALJ found that the amount of marijuana Bender smoked

daily would render him unable to work on a consistent and regular basis and included

a limitation in Bender’s residual functional capacity that he would be absent from

work at least two or three days a month. With such a limitation, the vocational expert

opined Bender could not work, but, without such a limitation, the expert opined

Bender would be able to find work in the national economy. Therefore, the ALJ


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concluded that the DAA was a material contributing factor to his disability, which

precluded the award of benefits. 42 U.S.C. § 423 (d)(2)(C).

       Our deferential review tells us if the record considered as a whole can

reasonably support either affirming or reversing the Commissioner’s decision, we

must affirm. Hiler v. Astrue, 687 F.3d 1208, 1211 (9th Cir. 2012). At least one doctor

opined it would be difficult for Bender to attend work on a regular basis while using

marijuana to the extent he did, which was often several times daily. Doctors also

opined the drug use was making Bender’s depression and anxiety worsen, or that he

had a substance-induced mood disorder. During limited periods of sobriety, Bender

did appear to improve and have mild to moderate mental limitations, which were

otherwise accounted for in the residual functioning capacity and accommodated by

restricting Bender to simple work with minimal social interaction.

      The ALJ’s determination is supported by substantial evidence, and the agency’s

decision is therefore AFFIRMED.




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