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Chanda v. Colvin

United States District Court, D. Maine

October 15, 2015

WILLIAM JOSEPH CHANDA, JR., Plaintiff
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant

MEMORANDUM DECISION [1]

JOHN H. RICH III UNITED STATES MAGISTRATE JUDGE.

This Social Security Disability (“SSD”) and Supplemental Security Income (“SSI”) appeal raises the question of whether the administrative law judge supportably found that, although the plaintiff was disabled, his substance use was material to his disability, disqualifying him from receiving benefits. The plaintiff seeks remand on the basis that the administrative law judge failed to comply with Social Security Ruling 13-2p (“SSR 13-2p”) in making that determination. See Itemized Statement of Errors Pursuant to Local Rule 16.3 Submitted by Plaintiff (“Statement of Errors”) (ECF No. 9) at 2-7. I find no error and, accordingly, affirm the commissioner’s decision.

Pursuant to the commissioner’s sequential evaluation process, 20 C.F.R. §§ 404.1520, 416.920; Goodermote v. Secretary of Health & Human Servs., 690 F.2d 5, 6 (1st Cir. 1982), the administrative law judge found, in relevant part, that the plaintiff had severe impairments of borderline personality disorder and polysubstance abuse disorder, Finding 3, Record at 18; that his borderline personality disorder, in combination with his substance use disorders, met Listing 12.08, Appendix 1 to 20 C.F.R. Part 404, Subpart P (the “Listings”) and, by reference, Listing 12.09, Finding 4, id. at 19; that, if he stopped his substance use, he would not have any impairment or combination of impairments that met or medically equaled any of the Listings, Finding 6, id. at 21; that, if he stopped his substance use, he would have the residual functional capacity (“RFC”) to perform a full range of work at all exertional levels and, on a sustained, competitive basis, could understand, remember, and carry out simple instructions, use judgment in making simple work-related decisions, respond appropriately to coworkers, supervisors, and usual work situations not involving the public, and adapt to changes in the ordinary work setting, Finding 7, id. at 22; that, if he stopped substance use, he would be able to perform some past relevant work, Finding 8, id. at 29; that, if he stopped substance use, considering his age (28 years old, defined as a younger individual, on his alleged disability onset date, September 14, 2012), education (at least high school), work experience (transferability of skills immaterial), and RFC, there were jobs existing in significant numbers in the national economy that he could perform, Findings 9-12, id. at 30; that his substance use disorder was a contributing factor material to the determination of disability, because he would not have been disabled if he stopped substance use, Finding 13, id. at 31; and that, because his substance use disorder was material to the determination of disability, he had not been disabled within the meaning of the Social Security Act at any time from his alleged onset date, September 14, 2012, through the date of the decision, September 4, 2014, Finding 14, id. at 31. The Appeals Council declined to review the decision, id. at 1-3, making the decision the final determination of the commissioner, 20 C.F.R. §§ 404.981, 416.1481; Dupuis v. Secretary of Health & Human Servs., 869 F.2d 622, 623 (1st Cir. 1989).

The standard of review of the commissioner’s decision is whether the determination made is supported by substantial evidence. 42 U.S.C. §§ 405(g), 1383(c)(3); Manso-Pizarro v. Secretary of Health & Human Servs., 76 F.3d 15, 16 (1st Cir. 1996). In other words, the determination must be supported by such relevant evidence as a reasonable mind might accept as adequate to support the conclusion drawn. Richardson v. Perales, 402 U.S. 389, 401 (1971); Rodriguez v. Secretary of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981).

I. Discussion

The need to determine whether substance use is material to disability stems from a provision of the Contract with America Advancement Act of 1996 (“Contract with America”) that “eliminated disability benefits where drug addiction or alcoholism was a contributing factor material to the Commissioner’s determination of disability.” Bartley v. Barnhart, 117 Fed.Appx. 993, 994 (6th Cir. 2004) (citation and internal quotation marks omitted); see also 42 U.S.C. § 423(d)(2)(C).

That Contract with America directive was incorporated into the agency’s regulations, which provide in relevant part:

(1) The key factor we will examine in determining whether drug addiction or alcoholism is a contributing factor material to the determination of disability is whether we would still find you disabled if you stopped using drugs or alcohol.
(2) In making this determination, we will evaluate which of your current physical and mental limitations, upon which we based our current disability determination, would remain if you stopped using drugs or alcohol and then determine whether any or all of your remaining limitations would be disabling.
(i) If we determine that your remaining limitations would not be disabling, we will find that your drug addiction or alcoholism is a contributing factor material to the determination of disability.
(ii) If we determine that your remaining limitations are disabling, you are disabled independent of your drug addiction or alcoholism and we will find that your drug addiction or alcoholism is not a contributing factor material to the determination of disability.

20 C.F.R. §§ 404.1535(b), 416.935(b). Effective March 22, 2013, the commissioner adopted the ruling on which the plaintiff relies, SSR 13-2p, to explain the agency’s policies for how it considers whether drug addiction and alcoholism (“DAA”) are material to its determination of disability. See SSR 13-2p, reprinted in West’s Social Security Reporting Service Rulings 1983-1991 (Supp. 2015), at 479.

The plaintiff complains that, in contravention of sections 7 and 9 (the latter, mistakenly referred to as section 8) of SSR 13-2p, the administrative law judge (i) failed to establish that, during a period of sustained abstinence, long enough for the acute symptoms to abate, the plaintiff did not suffer disabling limitations and (ii) relied solely on the testimony of a medical expert at hearing, James M. Claiborn, Ph.D., to conclude that substance abuse was material. See Statement of Errors at 3-6.

He also suggests that the administrative law judge erred in handling contrary evidence regarding the materiality of his DAA, namely, a U.S. Department of Veterans Affairs (“VA”) decision awarding him disability benefits effective November 15, 2012, based on bipolar disorder and the opinion of Kerry Kimball, Ph.D., who performed a rating examination for the VA, that, “It appears from the information available that the Veteran[’s] Substance Use Disorder, alcohol[, ] is a product of and cannot be differentiated from his unstable mood (Bipolar I Disorder).” Id. at 3 (quoting Record at 383); see also id. at 6.

A. Necessity of Period of Abstinence

SSR 13-2p contains separate provisions addressing analysis of periods of abstinence (section 9), whether a co-occurring physical impairment would improve in the absence of DAA (section 6), and whether a co-occurring mental impairment would improve in the absence of DAA (section 7). See SSR 13-2p at 486-88, 491-92. The ruling uses the term “period of abstinence” to “describe a period in which a claimant who has, or had, been dependent upon or abusing drugs or alcohol . . . stopped their use.” Id. at 486 n.17. It is clear, from oral argument, that the parties agree that the plaintiff had no period of abstinence, that his only co-occurring impairment is mental, and that section 7 of SSR 13-2p, pertaining to mental impairments, applies. However, they differ sharply in their interpretation of that ruling.

The plaintiff’s counsel contended that, on its face, SSR 13-2p precludes a finding that drug and alcohol abuse is material unless a claimant with co-occurring mental impairments has had a sustained period of abstinence. Counsel for the commissioner disagreed, based not only on his reading of the ruling but also on citation, in the commissioner’s brief and/or at oral argument, to several cases, including Parra v. Astrue, 481 F.3d 742 (9th Cir. 2007), Haning v. Calvin [sic], Case No. 2:14-cv-573, 2015 WL 4593414 (S.D. Ohio July 30, 2015), and Wilson v. Colvin, No. 13-cv-2439-DDC, 2015 WL 416438 (D. Kan. Jan. 30, 2015).

For the reasons that follow, I conclude, based on the foregoing authorities and my own research, that, although SSR 13-2p can be read as the plaintiff’s counsel suggests, the better reading, based not only on its plain language but also Congress’s intent in enacting the Contract with America, is that of the commissioner.

Section 9 of SSR 13-2p, which answers the question, “How do we consider periods of abstinence?[, ]” provides, in relevant part:

a. Each substance of abuse, including alcohol, has different intoxication and long-term physiologic effects. In addition, there is a wide variation in the duration and intensity of substance use among claimants with DAA, and there are wide variations in the interactions of DAA with different types of physical and mental disorders. For these reasons, we are unable to provide exact guidance on the length and number of periods of abstinence to demonstrate whether DAA is material in every case. In some cases, the acute and toxic effects of substance use or abuse may subside in a matter of weeks, while in others it may take months or even longer to subside. For some claimants, we will be able to make a judgment about materiality based on evidence from a single, continuous period of abstinence, while in others we may need to consider more than one period.
b. In all cases in which we must consider periods of abstinence, the claimant should be abstinent long enough to allow the acute effects of drug or alcohol use to abate. Especially in cases involving co-occurring mental disorders, the documentation of a period of abstinence should provide information about what, if any, medical findings and impairment-related limitations remained after the acute effects of drug and alcohol use abated. Adjudicators may draw inferences from such information based on the length of the period(s), how recently the period(s) occurred, and whether the severity of the co-occurring impairment(s) increased after the period(s) of abstinence ended. To find that DAA is material, we must have evidence in the case record demonstrating that any remaining limitations were not disabling during the period.

SSR 13-2p at 491 (footnotes omitted).

Section 6, which answers the question, “What do we do if the claimant’s other physical impairment(s) improve in the absence of ...


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