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Dunham v. Colvin

United States District Court, D. Maine

December 5, 2016

JOHN E S DUNHAM, Plaintiff
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant

          REPORT AND RECOMMENDED DECISION [1]

          John H. Rich III United States Magistrate Judge.

         This Supplemental Security Income (“SSI”) appeal raises the question of whether the administrative law judge supportably found the plaintiff capable of returning to past relevant work as a cashier. The plaintiff seeks remand on the basis that the administrative law judge erred in relying on a post-hearing report of an examining consultant, Jonathan M. Freedman, Ph.D., without affording him an opportunity to review and comment on that evidence or cross-examine Dr. Freedman. See Itemized Statement of Specific Errors (“Statement of Errors”) (ECF No. 13) at 4-5. I conclude that the plaintiff fails to demonstrate that there was error or, alternatively, that any error was prejudicial. Accordingly, I recommend that the court affirm the commissioner's decision.

         Pursuant to the commissioner's sequential evaluation process, 20 C.F.R. § 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 seizure disorder, marijuana dependence, and a history of alcohol dependence, Finding 2, Record at 19; that he had the residual functional capacity (“RFC”) to perform a full range of work at all exertional levels but could not work around moving machinery or hazards, Finding 4, id. at 20; that he was capable of performing past relevant work as a cashier, which did not require the performance of any work-related activities precluded by his RFC, Finding 5, id. at 24; and that he, therefore, had not been disabled from January 20, 2012, the date of his SSI application, through July 9, 2014, the date of the decision, Finding 6, id. at 24. The Appeals Council declined to review the decision, id. at 1-4, making the decision the final determination of the commissioner, 20 C.F.R. § 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. § 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).

         The administrative law judge reached Step 4 of the sequential evaluation process, at which stage the claimant bears the burden of proving inability to return to past relevant work. 20 C.F.R. § 416.920(f); Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). At this step, the commissioner must make findings of the plaintiff's RFC and the physical and mental demands of past work and determine whether the plaintiff's RFC would permit performance of that work. 20 C.F.R. § 416.920(f); Social Security Ruling 82-62 (“SSR 82-62”), reprinted in West's Social Security Reporting Service Rulings 1975-1982, at 813.

         I. Discussion

         A. Relevant Background

         As of February 20, 2014, the date of the plaintiff's hearing, he alleged that he was disabled due to epilepsy and light sensitivity stemming from injuries suffered at the age of 16 when he and a group of friends were struck by a drunk driver as they were walking alongside the road near his home. See Record at 42, 243-44. He did not claim to have a mental impairment. See id. at 243-44. However, after he testified that his best friend died in the accident, others blamed him for it, it “mentally destroyed” him, and he suffered from accident-related traumatic memories and night terrors, the administrative law judge offered to hold the record open to obtain a report of a psychological examination. See id. at 44-45, 47, 76. The plaintiff and his counsel accepted her offer. See id. at 47.

         The plaintiff was sent to Dr. Freedman, who prepared a report dated May 22, 2014, in which he diagnosed the plaintiff with marijuana dependence and alcohol dependence (in reported remission) and found that he possessed adequate persistence in order to work, except perhaps for medical issues beyond the scope of the report. See id. at 358. Dr. Freedman added that the plaintiff had a mildly impaired ability to manage work pressures but, historically, only in the context of ongoing substance abuse, had adequate social interaction ability, and had an ability to adapt to circumstances. See id. He found that the plaintiff's level of understanding, concentration, ability to follow instructions, memory, and language ability were suitable for employment. See id.

         At the outset of his report, Dr. Freedman noted that the referral questions included “mental status, ADLs [activities of daily living], financial and medical capability, substance abuse, anxiety, cognitive ability, and DSM-IV diagnosis.” Id. at 355. He indicated that, in reaching his conclusions, he relied on an interview, behavioral observations, administration of the Wechsler Adult Intelligence Scale-IV test, and review of certain records. See id. In a section of his report titled, “Vocational issues[, ]” he stated:

The [plaintiff] has held jobs in various fields. He noted having been fired for getting angry when told what to do. He also has missed work[] because of medical issues, such as headaches.
The [plaintiff] has had some legal history that he noted may have impacted . . . his ability to get hired. He noted that he was arrested and convicted of domestic assault, which he described as “bullshit and bogus”. He also had an altercation with his father at age 17 which led to an arrest. He has had numerous marijuana possession charges.

Id. at 356.

         Dr. Freedman also completed a medical assessment of ability to do work-related activities (mental), dated May 29, 2014, in which he indicated that the plaintiff had no limitations, or only slight limitations, in all listed categories. See id. at 360-62. With respect to making occupational adjustments, he stated: “The claimant historically has been oppositional to authority, even to his own detriment.” Id. at 360. With respect to making personal/social adjustments, he wrote, “The [plaintiff] has had mild to moderate impulse control [and] maintains this pattern by [illegible] responsibility on others.” Id. at 361.

         The record contains no evidence of transmission of the Freedman report or assessment to the plaintiff. However, the plaintiff states that he received a “May 27, 2014 proffer letter” from the administrative law judge transmitting the consultative report and that the assessment was informally provided separately to his counsel on June 4, 2014, without an additional proffer letter. Statement of Errors at 3-4. At oral argument, the plaintiff's counsel acknowledged that the proffer letter indicated that the plaintiff had an opportunity to submit comments on the evidence, submit interrogatories to be propounded to the author, or request a supplemental hearing.

         By letter dated June 4, 2014, the plaintiff's counsel wrote to the administrative law judge, stating that pursuant to her letter of May 27, 2014, he had enclosed “written questions to be submitted to” Dr. Freedman. Record at 248. He attached a letter to Dr. Freedman in which he asked him:

(1) Please describe your examination of Mr. Dunham, including the length of the examination, the nature of your interview questions, and the tests Mr. Dunham was asked to perform.
(2) Regarding the “legal history” described on the second page of your Report, what are the approximate dates of the ...

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