United States District Court, D. Maine
REPORT AND RECOMMENDED DECISION
H. Rich III United States Magistrate Judge.
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
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).
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).
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.
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.
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.
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
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.
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.
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.
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
(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 ...