United States District Court, D. Maine
REPORT AND RECOMMENDED DECISION
H. Rich III United States Magistrate Judge
Social Security Disability (“SSD”) appeal raises
the question of whether the administrative law judge
(“ALJ”) supportably found the plaintiff's
father, now deceased (the “decedent”), capable of
performing work existing in significant numbers in the
national economy through his date last insured
(“DLI”). The plaintiff seeks remand on the bases
that the ALJ (i) failed in his duty to develop the record
adequately when he declined her requests to call a medical
expert to testify at hearing, in contravention of Social
Security Ruling 83-20 (“SSR 83-20”), (ii) reached
a conclusion unsupported by substantial evidence that, on or
before the decedent's DLI, his liver disease did not meet
or medically equal the criteria of any impairment included in
Appendix 1, 20 C.F.R. Part 404, Subpart P (the
“Listings”), and, (iii) in refusing to call a
medical expert at hearing, transgressed portions of the
Social Security Administration's Hearings, Appeals, and
Litigation Law Manual (“HALLEX”) and deprived her
of the opportunity to prove that the decedent's liver
disease and/or chronic obstructive pulmonary disease
(“COPD”) medically equaled the criteria of a
listing. See Plaintiff's Statement of Errors
(“Statement of Errors”) (ECF No. 11) at 8-17. I
find no reversible error and, accordingly, recommend that the
court affirm the commissioner's decision.
to the commissioner's sequential evaluation process, 20
C.F.R. § 404.1520; Goodermote v. Sec'y of Health
& Human Servs., 690 F.2d 5, 6 (1st Cir. 1982), the
ALJ found, in relevant part, that the decedent met the
insured status requirements of the Social Security Act
through December 31, 2013, Finding 1, Record at 14; that,
through his DLI, he had the severe impairments of COPD,
alcohol abuse, hepatorenal syndrome, and fulminant hepatitis
with acute liver failure, Finding 3, id.; that,
through his DLI, he had no impairment or combination of
impairments that met or medically equaled the criteria of any
of the Listings, Finding 4, id.; that, through his
DLI, he had the residual functional capacity
(“RFC”) to perform sedentary work as defined in
20 C.F.R. § 404.1567(a), except that he could lift
and/or carry no more than 10 pounds frequently, stand and/or
walk for three hours in an eight-hour workday, sit for six
hours in an eight-hour workday, occasionally balance, stoop,
kneel, crouch, crawl, and climb ramps and stairs, and needed
to avoid temperature extremes, extreme humidity, or
concentrated respiratory irritants, Finding 5, id.
at 15; that, through his DLI, considering his age (48 years
old, defined as a younger individual, on his DLI), limited
education, work experience (transferability of skills
immaterial), and RFC, there were jobs existing in significant
numbers in the national economy that he could perform,
Findings 7-10, id. at 19; and that he, therefore,
had not been disabled from November 1, 2011, his alleged
onset date of disability, through December 31, 2013, his DLI,
Finding 11, id. at 20. 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; Dupuis v. Sec'y 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. § 405(g); Manso-Pizarro v.
Sec'y 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. Sec'y of Health & Human Servs.,
647 F.2d 218, 222 (1st Cir. 1981).
reached Step 5 of the sequential evaluation process, at which
stage the burden of proof shifts to the commissioner to show
that a claimant can perform work other than his past relevant
work. 20 C.F.R. § 404.1520(g); Bowen v.
Yuckert, 482 U.S. 137, 146 n.5 (1987);
Goodermote, 690 F.2d at 7. The record must contain
substantial evidence in support of the commissioner's
findings regarding the claimant's RFC to perform such
other work. Rosado v. Sec'y of Health & Human
Servs., 807 F.2d 292, 294 (1st Cir. 1986).
statement of errors also implicates Step 3 of the sequential
evaluation process, at which step a claimant bears the burden
of proving that his impairment or combination of impairments
meets or equals a listing. 20 C.F.R. § 404.1520(d);
Dudley v. Sec'y of Health & Human Servs.,
816 F.2d 792, 793 (1st Cir. 1987). To meet a listing, the
claimant's impairment(s) must satisfy all criteria of
that listing, including required objective medical findings.
20 C.F.R. § 404.1525(c)(3). To equal a listing, the
claimant's impairment(s) must be “at least equal in
severity and duration to the criteria of any listed
impairment.” 20 C.F.R. § 404.1526(a).
April 25, 2014, the decedent filed for both SSD, or Title II,
and Supplemental Security Income (“SSI”), or
Title XVI, benefits, alleging disability beginning on
November 1, 2011. See Record at 66-67. “To be
eligible to receive SSD benefits [a claimant] ha[s] to have
been disabled on or before [his or] her date last insured . .
.; however, eligibility for SSI benefits is not dependent on
insured status.” Chute v. Apfel, No.
98-417-P-C, 1999 WL 33117135 at *1 n.2 (D. Me. Nov. 22, 1999)
(rec. dec., aff'd Dec. 20, 1999).
the decedent's death on August 21, 2014, the plaintiff
was substituted as a party. See Record at 117, 208.
On November 12, 2014, after review by agency nonexamining
consultants Brian Stahl, Ph.D., and Donald Trumbull, M.D.,
the commissioner granted the decedent's SSI claim
retroactive to his application date, April 25, 2014, and
denied his SSD claim. See Id. at 53-55, 65.
Stahl concluded that, with respect to both the SSD and SSI
claims, the decedent met the criteria of Listing 12.09
(Substance Addiction Disorders) “as it contributed to
his medical condition/death[, f]or current and prior to the
DLI.” Id. at 54, 61. He noted that “[no]
other mental health condition [had been] diagnosed and
respect to the decedent's SSI claim, Dr. Trumbull
Medically Equals [Listing] 5.05B:
Cl[ai]m[a]nt w[ith] long h[istory] [alcohol] abuse w[ith]
liver disease gen[eral]ly stable w[ith] cl[ai]m[a]nt's
stated reduced intake and desire to stop (3/13/13 . . . and
beyond). No. urgent/emergent decompensations & no
evidence of listing level dysfunction during the Title 2
period or until he begins drinking heavily 1 mon[th] prior to
his 8/9/14 admit for acute hepatorenal decompensation.
Evidence does not satisfy the 6/mo[nth]/60d[a]y rule;
however, cl[ai]m[a]nt's liver disease had received
limited attention (in the available [medical evidence of
record]) prior to his admit but can be expected to have been
of sufficient severity to result in his death after
resumption of higher [alcohol] intake in July 2014.
I believe it is reasonable to extrapolate the onset to fully
favorable for the Title 16 period.
Id. at 55. The commissioner determined that the
decedent was disabled with an established onset date of April
25, 2014, and that “[s]ubstance abuse is documented,
but DAA [drug and alcohol abuse] is not material to the
respect to the decedent's SSD claim, Dr. Trumbull
concluded that there was insufficient medical evidence of
record to evaluate the severity of his condition for the
period from November 1, 2011, through February 28, 2013.
See id. at 64. He assessed the decedent's
physical RFC for the period from March 1, 2013, through June
30, 2014. See id. at 62-64. In response to a request
for additional explanation of his RFC opinion, he stated, in
relevant part, that there was “little discussion of
liver dis[ease].” Id. at 64. Two sections of
the case analysis form titled “Adult Listings
Considered” and “Adult Medical Condition”
indicated that Listings 3.02 (Chronic Pulmonary
Insufficiency), 5.05 (Chronic Liver Disease), and 12.09
(Substance Addiction Disorders) had been considered and that
the decedent's impairment(s) met Listing 12.09.
Id. at 62. The commissioner determined that the
decedent had not been disabled prior to his DLI, indicating
that his alcohol abuse was material to the determination of
disability. See id. at 65.
reconsideration, following review by a new set of agency
nonexamining consultants, Susan Lichtman, Ph.D., and Benjamin
Weinberg, M.D., the commissioner again denied the
decedent's SSD claim by decision dated March 12, 2015.
See id. at 72-78. Dr. Lichtman found that the
medical evidence of record supported a diagnosis of alcohol
dependence from the decedent's alleged onset date of
disability through his DLI and that this impairment met
Listing 12.09 “as it contributed to his medical
condition and eventual death.” Id. at 73. She
noted that no other mental health condition was diagnosed and
treated by treating providers. See id. Dr. Weinberg
concluded that there was insufficient medical evidence of
record to evaluate the severity of the decedent's
condition for the period from November 1, 2011, through
February 28, 2013, and assessed his physical RFC for the
period from March 1, 2013, through June 30, 2014. See
id. at 73-76. The sections of the case analysis form
titled “Adult Listings Considered” and
“Adult Medical Condition” again indicated that
Listings 3.02, 5.05, and 12.09 had been considered and
specified that Listing 12.09(F) had been met. Id. at
73. The commissioner determined, as she had on initial
review, that the decedent had not been disabled prior to his
DLI, indicating that his alcohol abuse was material to the
determination of disability. See id. at 77-78.
13, 2016, the ALJ denied a request by the plaintiff's
counsel that he “schedule a qualified medical expert
for the hearing” and, in addition, subpoena Dr.
Trumbull to be “questioned appropriately concerning his
retrospective opinion concerning the duration of the period
of the listing-level opinion.” Id. at 139-41.
The plaintiff's counsel renewed that request in a July
28, 2016, pre-hearing brief and at hearing the following day,
arguing that the absence of a medical expert would deprive
the plaintiff of the opportunity to prove that her father was
disabled prior to his DLI. See id. at 29-33, 47,
211-14. This was so, he contended, because the decedent's
treating providers had refused to discuss the case, and
agency policy precludes the use of an outside expert to
determine whether a claimant's impairment(s) equal a
listing. See id. at 29-33, 211, 214. He added that
Dr. Trumbull had never considered whether the onset date of
the decedent's disability extended back to the
decedent's DLI, and that the question of whether the
decedent's impairments equaled Listings 3.02 or 5.05 on
or prior to his DLI was never addressed on either initial
review or reconsideration. See id. at 29-33, 47.
addition to hearing the plaintiff's counsel's
argument on his renewed request for a medical expert, the ALJ
admitted evidence that included an affidavit of the
plaintiff, see id. at 28, 207-08, and heard her
testimony as well as that of a vocational expert, see
id. at 34-47.
affidavit and hearing testimony, the plaintiff recounted
taking an active role in monitoring her father's health
following his hospitalization in November 2012. See
id. at 38-39, 207. She reported that, between his
hospitalization in 2012 and his death in August 2014, her
father would experience bouts of coughing so severe that he
would lose consciousness and become incontinent if he could
not access his rescue inhaler. See id. at 39, 208.
She testified that he suffered from swelling in his lower
extremities that limited his mobility and sometimes kept him
from wearing shoes. See id. at 39-40, 207. She
stated that her father had struggled with sobriety for a
number of years and had been sober for a period prior to June
2014, when he learned that his significant other had terminal
cancer. See id. at 44-46. She testified that, at
that point, he began drinking again. See Id. at 45.
She stated that her father's significant other died on
July 4, 2014, he was hospitalized on August 9, 2014, and he
died in the hospital on August 21, 2014. See id. at
September 22, 2016, decision, the ALJ reaffirmed his denial
of the plaintiff's counsel's requests that a ...