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Nelson v. Berryhill

United States District Court, D. Maine

June 3, 2018

DARCY N., on Behalf of RICHARD N., Plaintiff
v.
NANCY A. BERRYHILL, Deputy Commissioner for Operations, Performing the Duties and Functions not Reserved to the Commissioner of Social Security, Defendant

          REPORT AND RECOMMENDED DECISION [1]

          John H. Rich III United States Magistrate Judge

         This 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.

         Pursuant 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).

         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); 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).

         The ALJ 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).

         The 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).

         I. Discussion

         On 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).

         Following 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.

         Dr. 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.[2] He noted that “[no] other mental health condition [had been] diagnosed and treated.” Id.

         With respect to the decedent's SSI claim, Dr. Trumbull concluded:

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 determination[.]” Id.[3]

         With 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.

         On 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.

         On July 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.

         In 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.

         In her 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 45, 208.

         In his September 22, 2016, decision, the ALJ reaffirmed his denial of the plaintiff's counsel's requests that a ...


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