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 that, absent substance
abuse, the plaintiff had no severe impairment or combination
of impairments. The plaintiff seeks remand on the bases that
the ALJ erroneously evaluated both the opinion evidence of
record and his testimony regarding his symptoms and
limitations. See Itemized Statement of Specific
Errors (“Statement of Errors”) (ECF No. 13) at 1.
I find no error and, accordingly, recommend that the court
affirm the commissioner's decision.
case returns to this court following a November 6, 2015,
judgment and order vacating an unfavorable December 17, 2013,
decision issued by the ALJ after an October 16, 2013, hearing
during which the plaintiff, his mother, impartial
psychological expert Ira H. Hymoff, Ph.D., and a vocational
expert testified. See Record at 438. Post-remand,
the ALJ held an April 22, 2016, supplemental hearing during
which the plaintiff, Dr. Hymoff, and a vocational expert
testified. See id. at 439.
issued a decision dated May 18, 2016, see id. at
458, in which, 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), he found, in relevant part, that the
plaintiff met the insured status requirements of the Social
Security Act through December 31, 2015, Finding 1, Record at
442; that he had the severe impairments of affective
disorder/mood disorder, not otherwise specified, an
anxiety-related disorder/post-traumatic stress disorder, a
personality disorder/borderline personality disorder, and a
substance addiction disorder/alcohol dependence, in partial
remission, Finding 3, id.; that his substance use
disorder met Listing 12.09 and, by implication, Listings
12.04, 12.06, and 12.08 of Appendix 1 to Subpart P, 20 C.F.R.
§ 404 (the “Listings”), Finding 4,
id.; that, if he had stopped his substance use, his
remaining impairments would have had no more than a minimal
impact on his ability to perform basic work activities and,
therefore, he would not have had a severe impairment or
combination of impairments, Finding 5, id. at
453-54; and that, because his substance use disorder was a
contributing factor material to the determination of
disability, he had not been disabled within the meaning of
the Social Security Act at any time from June 1, 2010,
through June 1, 2013, the closed period of disability at
issue in this case, Finding 6, id. at
The Appeals Council declined to assume jurisdiction of the
case following remand, id. at 428-30, making the
decision the final determination of the commissioner, 20
C.F.R. § 404.984(a), (b)(2); Dupuis v. Sec'y of
Health & Human Servs., 869 F.2d 622, 623 (1st Cir.
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's Weighing of Opinion Evidence
noted that the record contained the opinions of six experts,
see Record at 451-53: Dr. Hymoff at both the 2013
and 2016 hearings, see Id. at 68-72, 474-79, agency
nonexamining consultants Robert Maierhofer, Ph.D., and Mary
A. Burkhart, Ph.D., in evaluations dated January 20, 2012,
and May 30, 3012, respectively, see id. at 80-81,
92-94, treating psychiatrist Fred A. Bloom, M.D., in a
medical source statement dated April 30, 2012, and a letter
dated May 15, 2012, see id. at 695, 697-99, agency
nonexamining consultant Russell Phillips, Ph.D., in an
evaluation dated October 23, 2012, see id. at 415,
and Robert D. Kahl, Ph.D., in a report of a psychological
evaluation conducted on September 20, 2012, as supplemented
by a letter dated April 13, 2016, see id. at 416-26,
gave little weight to Dr. Hymoff's opinion that the
plaintiff's substance use disorder was not material to a
finding of disability, explaining that he found the opinions
of Drs. Bloom, Maierhofer, and Burkhart “more
persuasive given the stark contrast in the [plaintiff]'s
symptoms and daily activities during the periods of sobriety
versus periods of relapse.” Id. at 453.
See also id. at 451 (“Although Dr. Hymoff is a
practicing psychologist and is thoroughly familiar with the
Social Security disability standard, given Dr. Bloom's
clear assessment regarding the materiality of the
[plaintiff]'s substance use and as evidenced by the depth
and breadth of the daily activity during periods of sobriety,
the undersigned has difficulty reconciling Dr. Hymoff's
finding that the [plaintiff]'s substance use is not
material to a finding of disability.”).
gave great weight to the opinions of Drs. Maierhofer and
Burkhart that, although the plaintiff's substance abuse
disorder met Listing 12.09, in the absence of substance use,
his remaining mental impairments had no more than a minimal
effect on his ability to perform the basic mental demands of
work and, therefore, his substance use disorder was material
to the determination of disability. See id. He noted
that Drs. Maierhofer and Burkhart were “thoroughly
familiar with the Social Security Administration disability
standard, ” including the determination of whether a
claimant's substance use disorder is material to a
finding of disability, and based their opinions, which were
consistent with the evidence of record as a whole, “on
a longitudinal review of the medical evidence of
record.” Id. at 451-52.
gave “significant weight” to the April 30, 2012,
opinion of Dr. Bloom that the plaintiff's mental
impairments, after a five-month period of sobriety, did not
interfere with his ability to understand, remember, and carry
out instructions, interact with others, or respond to changes
in a routine work setting, as well as Dr. Bloom's May 15,
2012, observation that, with abstinence, the plaintiff was
“not manifesting incapacitating anxiety . . . although
[during] periods of withdrawal . . . he has significant
difficulty coping with his home situation.”
Id. at 452 (citations and internal quotation marks
omitted) (brackets in original).
acknowledged that the plaintiff had (i) argued that Dr.
Bloom's assessments should be given little weight because
they significantly overstated and misrepresented his
substance abuse issues and (ii) emphasized his objection to
Dr. Bloom's assessment of his social functioning,
asserting that he was unable to tolerate social interaction.
See id. However, the ALJ deemed those arguments
“without merit and inconsistent with [the
plaintiff's] self-report of his substance use and more
recent periods [of] increased and decreased level of
functioning during corresponding period[s] of recovery and
relapse.” Id. He added:
Dr. Bloom based his opinions on his treating relationship
with the [plaintiff, ] providing him with a longitudinal view
of the [plaintiff]'s course of treatment and the effect
of sobriety and relapse on his ability to function. Dr.
Bloom's opinion is consistent with the medical evidence
of record and the evidence of record as a whole. Moreover,
the undersigned notes that, inexplicably, the [plaintiff] did
not submit Dr. Bloom's April 30, 2012[, ] mental residual
functional capacity [opinion] at the time of his prior
hearing despite its availability. Further, the undersigned
notes that no follow up explanation was provided during the
supplemental hearing as to why Dr. Bloom's mental
residual functional capacity [opinion] was not submitted
prior to the undersigned's unfavorable decision issued on
December 17, 2013.
gave “some weight” to the Phillips assessment, to
the extent that it was consistent with his decision.
Id. He noted that (i) Dr. Phillips had deemed Dr.
Kahl's diagnosis of bipolar disorder unsupported by the
medical evidence of record, (ii) Dr. Kahl later conceded,
after reviewing Dr. Bloom's treatment notes, that Dr.
Bloom's diagnosis of an anxiety disorder was more
consistent with the record, and (iii) Dr. Phillips had