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Benjamin B. v. Berryhill

United States District Court, D. Maine

October 8, 2018

BENJAMIN B., Plaintiff
v.
NANCY A. BERRYHILL, Acting 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 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.

         This 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.

         The ALJ 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 457.[2] 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. 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).

         I. Discussion

         A. The ALJ's Weighing of Opinion Evidence

         1. Background

         The ALJ 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, 743-44.

         The ALJ 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.”).

         The ALJ 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.

         The ALJ 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).

         The ALJ 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.

Id.

         The ALJ 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 ...


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