United States District Court, D. New Hampshire
MEMORANDUM AND ORDER
Barbadoro United States District Judge.
Nichols challenges the denial of his claims for Social
Security disability income ("SSDI") benefits
pursuant to 42 U.S.C. § 405(g). He contends that the
Administrative Law Judge ("ALJ") erred in
formulating his residual functional capacity
("RFC") by failing to adequately consider his
mental impairments and by improperly weighing the opinion of
his treating psychologist. The Acting Commissioner, in turn,
moves for an order affirming the ALJ's decision. For the
reasons that follow, I deny Nichols's motion and affirm
the Commissioner's decision.
is a 43 year-old man with a high school education. Doc. No.
14 at 2. He has previously worked as a tow truck operator, an
auto mechanic, a bench inspector, a machinist, and a
construction worker. See Administrative Transcript
65. He alleges that he has been disabled since December 28,
2011, due to a combination of physical and mental
impairments, including chronic leg pain, Hepatitis C, major
depressive disorder, post-traumatic stress disorder
("PTSD"), and opiate dependence in remission.
See Tr. 19, 22-23.
first filed for SSDI benefits in January 2012, alleging a
date last insured of December 31, 2012. Doc. No. 14 at 1. His
claim progressed to a hearing before an ALJ, Ruth Kleinfeld,
who issued a fully favorable decision on November 5, 2013,
finding that Nichols had been disabled since his alleged
onset date. Tr. 121, 123. On August 22, 2014, however, the
SSA Appeals Council vacated ALJ Kleinfeld's decision on
its own motion, finding two errors of law that, in its view,
required remand for further administrative development.
See Tr. 123-24. Because ALJ Kleinfeld ("the
first ALJ") had retired by the time of the Appeals
Council's order, Nichols's case was remanded to a
different ALJ, Thomas Merrill. See Tr. 123-24, 341.
second hearing was held on September 30, 2015 before ALJ
Merrill ("the second ALJ"). On December 22, 2015,
the second ALJ issued his written decision, concluding that
Nichols was not disabled at any time from December 11, 2011,
the alleged onset date, through December 31, 2012, his date
last insured. Tr. 34. On August 2, 2016, the Appeals Council
denied Nichols's request to review the second ALJ's
decision, see Tr. 1, thus making that decision the
final decision of the Acting Commissioner. Nichols now
First ALJ's Decision & Appeals Council's
a hearing held in August 2013, the first ALJ determined that
Nichols's had been disabled from December 28, 2011,
through November 5, 2013, the date of her decision. Tr. 114,
120. She reached that conclusion after applying the
five-step, sequential analysis required under 20 C.F.R.
§ 404.1520. At step one the first ALJ determined that
Nichols had not engaged in substantial gainful activity since
December 28, 2011, the alleged onset date. At step two, she
determined that Nichols suffered from "the following
severe impairments: chronic leg pain; gastroesophageal reflux
disease ("GERD"); sleep apnea; hepatitis;
depression with anxiety; [PTSD]; and opiate dependence in
remission." Tr. 116. At step three, she found that
Nichols's impairments did not equate to any listing in 20
C.F.R. Part 404, Subpart P, Appendix 1 that would render him
disabled per se. Id.
four, the first ALJ determined that Nichols had the mental
RFC to perform "light work, " with restriction
"to brief, unskilled, uncomplicated tasks; and brief and
superficial interaction with co-workers, supervisors, and the
public." Tr. 116-17. She further determined that
Nichols's ability to concentrate, persist, and sustain
pace was limited "to two-hour blocks throughout the
day." Tr. 117. In making that finding she considered
Nichols's full medical record up until the date of the
decision as well as his subjective complaints and testimony
as to the severity of his mental conditions, which she found
"generally credible." Tr. 119. At step five, she
determined that the demands of Nichols's past relevant
work exceeded his RFC, and ultimately concluded that there
were no jobs in significant numbers in the national economy
that Nichols could perform.
reaching this step-five conclusion, the first ALJ exclusively
relied upon the Medical Vocational Guidelines, 20 C.F.R. Part
404, Subpart P, App. 2 (the "Grid"), rather than
any vocational expert testimony. See Tr. 120. She
noted that in light of Nichols's age ("younger
individual"), education ("high school
graduate"), work experience ("semiskilled - skills
not transferable"), and RFC, a finding of "not
disabled" would ordinarily be directed by
Medical-Vocational Rule 202.21. Tr. 120. In considering the
added effect of Nichols's nonexertional limitations,
however, the first ALJ ultimately concluded that "a
finding of 'disabled' [was] appropriate under the
framework of [the] rule." Tr. 120. Finally, the first
ALJ determined that Nichols's substance use disorder was
not a contributing factor material to the finding of
disability, briefly explaining that as of July 2013 "he
was doing well, " "was stable, " and was
involved with group meetings three times per week.
See Tr. 121.
months later, in August 2014, the Appeals Counsel vacated the
first ALJ's decision on its own motion. Tr. 123-125. In a
written order, the Appeals Council explained its decision to
remand was based upon two errors. First, the Appeals Council
found that the first ALJ had erred at step-five by failing to
obtain vocational expert evidence that Nichols's could
not perform other work despite his functional limitations.
Tr. 123-24. Second, it found that the first ALJ had also
erred by failing to properly conduct the additional analysis
required when a claimant has a history of drug addiction or
alcoholism ("DAA Evaluation Process"), which takes
place following step-five. See Tr. 124; see
also 20 C.F.R. § 404.1535; Social Security Ruling
13-2P, 2013 WL 1221979 (S.S.A. Mar. 22, 2013) . Although the
first ALJ determined that Nichols's substance use was not
a contributing factor material to her disability finding, the
Appeals Council found that her decision lacked the specific
analysis required to support that conclusion. Tr. 124. Due to
those two errors of law, the Appeals Council concluded that
the first ALJ's decision was not supported by substantial
evidence, despite its preliminary finding that her step-four
RFC assessment for the period through December 31, 2012 was
substantially supported by the record. Tr. 123.
result, the Appeals Council vacated the first ALJ's
decision and remanded Nichols's claim to a second ALJ for
a new hearing. Tr. 125. Among other instructions upon remand,
the order directed the second ALJ to "[g]ive further
consideration to [Nichols's] maximum [RFC], " and
"[o]btain evidence from a vocational expert to clarify
the effect of the assessed limitations on [Nichols's]
occupational base." Tr. 124. The order also instructed
that "[i]f [Nichols] is found disabled, " the
second ALJ must "conduct the further proceedings
required to determine whether substance abuse is a
contributing factor material to the determination of
disability." Tr. 125.
THE SECOND ALJ'S DECISION
remand and a second hearing in August 2015, the second ALJ
issued a written decision on December 22, 2015, concluding
that Nichols had not been disabled at any time during the
pertinent period from December 28, 2011 through December 31,
2012. See Tr. 34. His conclusion
followed from his own application of the five-step,
sequential analysis to Nichols's claim. At steps one
through three, the second ALJ found that Nichols (i) had not
engaged in substantial gainful activity since December 11,
2011; (ii) had severe impairments of "status post ankle
fracture, Hepatitis C, major depressive disorder and
[PTSD]"; and (iii) did not have an impairment that met
or medically equaled the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr.
reaching the step-three conclusion with regards to
Nichols's mental impairments, the second ALJ thoroughly
considered the so called "paragraph B"
criteria. Specifically, the ALJ found that
Nichols's mental impairments resulted in (i) mild
restrictions in activities of daily living, (ii) moderate
difficulties in social functioning, and (iii) moderate
difficulties in maintaining concentration, persistence, or
pace. Tr. 24-25. He further found that Nichols had not
experienced any episodes of decompensation for an extended
duration. Tr. 25. In making those decisions, the second ALJ
gave substantial weight to the opinion of state consultative
psychologist, Michael Schneider, Psy.D., who had reviewed
Nichols's existing record during the pertinent period and
concluded that he had the mild and moderate limitations
discussed above. Tr. 25; see Tr. 101.
four, the second ALJ determined that Nichols had the RFC to
perform "light work, " as defined in 20 C.F.R.
§ 404.1567(b), with certain limitations. Tr. 26.
Regarding physical limitations, the second ALJ found that
Nichols could only perform postural activities on an
occasional basis, although he could balance frequently, and
that he had unlimited use of his hands and feet to operate
foot controls, push, and pull. See Tr. 26. Regarding
mental limitations, the second ALJ determined that Nichols
was able "to understand, remember, and carry out
[one-to-three] step instructions without special supervision,
" and was able to complete a normal eight hour workday
and 40 hour work week. Tr. 26. He also found that Nichols
could "interact appropriately with coworkers and
supervisors, with occasional contact with the general
[public]; and [could] respond to change in the work
setting" under those circumstances. Tr. 26, 66. In
making his finding, the second ALJ considered a variety of
medical sources, but gave "great weight" to the
opinion of Dr. Schneider, which will be further discussed
herein. Tr. 32. In light of this RFC and vocational expert
testimony, the second ALJ concluded that Nichols was unable
to perform any past relevant work. Tr. 33.
at step five, the ALJ ultimately determined that Nichols was
"not disabled" during the period under review. Tr.
33-34. In support of that conclusion, the second ALJ found
that in light of his age, education, work experience, and RFC
during the pertinent period, Nichols would have been capable
of performing certain light-exertional jobs that existed in
significant numbers in the national economy. See Tr.
33-34. He based this conclusion on the testimony of a
vocational expert, who opined at Nichols's second hearing
that a hypothetical person with Nichols's age, education,
work experience, and RFC could perform the representative
occupations of assembler, merchandise marker, and
housekeeper. Tr. 34, 65-67. Accordingly, the ALJ found that
Nichols was "not disabled" during the period from
December 11, 2011 through December 28, 2012. Tr. 34.
STANDARD OF REVIEW
authorized to review the pleadings submitted by the parties
and the administrative record and enter a judgment affirming,
modifying, or reversing the "final decision" of the
Commissioner. See 42 U.S.C. § 405(g). That
review is limited, however, "to determining whether the
ALJ used the proper legal standards and found facts [based]
upon the proper quantum of evidence." Ward v.
Comm'r of Soc. Sec, 211 F.3d 652, 655 (1st Cir.
2000). I defer to the ALJ's findings of fact, so long as
those findings are supported by substantial evidence.
Id. Substantial evidence exists "if a
reasonable mind, reviewing the evidence in the record as a
whole, could accept it as adequate to support his
conclusion." Irlanda Ortiz v. Sec'y of Health
& Human Servs., 955 F.2d 765, 769 (1st Cir. 1991)
(per curiam) (quoting Rodriguez v. Sec'y of Health
& Human Servs., 647 F.2d 218, 222 (1st Cir. 1981)).
ALJ's factual findings are supported by substantial
evidence, they are conclusive, even where the record
"arguably could support a different conclusion."
Id. at 770. If, however, the ALJ derived her
findings by "ignoring evidence, misapplying the law, or
judging matters entrusted to experts, " her findings are
not conclusive. Nguyen v. Chater, 172 F.3d 31, 35
(1st Cir. 1999) (per curiam). The ALJ is responsible for
determining issues of credibility, drawing inferences from
evidence in the record, and resolving conflicts in the
evidence. See Irlanda Ortiz, 955 F.2d at 769.
contends that the second ALJ's decision was not supported
by substantial evidence based on several grounds. Doc. No.
8-1 at 2. First, he argues that the second ALJ's mental
RFC was flawed in that "it was not based on the record
as a whole and [did] not consider the effect" of
Nichols's "mental impairments." Id. at
3. He principally faults the second ALJ for inadequately
explaining his divergence from the first ALJ's mental RFC
determination. Id. Second, he argues that the second
ALJ erred in failing to adequately explain the weight given
to certain medical sources in formulating Nichols's RFC.
Id. at 10. He specifically faults the second
ALJ's treatment of the opinion evidence of Melissa
Perrino, M.A., Nichols's treating mental-health
clinician; Marianne Marsh, M.D., one of Nichols's
treating psychologists; and the evidence of Nichols's
prior award of disability benefits by the state of New
Hampshire. Id. at 6-10. Third, Nichols argues that
the second ALJ erred in relying on a vocational expert's
testimony because the hypothetical posed to the expert at
step-five was not based upon substantial evidence.
Id. at 12; Doc. No. 11-1 at 22. Finally, Nichols
argues that the second ALJ erred by failing to comply with
the Appeals Council's order directing him to conduct the
analysis necessary for determining whether Nichols substance
abuse was a contributing factor "material to the
determination of disability." Doc. No. 8-1 at 13.
response, the Acting Commissioner contends that the second
ALJ's decision is supported by substantial evidence and
should be affirmed. Doc. No. 11-1 at 24. She argues that the
second ALJ's mental RFC determination was based on
substantial evidence, and that he appropriately considered
the expert opinions identified by Nichols. Id. at
4-7. She further argues that because the second ALJ did not
find Nichols disabled, he was not required to conduct the
analysis pertaining to material contribution of Nichols
substance abuse. Id. at 24. I address, and reject
each of Nichols's arguments in turn.
Failure to Adequately Consider ...