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Nichols v. US Social Security Administration, Acting Commissioner

United States District Court, D. New Hampshire

March 13, 2018

Bradley Nichols
v.
US Social Security Administration, Acting Commissioner

          MEMORANDUM AND ORDER

          Paul Barbadoro United States District Judge.

         Bradley 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.

         I. BACKGROUND

         Nichols 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 ("Tr.")

         46-47, 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.[1]

         A. Procedural History

         Nichols's 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.

         A 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 appeals.

         B. First ALJ's Decision & Appeals Council's Remand

         Following 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.

         At step 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.

         In 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.

         Nine 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.

         As a 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.

         II. THE SECOND ALJ'S DECISION

         Following 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.[2] 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. 22-23.

         In reaching the step-three conclusion with regards to Nichols's mental impairments, the second ALJ thoroughly considered the so called "paragraph B" criteria.[3] 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.

         At step 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.[4] 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.

         Finally, 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.

         III. STANDARD OF REVIEW

         I am 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)).

         If the 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.

         IV. ANALYSIS

         Nichols 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.

         In 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.

         A. Failure to Adequately Consider ...


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