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Breitmaier v. Berryhill

United States District Court, D. New Hampshire

December 20, 2018

Marc Breitmaier
Nancy A. Berryhill, Acting Commissioner of Social Security



         Marc Breitmaier seeks judicial review of the decision of the Acting Commissioner of the Social Security Administration, denying in part his application for disability insurance benefits and supplemental social security income. Breitmaier moves to reverse the Acting Commissioner's decision, and the Acting Commissioner moves to affirm. For the reasons discussed below, the court grants the Acting Commissioner's motion to affirm and denies Breitmaier's motion to reverse.


         In reviewing the final decision of the Acting Commissioner in a social security case, the court “is limited to determining whether the [Administrative Law Judge] deployed the proper legal standards and found facts upon the proper quantum of evidence.” Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999); accord Seavey v. Barnhart, 276 F.3d 1, 9 (1st Cir. 2001). The court defers to the ALJ's factual findings as long as they are supported by substantial evidence. 42 U.S.C. § 405(g); see also Fischer v. Colvin, 831 F.3d 31, 34 (1st Cir. 2016). “Substantial evidence is more than a scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Astralis Condo. Ass'n v. Sec'y Dep't of Housing & Urban Dev., 620 F.3d 62, 66 (1st Cir. 2010).

         In determining whether a claimant is disabled, the ALJ follows a five-step sequential analysis. 20 C.F.R. §§ 404.1520(a)(4) & 416.920(a)(4).[1] The claimant “has the burden of production and proof at the first four steps of the process.” Freeman v. Barnhart, 274 F.3d 606, 608 (1st Cir. 2001). The first three steps are (1) determining whether the claimant is engaged in substantial gainful activity; (2) determining whether she has a severe impairment; and (3) determining whether the impairment meets or equals a listed impairment. 20 C.F.R. §§ 404.1520(a)(4)(i)-(iii).

         At the fourth step of the sequential analysis, the ALJ assesses the claimant's residual functional capacity (“RFC”), which is a determination of the most a person can do in a work setting despite her limitations caused by impairments, id. § 404.1545(a)(1), and his past relevant work, id. § 404.1520(a)(4)(iv). If the claimant can perform his past relevant work, the ALJ will find that the claimant is not disabled. See Id. § 404.1520(a)(4)(iv). If the claimant cannot perform his past relevant work, the ALJ proceeds to Step Five, in which the ALJ has the burden of showing that jobs exist in the economy which the claimant can do in light of the RFC assessment. See Id. § 404.1520(a)(4)(v).


         A detailed statement of the facts can be found in the parties' Joint Statement of Material Facts (doc. no. 11). The court provides a brief summary of the case here.

         On December 29, 2013, Breitmaier filed an application for disability insurance benefits and, on the following day, he filed an application for supplemental social security income. In both applications, he alleged a disability onset date of October 13, 2013, when he was 39 years old. He alleged a disability due to stroke, type II diabetes, unidentified mass at the base of his skull, severe fatigue, and kidney issues.

         After Breitmaier's claim was denied, he requested a hearing in front of an ALJ. On January 15, 2016, the ALJ held a hearing, during which Breitmaier testified and was represented by an attorney.

         After the hearing, the ALJ sent medical interrogatories to Dr. Malini Balakrishnan, an impartial medical expert. Dr. Balakrishnan reviewed Breitmaier's medical records, answered the ALJ's interrogatories, and completed a medical source statement of Breitmaier's ability to do work-related activities. The ALJ sent Dr. Balakrishnan's responses to Breitmaier's counsel, proposing to enter them into the record and inviting Breitmaier's attorney to submit comments on the evidence, ask questions to Dr. Balakrishnan, and/or request a supplemental hearing. In response, Breitmaier's counsel requested a supplemental hearing and asked that a vocational expert be present.[2]

         On November 10, 2016, the ALJ held the supplemental hearing. Breitmaier, with counsel, appeared and testified, as did a vocational expert.

         I. Medical Opinion Evidence

         Breitmaier suffered two strokes: the first in October 2013 and the second in April 2014. The medical record contains the opinions of two of Breitmaier's treating physicians: Dr. Alexander Asch and Dr. Rohit Marawar. It also contains the opinions of consultative psychiatrist Dr. Edward Drummond and the impartial medical expert, Dr. Balakrishnan.

         A. Dr. Drummond

         Dr. Drummond gave Breitmaier a psychological consultative exam in August 2014. Dr. Drummond opined that Breitmaier could understand and remember simple instructions and could pay attention, concentrate, and complete simple tasks appropriately and independently on a sustained basis, though he would be unable to do so at a reasonable pace. He also opined that despite his limitation, Breitmaier could be timely ...

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