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Black v. Berryhill

United States District Court, D. New Hampshire

January 7, 2019

David Black
v.
Nancy A. Berryhill, Acting Commissioner, Social Security Administration

          MEMORANDUM AND ORDER

          Paul Barbadoro United States District Judge

         David Black challenges the Social Security Administration's denial of his claims for Supplemental Security Income (“SSI”) and Disability Insurance Benefits (“SSDI”). He contends that the Administrative Law Judge (“ALJ”) misapplied relevant law and failed to support his decision with substantial evidence. The Acting Commissioner, in turn, seeks an order affirming the ALJ's decision. Because the ALJ's decision does not adequately explain a discrepancy between Black's social limitations and the RFC assessment, I remand the case for further consideration.

         I. BACKGROUND

         Black is a 51-year-old man with a GED. He has worked as a mail driver, tow truck driver, fire sprinkler installer, and truck driver. See Administrative Transcript (hereinafter “Tr.”) 241, 276, 281-83.

         Multiple professionals concluded that Black has social problems. In July 2014, Dr. Shannon Tromp, a licensed clinical psychologist, interviewed Black and reviewed his records. Tr. 384. She noted no problems with understanding, memory, sustained concentration, or adapting to change. Tr. 387-88. He did, however, “present consistently with antisocial personality disorder.” Tr. 387. Black self-reported that he “lost a few jobs punching people out” and explained that “if the boss says something I don't like I'm gonna let them know.” Tr. 384. She noted Black was “socially appropriate with logical thought and cheerful affect” but that “he was very focused on telling his stories of aggressive behavior, he appeared to think they were funny and laughed while telling them.” Tr. 386. She diagnosed him with intermittent explosive disorder and antisocial personality disorder and opined that he would have “significant difficulty” with social interaction “due to intermittent explosive, violent behavior, short temper, [and] antisocial personality.” Tr. 388.

         In 2015, Black underwent counseling for those issues. See Tr. 654-728. He went to the Mohave Mental Health Clinic in Kingman, Arizona to “learn to better manage [his] anger and process [his] divorce” and reported his symptoms as “anger issues” and “explosive behavior.” Tr. 657. A few weeks later James Reyes performed a behavioral health assessment and diagnosed Black with intermittent explosive disorder, antisocial personality disorder, alcohol dependence, and cocaine dependence. Tr. 666. Black declined treatment for substance abuse problems, and denied group treatment, peer support and vocational services, and a psychiatric referral. Tr. 666. He assented to a behavioral health service plan that was intended to improve his communication with others, help him better manage his emotions, and avoid fighting. Tr. 681.

         Black spoke with therapists on the phone or in-person seven times from April to July of 2015. During one counseling session in July, the therapist, Laurie Modica, noted that Black “[m]et a girl when he was back home who told him she was pregnant and was doing drugs and this triggered him” and that he had been “drinking 15-18 beers a night to cope.” Tr. 686.[1] The clinic did not indicate that Black's intermittent explosive disorder had abated when he was discharged.

         State agency reviewing psychologist Dr. Stacy Koutrakos also found limitations caused by Black's social disorders. See Tr. 90-104. She concluded that Black had “moderate” difficulties in maintaining social functioning. Tr. 96. Dr. Koutrakos recommended a No. of limitations on Black's social interactions. She noted that his “ability to work in coordination with or in proximity to others without being distracted by them” was “moderately limited.” Tr. 101. So too were his ability to “interact appropriately with the general public, ” his “ability to accept instructions and respond appropriately to criticism from supervisors, ” and his “ability to get along with coworkers or peers without distracting them or exhibiting behavioral extremes.” Tr. 101. Dr. Koutrakos opined that Black “would likely perform best in an environment with limited social contact.” Tr. 101.

         State agency reviewing psychologist Dr. Carol Mohney Norcross reached similar conclusions about Black's social problems. Tr. 139-154. Like Dr. Koutrakos, Dr. Mohney determined that Black was “moderately limited” in his ability to work “in coordination with or in proximity to others without being distracted by them.” Tr. 150. Also like Dr. Koutrakos, Dr. Mohney found Black to be moderately limited in his abilities to interact appropriately with the general public, accept instructions and respond to supervisors, and get along with coworkers. Tr. 150. Again, Black was considered to “likely perform best in an environment with limited social contact.” Tr. 151.

         Black applied for benefits in March 2014 alleging disability as of July 2013 due to knee problems, anger disorder and an unspecified mental health issue.[2] Tr. 275. His application was denied at the initial and reconsideration levels. Tr. 89-154. Before the Appeals Council denied his request for review, see Tr. 1-5, an ALJ held a hearing at which Black appeared pro se. Tr. 6-23. In January 2017, the ALJ found that Black was not disabled. Id. Black appeals from that decision. See Tr. 20.

         II. THE ALJ'S DECISION

         The ALJ's conclusion followed from his application of the five-step, sequential analysis required by 20 C.F.R. § 416.920(a). See Tr. 9-18. At step one, the ALJ found that Black had not engaged in substantial gainful activity since October 2, 2013, the alleged onset date of his disability. See Tr. 11. At step two, the ALJ determined that Black was severely impaired by antisocial personality disorder and degenerative changes to his knees and right shoulder. Id. He also determined that Black suffered from sleep apnea but that his condition should be characterized as only a non-severe impairment under the Social Security Act. Tr. 12.

         At step three, the ALJ found that Black's impairments, considered individually or in combination, did not qualify as a listed impairment pursuant to 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr. 13-14 (citing 20 CFR §§ 404.1520(d), 404.1525, 404.1526, 616.920(d), 416.925 and 416.926). Although the ALJ observed that Black's mental impairment caused mild restrictions in his activities of daily living and moderate difficulties in social functioning, he found that “the severity of the claimant's mental impairment also does not meet or medically equal the criteria of listing 12.08.” Id.

         At step four, the ALJ determined that Black had the residual functional capacity (“RFC”) to perform light work, as defined in 20 C.F.R. §§ 416.1567(b) & 416.967(b), with limitations with respect to kneeling, crouching, crawling, and interaction with co-workers and the general public. See Tr. 15. Although the ALJ found that Black's “medically determinable impairments could reasonably be expected to cause the alleged symptoms, ” he concluded that Black's statements concerning the extent and effects of his symptoms were not “entirely consistent” with the record. Tr. 16. Among other things, the ALJ determined that Black's assertion that he could not work as a driver was inconsistent with his “self-report in March 2015” when he stated he had stopped working due to an argument with his boss. ...


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