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Beninson v. Berryhill

United States District Court, D. New Hampshire

February 4, 2019

Martin Beninson
v.
Nancy A. Berryhill, Acting Commissioner, Social Security Administration

          REPORT AND RECOMMENDATION

          Andrea K. Johnstone United States Magistrate Judge.

         Martin Beninson moves to reverse the decision of the Acting Commissioner of the Social Security Administration (“SSA”) to deny his applications for Social Security disability insurance benefits, or DIB, under Title II of the Social Security Act, 42 U.S.C. § 423, and for supplemental security income, or SSI, under Title XVI, 42 U.S.C. § 1382. The Acting Commissioner moves for an order affirming her decision. For the reasons that follow, the decision of the Acting Commissioner, as announced by the Administrative Law Judge (“ALJ”) should be affirmed.

         I. Scope of Review

         The scope of judicial review of the Acting Commissioner's decision is as follows:

The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing. The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive . . . .

42 U.S.C. § 405(g) (setting out standard of review for decisions on claims for DIB); see also 42 U.S.C. § 1383(c)(3) (applying § 405(g) to SSI decisions). However, the court “must uphold a denial of social security disability benefits unless ‘the [Acting Commissioner] has committed a legal or factual error in evaluating a particular claim.'” Manso-Pizarro v. Sec'y of HHS, 76 F.3d 15, 16 (1st Cir. 1996) (per curiam) (quoting Sullivan v. Hudson, 490 U.S. 877, 885 (1989)).

         As for the standard of review that applies when an applicant claims that an SSA adjudicator made a factual error,

[s]ubstantial-evidence review is more deferential than it might sound to the lay ear: though certainly “more than a scintilla” of evidence is required to meet the benchmark, a preponderance of evidence is not. Bath Iron Works Corp. v. U.S. Dep't of Labor, 336 F.3d 51, 56 (1st Cir. 2003) (internal quotation marks omitted). Rather, “[a court] must uphold the [Acting Commissioner's] findings . . . if a reasonable mind, reviewing the evidence in the record as a whole, could accept it as adequate to support [her] conclusion.” Rodriguez v. Sec'y of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981) (per curiam).

Purdy v. Berryhill, 887 F.3d 7, 13 (1st Cir. 2018).

         In addition, “the resolution of conflicts in the evidence and the determination of the ultimate question of disability is for [the Acting Commissioner], not for the doctors or for the courts.” Id. (quoting Rodriguez, 647 F.2d at 222). Thus, the court “must uphold the [Acting Commissioner's] conclusion, even if the record arguably could justify a different conclusion, so long as it is supported by substantial evidence.” Tsarelka v. Sec'y of HHS, 842 F.2d 529, 535 (1st Cir. 1988) (per curiam).

         II. Background

         The parties have submitted a Joint Statement of Material Facts (“Joint Statement”). That statement, document no. 15, is part of the court's record and is summarized here, not repeated in full.

         Beninson applied for DIB and SSI in September of 2013. He claimed that he was disabled by depression, anxiety, anemia, reflux, and allergies.

         The SSA's regulations include a list of physical and mental conditions that are per se disabling. Each individual listing includes a set of criteria that a condition must meet in order to qualify as a disabling or “listing-level” impairment. In those regulations, affective disorders are Listing 12.04; anxiety related disorders are Listing 12.06; and substance addiction disorders are Listing 12.09. See 20 C.F.R. Pt. 404, Subpt. P, App. 1.[1] Listings 12.04 and 12.06 each have three paragraphs of criteria, paragraphs A, B, and C. Listing 12.09, in turn, incorporates the criteria of nine different listings, including Listings 12.04 and 12.06.

         At the initial level of review, and on reconsideration, the SSA determined that: (1) Beninson's affective disorder did not satisfy the paragraph A, B, or C criteria of Listing 12.04; and (2) his anxiety related disorder did not satisfy the paragraph A, B, or C criteria of Listing 12.06. That led to an additional determination that Beninson's substance addiction disorder did not satisfy Listing 12.09.

         Beninson has a long history of substance abuse, but, with one exception, he has been drug free since 2013. The one exception was a suicide attempt in June of 2015, which involved an intentional drug overdose, revival by means of Narcan, and a four-hour visit to the emergency room. A provider note resulting from that visit states, in pertinent part: “Patient was found to be abusing heroin, cocaine. Responded well to a single dose of Narcan. Remainder of his evaluation is reassuring. He was observed for a period of time and then discharged with an adult sober friend.” Tr. 1538.

         On June 29, 2015, eight days after his suicide attempt, Beninson saw his primary-care provider, Dr. Leena Kamat. In a progress note, Dr. Kamat: (1) reported that Beninson was no longer suicidal; (2) diagnosed him with depression and anxiety; and (3) referred him to a psychiatrist, Dr. David Guggenhiem. Dr. Guggenheim also saw Beninson on June 29. He wrote a progress note that includes the following assessment:

[O]riented to time, place, person. Mood Depressed. Affect Flat. Speech Normal. Thought Process Intact. Judgment Intact. Insight Intact. Suicidal Concern Denies. Homicidal Concern Denies. Medication Compliance Yes.

Tr. 1470. In addition, Dr. Guggenheim noted: “Client was appropriately dressed and groomed and made appropriate eye contact. He was cooperative and answered questions in an open and honest manner.” Id.

         About a month after his suicide attempt, Beninson received his hearing before the ALJ. At the hearing, the ALJ agreed to hold the record open to allow Beninson to submit medical records that resulted from treatment he had received after his overdose. In his decision, the ALJ stated that “[d]espite [being] provided many opportunities . . . to submit further evidence post-hearing, the [claimant's] representative failed to provide any additional records.” Tr. 25. Beninson has provided the court with evidence tending to show that he did submit additional medical records to the ALJ in a timely fashion.

         In any event, after the hearing, the ALJ issued a written decision. In it, he determined that claimant had no severe physical impairments, but had three severe mental impairments, bipolar disorder, post-traumatic stress disorder, and substance abuse disorder. Next, he determined that none of claimant's impairments, either alone or in combination, met or medically equaled the severity of any of the impairments on the SSA's list of impairments that are per se disabling. Accordingly, the ALJ went on to assess Beninson's residual functional capacity (“RFC”), [2] and determined that he could “perform medium work as defined in 20 CFR 404.1567(c) and 416.967(c) except: [he] is limited to frequent interaction with supervisors, coworkers, and the public, and to following simple instructions and routine, repetitive tasks.” Tr. 32. After finding that claimant's mental RFC precluded him from doing his former work, the ALJ found that his mental limitations had “little or no effect on the occupational base of unskilled medium work, ” Tr. 37, and, therefore, determined that claimant was not under a disability from September 30, 2013, through the date of his decision, which was December 2, 2015.

         Beninson appealed the ALJ's adverse decision to the SSA Appeals Counsel. The Appeals Council accepted the evidence that Beninson had tried to place before the ALJ. But, it denied Beninson's request for review, explaining that the new evidence did “not show a reasonable probability that it would change the outcome of the [ALJ's] decision.” Tr. 2.

         III. Discussion

         A. The Legal Framework

         To be eligible for disability insurance benefits, a person must: (1) be insured for such benefits; (2) not have reached retirement age; (3) have filed an application; and (4) be under a disability. 42 U.S.C. §§ 423(a)(1)(A)-(D). To be eligible for supplemental security income, a person must be aged, blind, or disabled, and must meet certain requirements pertaining to income and assets. 42 U.S.C. § 1382(a). The question in this case is whether the ALJ correctly decided that Bennison was not under a disability between May 30, 2013, and December 2, 2015.

         To decide whether a claimant is disabled for the purpose of determining eligibility for either DIB or SSI benefits, an ALJ is required to employ a five-step process. See 20 C.F.R. §§ 404.1520 (DIB) & 416.920 (SSI).

The steps are: 1) if the [claimant] is engaged in substantial gainful work activity, the application is denied; 2) if the [claimant] does not have, or has not had within the relevant time period, a severe impairment or combination of impairments, the application is denied; 3) if the impairment meets the conditions for one of the “listed” impairments in the Social Security regulations, then the application is granted; 4) if the [claimant's] “residual functional capacity” is such that he or she can still perform past relevant work, then the application is denied; 5) if the ...

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