United States District Court, D. New Hampshire
REPORT AND RECOMMENDATION
K. Johnstone United States Magistrate Judge.
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
Scope of Review
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,
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).
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
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.
applied for DIB and SSI in September of 2013. He claimed that
he was disabled by depression, anxiety, anemia, reflux, and
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. 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.
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.
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.”
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.
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.
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”),
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.
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.”
The Legal Framework
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.
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 ...