UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Kevin M. Ell, Claimant Case No. 16-cv-465-SM v. Opinion No.

Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Defendant

O R D E R

Pursuant to

(g) and 1383(c)(3), claimant,

Kevin Ell, moves to reverse or vacate the Acting Commissioner’s

decision denying his applications for Disability Insurance

Benefits under Title II of the Social Security Act and

Supplemental Security Income Benefits under Title XVI. See

, 1381-1383c (collectively, the “Act”). The Acting

Commissioner objects and moves for an order affirming her

decision.

For the reasons discussed below, claimant’s motion is

granted, and the Acting Commissioner’s motion is denied. Factual Background

I. Procedural History.

In October of 2013, claimant filed applications for

Disability Insurance Benefits (“DIB”) and Supplemental Security

Income (“SSI”), alleging that he was disabled and had been

unable to work since January 8, 2011. Claimant was 40 years old

at the time of his alleged onset of disability and had acquired

sufficient quarters of coverage to remain insured through March

of 2011. Those applications were denied and he requested a

hearing before an Administrative Law Judge (“ALJ”).

In July of 2015, claimant, his attorney, and an impartial

vocational expert appeared before an ALJ, who considered

claimant’s applications de novo. Three weeks later, the ALJ

issued his written decision, concluding that claimant was not

disabled, as that term is defined in the Act, at any time prior

to the date of his decision. Claimant then requested review by

the Appeals Council. That request was denied. Accordingly, the

ALJ’s denial of claimant’s applications for benefits became the

final decision of the Acting Commissioner, subject to judicial

review. Subsequently, claimant filed a timely action in this

court, asserting that the ALJ’s decision is not supported by

substantial evidence.

2 Claimant then filed a “Motion for Order Reversing Decision

of the Commissioner” (document no. 8). In response, the Acting

Commissioner filed a “Motion for an Order Affirming the Decision

of the Commissioner” (document no. 10). Those motions are

pending.

II. Stipulated Facts.

Pursuant to this court’s Local Rule 9.1, the parties have

submitted a joint statement of stipulated facts which, because

it is part of the court’s record (document no. 13), need not be

recounted in this opinion. Those facts relevant to the

disposition of this matter are discussed as appropriate.

Standard of Review

I. “Substantial Evidence” and Deferential Review.

Pursuant to

(g), the court is empowered “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.” Factual findings and credibility

determinations made by the Commissioner are conclusive if

supported by substantial evidence. See

(g),

1383(c)(3). See also Irlanda Ortiz v. Secretary of Health &

3 Human Services,

(1st Cir. 1991). Substantial

evidence is “such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” Consolidated

Edison Co. v. NLRB,

(1938). Importantly, it

is something less than a preponderance of the evidence, so the

possibility of drawing two inconsistent conclusions from the

evidence does not prevent an administrative agency’s finding

from being supported by substantial evidence. Consolo v.

Federal Maritime Comm’n.,

(1966). See also

Richardson v. Perales,

(1971).

II. The Parties’ Respective Burdens.

An individual seeking SSI and/or DIB benefits is disabled

under the Act if he or she is unable “to engage in any

substantial gainful activity by reason of any medically

determinable physical or mental impairment which can be expected

to result in death or which has lasted or can be expected to

last for a continuous period of not less than 12 months.”

(d)(1)(A). See also 42 U.S.C. § 1382c(a)(3). The

Act places a heavy initial burden on the claimant to establish

the existence of a disabling impairment. See Bowen v. Yuckert,

(1987); Santiago v. Secretary of Health &

Human Services,

(1st Cir. 1991). To satisfy that

4 burden, the claimant must prove, by a preponderance of the

evidence, that his impairment prevents him from performing his

former type of work. See Manso-Pizarro v. Sec’y of Health &

Human Servs.,

(1st Cir. 1996); Gray v. Heckler,

(1st Cir. 1985). If the claimant demonstrates

an inability to perform his previous work, the burden shifts to

the Commissioner to show that there are other jobs in the

national economy that he can perform, in light of his age,

education, and prior work experience. See Vazquez v. Secretary

of Health & Human Services,

(1st Cir. 1982).

In assessing a disability claim, the Commissioner considers

both objective and subjective factors, including: (1) objective

medical facts; (2) the claimant’s subjective claims of pain and

disability, as supported by the testimony of the claimant or

other witnesses; and (3) the claimant’s educational background,

age, and work experience. See, e.g., Avery v. Secretary of

Health & Human Services,

(1st Cir. 1986);

Goodermote v. Secretary of Health & Human Services,

(1st Cir. 1982). Ultimately, a claimant is disabled only if

his:

physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age,

5 education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.

(d)(2)(A). See also 42 U.S.C. § 1382c(a)(3)(B).

With those principles in mind, the court reviews claimant’s

motion to reverse and the Acting Commissioner’s motion to affirm

her decision.

Background - The ALJ’s Findings

In concluding that claimant was not disabled within the

meaning of the Act, the ALJ properly employed the mandatory

five-step sequential evaluation process described in

and 416.920. See generally Barnhart v. Thomas,

(2003). Accordingly, he first determined that

claimant had not been engaged in substantial gainful employment

before July or after August, 2014. Admin. Rec. at 19. Next, he

concluded that claimant suffers from the following severe

impairments: “substance abuse (IV drugs, cocaine, marijuana,

LSD); mild degenerative joint disease of the left shoulder,

status-post left rotator cuff repair; depression; mood disorder;

posttraumatic stress disorder (PTSD); antisocial personality

6 disorder; attention-deficit hyperactivity disorder (ADHD);

social phobia; hepatitis C; and obesity.”

But, the ALJ

concluded that claimant’s impairments, whether considered alone

or in combination, did not meet or medically equal one of the

impairments listed in Part 404, Subpart P, Appendix 1. Admin.

Rec. at 19-21.

Next, the ALJ concluded that claimant retained the residual

functional capacity (“RFC”) to perform the exertional demands of

“medium” work, subject to several limitations. Specifically,

the ALJ found that:

based on all of the impairments, including the substance use disorder, the claimant has the residual functional capacity to perform medium work as defined in 20 CFR 404.1567(c) and 416.967(c) except: the claimant can lift 50 pounds occasionally with the right upper extremity, but only 20 pounds occasionally with the left upper extremity; the claimant can occasionally push or pull with the left upper extremity; the claimant can frequently reach, but only occasionally reach overhead, with the left upper extremity; the claimant is limited to simple, unskilled work, with no interaction with the public, occasional interaction with co-workers, and no tandem tasks; the claimant is able to tolerate only occasional supervision; the claimant would be off task up to 25% of the workday; the claimant will miss more than three days of work per month; and due to mental impairments, this individual cannot sustain sufficient concentration, persistence or pace to do even simple, routine tasks on a regular and continuing basis for eight hours per day, five days per week, for a 40-hour work week or equivalent work schedule.

7 Admin. Rec. at 21. In light of those restrictions, the ALJ

concluded that claimant was not capable of performing any past

relevant work.

.

At the final step of the analysis, the ALJ considered

whether there were any jobs in the national economy that

claimant might perform, given his substantial non-exertional

limitations. Relying upon the testimony of the vocational

expert, the ALJ concluded that, “based on all of the

[claimant’s] impairments, including the substance use disorder,

there are no jobs that exist in significant numbers in the

national economy that the claimant can perform.”

.

Importantly, however, the ALJ went on to conclude that if the

claimant stopped his substance abuse, his non-exertional

limitations would not preclude him from performing a substantial

number of jobs in the national economy. Accordingly, he

determined that claimant is not disabled.

.

Specifically, the ALJ concluded that:

The substance use disorder is a contributing factor material to the determination of disability because the claimant would not be disabled if he stopped the substance use (20 CFR 404.1520(g), 404.1535, 416.920(g) and 416.935). Because the substance use disorder is a contributing factor material to the determination of disability, the claimant has not been disabled within the meaning of the Social Security Act

8 at any time from the alleged onset date through the date of this decision.

.

Discussion

Claimant challenges the ALJ’s decision on several grounds,

asserting that he erred by: (1) incorrectly finding that

claimant’s disability is due, in material part, to a substance

abuse disorder; (2) improperly performing a credibility

analysis; (3) failing to base his assessment of claimant’s RFC

on substantial evidence; and (4) incorrectly concluding that

claimant fails to meet Listing 12.06 for anxiety related

disorders. Because the court concludes that insufficient

evidence supports the ALJ’s determination that claimant’s

sporadic drug use is “a contributing factor material to the

determination of disability,” it need only address that issue.

Disability benefits under the Act are not available if

alcohol or drug abuse is “a contributing factor material to the

Commissioner’s determination that the individual is disabled.”

(d)(2)(C). Consequently, the critical question

presented when a claimant has a history of alcohol or drug abuse

is “whether [the Commissioner] would still find [the claimant]

9 disabled if [he or she] stopped using drugs or alcohol.”

(b)(1). See also

(b)(1).

It is, then, probably appropriate to discuss claimant’s history

of drug abuse.

Claimant says he first used cocaine around age 15. Admin.

Rec. at 537. By age 19, he had tried various hallucinogens,

including mushrooms, LSD, and mescaline.

When he was 20,

claimant began using cocaine a few times a week, with even

heavier use beginning at around age 25. Id. at 537, 766. So,

while the ALJ’s decision describes claimant’s drug use as

involving “IV drugs, cocaine, marijuana, [and] LSD,” Id. at 19,

that seems to have occurred when claimant was much younger; it

appears that, since his early 20’s, claimant has typically

abused just cocaine, which became his “drug of choice.” Id. at

543, 827.

At some point around 2005-06, claimant decided he wanted to

get clean - a decision that was prompted, at least in part, by

his girlfriend’s death from a heroin overdose. Id. at 537. He

attended a (court-ordered) 30-day treatment program at

Friendship House. Following his discharge he relapsed, but

remained motivated to break his habit. Over the years, he has

10 sought out various forms of both mental health treatment and

drug addiction counseling. As part of his efforts to remain

sober, he has also obtained a prescription for Suboxone (and,

when he felt it necessary to maintain his sobriety, he has

obtained Suboxone illegally).

He has, however, had several relapses over the years. Many

seem to have been precipitated by a traumatic event (such as the

death of a close friend), or increased depression and anxiety

(at which point he has engaged in a form of “self-medication”).

But, the record suggests that those relapses were relatively

infrequent and most were short-lived, following which claimant

resumed his efforts to stay clean. See, e.g., Admin. Rec. at

827 (after a year of being clean, claimant relapsed after being

arrested and bailed); 557 and 594-95 (in November of 2014,

claimant relapsed - perhaps for as long as two weeks - following

the death of his friend in a motor vehicle accident and

exhaustion of his medication); 618 (in February of 2015,

claimant relapsed following the suicide of his best friend,

after which he resumed attendance at daily meetings and was

working with his sponsor); 626 (relapse in April of 2015,

following what he described as a difficult therapy session); 835

(single occasion of relapse in May of 2015).

11 There are, however, numerous notes in claimant’s medical

records memorializing occasions on which he had “not relapsed

since his last visit.” See, e.g., Id. at 584; 589; 599; 601;

605; and 614.

In reaching the conclusion that if claimant stopped his

drug use, he would be capable of performing jobs that exist in

significant numbers in the national economy, the ALJ did not

rely upon any expert medical opinion(s). To be sure, the ALJ

initially afforded “great weight” to the opinions of two

examining experts (Sandra Vallery, Ph.D., and Philip Robbins,

Ph.D.), whose overall opinions are consistent with the

conclusion that claimant is disabled.

As for the opinion evidence, I afford great weight to the opinion of examining physician Sandra Vallery, Ph.D. On February 6, 2014, Dr. Vallery assessed that the claimant would be unable to interact appropriately with supervisors, remember lengthy, detailed instructions, and could not tolerate stressors common to the work environment. When substance abuse is included, I find this assessment to be generally consistent with the medical evidence of record, including Dr. Vallery’s own findings. I therefore find that Dr. Vallery’s opinion merits great weight. I also afford the opinion of examining physician Philip Robbins, Ph.D., great weight. On May 1, 2015, Dr. Robbins opined that the claimant would be unlikely to maintain attendance on a regular basis. (Exhibit B14F, p. 4) I find this assessment, when substance abuse is included, to be generally consistent with the medical evidence of record, including Dr. Robbins’s

12 own findings. I therefore find that his opinion merits great weight.

Admin. Rec. at 23. Subsequently, however, the ALJ reported that

he afforded “little weight” to those experts’ opinions regarding

claimant’s ability to function when sober.

I afford little weight to the opinions of Drs. Vallery and Robbins with regard to the claimant’s functioning when sober. The claimant provided Dr. Robbins with verifiably false information when he denied any history of substance abuse. Therefore Dr. Robbins’s opinion is based upon incorrect factual assumptions. Dr. Vallery’s opinion is also suspect, as the record remains quite unclear as to whether the claimant was sober from substances during that time. Toxicology screens from early 2014 are not available. However, once they did become available in October 2014, the claimant is seen to have failed more than one test for cocaine. Moreover, it must be noted that the claimant only began to receive toxicology screens because he admitted to abusing illegally obtained Suboxone. For all the above reasons, I afford little weight to the opinions of examining physicians Drs. Vallery and Robbins except to the extent they are consistent with the above residual functional capacity finding.

Admin. Rec. at 28 (emphasis supplied).

Parenthetically, the court notes that claimant did not

“deny” his history of drug abuse to Dr. Robbins. He simply did

not discuss it (seemingly because Dr. Robbins did not ask him

about it). Admin. Rec. at 634-38. There is a meaningful

difference. See generally Claimant’s Memorandum (document no.

13 8-1) at 9-10, 18 (discussing this issue in some detail); see

also Admin. Rec. at 354, Claimant’s Affidavit at para. 14.

Indeed, historically, claimant seems to have been open about his

drug use when speaking with treating sources. See, e.g., Admin.

Rec. at 536, 540, 695. Moreover, Dr. Robbins had copies of

claimant’s treatment notes, which included references to his

prescription for Suboxone (and certainly, at least by

implication, claimant’s cocaine use). The ALJ’s reasons for

discounting Dr. Vallery’s opinions, and for maintaining the

suspicion that claimant could have been under the influence when

he met with Dr. Vallery are equally suspect. See generally

Claimant’s Memorandum at 16-17.

Because he rejected the opinions of claimant’s examining

sources about claimant’s ability to function when sober,

affording them “little weight,” the ALJ was forced to rely upon

his own lay opinion and record evidence he believed suggests

that claimant experienced “increased functioning during periods

of sobriety.” Admin. Rec. at 27. But, the evidence cited by

the ALJ is not sufficient to support that conclusion.

Claimant more than adequately addresses this point in his

comprehensive and well-supported memoranda (document nos. 8-1

14 and 12). But, by way of example, the court notes that the ALJ

pointed to the following as evidence that claimant has

“increased functioning during periods of sobriety,” such that he

would not be disabled if he maintained his sobriety. First, the

ALJ noted that, “In December 2007, while incarcerated and

therefore sober, the claimant described his mood as ‘bored.’

The claimant described himself as ‘always outgoing, had lots of

friends’ in prison records dated August 11, 2008.” Admin. Rec.

at 27. It’s not entirely clear what that evidence suggests.

But, that very same page of claimant’s prison notes states that

he has been “depressed all [his] life,” and that he currently

suffers from increased intermittent sleep, is increasingly

anhedonic, has no appetite, has decreased energy, is

increasingly depressed and occasionally tearful, wakes up at

night with anxiety and tachycardia, and is anxious in crowds

(including the chow line), with tachycardia. Id. at 766. None

of that suggests that claimant has sufficiently increased

functioning when sober to render him non-disabled.

The ALJ also noted that, “The claimant worked for

approximately two months during the summer of 2014 hanging

ceiling tiles at a time he alleges sobriety.” Id. at 27. That

factual finding is based upon a note from a physician’s

15 assistant that makes an oblique reference to such work. Id. at

518. But, in his affidavit, claimant denies that he ever

engaged in such work and explains how and why the physician’s

assistant was mistaken. Id. at 354-55, Claimant’s Affidavit at

para. 16. Also, claimant’s documented physical ailments and

poor mental condition during that period make it unlikely that

he was able to work as a ceiling installer (and, therefore,

support his claim that he was not engaged in such work). See

Id. at 455, 460-61, 519, 695, 701-02.

As further evidence of claimant’s increased functioning

during periods of sobriety, the ALJ pointed to claimant’s

statement that he drove his girlfriend (with whom he lived) to

work each day for a period of time during the winter of 2014-

2015. Id. at 27. But, as claimant notes, one of his relapses

took place during that period and there is no evidence

suggesting it interfered with his ability to drive his

girlfriend to work. See Id. at 618-20. Again, the evidence

upon which the ALJ has relied does not support his thesis that,

during periods of sobriety, claimant is not disabled. That

evidence merely shows that claimant was able (or at least

willing) to drive both when sober and when potentially under the

influence.

16 Finally, the ALJ found that, “In June of 2015, following

two months of sobriety from cocaine, the claimant’s insight,

judgment, memory, attention span and concentration were all

‘fair’ by mental status examination.” Id. at 27 (citing notes

from a June 3, 2015, appointment at Riverbend Community Health

center). But, just a day earlier, claimant admitted to a recent

relapse - he used cocaine because he was feeling particularly

depressed and his sponsor was out of town and unavailable to

help him. Thus, one cannot plausibly conclude from that

evidence that claimant is only disabled when he is using

cocaine. Plainly, his depression seems to wax and wane, and the

link between that depression and his cocaine use is not clear.

The point of decision here is this: the ALJ’s conclusion

that “claimant’s functioning significantly improves during

periods of abstinence,” Admin. Rec. at 27, is not supported by

substantial evidence. Little, if anything, can be inferred from

the material cited by the ALJ to determine how much better (if

at all) claimant functions when he is not under the (infrequent)

influence of cocaine.

Given the apparent dearth of evidence directly addressing

claimant’s residual functional capacity when he is sober (as

17 compared to his RFC when under the influence), this case does

not lend itself to resolution without expert medical opinion on

the subject. As this court has observed:

The court of appeals for this circuit has repeatedly held that since bare medical findings are unintelligible to a lay person in terms of residual functional capacity, the ALJ is not qualified to assess residual functional capacity based on a bare medical record. Accordingly, when assessing a claimant’s RFC, the general rule is that an expert is needed to assess the extent of functional loss.

That general rule, however, is subject to an exception: the Commissioner is not precluded from rendering common-sense judgments about functional capacity based on medical findings, as long as the Commissioner does not overstep the bounds of a lay person’s competence and render a medical judgment. Thus, an expert’s RFC evaluation is required where the record is sufficiently ramified that understanding it requires more than a layperson’s effort at a commonsense functional capacity assessment.

Jabre v. Astrue, No. 11-CV-332-JL,

, at *8

(D.N.H. Apr. 5, 2012) (citations and internal punctuation

omitted), report and recommendation adopted sub nom. Jabre v. US

Soc. Sec. Admin., No. 11-CV-332-JL,

(D.N.H. Apr.

9, 2012).

Two medical experts - Dr. Robbins and Dr. Vallery - opined

that claimant likely cannot perform in a manner consistent with

gainful employment. To the extent the ALJ found reason to be

18 suspicious of those opinions, he should have either followed-up

with those experts, or required claimant to submit to another

consultative examination, specifically aimed at assessing his

RFC when sober. Under the circumstances presented in this case,

the ALJ was not permitted to simply discount the available

expert opinions and then, relying upon his lay opinion, reach a

conclusion opposite to that reached by those experts.

Conclusion

The Social Security Ruling that addresses “Drug Abuse and

Alcoholism” (“DAA”), provides the following guidance when

considering whether periods of abstinence or sobriety reveal

that drug abuse is material to a finding of disability:

In all cases in which we must consider periods of abstinence, the claimant should be abstinent long enough to allow the acute effects of drug or alcohol use to abate. Especially in cases involving co- occurring mental disorders, the documentation of a period of abstinence should provide information about what, if any, medical findings and impairment-related limitations remained after the acute effects of drug and alcohol use abated. Adjudicators may draw inferences from such information based on the length of the period(s), how recently the period(s) occurred, and whether the severity of the co-occurring impairment(s) increased after the period(s) of abstinence ended. To find that DAA is material, we must have evidence in the case record demonstrating

19 that any remaining limitations were not disabling during the period.

Titles II & XVI: Evaluating Cases Involving Drug Addiction &

Alcoholism (DAA), SSR 13-2P,

(Feb. 20, 2013)

(emphasis supplied; footnote omitted). The evidence cited by

the ALJ in this case is not sufficient to demonstrate that

claimant’s non-exertional limitations were not disabling during

his periods of abstinence.

For the foregoing reasons, as well as those set forth in

claimant’s memoranda (documents no. 8-1 and 12), claimant’s

motion to reverse the decision of the Commissioner (document no.

8) is granted to the extent he seeks a remand for further

proceedings. The Commissioner’s motion to affirm her decision

(document no. 10) is denied.

Pursuant to sentence four of

(g), the

decision of the ALJ dated August 11, 2015, is vacated and this

matter is hereby remanded for further proceedings consistent

with this order. The Clerk of Court shall enter judgment in

accordance with this order and close the case.

20 SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

January 5, 2018

cc: Elizabeth R. Jones, Esq. Robert J. Rabuck, Esq.

21