PAUL J. BARBADORO, District Judge.
Julio Roman 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, in turn, moves for an order affirming her decision. For the reasons that follow, I remand this matter to the Acting Commissioner for further proceedings.
The scope of judicial review of the Acting Commissioner's decision is as follows:
42 U.S.C. § 405(g) (setting out standard of review for decisions on claims for DIB);
Roman was born in 1977. As a child, he was sexually abused. As an adult, he has been injured by stabbings on several occasions. Roman last worked in 2011 as a grinder/finisher in a manufacturing business. Before that, he had worked as a line leader in manufacturing, as a lead/asbestos worker, as a janitor/backroom worker, as a demolition worker, and at odd jobs. For about two years, between 2013 and 2015, Roman was homeless. He attempted suicide in 2012 and 2014. His 2012 suicide attempt resulted in hospitalization. In August of 2016, Roman was incarcerated — not for the first time — and he remained in custody until two days before the May 2, 2018, hearing that resulted in the adverse decision he now appeals.
Roman has been diagnosed with several physical impairments including obstructive sleep apnea, peripheral neuropathy,
Tr. 1392.
Roman has also been diagnosed with major depressive disorder; bipolar 1 disorder; attention deficit hyperactivity disorder; mixed personality disorder with aspects of anti-social personality and borderline personality; posttraumatic stress disorder ("PTSD"); impulse-control disorder; alcohol dependence; cannabis dependence; opioid-use disorder; cocaine-use disorder; polysubstance dependence; and psychoactive-substance-abuse disorder with anxiety disorder. For those conditions, he has been treated with counseling and medication.
Roman applied for Social Security benefits in April of 2012. He claimed that he was unable to work due to chronic lower and upper back injuries and mental health issues. The Disability Determination Explanation form resulting from that application indicates that while the SSA scheduled an orthopedic consultative examination for Roman,
After the SSA denied Roman's application, he received a hearing before an Administrative Law Judge ("ALJ") in September of 2013. In January of 2014, the ALJ issued an unfavorable decision in which he determined that: (1) Roman had two severe mental impairments, PTSD and antisocial personality disorder, but had no severe physical impairments; (2) none of Roman's impairments, either alone or in combination, were severe enough to qualify as a disabling anxiety related disorder or as a disabling personality disorder under the applicable SSA regulations; (3) Roman did not have the residual functional capacity ("RFC") to perform his past work;
Roman appealed the ALJ's decision, and the SSA Appeals Council ("AC") remanded. In its remand order, the AC pointed out that the ALJ's decision did "not assess the severity of [Roman']s alcohol abuse," Tr. 243, and further explained that the ALJ's factual findings "suggest[ed] that alcohol abuse was a severe impairment that should have been assessed in [his] decision,"
Tr. 243-44. Finally, the AC provided several specific instructions for the ALJ on remand, including these: (1) "[f]urther evaluate the claimant's mental impairments in accordance with the special technique described in 20 CFR 416.920a, documenting application of the technique in the decision by providing specific finding and appropriate rationale for each of the functional areas described in 20 CFR 416.920a(c)"
On remand, the ALJ convened a hearing on June 1, 2016. At that hearing, a psychiatric expert, Dr. Nathan Strahl, acknowledged diagnoses of an affective disorder, an anxiety related disorder, a personality disorder, and a substance addiction disorder.
The SSA regulations in force at the time of Roman's 2016 hearing identified affective disorders (Listing 12.04), anxiety related disorders (Listing 12.06), and personality disorders (Listing 12.08) as mental impairments that were per se disabling, if certain requirements or criteria were satisfied. To meet Listing 12.04, an affective disorder needed to satisfy the criteria in paragraphs A and B of the listing, or satisfy the criteria in paragraph C. To meet Listing 12.06, an anxiety related disorder needed to satisfy the criteria in paragraphs A and B, or the criteria in paragraphs A and C. To meet Listing 12.08, a personality disorder needed to satisfy the criteria in both paragraphs A and B. Each of those three listings had the same paragraph B criteria, which required an impairment to result in at least two of the following:
20 C.F.R. Pt. 404, Subpt. P., App. 1, Listings 12.04, 12.06, 12.08 (2016 ed.).
According to Dr. Strahl's 2016 hearing testimony, when Roman was using alcohol and marijuana, he had: (1) moderate restrictions of his activities of daily living; (2) marked difficulties in maintaining social functioning; (3) moderate to marked difficulties in maintaining concentration, persistence or pace; and (4) a "mild" number of episodes of decompensation, each of extended duration. In other words, Dr. Strahl opined that when Roman was using alcohol and marijuana, three of his mental impairments satisfied the paragraph B criteria.
Then he opined that if Roman were "compliant with [mental health] treatment, not using substances, [and] tak[ing] [his] medications as prescribed on a regular basis," Tr. 139, he would have: (1) mild restrictions of his activities of daily living; (2) marked difficulties in maintaining social functioning; (3) mild difficulties in maintaining concentration, persistence or pace; and (4) no episodes of decompensation, each of extended duration. In other words, Dr. Strahl opined that without substance use, none of Roman's mental impairments would satisfy the paragraph B criteria.
After Dr. Strahl gave the foregoing testimony, the ALJ adjourned the hearing because Dr. Strahl did not have time to hear testimony from Roman and an additional witness who was scheduled to appear.
After several false starts, Roman's 2016 hearing was reconvened on May 2, 2018. A hearing scheduled for January 23, 2017, had been postponed so that the parties could obtain additional medical records, including records from correctional facilities in which Roman had been incarcerated. At the aborted January 23 hearing, Roman's counsel pointed out, correctly, that since the 2016 hearing, the SSA had amended the regulations setting out the requirements that mental impairments must satisfy in order to be disabling. Hearings scheduled for September 11 and December 11, 2017, were also postponed due to the unavailability of Roman's prison medical records.
When the 2016 hearing finally resumed in May of 2018, Roman's counsel conceded that she had no opinion evidence on Roman's physical RFC but argued that a common-sense view of the available evidence compelled a conclusion that Roman retained the RFC to perform no more than light work. In the alternative, she suggested that a consultative physical examination might be in order.
Dr. Strahl also testified at the 2018 hearing. Among other things, he said that nothing in Roman's prison medical records changed the opinion he gave at the 2016 hearing,
After Roman's hearing, the ALJ issued a decision in which he determined that Roman had three "severe [mental] impairments: PTSD/anxiety, a personality disorder (anti-social and borderline); and a substance abuse disorder," Tr. 21, but had no severe physical impairments. Furthermore, the ALJ denied Roman's request for a consultative physical examination, explaining:
Tr. 33.
The ALJ determined that when Roman is using substances, his mental impairments meet or equal the severity of Listings 12.04 (depressive, bipolar, and related disorders), 12.06 (anxiety and obsessive-compulsive disorders), 12.08 (personality and impulse-control disorders), and 12.15 (trauma- and stressor-related disorders).
Without differentiating between the four listings at issue, the ALJ found that
Tr. 24.
Then the ALJ turned to the new paragraph B criteria, which are the same for all four listings at issue and which call for:
20 C.F.R. Pt. 404, Subpt. P., App. 1, Listings 12.04, 12.06, 12.08, 12.15 (2018 ed.).
The ALJ made no findings with respect to the paragraph C criteria.
Based upon his findings on the paragraph A and paragraph B criteria, the ALJ determined that when Roman is using substances, his mental impairments meet Listings 12.04, 12.06, 12.08, and 12.15.
The ALJ went on find that if Roman stopped his substance use, his mental impairments would no longer meet Listings 12.04, 12.06, 12.08, or 12.15. In making that finding, the ALJ did not mention either the paragraph A criteria or the paragraph C criteria but rather, he relied exclusively on his paragraph B findings that, without substance use, Roman would have: (1) "mild limitation in understanding, remembering, or applying information," Tr. 26; (2) mild limitation in interacting with others;
After determining that in the absence of substance use, Roman would not have any listing-level mental impairment, the ALJ determined that absent substance use, Roman "would have the residual functional capacity to perform a full range of work at all exertional levels." Tr. 27.
Based upon the RFC he assigned Roman, and the testimony of a vocational expert, the ALJ determined that if Roman "stopped [his] substance use, [he would be] capable of performing past relevant work as a janitor, asbestos worker, construction worker II, and grinder polisher."
To be eligible for disability insurance benefits, a person must: (1) be insured for that benefit; (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 only question in this case is whether the ALJ correctly determined that Roman was not under a disability from August 1, 2012, through June 20, 2018.
To decide whether a claimant is disabled for the purpose of determining eligibility for either DIB or SSI, an ALJ is required to employ a five-step sequential evaluation process.
At the first four steps in the sequential evaluation process, the claimant bears both the burden of production and the burden of proof.
Roman claims that the ALJ erred by: (1) failing to properly evaluate his physical impairments; (2) relying on Dr. Strahl's testimony; and (3) failing to properly evaluate the medical-opinion evidence. In his second claim, Roman notes that "the ALJ's decision includes no analysis of the [paragraph] C criteria at step 3 or anywhere in the decision." Cl.'s Mem. of Law (doc. no. 9-1) 16. That, in turn, points directly to the fatal flaw in the ALJ's decision, which is the manner in which he determined that Roman would not have a listing-level mental impairment if he were to abstain from alcohol and marijuana.
With regard to the relationship between substance use and disability, the Social Security Act provides that
42 U.S.C. § 423(d)(2)(C). Thus, when a claimant is found to be disabled, as Roman was in this case,
Like the burden of proving disability, the burden of proving that DAA is immaterial rests with the claimant.
The analysis described in 20 C.F.R. §§ 404.1535 and 416.935 "requires the ALJ to engage in the familiar five-step sequential analysis for a second time, while discounting the effects of the claimant's substance abuse."
When engaging in the five-step analysis to evaluate a claim involving mental impairments, either with or without substance use, SSA decisionmakers at all levels must employ the "special technique" set out in 20 C.F.R. §§ 404.1520a and 416.920a. At step three, the special technique requires decisionmakers to "compare[ ] the medical findings about [the claimant's] impairment(s) and the rating of the degree of functional limitation to the criteria of the appropriate listed mental disorder," §§ 404.1520a(d)(2) & 416.920a(d)(2), and to "record the presence or absence of the criteria . . . in the decision at the administrative law judge hearing . . . level[ ],"
At the first installment of Roman's second hearing, in June of 2016, Dr. Strahl offered testimony that when Roman was using alcohol and/or marijuana, his mental impairments satisfied the paragraph B criteria of Listings 12.04, 12.06, and 12.08, but would not satisfy the paragraph B criteria if he were to abstain from using those substances. It does not appear that Dr. Strahl offered any opinions on whether Roman's mental impairments would satisfy either the paragraph A criteria or the paragraph C criteria if he were to be abstinent.
At the second installment of Roman's second hearing, in May of 2018, Dr. Strahl reaffirmed his previous testimony regarding the paragraph B criteria. But, as before, it does not appear that he said anything about any of the relevant paragraph A criteria.
In his decision, the ALJ determined that with substance use, Roman's mental impairments met Listings 12.04, 12.06, 12.08, and 12.15 because they satisfied the paragraph A and paragraph B criteria for those four listings. Then he determined that without substance use, Roman's mental impairments would not meet any of those four listings. He based that determination on his finding that "the paragraph B criteria would not be satisfied if the claimant stopped [his] substance use," Tr. 26, and his observation that "no State agency psychological consultant concluded that a mental listing is medically equaled if the claimant stopped [his] substance use,"
The problem with the ALJ's decision is that failing to satisfy the paragraph B criteria, without more, does not prevent a mental impairment from meeting Listing 12.04, Listing 12.06, or Listing 12.15. Each of those listings can be met by an impairment that satisfies the criteria in paragraphs A and C.
One may reasonably infer from the ALJ's decision a finding that Roman's mental impairments: (1) did not satisfy the paragraph A criteria for Listings 12.04, 12.06, or 12.15; or (2) did not satisfy the paragraph C criteria shared by all three listings. Coupled with a failure to satisfy the paragraph B criteria, either a failure to satisfy the paragraph A criteria or a failure to satisfy the paragraph C criteria would be a sufficient basis for determining that Roman's mental impairments did not meet Listings 12.04, 12,06, or 12.15. But the ALJ did not "record the presence or absence of the [paragraph A or C] criteria . . . in his decision," as required by 20 C.F.R. §§ 404.1520a(d)(2) and 416.920a(d)(2), nor did he "compar[e] the medical findings about [Roman's mental] impairments . . . to the [paragraph A or C] criteria of the appropriate listed mental disorders," as is also required by those regulations. Rather, he said nothing at all about whether Roman's mental impairments, in the absence of substance use, would satisfy the paragraph A or the paragraph C criteria of Listings 12.04, 12.06, or 12.15. The Acting Commissioner does not argue to the contrary. By failing to follow §§ 404.1520a(d)(2) and 416.920a(d)(2), the ALJ erred.
In a recent decision from the District of Massachusetts, Magistrate Judge Robertson pointed out that "[a]lthough the First Circuit has not decided the consequences of noncompliance with the special technique outlined in 20 C.F.R. § 404.1520a, district courts in this circuit and other circuits have required remand in circumstances similar to those presented here."
That said, I acknowledge that some courts, under some circumstances, have ruled that a failure to make the findings required by 20 C.F.R. §§ 404.1520a(e) and 416.920a(e) can be a harmless error. For example, the Sixth Circuit once held that an "ALJ's failure to rate the [paragraph] B criteria, while error, was harmless in this case."
To begin, in
Here, after comparing the evidence of record to the paragraph B criteria, the ALJ found that none of Roman's mental impairments met Listings 12.04, 12.06, 12.08, or 12.15. But an impairment will meet Listings 12.04, 12.06, or 12.15 if it satisfies either the criteria in paragraphs A and B or the criteria in paragraphs A and C. Thus, to find that Roman's mental impairments did not meet those listings, the ALJ had to have found that they did not satisfy
In sum, this matter must be remanded for a proper and properly documented application of the special technique at step three of the sequential evaluation process.
While this matter must be remanded for a proper determination of whether any of Roman's mental impairments, absent substance use, meet or equal the severity of a listed impairment, there is another matter that the Acting Commissioner may be well advised to consider on remand,
The ALJ determined, at step 2 in the sequential evaluation process, that Roman's diagnosed low back pain with radiculopathy was not a severe impairment. Because step 2 is a low threshold to cross,
As I have noted, the ALJ determined that Roman had the physical RFC to perform work at all exertional levels. He explained that finding this way:
Tr. 33. Thereafter, the ALJ denied Roman's request for a consultative examination on grounds that "[t]here [was] no need to further develop the record [because] the evidence already in evidence [was] adequate for [him] to make a determination as to eligibility."
However, the evidence before the ALJ included no expert opinion regarding Roman's physical RFC, which makes this case an analog to
No. 2:13-cv-246-JDL, 2014 WL 3784237, at *4 (D. Me. July 31, 2014) (footnote omitted). After pointing out that "[a]n administrative law judge may properly reject a claim for benefits for lack of evidence,"
For the reasons detailed above, the Acting Commissioner's motion for an order affirming her decision, document no. 13, is denied, and Roman's motion to reverse that decision, document no. 9, is granted to the extent that this matter is remanded to the Acting Commissioner, pursuant to sentence four of 42 U.S.C. § 405(g), for further proceedings consistent with this order. The clerk of the court shall enter judgment in favor of Roman and close the case.
20 C.F.R. Pt. 404, Subpt. P, App.1, Listings 12.04, 12.06, 12.15 (2018 ed).
