CHANDA v. SOCIAL SECURITY ADMINISTRATION COMMISSIONER
Filing
15
MEMORANDUM DECISION re 9 SS Statement of Errors/Fact Sheet. By MAGISTRATE JUDGE JOHN H. RICH III. (mnw)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
WILLIAM JOSEPH CHANDA, JR.,
Plaintiff
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant
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No. 2:15-cv-52-JHR
MEMORANDUM DECISION1
This Social Security Disability (“SSD”) and Supplemental Security Income (“SSI”) appeal
raises the question of whether the administrative law judge supportably found that, although the
plaintiff was disabled, his substance use was material to his disability, disqualifying him from
receiving benefits. The plaintiff seeks remand on the basis that the administrative law judge failed
to comply with Social Security Ruling 13-2p (“SSR 13-2p”) in making that determination. See
Itemized Statement of Errors Pursuant to Local Rule 16.3 Submitted by Plaintiff (“Statement of
Errors”) (ECF No. 9) at 2-7. I find no error and, accordingly, affirm the commissioner’s decision.
Pursuant to the commissioner’s sequential evaluation process, 20 C.F.R. §§ 404.1520,
416.920; Goodermote v. Secretary of Health & Human Servs., 690 F.2d 5, 6 (1st Cir. 1982), the
1
This action is properly brought under 42 U.S.C. §§ 405(g) and 1383(c)(3). The commissioner has admitted that the
plaintiff has exhausted his administrative remedies. The case is presented as a request for judicial review by this court
pursuant to Local Rule 16.3(a)(2), which requires the plaintiff to file an itemized statement of the specific errors upon
which he seeks reversal of the commissioner’s decision and to complete and file a fact sheet available at the Clerk’s
Office, and the commissioner to file a written opposition to the itemized statement. Oral argument was held before
me on September 18, 2015, pursuant to Local Rule 16.3(a)(2)(D), requiring the parties to set forth at oral argument
their respective positions with citations to relevant statutes, regulations, case authority, and page references to the
administrative record. The parties have consented to have me conduct all proceedings in this matter, including the
entry of judgment. ECF No. 13.
1
administrative law judge found, in relevant part, that the plaintiff had severe impairments of
borderline personality disorder and polysubstance abuse disorder, Finding 3, Record at 18; that his
borderline personality disorder, in combination with his substance use disorders, met Listing
12.08, Appendix 1 to 20 C.F.R. Part 404, Subpart P (the “Listings”) and, by reference, Listing
12.09, Finding 4, id. at 19; that, if he stopped his substance use, he would not have any impairment
or combination of impairments that met or medically equaled any of the Listings, Finding 6, id. at
21; that, if he stopped his substance use, he would have the residual functional capacity (“RFC”)
to perform a full range of work at all exertional levels and, on a sustained, competitive basis, could
understand, remember, and carry out simple instructions, use judgment in making simple workrelated decisions, respond appropriately to coworkers, supervisors, and usual work situations not
involving the public, and adapt to changes in the ordinary work setting, Finding 7, id. at 22; that,
if he stopped substance use, he would be able to perform some past relevant work, Finding 8, id.
at 29; that, if he stopped substance use, considering his age (28 years old, defined as a younger
individual, on his alleged disability onset date, September 14, 2012), education (at least high
school), work experience (transferability of skills immaterial), and RFC, there were jobs existing
in significant numbers in the national economy that he could perform, Findings 9-12, id. at 30; that
his substance use disorder was a contributing factor material to the determination of disability,
because he would not have been disabled if he stopped substance use, Finding 13, id. at 31; and
that, because his substance use disorder was material to the determination of disability, he had not
been disabled within the meaning of the Social Security Act at any time from his alleged onset
date, September 14, 2012, through the date of the decision, September 4, 2014, Finding 14, id. at
31. The Appeals Council declined to review the decision, id. at 1-3, making the decision the final
2
determination of the commissioner, 20 C.F.R. §§ 404.981, 416.1481; Dupuis v. Secretary of Health
& Human Servs., 869 F.2d 622, 623 (1st Cir. 1989).
The standard of review of the commissioner’s decision is whether the determination made
is supported by substantial evidence. 42 U.S.C. §§ 405(g), 1383(c)(3); Manso-Pizarro v. Secretary
of Health & Human Servs., 76 F.3d 15, 16 (1st Cir. 1996). In other words, the determination must
be supported by such relevant evidence as a reasonable mind might accept as adequate to support
the conclusion drawn. Richardson v. Perales, 402 U.S. 389, 401 (1971); Rodriguez v. Secretary
of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981).
I. Discussion
The need to determine whether substance use is material to disability stems from a
provision of the Contract with America Advancement Act of 1996 (“Contract with America”) that
“eliminated disability benefits where drug addiction or alcoholism was a contributing factor
material to the Commissioner’s determination of disability.” Bartley v. Barnhart, 117 Fed. Appx.
993, 994 (6th Cir. 2004) (citation and internal quotation marks omitted); see also 42 U.S.C.
§ 423(d)(2)(C).
That Contract with America directive was incorporated into the agency’s regulations,
which provide in relevant part:
(1) The key factor we will examine in determining whether drug addiction or
alcoholism is a contributing factor material to the determination of disability is
whether we would still find you disabled if you stopped using drugs or alcohol.
(2) In making this determination, we will evaluate which of your current physical
and mental limitations, upon which we based our current disability determination,
would remain if you stopped using drugs or alcohol and then determine whether
any or all of your remaining limitations would be disabling.
(i) If we determine that your remaining limitations would not be disabling, we will
find that your drug addiction or alcoholism is a contributing factor material to the
determination of disability.
3
(ii) If we determine that your remaining limitations are disabling, you are disabled
independent of your drug addiction or alcoholism and we will find that your drug
addiction or alcoholism is not a contributing factor material to the determination of
disability.
20 C.F.R. §§ 404.1535(b), 416.935(b). Effective March 22, 2013, the commissioner adopted the
ruling on which the plaintiff relies, SSR 13-2p, to explain the agency’s policies for how it considers
whether drug addiction and alcoholism (“DAA”) are material to its determination of disability.
See SSR 13-2p, reprinted in West’s Social Security Reporting Service Rulings 1983-1991 (Supp.
2015), at 479.
The plaintiff complains that, in contravention of sections 7 and 9 (the latter, mistakenly
referred to as section 8) of SSR 13-2p, the administrative law judge (i) failed to establish that,
during a period of sustained abstinence, long enough for the acute symptoms to abate, the plaintiff
did not suffer disabling limitations and (ii) relied solely on the testimony of a medical expert at
hearing, James M. Claiborn, Ph.D., to conclude that substance abuse was material. See Statement
of Errors at 3-6.
He also suggests that the administrative law judge erred in handling contrary evidence
regarding the materiality of his DAA, namely, a U.S. Department of Veterans Affairs (“VA”)
decision awarding him disability benefits effective November 15, 2012, based on bipolar disorder
and the opinion of Kerry Kimball, Ph.D., who performed a rating examination for the VA, that, “It
appears from the information available that the Veteran[’s] Substance Use Disorder, alcohol[,] is
a product of and cannot be differentiated from his unstable mood (Bipolar I Disorder).” Id. at 3
(quoting Record at 383); see also id. at 6.
A. Necessity of Period of Abstinence
SSR 13-2p contains separate provisions addressing analysis of periods of abstinence
(section 9), whether a co-occurring physical impairment would improve in the absence of DAA
4
(section 6), and whether a co-occurring mental impairment would improve in the absence of DAA
(section 7). See SSR 13-2p at 486-88, 491-92. The ruling uses the term “period of abstinence” to
“describe a period in which a claimant who has, or had, been dependent upon or abusing drugs or
alcohol . . . stopped their use.” Id. at 486 n.17. It is clear, from oral argument, that the parties
agree that the plaintiff had no period of abstinence, that his only co-occurring impairment is
mental, and that section 7 of SSR 13-2p, pertaining to mental impairments, applies. However,
they differ sharply in their interpretation of that ruling.
The plaintiff’s counsel contended that, on its face, SSR 13-2p precludes a finding that drug
and alcohol abuse is material unless a claimant with co-occurring mental impairments has had a
sustained period of abstinence. Counsel for the commissioner disagreed, based not only on his
reading of the ruling but also on citation, in the commissioner’s brief and/or at oral argument, to
several cases, including Parra v. Astrue, 481 F.3d 742 (9th Cir. 2007), Haning v. Calvin [sic],
Case No. 2:14-cv-573, 2015 WL 4593414 (S.D. Ohio July 30, 2015), and Wilson v. Colvin, No.
13-cv-2439-DDC, 2015 WL 416438 (D. Kan. Jan. 30, 2015).
For the reasons that follow, I conclude, based on the foregoing authorities and my own
research, that, although SSR 13-2p can be read as the plaintiff’s counsel suggests, the better
reading, based not only on its plain language but also Congress’s intent in enacting the Contract
with America, is that of the commissioner.
Section 9 of SSR 13-2p, which answers the question, “How do we consider periods of
abstinence?[,]” provides, in relevant part:
a.
Each substance of abuse, including alcohol, has different
intoxication and long-term physiologic effects. In addition, there is a wide variation
in the duration and intensity of substance use among claimants with DAA, and there
are wide variations in the interactions of DAA with different types of physical and
mental disorders. For these reasons, we are unable to provide exact guidance on
the length and number of periods of abstinence to demonstrate whether DAA is
5
material in every case. In some cases, the acute and toxic effects of substance use
or abuse may subside in a matter of weeks, while in others it may take months or
even longer to subside. For some claimants, we will be able to make a judgment
about materiality based on evidence from a single, continuous period of abstinence,
while in others we may need to consider more than one period.
b.
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 that any remaining limitations were not
disabling during the period.
SSR 13-2p at 491 (footnotes omitted).
Section 6, which answers the question, “What do we do if the claimant’s other physical
impairment(s) improve in the absence of DAA?[,]” provides, in relevant part:
a.
DAA can cause or exacerbate the effects of physical impairments.
In some cases, the impairments and their effects may resolve or improve in the
absence of DAA.
b.
Usually, evidence from a period of abstinence is the best evidence
for determining whether a physical impairment(s) would improve to the point of
nondisability. The period of abstinence should be relevant to the period we are
considering in connection with the disability claim. This evidence need not always
come from an acceptable medical source. If we are evaluating whether a claimant’s
work-related functioning would improve, we may rely on evidence from “other”
medical sources, such as nurse practitioners, and other sources, such as family
members, who are familiar with how the claimant has functioned during a period
of abstinence.
c.
We expect some physical impairments to improve with abstinence
from drugs or alcohol.
***
iv.
Some claimants who have been diagnosed with a Substance Use
Disorder do not have a period of abstinence. If a claimant does not have a period
of abstinence, an acceptable medical source can provide a medical opinion
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regarding whether the claimant’s impairments would be severely limiting even if
the claimant stopped abusing drugs or alcohol. We consider the opinion of an
acceptable medical source sufficient evidence regarding materiality as long as the
acceptable medical source provides support for their opinion. The determination
or decision must include information supporting the finding.
***
d.
We will find that DAA is not material to the determination of
disability and allow the claim if the record is fully developed and the evidence
(including medical opinion evidence) does not establish that the claimant’s physical
impairment(s) would improve to the point of nondisability in the absence of DAA.
Id. at 487-88 (citations and footnotes omitted).
Finally, section 7, which answers the question, “What do we do if the claimant’s cooccurring mental disorder(s) improve in the absence of DAA?[,]” provides, in relevant part:
a.
Many people with DAA have co-occurring mental disorders; that is,
a mental disorder(s) diagnosed by an acceptable medical source in addition to their
DAA. We do not know of any research data that we can use to predict reliably that
any given claimant’s co-occurring mental disorder would improve, or the extent to
which it would improve, if the claimant were to stop using drugs or alcohol.
b.
To support a finding that DAA is material, we must have evidence
in the case record that establishes that a claimant with a co-occurring mental
disorder(s) would not be disabled in the absence of DAA. Unlike cases involving
physical impairments, we do not permit adjudicators to rely exclusively on medical
expertise and the nature of a claimant’s mental disorder.
***
d. We will find that DAA is not material to the determination of disability
and allow the claim if the record is fully developed and the evidence does not
establish that the claimant’s co-occurring mental disorder(s) would improve to the
point of nondisability in the absence of DAA.
Id. at 488.
At oral argument, the plaintiff’s counsel noted and/or argued that:
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1.
Although section 6 expressly contemplates the analysis of improvement in co-
occurring physical impairments without the benefit of a period of abstinence, section 7 contains
no such provision with respect to co-occurring mental impairments.
2.
While section 6 permits sole reliance on the opinion of a medical source to establish
materiality in cases in which there is no period of abstinence, section 7 expressly bars sole reliance
on medical expertise and the nature of a claimant’s mental disorder.
3.
In section 7(a), the commissioner admits that she knows of no research data that
can be used to predict reliably that a given claimant’s co-occurring mental disorders would
improve upon the cessation of drug or alcohol use, lending support to the notion that, as to these
disorders, no evidence but that gleaned from a period of sustained abstinence can demonstrate the
materiality of DAA.
4.
Section 9(b) reinforces that what is required to demonstrate materiality in the case
of co-occurring mental impairments is a period of abstinence long enough to allow the acute effects
of DAA to abate.
5.
Section 7 directs adjudicators to find DAA non-material if the evidence “does not
establish that the claimant’s co-occurring mental disorder(s) would improve to the point of
nondisability in the absence of DAA.” Id. (emphasis added).2
Counsel for the commissioner rejoined that SSR 13-2p does not expressly dictate that there
must be a period of abstinence in cases of co-occurring mental impairments before an adjudicator
can find DAA material. He argued that section 9, on its face, contemplates that an adjudicator will
not always have the benefit of consideration of a period of abstinence, stating, for example, “In all
cases in which we must consider periods of abstinence . . . .” Id. at 491 (emphasis added). He
2
Section 6 contains nearly identical language. See SSR 13-2p at 488.
8
observed that, notwithstanding the language in section 7(d) to which the plaintiff’s counsel
pointed, section 5(a) of the ruling makes clear that the claimant, not the commissioner, bears “the
burden of proving disability throughout the DAA materiality analysis.” Id. at 483. Finally, he
argued that construing the ruling as the plaintiff does would turn the Contract with America on its
head, permitting claimants with co-occurring mental impairments to obtain benefits because they
are continuing to abuse drugs and/or alcohol.
The commissioner’s argument is persuasive. SSR 13-2p does not expressly state that, in
cases of co-occurring mental impairments, DAA cannot be found material unless there is a
sustained period of abstinence. While section 7(b) makes clear that, unlike in the case of cooccurring physical impairments, an adjudicator cannot rely exclusively on a medical opinion and
the nature of a claimant’s mental disorder(s) to find DAA material, it does not require that evidence
be obtained through a period of abstinence. Rather, it states that, to find DAA material, an
adjudicator “must have evidence in the case record” that establishes the materiality of DAA. Id.
at 488.
Further, although not mentioned by counsel for the commissioner, two other provisions in
section 5 of the ruling cast doubt on the proposition that a materiality determination hinges on the
existence of a period of abstinence in cases involving co-occurring mental impairments. Section
5(a), discussing the burden of proof, goes on to state, “There does not have to be evidence from a
period of abstinence for the claimant to meet his or her burden of proving disability.” Id. at 483.
Presumably, there likewise would not need to be such evidence for an adjudicator to find that a
claimant had not met his or her burden of proving disability. And section 5(f)(ii) of the ruling
contemplates that, when an adjudicator reaches the question of materiality, he or she “must project
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the severity of the claimant’s other impairment(s) in the absence of DAA.” Id. at 486 (emphasis
added).
Beyond this, as counsel for the commissioner noted at oral argument, the purpose of the
Contract with America provision at issue “was to discourage alcohol and drug abuse, or at least
not to encourage it with a permanent government subsidy.” Parra, 481 F.3d at 747 (citation and
internal quotation marks omitted).
On one or more of these bases, courts have rebuffed arguments that either SSR 13-2p or
EM-96200, an August 30, 1996, emergency message issued by the commissioner to adjudicators
to provide guidance on DAA issues that was superseded by SSR 13-2p, requires that there be a
period of abstinence to find DAA material in cases with co-occurring mental impairments.3 See,
e.g., Haning, 2015 WL 4593414, at *2-*3 (“[T]here is no language in [SSR] 13-2P which suggests
that evidence of a period of abstinence is a mandatory prerequisite to a finding of materiality in a
case involving mental impairments. . . . When the claimant never achieves sobriety, the materiality
determination will necessarily be hypothetical and therefore more difficult, but the claimant cannot
avoid a finding of no disability simply by continuing substance abuse.”) (citation and internal
quotation marks omitted); Wilson, 2015 WL 416438, at *5 n.2 & *6 (in circumstances involving
co-occurring mental impairments in which an administrative law judge “was unable to examine
the most useful evidence of DAA materiality – the effects of periods of abstinence on [the
claimant’s] impairments – because the record presented no periods of abstinence[,]” she
3
Like SSR 13-2p, EM-96200 consisted of a series of questions and answers. See Ambrose v. Astrue, No. 07-84-BW, 2008 WL 648957, at *3 (D. Me. Mar. 5, 2008) (rec. dec., aff’d Mar. 26, 2008). EM-96200 stated, as does SSR
13-2p, that the commissioner knew of no research data to reliably predict the expected improvement in a coexisting
mental impairment if drug/alcohol use stopped. See id. at *4. It observed: “The most useful evidence that might be
obtained in such cases is that relating to a period when the individual was not using drugs/alcohol.” Id. (quoting EM96200). It noted, “When it is not possible to separate the mental restrictions and limitations imposed by DAA and the
various other mental disorders shown by the evidence, a finding of ‘not material’ would be appropriate.” Id. (quoting
EM-96200).
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nonetheless properly determined based on treatment notes and consultative opinions that the
claimant’s DAA was material to his disability; while court did not apply SSR 13-2p, which had
not taken effect at the time of the decision under review, it described the ruling as generally
consistent with the emergency message regarding DAA cases, which it did apply) (citation and
internal quotation marks omitted); Evans v. Astrue, No. CA 11-146 S., 2012 WL 4482366, at *7*8 (D.R.I. Aug. 23, 2012) (rejecting claimant’s argument that, pursuant to EM-96200, he should
have been found disabled if his continuous substance abuse made it impossible to determine
whether he would still be impaired if he stopped the abuse; noting that, while EM-96200 described
evidence of a claimant’s condition during a period of abstinence as the most useful evidence, it did
not prevent adjudicators from turning to the available evidence to determine materiality, and
acceptance of the claimant’s argument “would lead to an absurd result”).
For all of these reasons, the plaintiff falls short of demonstrating entitlement to remand on
this basis.
B. Quality of Evidence in Support of Finding of Materiality of DAA
The plaintiff argues, in the alternative, that even if SSR 13-2p does not require the existence
of a period of abstinence as a condition precedent to finding DAA material in cases involving cooccurring mental impairments, the administrative law judge’s determination transgressed the
ruling in that he effectively relied solely on the opinion of a medical expert, Dr. Claiborn, see
Statement of Errors at 3, 6, and both the administrative law judge and Dr. Claiborn relied on “only
the vaguest references to support their conclusion that [the plaintiff’s] condition improved during
periods where his drinking had abated[,]” id. at 4.
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The administrative law judge did not rely solely on a medical opinion. He discussed the
entire longitudinal record in detail, see Record at 23-28, in support of his overarching conclusion
that:
Treatment records reveal that, although [the plaintiff] did not stop drinking
altogether after his November 2013 inpatient admission, the [plaintiff] “cut down”
significantly in the amount and the frequency of his drinking. During this period,
he reported to his various providers that his mood is more stable, his outlook is
more positive, and his activity level is increasing. During this same period, his
various providers noted that he presented as significantly less depressed and
demonstrated increased motivation in his course of treatment. As noted above, the
[plaintiff] testified that he has been compliant with his medication for at least the
past three months. He further testified that he stopped using alcohol altogether at
some point in June 2014.
Id. at 27. For example, he pointed to:
1.
Dr. Claiborn’s testimony that the plaintiff experienced “rapid improvement” in his
acute mental symptoms after being “sober just a little while[,]” id. at 58;
2.
The report of both the plaintiff and his wife, during the plaintiff’s inpatient
hospitalization from November 10-13, 2013, for treatment of suicidal ideation and detoxification
from alcohol, that “his suicidality is only associated with intoxication from alcohol[,]” id. at 378;
3.
The plaintiff’s report to treating psychologist David A. Faigin, Ph.D., on November
20, 2013, that he was “sober from alcohol since his hospitalization and is feeling ‘clear headed and
like myself again’” and was “more self aware now in regards to the severe negative impacts his
alcohol abuse has had on his mood and behaviors in recent months,” as well as Dr. Faigin’s
findings on mental status examination that the plaintiff was “alert, cooperative, oriented x3, well
dressed and groomed[,]” and, although his mood was “mildly d[y]sphoric[,]” he was
“[s]ignificantly less depressed and fatigued on presentation compared to last session” and his
“thought process seemed well ordered and coherent, and insightful, and he was open and
expressive[,]” id. at 319-20;
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4.
Dr. Faigin’s notation on December 6, 2013, of significant improvement in the
plaintiff’s mood and outlook during a period of “very limited” alcohol use, with essentially normal
findings on mental status examination, see id. at 439; and
5.
Dr. Faigin’s notation on June 17, 2014, that, while the plaintiff reported that he had
increased his drinking and felt irritable and more easily angered when he did not drink, he
discussed “negative impacts of his drinking behavior” and “reflect[ed] on his past success in
periods of sobriety and active recovery[,]” id. at 1072.
At oral argument, the plaintiff’s counsel underscored that section 7(d) of SSR 13-2p
pledges, “We will find that DAA is not material to the determination of disability and allow the
claim if the record is fully developed and the evidence does not establish that the claimant’s cooccurring mental disorder(s) would improve to the point of nondisability in the absence of DAA.”
SSR 13-2p at 488 (emphasis added).
He asserted that, even assuming that some of the evidence on which either the
administrative law judge or Dr. Claiborn relied established that his client’s condition improved
absent DAA, none of it demonstrated improvement to the point that his client could sustain fulltime work. Thus, he reasoned, the Claiborn opinion was the sole evidence of record supporting
the proposition that his DAA was material, and SSR 13-2p forbids sole reliance on a medical
opinion in cases such as this. For several reasons, I am unpersuaded.
First, the plaintiff focuses on Dr. Claiborn’s and/or the administrative law judge’s asserted
misplaced reliance on four treatment notes. See Statement of Errors at 5. Yet, neither relied
exclusively on those notes. See Record at 23-28, 54-55, 57-58. The plaintiff does not explain how
the administrative law judge’s or Dr. Claiborn’s analysis, in toto, failed to yield substantial
evidence in support of the finding that DAA was material.
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Second, the plaintiff’s criticisms regarding those four notes are not well taken.
The plaintiff first asserts that both Dr. Claiborn and the administrative law judge erred in
relying on the June 17, 2014, note of Dr. Faigin (mentioned above) in view of the fact that Dr.
Faigin indicated that the plaintiff’s drinking remained a significant problem and that he had
experienced increased psychomotor agitation. See Statement of Errors at 5.
Dr. Claiborn cited the June 17, 2014, note for the proposition that, although Dr. Faigin
raised some concern about the plaintiff’s alcohol consumption, he deemed him generally
emotionally stable. See Record at 55. The administrative law judge cited it for the proposition
that, “as recently as June 17, 2014, during the period in which the [plaintiff] reported initially
abstaining from alcohol, his mental stability and forward focus is noted to be stable[,]” and, in fact,
“during this examination, he was able to recognize and acknowledged the negative impact that
alcohol has on his mental functioning.” Id. at 22 (citations omitted).
While the note does indicate that the plaintiff reported that he had been drinking more as
of that date, with increased psychomotor agitation that might be caused by the effects of mixing
alcohol and psychiatric medications, the plaintiff also stated that he was not drinking enough to
become drunk, “just a little buzzed.” Id. at 1072. In addition, Dr. Faigin “[e]xplored [with the
plaintiff] negative impacts of his drinking behavior and helped him reflect on his past success in
periods of sobriety and active recovery.” Id.
The administrative law judge and Dr. Claiborn reasonably deemed the note consistent with
the longitudinal evidence indicating functional improvement when the plaintiff cut back on alcohol
consumption.
The plaintiff next faults Dr. Claiborn’s reliance on a June 24, 2014, statement to Michael
Eng, who recertified him for the use of medical marijuana for knee pain, that he had had “excellent
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mood stabilization” on the medication regimen prescribed by treating mental health physician’s
assistant David Saphier, PA-C. Statement of Errors at 5; Record at 54-55, 1063. He argues that
this had “no probative value in terms of a sustained period of abstinence.” Statement of Errors at
5. This criticism is predicated on a mistaken interpretation of SSR 13-2p. As discussed above,
that regulation does not require, in support of a finding of the materiality of DAA, that a claimant
with co-occurring mental impairments have a sustained period of abstinence. The Eng note
indicates that, during a period of time when the plaintiff had decreased his alcohol use and was
compliant with prescribed psychiatric medications, his mood was stable. That, in turn, supports
the materiality determination.
The plaintiff next assails Dr. Claiborn’s reliance on December 6 and 17, 2013, notes of Dr.
Faigin for the proposition that, during a time when his drinking was still an issue but “much
reduced from previous patterns[,]” he had passed some college entrance exams and the severity of
his symptoms had decreased. Statement of Errors at 5; Record at 58, 437-39. The plaintiff cites
to page 388 of the Record for the proposition that these seeming improvements occurred shortly
before a psychiatric hospitalization. See Statement of Errors at 5. However, page 388 does not
reflect such a hospitalization. See Record at 388. Nor does the record generally. As the
administrative law judge found, there is no evidence of any such hospitalization after the plaintiff’s
November 2013 inpatient admission, at which point he cut down significantly on his drinking. See
id. at 27.
Finally, the plaintiff faults the reliance of both Dr. Claiborn and the administrative law
judge on the fact that he passed an examination for an auto mechanic course shortly after his
hospitalization. See Statement of Errors at 5; Record at 22, 58, 437. He notes that he testified that
he had to abandon the classes because of anxiety. See Statement of Errors at 5; Record at 50-51.
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The administrative law judge deemed the plaintiff’s statements concerning the intensity,
persistence, and limiting effect of his symptoms in the absence of substance use not credible. See
Record at 23. However, even crediting the plaintiff’s testimony that his anxiety prevented his
successful completion of the course, the administrative law judge and Dr. Claiborn supportably
deemed it significant that, during a time when the plaintiff was drinking less, he was able to pass
entrance examinations for the course.
Third, while section 7(d) can be read to impose a heightened burden on the commissioner
to prove DAA material, the better reading, taking into consideration that section 5(a) clarifies that
the claimant bears the burden of proving disability throughout the DAA materiality analysis, is
that it does not.
With the proviso that, in cases involving co-occurring mental impairments, an
administrative law judge may not rely solely on a medical opinion to support a finding of
materiality, the test is simply whether substantial evidence supports the finding. See, e.g., Haning,
2015 WL 4593414, at *3 (“The court agrees with the conclusion of the magistrate judge that there
is substantial evidence supporting the ALJ’s [administrative law judge’s] finding that plaintiff
failed to satisfy her burden of showing that she would suffer from disabling mental impairments
in the absence of her alcoholism.”); Benelli v. Commissioner of Soc. Sec., Civil Action No. 1410785-MBB, 2015 WL 3441992, at *24 (D. Mass. May 28, 2015) (pursuant to SSR 13-2p, “[t]he
dispositive inquiry is whether substantial evidence supports the materiality finding and, in
particular, the ALJ’s critical findings changing from marked to mild the social functioning and the
concentration, persistence or pace function when plaintiff no longer abused alcohol”).
While, in this case, each treatment note on which the administrative law judge relied did
not necessarily indicate that, in the absence of DAA, the plaintiff’s functioning would improve to
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the point that he could work full-time, the combination of the longitudinal record and Dr.
Claiborn’s expert opinion comprises substantial evidence in support of that finding.
Evidence such as that on which the administrative law judge relied in this case – that the
plaintiff’s functioning demonstrably improved during even brief abstinences from alcohol or
limitation on its use, that both he and his wife acknowledged that he was suicidal only when
intoxicated, and that he acknowledged the ill effects of his substance use – has been held sufficient
to constitute substantial evidence of the materiality of DAA. See, e.g., Benelli, 2015 WL 3441992,
at *21, *24-*25 (no violation of section 7(d) of SSR 13-2p in determination that DAA was material
in case of claimant with co-occurring mental impairments when record evidence disclosed
improvements during brief periods of abstinence; for example, claimant scored a 30 out of 30 on
a mental status exam, made good eye contact, and had appropriate mood and affect, and
administrative law judge also relied on expert opinion that functional limitations were mild even
taking into account the effects of DAA); Cage v. Commissioner of Soc. Sec., 692 F.3d 118, 12627 (2d Cir. 2012) (determination that DAA was material in case of claimant with co-occurring
mental impairments was supported by substantial evidence when, inter alia, claimant’s mental
status examinations improved during brief periods of abstinence, an addiction therapist stated that
DAA worsened the claimant’s medical and emotional issues, and the claimant admitted that she
had attempted suicide only while under the influence and that DAA was not helpful to her mental
health).
In this case, substantial evidence supports the administrative law judge’s materiality
finding, which was not predicated solely on a medical opinion.
unwarranted on the basis of this point of error.
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Remand, accordingly, is
C. Handling of VA Disability Rating Decision, Kimball Opinion
The plaintiff finally challenges the administrative law judge’s handling of the VA decision
and the Kimball opinion, arguing:
Because of the errors in evaluating Plaintiff’s disorders, the Decision also errs in
failing to accurately evaluate Dr. Kimball’s opinion and the VA finding of
Disability. The record, and Social Security policy, in fact support Dr. Kimball’s
opinion.
Statement of Errors at 6.
At oral argument, the plaintiff’s counsel clarified that this point hinged on the success of
the plaintiff’s prior points.
Given that I have found those points unsuccessful, remand is
unwarranted on this basis, as well.
II. Conclusion
For the foregoing reasons, I AFFIRM the commissioner’s decision.
Dated this 15th day of October, 2015.
/s/ John H. Rich III
John H. Rich III
United States Magistrate Judge
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