AMPARO v. COMMISSIONER OF SOCIAL SECURITY
OPINION. Signed by Judge Kevin McNulty on 7/31/14. (jd, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civ. No. 2:12-cv-6403 (KM)
COMMISSIONER OF SOCIAL SECURITY,
KEVIN MCNULTY, U.S.D.J.:
The plaintiff, Gabriel Amparo, brings this action pursuant to 42 U.S.C. §
405(g) to review a final decision of the Commissioner of Social Security
(“Commissioner) denying his claim for Social Security Disability Insurance
benefits (“SSDI”). Amparo’s case presents a complicated set of issues at the
intersection of substance abuse and schizophrenia, a major psychological
disorder. The AU here denied benefits, essentially because he found that
substance abuse was a material factor in Amparo’s disability. For the reasons
set forth below, I reverse that determination and remand the case for further
Amparo initially sought benefits from an onset date of October 1, 2008
(later revised to May 3, 2010)1 through April 28, 2011. Record (“R _“) (Docket
No. 19) at 15, 42. His application was denied initially and on reconsideration.
Id. at 1, 22. Amparo appeared before an Administrative Law Judge (“AU”) on
April 4, 2011, for a hearing. R 40, 102. On April 28, 2011, the AU issued a
decision denying the application. R 32. The Appeals Council affirmed the
Amparo amended the onset date in a brief submitted to the first AU assigned
to the case on January 3, 2011. R 15, 42. See Section III, infra. I note, by the way, that
any flaws in this case might have resulted simply from its transfer between two able
and conscientious ALJs.
decision of the AU on August 1, 2012, rendering it the final determination of
the Commissioner. R 1-3.
Amparo now appeals that determination, asserting three claims of error.
He argues that (1) a medical advisor was required under the Commissioner’s
protocol for assessing substance abuse in the presence of other psychiatric
impairments; (2) that the AU did not conduct a proper Step 3 evaluation; and
(3) that the Commissioner failed to carry the burden of proof at Step 5 of the
sequential evaluation. See P1. Br. at 11, 17, 20. These claims of error are
incorporated in the discussion below.
I find that certain evidence was not fully considered and discussed
(section II, infra); that an ambiguity about the onset date flawed the analysis
(section III, infra); and that the “contributing factor” analysis of substance
abuse was flawed (sections III & IV, infra). Looking at the applicant’s welldocumented history of schizophrenia, I conclude that the errors were
consequential, and that Amparo may well be disabled. I will direct a complete
redetermination on remand.
I. Five-Step Process and This Court’s Standard of Review
Review necessarily incorporates a determination of whether the AU
properly followed the five-step process prescribed by regulation. The steps may
be briefly summarized as follows:
STEP 1: Determine whether the claimant has engaged in substantial
gainful activity since the onset date of the alleged disability. 20 CFR §
404.1520(b), 4 16.920(b). If not, move to step two.
STEP 2: Determine if the claimant’s alleged impairment, or
combination of impairments, is “severe.” Id. § 404.1520(c),
416.920(c). If the claimant has a severe impairment, move to step
STEP 3: Determine whether the impairment meets or equals the
criteria of any impairment found in the Listing of Impairments. 20
CFR Part 404, Subpart P, Appendix 1, Part A. If so, the claimant is
automatically eligible to receive benefits; if not, move to step four.
Id. § 404.1520(d), 4 16.920(d).
STEP 4: Determine whether, despite any severe impairment, the
claimant retains the Residual Functional Capacity (“RFC”) to perform
past relevant work. Id. § 404.1520(e)-(f), 416.920(e)-(f). If not, move to
STEP 5: The burden shifts to the SSA to demonstrate that the
claimant, considering his or her age, education, work experience,
and RFC, is capable of performing jobs that exist in significant
numbers in the national economy. 20 CFR § 404.1520(g),
416.920(g); see Poulos v. Comm’r of Soc. Sec., 474 F.3d 88, 91—92
(3d Cir. 2007). If so, benefits will be denied; if not, they will be
As to all legal issues, my review is plenary. As to factual findings, I will
adhere to the AU’s findings, as long as they are supported by substantial
evidence. For disputed findings, I will “determine whether the administrative
record contains substantial evidence supporting the findings.” Substantial
evidence “means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” That is “less than a preponderance of the
evidence but more than a mere scintilla.”
I may, under 42 U.S.C. § 405(g) and the Third Circuit’s Podedwomy
opinion, affirm, modify, or reverse the Secretary’s decision, with or without a
remand to the Secretary for a rehearing.
Outright reversal with an award of benefits is appropriate only when a
fully developed administrative record contains substantial evidence indicating
See Schaudeck v. Comm’rof Soc. Sec., 181 F.3d 429, 431 (3d Cir. 1999).
Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004) (citing 42 U.S.C. § 405(g)).
Sykes v. Apfel, 228 F.3d 259, 262 (3d Cir. 2000).
Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004) (citation omitted).
Podedworny v. Harris, 745 F.2d 210, 221 (3d Cir.
Commissioner, 235 F. App’x 853, 865-66 (3d Cir. 2007).
1984); Bordes v.
that the claimant is disabled and entitled to benefits. Here, Plaintiff does not
press the claim that the record is complete and that it requires a finding of
disability. In the introduction to his legal argument, Plaintiff asks for reversal,
but his three arguments, enumerated above, are all phrased in terms of
remand. And that makes sense: all argue either a lack of substantial evidence
for the AU’s findings or a procedural error.
Remand is proper if the record is incomplete, or if there is a lack of
substantial evidence to support a definitive finding on one or more steps of the
five step inquiry. Remand is also proper if the AU’s decision lacks adequate
reasoning or support for its conclusions, or if it contains illogical or
contradictory findings.’ It is also proper to remand where the AU’s findings
are not the product of a complete review which “‘explicitly’ weigh[s] all relevant,
probative and available evidence” in the record.”
II. Consideration of All Probative Evidence
The AU’s decision does not explicitly weigh all relevant, probative and
available evidence in the record. What follows is a very brief summary of
certain evidence in the record. It is not complete, but it demonstrates gaps in
the AU’s discussion of the record. Facts gleaned from the AU’s written
decision are in regular type; facts taken from the record, but not referred to in
the AU’s written decision, are in italic type. The significance of the omitted
evidence is obvious; it should be addressed on remand.
Amparo was 29 at the time of the hearing and had an 8th grade
education. R 28. He has a history of drug use but had not used since May
2010. Id. He lived with his parents and spent time with his (then) one year old
son. The son lived with his mother, not with the claimant. Id.
Podedworny, 745 F.2d at 22 1-222; Morales v. Apfel, 225 F.3d 310, 320 (3d Cir.
2000) (citing Podedworny); see also Bantleon v. Comm’r of Soc. Sec., 2010 U.S. Dist.
LEXIS 99537, at *38...39 (D.N.J. 2010).
See Podedworny 745 F.2d at 221-222.
See Burnett v. Commissioner of SSA, 220 F.3d 112, 119-120 (3d Cir. 2000);
Leech v. Barnhart, 111 F. App’x 652, 658 (3d Cir. 2004) (“We will not accept the AU’s
conclusion that Leech was not disabled during the relevant period, where his decision
contains significant contradictions and is therefore unreliable.”).
Adorrio v. Shalala, 40 F.3d 43, 48 (3d Cir. 1994).
Amparo has a prior felony conviction (unspecified), as well as a history of
petty crimes. R 115. Amparo’s full work history is not clear from the record.
Amparo’s financial records show he had not worked since 2002, when he earned
$563.20. R 81, 119. However, the work history form he submitted showed he
worked as a handyman in an auto-shop from 2006-200 7 for $400 a week. R
Amparo is right-handed. A tendon in his left hand was cut as a result of
an assault, and he had surgery to repair it. R 28.
Amparo testified at the hearing that he was unable to work because of he
was enrolled in a partial hospitalization program, heard voices, and had
difficulty concentrating. R 28. He stated that he hears voices all day long and
that it made it hard for him to concentrate in his group therapy. R 28, 45.
Amparo continued to attend the partial hospitalization program for his
schizophrenia at the time of the hearing, and continued to live with his parents. R
45-46. Amparo’s complaints of, e.g., hearing voices are corroborated by the
record. Liberty Health Hospital records from March 22, 2008, indicate he was
seen in the emergency room for auditory hallucinations, and was admitted. See
R 244-85. An assessment from that stay indicated that Amparo had “emotional
problems” as a limitation. R 271. His diagnosis was “psychotic disorder” and he
was prescribed the antipsychotic medication Risperdal. R 282-83.
In December 2009, Amparo was again admitted to Liberty Health Hospital
for a psychotic episode. He reported hallucinations. R 343. He was prescribed
the antipsychotic medication Invega. R 345. The records noted his problems with
drug abuse. R 346. His mental assessment noted he had “poor” intellectual
function, insight and judgment. R 348. He was diagnosed with schizophrenia. Id.
During that hospitalization, he tested positive for PCP. R 350. His treating
physicians recommended that he be admitted to a rehabilitation center as soon
as possible. R 359. His progress notes indicate he was not compliant with
In 2009, Amparo was referred to Liberty Health Medical Center from
Hudson County Superior Court after being arrested for possession with intent to
distribute a controlled dangerous substance. R 289. His assessment described
paranoid and hallucinatory symptoms. R 28 9-90. He was prescribed Risperdal
in prison. R 291. The assessment also stated that he had a criminal history and
history of drug abuse, and had a history of eight prior hospitalizations, including
3 0-60 days in the psychiatric unit at Northern State Prison. R 292. The records
also indicate he had a family history of psychiatric illness, and a history of
sexual abuse. R 294-95.
A June 24, 2009 medical note from Amparo’s therapist at Jersey City
Medical Center indicated that he was enrolled in partial hospitalization
program. His treatment consisted of medication, as well as group and
individual therapy. R 28 (citing Ex. 12F); R 336.
At the request of the Administration, Amparo underwent an internal
medicine consultative examination by Dr. Eyassu on March 31, 2010. He
presented with complaints of incomplete ability to flex a finger on his left hand,
hypertension, and schizophrenia. R 28. Other than decreased sensation and
inability to flex his left index finger more than 50%, the physical examination
was normal. A chest x-ray was also normal. Dr. Eyassu diagnosed Amparo with
hypertension, stable without medication, and status post left index finger
tendon repair. Id. (citing Exs. 16F, 17F).
Amparo also underwent a neurological consultative examination by Dr.
Candela on April 6, 2010. Amparo told the examiner that from 1999 to
February 2010, he abused PCP, ecstasy, and marijuana. Id. His longest period
of abstention from drug use occurred while he was incarcerated. His
psychiatric background included being in a partial hospital program and
outpatient program for drug abuse for year, on and off, until February 2010.
Id. He has been hospitalized three times for schizophrenia due to being
paranoid and having auditory hallucinations while on PCP. His medications
included Trazadone (for sleep) and monthly Invega injections. Id. He reported to
Dr. Candela that he was better with medication and that he was no longer
using drugs. He also was no longer in the day hospital but was receiving
monthly outpatient treatment. Id. His mental examination was normal. Dr.
Candela believed that Amparo’s schizophrenia symptoms were drug induced.
He was diagnosed with drug induced schizophrenia, stable with medication;
chronic polysubstance abuse, low average level of intellectual functioning, and
orthopedic left hand difficulty. R 28-29. Dr. Candela assessed Amparo as
having a Global Assessment of Functioning of 60, denoting moderate
symptoms or moderate impairment in school, social or occupational
functioning. R 29 (citing Ex. 18F).
Dr. Kleinmann, infra, reported four hospitalizations.
The AU’s decision does not separately discuss the April 4. 2010 RFC
assessment done by state examiner Dr. Wayne Tiliman. R 381-98. The AU
possibly conflated that assessment with Candela’s exam.
A Mental Impairment Questionnaire was submitted by Dr. Kleinmann on
October 27, 2010. This impairment evaluation was conducted 8 months after
Amparo last abused drugs. R 29 (citing Ex. 23F). Kleinmann’s Questionnaire
indicated that Amparo was diagnosed with schizophrenia, paranoid type; had
legal and financial issues; and had a current Global Assessment of Functioning
of 45-50 and a past Global Assessment of Functioning of 50-60. Id. Amparo
continued to complain of paranoia and auditory hallucinations. He denied
commands of suicidal or homicidal ideation. Id. He was prescribed Invega
Sustena injections. Amparo’s symptoms included appetite disturbance with
weight change, decreased energy, generalized persistent anxiety, difficulty
thinking or concentrating, emotional withdrawal or isolation, perceptual or
thinking disturbance, hallucinations or delusions, illogical thinking, vigilance
and scanning, and pathologically inappropriate suspiciousness or hostility. Id.
Persistent nonorganic disturbance of vision, speech, hearing, use of a limb,
movement and its control of sensation was also noted. Id. Dr. Kleinmann found
that Amparo had a medically documented history or chronic organic mental,
schizophrenic, or affective disorder or at least two years duration that caused
more than a minimal limitation of ability to do any basic work activity, with
symptoms or signs currently attenuated by medication or psychosocial
support. Dr. Kleinmann also found that Amparo had had three or episodes of
decompensation within 12 months, each lasting at least two weeks, and a
residual disease process that has resulted in such marginal adjustment that
“even a minimal increase in mental demands or change in the environment was
predicted to cause decompensation. Id.
Treatment notes from Hoboken University Community Mental Health
Center (“HMHC”) covering the period from May 3, 2010 to November 17, 2011,
show that Amparo attended a partial hospitalization program. The records
“show he reported improvement with treatment.” Id. (citing Ex. 24F). The AU
also wrote that Amparo indicated that he had been “off medication” since
February 2010 but did not have any symptoms. Id.
The notation that Amparo was “off medication” is not relevant to the
HMHC records, although the ALl noted it in the context of his brief citation of
those records. Amparo was off medication for 2 months prior to his admission to
the partial day program in May 2010. However, Amparo was medicated as part
of his treatment at HMHC.
The AU’S decision does not otherwise substantively discuss Amparo’s
records from HMHC, where he attended the partial hospitalization program to
treat his schizophrenia from May 2010 through his hearing date. Amparo
attended the program five days a week and also attended substance abuse
counseling as part of his treatment plan. R 429. During his treatment at HMHC,
Amparo continued to show symptoms of schizophrenia. While participating in
the program, Amparo had “persistent” auditory hallucinations and paranoia. R
433. Amparo’s Invega dosage increased from May 2010 to February 2011 (the
period of treatment covered by the record) to combat his persistent symptoms.
See R 42 6-433.
III. Onset Date/Effect of Substance Abuse
Amparo originally sought benefits starting from October 1, 2008. He
amended the onset date, however, in a brief submitted on January 3, 2011, to
the AU initially assigned to the case. R 15, 42. At the hearing, the questions of
the second AU appeared to focus appropriately on Amparo’s post-May 3, 2010
impairments. In his decision, however, the AU reverted to the original, 2008
onset date, and analyzed the entire October 1, 2008 to April 28, 2011 period as
a unit. R 22, 44. On appeal, both the Plaintiff’s Brief (Docket No. 22) and the
Government’s Brief (Docket No. 25) take the AU’s analysis on its own terms,
and treat 2008 as the onset date.
This is not merely a quibble over dates. As noted above, disability
benefits are disallowed if alcoholism or drug addiction would be a “contributing
factor material to the Commissioner’s determination” that the individual is
disabled. 42 U.S.C. § 423(c) (2)(C). Thus, Amparo’s substance abuse in 2008 or
2009 would weaken the basis for a finding of disability in the pre-2010 period.
As of May 3, 2010, however, Amparo had entered the HMHC partial
hospitalization program. And the evidence is uncontradicted that, from May
2010 on, Amparo was not abusing drugs. See R 29-30, 402-433 (HMHC
records). However, the clear sense of the AU’s decision is that Amparo suffered
psychological symptoms while using drugs and that those symptoms would
largely disappear if he stopped using drugs. R 29-31. This conclusion overlooks
the medical evidence in the record that demonstrates that Amparo’s symptoms
As noted herein, this evidence is inconsistent with the AU’s conclusion that
Amparo’s impairments would be largely abated through abstinence from drugs.
persisted after he stopped using drugs.’ R 402-433 (HMHC records from
20 10-201 1).
No doubt that is why Amparo revised his application so that it sought a
disability determination starting May 3, 2010, rather than the earlier 2008
date. As noted above, substance abuse is not relevant to Amparo’s claim for
benefits after May 3, 2010—and Amparo seems to have conceded, at least at
one point, that he is not claiming disability before that date. Therefore, as
necessary, the AU should explicitly state the appropriate onset date for
benefits within the framework set forth by the regulations. E.g., SSR 83-20;
Newell v. Comm’r of Soc. Sec., 347 F.3d 541, 548 (3d Cir. 2003).
I think that if the AU’s decision had focused on an onset date of May 3,
2010, the conclusion that substance abuse was a disqualifying factor might
well have been different. At any rate, it should have been considered—and
considered in light of all the pertinent evidence. As noted above, the AU’s
decision does not weigh and discuss the HMHC records, which are particularly
relevant to the period beginning in May 2010.
For this reason, too, I will order the matter remanded.
IV. Amparo’s Claims of Error
Sections II and III, above, set forth sufficient grounds for a remand. I now
focus on Amparo’s specific claims of error.
Amparo makes three claims of error arising from Steps 3, 4, and 5 of the
sequential analysis: (1) that the AU did not properly consider his substance
abuse impairment in the context of his other impairments at Step 3; (2) that
the AU improperly assessed his RFC to perform work at Step 4 because expert
medical evidence was not used to assess his substance abuse in the presence
of his other psychiatric impairment;’ and (3) the Commissioner has failed to
carry her burden of proof at Step 5. P1 Br. at 9, 11, 20. For the reasons
discussed below, the claims of error raised by Amparo also merit a remand to
the AU for further proceedings.
The evidence in the record also indicates that Amparo’s schizophrenia
symptoms pre-dated his drug use. R 244-285 (records from Amparo’s 2008
The second issue implicates Step 5 as well as Step 4.
As suggested by Points II and III, above, these claims of error apply
differently to the 2008-April 2009 period and the period starting at the
amended onset date of May 3, 2010. Substance abuse is not a continuing
impairment supported in the record after May 3, 2010. Therefore, the
appropriate analysis as to Amparo’s impairments from May 3, 2010, forward
would not include substance abuse. See Section III, above.
Combined Effect of Impairments at Step 3
Amparo argues that the AU did not properly consider the combined
effect of his impairments at Step 3. I agree. This issue is affected, and might be
mooted by, the onset-date issue, but I discuss it for guidance on remand.
There is no dispute as to Steps 1 and 2. The AU found at Step 1 that
Amparo had not engaged in substantial gainful activity since October 1, 2008
(the onset date originally claimed). R 24. At Step 2, he found that Amparo had
the following severe impairments: schizophrenia, polysubstance abuse, and
finger flexion limitation. Id. (citing 20 CFR 4 16.920(c)). The AU further found
that, even excluding the effects of substance abuse, Amparo’s impairments
were severe. R 26.
At Step 3 of the sequential analysis, the AU must evaluate the
claimant’s impairments to determine if they meet or equal an impairment in
the Listing of Impairments in Appendix 1. 20 CFR § 404.1520(a)(4)(iii). In doing
must consider the “combined effect of all the individual’s
so, the AU
impairments without regard to whether any such impairment, if considered
separately, would be of such severity.” 42 U.S.C. § 423(c)(2)(B); see also 20 CFR
404.1526(a). If a severe combination of impairments is found, the combined
impact of the impairments is considered throughout the rest of the sequential
analysis. Id. The AU can find medical equivalence to a listed impairment in
(1) (i) If you have an impairment that is described in appendix
(A) You do not exhibit one or more of the findings specified in
the particular listing, or
(B) You exhibit all of the findings, but one or more of the
findings is not as severe as specified in the particular listing,
(ii) We find that your impairment is medically equivalent to
that listing if you have other findings related to your impairment
that are at least of equal medical significance to the required
(2) If you have an impairment(s) that is not described in
appendix 1, we will compare your findings with those for closely
analogous listed impairments. If the findings related to your
impairment(s) are at least of equal medical significance to those of
a listed impairment, we will find that your impairment(s) is
medically equivalent to the analogous listing.
(3) If you have a combination of impairments, no one of
which meets a listing (see § 404.1525(c)(3)), we will compare your
findings with those for closely analogous listed impairments. If the
findings related to your impairments are at least of equal medical
significance to those of a listed impairment, we will find that your
combination of impairments is medically equivalent to the listing.
20 CFR § 404.1526(b). Although the claimant bears the burden of proving that
his impairments equal or meet one listed in Appendix 1, it is the AU’s
to identify the relevant listed impairment(s) and ‘develop the
arguments both for and against granting benefits.’” Burnett v. Comm’r of Soc.
Sec., 220 F.3d 112, 120 n. 2 (3d Cir. 2000) (quoting Sims v. Apfel, 530 U.s.
103, 111, 120 S.Ct. 2080, 147 L.Ed.2d 80 (2000)).
Here, although the AU considered both substance abuse and Amparo’s
other impairments, he did so separately. First the ALT considered Amparo’s
substance abuse impairment in isolation. He found that Amparo’s “substance
use disorder” did not meet listings 12.03 or 12.09. R 25. Listing 12.03 applies
to schizophrenic, paranoid, and other psychotic disorders, and 12.09 applies to
substance abuse, but the ALT did not explicitly distinguish them.
The ALT cited the “paragraph B” criteria to evaluate whether Amparo’s
substance use disorder was at the required level of severity.’ He found it was
not, noting that Amparo only had moderate restrictions in daily living and
social functioning, and marked difficulties in concentration, persistence, or
The ALT did not cite under which listing he applied this criteria, which appears
in 12.03, as well as in 12.02, 12.04, 12.06, and 12.08. Under the substance abuse
listing at 12.09, the criteria from these other listings can be applied to show the
required level of severity for a 12.09 impairment.
pace, and that he had experienced “one to two” episodes of decompensation. Id.
In making this finding the AU specifically referred to Amparo’s “substance use
disorder” and did not refer to his schizophrenia. Therefore, even though the
AU referred to listing 12.03 at the beginning of the discussion, it does not
appear he was here considering schizophrenia in combination with substance
abuse. (The orthopedic impairment of Amparo’s finger was also omitted, but I
regard that as far less significant.)
Some paragraphs later in the decision, after discussing Amparo’s RFC in
light of substance abuse, AU Andres looked at the schizophrenia and finger
impairments in isolation. R 26. The AU does not specifically refer to Amparo’s
schizophrenia anywhere in this Step 3 discussion (although he does do so at
Step 4). But because he refers to the “remaining limitations” generally, I infer
that this discussion might have been meant to encompass both the
found that those
schizophrenia and orthopedic impairments. The AU
impairments would not meet or medically equal the criteria of listing 12.03. R
26-27. He concluded that Amparo would only have mild restrictions of daily
living and social functioning if he stopped abusing substances, and only
moderate difficulties with concentration, persistence and pace. R 27. The AU
also found that Amparo’s orthopedic impairment did not affect his ability to
ambulate effectively or perform fine or gross manipulations. Id.
In this disjointed discussion, the AU failed to adequately consider the
combined impairments. It appears that the AU glossed over his analysis of the
combined effects of Amparo’s impairments because he regarded Amparo’s
substance abuse as the central, disqualifying issue. The AU’s Step 3 analysis
of the remaining impairments (perhaps understandably in light of his later
substance abuse/materiality finding) did not adequately analyze the severity of
the combined impairments. See R 26-27 (stating that later discussion in the
decision of Amparo’s limitations in the context of his RFC informed AU’s
assessment of the severity of his mental impairment at Step 3). As a result, the
AU short-changed the analysis of Amparo’s impairments at Step 3. This
procedural error is, by itself, enough to merit remand. See Tori-es v. Comm’r
Soc. Sec., 279 F. App’x 149, 152 (3d Cir. 2008).
Of course, for the reasons stated above, substance abuse may be of less
significance, or no significance, for the post-May 3, 2010 period. On remand,
however, the AU should conduct the Step 3 analysis of the impairments in
combination. As discussed above, all impairments must be considered in
combination to assess whether they meet or medically equal a listed
impairment. 20 CFR 104.1526(a). And that analysis must include a thorough
assessment of the combined effect of Amparo’s schizophrenia and orthopedic
impairments without substance abuse, in particular from May 3, 2010 forward.
Finally, on remand, the AU should also consider whether Amparo’s limitations
from schizophrenia meet the “paragraph C” criteria (as well as the “B” criteria)
listed in 12.03. Amparo’s repeated episodes of decompensation and need for a
supportive living arrangement should be considered within the paragraph C
Other Claims of Error At Steps 4 and 5
The materiality of substance abuse is also central to Amparo’s two
remaining claims of error. These issues, too, are affected, and might be mooted
in whole or in part, by the onset-date issue, but I discuss them for guidance on
At Step 4, the AU made two RFC determinations: one including
substance abuse and one excluding substance abuse. Including substance
abuse with Amparo’s schizophrenia and orthopedic impairments, the AU
found that Amparo had the RFC to perform medium work with the following
non-exertional limitation: his mental capacity was “severely restricted” as a
result of his impairments, including the alcohol abuse disorder. Id. Therefore,
the AU found that Amparo did not retain the RFC to perform even the basic
mental demands of unskilled work. R 25. When the AU excluded substance
abuse from his RFC determination, however, he concluded that Amparo would
have the RFC to perform medium work as defined in 20 CFR 4 16.967(c) “except
considering his mental impairment he is capable of understanding and
executing instructions; able to with some difficulty maintain concentration,
persistence and pace; and able to with some difficulty relate and adapt in work
like settings.” R 27.
considered the “substance use disorder” in
At Step 5, the AU
conjunction with Amparo’s other impairments, and found that there were no
jobs in the national economy that the claimant could perform. R 26 (citing 2
CFR 4 16.960(c) and 4 16.966). The AU found that the limitations from
Amparo’s impairments, including substance use disorder, “so narrow[ed] the
range of work” that Amparo could perform, that a finding of disability was
appropriate. Id. The AU also found, however, that if Amparo did not engage in
substance abuse, he would, despite his other impairments, retain the RFC to
perform “unskilled medium work.” R 32. In short, then, the AU found that
substance abuse was a material contributing factor to Amparo’s inability to
perform work existing in the national economy, and therefore disallowed
An individual seeking benefits shall not be considered disabled if
alcoholism or drug addiction would be a “contributing factor material to the
Commissioner’s determination” that the individual is disabled. 42 U.S.C. §
423(c)(2)(C). Although there is limited authority regarding the determination of
materiality, internal SSA guidelines instruct that “[w]hen it is not possible to
separate the mental restrictions and limitations imposed by [drug addiction
and alcoholism] and the various other mental disorders shown by the evidence,
a finding of ‘not material’ would be appropriate.” EM-96200 (response to
question 29); see also McGill v. Commissioner of Soc. Sec., 288 F. App’x 50, 52
(3d Cir. 2008) (not precedential).
Amparo asserts that a medical expert was required to assess his
substance abuse in conjunction with his additional impairment of
schizophrenia. P1. Br. at 11. That claim does not require remand or reversal.
The Third Circuit has declined to require expert psychiatric opinion evidence
for the determination that substance abuse is material to the finding of
disability. McGill, 288 F. App’x at 53; accord Cage v. Commissioner of Soc. Sec.,
692 F.3d 118, 126 (2d Cir. 2012). As the Third Circuit explained, no such
requirement is implied by 42 U.S.C § 423(d)(2)(C). Id. at 22-23. While not
required, however, this type of evidence may be quite helpful in this case for
assessing Amparo’s substance abuse—if it remains an issue (for example, if
benefits prior to May 2010 remain at issue for some reason). As I have said,
however, substance abuse from May 2010 on is not supported by the record.
Amparo also asserts that SSA did not meet its burden of proving at Step
5 that there exist jobs in the national economy that the claimant could
perform. Id. at 20-21. That claim of error merits closer consideration. Amparo
specifically objects to the AU’s failure to take additional vocational evidence to
determine how his non-exertional restrictions affected his ability to perform
work. P1. Br. at 23. He also more generally objects to the AU’s finding that
substance abuse was material, arguing that the determination at Step 5 rested
on the improper “juxtaposition of two RFCs.” Id. at 27. 1 find that the AU’s
materiality finding is not supported by the substantial evidence and thus
conclude that the AU erred at both Steps 4 and 5.
The AU found that, but for his substance abuse, Amparo was equipped
to do the “full range of medium” work and that his limitations would have “little
to no effect on the occupational base.” R 32. This finding was based on the
AU’s dual RFC determinations of Amparo’s impairments with and without
substance abuse, which informed his overall conclusion that substance abuse
was a factor material to the determination of disability. See R 27-32. As noted
above, however, the two RFC determinations do not clearly contrast the
combined impairments with and without substance abuse.
The Third Circuit has not decided whether the claimant or the
Commissioner bears the burden of showing the materiality of substance abuse.
McGill, 288 F. App’x at 52 (finding that issue was not dispositive because
Commissioner would have met burden that that substance abuse was
dispositive).’ I do not decide it either. Either way, I am not convinced that the
AU’s determination was supported by substantial evidence.
The AU almost wholly relied on the neurological consultative exam of
state examiner A.J. Candela, PhD. Candela evaluated Amparo on April 6, 2010
(prior to Amparo’s admission to the HMHC program). His report stated that he
believed that Amparo’s schizophrenia was drug induced, and stable with
medication. R 28-29. State examiner Wayne Tiliman, PhD, examined Amparo
on April 14, 2010 (also prior to his admission to the HMHC program). Tillman
found that, while sober, Amparo still had moderate difficulties in social
functioning and in maintaining concentration, persistence, or pace. R 391. The
AU does not specifically refer to Tiliman’s evaluation, although he does cite to
the relevant exhibit in his RFC discussion. R 31.
The AU’s conclusions from this evidence were excessive. Tillman’s RFC
assessment found mild to moderate mental limitations and concluded that
Amparo could “with some difficulty” relate and adapt in work like settings. R
395-397. From this and Candela’s assessment, the AU drew the unwarranted
conclusions that Amparo had “no problem” concentrating, did not have a
problem thinking, had no memory problems, was able to pay attention, and
Other Circuits have held that the Commissioner has the burden on this issue.
Pan-a v. Astrue, 481 F.3d 742, 748 (9th Cir. 2007); Doughty v. Apfel, 245 F.3d 1274,
1280 (11th Cir. 2001); Pettit v. Apfel, 218 F.3d 901, 903 (8th Cir. 2000); Brown v.
Apfel, 192 F.3d 492, 498 (5th Cir. 1999).
was adaptable. R 31. Moreover, neither the state examiners nor the AU
adequately considered Amparo’s repeated episodes of decompensation.’
The AU’s treatment of the evidence of Candela and Tiliman might not, in
itself, have required remand. But because I am remanding on other grounds, I
will direct that all of this evidence be reconsidered and reweighed in context.
That context is as follows.
The balance of the evidence in the record further undermines the AU’s
conclusion that Amparo’s limitations were the result of his drug use. In
addition to showing Amparo’s history of substance abuse prior to 2010, the
medical evidence thoroughly documents Amparo’s schizophrenia diagnosis and
treatment beginning in 2008. See e.g. R 244-285 (Liberty Health Hospital
records covering March 2008 hospitalization for psychotic episode); R 339-385
(Liberty Health Hospital records documenting treatment for psychotic episode
in December 2009). Notably, Amparo’s treatment for schizophrenia began
before substance abuse was noted in his medical records and continued after
the last known time he abused drugs. Moreover, all of the medical evidence
after Amparo’s amended onset date of May 3, 2010, pertains to his
schizophrenia, not to drug abuse.
Amparo was prescribed psychotropic medication for schizophrenia,
including Invega (an antipsychotic medication which he received by injection)
and Geodon (another antipsychotic medication). R 48, 402. Before May 2010,
Amparo was not consistently compliant with medication. Amparo testified that
the Invega dosage was increased because it was not adequately controlling his
symptoms. R 48. The medical records support this assertion: Amparo’s Invega
injection dose was increased to 234 mg’ in December 2010. R 180, 431. I
pretend to no medical expertise, but to me that evidence suggests a serious
and intractable condition, and it should be considered on remand.
In May 2010, Amparo began attending a partial hospitalization program
at HMHC for schizophrenia, paranoid type. R 402. (He was still attending the
program at the time of his hearing in April 2011. R 45.) The program ran from
9:00am to 3:00pm, Monday through Friday. R 81. Amparo’s treating physician,
Dr. Candela’s assessment notes that he had insufficient evidence to assess
episodes of decompensation. R 391.
This is the largest dose available for a single injection.
Dr. Richard Kleinmann, reported in October 2010 that Amparo continued to
complain of paranoia and auditory hallucinations and thus could not be
considered to be in remission. R 402. At the time of that assessment, Amparo
was receiving 156 mg of Invega. Id. Dr. Kleinmann rated Amparo’s mental
abilities for unskilled work as varying between “seriously limited,” “unable to
meet competitive standards,” and “and no useful ability to function.” R 404.
His most severe limitations were in relation to working in coordination with
others without distraction, completing a normal workday and workweek
without interruptions from symptoms, accepting instructions and criticism,
responding appropriately to changes, dealing with normal work stress, and
setting realistic goals or plans. Id. As to Amparo’s functional limitations, Dr.
Kleinmann found that Amparo had “mild” restrictions for daily living, but
“marked” difficulties in maintaining social functioning, and “extreme”
difficulties in maintaining concentration, persistence, or pace. Amparo had
experienced “four or more” episodes of decompensation within the last 12
months for a duration of two weeks or more. R 406.
Kleinmann’s evidence is strong and persuasive. It comes from a treating
physician, and is therefore entitled to particular weight. And it centers around
the most relevant time period: post May 3, 2010. The AU’s failure to
adequately discuss and weigh it would constitute an independent error
requiring remand 21
In sum, the medical evidence perhaps could support a conclusion that
substance abuse was a substantial contributor to Amparo’s limitations before
May 2010. But even in that pre-2010 period, the substantial evidence of record
developed by the AU does not supply the means to disentangle Amparo’s
mental impairments from substance abuse. During the period from October
2008 to May 2010, the mental restrictions and limitations imposed by
substance abuse and schizophrenia are inextricably intertwined. Even for this
Dr. Kleinmann also found extreme limitations regarding semi-skilled and
particular jobs. R 405.
The ample evidence of Amparo’s schizophrenia contrasts with other cases where
substance abuse was found material in the context of a relative lack of evidence of the
concurrent mental impairment. Cf McGill, 288 F. App’x at 52-53 (affirming AU’s
finding of materiality where there was little to no evidence of the additional mental
impairment); Mirabile v. Comm’r of Soc. Sec., 354 F. App’x 619, 623 (3d Cir. 2009)
(same). Here, the evidence is clear that Amparo has a significant history of
schizophrenia with persistent symptoms and effects.
period, then, the AU’s finding that substance abuse was “material” were not
sufficient. See EM-96200. If the pre-2010 period is considered on remand, the
AU should make specific findings, based on all the evidence, as to the effect of
substance abuse, if it can be isolated.
But particularly as to the post-May 2010 period, when no substance
abuse occurred, the AU’s determination of the materiality of Amparo’s
substance abuse is not supported by the substantial evidence of record. The
AU’s findings at Steps 4 and 5 must therefore be vacated and remanded. Both
the RFC determination at Step 4 and the occupational analysis at Step 5 rested
on the AU’s ultimate finding that substance abuse was a material factor. R 32.
Accordingly, AU’s decision will be remanded, in the alternative, for the errors
made at Steps 4 and 5, in addition to the error at Step 3 discussed above.
Before closing, I address one more miscellaneous matter. On remand, the
AU should to fully analyze Amparo’s non-exertional restrictions and his ability
to perform other jobs in the national economy. The AU should not (as is
appropriate in many cases) rely on his own impressions as to the effects of the
claimant’s limitations with respect to the occupational base. Amparo’s mental
impairments present a complex set of restrictions, and as such, would profit
from the consideration of additional vocational evidence. See Sykes v. Apfel,
228 F.3d 259, 261 (3d Cir. 2000); SSR 85-15, 1985 WL 56857 at *3 (S.S.A.)
(explaining that regarding simple issues, the regulations may provide sufficient
guidance, but that in more complex cases, “a person or persons with
specialized knowledge would be helpful”). The Kleinmann evidence is strongly
corroborative of the claimant’s position on this issue.
For the foregoing reasons, the AU’s decision is remanded for further
proceedings. On remand, the AU shall comply with the guidelines set forth in
Dated: July 31, 2014
Hon. Kevin McNulty
United States District Judge
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