Richard E v. Kijakazi

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
__________________________________________
)
Richard E., 	)
Plaintiff, 	)
)
v. 	) 	No. 1:22-cv-00019-MSM-LDA
)
KILOLO KIJAKAZI, 	)
Acting Commissioner of Social Security, 	)
Defendant. 	)
__________________________________________)
MEMORANDUM AND ORDER
Mary S. McElroy, United States District Judge.
Richard E., now 37 years old, filed for Social Security Disability Insurance
Benefits (“DIB”) because of a combination of mental health conditions. According to
the Complaint he filed in this Court, he suffers from “severe impairment of substance
addiction disorder, anxiety disorder, personality disorder, depressive disorder, and
posttraumatic stress disorder” (“PTSD”). 	(ECF No. 1, at 2.) 	Richard claimed a
disability onset of January 1, 2019 and described at the hearing his struggle with
anxiety and panic attacks. He believed his anxiety, depression, and PTSD precluded
his continuing to work because “mainly, it affects my focus, my memory and my
concentration.” 	Richard 	has 	a 	history 	of 	addiction 	and 	was 	hospitalized 	for
detoxication from Percocet for three days in March 2020. Not long after, he was seen
at Kent County Hospital Emergency Department for withdrawal symptoms and was
then admitted to Butler Hospital for four days as a result of 	Substance Induced
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Psychosis. (ECF No. 10, at 6.) He is now sober and on medication management. (ECF
No. 6, at 42-43.) 1
Armed with a G.E.D., Richard worked as a laborer “changing lightbulbs and
changing fire alarms.” (ECF No. 6, at 37.) For less than a year, he performed some
maintenance work for Advanced Digital Wireless; he had started in sales, but that
lasted less than six months because he was unsuccessful.
	Id. 	He had spent some
time mowing lawns and cleaning up garbage.
	Id. at 39. 	Richard testified that his
anxiety and panic attacks kept him from driving, although he has a driver’s license
and knows how to drive. 	(ECF No. 6, at 36.) 	His disabling emotional state is only
slightly less if he is a passenger.
	Id. at 37. 	He testified that the same problems
interfere with household tasks, but he likes to color and draw.
	Id. at 41-42. 	He
explained to the ALJ, however, that after about 15 minutes of even those activities,
his brain becomes “so scattered, [he] lose[s his] thoughts, [he] can’t concentrate that
long.”
	Id. at 45. 	Most days of the week, he ends up in bed, having suffered panic
attacks that start with his body “shaking uncontrollably.” 	“I get struck with fear.
And almost immobilized,” he testified. 	“I can’t think straight.” 	These attacks end
with exhaustion that leaves him sometimes unable to shower or change clothes for
weeks at a time.
Id. at 47.
Taking Richard’s testimony as true, the state’s vocational expert opined he
could work at jobs such as hand-packing, or janitorial, or dishwasher.
	Id. at 50. He
could not engage in competitive employment, but the jobs outlined could tolerate up
to 15% off-task time and one absence per month.
Id. at 51.
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Richard filed for benefits on January 30, 2020. His claim was administratively
denied on June 1, 2020, and upon reconsideration on July 24, 2020. 	On April 13,
2021, an administrative law judge (“ALJ”) then denied his claim after a telephone
hearing.
Going through the five-step standard protocol for evaluating claims, the ALJ
found that Richard’s substance addiction, anxiety, personality, depressive, and
posttraumatic stress disorders were severe impairments.
	Id. at 17. 	He found the
impairments severe enough to meet the criteria of section 12.08 of 20 CFR Part 404,
Subpart P., Appendix 1 (20 CFR 416.920(d), 416.925).
	Id. at 18. 	At one point, he
seemed to find Richard’s testimony credible, writing “the claimant’s statements
concerning the intensity, persistence, and limiting effects of [his] symptoms are
generally consistent with the evidence when the substance use is included.”
	Id. at
19. 	Yet a few pages later, he concluded that “the claimant’s statements about the
intensity, persistence, and limiting effects of his or her symptoms [] are inconsistent
because the longitudinal evidence of record does not support them.”
	Id. at 23. 	He
noted that when Richard presented to Butler Hospital, he was “appropriately dressed
and 	groomed, 	and 	made 	good 	eye 	contact.” 	He 	also 	found, 	however, 	that
notwithstanding his appearance, Richard “displayed psychomotor agitation and
bizarre behavior” and “was unable to provide a coherent history.”
Id. at 19. Assessing
the medical evidence, the ALJ credited the agency medical opinions over that of
Richard’s treating physician, finding the latter’s “neither valuable nor persuasive,”
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because the treating physician had phrased his opinions in “administrative issues”
(such as being unable to work, or being disabled) instead of in medical terms.
Id.
In the end, the ALJ concluded, if substance abuse were out of the picture,
Richard would have only moderate impairment and could perform work that required
“limited [] attention and concentration to understand, remember and carry out simple
tasks and instructions.” 	If he had a job requiring only “occasional interaction with
coworkers and supervisors,” he could “tolerate simple routine changes in a work
setting.”
	Id. at 22. 	Concluding that Richard was “capable of making a successful
adjustment to other work that exists in significant numbers in the national economy,”
that ALJ found him “not disabled” and denied his claim.
Id. at 26.
On August 19, 2022, Magistrate Judge Lincoln D. Almond filed a Report and
Recommendation (“R & R”) (ECF No. 13) recommending that this Court grant the
Motion of the Acting Commissioner of Social Security (“Commissioner”) to affirm the
ALJ denial (ECF No. 12) and deny the Motion of the plaintiff to reverse that denial
(ECF No. 10). The Magistrate Judge concluded that substantial evidence supported
the Commissioner’s decision and finding of no disability.
Id. at 1.
The issue of Richard’s substance abuse is at the heart of this case. 	As the
Magistrate Judge explained, the Social Security Act was amended in 1996 “to deny
disability benefits if alcohol or drug abuse comprises a contributing factor material to
the determination of disability.”
	Id. at 11, citing 42 U.S.C. 423(d)(2)(C). 	The
harshness of that amendment was muted somewhat by a 2013 policy interpretation
that distinguished between a “substance use disorder” and a “mere history of
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occasional prior maladaptive use of alcohol or illegal drugs.”
	Id. at 12. 	The state
consultants here noted the episodes of intense mental disability corresponding with
Richard’s abuse and withdrawal from substances to determine that his drug use was
“material to the disability determination.”
	Id. at 14. 	Without drug use, his
impairments were only moderate.
Id. Richard’s behavior once he was released from
Butler Hospital confirmed that conclusion,
Id. at 16-17, and the Magistrate Judge
found the ALJ’s resulting decision to be based on substantial evidence requiring
affirmance.
Id. at 17.
The essence of Richard’s Objection to the R&R is his disagreement that the
evidence supports a sufficient improvement in Richard’s condition without substance
abuse as to support a finding of only moderate impairment.
The Court’s review is
de novo with respect to any part of the R & R to which
the plaintiff has timely objected. 	Fed. R. Civ. P. 72(b)(3). 	In reviewing the record,
however, “[t]he findings of the Commissioner of Social Security as to any fact, if
supported by substantial evidence, shall be conclusive….” 42 U.S.C. § 405(g). Finally,
“[q]uestions of law are reviewed de novo….”
	Seavey v. Barnhart, 276 F.3d 1, 9 (1st
Cir. 2001) (citing
Ward v. Comm’r Soc. Sec., 211 F.3d 652, 655 (1st Cir. 2000)).
The Court, consistent with its obligation to review the record independently,
has reviewed the record, the R & R, and the parties’ position papers. In so doing, it
finds that the Magistrate Judge rendered a well-reasoned and thorough evaluation
of the legal claims and there was an insufficient basis to reject the ALJ decision.
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The Court therefore adopts both the reasoning and the conclusions of the
Magistrate Judge’s R & R and, in so doing, GRANTS the Commissioner’s Motion to
Affirm (ECF No. 15) and DENIES the claimant’s Motion to Reverse (ECF No. 13.)
IT IS SO ORDERED:
____________________________________
Mary S. McElroy,
United States District Judge
Date: February 7, 2023
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