Bryan Elton Hearn v. Kilolo Kijakazi, Acting Commissioner, Social Security Administration

2022 DNH 107

• Court: District Court, D. New Hampshire
• Decided: September 1, 2022
• Docket: 21-cv-842-SE
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Bryan Elton Hearn

v. Civil No. 21-cv-842-SE Opinion No. 2022 DNH 107 Kilolo Kijakazi, Acting Commissioner, Social Security Administration

O R D E R

Bryan Elton Hearn challenges the denial of his application

for children’s insurance benefits and disability insurance

benefits pursuant to 42 U.S.C. § 405(g). An administrative law

judge (“ALJ”) found that Hearn’s several medically determinable

impairments were not severe under the Social Security

regulations as of September 30, 2014, when Hearn last met the

insured status requirements of the Social Security Act.

Accordingly, the ALJ concluded that Hearn was not disabled as

defined by the regulations. See 20 CFR § 404.1505(a).

Hearn moves to reverse the Acting Commissioner’s decision.

He argues that the ALJ erred in finding that his impairments

were not severe by relying on medical opinions that were not

based on his entire medical record and by improperly assessing

purported retrospective opinions submitted by treating

providers. The Acting Commissioner moves to affirm, arguing that

the ALJ’s decision was supported by substantial evidence. For the reasons discussed below, the court grants the Acting

Commissioner’s motion to affirm and denies Hearn’s motion to

reverse.

Standard of Review

For purposes of review under § 405(g), the court “is

limited to determining whether the ALJ deployed the proper legal

standards and found facts upon the proper quantum of evidence.”

Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999); accord

Sacilowski v. Saul, 959 F.3d 431, 437 (1st Cir. 2020). The court

defers to the ALJ’s factual findings if they are supported by

substantial evidence. Biestek v. Berryhill, 139 S. Ct. 1148,

1153 (2019). Substantial evidence is “more than a mere

scintilla,” id., and exists, even if the record could support a

different conclusion, when “a reasonable mind, reviewing the

evidence in the record as a whole, could accept it as adequate

to support [the ALJ’s] conclusion,” Irlanda Ortiz v. Sec’y of

Health & Human Servs., 955 F.2d 765, 769 (1st Cir. 1991); accord

Purdy v. Berryhill, 887 F.3d 7, 13 (1st Cir. 2018).

In determining whether a claimant is disabled, the ALJ

follows a five-step sequential analysis, “such that the answer

at each step determines whether progression to the next is

warranted.” Sacilowski, 959 F.3d at 433; 20 C.F.R. §

404.1520(a)(4). The claimant “has the burden of production and

2 proof at the first four steps of the process.” Sacilowski, 959

F.3d at 433. At the first three steps, the claimant must prove

that (1) he is not engaged in substantial gainful activity; (2)

he has a severe impairment; and (3) the impairment meets or

equals a listed impairment. 20 C.F.R. § 404.1520(a)(4)(i)-(iii).

If the claimant meets his burden at the first two steps of

the sequential analysis, but not at the third, the ALJ assesses

the claimant’s residual functional capacity (“RFC”) before

proceeding to Step Four. Id. § 404.1520(e). RFC measures the

maximum amount a person can do in a work setting despite the

limitations caused by his impairments. Id. § 404.1545(a)(1). At

Step Four, the claimant must establish that his RFC is

insufficient to perform any of his past relevant work. Id.

§ 404.1520(a)(4)(iv). If the claimant can perform his past

relevant work, the ALJ will find that the claimant is not

disabled. See id. § 404.1520(a)(4)(iv). If the claimant cannot

perform his past relevant work, the ALJ proceeds to Step Five,

in which the Social Security Administration has the burden of

showing that jobs exist in the economy which the claimant can do

in light of the RFC assessment as well as the claimant’s age,

education, and work experience. See id. § 404.1520(a)(4)(v). If

such jobs exist, the claimant is not disabled. Id. If they do

not, he is disabled. Id.

3 Background

A detailed factual background can be found in Hearn’s

statement of facts (doc. no. 5-2) as supplemented by the Acting

Commissioner’s statement of facts (doc. no. 8) and in the

administrative record (doc. nos. 3 & 4). The court provides a

brief summary of the case here.

Hearn has a history of anxiety and depressive disorder

dating back to 2003, when he was 12 years old. By April 2005, he

had been diagnosed with panic disorder, anxiety disorder, a

learning disorder, attention deficit hyperactivity disorder

(“ADHD”), and depression. He was also treated for opioid

addiction beginning in 2012. He sought treatment for his mental

health struggles at various times through 2019.

On March 17, 2020, Hearn filed applications for children’s

insurance benefits and disability insurance benefits.1 In both

applications, he alleged a disability onset date of January 1,

2003.

The Social Security Administration denied Hearn’s

applications at the initial level and again after a request for

reconsideration. Hearn then requested a hearing in front of an

1 To be entitled to children’s insurance benefits, a claimant must be under a disability which began before age 22, among other requirements. See 42 U.S.C. § 402(d)(1).

4 ALJ. Prior to the hearing, Hearn amended his disability onset

date from January 1, 2003, to January 1, 2013.2

On January 11, 2021, the ALJ held a hearing. Hearn, who was

represented by an attorney, appeared and testified.

On January 29, 2021, the ALJ issued an unfavorable

decision. He found that Hearn last met the insured status

requirements of the Social Security Act on September 30, 2014

and had not engaged in substantial gainful activity between then

and the amended alleged onset date. At Step Two, the ALJ found

that Hearn had several medically determinable impairments,

including opioid use disorder, ADHD, generalized anxiety

disorder, and mood/depressive disorder. The ALJ found, however,

that these impairments individually or in combination were not

severe under the Social Security regulations. For that reason,

the ALJ concluded the analysis at Step Two and found that Hearn

was not disabled.

In making his Step Two determination, the ALJ relied on and

found persuasive the opinions of two state agency psychological

consultants, William Jamieson, Ph.D. and Craig Stenslie, Ph.D.

Both doctors opined that Hearn did not have any severe mental

impairments. The ALJ stated that both doctors’ opinions were

2 Hearn attained the age of 22 on January 8, 2013, which means that his period of disability for purposes of child insurance benefits was January 1, 2013, through January 8, 2013.

5 consistent with Hearn’s medical records and treatment notes,

which showed minimal health treatment or reported symptoms for

Hearn during the relevant time period of January 1, 2013 and

September 30, 2014.

The ALJ acknowledged that additional records were admitted

into evidence after Dr. Jamieson and Dr. Stenslie issued their

opinions. In addressing those records, the ALJ stated:

However, in light of additional medical records submitted after the dates of [Dr. Jamieson’s and Dr. Stenslie’s] reviews from the time period around the date last insured, and viewing the evidence in the light most favorable to the claimant, the undersigned finds the medical records reflect medically determinable impairments of ADHD, mood disorder, generalized anxiety disorder and opioid abuse disorder, with no more than mild symptoms and mild resulting functional limitations.

Admin. Rec. at 22. Thus, he concluded that the additional

medical records did not show severe impairments.

The ALJ also addressed and found unpersuasive the opinions

of two of Hearn’s treating providers: social worker Derek Price

and psychiatric-mental health nurse practitioner Sarah Robinson.

Both providers opined that Hearn had moderate to marked

limitations because of his anxiety, depression, and ADHD. The

ALJ did not credit either opinion because both reflected Hearn’s

“present level of functioning, and not his functioning during

the period at issue more than 6 years ago.” Admin. Rec. at 22.

The ALJ also noted that the opinions indicated that Hearn's

6 mental health issues had “existed at the same level for the past

‘several years’ or the past ‘7 years’.” Id. Nonetheless, the ALJ

found that the medical records did not support that assertion.

Id.

On October 1, 2021, the Appeals Council denied Hearn’s

request for review, making the ALJ’s decision the final decision

of the Acting Commissioner for purposes of judicial review. 20

C.F.R. § 422.210(a); see Sims v. Apfel, 530 U.S. 103, 107

(2000). This action followed.

Discussion

Hearn argues that the ALJ erred in his Step Two

determination that Hearn did not have a severe impairment or

combination of impairments. He argues that it was error to rely

on Dr. Jamieson’s and Dr. Stenslie’s opinions because neither of

them reviewed treatment records from Hearn’s medical care

providers that were added to the record after they issued their

opinions. He also challenges the ALJ’s evaluation of Price’s and

Robinson’s opinions, both of which support Hearn’s disability

claims.

I. Additional Medical Records

Hearn argues that Dr. Jamieson’s and Dr. Stenslie’s

opinions do not provide substantial evidence to support the

7 ALJ’s Step Two determination because neither doctor had access

to or reviewed medical records submitted after they issued their

opinions. See doc. no. 5-1 at 3, 4. Hearn contends that the ALJ

cannot rely on non-examining consultants’ opinions based on an

incomplete record.

It is true that it “can be reversible error for an ALJ to

rely on an opinion of a non-examining consultant who has not

reviewed the full medical record.” Wall v. Berryhill, No. 18-CV-

277-PB, 2019 WL 2723887, at *4 (D.N.H. June 27, 2019). But “the

fact that an opinion was rendered without the benefit of the

entire medical record does not, in and of itself, preclude an

ALJ from giving that opinion significant weight.” Berthiaume v.

Saul, No. 18-CV-557-JL, 2020 WL 1933947, at *3 (D.N.H. Apr. 22,

2020) (quotation and alteration omitted). An ALJ may rely on an

outdated opinion so long as he or she determines that the

additional medical evidence “does not establish any greater

limitations, or where the medical reports of claimant’s treating

providers are arguably consistent with, or at least not clearly

inconsistent with, the reviewer’s assessment.” Wall, 2019 WL

2723887, at *4 (quotation omitted).

As discussed above, the ALJ acknowledged in his decision

that neither Dr. Jamieson nor Dr. Stenslie had access to the

entire medical record. Admin. Rec. at 22. The ALJ addressed the

additional medical records and found that they show certain

8 medically determinable impairments and “no more than mild

symptoms and mild resulting functional limitations.” Id. Mild

functional limitations do not meet the Step Two standard for a

severe medically determinable impairment. See 20 C.F.R. §

416.920 (stating that a severe impairment is one that

“significantly limits your physical or mental ability to do

basic work activities”).

Hearn has not shown that the ALJ erred in relying on Dr.

Jamieson’s and Dr. Stenslie’s opinions. He does not point to

anything in the additional 16 pages of medical records that is

inconsistent with either opinion. See Venus v. Berryhill, No.

17-CV-482-PB, 2019 WL 157296, at *14 (D.N.H. Jan. 9, 2019)

(declining “to address claimant’s incomplete-record claim” where

he “baldly asserts that the record before [the state agency

consultant] was incomplete, but goes no further and does not

direct the court to any specific post-opinion evidence that

materially changed the record before” the consultant); see also

Wall, 2019 WL 2723887, at *4. Moreover, the records, nearly all

of which are from medical visits before the alleged disability

onset date, contain minimal mental-status findings and

consistently show Hearn doing well on Suboxone. See generally

Admin. Rec. at 698-703. Although the ALJ might have been more

detailed in his analysis, the decision shows that he considered

the additional medical evidence and concluded that it was not

9 inconsistent with Dr. Jamieson’s and Dr. Stenslie’s opinions.

The record supports that conclusion.

For these reasons, Hearn has not shown that the ALJ erred

in relying on Dr. Jamieson’s and Dr. Stenslie’s opinions.

II. Treating Providers

Hearn also challenges the ALJ’s evaluation of Price’s and

Robinson’s opinions. As mentioned above, both providers opined

that Hearn had moderate to marked limitations because of his

anxiety, depression, and ADHD. The ALJ did not find either

opinion persuasive. He concluded that the opinions, which were

both offered in 2020, reflected Hearn’s present level of

functioning only, and not his past level of functioning during

the relevant period between January 2013 to September 2014.

Hearn contends that the ALJ’s conclusion was in error. He

notes that he had been treated at Price and Robinson’s facility,

the Seacoast Mental Health Center (“Seacoast Center”), several

years prior to 2020. Hearn also states that Robinson was aware

of his prior treatment with other providers during the relevant

disability period. Hearn contends that, therefore, the ALJ

should have considered Price’s and Robinson’s opinions to

encompass Hearn’s impairments and functional limitations back

through 2013 and 2014.

10 Put another way, Hearn contends that his treating providers

submitted retrospective opinions about his limitations during

the relevant period between January 2013 and September 2014. In

the context of a social security review, a retrospective opinion

“provides a diagnosis or assesses a claimant’s condition during

the covered period, that is, before the claimant’s last insured

date.” Martin v. Acting Comm’r, Soc. Sec. Admin., No. 21-CV-416-

SE, 2022 WL 1463055, at *4 (D.N.H. Apr. 8, 2022), report and

recommendation adopted sub nom. Martin v. US Soc. Sec. Admin.,

No. 21-CV-416-SE, 2022 WL 1462980 (D.N.H. May 6, 2022). An ALJ

may accept a retrospective opinion “to the extent it

substantiates limitations that existed during the covered period

and is corroborated by medical evidence generated during that

time” or an ALJ may reject an opinion that does not meet that

standard. Id.; Scott v. Saul, No. 19-12552-LTS, 2021 WL 735851,

at *9 (D. Mass. Feb. 25, 2021).

The treating providers’ opinions do not explicitly pertain

to the covered period. Even if they did, the ALJ found the

opinions unpersuasive because Hearn had not been treated at the

Seacoast Center, where the treating providers practice, during

the relevant period. He ended treatment there in 2006 and did

not resume treatment until 2016, after the relevant period. The

ALJ also compared the treating providers’ opinions to medical

treatment notes during the relevant period and determined that

11 they were inconsistent. During the relevant period, treatment

notes showed normal mental-status examination results and showed

that Hearn’s symptoms were controlled with medication.

The ALJ properly assessed the purported retrospective

opinions provided by the treating providers and supportably

found that the opinions were entitled to no weight as to Hearn’s

level of functioning during the relevant period. Therefore,

Hearn has not shown that the ALJ erred in his assessment of the

treating providers’ opinions.

III. Hearn’s Subjective Complaints

Hearn states in cursory fashion that he testified that he

experienced symptoms and limitations that were consistent with

his treating providers. Doc. no. 5-1 at 4. To the extent that

Hearn intended to argue that the ALJ erred in evaluating his

subjective complaints, that argument is not sufficiently

developed. See United States v. Zannino, 895 F.2d 1, 17 (1st

Cir. 1990). Even if it were, the ALJ adequately explained why he

found Hearn’s testimony concerning his symptoms to be “not

entirely consistent with the medical evidence and other evidence

in the record.” Admin. Rec. at 20. Hearn has not shown that the

ALJ erred in evaluating Hearn’s subjective complaints.

12 Conclusion

For the foregoing reasons, the Acting Commissioner’s motion

to affirm (document no. 7) is granted. Hearn’s motion to reverse

(document no. 5) is denied. The clerk of court shall enter

judgment accordingly and close the case.

SO ORDERED.

__________________________ Samantha D. Elliott United States District Judge

September 1, 2022

cc: Counsel of Record