David Black v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration

2019 DNH 004

• Court: District Court, D. New Hampshire
• Decided: January 7, 2019
• Docket: 18-cv-015-PB
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

David Black

v. Case No. 18-cv-015-PB Opinion No. 2019 DNH 004 Nancy A. Berryhill, Acting Commissioner, Social Security Administration

MEMORANDUM AND ORDER

David Black challenges the Social Security Administration’s

denial of his claims for Supplemental Security Income (“SSI”)

and Disability Insurance Benefits (“SSDI”). He contends that

the Administrative Law Judge (“ALJ”) misapplied relevant law and

failed to support his decision with substantial evidence. The

Acting Commissioner, in turn, seeks an order affirming the ALJ’s

decision. Because the ALJ’s decision does not adequately

explain a discrepancy between Black’s social limitations and the

RFC assessment, I remand the case for further consideration.

I. BACKGROUND

Black is a 51-year-old man with a GED. He has worked as a

mail driver, tow truck driver, fire sprinkler installer, and

truck driver. See Administrative Transcript (hereinafter “Tr.”)

241, 276, 281-83.

Multiple professionals concluded that Black has social

problems. In July 2014, Dr. Shannon Tromp, a licensed clinical psychologist, interviewed Black and reviewed his records. Tr.

384. She noted no problems with understanding, memory,

sustained concentration, or adapting to change. Tr. 387-88. He

did, however, “present consistently with antisocial personality

disorder.” Tr. 387. Black self-reported that he “lost a few

jobs punching people out” and explained that “if the boss says

something I don’t like I’m gonna let them know.” Tr. 384. She

noted Black was “socially appropriate with logical thought and

cheerful affect” but that “he was very focused on telling his

stories of aggressive behavior, he appeared to think they were

funny and laughed while telling them.” Tr. 386. She diagnosed

him with intermittent explosive disorder and antisocial

personality disorder and opined that he would have “significant

difficulty” with social interaction “due to intermittent

explosive, violent behavior, short temper, [and] antisocial

personality.” Tr. 388.

In 2015, Black underwent counseling for those issues. See

Tr. 654-728. He went to the Mohave Mental Health Clinic in

Kingman, Arizona to “learn to better manage [his] anger and

process [his] divorce” and reported his symptoms as “anger

issues” and “explosive behavior.” Tr. 657. A few weeks later

James Reyes performed a behavioral health assessment and

diagnosed Black with intermittent explosive disorder, anti-

social personality disorder, alcohol dependence, and cocaine

2 dependence. Tr. 666. Black declined treatment for substance

abuse problems, and denied group treatment, peer support and

vocational services, and a psychiatric referral. Tr. 666. He

assented to a behavioral health service plan that was intended

to improve his communication with others, help him better manage

his emotions, and avoid fighting. Tr. 681.

Black spoke with therapists on the phone or in-person seven

times from April to July of 2015. During one counseling session

in July, the therapist, Laurie Modica, noted that Black “[m]et a

girl when he was back home who told him she was pregnant and was

doing drugs and this triggered him” and that he had been

“drinking 15-18 beers a night to cope.” Tr. 686. 1 The clinic

did not indicate that Black’s intermittent explosive disorder

had abated when he was discharged.

State agency reviewing psychologist Dr. Stacy Koutrakos

also found limitations caused by Black’s social disorders. See

Tr. 90-104. She concluded that Black had “moderate”

difficulties in maintaining social functioning. Tr. 96. Dr.

Koutrakos recommended a number of limitations on Black’s social

interactions. She noted that his “ability to work in

coordination with or in proximity to others without being

1 The ALJ mistakenly states that “there are no records of ongoing treatment after May 2015.” Tr. 12. This is incorrect, as I will explain in more detail.

3 distracted by them” was “moderately limited.” Tr. 101. So too

were his ability to “interact appropriately with the general

public,” his “ability to accept instructions and respond

appropriately to criticism from supervisors,” and his “ability

to get along with coworkers or peers without distracting them or

exhibiting behavioral extremes.” Tr. 101. Dr. Koutrakos opined

that Black “would likely perform best in an environment with

limited social contact.” Tr. 101.

State agency reviewing psychologist Dr. Carol Mohney

Norcross reached similar conclusions about Black’s social

problems. Tr. 139-154. Like Dr. Koutrakos, Dr. Mohney

determined that Black was “moderately limited” in his ability to

work “in coordination with or in proximity to others without

being distracted by them.” Tr. 150. Also like Dr. Koutrakos,

Dr. Mohney found Black to be moderately limited in his abilities

to interact appropriately with the general public, accept

instructions and respond to supervisors, and get along with

coworkers. Tr. 150. Again, Black was considered to “likely

perform best in an environment with limited social contact.”

Tr. 151.

Black applied for benefits in March 2014 alleging

disability as of July 2013 due to knee problems, anger disorder

4 and an unspecified mental health issue. 2 Tr. 275. His

application was denied at the initial and reconsideration

levels. Tr. 89-154. Before the Appeals Council denied his

request for review, see Tr. 1-5, an ALJ held a hearing at which

Black appeared pro se. Tr. 6-23. In January 2017, the ALJ

found that Black was not disabled. Id. Black appeals from that

decision. See Tr. 20.

II. THE ALJ’S DECISION

The ALJ’s conclusion followed from his application of the

five-step, sequential analysis required by 20 C.F.R.

§ 416.920(a). See Tr. 9-18. At step one, the ALJ found that

Black had not engaged in substantial gainful activity since

October 2, 2013, the alleged onset date of his disability. See

Tr. 11. At step two, the ALJ determined that Black was severely

impaired by antisocial personality disorder and degenerative

changes to his knees and right shoulder. Id. He also

determined that Black suffered from sleep apnea but that his

condition should be characterized as only a non-severe

impairment under the Social Security Act. Tr. 12.

At step three, the ALJ found that Black’s impairments,

considered individually or in combination, did not qualify as a

listed impairment pursuant to 20 C.F.R. Part 404, Subpart P,

2 The knee issue does not factor into my analysis, so I omit the medical history of that condition.

5 Appendix 1. Tr. 13-14 (citing 20 CFR §§ 404.1520(d), 404.1525,

404.1526, 616.920(d), 416.925 and 416.926). Although the ALJ

observed that Black’s mental impairment caused mild restrictions

in his activities of daily living and moderate difficulties in

social functioning, he found that “the severity of the

claimant’s mental impairment also does not meet or medically

equal the criteria of listing 12.08.” Id.

At step four, the ALJ determined that Black had the

residual functional capacity (“RFC”) to perform light work, as

defined in 20 C.F.R. §§ 416.1567(b) & 416.967(b), with

limitations with respect to kneeling, crouching, crawling, and

interaction with co-workers and the general public. See Tr. 15.

Although the ALJ found that Black’s “medically determinable

impairments could reasonably be expected to cause the alleged

symptoms,” he concluded that Black’s statements concerning the

extent and effects of his symptoms were not “entirely

consistent” with the record. Tr. 16. Among other things, the

ALJ determined that Black’s assertion that he could not work as

a driver was inconsistent with his “self-report in March 2015”

when he stated he had stopped working due to an argument with

his boss. Tr. 16. In reaching his conclusion, the ALJ afforded

“great weight” to the opinions of state agency reviewing

psychologists Dr. Koutrakos and Dr. Mahoney, and the opinion of

consultative psychologist Dr. Tromp. Id.

6 Although the ALJ determined at step four that Black could

not return to his past relevant work because it required medium

exertional activity, Tr. 17, the ALJ found that Black was not

disabled at step five because he could work as a price marker, a

laundry sorter, or a mailroom clerk, all of which were jobs that

existed in significant numbers in the national economy. Tr. 18.

III. STANDARD OF REVIEW

I am authorized to review the pleadings submitted by the

parties and the administrative record and enter a judgment

affirming, modifying, or reversing the “final decision” of the

Commissioner. See 42 U.S.C. § 405(g). That review is limited,

however, “to determining whether the ALJ used the proper legal

standards and found facts [based] upon the proper quantum of

evidence.” Ward v. Comm’r of Soc. Sec., 211 F.3d 652, 655 (1st

Cir. 2000). I defer to the ALJ’s findings of fact, so long as

those findings are supported by substantial evidence. Id.

Substantial evidence exists “if a reasonable mind, reviewing the

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

to support his conclusion.” Irlanda Ortiz v. Sec’y of Health &

Human Servs., 955 F.2d 765, 769 (1st Cir. 1991) (per curiam)

(quoting Rodriguez v. Sec’y of Health & Human Servs., 647 F.2d

218, 222 (1st Cir. 1981)).

If the ALJ’s factual findings are supported by substantial

evidence, they are conclusive, even where the record “arguably

7 could support a different conclusion.” Id. at 770. If,

however, the ALJ derived her findings by “ignoring evidence,

misapplying the law, or judging matters entrusted to experts,”

they are not conclusive. Nguyen v. Chater, 172 F.3d 31, 35 (1st

Cir. 1999) (per curiam). The ALJ is responsible for determining

issues of credibility and for drawing inferences from evidence

in the record. Irlanda Ortiz, 955 F.2d at 769. Furthermore,

resolving conflicts in the evidence is the exclusive role of the

ALJ. Id.

IV. SOCIAL LIMITATIONS IN THE RFC

“[T]he ALJ must specify the evidentiary basis for his RFC

determination.” Canfield v. Apfel, 2001 DNH 078, 2001 WL

531539, at *5 (D.N.H. Apr. 19, 2001). This requires a logical

bridge from the medical evidence to the RFC. Most importantly,

“[i]f the RFC assessment conflicts with an opinion from a

medical source, the adjudicator must explain why the opinion was

not adopted.” SSR 96-8P, 1996 WL 374184 at *7; Floyd v.

Berryhill, 2017 DNH 114, 2017 WL 2670732, at *3 (D.N.H. June 21,

2017).

Here, the ALJ’s RFC assessment conflicted with the findings

of “moderate social limitations” in the opinions of Dr.

Koutrakos and Dr. Tromp. The ALJ’s failure to explain that

discrepancy constitutes reversible error. See Hafford v. US

8 Soc. Sec. Admin., 2017 DNH 060, 2017 WL 1134716, at *3 (D.N.H.

Mar. 27, 2017).

Dr. Tromp, who performed a consultative examination,

believed that Black’s violent behavior, short temper, and anti-

social personality would cause “significant difficulty” in

social interaction. Tr. 388. Dr. Kotrakos, a non-examining

agency reviewing physician, concluded that Black would have

“moderate limitations in working in coordination or in proximity

to others without being distracted by them.” Tr. 101. And Dr.

Mohney, a second non-treating, non-examining reviewer, concluded

that Black would “likely perform best in an environment with

limited social contact.” Tr. 151. Every examining or reviewing

professional concluded that Black had “significant difficulty”

in social interactions or “moderate” limitations in social

ability. No medical opinion concludes Black was free of social

limitation. The RFC formulated by the ALJ, however, includes

the ability to have “frequent interaction with co-workers,”

“occasional interaction with the general public” and unlimited

interaction with supervisors. See Tr. 15. And the decision

does not explain this discrepancy.

The ALJ states that he afforded “great weight” to the

opinions of Drs. Koutrakos, Mahoney, and Tromp. Tr. 16. He

offers, “I find the opinions of the State Agency reviewing

physicians and psychologists to be persuasive in this case and I

9 adopt the rationale provided by these sources.” Tr. 17. But

the RFC says otherwise.

The ALJ’s decision is inconsistent with those sources that

received “great weight.” The ALJ’s RFC provides that Black

could have unlimited interactions with supervisors, frequent

interactions with his co-workers and occasional interaction with

the general public. Tr. 15. In contrast, the opinions of

Mahoney and Koutrakos state that Black is “moderately limited”

in his abilities to “accept instructions and respond

appropriately to criticism from supervisors,” and his “ability

to get along with coworkers or peers without distracting them or

exhibiting behavioral extremes.” Tr. 101, 150. Both Koutrakos

and Tromp recommend that Black “would likely perform best in an

environment with limited social contact.” Tr. 101. Meanwhile,

Dr. Tromp diagnosed Black with intermittent explosive and

antisocial personality disorders and believed he would have

“significant difficulty” with social interaction “due to

intermittent explosive, violent behavior, short temper, [and]

antisocial personality.” Tr. 388.

The ALJ does not explain this disagreement. He discounts

the expert opinion testimony by noting that “there are no

records of any ongoing mental health treatment.” Tr. 16. But

the absence of ongoing mental health treatment, without more,

cannot trump positive and otherwise uncontradicted evidence of

10 social limitations presented by medical professionals. See

generally White v. Comm’r of Soc. Sec., 572 F.3d 272, 284 (6th

Cir. 2009). Nor does he explain how he got from the Point A of

the medical evidence to the Point B of the RFC. Cf. Dube v.

Astrue, 781 F.Supp.2d 27, 34-36 (D.N.H. 2011) (reversing ALJ

decision for failure to discuss findings by state agency

consultant contradicting ALJ's conclusion).

The Commissioner’s objections are unavailing. She insists

that the ALJ’s decision is not inconsistent with the opinion of

Dr. Tromp that Black would have “significant difficulty” with

social interaction. But I do not see how a person who is

“severely impaired” by antisocial personality disorder can have

“frequent” interaction with co-workers. Without a reasoned

explanation for that incongruity, the decision is incomplete.

“Where an ALJ’s RFC assessment is at odds with a medical source

opinion, he must explain his reasons for disregarding that

opinion.” Costa v. Astrue, 2010 WL 4365868, at *7 (D.N.H. Nov.

3, 2010) (citing SSR 96-8p). That clarification ensures that

the opinion does not “ignore[e] evidence” or “judg[e] matters

entrusted to experts.” Nguyen, 172 F.3d at 35. It is lacking

here.

11 I will remand this case to the ALJ so that an elaborated

explanation can be provided. 3

V. ADDITIONAL ALLEGED DEFICINCIES

Black also asks that I remand the case because the ALJ: (1)

failed to properly evaluate Black’s pain complaints; (2) erred

in his assessment of Black’s credibility; and (3) ignored his

obesity. See generally, Doc No. 9-1. Because I find that the

social limitation issue merits remand, I will not address those

latter complaints.

VI. CONCLUSION

The ALJ’s RFC assessment conflicts with medical source

opinions and that conflict is not sufficiently explained. I

deny the Acting Commissioner’s motion to affirm (Doc. No. 10)

and grant David Black’s motion to reverse (Doc. No. 9) pursuant

to sentence four of 42 U.S.C. § 405(g), to the extent that the

case is remanded to the ALJ for proceedings consistent with this

3 The ALJ also misread the medical evidence before him. The decision states that “there are no records of ongoing treatment [at Mohave Clinic] after May 2015.” Tr. 12. Not so. On June 3, 2015, Black had a 30-minute call with Modica “for support” where they discussed his family issues and relaxation strategies. Tr. 690. On June 25, 2015, Modica and Black exchanged phone messages. Tr. 688. On July 7, Black came in for a 60-minute session that ended with Modica helping him process discharge paperwork. Tr. 686. It is unclear to what extent that error affected the ALJ’s decision, but the mistake should be remedied on remand.

12 order. The clerk is directed to enter judgment accordingly and

close the case.

SO ORDERED.

/s/ Paul Barbadoro Paul Barbadoro United States District Judge

January 7, 2019

cc: Daniel W. McKenna, Esq. Kevin Parrington, Esq.