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Amparo v. Commissioner of Social Security

United States District Court, D. New Jersey

July 31, 2014

GABRIEL AMPARO, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

OPINION

KEVIN McNULTY, District Judge.

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 ALJ 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 proceedings.

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 ("ALJ") on April 4, 2011, for a hearing. R 40, 102. On April 28, 2011, the ALJ issued a decision denying the application. R 32. The Appeals Council affirmed the decision of the ALJ 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 ALJ 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 Pl. 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 well-documented 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 determination of whether the ALJ 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), 416.920(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 three.
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), 416.920(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 five.
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 awarded.

As to all legal issues, my review is plenary.[2] As to factual findings, I will adhere to the ALJ's findings, as long as they are supported by substantial evidence.[3] For disputed findings, I will "determine whether the administrative record contains substantial evidence supporting the findings."[4] Substantial evidence "means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."[5] That is "less than a preponderance of the evidence but more than a mere scintilla."[6]

I may, under 42 U.S.C. § 405(g) and the Third Circuit's Podedworny opinion, affirm, modify, or reverse the Secretary's decision, with or without a remand to the Secretary for a rehearing.[7]

Outright reversal with an award of benefits is appropriate only when a fully developed administrative record contains substantial evidence indicating that the claimant is disabled and entitled to benefits.[8] 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 ALJ'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.[9] Remand is also proper if the ALJ's decision lacks adequate reasoning or support for its conclusions, or if it contains illogical or contradictory findings.[10] It is also proper to remand where the ALJ's findings are not the product of a complete review which "explicitly' weigh[s] all relevant, probative and available evidence" in the record.[11]

II. Consideration of Ail Probative Evidence

The ALJ'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 ALJ's discussion of the record. Facts gleaned from the ALJ's written decision are in regular type; facts taken from the record, but not referred to in the ALJ'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.

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 2006-2007 for $400 a week. R 131.

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 ...


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