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Substance use materiality' prompts disability remand.

Byline: Barry Bridges

A U.S. magistrate judge has advised that an administrative law judge's denial of a claimant's Social Security disability benefits be reversed and remanded for a re-evaluation of whether the applicant had a substance use disorder and whether her occasional use of marijuana was material to her impairment.

Magistrate Judge Patricia A. Sullivan faulted the ALJ for "ignor[ing] the clear and plain language" of Social Security Ruling 13-2p, which outlines the agency's policies for analyzing if drug or alcohol use is a contributing factor in disability claims.

According to Sullivan, the ALJ incorrectly relied on an agency medical expert's opinion that the claimant had a substance use disorder, and wrongly assumed that an extended period of sobriety needed to be shown in order to approve the disability claim.

In her report to the U.S. District Court, Sullivan therefore recommended that the case be remanded for a re-evaluation of materiality and whether a substance use disorder was established.

The 15-page decision is Natassja P. v. Berryhill, Lawyers Weekly No. 54-089-18. The full text of the ruling can be found here.

Morris Greenberg and David F. Spunzo, of Providence's Green & Greenberg, represented the plaintiff-claimant. In brief comments, Spunzo said he was very pleased with Sullivan's recommendations and hoped that the court would adopt them as written.

The attorney for the Social Security Administration, Sarah E. Choi of Boston, did not respond to a request for comments.

Primary impairment

For much of her life, the 30-year-old plaintiff, Natassja P., experienced cognitive impairment and obsessive compulsive disorder, exhibiting repetitive behaviors and rituals.

Although the plaintiff had previously received disability benefits, she secured a position cleaning a church in 2011. She stayed in that job until a change in personnel affected her duties and prompted her to stop working in October 2014.

The plaintiff then filed her current application for benefits, supported with clinical test results from a psychologist and opinions from her treating psychiatrist, therapist and primary care physician. All spoke to the plaintiff's disabling impairments and functional limitations as a result of her OCD. None made mention of a substance use disorder or indicated that the plaintiff's occasional marijuana use affected her OCD symptoms.

However, notwithstanding those opinions, an administrative law judge focused on other references to marijuana use in the record and relied on a non-examining medical expert, Dr. Stuart Gitlow, in finding that the plaintiff's primary impairment was not OCD, but "substance induced anxiety disorder with obsessive-compulsive symptoms."

The ALJ further concluded that the claimant would recover residual functional capacity to perform uncomplicated work if she ceased marijuana use.

Upon the denial of her application, the plaintiff went to the District Court to reverse that decision, contending that the ALJ erred in determining that she had a "substance use disorder" that was a material factor in her disability.

Medical testimony

Sullivan sided with the plaintiff, finding that the ALJ did not properly evaluate the claimant's use of marijuana as required by Social Security Ruling 13-2p. Thus, the magistrate judge concluded that the determination concerning residual functional capacity was unsupported by substantial evidence.

Surveying the medical testimony in the record, Sullivan emphasized that the plaintiff's treating sources, such as her primary care physician, psychiatrist and social worker, consistently indicated that the primary diagnosis and focus of treatment was OCD; although there were some notes of "occasional use" of marijuana, there was never a diagnosis of substance use disorder and no suggestion that the plaintiff undergo drug testing.

Over the course of the plaintiff's treatment, Sullivan found, her health care providers addressed whether there was substance use and consistently found that, apart from occasional alcohol use, it was not present and did not contribute to their patient's limitations.

"To recap," Sullivan wrote, "despite evidence that treating providers directed significant attention to the possibility of substance abuse throughout the longitudinal treating record, there are only a handful of references to occasional ('some') marijuana use, no treating source ever diagnosed substance use disorder and no treating source ever recommended either substance abuse testing or that the use of marijuana should be curtailed because it was adversely impacting what all treating sources acknowledge to be serious OCD symptoms."

That is in contrast to the state agency experts, who saw greater significance in reports of the plaintiff's occasional marijuana use.

Dr. Gitlow testified that the plaintiff's "fairly strong" OCD symptoms coexisted with cannabis use disorder and that negative drug urine tests would be needed to rule out that marijuana was causing her OCD symptoms.

"[I]nstead of a diagnosis of OCD as endorsed by every other source, Dr. Gitlow opined that plaintiff's impairment was 'substance induced anxiety disorder, specifically with the obsessive compulsive symptoms,'" Sullivan wrote. "Based on that diagnosis, and because the record lacked at least four months of clean urine screens Dr. Gitlow concluded that plaintiff's underlying OCD is likely only 'at least mild in nature.'"

'Miscarriage of justice'

Sullivan objected to the ALJ's decision, which rested entirely on Gitlow's opinion, on two fronts.

The first concerned materiality, i.e., whether the claimant would still be disabled if she stopped using drugs or alcohol.

The magistrate judge said that SSR 13-2p is the guide, as it clarifies how the agency determines whether drug addiction and alcoholism is a medically determinable impairment and, if either is, whether such substance abuse is material to the finding that a claimant is disabled with a resulting denial of benefits.

"[The ruling] makes clear that the adjudicator must determine whether the claimant has a medically determinable substance use disorder, rather than a mere history of occasional prior maladaptive use of alcohol or illegal drugs," Sullivan wrote. "Next, the materiality of the disorder to the disability determination must be considered."

Another critical point, according to Sullivan, is that there is no requirement to show a period of abstinence for a claimant to meet the burden of proving disability.

"Dr. Gitlow's, and therefore the ALJ's, analysis is wrongly grounded in the faulty premise that an extended period of sobriety ('a series of longitudinally negative urine drug tests') was essential to avoid denial of plaintiff's disability claim based on the materiality of her occasional marijuana use," Sullivan wrote. "This is error because it ignores the clear and plain language of SSR 13-2p, which was adopted to avoid the precise miscarriage of justice that has occurred here."

Based on that error, Sullivan recommended the case be remanded for further consideration of substance abuse materiality in light of the requirements of SSR 13-2p and the record as a whole.

But Sullivan went further and addressed the "more difficult question" of whether the ALJ also erred in determining that plaintiff had a substance use disorder in the first place.

"Apart from the flawed Gitlow opinion, the only 'substantial evidence' to support this conclusion is [a state psychologist's] tertiary diagnosis of mild cannabis use disorder," Sullivan said. "No treating source opined to such a diagnosis."

In any event, the magistrate judge added, the state psychologist did not draw a link between any substance abuse and the claimant's functional limitations.

"Thus, Dr. Gitlow's opinion is not just inconsistent with the regulatory definition of substance use disorder [in SSR 13-2p], which makes clear that a 'claimant's occasional maladaptive use or a history of occasional prior maladaptive use of alcohol or illegal drugs does not establish that the claimant has a medically determinable substance use disorder,'" Sullivan said. "More fundamentally, with only 'occasional' or 'periodic' use established, nothing in the record provides evidentiary support for the Gitlow opinion that a substance use disorder adversely affected plaintiff's ability to work."

Sullivan concluded the ALJ incorrectly relied on Gitlow as the sole basis for his finding that the plaintiff's OCD was not itself a primary diagnosis. Upon remand, therefore, she recommended that in addition to the question of materiality there also be a re-examination of whether the plaintiff had a substance use disorder.

CASE: Natassja P. v. Berryhill, Lawyers Weekly No. 54-089-18

COURT: U.S. District Court

ISSUE: Did an administrative law judge err in denying an application for Social Security disability benefits?

DECISION: Yes, because there was a faulty analysis of whether the claimant's occasional marijuana use was material to her impairment

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Title Annotation:Natassja P. v. Berryhill
Author:Bridges, Barry
Publication:Rhode Island Lawyers Weekly
Date:Nov 29, 2018
Words:1374
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