UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Andrea Silva
v. Case No. 17-cv-368-PB Opinion No. 2018 DNH 156 US Social Security Administration, Acting Commissioner
MEMORANDUM AND ORDER
Andrea Silva challenges the denial of her claim for Social
Security disability insurance (“SSDI”) benefits under Title II
of the Social Security Act, 42 U.S.C. § 405(g). Silva argues
that the Administrative Law Judge (“ALJ”) erred by failing to
adequately develop the record in considering her physical
impairments, and by inadequately explaining the finding that she
“sought minimal treatment” during the period in question. She
also argues that the ALJ’s determination that her polysubstance
abuse was a “contributing material factor” to her disability was
unsupported by substantial evidence. The Acting Commissioner
moves for an order affirming the decision. For the following
reasons, I deny Silva’s motion and affirm the Commissioner’s
decision. I. BACKGROUND 1
Silva is a 50 year-old woman with a high school education.
Doc. No. 11 at 2; Administrative Transcript (“Tr.”) 134. She
has previously worked as a licensed nurse’s assistant (“LNA”)
from 2000 to 2014. Doc. No. 11 at 2; see Tr. 160. In or around
January 2014, Silva was fired from her job at Speare Memorial
Hospital in Plymouth, NH for violating the hospital’s drug and
alcohol policy. Doc. No. 11 at 2. She had violated the drug
and alcohol policy by overdosing on multiple substances while at
work. See Tr. 159, 321. As a result of the incident, her
nursing license was revoked. Tr. 159, 302. Although Silva has
reported struggles with anxiety and substance abuse stretching
as far back as 2004, those afflictions worsened in March 2013
when her husband of 22 years left her. Tr. 302, 321. She
alleges a disability onset date of January 21, 2014, claiming
that her anxiety and panic disorder have prevented her from
working since that time. Doc. No. 11 at 1.
Silva’s application for benefits was initially denied. Tr.
96. Her claim progressed to a hearing before ALJ Elizabeth M.
Tafe on March 30, 2016. Tr. 18, 27. Both Silva, unrepresented
1 In accordance with Local Rule 9.1, the parties have submitted a joint statement of stipulated facts. Doc. No. 11. Because that joint statement is a part of the court’s record, I only briefly discuss the facts here. I discuss further facts relevant to the disposition of this matter as necessary below. 2 by counsel, and a vocational expert testified at the hearing.
Tr. 34, 42, 58. During the hearing, Silva notified the ALJ of
some recent back pain that limited her ability to lift things,
and presented a record of a recent medical appointment
evaluating that pain. Tr. 37, 54-56. This was the first time
she alleged a physical impairment of any kind. Tr. 54; see Tr.
159-62 (SSDI application claiming her medical conditions were
only anxiety, panic disorder, and depression). She also
notified the ALJ that several follow-up appointments to further
address this pain had been scheduled for the upcoming weeks.
Tr. 37. At the end of the hearing, the ALJ decided to hold the
record open for two weeks for Silva to submit any additional
evidence from those upcoming appointments. Tr. 63. The post-
hearing evidence obtained by the ALJ was then incorporated into
the administrative record and reviewed by the ALJ. Tr. 222-223
(referencing Tr. 342-349). On August 31, 2016, the ALJ denied
Silva’s claim by written decision. Tr. 27. On July 11, 2017,
the Social Security Administration (“SSA”) Appeals Council
denied Silva’s request for review, rendering the ALJ’s decision
the final decision of the Acting Commissioner. Doc. No. 11 at
2; Tr. 1. Silva now appeals. Doc. No. 10.
II. THE ALJ’S Decision
3 On August 31, 2016, the ALJ determined that Silva was “not
disabled” under the Social Security Act because she would not be
disabled if she stopped her substance use. Tr. 26-27. In her
written decision, the ALJ first assessed Silva’s claim in light
of all her impairments, including her diagnosed polysubstance
abuse, and concluded that Silva was disabled. Tr. 19-25.
Pursuant to applicable regulations, the ALJ continued her
analysis to determine whether Silva’s polysubstance abuse was a
“contributing factor material to the determination of
disability.” Tr. 25-26; see 20 C.F.R. § 404.1535; SSR 13-2P,
2013 WL 621536, at *4-5 (S.S.A. Feb. 20, 2013). After finding
that it was, the ALJ concluded that Silva had not been disabled
“at any time from the alleged onset date through the date of
[her] decision.” Tr. 26-27.
At step one of her initial analysis, the ALJ determined
that Silva had not engaged in substantial gainful activity since
January 21, 2014. Tr. 21. At step two, she determined that
Silva suffered from “the following severe impairments:
generalized anxiety disorder, depressive disorder-NOS [not
otherwise specified] and polysubstance abuse disorder.” Tr. 21.
She also found that Silva’s back pain constituted a non-severe
impairment. Tr. 22. In making the latter determination, the
ALJ noted a lack of evidence of treatment related to Silva’s
complaints of back pain. Id. She further emphasized that
4 Silva’s back strain was a non-severe impairment because there
was no evidence of any “medically determinable musculoskeletal
impairment [affecting] her ability to perform basic work
functions for any period of 12 months.” Tr. 22. At step three,
the ALJ found that none of Silva’s impairments, considered
individually or in combination, qualified for any impairment
listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, which would
have rendered her disabled per se. Id.; see 20 C.F.R. §
404.1520(d), 404.1525, and 404.1526.
At step four, the ALJ determined that Silva had the
residual functional capacity (“RFC”) “to understand, recall and
carry out short, simple instructions,” but that she could not
“sustain concentration and attention for even routine, familiar
tasks for 2-hours at a time throughout an 8-hour workday.” Tr.
23. She further determined that Silva could not “maintain a
regular work schedule,” that “she [would] be off task [for] at
least 15% of the workday,” and that she would “be out of work at
least two days per month on a consistent basis.” Id. She
finally found that Silva could have “occasional brief
interactions with the public,” and was capable of
“accommodat[ing] to routine, familiar, changes.” Id. In light
of this RFC, the ALJ determined that Silva could not return to
her past work as an LNA. Tr. 24.
5 In making her RFC determination, the ALJ considered Silva’s
entire medical record and several expert opinions, including
those pertaining to the effects and diagnoses of her
polysubstance abuse. Tr. 23-24. In so doing, the ALJ gave
great weight to the June 2014 opinion of Dr. Laura Landerman, a
State Agency reviewing psychologist. Tr. 23, 72-76. At the
time of her review, Dr. Landerman believed that Silva’s
substance abuse was still an active issue despite Silva’s claims
of sobriety since the overdose in January 2014. Tr. 75.
Accordingly, she opined that it could “not be factored out” in
assessing Silva’s mental RFC. Tr. 75. Importantly, she opined
that all of Silva’s impairments rendered her “unable to maintain
a regular full time work schedule and attendance.” Tr. 74. She
also opined that Silva was “unable to adequately and
consistently sustain” concentration, persistence, and pace for
extended periods “without interruptions from [her] psych
symptoms, namely anxiety and [drug addiction or alcoholism].”
Tr. 88.
At step five, after considering the hearing testimony of a
Vocational Expert (“VE”), the ALJ determined that there were no
jobs that existed in significant numbers in the national economy
that Silva could perform when her polysubstance abuse was an
active issue. Tr. 24-25. In rendering her opinion, the VE was
asked to consider whether jobs existed for a hypothetical person
6 of Silva’s age, education, work experience, and the
aforementioned RFC. Tr. 59-61. Specifically, the VE was asked
to consider the significance of the RFC components limiting such
a person to “be[ing] off task at least 15 percent of the
workday,” and being absent from work more than one day per
month. Tr. 61. She opined that such limitations would be
“beyond customary tolerances” and would completely preclude such
a person from “competitive work.” Tr. 61. Therefore, the ALJ
concluded that she would be disabled when “considering all of
[Silva’s] impairments, including [her] substance use disorders,”
she was disabled. Tr. 24.
Due to the evidence of substance abuse, however, the ALJ
proceeded with her analysis to determine whether substance abuse
was a “contributing factor material to the determination of
disability.” 20 C.F.R. § 404.1535. Social Security Ruling 13-
2p prescribes the manner in which an ALJ must proceed in cases
involving objective medical evidence of drug addiction and
alcoholism (“DAA”). SSR 13-2P, 2013 WL 621536, at *6; see 42
U.S.C. § 423(d)(2)(C) (“An individual shall not be considered to
be disabled . . . if alcoholism or drug addiction would . . . be
a contributing factor material to the Commissioner's
determination that the individual is disabled.”); 20 C.F.R. §
404.1535. According to SSR 13-2p, once the ALJ finds a claimant
disabled, he or she must go on to determine “whether the
7 claimant would continue to be disabled if he or she stopped
using drugs or alcohol,” i.e. “whether DAA is ‘material’ to the
finding that the claimant is disabled.” See SSR 13-2P, 2013 WL
621536, at *2. Accordingly, the DAA evaluation process
essentially requires the ALJ to apply the sequential analysis a
second time while disregarding the effects of the claimant’s
substance abuse. See 20 C.F.R. § 404.1535; SSR 13-2P, 2013 WL
621536, at *4-6, 14; see also, e.g., Sax v. Colvin, 31 F. Supp.
3d 1156, 1161 (E.D. Wash. 2014) (“[T]he ALJ conducts the
sequential evaluation a second time and considers whether the
claimant would still be disabled absent the substance abuse.”).
Thus, in Silva’s case, the ALJ performed a so-called DAA
evaluation to determine whether Silva’s polysubstance abuse was
“a contributing factor material to the determination of
disability.” 20 C.F.R. § 404.1535; SSR 13-2P, 2013 WL 621536,
at *6. At step two of her reanalysis, the ALJ determined that
“even when [Silva’s] substance abuse is not a factor,” she has
“continued to have problems with anxiety and depression.” Tr.
25. Therefore, the ALJ found that Silva would continue to have
severe impairments even in the absence of substance use. Id.
The ALJ then determined that without the substance use, Silva
would still not have an impairment that meets any listing in 20
C.F.R. Part 404, Subpart P, Appendix 1. Tr. 25. Next, at step
four, the ALJ determined that, without substance use, Silva
8 would have the RFC “to perform work at all exertional levels,”
that she “would be able to understand, recall, and carry out
short, simple instructions,” and that she could “sustain
concentration and attention for 2-hours at a time for routine,
familiar tasks.” Tr. 25. She also found that Silva could
“persist[] at routine, familiar tasks at a variable, but
acceptable pace,” and that “[s]he could have occasional, brief
interactions with the public,” and “could accommodate to
routine, familiar changes.” Tr. 25. The ALJ nevertheless
determined that even if Silva stopped her polysubstance abuse,
she would not be able to return to her past work as an LNA. Tr.
26.
In making this non-DAA RFC determination, the ALJ again
relied on an opinion of Dr. Landerman, but from a second, more
recent evaluation in November 2014. Tr. 25, Tr. 89-92. By the
time of her second review, Dr. Landerman opined that Silva’s
polysubstance abuse was in early remission, but her anxiety was
still active. Tr. 91. Her updated mental RFC was similar to
the one previously discussed, except that it differed in two
material respects. First, in November 2014, Dr. Landerman
opined that Silva “was not significantly limited” in her
abilities “to perform activities within a schedule, maintain
regular attendance, and be punctual within customary
tolerances.” Tr. 90. Second, she opined that Silva was “able
9 to sustain concentration and attention for two hours for routine
familiar tasks.” Tr. 90. The ALJ read Dr. Landerman’s opinion
to indicate that “in the absence of substance abuse, [Silva]
would have no more than moderately impaired functioning in any
domain.” Tr. 25. The ALJ also found her non-DAA RFC to be
consistent with the opinion of Dr. Rexford Burnette, a state
consultative psychologist, who examined Silva in October 2014,
Tr. 320-325, as well as a report submitted from Speare Memorial
Hospital, Silva’s longtime employer up until her alleged onset
date, Tr. 191-192. Tr. 25-26. The report from Speare Memorial
Hospital stated that, up until the time she lost her license in
January 2014, Silva had been able to perform her work “properly
and satisfactorily,” providing direct and indirect patient care.
Tr. 25, 191.
Finally, at step five, after considering testimony from the
VE, the ALJ found that there would be a significant number of
jobs in the national economy that Silva could perform if she
stopped substance use. Tr 25. Specifically, the ALJ accepted
the VE’s opinion that a hypothetical person of Silva’s age,
education, work experience, and non-DAA RFC could perform the
representative jobs of “housekeeper,” “merchandise marker,” and
“kitchen helper.” Tr. 26. Accordingly, the ALJ found that
Silva’s polysubstance use disorder was a “contributing factor
material to the determination of disability,” and she was
10 therefore “not disabled” within the meaning of the Social
Security Act. Tr. 26; see 42 U.S.C. § 423(d)(2)(c); 20 C.F.R. §
404.1535.
Silva asked the SSA Appeals Council to review the ALJ’s
decision. See Tr. 13. In a letter dated July 11, 2017, to
Silva, SSA explained that it found no reason under its rules to
review the ALJ’s decision and therefore denied Silva’s request
for review, leaving the ALJ’s decision as the final decision.
Tr. 1. 2
III. STANDARD OF REVIEW
I am authorized under 42 U.S.C. § 405(g) 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. 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, as long as
2 The letter stated that under SSA rules, it will review an ALJ’s decision for any of the following reasons: abuse of discretion by the ALJ, an error of law, lack of substantial evidence, broad policy or procedural issues affecting the public interest, or if it receives additional, new, material evidence that could reasonably change the outcome of the ALJ’s decision. It determined that none applied in this case, and affirmed the ALJ’s decision. Tr. 1-2. 11 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
could support a different conclusion.” Id. at 770. If,
however, the ALJ “ignor[ed] evidence, misappl[ied] the law, or
judg[ed] matters entrusted to experts,” her findings 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, drawing inferences from evidence in the record, and
resolving conflicts in the evidence. See Irlanda Ortiz, 955
F.2d at 769.
IV. ANALYSIS
Silva alleges three errors that she argues warrant
reversal. Doc. No. 10-1. First, she contends that the ALJ
failed to adequately consider the combined impact of all of her
medically determinable impairments and neglected to sufficiently
develop the record with regard to her reported back pain. Id.
12 at 3. Second, she argues that the ALJ incorrectly evaluated her
personal testimony regarding the extent of her functional
limitations and polysubstance abuse. Id. at 6. Third, she
argues that the ALJ’s DAA evaluation was not based on
substantial evidence. I address and reject each of Silva’s
arguments in turn.
A. Failure to Adequately Develop the Record
Silva first argues that the ALJ failed to adequately
develop the record with regard to her lower back pain. Doc. No.
10-1 at 3-4. She contends that the ALJ failed to obtain
available and more complete reports of her back injury, which
could have been used to determining whether her back injury was
a severe impairment and whether it limited her ability to work.
Id. at 5. I reject this argument because the ALJ held the
record open after the hearing and requested additional records,
and because Silva has failed to indicate what, if any, records
would have influenced the outcome of the ALJ’s decision.
“Because Social Security proceedings are not adversarial in
nature, the [ALJ has] a duty to develop an adequate record from
which a reasonable conclusion can be drawn.” Heggarty v.
Sullivan, 947 F.2d 990, 997 (1st Cir. 1991) (internal citations
and quotations omitted). “This duty to develop the record is
heightened where the claimant is not represented by counsel, but
applies in all cases.” Brunel v. Barnhardt, No. 00-cv-402, 2002
13 WL 24311, *8 (D.N.H. Jan. 7, 2002) (citing 20 C.F.R. §
404.1512(d)). “[F]or an ALJ’s failure to develop the record to
constitute reversible error, the claimant must demonstrate that
he or she has suffered some prejudice as a result.” Russell v.
Colvin, No. 13-cv-398, 2014 WL 4851327, *4 (D.N.H. Sept. 29,
2014) (citing Gaudreault v. Astrue, 2012 D.N.H. 108, 14-15)).
“Prejudice is demonstrated by showing that the additional
evidence might have led to a different decision.” Alker v.
Astrue, 2011 D.N.H. 075, *4 (internal citations and quotations
omitted).
Here, the ALJ satisfied her obligation to develop the
record by keeping the record open after the March 2016 hearing
took place, and requesting and obtaining additional medical
evidence from that time. During the March 30, 2016 hearing,
Silva testified that she had had recent back pain that caused
her foot to drag, although no such impairment had been cited in
her original application. Tr. 54. She also indicated that she
had several appointments scheduled in the two weeks following
the hearing. Tr. 62-63. Accordingly, the ALJ told Silva that
she would leave the record open for two weeks to allow Silva to
submit any additional evidence of her back pain generated during
those appointments. Tr. 63. On August 11, 2016, the ALJ
notified Silva of the records she had received during the post-
14 hearing period and provided Silva with specific options as to
how to proceed. See Tr. 222.
The new records included treatment notes from Nurse
Practitioner Kelly Watkins from March 21, 2016 and April 4,
2016, who treated Silva for a lower back strain. 3 See Tr. 349,
344. The ALJ invited Silva to submit written comments about the
new evidence, any additional records that she wished to be
considered, and any questions that Silva might have for the
authors of the records. Tr. 222. The ALJ also wrote that she
would grant a supplemental hearing to discuss the records if
requested by Silva. Id. At such hearing, the ALJ stated, Silva
would have an opportunity to produce witnesses, testify, and
submit additional evidence. Id. The notice further emphasized
that if the ALJ did not receive a response from Silva within ten
days, she would assume that Silva did not want to submit any
additional evidence or hold a supplementary hearing and would at
that time accept the new evidence into the record and issue her
decision accordingly. 4 Tr. 223.
3 Silva also indicated her expectation that additional records would be generated from an appointment with a clinical social worker, Joe McKeller, relating to her depression and anxiety. See Tr. 63. The ALJ obtained at least some of those records, but they do not reflect any material change. Tr. 342, 343, 348. 4 The record does not contain a response from Silva, nor does
Silva contend that she responded. 15 Consistent with that notice, the ALJ considered the records
received, and discussed them in her August 31 decision. Tr. 22.
She found that although NP Watkins had diagnosed Silva with a
lumbar strain, and prescribed her physical therapy, see 344,
there was no evidence that Silva had had a medically
determinable musculoskeletal impairment affecting her “ability
to perform basic work functions for any period of 12 months,” as
required to be considered as an impairment under applicable
regulations. Tr. 22; see 20 C.F.R. §§ 404.1509, 404.1521,
404.1523. Although NP Watkins had also ordered Silva to undergo
a lumbar spine x-ray, see Tr. 344, a hypothetical record that
Silva now faults the ALJ for failing to obtain, see Doc. No. 10-
1 at 6, Silva does not allege that she even underwent such an x-
ray, let alone when. Nor does she provide any indication as to
what that x-ray would show if it exists.
The ALJ’s post-hearing efforts in obtaining and considering
these records are appropriate and sufficient to fulfill her
aforementioned duty. Cf. Gaudreault, 2012 D.N.H. 108, *6 (the
ALJ should have kept the record open post-hearing to fix
“glaring gaps” in the medical records because it “would have
entailed little or no extra effort on the ALJ’s part, and would
not have delayed” her decision). The ALJ notified Silva of her
opportunity to review the received records, submit comment,
16 supplement the records, and request a further hearing. Her duty
to develop the record required nothing more.
Nevertheless, even if the ALJ had not sufficiently
fulfilled her obligation to develop the record, Silva has failed
to demonstrate that any additional records would have changed
the outcome of the ALJ’s decision in her favor. See Blanchette
v. Astrue, No. 08-cv-349, 2009 WL 1652276, *13 (D. N.H. June 9,
2009) (finding that the claimant could not show harmful error
when the “claimant does not say what more the ALJ would have
learned from the questioning she says should have been
conducted”). All Silva presents to establish that she was
prejudiced by the ALJ’s post-hearing development is her
speculation that had the ALJ obtained records of a lumbar spine
x-ray or records from similarly ordered physical therapy, the
ALJ would have determined her back impairment to be severe.
Silva alleges that these records might have been generated
sometime between the March 2016 hearing and the August 2016
decision based on the mere fact that NP Watkins ordered them.
See Doc. No. 10-1 at 6. But Silva fails to present any evidence
that she followed through on those orders and that the records
of the x-ray or physical therapy actually exist, let alone that
they would have led to a different decision. This conjecture
falls well short of establishing reversible error. See Doc. No.
10-1 at 6; Nelson v. Apfel, 131 F.3d 1228, 1235 (7th Cir. 1997)
17 (“Mere conjecture or speculation that additional evidence might
have been obtained in the case is insufficient to warrant
remand.”) (internal quotation and citation omitted).
In sum, Silva was given ample opportunity to supplement the
post-hearing records, but failed to do so. Because Silva has
not demonstrated that the ALJ’s failure to obtain her X-ray and
physical therapy records prejudiced her claim, such a failure
was harmless and does not warrant remand.
B. Failure to Seek or Comply with Treatment
Silva next appears to argue that the ALJ erred in finding
that her failure to regularly seek treatment for her impairments
undermined her own subjective allegations of pain and its
limiting effects. Specifically, Silva cites the ALJ’s finding
that her “allegations [were] generally consistent with the
medical evidence to the extent that she has had some problems
with anxiety and mood,” but also noted that Silva had “sought
minimal treatment” over the two-and-half-year period in
question. Tr. 23. 5 The ALJ went on to cite several examples,
such as evidence that Silva did not “follow-through” with
certain counseling in April 2014, and that “she did not seek any
5 Although this observation was made in the context of developing the initial, all-inclusive RFC, which supported a finding of disability, it arguably implicates the second, non-DAA RFC with equal force. 18 mental health treatment again until approximately March 2016.”
Tr. 23.
Citing Social Security Ruling 16-3P, Silva now argues that
the ALJ erred in failing to consider possible reasons that might
explain why she had infrequently sought and complied with
treatment. Doc. No. 10-1 at 7-9. Specifically, she cites three
“reasons” that the ALJ should have considered: (1) she lacked
medical insurance coverage and was unable to pay for treatment,
(2) she believed the side effects of the medication were worse
than the original symptoms, and (3) her mental impairments
prevented her from understanding her need for treatment. Doc.
No. 10-1 at 8-9. None of these arguments are ultimately
persuasive.
The ALJ may consider an individual’s treatment history,
“when evaluating whether symptom intensity and persistence
affect the ability to perform work-related activities”. SSR 16-
3p, 2016 WL 1119029, *8. SSR 16-3p provides that an ALJ may
find a claimant’s subjective complaints “inconsistent with the
overall evidence of record” if “the frequency or extent of the
treatment sought . . . is not comparable with the degree of the
individual’s subjective complaints,” or if the if the individual
fails to follow prescribed treatment. Id. Such a
determination, however, cannot be made “without considering
possible reasons [why] he or she may not comply with . . . or
19 seek treatment. Id. Possible reasons that a claimant may not
seek or comply with treatment include, inter alia,(i) “side
effects [of medication that] are less tolerable than the
symptoms,” (ii) an inability to afford treatment or lack of
access to low-cost care, or (iii) an inability to appreciate the
need for treatment because of a mental impairment. Id. at *9.
It is worth emphasizing at the outset that the ALJ did not
find Silva’s subjective complaints to be “inconsistent” with the
objective medical evidence. Instead, she found them to be
“generally consistent.” Tr. 23. Thus, arguably, there is no
departure from SSR 16-3P to even address, as the ruling plainly
conditions the requirement that an ALJ consider these “reasons”
on a finding that a claimant’s failure to seek treatment renders
his or her subjective complaints inconsistent with the medical
record. SSR 16-3p, 2016 WL 1119029, *8.
Nevertheless, Silva is not entitled to a remand even if I
assume for purposes of analysis that the ALJ’s finding that
Silva’s subjective complaints were “generally consistent” with
the medical record, juxtaposed with her comments regarding the
“minimal treatment” sought, implies some degree of
inconsistency. Although the ALJ did not explicitly identify any
reasons Silva might have had for failing to more regularly seek
treatment, any error was harmless because the record as a whole
reveals that the ALJ sufficiently considered these reasons where
20 they were relevant. For example, at the hearing, the ALJ
explicitly addressed any concern Silva might have had as to the
harmful side effects of antidepressants, recently prescribed to
her by NP Watkins, in March 2016. See Tr. 56. Further, it is
unclear what side effects may be implicated by attending mental-
health counseling, so this consideration was not relevant to
Silva’s failure to “follow-through” on referrals in April 2014.
The record also establishes that Silva had both adequate
access to low-cost medical care and that she was aware of the
need for such treatment. For example, in March 2014, Silva was
enrolled in an affordable treatment program at Horizons
Counseling Center, upon her own request, but stopped attending
after two sessions. See Tr. 292, 318. In January 2015, Silva
saw her primary care provider (“PCP”), Rebecca Rose, for breast
pain as a self-pay patient and complied with an order for a
mammogram and an ultrasound. See Tr. 327-332. When asked by
the ALJ why she had not seen a doctor or therapist since 2015,
Silva replied that she “didn’t bother” because she “found the
Lord.” Tr. 38-39. 6 Silva further stated that she kept her panic
attacks under control, but decided to seek treatment in March
6 According to the Joint Statement of Material Facts, Silva did not participate in any formal mental health treatment from April 2014 to March 2016. Doc. No. 11 at 6.
21 2016 when she began to have an attack every day. See Tr. 45. 7
In sum, to the extent the ALJ’s omission of the aforementioned
“reasons” from her decision was error, it was harmless because
it is clear that the ALJ addressed the possible side effects of
medication with Silva, that Silva could afford treatment when
necessary, and that Silva had the mental capacity to seek
treatment. See Moore v. Comm’r of Soc. Sec., 573 Fed. App’x
540, 542-43 (6th Cir. 2014) (holding that claimant’s failure to
pursue treatment when the record indicates that she had the
resources to afford treatment “greatly erodes her credibility”);
Hanna v. Chater, 930 F. Supp. 378, 390-91 (N.D. Iowa 1996)
(because the claimant had an ability to hire others to assist
her in her daily life and much of her prescribed treatment
required no expense, “the ALJ could have concluded her financial
concerns were not severe enough to justify her failure to seek
further treatment.”).
C. Drug and Alcohol Abuse – Materiality Determination
Silva’s principal argument is that the ALJ’s determination
that she would not be disabled if she stopped substance use was
based on the false premise that her substance abuse was an
active impairment during the period under review. In other
words, Silva challenges the ALJ’s conclusion that her
7 When Silva did seek treatment in March 2016, Mid-State Health assisted her in applying for Medicaid. See Tr. 51. 22 polysubstance use was a “contributing factor material to the
determination of disability,” despite Silva’s claim that she had
been sober since her alleged onset date and an alleged lack of
evidence to contradict that claim. She argues that because she
was sober during the entire period in question, a two-year
stretch in which her anxiety symptoms continued to worsen, the
ALJ erred in finding her history of substance use material to
the determination of disability. I reject her argument. The
ALJ’s materiality determination is supported by substantial
evidence for the reasons discussed.
The Social Security Act, as amended, provides that an
individual otherwise determined to be disabled, “shall not be
considered disabled . . . if alcoholism or drug addiction . . .
[is] a contributing factor material” to that determination. 42
U.S.C. § 423(d)(2)(C); Ell v. Berryhill, No. 16-cv-465-SM, 2018
WL 301159, at *3 (D. N.H. Jan. 5, 2018). Thus, if a claimant is
determined to be disabled and there is medical evidence of
substance abuse, then the ALJ “must go one step further” and
determine whether substance abuse is a material factor
contributing to the disability. Benelli v. Comm’r of Soc. Sec.,
No. 14-cv-10785, 2015 WL 3441992, at *22 (D. Mass May 28, 2015)
(quoting Brown v. Apfel, 71 F. Supp. 2d 28, 35 (D. R.I. 1999)).
In assessing materiality, the critical inquiry is “whether the
Commissioner would still find the claimant disabled if he or she
23 stopped using drugs or alcohol.” 20 C.F.R. § 404.1535(b)(1).
If the answer is no, then the claimant’s DAA is material to the
initial disability determination and he or she will ultimately
be considered “not disabled” under the Act. See 20 C.F.R. §
404.1535; Cage v. Comm’r of Soc. Sec., 692 F.3d 118, 123 (2d
Cir. 2012); Parra v. Astrue, 481 F.3d 742, 747-48 (9th Cir.
2007). If the answer is yes, then the opposite results. 20
C.F.R. § 404.1535.
In practice, this requires the ALJ to engage in the
familiar five-step sequential analysis for a second time, while
discounting the effects of the claimant’s substance abuse. See
Sax v. Colvin, 31 F. Supp. 3d 1156, 1161 (E.D. Wash. 2014);
Lohmeier v. Colvin, No. CV-14-02247, 2016 WL 825850, at *8 (D.
Ariz. Mar. 3, 2016); SSR 13-2p, 2013 WL 621536, at *4-6. His or
her decision must address which impairments would remain in the
absence of any substance abuse disorder, and whether those
remaining impairments would be disabling either alone or in
combination. 20 C.F.R. § 404.1535(b)(2); see SSR 13-2P, 2013 WL
621536, at *14. The burden of proving DAA immateriality, like
the burden of proving disability, lies with the claimant. Cage,
692 F.3d at 123; SSR 13-2p, 2013 WL 621536, at *4. The question
of materiality is reserved to the ALJ, and will be upheld so
long as it is supported by substantial evidence. Benelli, 2015
WL 3441992, at *24 (citing Cage, 692 F.3d at 126-27).
24 With that framework in mind, I conclude that the ALJ’s
materiality determination is supported by substantial evidence.
First, the record contains clear evidence of Silva’s
polysubstance abuse diagnoses by multiple medical sources. For
example, on January 27, 2014, Silva was diagnosed with
“sedative, hypnotic, or anxiolytic abuse,” “alcohol dependence,”
and “cocaine dependence in remission” during a diagnostic
assessment at the Genesis Behavioral Health clinic. Tr. 296.
On April 14, 2014, Elsa Johnson, a counselor at Horizons
Counseling Center wrote that Silva met the criteria for severe
opioid, alcohol, and sedative use disorder. Tr. 299. Later, in
June and October 2014, upon examination, Silva was again
diagnosed by two different consultative psychologists with
alcohol use disorder, anxiolytic use disorder, and opioid use
disorder. Tr. 305, Tr. 325. Furthermore, Silva herself
testified that she used to regularly use Oxycontin, cocaine,
heroin, and Klonopin. Tr. 55. Although she claimed that she
had not done so since January 2014, see Tr. 55, the ALJ was
well-justified in finding “medical evidence of [her] drug
addiction or alcoholism” and proceeding with the DAA evaluation
as she did. See 20 C.F.R. § 404.1535(a); SSR 13-2P, 2013 WL
621536, at *10-11 (establishing the existence of DAA).
Moreover, despite Silva’s claim of sustained sobriety,
there is substantial evidence to support the ALJ’s contrary
25 assessment. 8 For example, on February 5, 2014, Angela
DeFabrizio, a treating social worker, spoke with Silva’s
attorney after Silva cancelled a psychotherapy appointment. Tr.
288. Silva’s attorney reported to DeFabrizio that Silva was
“currently drinking every day and may be engaging in cocaine.”
Id. Later that month, on February 21, DeFabrizio reported that
Silva’s probation officer had informed her that Silva had failed
a drug test, testing positive for “opiates and barbiturates.”
Tr. 283, 290. 9 Nevertheless, on March 11, 2014, Silva informed
DeFabrizio that she had been “sober for a week.” Tr. 291.
Similarly, on April 14, 2014, Silva’s counselor at Horizons
Counseling Center reported that Silva had “failed various
alcohol and urine screening due to relapsing,” and opined that
8 Although substantial evidence also supports Silva’s claim that her anxiety became more problematic as her sobriety progressed, see Tr. 343, as well as her claim that she had been sober since January 2014, see Tr. 299, 302, 320, this does not justify a finding of reversible error as long as the ALJ’s materiality determination was supported by substantial evidence. See Benetti v. Barnhart, 193 Fed. App'x 6, 7 (1st Cir. 2006) (per curiam) (“The ALJ's resolution of evidentiary conflicts must be upheld if supported by substantial evidence, even if contrary results might have been tenable also.”); Mooney v. Shalala, 889 F. Supp. 27, 30 (D. N.H. 1994) (“[T]he possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.”) (citing Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620 (1966)). 9 DeFabrizio further reported that Silva had failed to show up for any scheduled “sobriety group” sessions that month. Tr. 282-84, 290. 26 Silva’s “anxiety is likely attribute[able] to her chronic
substance abuse over the years.” Tr. 299. On June 17, 2014
Silva presented to consultative licensed psychologist, Jessica
Stern, and again reported that she had been sober since “the end
of January” 2014. Tr. 302. Stern opined, however, that Silva
was not “forthcoming” regarding her substance abuse issues and
that it was “not clear . . . that she [was] in fact in
remission.” Tr. 304. She further opined that Silva’s abilities
germane to the work setting were impaired by her “substance
abuse problems,” inter alia. Tr. 305. All of these records and
others were reviewed by Dr. Landerman on June 19, 2014, who
rendered an opinion as to Silva’s mental RFC at the time and
concluded that she was “unable to adequately and consistently
sustain” concentration, persistence, and pace, and “unable to
maintain a regular full time work schedule.” Tr. 74. In her
assessment, Dr. Landerman opined that Silva’s DAA could “not be
factored out” given the evidence that she was in fact in
remission. Tr. 75.
Second, the ALJ appropriately conducted the DAA evaluation
to determine the materiality of Silva’s substance abuse to her
initial finding. The ALJ swiftly proceeded to step four of her
second sequential analysis after finding that Silva’s anxiety
and depression persisted as severe impairments regardless of her
substance abuse problems. See Tr. 25. In her non-DAA RFC
27 determination, the ALJ critically modified her prior, all-
inclusive RFC to reflect only moderately impaired functioning
once Silva’s substance abuse was excluded from the analysis.
Tr. 25; see Nickerson v. Colvin, 2017 D.N.H. 003, *3 (equating
the ability to understand and carryout short, simple tasks and
to sustain attention for two-hour periods with a moderate
limitation). In constructing her non-DAA RFC, the ALJ relied
exclusively on medical records from the period in which Silva’s
early remission was medically recognized by Dr. Burnette.
Specifically, the ALJ found that Silva “could sustain
concentration and attention for 2-hours at a time for routine,
familiar tasks,” and “could persist[] at routine, familiar tasks
at a variable, but acceptable pace” (emphasis added). Tr. 25.
This significantly differed from previous, all-inclusive
findings that Silva “[could not] sustain concentration and
attention for even routine, familiar tasks for 2-hours at a
time,” “[could not] maintain a regular work schedule,” and would
be absent “at least two days per month” and “off task at least
15% of the workday.” Tr. 23. Her non-DAA RFC also differed
from the all-inclusive RFC in that it omitted any limitations
pertaining to Silva’s inability to maintain a regular work
schedule or to expect excessive absences. 10
10The rest of the limitations in the non-DAA RFC were also included in the all-inclusive RFC, namely abilities to only (i) 28 At step five, those changes measured the difference, in the
opinion of the testifying VE, between a person who could and
could not perform the representative jobs available for a person
of Silva’s age, education, and work experience. See Tr. 60-61.
As the VE testified, the “15-percent-off-task” and “monthly
absence” limitations would put such a person “beyond the
[relevant] customary tolerances,” and preclude her from
performing those or any other jobs. Tr. 61. Thus, the ALJ’s
determination that Silva would not be disabled if she stopped
the substance use and only had impairments of anxiety and
depression was soundly reached.
Finally, the question then becomes whether the ALJ’s non-
DAA RFC was supported by substantial evidence. See Benelli,
2015 WL 3441992, at *24 (citing Cage, 692 F.3d at 126-27). I
conclude that it was, particularly when considering Dr.
Landerman’s 2014 opinion. Generally, in configuring a non-DAA
RFC, an ALJ can either draw from medical evidence from a period
of sobriety, or rely on hypothetical, predictive evidence. See,
e.g., Benelli, 2015 WL 3441992, at *23; see also Parra, 481 F.3d
“understand, recall and carry out short, simple instructions,” (ii) “have occasional, brief interactions with the public,” and (iii) “accommodate to routine, familiar changes.” Compare Tr. 25; with Tr. 23 (all-inclusive RFC listing the same). In this respect, both RFCs essentially adopted either of the two mental RFCs of Dr. Landerman, which both reflected only moderate limitations in these areas. See Tr. 87-91. 29 at 748-49; SSR 13-2P, 2013 WL 621536, at *12. One or the other
is naturally required in order to separate out a claimant’s
remaining functional limitations once substance abuse is a
nonfactor. Here, the ALJ did the former: she adopted an expert
opinion as to Silva’s remaining limitations from a period in
which her substance abuse was in early remission. As discussed,
Dr. Landerman’s second RFC opinion was rendered during a period
in which Silva’s polysubstance abuse was in early remission, see
Tr. 91, i.e. several diagnoses by Dr. Burnette on October 14,
2014. Tr. 320-325. Accepting that evidence, Dr. Landerman
opined that Silva was “not significantly limited” in her
“ability to perform activities within a schedule, maintain
tolerances.” Compare Tr. 90 with Tr. 88 (June 2014, all-
inclusive RFC). She further opined that she was “able to
sustain concentration and attention for two hours for routine
and familiar tasks.” Tr. 90-91. Importantly, this differed
from her previous June 2014 opinions that Silva was “moderately
limited” in both functional areas, and that she was “unable to
maintain a regular full time work schedule” and “unable to
adequately and consistently” sustain concentration, persistence,
and pace. Tr. 88. This earlier, more restrictive RFC from June
2014 considered the effects of Silva’s polysubstance abuse,
whereas the more recent, less restrictive opinion did not.
30 Thus, the ALJ’s determination that if Silva remained sober, she
would require no limitations as to her ability to maintain a
regular work schedule is supported by Dr. Landerman’s opinion.
All other facets of the ALJ’s non-DAA RFC, including Silva’s
ability “to sustain concentration and attention for 2-hours at a
time for routine, familiar tasks,” are plainly supported by Dr.
Landerman’s opinion because they were taken verbatim therefrom.
See Tr. 89-91. Thus, the non-DAA RFC is indeed supported by
substantial evidence, and I find no error. 11
V. CONCLUSION
For the reasons set forth above, I grant the Acting
Commissioner’s motion to affirm (Doc. No. 13), and I deny
11The ALJ also found that Silva’s non-DAA RFC was consistent with the opinions of Dr. Burnette. This conclusion is also supported by substantial evidence, and Dr. Burnette’s opinion only provides further support for the ALJ’s materiality determination. For example, Dr. Burnette’s treatment notes from his October 2014 examination of Silva indicate that “[t]here was absolutely no overt indication that [Silva] was alcohol or drug- intoxicated at the time of [his] evaluation,” and she again reported being sober since January 2014. Tr. 320. He found Silva’s mood to be “humorless and somewhat dysphoric, but not especially anxious,” and although she “described panic like symptoms,” Dr. Burnette did not actually observe any. Tr. 322. He opined that Silva was “able to understand and perform ordinary affairs of life such as providing for her own food budgeting money, housing, and clothing.” Tr. 325. He also found that her anxiety and depression could “probably be better managed after about 6-8 months” with “competent, timely and aggressive treatment.” Id. 31 Silva’s motion to reverse and remand (Doc. No. 10). The clerk
is directed to enter judgment accordingly and close the case.
SO ORDERED.
/s/Paul Barbadoro ____ Paul Barbadoro United States District Judge
August 3, 2018
cc: Terry L. Ollila, Esq. D. Lance Tillinghast, Esq.