UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Philip Simard, Claimant
v. Case No. 15-cv-413-SM Opinion No. 2016 DNH 186 Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Defendant
O R D E R
Pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), claimant,
Philip Simard, moves to reverse or vacate the Acting
Commissioner’s decision denying his applications for Disability
Insurance Benefits under Title II of the Social Security Act, 42
U.S.C. § 423, and Supplemental Security Income Benefits under
Title XVI, 42 U.S.C. §§ 423, 1381-1383c (the “Act”). The Acting
Commissioner objects and moves for an order affirming her
decision.
For the reasons discussed below, claimant’s motion is
denied, and the Acting Commissioner’s motion is granted.
1 Factual Background
I. Procedural History.
In January of 2013, claimant filed applications for
Disability Insurance Benefits (“DIB”) and Supplemental Security
Income (“SSI”), alleging that he was disabled and had been
unable to work since June of 2012. Claimant was 46 years old at
the time of his alleged onset of disability. His applications
were denied and claimant requested a hearing before an
Administrative Law Judge (“ALJ”).
In January of 2015, claimant, his attorney, an impartial
vocational expert, and an impartial medical consultant appeared
before an ALJ, who considered claimant’s applications de novo.
Approximately 10 weeks later, the ALJ issued his written
decision, concluding that claimant was not disabled, as that
term is defined in the Act, at any time prior to the date of his
decision. Claimant then sought review by the Appeals Council,
which denied his request for review. Accordingly, the ALJ’s
denial of claimant’s applications for benefits became the final
decision of the Commissioner, subject to judicial review.
Subsequently, claimant filed a timely action in this court,
asserting that the ALJ’s decision is not supported by
substantial evidence.
2 Claimant then filed a “Motion to Reverse” the decision of
the Acting Commissioner (document no. 12). In response, the
Acting Commissioner filed a “Motion for an Order Affirming the
Decision of the Commissioner” (document no. 13). Those motions
are pending.
II. Stipulated Facts.
Pursuant to this court’s Local Rule 9.1, the parties have
submitted a joint statement of stipulated facts which, because
it is part of the court’s record (document no. 15), need not be
recounted in this opinion. Those facts relevant to the
disposition of this matter are discussed as appropriate.
Standard of Review
I. “Substantial Evidence” and Deferential Review.
Pursuant to 42 U.S.C. § 405(g), the court is empowered “to
enter, upon the pleadings and transcript of the record, a
judgment affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the
cause for a rehearing.” Factual findings and credibility
determinations made by the Commissioner are conclusive if
supported by substantial evidence. See 42 U.S.C. §§ 405(g),
1383(c)(3). See also Irlanda Ortiz v. Secretary of Health &
Human Services, 955 F.2d 765, 769 (1st Cir. 1991). Substantial
3 evidence is “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Consolidated
Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). Importantly, it
is something less than a preponderance of the evidence, so the
possibility of drawing two inconsistent conclusions from the
evidence does not prevent an administrative agency’s finding
from being supported by substantial evidence. Consolo v.
Federal Maritime Comm’n., 383 U.S. 607, 620 (1966). See also
Richardson v. Perales, 402 U.S. 389, 401 (1971).
II. The Parties’ Respective Burdens.
An individual seeking SSI and/or DIB benefits is disabled
under the Act if he or she is unable “to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected
to result in death or which has lasted or can be expected to
last for a continuous period of not less than 12 months.” 42
U.S.C. § 423(d)(1)(A). See also 42 U.S.C. § 1382c(a)(3). The
Act places the initial burden on the claimant to establish the
existence of a disabling impairment. See Bowen v. Yuckert, 482
U.S. 137, 146-47 (1987); Santiago v. Secretary of Health & Human
Services, 944 F.2d 1, 5 (1st Cir. 1991). To satisfy that
burden, the claimant must prove, by a preponderance of the
evidence, that his impairment prevents him from performing his
4 former type of work. See Gray v. Heckler, 760 F.2d 369, 371
(1st Cir. 1985); Paone v. Schweiker, 530 F. Supp. 808, 810-11
(D. Mass. 1982). If the claimant demonstrates an inability to
perform his previous work, the burden shifts to the Commissioner
to show that there are other jobs in the national economy that
he can perform, in light of his age, education, and prior work
experience. See Vazquez v. Secretary of Health & Human
Services, 683 F.2d 1, 2 (1st Cir. 1982). See also 20 C.F.R. §§
404.1512(f) and 416.912(f).
In assessing a disability claim, the Commissioner considers
both objective and subjective factors, including: (1) objective
medical facts; (2) the claimant’s subjective claims of pain and
disability, as supported by the claimant’s testimony and/or that
of other witnesses; and (3) the claimant’s educational
background, age, and work experience. See, e.g., Avery v.
Secretary of Health & Human Services, 797 F.2d 19, 23 (1st Cir.
1986); Goodermote v. Secretary of Health & Human Services, 690
F.2d 5, 6 (1st Cir. 1982). Ultimately, a claimant is disabled
only if his:
physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work
5 exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.
42 U.S.C. § 423(d)(2)(A). See also 42 U.S.C. § 1382c(a)(3)(B).
With those principles in mind, the court reviews claimant’s
motion to reverse and the Acting Commissioner’s motion to affirm
her decision.
Background - The ALJ’s Findings
In concluding that claimant was not disabled within the
meaning of the Act, the ALJ properly employed the mandatory
five-step sequential evaluation process described in 20 C.F.R.
§§ 404.1520 and 416.920. See generally Barnhart v. Thomas, 540
U.S. 20, 24 (2003). Accordingly, he first determined that
claimant had not been engaged in substantial gainful employment
since his alleged onset of disability: June 13, 2012. Admin.
Rec. at 105. Next, he concluded that claimant suffers from the
following severe impairment: “degenerative disc disease of the
cervical spine, carpal tunnel syndrome, depression, a ‘likely’
posttraumatic stress disorder, and polysubstance abuse.” Id. at
106. The ALJ also concluded that claimant’s mental impairments,
including his substance use disorder, meet listings 12.04 and
12.09 of the impairments listed in 20 C.F.R. Part 404, Subpart
6 P, Appendix 1. Id. at 107. The ALJ went on, however, to find
that if claimant discontinued his alcohol and substance abuse,
he would not have an impairment or combination of impairments
that meet or medically equal any of the listed impairments. Id.
at 111.
Next, the ALJ concluded that if claimant discontinued his
substance abuse, he would have the residual functional capacity
(“RFC”) to perform the exertional demands of a range of light
work. Id. at 113. He noted, however, that claimant could have
only brief and routine contact with co-workers, supervisors, and
the general public. The ALJ also concluded that, “[d]espite his
depression, [claimant] would retain the ability to handle simple
and fairly complex matters [and] he could concentrate and
persist on tasks for two-hour periods over a typical workday and
workweek.” Id. In light of those restrictions, the ALJ
concluded that claimant was not capable of performing any past
relevant work. Id. at 122. See also id. at 165-66 (vocational
expert’s testimony about claimant’s work history).
At the final step of the analysis, the ALJ considered
whether there were any jobs in the national economy that
claimant might perform. Relying upon the testimony of the
vocational expert, the ALJ concluded that if claimant
7 discontinued his substance abuse, “there would be a significant
number of jobs in the national economy that the claimant could
perform.” Id. at 122-23. Consequently, the ALJ determined that
claimant’s “substance use disorder is a contributing factor
material to the determination of disability because the claimant
would not be disabled if he stopped the substance use.” Id. at
123. That, in turn, led the ALJ to conclude that claimant has
not been disabled, as that term is used in the Act, at any time
from his alleged onset date through the date of the ALJ’s
decision. Id.
Discussion
Claimant challenges the ALJ’s decision on three grounds,
asserting that he erred by: (1) improperly striking some of
claimant’s late-filed exhibits from the record; (2) erroneously
concluding that if claimant discontinued his substance abuse,
his mental impairments would not meet or equal a listed
impairment; and (3) erroneously concluding that if claimant
discontinued his substance abuse, he would retain the RFC to
perform a range of light work.
I. Stricken Exhibits.
Claimant’s hearing before the ALJ took place on January 5,
2015. On January 2, 2015, fewer than five days prior to his
8 hearing, claimant submitted two additional documents in support
of his applications for benefits (one of which is now at issue).
He submitted three more documents on January 16th (11 days after
his hearing). The ALJ struck those exhibits from the record,
concluding that claimant failed to comply with the so-called
“Five Day Rule” set forth in 20 C.F.R. § 405.331(a) (“You must
submit any written evidence no later than 5 business days before
the date of the scheduled hearing.”). Specifically, the ALJ
concluded that claimant failed to provide a “good-cause
explanation regarding the untimely submission.” Admin. Rec. at
101. The ALJ did, however, go on to review those documents, but
concluded that all were, at best, of “minimum probative value.”
Id.
Pursuant to the “Five Day Rule,” if a claimant wishes to
submit evidence fewer than five days before his hearing, the ALJ
may decline to consider such evidence unless the claimant
satisfies at least one of three criteria. And, if a claimant
wishes to submitted evidence after the hearing, in addition to
satisfying one of those three criteria, he must also “show that
there is a reasonable possibility that the evidence, alone or
when considered with the other evidence of record, would affect
the outcome of [his] claim.” 20 C.F.R. § 405.331(c). Here,
claimant asserts that he satisfied one of the specified criteria
9 by demonstrating that there was some “other unusual, unexpected,
or unavoidable circumstance beyond [his] control [that]
prevented [him] from submitting the evidence earlier.” 20
C.F.R. § 405.331(b). And, as for the materials submitted after
the hearing, he says he has shown that there is a reasonable
probability that those documents would affect the outcome of his
claim. The court disagrees.
Claimant first challenges the ALJ’s refusal to admit
Exhibit 32F, Dr. Whitesell’s responses to a Drug and Alcohol
Abuse Questionnaire and a Mental Impairment Questionnaire. At
the hearing, counsel for claimant explained that she had only
received those document on the Friday before the hearing (which
was held on a Monday). There was, however, no discussion about
whether those documents could have been obtained earlier and
what efforts counsel undertook (or could have undertaken) to
obtain them in a timely way. Consequently, claimant failed to
sustain his burden to demonstrate that there was some “unusual,
unexpected, or unavoidable circumstance” beyond his control that
prevented timely submission of those documents. See, e.g.,
Raymond v. Astrue, No. 1:12-CV-92-DBH, 2012 WL 6913437, at *2
(D. Me. Dec. 31, 2012) (“[Claimant] offers nothing beyond his
lack of memory as the necessary “unusual, unexpected, or
unavoidable circumstances beyond [his] control.” That is not
10 enough to meet this rather rigorous standard. The rule itself
says that the administrative law judge may decline to consider
such evidence, 20 C.F.R. § 405.331(a), and the plaintiff has
shown no abuse of that discretion here.”), aff'd, No. 1:12-CV-
92-DBH, 2013 WL 214569 (D. Me. Jan. 18, 2013).
Of course, the ALJ was present when counsel was discussing
the late-filed exhibits and certainly could have - and probably
should have - developed the record on this matter. See
generally Heggarty v. Sullivan, 947 F.2d 990, 997 (1st Cir.
1991). The ALJ could have inquired into the reason(s) behind
the delay in filing those documents and fleshed out whether
claimant could, or could not, meet his burden under 20 C.F.R. §
405.331(b). Nevertheless, even if the ALJ had erred by failing
to develop the record, and even if he did ultimately err by
excluding the documents at issue, that error was harmless. See,
e.g., Lemire v. Colvin, No. CV 15-331L, 2016 WL 3166836, at *10
(D.R.I. May 4, 2016) (holding that, “Even assuming that the ALJ
erred by not accepting the late-tendered records, a review of
the records reveals that any such error is plainly harmless”),
report and recommendation adopted, No. CV 15-331L, 2016 WL
3167077 (D.R.I. June 6, 2016); Wilner v. Astrue, No. 2:11-CV-21-
GZS, 2012 WL 253512, at *2 (D. Me. Jan. 26, 2012) (“I conclude
that the new evidence to which the plaintiff points was
11 cumulative and that the new evidence, as a whole, did not
consistently support her claim. Its exclusion, thus, was
harmless.”), aff'd, No. 2:11-CV-21-GZS, 2012 WL 484049 (D. Me.
Feb. 14, 2012).
Despite having excluded Dr. Whitesell’s responses to the
questionnaires from the record, the ALJ plainly read them. And,
indeed, he gave a lengthy explanation in his written decision as
to why he determined that those opinions were entitled to no
weight. See Admin. Rec. at 102. Among other things, the ALJ
noted that Dr. Whitesell opined that claimant’s “alcohol abuse,
opiate abuse, cocaine abuse [are] all in remission.” Exhibit 3
to Claimant’s Memorandum (document no. 12-5) at 1. Yet,
claimant had only recently been discharged from an inpatient
hospitalization related to his alcohol abuse. And, less than a
month prior to Dr. Whitesell’s opinion, claimant reported to
Southern New Hampshire Medical Center with a blood alcohol level
of 244, stated that he had been evicted from his residence for
heroin use, and admitted that he had used heroin only two days
prior. Admin. Rec. at 989. Based upon the record evidence,
including that referenced above, the ALJ was entitled to dismiss
Dr. Whitesell’s opinion that claimant was “in remission” with
respect to his alcohol and substance abuse.
12 Having carefully reviewed the record, as well as the
parties’ arguments, the court cannot conclude that the ALJ’s
stated reasons for affording no weight to Dr. Whitesell’s
opinions were supported by less than substantial evidence.
Consequently, for the reasons stated, as well as those set forth
in the Acting Commissioner’s memorandum (document no. 13-1) at
5-7, the ALJ did not err in excluding those records. But, even
if it was error, any such error was harmless - had those records
been admitted, the ALJ adequately explained why he would have
afforded them no weight (and, therefore, why they would have had
no impact on his disability determination).
The materials claimant submitted to the ALJ after the
hearing were accompanied by a cover letter that provided little
explanation for why some “unusual, unexpected, or unavoidable
circumstance beyond [claimant’s] control” prevented their timely
submission. 20 C.F.R. § 405.331(c)(3). Nor did that letter
include any statement attempting to demonstrate that there was a
“reasonable possibility” that the included material would affect
the outcome of claimant’s applications for benefits. See id. at
§ 405.331(c). Given those undisputed facts, the court cannot
conclude that the ALJ erred (or abused his discretion) when he
determined that claimant failed to carry his modest burden of
demonstrating entitlement to submit the challenged materials in
13 an untimely manner. See generally Lemire v. Colvin, No. CV 15-
331L, 2016 WL 3166836, at *10 (D.R.I. May 4, 2016) (holding that
the claimant failed to meet the burden imposed by § 405.331,
which it noted was similar to the “excusable neglect” standard);
Dax v. Colvin, No. 1:15-CV-21-JHR, 2015 WL 9473405, at *2 (D.
Me. Dec. 28, 2015) (holding that absent a showing that the
materials in question might result in a different outcome on the
merits of claimant’s applications, the ALJ did not err in
excluding late-submitted evidence); Freeman v. Colvin, No. 2:14-
CV-412-JHR, 2015 WL 4041733, at *3 (D. Me. July 1, 2015) (“The
only justification supplied to the administrative law judge, in
either the cover letter transmitting the materials or at the
hearing, was that the plaintiff had ‘some difficulty’ getting
the records and had submitted them immediately when they did
finally arrive. This showing was patently insufficient to
satisfy the rather rigorous standard of section 405.331(b)(3).”)
(citation omitted).
Parenthetically, the court notes that the district courts
in this circuit seem to disagree as to the precise nature of the
burden imposed upon claimants by section 405.331. As noted
above, those in Maine have described the claimant’s burden as
“rather rigorous,” while those in Rhode Island have held it is
less demanding and analogized it to “excusable neglect.”
14 Compare Raymond v. Astrue, No. 1:12-CV-92-DBH, 2012 WL 6913437,
at *2 (D. Me. Dec. 31, 2012) with Howe v. Colvin, 147 F. Supp.
3d 5, 8 (D.R.I. 2015). This court need not weigh in on that
issue since, even giving claimant the benefit of the lighter
burden, it is plain he failed to meet it.
II. Claimant’s Mental Impairments.
When claimant’s alcohol and substance abuse are taken into
consideration, the ALJ concluded that his mental impairments are
of listing severity and, therefore, he would be considered
disabled. But, as the Acting Commissioner notes, the central
question in this case is whether, absent claimant’s alcohol and
substance abuse, his impairments would render him disabled. In
other words, the ALJ had to determine whether claimant’s
substance abuse was a contributing factor material to his
disability. The pertinent regulations provide, in part, that:
If we find that you are disabled and have medical evidence of your drug addiction or alcoholism, we must determine whether your drug addiction or alcoholism is a contributing factor material to the determination of disability.
* * *
The key factor we will examine in determining whether drug addiction or alcoholism is a contributing factor material to the determination of disability is whether we would still find you disabled if you stopped using drugs or alcohol.
15 20 C.F.R. § 404.1535. See also 20 C.F.R. § 416.935. See
generally 42 U.S.C. § 423(d)(2)(C) (“An individual shall not be
considered to be disabled for purposes of this subchapter if
alcoholism or drug addiction would (but for this subparagraph)
be a contributing factor material to the Commissioner’s
determination that the individual is disabled.”).
At step three of the sequential analysis, the ALJ began by
finding that claimant’s mental impairments meet the requirements
for both section 12.04 (Affective Disorders) and section 12.09
(Substance Addiction Disorders) of the listings in 20 C.F.R.
Part 404, Subpart P, Appendix 1. Admin. Rec. at 107-10.
Specifically, he concluded that “when actively abusing
substances, the claimant would meet listing level criteria.”
Id. at 110. See generally SSR 13-2p, Titles II and XVI:
Evaluating Cases Involving Drug Addiction and Alcoholism, 2013
WL 621536 (S.S.A. Feb. 20, 2013). But, relying largely upon the
testimony of Dr. Herbert Golub, a clinical psychologist who
testified at claimant’s hearing, see id. at 130-51, the ALJ then
found that claimant’s substance abuse is a contributing factor
material to the determination of disability. Id. at 110. See
generally 42 U.S.C. § 423(d)(2)(C). The ALJ went on to conclude
that if claimant stopped abusing alcohol and illegal drugs, he
would not have an impairment or combination of impairments that
16 meet or equal any of the listed impairments. Id. at 111.
Claimant challenges those findings, saying the ALJ failed to
properly consider his anxiety disorder and personality disorder
in reaching the conclusion that claimant would not be disabled
absent his alcohol and substance abuse.
But, the record of claimant’s hearing is clear: Dr. Golub
testified that he specifically considered whether claimant’s
impairments met any one or more of the listings set forth in
sections 12.04 (affective disorder), 12.06 (anxiety disorder),
12.08 (personality disorder), and 12.09 (substance addition
disorder). Admin. Rec. at 137. After reviewing claimant’s
medical record, Dr. Golub concluded that, absent claimant’s
alcohol and substance abuse, his impairments would not be
sufficiently severe to meet any of those listed impairments
(other than the substance addition disorder). Id. (“I did not
see him meeting any of these listings other than 12.09 without
alcohol or other drugs being material. The severity did not
seem to be there without these [substances] and he was using so
much . . . 10 to 20 beers a day is quite substantial, plus the
other stuff he was using.”). The ALJ credited Dr. Golub’s
testimony - including that concerning claimant’s personality
disorder and anxiety disorder - gave it “significant weight,”
17 and more than adequately explained his reasons for doing so.
Id. at 110.
Moreover, the ALJ specifically discussed - in substantial
detail - his findings that, when claimant’s drug and alcohol use
is considered, his mental impairments meet listings 12.04 and
12.09. Id. at 107-10. He also discussed why he concluded that,
absent alcohol and substance abuse, claimant would not meet
those listings. But, says claimant, that was not sufficient.
According to claimant, because Dr. Golub considered whether
claimant also met listings 12.06 and 12.08, the ALJ should have
included a discussion of those listings as well. It is,
however, well established that an ALJ need not specifically
address every piece of evidence in the record, nor need he
consider every one of the listings set forth in Appendix 1.
See, e.g., Mohr v. Colvin, 14-CV-245-JD, 2015 WL 1499454, at *4
(D.N.H. Apr. 1, 2015) (“Although an ALJ must consider all of the
evidence in the record, an ALJ is not required to discuss every
piece of evidence as long as the ALJ’s finding is supported by
substantial evidence. More specifically, an ALJ is not required
to discuss every finding in a medical opinion as long as the
opinion was considered as part of the administrative record and
weighed as required by § 404.1527(c).”) (citations omitted).
18 Even if the ALJ did err in failing to specifically discuss
whether claimant might meet the listings set forth in sections
12.06 and 12.08, such error was plainly harmless. The ALJ gave
a detailed discussion of the degree of claimant’s restriction in
his activities of daily living, his social functioning, his
concentration, persistence and pace, and his episodes of
decompensation. Admin. Rec. at 107-10. And, the degree of
impairment required by the omitted listings (12.06 and 12.08) is
the same as required by the listing the ALJ specifically
considered: 12.04. So, when the ALJ supportably concluded that,
when claimant’s drug and alcohol abuse is not factored in, he no
longer meets the listing requirements, that conclusion holds
true for all of the listings at issue. See id. at 112-13.
Claimant’s next argument is less clear. He first notes
that the ALJ concluded that if claimant discontinued his
substance abuse, he would not suffer from an impairment (or
combination of impairments) that meets or equals one of the
listed impairments. But, claimant then asserts that, “According
to the hearing transcript, however, Dr. Golub testified that
[claimant] met listing 12.09 without alcohol or drugs being
material.” Claimant’s Memorandum (document no. 21-1) at 12.
That, says claimant, is a material discrepancy between the ALJ’s
conclusions and Dr. Golub’s testimony - a discrepancy the ALJ
19 should have addressed in his written decision. Again, the court
is constrained to disagree.
At the hearing, Dr. Golub testified that, “I did not see
him meeting any of these listings other than 12.09 without
alcohol or other drugs being material.” Admin. Rec. at 137.
That testimony is not inconsistent with the ALJ’s ultimate
findings. Rather, it seems to be a somewhat awkwardly phrased
statement about the very nature of the impairment discussed in
section 12.09: “Substance Addition Disorders.” Plainly,
claimant’s substance abuse was a material factor - indeed it was
the material factor - prompting Dr. Golub’s conclusion that
claimant met listing 12.09. In other words, absent claimant’s
drug and alcohol abuse, he would not meet that listed
impairment. There was no error in the ALJ’s findings on this
matter.1
As noted above, the central question in this case is
whether, absent his substance and alcohol abuse, claimant would
1 It probably bears noting that the listing for substance addition disorders in section 12.09 is “different from that of other mental disorder listings.” 20 C.F.R. Pt. 404, Subpt. P, App’x 1, Part A, § 12.00A. It is not an independent indicator of disability. Instead, “it will only serve to indicate which of the other listed mental or physical impairments must be used to evaluate the behavioral or physical changes resulting from regular use of addictive substances.” Id.
20 be considered disabled, as that term is defined in the Act. The
ALJ concluded that he would not. Beyond the substantial record
evidence supportive of the ALJ’s conclusions, claimant’s own
statements to his various treating professionals support the
conclusion that his drug and alcohol addictions materially
contributed to his disability - particularly his mental
impairments. For example, in hospital notes dated August 19,
2014, it is reported that claimant “relayed that his main
problem is his inability to stop drinking and using drugs.
[Claimant] states that when he is not drinking, although this
happens rarely with very short periods of time, his mood is
fine, but drinking and doing drugs made him feel more
depressed.” Admin. Rec. at 660 (emphasis supplied). Similarly,
in October of 2014, claimant reported to Dr. Elena Galkina that
he “needs to stop using drugs and alcohol because it is
dangerous and makes him feel depressed, hopeless, suicidal.”
Id. at 999.
In light of the foregoing, the court cannot conclude that
the ALJ erred in finding that, absent drug and alcohol abuse,
claimant’s mental impairments would not meet or equal a listed
impairment.
21 III. Medical Opinions and Claimant’s RFC.
Finally, claimant asserts that the ALJ erred in concluding
that if claimant discontinued his substance abuse, he would have
the residual functional capacity to perform a range of light
work. Specifically, claimant says the ALJ failed to properly
weigh the medical opinion evidence and placed too much weight on
the testimony of the independent medical consultant, Dr. Golub.
In reaching the conclusion that if claimant stopped abusing
alcohol and illegal substances, he would retain the RFC to
perform a range of light work, the ALJ more than adequately
explained his reasons for affording substantial weight to the
opinions of Dr. Golub as to claimant’s mental impairments.
Admin. Rec. at 119. Claimant’s arguments to the contrary, see
Claimant’s Memorandum at 16-20, are unavailing. The ALJ also
adequately explained his decision to afford only limited weight
to the opinion of state examiner Michael Schneider (who, it
should probably be noted, opined that claimant’s mental
impairments were non-severe), as well as the determination made
by the State of New Hampshire Aid to the Permanently and Totally
Disabled, and why he chose, instead, to defer to the opinions of
Dr. Golub. Admin. Rec. at 120.
22 The ALJ also supportably explained his decision to afford
no weight to the opinions contained in the letter authored by
Dr. Christopher Benton. Id. at 119-20. See also id. at 581.
As the ALJ properly noted, although Dr. Benton acknowledged
claimant’s alcohol dependence and opined that claimant
“struggles with severe depression, . . . PTSD and anxiety
issues,” he did not discuss the impact claimant’s drug and
alcohol abuse have on those impairments. See id. at 581 (letter
from Dr. Benton). And, Dr. Benton’s opinion that claimant is
“unable to engage in gainful employment at this time” is an
issue reserved to the Commissioner. See 20 C.F.R. §
404.1527(d)(1). See also SSR 96-5p, Titles II and XVI: Medical
Source Opinions on Issues Reserved to the Commissioner, 1996 WL
374183 (S.S.A. July 2, 1996). Similarly, as noted above, the
ALJ adequately supported his determination that, even if the
opinions of Dr. Whitesell had been made part of the record, he
would have afforded them no weight. Admin. Rec. at 120.
As for claimant’s physical limitations, the ALJ adequately
explained his reasons for affording substantial weight to the
opinions of state examiner Burton Nault, M.D., and consultative
examining physician Robert Yager, M.D., Admin. Rec. at 120-21,
both of whom opined that claimant retained the physical and
mental capacity to perform activities consistent with a range of
23 light work. See id. at 193-95 (report of Dr. Nault); 545-49
(report of Dr. Yager). The ALJ also provided adequate support
for his decision to discount some of the opinions of Dr.
Salvatore Vella, one of claimant’s treating physicians,
including the fact that Dr. Vella’s examination notes did not
support the very restrictive range of work he opined claimant
could perform. Id. at 121-22.2
Conclusion
Judicial review of the ALJ’s decision is both limited and
deferential. This court is not empowered to consider claimant’s
application de novo, nor may it undertake an independent
assessment of whether he is disabled under the Act.
Consequently, the issue before the court is not whether it
2 Claimant also challenges the ALJ’s musing on the “theories” underlying the “treating source rule,” as well as his speculation about possible motivations that treating sources might have to exaggerate a claimant’s impairments or symptoms in order to “assist a patient with whom he or she sympathizes.” Admin. Rec. at 117-18. To be sure, that portion of the ALJ’s decision is neither helpful nor particularly illuminating. But, that portion of the written decision appears to be little more than standard boilerplate, repeated in most, if not all, of this ALJ’s opinions. In fact, perhaps through some typographical or proof-reading error, that paragraph appears twice in this particular decision. The important point is this: it is clear from the substantive elements of his written decision that the ALJ adequately explained his decision to discount the opinions of some of claimant’s treating sources. And, it is equally plain that he relied upon permissible, rather than speculative, reasons for doing so. See 20 C.F.R. § 404.1527(c).
24 believes claimant is disabled. Rather, the permissible inquiry
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).
Provided the ALJ’s findings are properly supported by
substantial evidence - as they are in this case - the court must
sustain those findings even when there may also be substantial
evidence supporting the contrary position. Such is the nature
of judicial review of disability benefit determinations. See,
e.g., Tsarelka v. Secretary of Health & Human Services, 842 F.2d
529, 535 (1st Cir. 1988) (“[W]e must uphold the [Commissioner’s]
conclusion, even if the record arguably could justify a
different conclusion, so long as it is supported by substantial
evidence.”); Rodriguez v. Secretary of Health & Human Services,
647 F.2d 218, 222 (1st Cir. 1981) (“We must uphold the
[Commissioner’s] findings in this case if a reasonable mind,
reviewing the evidence in the record as a whole, could accept it
as adequate to support his conclusion.”).
Having carefully reviewed the administrative record and the
arguments advanced by both the Acting Commissioner and claimant,
the court concludes that there is substantial evidence in the
record to support the ALJ’s determination that claimant was not
“disabled,” as that term is used in the Act, at any time prior
25 to the date of the ALJ’s decision (March 23, 2015). The ALJ’s
decision to strike the challenged documents from the record was
consistent with the provisions of 20 C.F.R. §§ 405.331(b) and
(c). And, even if that decision had been made in error, it
would have been harmless. Additionally, the ALJ’s determination
that, if claimant discontinued his alcohol and substance abuse,
his mental impairments would not meet or equal any of the listed
impairments is supported by substantial evidence in the record.
Finally, the ALJ’s conclusion that, if claimant discontinued his
substance abuse, he would retain the RFC to perform a range of
light work is also supported by substantial evidence.
For the foregoing reasons, as well as those set forth in
the Acting Commissioner’s legal memorandum, claimant’s motion to
reverse the decision of the Commissioner (document no. 12) is
denied, and the Acting Commissioner’s motion to affirm her
decision (document no. 13) is granted. The Clerk of the Court
shall enter judgment in accordance with this order and close the
case.
SO ORDERED.
____________________________ Steven J. McAuliffe United States District Judge October 21, 2016
cc: Janine Gawryl, Esq. Robert J. Rabuck, Esq.