Freda
Filing
19
Magistrate Judge Marianne B. Bowler: ORDER entered. MEMORANDUM AND ORDER RE:PLAINTIFFS MOTION FOR ORDER REVERSING THE DECISION OF THE COMMISSIONER OR IN THE ALTERNATIVE, REMANDING THE CLAIM FOR A NEW ADMINISTRATIVE HEARING (DOCKET ENTRY # 14)is DENIED; DEFENDANTS CROSS-MOTION FOR ORDER AFFIRMING THE DECISION OF THE COMMISSIONER (DOCKET ENTRY # 16)is ALLOWED. A final judgment shall issue with this opinion.(Feeney, Eileen)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
MARCO A. FREDA,
Plaintiff,
v.
CIVIL ACTION NO.
10-10978-MBB
MICHAEL J. ASTRUE, Commissioner,
Social Security Administration,
Defendant.
MEMORANDUM AND ORDER RE:
PLAINTIFF’S MOTION FOR ORDER REVERSING THE DECISION OF THE
COMMISSIONER OR IN THE ALTERNATIVE, REMANDING THE CLAIM FOR A NEW
ADMINISTRATIVE HEARING (DOCKET ENTRY # 14); DEFENDANT’S CROSSMOTION FOR ORDER AFFIRMING THE DECISION OF THE COMMISSIONER
(DOCKET ENTRY # 16)
JUNE 14, 2011
BOWLER, U.S.M.J.
Pending before this court are cross motions by the parties,
plaintiff Marco A. Freda (“plaintiff”) and defendant Michael J.
Astrue, Commissioner of the Social Security Administration
(“Commissioner”).
Plaintiff filed a motion to reverse the
Commissioner’s decision or, in the alternative, to remand the
matter for a new administrative hearing, and to award costs and
reasonable attorney’s fees pursuant to 28 U.S.C. § 2412(d).
(Docket Entry # 14).
The Commissioner moves for an order
affirming the denial of benefits.
(Docket Entry # 16).
On
January 31, 2011, this court took the motions under advisement
without a hearing.
PROCEDURAL HISTORY
On April 8, 2008, plaintiff filed an application for
disability insurance benefits (“DIB”) and supplemental security
income (“SSI”) with the Social Security Administration (“SSA”),
alleging disability since January 6, 1994.
(Tr. 158-173).
The
claims were denied on July 2, 2008, and plaintiff filed a request
for reconsideration.
(Tr. 71-76).
On November 20, 2008, the
request for reconsideration was denied and plaintiff requested a
hearing in front of an administrative law judge (“ALJ”).
54-57).
(Tr.
On January 22, 2010, after a hearing in front of the
ALJ, plaintiff’s claims were again denied.
(Tr. 11-23).
In his decision, the ALJ found that plaintiff had a
disability, but that substance abuse was a materially
contributing factor.
(Tr. 15).
The ALJ further found that
plaintiff was not disabled under the Social Security Act.
14-23).
(Tr.
After the ALJ issued his decision, the Decision Review
Board selected plaintiff’s claims for review.
(Tr. 11).
By
April 26, 2010, however, the Review Board had not completed its
review within the required 90 day time allotment, making the
ALJ’s decision final.
(Tr. 1 & 11).
On June 11, 2010, plaintiff
petitioned this court for reversal or, in the alternative, remand
pursuant to 42 U.S.C. § 405(g).
(Docket Entry # 1).
2
FACTUAL BACKGROUND
Plaintiff was 23 years old when his insured status expired
in September of 2005 and 28 years old when the ALJ rendered him
an unfavorable decision.
(Tr. 33).
Plaintiff attended high
school through the eleventh grade, but never graduated or
received a GED.1
(Tr. 15 & 34).
He worked at several different
jobs, but never for more than a few months each.
(Tr. 211).
The record indicates that plaintiff continuously sought
medical treatment for a strong history of substance abuse.
265-282 & 285-289).
(Tr.
In 2007, plaintiff’s driver’s license was
suspended due to drug charges.2
(Tr. 323).
Plaintiff was also
arrested twice for carrying various prescription medications
without accompanying documentation.
(Tr. 325).
At the time of
plaintiff’s application, he was supported by his parents,
received welfare, food stamps and Emergency Aid to Elders,
Disabled and Children benefits (“EAEDC”) from the Commonwealth of
Massachusetts.
A.
(Tr. 35 & 317).
Medical History
In December of 2004, plaintiff checked himself into Arbour
Hospital (“Arbour”) in Boston, Massachusetts seeking
1
GED is an acronym for General Equivalency Diploma.
2
plaintiff told the ALJ at his hearing that his license
was currently suspended due to “parking tickets years in the
past.” (Tr. 34).
3
detoxification from a heroin addiction.
(Tr. 265).
Notes from
the hospital records indicate that plaintiff tested positive for
opiates and became easily agitated, demanding a full
detoxification from hospital staff.
(Tr. 266).
Specifically, a
December 28, 2004 progress report noted, “Patient continues to
seek narcotics/subutex for detox.”3
(Tr. 278).
Notes from
plaintiff’s visit to Arbour also indicate that he “shot up two
grams of heroin” two days prior, one day after being released
from a different hospital for heroin detoxification.
(Tr. 270).
Clinically listed disorders were recorded as mood disorder and
opioid dependence.
(Tr. 278).
On June 9, 2005, plaintiff checked into the Bournewood
Hospital (“Bournewood”) in Brookline, Massachusetts per the
recommendation of the Boston Medical Center.
(Tr. 288).
Intake
notes suggest that plaintiff visited the hospital over 40 times
for “detox” and that he suffered from a long history of opiate
dependence.
(Tr. 288).
Plaintiff reported abusing heroin on the
day of his last discharge and claimed he used about 20 bags of IV
heroin daily.
(Tr. 288).
Although plaintiff reported a history
of anxiety, he had no previous psychiatric hospitalizations or
psychiatric treatment.
(Tr. 288).
3
Subutex (Buprenorphine) is used to treat opiate
withdrawal symptoms by producing similar effects to heroine or
other opioid drugs. See
http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0000285/.
4
Plaintiff again checked into Bournewood for a heroin
detoxification on July 31, 2005.
(Tr. 285).
complained of a heroin relapse.
(Tr. 285).
He chiefly
The hospital
admitted him for opiate “detox,” as well as a benzodiazepine
detox since he reportedly used both substances earlier that day.
(Tr. 285).
Notes from the visit indicate that plaintiff was not
a reliable historian and that he had a record of “50-plus
detoxes.”
(Tr. 285).
Plaintiff was sober for a three month
stint in 2003, but had not been sober since.
(Tr. 285).
The
record further indicates that plaintiff struggled with alcohol
abuse since the age of 14 and used heroin since 16 or 18 years of
age.
(Tr. 285).
Plaintiff’s diagnoses at the time of discharge
included opiate and alcohol dependence, benzodiazepine
dependence, mood disorder and an extensive history of substance
abuse with little sober time.
(Tr. 286-287).
On August 15, 2007, plaintiff saw Dr. David Shumway (“Dr.
Shumway”), a psychiatrist with the Psychiatric Group of the North
Shore.
(Tr. 304 & 317).
During his initial interview, plaintiff
told Dr. Shumway that he had been hospitalized at Bournewood for
anxiety and depression and that he had not been able to work
since 2002 or 2003 due to anxiety.
(Tr. 317).
Plaintiff also
reported having no legal problems and no issues with drugs.
317-318).
(Tr.
In regard to plaintiff’s anxiety, Dr. Shumway noted
that plaintiff “was shy and insecure about talking about social
5
phobia, thinking he was paranoid.”
(Tr. 319).
Plaintiff
reported having trouble with public conveyances and bridges and
tunnels.
Dr. Shumway diagnosed plaintiff with major depression,
panic with agoraphobia, social phobia and generalized anxiety.
(Tr. 319).
Dr. Shumway further noted that plaintiff was “shy,
insecure with a vast amount of self-doubt.”
prescribed Celexa and Klonopin.
Dr. Shumway
(Tr. 319).
Plaintiff next saw Dr. Shumway on September 11.
Dr. Shumway
noted, “The patient seems not to be above manipulating in order
to get early refills on his benzos.”
(Tr. 316).
Dr. Shumway
indicated that plaintiff telephoned to get more benzodiazepines
and attempted to move the prescription from one pharmacy to
another in order to get early refills.
(Tr. 316).
When
confronted, plaintiff alleged that he needed the medication so
that he could go on a vacation with his friends.
(Tr. 316).
Plaintiff reported doing better with medication and asked about
the possibility of increasing Celexa.
Dr. Shumway increased the
dosage of Celexa and maintained plaintiff’s dosage of Klonopin.
(Tr. 316).
On October 9, plaintiff reported less sadness, anxiety,
frustration and anger, but complained of having trouble going to
sleep and staying asleep.
of a racing mind.
(Tr. 315).
(Tr. 315).
Plaintiff also complained
Dr. Shumway decreased plaintiff’s
Celexa dosage and added Wellbutrin and Seroquel.
6
(Tr. 315).
Plaintiff visited Dr. Shumway again on November 29.
Dr.
Shumway noted:
The patient seems to
get early refills on
seeker. He will lie
for the relationship
not be above manipulating in order to
his benzos. He is a definite benzoto get extra medication without concern
with his doctor.
This man is a real wheeler/dealer. He wants more
benzodiazepines. He wants to pretend to switch pharmacies
so he can get new prescriptions early. He wants to drop by
with his Medicaid papers in order to get them filled out
without an appointment.
The degree to which all of this is sociopathy or narcissism
remains a question. He certainly is a man on the make.
I predict this man is probably not going to be long for this
clinic.
(Tr. 314).
Dr. Shumway discontinued plaintiff’s Celexa and
increased his Wellbutrin dosage.
(Tr. 314).
On January 3, 2008, Dr. Shumway noted that plaintiff called
to cancel an appointment for December 27, 2007, and left a
slurred voice message.
(Tr. 313).
Again, Dr. Shumway commented
on plaintiff’s affinity for benzodiazepines, stating:
this is a man who likes his benzodiazepines and seems to be
a wheeler and dealer. He pretends to switch pharmacies so
he can get new prescriptions early. He essentially lied to
me. The degree to which he is a pill-seeker seems less and
less a question.
(Tr. 313).
Dr. Shumway reduced plaintiff’s Klonopin dosage and
noted, “One months med and no refill.”
(Tr. 313).
Notes from February 5, 2008, indicate that plaintiff was not
happy about his reduced dosage of Klonopin.
(Tr. 312).
Dr.
Shumway noted, “I have the strong feeling that we are dancing
7
around the real issue. . . .
The real issue is that he wants
more Klonopin and I am reducing it.”
(Tr. 312).
Dr. Shumway
concluded his notes by expressing his surprise that plaintiff
kept returning for visits “when it [was] clear what his
motivation [was].”
(Tr. 312).
He discontinued Seroquel and
started plaintiff on Clonidine.
(Tr. 312).
Plaintiff again visited Dr. Shumway on March 4.
(Tr. 311).
He indicated that he had to go to his girlfriend’s mother’s
funeral and that he was nervous about that.
(Tr. 311).
He also
told Dr. Shumway that he was still very anxious, but that the
Clonidine helped him sleep.
(Tr. 311).
Dr. Shumway noted that
it was clear that plaintiff was still craving benzodiazepines.
(Tr. 311).
On April 1, plaintiff reported that he was hoping to get a
job at a drive-through oil change store and was doing relatively
well, getting along with people and sleeping.
(Tr. 310).
He
then visited Dr. Shumway on April 4, however, and reported
difficulty in maintaining jobs.
Plaintiff revealed that he
detoxified from Oxycontin five years prior but did not mention
heroin or benzodiazepines.
(Tr. 309).
Plaintiff reported that
his current medications helped him significantly with his ability
to take public transportation and that he could keep his head up
and look out the windows.
Dr. Shumway kept plaintiff on
Wellbutrin, Clonidine and Klonopin.
8
(Tr. 309).
On May 27, plaintiff told Dr. Shumway that he was not
looking for work, but was planning to collect Social Security
benefits.
(Tr. 307).
He alleged that he “couldn’t deal with
people” when asked why he thought he couldn’t work.
Dr. Shumway
noted that plaintiff missed two prior appointments and that he
changed the subject when asked why.
(Tr. 307).
Further, Dr.
Shumway contemplated, “The degree to which this is a man who is
looking for a disability or truly disabled always remains a
question.”
(Tr. 307).
On June 26, plaintiff reported that he was helping his
grandfather do yard work three to four times a week and that the
work helped plaintiff’s condition.
(Tr. 306).
Shumway noted
that plaintiff was off probation, but that he was still seeking
more Klonopin.4
(Tr. 306).
reduced his Klonopin dosage.
Plaintiff was upset that Dr. Shumway
(Tr. 306).
Plaintiff’s last appointment on record was July 29, 2008.
(Tr.
305).
Dr. Shumway’s office note describes plaintiff as
“overwhelmingly agoraphobic and medication-seeking.”
The note
also lists plaintiff as having last worked in 2003 and having
“detoxed” from Oxycontin abuse in 2003.
(Tr. 305).
Plaintiff
reported the denial of his SSI application and told Dr. Shumway
4
Dr. Shumway’s notes first mention plaintiff’s probation
on May 27, 2008. (Tr. 307). He referenced the matter by
stating, “The patient is getting off probation tomorrow.” (Tr.
307). The topic was not discussed further.
9
that he was not looking for work.
(Tr. 305).
Additionally,
plaintiff reported that he last worked eight years ago.
305).
(Tr.
Dr. Shumway noted that plaintiff previously claimed that
it had only been five years since he worked.
(Tr. 305).
Shumway increased plaintiff’s dosage of Clonidine.
Dr.
(Tr. 305).
On August 14, 2009, Dr. Shumway completed an EAEDC5 report
to determine whether plaintiff met the definition of impairment
under Massachusetts law.
(Tr. 362).
The report indicated that
plaintiff had an impairment affecting his ability to work which
would last one or more years.6
(Tr. 362).
On November 20, 2009, Habit OPCO, Inc. (“Habit”), an
outpatient clinic for persons with addictive behaviors, reported
that plaintiff had been in the clinic’s care since January 1,
2007.
(Tr. 388).
The report indicates that plaintiff received a
methadone dosage as part of a maintenance program since the 2007
Habit admission date.
(Tr. 388).
The report also includes
results from drug tests administered to plaintiff from January
30, 2007 to November 19, 2009.
(Tr. 389-390).
The results show
5
As previously mentioned, EAEDC is an acronym for
Emergency Aid to Elders, Disabled and Children.
6
The Massachusetts Department of Transitional Assistance
(“DTA”) considers an EAEDC applicant disabled if there is
supporting written notice from the SSA or an ALJ stating that the
applicant is eligible for SSI or SSDI benefits, or if the DTA
agrees with an applicant’s examining doctor’s report. 106 C.M.R.
§ 320.200(A)(1).
10
that plaintiff tested positive for substances a majority of the
time and missed or refused to take tests on many occasions.7
(Tr. 389-390).
On July 2, 2008, Dr. Sue Conley (“Dr. Conley”), a board
certified psychiatrist, reviewed plaintiff’s psychiatric record.
(Tr. 18 & 290-303).
Dr. Conley determined that there was
insufficient evidence presented to establish the existence of
plaintiff’s alleged impairments.
(Tr. 302).
Guiding Dr.
Conley’s decision was plaintiff’s history of credibility issues
and drug seeking behavior.
(Tr. 302).
Dr. Russell Phillips (“Dr. Phillips”), also a board
certified psychiatrist, reviewed plaintiff’s psychiatric history
as well as Dr. Conley’s findings.
(Tr. 18 & 357).
On November
15, 2008, Dr. Phillips, in accord with Dr. Conley, found the
evidence insufficient to establish a bona fide mental impairment.
(Tr. 357).
Specifically, Dr. Phillips referenced plaintiff’s
lack of credibility and opined that this lack of credibility
“prevent[ed] an accurate assessment of potential impairment
severity.”
B.
(Tr. 357).
Work History
7
These test results, or lack thereof, are listed as
“unable to obtain.” (Tr. 389-390). Others are listed as
“awaiting results,” with no results subsequently reported. (Tr.
389-390). Plaintiff’s longest period of negative results
occurred from February 3 to June 12, 2009. (Tr. 390).
Furthermore, tests positive for only methadone were classified as
negative. (Tr. 389-390).
11
Plaintiff’s work history is uncontested.
It spans the
period from 1998 to 2005 and is generally unsubstantial.
175-179 & 211).
(Tr.
An undated disability work history report
indicates that plaintiff was employed as an ice cream server in
1998, a customer service representative and a grocery bagger in
2000, a produce stocker in 2002, a shipping/receiving stocker in
2003, and a forklift driver in 2004.8
(Tr. 211).
Plaintiff’s
longest period of employment was held as a shipping/receiving
stocker, a position which he held for four months.
(Tr. 211).
Plaintiff’s combined earnings from 1998 to 2005 were minimal.
(Tr. 175-179).
C.
CDI Investigation
The Cooperative Disability Investigations Unit (“CDI”)
conducted an investigative report.
(Tr. 320-356).
The report
found, inter alia, that plaintiff functioned in a minimally
impaired manner.
(Tr. 322).
The CDI took video surveillance of
plaintiff’s day to day activities and interviewed persons
familiar with his abilities.
(Tr. 322).
The CDI also reviewed
plaintiff’s medical records, noting plaintiff’s drug use and
unreliable memory.
(Tr. 323).
Contrary to plaintiff’s claims of
disability, the CDI report ultimately found plaintiff minimally
8
Plaintiff’s work history report shows that plaintiff’s
last job ended in 2004 (Tr. 211), but plaintiff reported to the
ALJ that the year could have been 2005. (Tr. 35). The date
which plaintiff last worked, however, was irrelevant to the ALJ’s
finding and is irrelevant to this court’s review.
12
impaired.
D.
(Tr. 322).
The ALJ’s Findings of Fact and Rulings of Law
At plaintiff’s hearing on November 19, 2009, the ALJ heard
testimony from plaintiff and received further information from
plaintiff’s counsel.
(Tr. 26-45).
mother, was also present.
(Tr. 24).
Judy Freda, plaintiff’s
Plaintiff testified that
his driver’s license was suspended because of parking tickets and
that he was last employed in 2005.9
(Tr. 34-35).
Plaintiff also
testified that he had been clean of drugs for two and a half to
three years and that he was currently on methadone.
(Tr. 38-39).
Finally, plaintiff told the ALJ that he spent half the day lying
down, that he became very nervous on public transportation and
that he smoked around a pack of cigarettes a day.
(Tr. 41-42).
After a review of the record, the ALJ applied the applicable
five step analysis and found that plaintiff had a disability, but
that his substance abuse was a contributing factor material to
the determination of the disability.
404.1520 & 416.920.
(Tr. 15); see 20 C.F.R. §§
At step one, the ALJ found that plaintiff
had not engaged in substantial gainful activity at any time
relevant to his decision.
(Tr. 17).
At step two, the ALJ
determined that plaintiff had polysubstance dependence, a severe
impairment.
(Tr. 17).
At step three, the ALJ found that
9
As previously mentioned, the CDI investigation reported
that plaintiff’s license “was suspended on 12/07/07 for one year
for drug offenses.” (Tr. 323).
13
plaintiff’s polysubstance dependence, combined with his other
impairments, did not meet or medically equal one of the listed
impairments in Appendix 1, Part 404, Subpart P of the Code of
Federal Regulations.
(Tr. 18).
At step four, the ALJ found that
plaintiff had the residual functional capacity (“RFC”) to perform
a full range or work, but that he could not sustain work related
activities on a regular and continuing basis.
(Tr. 18).
At step
five, the ALJ, considering plaintiff’s age, education, work
experience and residual functional capacity based on his
impairments, found that there were no jobs in significant numbers
that plaintiff could perform.
(Tr. 19).
Finally, the ALJ found
that if plaintiff stopped the substance use, his remaining
limitations would not cause more than a minimal impact on his
ability to work.
(Tr. 20-23).
Accordingly, the ALJ did not find
plaintiff disabled within the meaning of the Social Security Act.
(Tr. 23).
Discussion
A.
Jurisdiction and Standard of Review
The Social Security Act provides for review of a denial of
disability benefits.
42 U.S.C. § 405(g).
Having obtained a
final decision by the Commissioner, plaintiff filed this action
on June 11, 2010.
(Docket Entry # 1).
This court has the power
to affirm, modify or reverse the ALJ’s decision with or without
14
remanding the case for a rehearing.
Id.
The ALJ must make a
determination in accord with substantial evidence.
Id.
Accordingly, an ALJ’s findings of fact are conclusive if
supported by substantial evidence.
Id.; Richardson v. Perales,
402 U.S. 389, 390 (1971); Manso-Pizarro v. Secretary of Health
and Human Services, 76 F.3d 15, 16 (1st Cir. 1996).
The province
of this court is to determine “whether the final decision is
supported by substantial evidence and whether the correct legal
standard was used.”
Seavey v. Barnhart, 276 F.3d 1, 9 (1st Cir.
2001).
Substantial evidence is more than a scintilla of evidence
that a reasonable person could find sufficient to support the
result.
Musto v. Halter, 135 F. Supp.2d 220, 225 (D.Mass. 2001)
(citing Rodriguez v. Secretary of Health and Human Services, 647
F.2d 218, 222 (1st Cir. 1981)).
“Even if the record could
arguably support a different result,” this court must affirm the
ALJ’s conclusion if supported by substantial evidence.
Rodriguez
Pagan v. Secretary of Health and Human Services, 819 F.2d 1, 3
(1st Cir. 1987).
A remand is appropriate when “further evidence
is necessary to develop the facts of the case fully . . . and
consideration of it is essential to a fair hearing.”
Delgado v.
Secretary of Health and Human Services, 43 F.3d 1456 (1st Cir.
1994).
B.
Disability Determination
15
The ultimate question is whether plaintiff is disabled
within the meaning of 42 U.S.C. § 423(d)(1)(A) and, if so,
whether his substance use is a contributing factor material to
his disability determination.
20 C.F.R. § 404.1535.
The Social
Security Act defines a disability as the:
[I]nability 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 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).
The impairment must be of such
severity that the claimant “‘is not only unable to do his
previous work but, considering his age, education, and work
experience, engage in any other kind of substantial work which
exists in the national economy.’”
Deblois v. Secretary of Health
and Human Services, 686 F.2d 76, 79 (1st Cir. 1982) (quoting 42
U.S.C. § 423(d)(2)(A)).
To determine whether a claimant is disabled, the SSA uses a
five step evaluation process.
20 C.F.R. §§ 404.1520 & 416.920.
Under the first step, if a claimant is employed, he is not
disabled.
Goodermote v. Secretary of Health and Human Services,
690 F.2d 5, 6 (1st Cir. 1982).
If the claimant is not engaged in
substantial gainful activity, the Commissioner moves to the next
step.
At step two, the Commissioner evaluates whether the claimant
has a severe impairment, one that “significantly limits [a
16
claimant’s] physical ability to do basic work activities.”
20 C.F.R. §§ 404.1509 & 1520(c).
Id.;
If the claimant has a severe
impairment, the analysis proceeds to the third step.
At step three, the Commissioner determines whether the
claimant’s impairments meet or equal any of the impairments
listed in Appendix 1, Part 404, Subpart P of the Code of Federal
Regulations.
20 C.F.R. § 416.920(a)(4)(iii).
If the claimant
has a listed impairment or the equivalent, then he or she is
disabled.
Goodermote, 690 F.2d at 6.
If not, the Commissioner
proceeds to the fourth step to determine whether the claimant has
the residual functional capacity to perform his past work.
20
C.F.R. § 404.1520(e).
If a claimant is unable to perform past relevant work, the
Commissioner proceeds to the fifth and final step to determine
whether claimant’s RFC, age, education and work experience
suggest that he could perform another job in the national
economy.
20 C.F.R. § 404.1520(a)(4)(v).
Substance abuse, however, may disqualify a claimant if the
abuse is material to the determination of a disability.
No. 104-121 § 105(a)(1).
Pub. L.
Section 105 provides:
An individual shall not be considered to be disabled for
purposes of this title if alcoholism or drug addiction would
be a contributing factor material to the Commissioner’s
determination that the individual is disabled.
Pub. L. No. 104-121 § 105(a)(1); see also Pub. L. No. 104-121 §
105(b)(1); 20 C.F.R. § 404.1535(b).
17
1.
Substantial Evidence of Substance Abuse Supports the ALJ’s
Decision
Plaintiff claims that the ALJ’s decision is not supported by
substantial evidence.
(Docket Entry # 15).
The ALJ found that
plaintiff had a disability, but that he would not be disabled if
he discontinued his substance abuse.
(Tr. 23).
His decision was
supported by substantial evidence gleaned from the record.
Substantial evidence is such evidence as a reasonable mind might
accept as adequate to support a conclusion.
Richardson v.
Perales, 402 U.S. 389, 90 (1971).
Although not explicitly contested, the ALJ properly applied
the five step evaluation process after a thorough review of the
record.10
(Tr. 17-23).
In applying this evaluation, he looked
to plaintiff’s history of substance abuse, his testimony at the
hearing, psychological records from Dr. Shumway, the CDI
investigation report and reports from Drs. Conley and Phillips.
(Tr. 17-23).
Specifically, the ALJ noted plaintiff’s history of
abuse of opiates, alcohol and benzodiazepine.
(Tr. 17).
He
further noted plaintiff’s relationship with Dr. Shumway and found
that plaintiff’s diagnoses of major depression, panic with
agoraphobia, social phobia and generalized anxiety were
10
Plaintiff does not allege that the ALJ erred in the five
step evaluation, but contests his determination that plaintiff
would not be disabled but for his substance abuse. (Docket Entry
# 15, pp. 8-10).
18
questionable because they were based on plaintiff’s omissions and
misrepresentations of his drug use.
(Tr. 17-23).
First and foremost, plaintiff’s 2005 Bournewood records
substantiate the ALJ’s decision.
The records indicate that
plaintiff detoxified from heroin and benzodiazepines over 50
times and that he used about a gram of heroin per day in 2005.11
(Tr. 342).
(Tr. 33).
Plaintiff’s insured status expired in September 2005.
He was released from Bournewood one month earlier
after detoxifying from opiate and benzodiazepine abuse.
342).
(Tr.
Additionally, the Habit records, dated from January 30,
2007 to November 19, 2009, show more positive drug test results
than negative.12
(Tr. 389-390).
The records also indicate that
plaintiff maintained a methadone regimen as a Habit patient.
(Tr. 388).
Because the record shows consistent drug use
throughout plaintiff’s disability application period, the ALJ
properly determined that plaintiff’s substance abuse was a
contributing factor to the determination of his disability.
Dr. Shumway’s notes also shed light onto plaintiff’s drug
seeking behavior and support the ALJ’s decision.
(Tr. 305-319).
The medical opinion of a treating source is entitled to
11
Plaintiff had only three months of sobriety between 2003
and 2005. (Tr. 342).
12
The records indicate 24 positive results and 20 negative
results, with 14 dates listed as “unable to obtain.” (Tr. 389390).
19
controlling weight when it is “well supported by medically
acceptable clinical and laboratory diagnosis techniques and is
not inconsistent with other substantial evidence in [the] case
record.”
20 C.F.R. § 416.927(d)(2).
“If the opinion is
inconsistent, however, either internally or with other evidence,
the [ALJ] is free to ‘downplay’ the physician’s assessment.”
Rodriguez v. Astrue, 694 F.Supp.2d 36, 42 (D.Mass. 2010).
In his appeal to this court, plaintiff opines that the ALJ
erred by “call[ing] into question” Dr. Shumway’s opinions because
Dr. Shumway knew about plaintiff’s substance abuse problems.
(Docket Entry # 15, p. 7).
This argument is misguided and wholly
unsupported by the record.
In his first interview, plaintiff told Dr. Shumway that he
was previously hospitalized at Bournewood for anxiety and
depression.
(Tr. 317).
He failed to mention, however, his “50-
plus” heroin and benzodiazepine detoxifications.
(Tr. 317-319).
Three months later, Dr. Shumway described plaintiff as a
“definite benzo-seeker,” noting that he would lie to get extra
medication.
(Tr. 314).
Dr. Shumway further described plaintiff
as “a real wheeler/dealer,” wanting more benzodiazepines.
314).
Dr. Shumway’s May 27, 2008 notes indicate that plaintiff
had not worked since 2003 and abused Oxycontin in 2003.
307).
(Tr.
(Tr.
There was no mention of heroin or benzodiazepines, but Dr.
Shumway noted, “The degree to which this is a man who is looking
20
for a disability or truly disabled always remains a question.”
(Tr. 307).
Dr. Shumway’s notes indicate a level of distrust of
plaintiff’s motives and sincerity, not acknowledgment of
plaintiff’s opiate and benzodiazepine abuse.
Accordingly, the
ALJ gave Dr. Shumway’s opinions lesser weight because they were
internally inconsistent and inconsistent with other substantial
evidence of plaintiff’s substance abuse.
See 20 C.F.R. §
416.927(d)(2); Rodriguez 694 F.Supp.2d at 42; Rodriguez v.
Secretary of Health and Human Services, 647 F.2d 218, 222 (1st
Cir. 1981) (it is the Secretary’s responsibility to determine
issues of credibility and to draw inferences from the record
evidence).
The CDI investigation report additionally supports the ALJ’s
conclusion.
Specifically, CDI investigators followed plaintiff
through the Faneuil Hall area of Boston and observed him casually
window shopping and eating with an unidentified female.
323-324).
(Tr.
Investigators also observed plaintiff taking public
transportation and walking in public without signs of distress.
(Tr. 324).
This evidence proved contrary to plaintiff’s
disability claims and supported the ALJ’s findings.
Finally, reports from Drs. Conley and Phillips, the
reviewing doctors, support the ALJ’s findings.
Both doctors
reviewed plaintiff’s psychiatric record and found it insufficient
to establish plaintiff’s alleged impairments.
21
(Tr. 290 & 357).
Simply put, plaintiff’s credibility and history of polysubstance
abuse prevented accurate assessment.
(Tr. 302, 357).
Accordingly, although not plaintiff’s primary physicians, Drs.
Conley and Phillips and their reports are in accord with other
evidence and support the ALJ’s decision.
See Gordils v.
Secretary of Health and Human Services, 921 F.2d 327 (1st Cir.
1990) (report of non-examining, non testifying physician cannot
provide substantial evidence on its own, but may be substantial
when coupled with other evidence in the record).
In sum, the ALJ relied on substantial evidence found in the
record to determine that plaintiff would not be disabled but for
his polysubstance abuse.
2.
Plaintiff’s Record was Fully Developed and the ALJ was Not
Required to Recontact Plaintiff’s Physician
Plaintiff claims that the ALJ failed to recontact Dr.
Shumway in order to fully develop the record.
3-8).
(Docket # 15, pp.
Specifically, he maintains that 20 C.F.R. §§ 404.1512(e)
and 416.912(e) require additional evidence or clarification when
a physician’s report is inadequate to determine whether a
disability exists.
(Docket # 15, pp. 4-5).
20 C.F.R. §§ 404.1512(e) and 416.912(e) provide:
When the evidence we receive from your treating physician or
psychologist or other medical source is inadequate for us to
determine whether you are disabled, we will need additional
information to reach a determination or decision . . ..
We will seek additional evidence or clarification from your
22
medical source when the report from your medical source
contains a conflict or ambiguity that must be resolved . .
..
20 C.F.R. § 404.1512(e). These sections also note that
additional evidence will not be sought if, having knowledge from
previous experience, “the source either cannot or will not
provide the necessary findings.”
20 C.F.R. § 404.1512(e)(2).
This court has the full records of Dr. Shumway.
These records
are not in conflict or ambiguous, they simply do not address
plaintiff’s heroin use because plaintiff did not inform Dr.
Shumway of it.
Hence, returning to query Dr. Shumway about a
substance abuse he did not know about “will not provide the
necessary findings.”
See 20 C.F.R. § 404.1512(e)(2).
Moreover, plaintiff has the burden of producing the evidence
and proving his impairment.
20 C.F.R. § 416.912.
He also has
the burden of proving that his substance abuse was not a
contributing factor material to his disability determination.
Ball v. Massanari, 254 F.3d 817, 822-23 (9th Cir. 2001); Brown v.
Apfel, 192 F.3d 492 (5th Cir. 1999).
Primarily, plaintiff failed to prove that his substance
abuse was not a contributing factor to the determination of his
disability.13
It is clear from the record that the ALJ relied on
plaintiff’s substance abuse and the lack or credibility of his
13 Plaintiff was represented by counsel throughout the
application process and appeal. (Docket Entry # 15; Tr. 26).
23
representations to Dr. Shumway.
In his decision, the ALJ noted
that plaintiff did not reveal the full extent of his substance
abuse to Dr. Shumway.
Shumway’s diagnoses.
Consequently, the ALJ discredited Dr.
(Tr. 18).
Although 20 C.F.R. §§
404.1512(e) and 416.912(e) require an ALJ to fully develop a
claimant’s record, an ALJ cannot take the place of a claimant.
Stated another way, the ALJ could not have retroactively ordered
plaintiff to tell Dr. Shumway about his substance abuse.
Indeed,
it was up to plaintiff to disclose this information to Dr.
Shumway during his monthly confidential counseling sessions.
See
generally Ball, 254 F.3d at 822.
Furthermore, Dr. Shumway’s records, which indicate
plaintiff’s lack of credibility, provide adequate support for the
ALJ’s determination that plaintiff was not disabled but for his
substance abuse.
Dr. Shumway constantly questioned plaintiff’s
truthfulness, writing on May 27, 2008, “the degree to which this
is a man who is looking for a disability or truly disabled always
remains a question.”14
(Tr. 307).
Indeed, Dr. Shumway’s records
also support the ALJ’s determination that plaintiff lacked
credibility.
The CDI report and the reports of Drs. Conley and
Phillips also support Dr. Shumway’s suspicions.
As both Drs.
Conley and Phillips found plaintiff’s evidence insufficient to
14
The record indicates that the ALJ may have had to order
the production of Dr. Shumway’s notes in order to help develop
plaintiff’s claim. (Tr. 43).
24
support a disability determination (Tr. 302 & 357) and as the CDI
report found that plaintiff acted in contrast to his disability
claims (Tr. 320-356), the ALJ did not need to recontact Dr.
Shumway for further development of the record.
All sources in
the record pointed to plaintiff’s lack of credibility as well as
his substance abuse.
See Lowe v. Apfel, 226 F.3d 969, 972 (8th
Cir. 2000) (“where adequately explained and supported,
credibility findings are for the ALJ to make”).
Dr. Shumway
noted plaintiff’s propensity to seek benzodiazepine above and
beyond the prescribed amount.
(Tr. 313).
Additionally, although
Dr. Shumway did not know of plaintiff’s heroin abuse, the
Bournewood records provide ample support for plaintiff’s
substance dependency.
(Tr. 285-287).
The record as a whole
supports in a consistent manner plaintiff’s lack of credibility
and his repeated, prolonged substance abuse.
CONCLUSION
In accordance with the foregoing discussion, plaintiff’s
motion for an order reversing the decision of the Commissioner
or, in the alternative, remanding the claim for a new
administrative hearing (Docket Entry # 14) is DENIED and the
Commissioner’s motion for an order affirming the decision of the
Commissioner (Docket Entry # 16) is ALLOWED.
25
A final judgement shall issue in accord with this opinion.
/s/ Marianne B. Bowler
MARIANNE B. BOWLER
United States Magistrate Judge
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