Stefanowich v. Astrue

Filing 16

Magistrate Judge Kenneth P. Neiman: MEMORANDUM AND ORDER entered. As follows: For the reasons stated in the attached memo and order, the Commissioners 13 motion to affirm is ALLOWED and Plaintiffs 11 motion is DENIED. SO ORDERED. See the attached memo and order for complete details. (Lindsay, Maurice)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

LOUIS STEFANOWICH,
Plaintiff

v.

CAROLYN W. COLVIN,
Acting Commissioner of Social
Security Administration,1
Defendant

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Civil Action No. 13-30020-KPN

MEMORANDUM AND ORDER REGARDING PLAINTIFF’S
MOTION FOR JUDGMENT ON THE PLEADINGS and
DEFENDANT’S MOTION FOR JUDGMENT AFFIRMING
THE COMMISSIONER’S DECISION
(Document Nos. 11 and 13)
January 30, 2014

NEIMAN, U.S.M.J.
This action is brought by Louis Stefanowich (“Plaintiff”) pursuant to 42 U.S.C. §
405(g) and 42 U.S.C. § 1383(c)(3) requesting judicial review of a final decision by the
Commissioner of the Social Security Administration (“Commissioner”) regarding an
individual’s entitlement to Supplemental Security Income and Social Security Disability
Insurance benefits. Plaintiff has filed a motion for judgment on the pleadings and the
Commissioner, in turn, has moved to affirm.
The parties have consented to this court’s jurisdiction. See 28 U.S.C. § 636(c);
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Carolyn W. Colvin became the Commissioner of Social Security on February
14, 2013 and is substituted as the defendant in this action pursuant to Fed. R. Civ. P.
25(d)(1) and (2).

Fed. R. Civ. P. 73. For the following reasons, the court will allow the Commissioner’s
motion to affirm and deny Plaintiff’s motion.
I. DISCUSSION
The parties are well aware of the factual and procedural history of this case, the
standard of review, and the applicable five-step sequential analysis. Plaintiff advances
two arguments as to why the decision by the Administrative Law Judge (“ALJ”) was
flawed. First, Plaintiff asserts that the ALJ erred in finding that his back pain was
a non-severe impairment. Second, Plaintiff argues that the ALJ improperly focused on
his past history of substance abuse in her credibility assessment. In response, the
Commissioner argues that substantial evidence supports the ALJ’s findings. The court
finds both of Plaintiff’s arguments unpersuasive.
A. Severity Determination of Plaintiff’s Alleged Back Pain
The ALJ conducted the hearing in accordance with the familiar five-step process
set forth in both the regulations and case law. See 20 C.F.R. §§ 404.1520 and 20
C.F.R. 416.920; Goodermote v. Sec’y of Health & Human Servs., 690 F.2d 5, 6-7 (1st
Cir. 1982). Plaintiff does not challenge the process used. Rather, Plaintiff challenges
the step-two determination regarding the severity of his back pain. In particular, Plaintiff
argues that, contrary to the ALJ’s finding, the medical evidence supports a diagnosis of
severe back pain that significantly limits his ability to perform basic work-related
functions. In addition, Plaintiff argues that, after determining that he did not provide
adequate evidence about that pain, the ALJ should have ordered a Consultative
Examination (“CE”) with diagnostic testing.
The second step of the five-step analysis requires a claimant to show that he or
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she has a severe impairment that “significantly limits the claimant’s physical or mental
capacity to perform basic work-related functions.” 20 C.F.R. §§ 404.1520(c) and
416.920(c); Goodermote, 690 F.2d at 6-7. For Social Security disability purposes, the
issue is not whether an impairment exists, but whether it is sufficiently severe to prevent
work. Church v. Astrue, 2012 WL 369424, at *8 n.6 (D. Mass. Feb. 2, 2012) (finding
diagnosis of a psychological disorder insufficient to establish disability without a showing
of related functional loss); Grady v. Astrue, 2012 WL 4480739, at *8 (D. Mass. Sept. 28,
2012) (finding plaintiff must provide evidence that the impairments significantly limit his
or her ability to perform basic work activities). Moreover, a claimant “has the burden of
production and proof at the first four steps of the process.” Freeman v. Barnhart, 274
F.3d 606, 608 (1st Cir. 2001); see also 20 C.F.R. §§ 404.1545(a)(3) and 416.945(a)(3)
(“In general, you are responsible for providing the evidence we will use to make a
finding about your residual functional capacity.”).
The court concludes that the ALJ did not err in finding that Plaintiff’s alleged back
pain is a non-severe impairment. First, the record demonstrates that, throughout the
administrative process, back pain was not a major focus of Plaintiff. For example,
Plaintiff failed to mention it in his application for benefits; he also testified multiple times
during the hearing that his attitude and anger were the primary reasons he could not
work. (A.R. at 88, 321, 326-27.) In fact, Plaintiff did not mention any lower back issues
until asked by the ALJ toward the end of the hearing if there were “[a]ny other problems
[she] should know about.” (A.R. at 335.)
Second, the ALJ found, accurately in the court’s opinion, that the record failed to
demonstrate that Plaintiff’s back pain resulted in more than a minimal limitation on his
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ability to perform basic work activities. (A.R. at 160.) For example, although Plaintiff’s
treating physician noted Plaintiff’s subjective complaints of such pain, the ALJ found the
impairment to be non-severe considering the “sparse treatment” received by him and
the lack of radiological studies. (A.R. at 16.) See Morris v. Barnhart, 78 F. App’x 820,
824 (3d Cir. 2003) (“[T]he mere memorialization of a claimant's subjective statements in
a medical report does not elevate those statements to a medical opinion.”). Moreover,
Plaintiff’s testimony to the contrary simply failed to carry his burden of demonstrating
that his back impairment significantly limited his ability to work. See Rose v. Shalala, 34
F.3d 13, 18 (1st Cir. 1994) (“[T]he resolution of conflicts in the evidence and the
determination of the ultimate question of disability is for [the administrative law judge],
not for the doctors or for the courts.”); Rodriguez v. Sec’y of Health & Human Servs.,
647 F.2d 218, 222 (1st Cir. 1981). The record, in the court’s opinion, does not require a
different result.
Even if the ALJ somehow erred at step two in not finding the back pain severe,
which the court does not believe to be the case, such error was harmless. An
administrative law judge’s consideration of the impairments when assessing Residual
Functional Capacity (“RFC”) is deemed to be complete if there is at least one
impairment found to be severe and the judge considered all impairments in the
assessment. Noel v. Astrue, 2012 WL 2862141, at *6 (D. Mass. July 10, 2012) (“Even if
the ALJ did err in his finding that Plaintiff's anxiety was not a severe impairment, that
error was harmless. Because the ALJ found that Plaintiff had at least one severe
impairment, the ALJ took into consideration all of Plaintiff's impairments, both severe
and non-severe, when assessing his RFC.”); see also Perez v. Astrue, 2011 WL
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6132547, at *4 (D. Mass. Dec. 7, 2011). Here, the ALJ found that Plaintiff had other
impairments deemed to be severe, including bipolar disorder, memory loss, and
learning disorder. (A.R. at 15.) The ALJ also explicitly stated that she “considered all
symptoms” of both the severe and non-severe impairments in determining “that the
claimant has the residual functional capacity to perform light work.” (A.R. at 17-18.)
See 20 C.F.R. §§ 404.1545(a)(2) and 416.945(a)(2). Therefore, any error at step two, if
error there was, did not compromise the ALJ’s consideration of Plaintiff’s RFC.
The court also concludes that the ALJ did not err in failing to order a third CE.
First, it must be understood that Plaintiff did not request such a consultative
examination. Second, to the extent Plaintiff is arguing that the ALJ ought to have
ordered such an examination on her own volition, that argument is misplaced. At best,
Plaintiff asserts that the ALJ should have ordered another examination pursuant to
Section I-2-5-20 of the Hearing, Appeals and Litigation Law (Lex) (“HALLEX”) manual,
an internal SSA directive that “defines procedures for carrying out policy and provides
guidance for processing and adjudicating claims at the hearing, Appeals Council, and
civil action levels.” HALLEX I–1–01, Purpose (Mar. 3, 2011),
(http://www.ssa.gov/OP_Home/hallex/I-01/I-1-0-1.html). That section provides as
follows:
If the claimant does not provide adequate evidence about his
or her impairment(s) for the ALJ to determine whether the
claimant is disabled or blind, and the ALJ or the HO staff is
unable to obtain adequate evidence from the claimant's
treating source(s) or other medical source(s), the ALJ may
request a CE(s) and/or test(s) through the State agency.
HALLEX I -2-5-20, Consultative Examinations and Tests (Sept. 28, 2005),

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(http://www.ssa.gov/OP_Home/hallex/I-02/I-2-5-20.html) (emphasis added). As the
Commissioner points out, however, this provision only uses the discretionary word
“may” when outlining whether an administrative law judge should order CEs; this
discretionary phrasing also comports with the applicable regulations. See 20 C.F.R. §§
404.1517 and 416.917 (“we may ask you to have one or more physical . . .
examinations”) (emphasis added); 404.1519a(b) and 416.919a(b) (“[w]e may purchase
a consultative examination to try to resolve an inconsistency in the evidence”)
(emphasis added); see also McCuller v. Barnhart, 72 F. App’x 155, 160 n.5 (5th Cir.
2003) (“[T]he ALJ's duty to undertake a full inquiry does not require a consultative
examination at government expense unless the record establishes that such an
examination is necessary to enable the ALJ to make the disability decision.”).
Here, not only did the ALJ have the discretion to order (or not order) a
consultative examination, but the evidentiary and testimonial record reflects no
necessity for such an examination. Thus, even if a CE had been requested by Plaintiff
or otherwise considered by the ALJ, she would not have erred when failing to order a
further examination.
B. Credibility Determination
For his second argument, Plaintiff asserts that the ALJ improperly focused on his
history of substance abuse to undermine his credibility and, as a result, ignored
substantial medical evidence in the record. In support, Plaintiff relies on Clark v. Apfel,
98 F. Supp. 2d 1182, 1185 (D. Or. 2000), for the proposition that, when it is impossible
to separate the effects of a poly-substance dependence from other possible medical
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disorders, the former must be regarded as “non-material” to a determination of disability.
The court is not persuaded.
At the outset, it is important to note that courts are to presume that administrative
adjudicators are unbiased. See Hayes v. Astrue, 2013 WL 2325174, at *4 (D. Mass.
Apr. 30, 2013) (“Plaintiff bears the burden of establishing a disqualifying predisposition
on an administrative law judge’s part.”) (citing Schweiker v. McClure, 456 U.S. 188
(1982)). As it turns out, Plaintiff’s same argument here was advanced in Hayes, where
the administrative law judge cited several examples of the plaintiff purportedly seeking
medical treatment but displaying behavior inconsistent with her stated symptoms. Id. at
*5. Similarly relying on Clark, the Hayes plaintiff argued that the administrative law
judge “should have classified [the plaintiff’s] drug dependency as ‘non-material.’” Id. at
*6. This court determined, however, that such reliance was misplaced because “[t]he
issue of materiality refers to situations in which it is unclear whether a claimant’s
disability is the result of various mental disorders or limitations from drug and alcohol
abuse.” Id. That, the court reasoned, was not the situation at bar: “[r]ather, the ALJ
considered Plaintiff’s drug dependency in determining her credibility with regard to her
complaints of pain . . . . An administrative law judge is entitled to view such behavior as
undermining a claimant’s complaints of pain.” Id. (emphasis in original); see also
Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999) (inconsistent reports of drinking
behavior can affect credibility). That is true here as well.
In her decision, the ALJ discussed Plaintiff’s history of alcohol abuse in the
context of his misreporting that history as well as inconsistencies in the record between
his subjective allegations and his physicians’ objective observations. Both contexts
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permissibly go to the issue of credibility, not disability. See McDonald v. Astrue, 2011
WL 3562933, at *13 (D. Mass. Aug. 15, 2011) (finding no error in considering prior
alcohol abuse in the credibility assessment and that “inconsistent representations [of
drinking history] provide[d] a substantial basis to question [claimant's] credibility”). For
instance, the ALJ noted that Plaintiff admitted to drinking five to ten beers per day in
January and February of 2009 (A.R. at 19) but only “admitted to having a ‘couple’ drinks
per night” when he began treating in April of 2009 with Vickie Verlinden, M.D. (A.R. at
19, 134.) And although Plaintiff smelled of alcohol during his first visit on April 16th and
“laboratory results revealed the claimant’s organ systems were no longer handling the
amount of alcohol he was drinking,” he “still denie[d] problems with alcohol.” (A.R. at
19, 133.) Further, Plaintiff’s later report on September 11, 2009, upon admission to the
hospital for detoxification, that he had been drinking twenty-four beers a day for two
years, obviously contradicted his earlier reports of drinking much less. (A.R. at 20.)
The ALJ also noted “several inconsistencies between the claimant’s reports of
subjective symptoms and the objective findings of examinations.” (A.R. at 23.) For
example, the ALJ found “a substantial disparity between the claimant’s complaints . . . .
of constant, incapacitating pain and psychological symptoms” and the “objective
medical findings contained in the record.” (A.R. at 25.) In addition, the ALJ explained
that Plaintiff “has engaged in self-diagnoses, [but] his self-diagnoses have not been
consistent with the records on evidence.” (A.R. at 23.) For example, Plaintiff testified to
memory loss due to a “mini stroke,” but a January 2010 CT scan revealed no such
evidence. (A.R. at 18, 23.) Plaintiff also alleged that his disability onset date was in
November of 2006, but there is little if any evidence of record prior to 2009; Plaintiff did
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not treat with a primary care physician until April of 2009 and did not receive any other
form of treatment in the four years prior. (A.R. at 23.)
The ALJ properly relied on these and yet other inconsistencies in the record in
determining Plaintiff’s credibility. Generally speaking, “[t]he credibility determination by
the ALJ, who observed the claimant, evaluated his demeanor, and considered how that
testimony fit in with the rest of the evidence, is entitled to deference, especially when
supported by specific findings.” Frustaglia v. Sec'y of Health & Human Servs., 829 F.2d
192, 195 (1st Cir.1987) (per curiam ). Here, the court finds, the ALJ adequately
assessed the totality of the record, including but not limited to Plaintiff’s inconsistent
reporting regarding alcohol use, when assessing Plaintiff’s credibility.
One last point in response to Plaintiff’s arguments: the ALJ was not required to
conduct a materiality analysis. An analysis of the materiality of a claimant’s alcohol
abuse is only necessary where all impairments, including substance abuse, render a
claimant disabled. Fastner v. Barnhart, 324 F.3d 981, 986 (8th Cir. 2003) (holding that
an administrative law judge is not required to consider the materiality of substance
abuse where he or she considers all impairments in his or her initial determination that
no disability exists); Reyes v. Astrue, 2012 WL 2178963, at *6 (D. Mass. June 13, 2012)
(“It is only necessary for an administrative law judge to conduct the drug and alcohol
analysis after making a determination that a claimant is disabled.”). Here, the ALJ did
not make an initial determination that Plaintiff would otherwise be entitled to disability;
therefore, she was not required to segregate Plaintiff’s substance abuse from his other
impairments, and the materiality of Plaintiff’s alcohol abuse is irrelevant.
II. CONCLUSION
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For the reasons stated, the Commissioner’s motion to affirm is ALLOWED and
Plaintiff’s motion is DENIED.
SO ORDERED.
January 30, 2014

/s/ Kenneth P. Neiman
KENNETH P. NEIMAN
U.S. Magistrate Judge

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