Martinez v. Commissioner of Social Security
Filing
10
OPINION AND ORDER: The Court DENIES Plaintiff's 8 MOTION for Order Reversing the Decision of the Commissioner and GRANTS Defendant's 9 MOTION for Order Affirming the Decision of the Commissioner. Signed by Judge John M. Conroy on 5/4/2016. (hbc)
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
Daniel Joel Martinez,
Plaintiff,
v.
Civil Action No. 2:15-cv-91-jmc
Carolyn W. Colvin, Acting Commissioner
of Social Security Administration,
Defendant.
OPINION AND ORDER
(Docs. 8, 9)
Plaintiff Daniel Martinez brings this action pursuant to 42 U.S.C. § 405(g) of the
Social Security Act, requesting review and remand of the decision of the Commissioner of
Social Security denying his applications for Disability Insurance Benefits (DIB) and
Supplemental Security Income (SSI). Pending before the Court are Martinez’s motion to
reverse the Commissioner’s decision (Doc. 8), and the Commissioner’s motion to affirm
the same (Doc. 9). For the reasons stated below, Martinez’s motion is DENIED, and the
Commissioner’s motion is GRANTED.
Background
Martinez was 27 years old on his alleged disability onset date of October 24, 2011.
He completed school through the tenth grade, and does not have a GED. He has worked as
a brush cutter, a concrete laborer, a fence installer, and a busboy. He is single and has no
children. He lives in Irasburg, Vermont with his mother and younger brother, who are
both disabled.
Martinez had a traumatic childhood and experienced behavioral as well as
intellectual problems in school, requiring special education classes and an IEP. He has a
long history of polysubstance abuse, including abuse of opioids and cocaine, which
resulted in his arrest and imprisonment on at least one occasion for heroin possession and
breaking and entering in 2011. (AR 411–12.) Starting in late 2011, Martinez participated
in a Suboxone program to manage his heroin addiction. (Id. at 412.) Although he stopped
using heroin and other illegal drugs around that time, he has continued to use marijuana on
almost a daily basis, despite his medical providers’ advice to avoid all recreational drugs
while on Suboxone. (Id.; AR 50–51, 53–54, 57, 69, 372, 376.) In addition to his struggles
with polysubstance abuse, Martinez suffers from depression, anxiety, anger management
issues, and learning-related deficiencies including attention deficit hyperactivity disorder
(ADHD). He also suffers from back pain and headaches.
In June 2012, Martinez filed applications for DIB and SSI. In his disability
application, Martinez alleges that, starting on October 24, 2011, he has been unable to
work due to back problems, ADHD, a heroin addiction, depression, “defiant disorder,”
anxiety, and migraine headaches. (AR 290; see also AR 52.) In a July 2012 Function
Report, Martinez stated that he cannot stand to be around people, and he feels like killing
them. (AR 297, 304.) He further stated that he hears voices in his head, fights with people
because of his ADHD, and has trouble sleeping. (AR 297–98.) Martinez stated that he
stays in his room most of the time, leaving the house only for doctor appointments and to
shop at the supermarket once a month. (AR 298, 300–02.) He further stated that his
2
mother prepares most of his meals and does almost all the household chores.1 (AR
298–300.) Finally, Martinez stated in the July 2012 Function Report that he does not
drive2 and he is unable to handle a savings account or use a checkbook. (AR 300; see also
AR 72.) A more recent Function Report, from January 2013, indicates that Martinez is
able to do “some light housework or play with the family dog” on a daily basis (AR 311;
see also AR 313), and that he prepares his own “quick and easy meals” every day
(AR 313).
Martinez’s application was denied initially and upon reconsideration, and he timely
requested an administrative hearing, which was conducted on April 18, 2014 by
Administrative Law Judge (ALJ) Matthew Levin. (AR 46–95.) Martinez, represented by
counsel, appeared and testified at the administrative hearing, as did medical expert Herburt
Golub, PhD and vocational expert (VE) James Parker. Martinez testified that it had been
approximately three years since he had taken a drug illegally. (AR 56–57.) He stated,
however, that he smoked marijuana at least five times a week before bed to help him sleep,
and that he could not sleep without it.3 (AR 53–54, 69.) When asked by the ALJ how he
1
As discussed in more detail below, Martinez’s statement in his July 2012 Function Report that
his mother prepares most of his meals and does almost all the household chores (id.) is inconsistent with his
testimony at the April 2014 administrative hearing that his mother is disabled and receives food stamps
(AR 50). The statement is also inconsistent with Martinez’s mental health counselor’s notation in a
January 2013 treatment note that Martinez “takes on the role of ‘head of the house’” (AR 446), and with
another of Martinez’s medical provider’s notation in a February 2014 treatment note that Martinez “is
currently giving complete care to [his] invalid mother” (AR 528).
2
At the April 2014 administrative hearing, Martinez testified that he never obtained a driver’s
license because he received “a bunch of tickets [and citations for driving without a license]” when he had a
learner’s permit, resulting in his inability to obtain a license. (AR 72.)
3
Initially, Martinez testified that he took “[f]our or five hits” of marijuana “every night.” (AR 53.)
Later in the hearing, however, he testified that he smoked marijuana only “when [he] ha[d] it,” which was
“five out of seven days.” (AR 69.)
3
afforded the marijuana, given that he did not work and was “living off [his] mom”
(AR 50), Martinez testified that his friends and brother gave it to him (AR 51, 69–70).
Martinez further testified at the administrative hearing that he had been hearing voices in
his head for the prior 12–18 months, and that he stayed in his room all the time and had not
been out socially in the prior six months. (AR 57–59.) He stated that he could not
concentrate due to hearing voices and feeling anxious and irritable (AR 64); he had trouble
getting along with others and got into physical fights with others (AR 63–64); he was
limited in his ability to stand, walk, bend, lift, and squat due to back pain (AR 65); he
napped a lot due to anxiety (AR 65–66); and he had mood swings “all the time,” which
involved getting “really mad” and yelling and screaming at people (AR 67). Martinez
testified that he attended counseling sessions with mental health counselor Gretchen
Lewis, LCMHC; obtained prescriptions for most of his medications—including Zyprexa
and Trazodone—from David Mooney, MD; and obtained Suboxone from Bruce Latham,
DO. (AR 57, 61–62.)
On May 2, 2014, the ALJ issued a decision finding that Martinez would not be
disabled if he stopped the substance use, and thus he was not disabled under the Social
Security Act at any time from his alleged onset date through the date of the decision.
(AR 12–29.) Thereafter, the Appeals Council denied Martinez’s request for review,
rendering the ALJ’s decision the final decision of the Commissioner. (AR 1–3.) Having
exhausted his administrative remedies, Martinez filed the Complaint in this action on
April 27, 2015. (Doc. 3.)
4
ALJ Decision
The Commissioner uses a five-step sequential process to evaluate disability claims.
See Butts v. Barnhart, 388 F.3d 377, 380–81 (2d Cir. 2004). The first step requires the
ALJ to determine whether the claimant is presently engaging in “substantial gainful
activity.” 20 C.F.R. §§ 404.1520(b), 416.920(b). If the claimant is not so engaged, step
two requires the ALJ to determine whether the claimant has a “severe impairment.”
20 C.F.R. §§ 404.1520(c), 416.920(c). If the ALJ finds that the claimant has a severe
impairment, the third step requires the ALJ to make a determination as to whether that
impairment “meets or equals” an impairment listed in 20 C.F.R. Part 404, Subpart P,
Appendix 1 (“the Listings”). 20 C.F.R. §§ 404.1520(d), 416.920(d). The claimant is
presumptively disabled if his or her impairment meets or equals a listed impairment.
Ferraris v. Heckler, 728 F.2d 582, 584 (2d Cir. 1984).
If the claimant is not presumptively disabled, the ALJ is required to determine the
claimant’s residual functional capacity (RFC), which means the most the claimant can still
do despite his or her mental and physical limitations based on all the relevant medical and
other evidence in the record. 20 C.F.R. §§ 404.1520(e), 404.1545(a)(1), 416.920(e),
416.945(a)(1). The fourth step requires the ALJ to consider whether the claimant’s RFC
precludes the performance of his or her past relevant work. 20 C.F.R. §§ 404.1520(f),
416.920(f). Finally, at the fifth step, the ALJ determines whether the claimant can do “any
other work.” 20 C.F.R. §§ 404.1520(g), 416.920(g). The claimant bears the burden of
proving his or her case at steps one through four, Butts, 388 F.3d at 383; and at step five,
there is a “limited burden shift to the Commissioner” to “show that there is work in the
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national economy that the claimant can do,” Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir.
2009) (clarifying that the burden shift to the Commissioner at step five is limited, and the
Commissioner “need not provide additional evidence of the claimant’s [RFC]”).
When, as here, there is medical evidence of a claimant’s drug or alcohol abuse
(DAA), the “disability” inquiry does not end with the five-step analysis. See Cage v.
Comm’r of Soc. Sec., 692 F.3d 118, 123 (2d Cir. 2012) (citing 20 C.F.R. § 416.935(a)). In
1996, Congress enacted the Contract with America Advancement Act (CAAA), which
amended the Social Security Act by providing that: “An individual shall not be considered
to be disabled . . . 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.” 42 U.S.C. § 423(d)(2)(C); see also 20 C.F.R. § 416.935(b)(1, 2); 42 U.S.C.
§ 1382c (a)(3)(J). The “key factor” is “whether [the Social Security Administration]
would still find [the claimant] disabled if [he] stopped using drugs or alcohol.” 20 C.F.R.
§§ 404.1535(b)(1), 416.935(b)(1); see also 20 C.F.R. § 416.935(b)(2)(i) (“If [the
Commissioner] determine[s] that [the claimant’s] remaining limitations would not be
disabling, [she] will find that [the claimant’s] drug addiction or alcoholism is a
contributing factor material to the determination of disability.”); Frankhauser v. Barnhart,
403 F. Supp. 2d 261, 272 (W.D.N.Y. 2005).
The CAAA does not specify who bears the burden of proving that the claimant’s
DAA is not material to the determination that he is disabled, but the Second Circuit has
sided with almost all the other circuits in holding that the claimant bears that burden.
Cage, 692 F.3d at 123 (listing cases). The court explained: “[B]ecause the CAAA
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amended the definition of ‘disabled’ to exclude conditions materially caused by DAA,
proving DAA immateriality is best understood as part of a claimant’s general burden of
proving that she is disabled.” Id. at 124. Moreover, the Second Circuit found that
“[f]airness and practicality . . . counsel in favor of placing this burden on [claimants],” who
are “better positioned than the [Social Security Administration] to offer proof as to the
relevance of any DAA to their disability determinations because facts relevant to those
determinations ordinarily would be in their possession.” Id. (citing Bowen v. Yuckert,
482 U.S. 137, 146 n.5 (1987) (“It is not unreasonable to require the claimant, who is in a
better position to provide information about his own medical condition, to do so.”)).
Employing this sequential analysis, ALJ Levin first determined that Martinez had
not engaged in substantial gainful activity since his alleged disability onset date of
October 24, 2011. (AR 15.) At step two, the ALJ found that Martinez had the following
severe impairments: degenerative disc disease of the lumbar spine, depression, anxiety,
and marijuana addiction. (Id.) Conversely, the ALJ found that Martinez’s headaches and
ADHD were non-severe. (AR 15–16.) At step three, the ALJ found that Martinez’s
impairments, including the substance use disorders, met sections 12.04 (affective
disorders) and 12.09 (substance abuse disorders) of the Listings. (AR 16.) The ALJ
further found that, if Martinez stopped the substance use, he would still have a severe
impairment or combination of impairments (AR 18); however, these impairments would
not meet or medically equal a listed impairment (AR 19).
Next, the ALJ determined that, if Martinez stopped the substance use, he would
have the RFC to perform “light work,” as defined in 20 C.F.R. §§ 404.1567(b),
7
416.967(b), except as follows:
[Martinez] must avoid all ladders, ropes, scaffolds, and hazards; he could
occasionally climb ramps or stairs, balance, stoop, kneel, crouch, and crawl;
he would be limited to simple unskilled work; he should avoid social
interaction with the general public, but can sustain brief and superficial
social interaction with co-workers and supervisors; and he can maintain
attention and concentration for two-hour increments throughout an eighthour day and forty-hour week.
(AR 20.) Given this RFC, the ALJ found that, if Martinez stopped the substance use, he
would be unable to perform his past relevant work as a concrete laborer, a fence installer,
and a busboy. (AR 27.) Finally, based on testimony from the VE, the ALJ determined
that, if Martinez stopped the substance use, he could perform other jobs existing in
significant numbers in the national economy, including the following representative
occupations: office cleaner, price marker, and laundry sorter/folder. (AR 28.) The ALJ
concluded as follows:
[Martinez’s] substance use disorder is a contributing factor material to the
determination of disability because [Martinez] would not be disabled if he
stopped the substance use. Because the substance use disorder is a
contributing factor material to the determination of disability, [Martinez] has
not been disabled within the meaning of the Social Security Act at any time
from the alleged onset date through the date of this decision.
(AR 29 (citations omitted).)
Standard of Review
The Social Security Act defines the term “disability” as the “inability 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). A
8
person will be found disabled only if it is determined that his “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.” 42 U.S.C. § 423(d)(2)(A).
In considering a Commissioner’s disability decision, the court “review[s] the
administrative record de novo to determine whether there is substantial evidence
supporting the . . . decision and whether the Commissioner applied the correct legal
standard.” Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir. 2002) (citing Shaw v. Chater,
221 F.3d 126, 131 (2d Cir. 2000)); see 42 U.S.C. § 405(g). The court’s factual review of
the Commissioner’s decision is thus limited to determining whether “substantial evidence”
exists in the record to support such decision. 42 U.S.C. § 405(g); Rivera v. Sullivan,
923 F.2d 964, 967 (2d Cir. 1991); see Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990)
(“Where there is substantial evidence to support either position, the determination is one to
be made by the factfinder.”). “Substantial evidence” is more than a mere scintilla; it
means such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Poupore, 566 F.3d at 305.
In its deliberations, the court should bear in mind that the Social Security Act is “a
remedial statute to be broadly construed and liberally applied.” Dousewicz v. Harris,
646 F.2d 771, 773 (2d Cir. 1981).
Analysis
Martinez argues that the ALJ erred in his analysis of the opinions of testifying
medical expert Dr. Golub and Martinez’s treating sources, which resulted in other errors,
9
including in the ALJ’s assessment of the severity of Martinez’s impairments, the ALJ’s
finding that Martinez’s impairments did not meet or medically equal a listed impairment,
the ALJ’s RFC determination, and the ALJ’s conclusion that Martinez’s substance use
disorder was a contributing factor material to the determination of Martinez’s disability.
(See Doc. 8-1 at 3–12.) Martinez further argues that substantial evidence does not support
the ALJ’s assessment of Martinez’s credibility. (Id. at 12–14.) In response, the
Commissioner asserts that the ALJ properly relied on Dr. Golub’s testimony in
determining that Martinez’s substance use disorder was a contributing factor material to
the determination of Martinez’s disability. (See Doc. 9 at 5–10.)
I.
The ALJ’s analysis of the medical opinions was proper.
Martinez’s primary argument is that the ALJ should not have relied on the
testimony of medical expert Dr. Golub at the administrative hearing. Dr. Golub, a forensic
psychologist who reviewed the record but did not examine or treat Martinez, testified that,
although the effects of marijuana vary according to the individual, they are both short and
long term, and the long-term effects “would [last] anywhere from 12 to 24 hours to two
weeks . . . [;] [and] with most people it would have effects throughout the next day, maybe
for a couple of weeks even, and even possibly for a month.” (AR 77, 78.) “[I]n most
cases,” explained Dr. Golub, a person who used marijuana as often as Martinez, “would be
having impact [from it] through the next day at the very least.” (AR 78.) Based on his
knowledge of psychological research; his experience in treating and evaluating people who
use marijuana; and the medical reports and treatment notes of Martinez’s treating medical
provider Bruce Latham, DO, Martinez’s treating mental health counselor Gretchen Lewis,
10
LCMHC, and Martinez’s examining consultant Theodore Williams, PhD (AR 76–78, 85);
Dr. Golub opined that Martinez’s marijuana use had a “very significant impact” on his
ability to function, and that the interaction of marijuana with Martinez’s prescribed
medications, particularly his antidepressants, was “concerning” (AR 78; see AR 77).
Dr. Golub further opined that Martinez’s ongoing marijuana use was material to his mood
and motivation (id.); and that if Martinez stopped using marijuana, his lethargy,
depression, memory loss, and social isolation would lessen (AR 80), and his depression
“would not be anywhere near a listing level” (AR 84).
The ALJ afforded “significant weight” to these opinions of Dr. Golub, finding them
to be “reasonable, objective, and based upon a review of the entire medical evidence of
record and [Martinez’s] testimony at the hearing.” (AR 18; see also AR 16–17, 24.) In
making this finding, the ALJ relied in part on the treatment notes of treating physician
Dr. Latham,4 stating:
Dr. Latham, who prescribes [Martinez’s] Suboxone, has consistently told
[Martinez] not to use marijuana and that he should avoid all recreational
drugs . . . while on Suboxone; however, [Martinez] continues to do so
against doctors’ orders. Obviously, Dr. Latham realizes that continued abuse
of illegal drugs is not helping [Martinez’s] recovery.
(AR 18 (citing AR 421–27, 512, 557).) The record supports this assessment, indicating
that Dr. Latham “[s]tressed [the] importance of [Martinez] avoiding recreational drugs
while on [S]uboxone” at each of Martinez’s appointments. (See AR 422–27, 476–90,
512–28, 557.)
4
As a doctor of osteopathic medicine (see, e.g., AR 377), Dr. Latham is considered an acceptable
medical source under the regulations. See 20 C.F.R. § 404.1513(a)(1).
11
Martinez asserts that the ALJ should have afforded less weight to the opinions of
Dr. Golub and more to those of Martinez’s treating psychiatrist, David Mooney, MD.
After treating Martinez on four occasions over a 10-month period, Dr. Mooney opined in a
March 2014 letter that Martinez “has readily admitted to frequent marijuana use at night to
help him relax and sleep,” and that use “has not had any significant impact on his
functioning during the day.” (AR 248, 561; see AR 502.) The ALJ afforded “limited
weight” to this opinion, “in light of the contrary and credible testimony of Dr. Golub, who
testified that Dr. Mooney’s findings contradicted the vast weight of all psychological
research that has found marijuana’s effects continue to manifest not only for hours, but
[for] days, weeks[,] and even up to a month after use.”5 (AR 18; see AR 25, 77–78.)
In a more detailed February 2014 Questionnaire, Dr. Mooney diagnosed Martinez
with major depressive disorder with psychotic features, opioid dependence in full sustained
remission, and social phobia. (AR 502.) Dr. Mooney opined that Martinez had marked
restrictions in activities of daily living and concentration, persistence, or pace; and extreme
difficulties in maintaining social functioning. (AR 503.) As support for these opinions,
Dr. Mooney wrote: “See records.” (AR 503–04.) In a February 2014 Assessment of
Ability to Do Work-Related Activities (Mental), Dr. Mooney similarly opined that
5
On this point, Dr. Golub testified as follows:
I’m very concerned that Dr. Mooney is . . . so adamant that the marijuana cannot be having
[an] affect beyond the assistance for sleeping at night. Any research that’s been done on
that would not state that, it’s possible but . . ., in most cases it would be having impact
through the next day at the very least. And I . . . see the ongoing marijuana usage as being
material to [Martinez’s] . . . mood and his motivation and isolation issues.
(AR 78.)
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Martinez was either markedly or extremely limited in his ability to do all work-related
activities, including among others, responding appropriately to coworkers, dealing with the
public, functioning independently, and relating predictably in social situations. (AR
505–07.)
The ALJ afforded “limited weight” (AR 25, 26) to these opinions of Dr. Mooney
for several reasons: (1) Dr. Mooney saw Martinez on only four occasions, and thus “lacked
a longitudinal treatment history with [Martinez] or very detailed knowledge of his
impairments over time” (AR 25–26 (citing AR 502)); (2) Dr. Mooney’s opinions provide
“very limited objective narrative assessment or support for his profound limitations as
described, with him merely checking items on a form or writing ‘see records,’ which fails
to provide support for his listing-level impairments as described” (AR 26); (3) Dr. Mooney
provided no objective support in his opinions and no such support is contained in his
treatment records (id. (citing AR 459–66)); and (4) Dr. Mooney’s findings are inconsistent
with “other evidence of record,” including Martinez’s ability to work nearly full time for
six weeks, his ability to shop on occasion, his ability to meet with friends and obtain
marijuana from them, and his testimony that he was “head of [his] household” (AR 26).
These are all proper factors for the ALJ to consider in assessing the value of a
treating physician’s opinions. See 20 C.F.R. § 404.1527(c)(2)(i) (“the longer a treating
source has treated you and the more times you have been seen by a treating source, the
more weight we will give to the source’s medical opinion”); id. § 404.1527(c)(3) (“The
more a medical source presents relevant evidence to support an opinion, particularly
medical signs and laboratory findings, the more weight we will give that opinion. The
13
better an explanation a source provides for an opinion, the more weight we will give that
opinion.”); id. § 404.1527(c)(4) (“the more consistent an opinion is with the record as a
whole, the more weight we will give to that opinion”). Moreover, the ALJ’s findings with
respect to Dr. Mooney’s opinions are supported by substantial evidence. Specifically, the
opinions themselves are unsupported, with Dr. Mooney merely referencing his “records”
instead of providing explanation or support therein. (AR 503–04.) Moreover, neither
Dr. Mooney’s own records nor those of Martinez’s other treating and consulting providers
support the level of impairment contained in Dr. Mooney’s opinions. For example,
although Dr. Mooney opined in February 2014 that Martinez had “marked” deficiencies in
concentration, persistence, or pace (AR 503), and “extreme” limitations in understanding,
remembering, and carrying out even simple job instructions (AR 506); Dr. Mooney
indicated in a May 2013 treatment note that Martinez had “grossly intact” cognition “with
perhaps the exception of some mild memory deficits” (AR 459). And although
Dr. Mooney opined that Martinez had “extreme” difficulties in maintaining social
functioning and relating predictably in social situations (AR 503, 506), and was
“extreme[ly]” limited in his ability to function independently (AR 505); Dr. Williams
recorded that Martinez told him he was able to care for himself on his own (AR 414) and
had only “mild problem[s]” getting along with others (AR 415).
Furthermore, the ALJ correctly found that Dr. Mooney’s opinions are inconsistent
with “other evidence of record,” including: Martinez’s ability to work full time for
14
approximately six weeks6 (see AR 51–52 (might have been able to keep doing brushcutting job had job not ended), 444–45 (working at brush-cutting job)); his ability to do
community service work (see AR 487 (“only has [six] days of community service left”),
489 (“really staying on task with trying to get things accomplished like his community
service”), 494 (“has been working hard at completing his community service”)); his ability
to go food shopping once a month (see AR 70, 300, 314); and his ability to maintain
friendships with people who consistently supplied him with free marijuana (see AR 51,
69–70, 75). Additionally, despite Dr. Mooney’s opinion that Martinez was “[unable] to
function outside a highly supportive living arrangement” (AR 504), the record indicates
that Martinez took on a role as head of his household. (See AR 446 (“takes on the role of
‘head of the house’”), 490 (“takes his role of ‘head of household’ seriously”), 528 (“giving
complete care to invalid mother”)).
Although Dr. Mooney was Martinez’s treating psychiatrist during part of the
relevant period and Dr. Golub was a testifying psychologist who never examined or treated
Martinez, the ALJ was entitled to afford more weight to the opinions of Dr. Golub than to
those of Dr. Mooney. Notwithstanding the treating physician rule, the regulations and
caselaw permit the opinions of medical consultants to override those of treating physicians,
when the former are more consistent with the record than the latter. See Diaz v. Shalala,
59 F.3d 307, 313 n.5 (2d Cir. 1995) (“[T]he regulations . . . permit the opinions of
6
An October 2012 note written by counselor Lewis “[o]n behalf of” Martinez states: “I agree that
there is some work that I can do.” (AR 420.) But Martinez states that his reputation for not being “able to
hold a job [for] more than a couple of months” and the fact that he was fired from multiple jobs, has left
him unable to secure employment “in a small town like the one [he] live[s] in, [especially] without a car,”
because “no one wants to take a chance on [him] anymore.” (Id.)
15
nonexamining sources to override treating sources’ opinions provided they are supported
by evidence in the record.”) (citing Schisler v. Sullivan, 3 F.3d 563, 567–68 (2d Cir.
1993)); see also SSR 96-6p, 1996 WL 374180, at *3 (July 2, 1996) (“In appropriate
circumstances, opinions from . . . consultants . . . may be entitled to greater weight than the
opinions of treating or examining sources.”). Here, the opinions of medical expert
Dr. Golub are more consistent with the record than those of treating physician
Dr. Mooney, for the reasons stated above and by the ALJ in his decision. (See AR 18,
25–26.)
Thus, the Court finds no error in the ALJ’s allocation of significant weight to the
opinions of Dr. Golub and limited weight to those of Dr. Mooney.
II.
Substantial evidence supports the ALJ’s assessment of Martinez’s credibility.
The Court also finds no error in the ALJ’s assessment of Martinez’s credibility. It
is the function of the Commissioner, not the court, to “resolve evidentiary conflicts and to
appraise the credibility of witnesses, including the claimant.” Carroll v. Sec’y of Health &
Human Servs., 705 F.2d 638, 642 (2d Cir. 1983); see Stanton v. Astrue, 370 F. App’x 231,
234 (2d Cir. 2010). If the Commissioner’s findings are supported by substantial evidence,
the court must uphold the ALJ’s decision to discount a claimant’s subjective complaints.
Aponte v. Sec’y of Health & Human Servs., 728 F.2d 588, 591 (2d Cir. 1984); see
Calabrese v. Astrue, 358 F. App’x 274, 277 (2d Cir. 2009). “When evaluating the
credibility of an individual’s statements, the adjudicator must consider the entire case
record and give specific reasons for the weight given to the individual’s statements.” SSR
96-7p, 1996 WL 374186, at *4 (July 2, 1996).
16
Here, the ALJ found that Martinez’s statements concerning the intensity,
persistence, and limiting effects of his symptoms were “not credible” (AR 21), and gave
several specific reasons in support of that finding. First, the ALJ accurately stated that,
despite complaints of significant symptoms and functional limitations from his back
condition, Martinez has a “very limited treatment history for his alleged back pain” (id.),
and the record indicates that he has “fairly intact physical functioning” including
performing all his daily activities and caring for his mother (AR 22). Second, the ALJ
stated that Martinez’s “extensive substance abuse, and his unclear testimony concerning
such abuse, calls into question his credibility.” (AR 23.) The ALJ reasonably explained
that, given Martinez’s testimony that neither he, his mother, nor his brother had any
income, and that he did not use his brother’s “disability money” to pay for marijuana, “[i]t
is simply not credible that his friends have been supplying him with free marijuana[—on
an almost daily basis—]for years, particularly in light of the fact that he told the
consultative examiner of record that he had no friends.” (Id. (citing AR 414); see AR
50–51, 69–70.) Third, the ALJ accurately stated that, despite Martinez’s claims that he
could not work, he told counselor Lewis that when he had “‘no choice’” but to work, he
was able to do a seasonable job on a nearly full-time basis until the employment season
ended. (AR 23 (quoting AR 444–48); see AR 325, 444.) The ALJ further noted that,
although treatment records indicated Martinez had some difficulty with this work, he
testified at the administrative hearing that he “[m]aybe” could have continued to do it had
the job not ended. (AR 52; see AR 23.) Finally, the ALJ correctly stated that the record
demonstrates that Martinez was able to perform a number of daily tasks, including
17
managing his personal care, feeding himself, doing his own laundry, food shopping, doing
community service, and caring for his invalid mother, despite his allegedly disabling
impairments. (AR 24 (citing AR 414, 446, 486, 495, 528).)
As discussed above, the record does in fact demonstrate that Martinez was able to
engage in activities which required a higher level of functionality than Martinez claimed to
have. It was proper for the ALJ to consider Martinez’s ability to engage in these activities
in determining the credibility of Martinez’s disability claims. See 20 C.F.R. § 404.1571
(“Even if the work you have done was not substantial gainful activity, it may show that
you are able to do more work than you actually did.”); Berger v. Astrue, 516 F.3d 539, 546
(7th Cir. 2008) (“[T]he fact that [the claimant] could perform some work cuts against his
claim that he was totally disabled.”); see also Calabrese, 358 F. App’x at 278 (citing
20 C.F.R. § 404.1529(c)(3)) (“in assessing the credibility of a claimant’s statements, an
ALJ must consider . . . the claimant’s daily activities”). Moreover, the ALJ was not
obliged to accept either Martinez’s or Dr. Mooney’s characterization of the record without
question, especially given Dr. Golub’s testimony regarding the effect Martinez’s marijuana
use had on his ability to function. See Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010)
(“ALJ is required to take the claimant’s reports of pain and other limitations into account,
but is not required to accept the claimant’s subjective complaints without question; he may
exercise discretion in weighing the credibility of the claimant’s testimony in light of the
other evidence in the record.”) (citations omitted).
Given that the ALJ’s credibility assessment is supported by substantial evidence,
and “an ALJ’s credibility determination is generally entitled to deference on appeal,”
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Selian v. Astrue, 708 F.3d 409, 420 (2d Cir. 2013), the Court does not disturb the ALJ’s
assessment of Martinez’s credibility.
Conclusion
For these reasons, the Court DENIES Martinez’s motion (Doc. 8), GRANTS the
Commissioner’s motion (Doc. 9), and AFFIRMS the decision of the Commissioner.
Dated at Burlington, in the District of Vermont, this 4th day of May, 2016.
/s/ John M. Conroy
.
John M. Conroy
United States Magistrate Judge
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