SAYLOR, District Judge.
This is an appeal from the final decision of the Commissioner of the Social Security Administration denying the application of plaintiff Randall B. Vautour for Social Security Disability Benefits ("SSDI"). The Administrative Law Judge ("ALJ") essentially determined that when plaintiff was abusing drugs, his anxiety disorder rendered him disabled, but that if he stopped abusing drugs, his disorder would not prevent him from working.
Plaintiff, who is proceeding pro se, appears to dispute the denial of his claim on the ground that evidence regarding his
Defendant has moved for an order affirming the decision of the ALJ. For the reasons set forth below, the motion will be granted.
Plaintiff Randall Vautour was born on July 26, 1953. (A.R. at 12). He attended high school but did not complete the twelfth grade. (Id. at 37). He earned his General Educational Development (GED) credential in 1987. (Id. at 37, 222). He has received training in small-engine repair for one year, machine-shop skills for five years, quality-control inspection for six months, and research and development for two to three years. (Id. at 37-38).
From 1989 to 1991, Vautour worked in shipping and receiving. (Id. at 147). From 1991 to 1994, he worked as a quality-control inspector. (Id.). From 1994 to 1998, he worked in research and development. (Id.). From 1998 to 2000, he worked as a printer technician. (Id., 171).
At some point, Vautour became addicted to Oxycontin. He entered a detoxification program at Bournewood Hospital on November 8, 2005. His employment as a copier service technician was terminated as of that date. (Id. at 39, 40, 163).
On November 8, 2005, Vautour went to Bournewood Hospital for detoxification from Oxycontin dependence. (Id. at 202). He had begun using opiates three years earlier, and had been using Oxycontin almost daily for the last two years. (Id.) He felt that his drug use had gotten out of hand, and that the drug was controlling him. (Id.). He claimed that his Oxycontin use had not affected his job as a copier technician, although he admitted to using it in the mornings before work. (Id.).
Mark Brudniak, M.D., performed a mental status examination and found Vautour to be "alert and oriented, well-groomed with good eye contact." (Id. at 203). He described his thought process as logical, without flight of ideas, tangentiality, loosening of associations, or paranoid ideations. (Id.). He observed his mood as anxious, but noted that his insight and judgment appeared to be fair. (Id.).
Vautour denied any history of depression or medical problems, although he reported a history of a painful stiff neck, for which he had been taking Oxycontin. (Id. at 202, 203). He stated that although he had consumed alcohol in the past, he had never undergone alcohol abuse treatment. (Id. at 202)
Upon his admission to Bournewood, Vautour was detoxified with methadone. (Id. at 203). He informed the doctors that he was not receiving enough methadone, and was notably irritable. (Id.). As the detoxification progressed, his withdrawal symptoms lessened considerably; he became
On November 22, 2005, Vautour began seeing Dr. Robert Hopkins for outpatient treatment. (Id. at 222). He told Dr. Hopkins that he had experienced severe anxiety symptoms for years. (Id. at 223). He had had trouble finding a drug that effectively treated his anxiety, and had begun buying Oxycontin on the street. (Id.). He stated that the trazodone prescribed by the doctors at Bournewood had given him a headache, but wondered if the headache had been alcohol-induced because he had been drinking the previous evening. (Id.). He reported that he had a history of drinking, and that he would drink alcohol if he did not have Oxycontin. (Id.). Dr. Hopkins found that "[r]ight-sided headache precipitated by trazodone was suspicious for the diagnosis but his history was not really consistent." (Id.).
Dr. Hopkins prescribed Valium. (Id. at 223). He advised Vautour of the risks of sedation, but told him that if the prescribed dosage was insufficient, he should try a larger dose. (Id.). The Valium was effective in relieving Vautour's anxiety. (Id.).
On November 28, 2005, Vautour telephoned Dr. Hopkins to say that the prescribed Valium was no longer effective in relieving his symptoms. (Id.). Dr. Hopkins wrote him an a prescription for Risperdal in addition to the Valium. (Id.).
On December 2, 2005, Vautour told Dr. Hopkins that he had spilled his bottle of Valium into the kitchen sink and lost most of the remaining pills. (Id.). Since that time, he had been taking two Risperdal a day, along with two or three Valium. (Id.). Dr. Hopkins increased his prescribed dosage of Valium, and instructed him to continue taking the Risperdal. (Id. at 224).
On December 13, 2005, Vautour informed Dr. Hopkins that he had nearly exhausted his medication. (Id.). Dr. Hopkins surmised that he had been taking his medication at two or three times the rate at which it had been prescribed. (Id.). In addition, Vautour had since visited another physician and had obtained a week's supply of tramadol, which he had exhausted in four days. (Id.).
On December 14, 2005, Vautour presented at the emergency room at Emerson Hospital for detoxification from benzodiazepines, alcohol, and Oxycontin, and for treatment for chronic pain and anxiety. (Id. at 206, 209, 215).
Robert P. Collins, M.D., observed that Vautour lacked homicidal or suicidal ideation and denied alcohol abuse. (Id. at 208). However, Vautour reported to Dr. Malin that he had increased his alcohol consumption on weekends, stating that he consumed half a case of beer and two drinks. (Id.). Dr. Malin made differential diagnoses that included benzodiazepine abuse and dependence history, polysubstance use history, and alcohol abuse. (Id. at 207).
On December 20, 2005, Vautour was discharged from Emerson. (Id. at 207). Dr. Malin observed that Vautour was in the process of completing his Valium taper and was much less depressed, although he was still "somewhat anxious and angry, and quite fixed in how he wanted to pursue his medication." (Id. at 207). She diagnosed polysubstance abuse, anxiety disorder NOS, chronic neck pain, and an inability to recognize his serious dependence on addiction drugs. (Id.). Dr. Malin scheduled outpatient treatment, and suggested that he attend two to three AA meetings per week. (Id.). Vautour refused to attend an accelerated recovery program. (Id.).
Vautour continued to see Dr. Hopkins following his discharge from Emerson. (Id. at 224). On December 22, 2005, Vautour reported that he was "feeling great" and that he had slept in the day before until almost noon. (Id.). Dr. Hopkins felt that Vautour was oversedated, and noted "his speech was slowed but he denied all this and said he was fine." (Id.).
On December 28, 2005, Vautour told Dr. Hopkins that although he was not suffering from significant anxiety or pain, he felt that he was sleeping too much. (Id. at 225). Dr. Hopkins recommended that Vautour discontinue his daytime Seroquel, which he believed induced drowsiness, and suggested that he take Tylenol or Excedrin for his pain. (Id.).
On January 18, 2006, Vautour told Dr. Hopkins that he was not feeling much better, and that he was disappointed that the Inderal that Dr. Hopkins had recently prescribed had not been more effective. (Id.).
Dr. Hopkins found that Vautour's symptoms were more typical of agoraphobia than a panic disorder. (Id.). Dr. Hopkins suggested that Vautour try Celexa, but thought that he instead wanted "[s]omething that would give him instant relief when he started to feel bad." (Id.).
On February 1, 2006, Dr. Hopkins told Vautour that he had spoken to his internist and had subsequently received a fax request from the pharmacy for Valium, which he refused to fill. (Id.). Dr. Hopkins noted that "[V]autour then went into an impassioned plea for Valium" and promised that he would control his Valium use. (Id.). Dr. Hopkins told him that he would not prescribe the Valium without a corroborating second opinion. (Id.). Vautour told Dr. Hopkins that he would take his suggestion of taking extra clonidine instead, and Dr. Hopkins doubled his dose. (Id.).
On February 15, 2006, Vautour informed Dr. Hopkins that his wife had left him earlier that week after he lost his temper and broke her cell phone. (Id. at 228). He admitted to drinking three beers. (Id.). He also refused to take his Seroquel during the day, as he believed he had seen a television advertisement containing a warning regarding the drug's safety, but Dr. Hopkins thought he was "mixed up" and had instead seen a warning for a different drug. (Id.). Dr. Hopkins refused to give him Valium, instead prescribing Zyprexa, an anti-depressant. (Id.). Dr. Hopkins concluded that "he seems really totally unable to deal with things and it is the wife who does deal with things." (Id.).
On March 1, 2006, Dr. Hopkins noted that Vautour continued to complain of anxiety but did not appear anxious. (Id.). He informed Vautour that he should stop taking
On March 6, 2006, Vautour telephoned Dr. Hopkins to tell him that his medication was not working. (Id.). After Dr. Hopkins questioned him, he admitted that he had been experimenting with it, taking different combinations of medications than Dr. Hopkins had prescribed, and adding other medication that had been prescribed by his internist. (Id.). Dr. Hopkins noted that Vautour did not remember accurately what he had or had not taken, and suggested that he continue with his drug regimen as it had been prescribed. (Id. at 229). Vautour expressed dissatisfaction at that suggestion. (Id.). He also told Dr. Hopkins that his wife had left him again the day before, but could not describe why she left. (Id. at 228-29). He denied drinking beer. (Id. at 229).
On March 16, 2006, Vautour told Dr. Hopkins that he was still having trouble sleeping and continued to feel very anxious during the day. (Id.). Dr. Hopkins found that in spite of his complaints, he appeared very calm, although he perceived some akathisia. (Id.).
On April 19, 2006, Vautour said he had been sleeping well, but complained of anxiety. (Id. at 230). Dr. Hopkins continued to discuss with Vautour the possibility of returning to work. (Id.). Vautour indicated that he might be interested in either a shipping-and-receiving job or driving a delivery van, and that when his condition improved, he might go to the unemployment office to learn more about any job training programs it offered. (Id.). He maintained, however, that he was still too anxious to work, that he could not even fill out a job application, and that his hand shook with nervousness in the morning. (Id.).
On May 17, 2006, Dr. Hopkins again discussed employment with Vautour. (Id. at 231). Dr. Hopkins asked whether he had considered electrical work or plumbing, but Vautour felt that those jobs would be "too much for him." (Id.). Dr. Hopkins found that he continued to be downcast and to complain of anxiety, but again noted that his symptoms more closely resembled those of agoraphobia. (Id.). He did not detect anxiety. (Id.).
On May 31, 2006, Dr. Hopkins found that while Vautour did not sleep as well since discontinuing the Remeron, he had maintained a fairly high level of activity that included mowing the lawn, working on his house, and riding his motorcycle. (Id.).
On June 27, 2006, Vautour visited Dr. Hopkins with his wife. (Id.). Dr. Hopkins reviewed his diagnoses, which included substance abuse and anxiety. (Id.). Vautour had visited Dr. Jeffrey Speller, who had diagnosed Type 2 bipolar disorder and generalized anxiety. (Id.). Dr. Speller suggested that Vautour completely change his medications, discontinuing the three drugs that Dr. Hopkins had prescribed and adding five others. (Id.). Dr. Hopkins discontinued his clonidine prescription, reduced his Klonopin
On July 12, 2006, Dr. Hopkins noted that Vautour said that he had not been sleeping well since discontinuing the Elavil. (Id.). He claimed his anxiety and agoraphobia had increased. (Id.). Dr. Hopkins, acting at the suggestion of Dr. Speller, added Abilify
On August 9, 2006, Dr. Hopkins found that "[p]atient was uncharacteristically chatting a blue streak, talking about riding his motorcycle and going on at length about how much he likes that and where he had been, and going to the shop and telling stories about other people who ride motorcycles." (Id. at 232-33). Vautour told Dr. Hopkins he had been doing chores around the house, and had been sleeping well since he had started taking amitriptyline (Elavil), even remarking that it was "perfect." (Id. at 233). He had been sleeping for eight hours a night and was active during the day. (Id.). Dr. Hopkins found that he had fewer complaints and was in a better mood than he had ever observed. (Id.).
On September 6, 2006, Vautour recounted to Dr. Hopkins a long story about repairing the brakes on his wife's car and fixing the alternator on his truck. (Id.). While he felt that his mental health had improved, he became extremely nervous
On October 4, 2006, Dr. Hopkins found that Vautour "was in quite good spirits." (Id.). He had lost several pounds, and his daytime anxiety appeared to have improved. (Id.). Vautour informed Dr. Hopkins that he was actively seeking employment, and Dr. Hopkins noted "I was impressed that he was spontaneously thinking about returning to work." (Id.).
On November 1, 2006, Dr. Hopkins reviewed Vautour's medication with him, pointing out that he had exhausted a four-week supply of an increased dose of Xanax in just over three weeks. (Id.). Vautour denied that he had been taking extra pills, and claimed that he may have put some of them in a container to take with him on a trip to Canada. (Id.). Dr. Hopkins observed "I am not sure I believe him ... he was very defensive and in denial." (Id.). He also discussed with him that when Vautour called him to request pain medication for a broken rib, he did not disclose that he had been prescribed 40 Vicodin pills by another doctor in addition to 20 pills he had received at the emergency room. (Id. at 233-34).
On January 5, 2007, Vautour told Dr. Hopkins he felt that he was benefitting from the Ritalin, but did not think it was long-lasting enough. (Id.). He also told him that he had gone on a job interview for a position in a leather upholstery shop. (Id.). Dr. Hopkins increased his Ritalin dose and discontinued his Abilify. (Id.).
On February 7, 2007, Vautour told Dr. Hopkins he felt that he needed an increased dosage of Ritalin, and Dr. Hopkins adjusted his prescription accordingly. (Id. at 235).
After Dr. Hopkins suspended his practice in early 2007, Dr. Sten Lofgren, M.D., saw Vautour on several occasions. (Id. at 94, 241). On February 27, 2007, Dr. Lofgren diagnosed a generalized anxiety disorder with "no clear precipitant identified." He described Vautour's mental status as anxious, oriented, and without evidence of psychotic thought patterns. (Id. at 241). Dr. Lofgren listed his prognosis as "fair to good" based on the diagnosis and his previous response. (Id.).
On April 25, 2007, Dr. Michael Maliszewski, Ph.D., assessed Vautour's psychiatric condition for a disability determination. (Id. at 255, 271). He determined that Vautour possessed the recall and attention span necessary to perform simple tasks. (Id. at 244, 260). While Vautour was socially withdrawn and would perform better in a more independent role, he would be able to perform concrete tasks in a supportive work setting. (Id.). Dr. Maliszewski concluded that Vautour's anxiety-related disorders and substance addiction disorders did not restrict his daily living activities, only moderately limited his ability to maintain social functioning, and only moderately limited his ability to maintain concentration, persistence, or pace. (Id. at 244, 254).
On October 6, 2007, Vautour was brought to the Saints Medical Center
Vautour stated that the overdose was accidental. (Id. at 310). He denied current or past drug use, drinking at all during the past year, and any medical problems. (Id. at 281). He also told his doctors that he had been working repairing coffee machines, and refurbishing one of his old automobiles. (Id. at 281, 304). He was discharged on October 9, 2007. (Id. at 281).
On June 26, 2008, Vautour was admitted to Emerson Hospital from Lowell General Hospital for evaluation and treatment after the police authorized his hospitalization, believing he posed a serious risk of harm due to mental illness. (Id. at 374).
After his transfer to Emerson Hospital, Rosemary Lee, N.P., assessed Vautour's mental status as alert and oriented, with mood and affect euthymic. (Id. at 374). She noted that there was evidence of delusional thought process, and observed that his memory was questionable, his cognition was grossly intact, and that his speech was tangential and rambling. (Id.). An MRI of his brain showed no abnormalities. (Id. at 371)
Dr. Robert Stern, M.D., further evaluated Vautour's mental status and observed that he appeared anxious and distracted. (Id. at 376). He found his mood to be angry and irritable. (Id. at 376). Dr. Stern concluded that his insight and judgment were poor, and that he was a poor historian. (Id. at 376, 377).
Upon Vautour's admission, Dr. Stern made a differential diagnosis of bipolar disorder; he also noted family, employment, and financial problems. (Id. at 383). Vautour acknowledged experiencing visual and occasional auditory hallucinations. (Id.). Nurse Lee examined Vautour and described his mental status as alert and oriented and his mood and affect as cooperative. (Id. at 380). She noted that his judgment and insight were impaired, but that his cognition remained grossly intact. (Id.).
Vautour told Nurse Lee that he had resided with his daughter due to marital discord since his last hospitalization at Emerson. (Id. at 379). While there, he continued to experience visual hallucinations, believing that at nighttime, he saw people camouflaged as trees. (Id. at 380). Nurse Lee found that "[i]t was unclear whether he had any insight into reality testing." (Id.). In addition, Vautour's urine screen tested positive for opiates. (Id.). Nurse Lee noted "[t]he patient struggled to come up with a reason for why there were opiates in his urine. (Id.). Vautour postulated that perhaps after he had discontinued all of his medications, he was looking for something to take and had rifled around in his old medication bottles and took those pills." (Id. at 380-81).
Nurse Lee also reported that Vautour had received a citation for driving under the influence in February 2008, for which a court proceeding was pending. (Id.).
Dr. Stern discontinued Vautour's Effexor and Ritalin prescriptions, and decreased his Xanax. (Id. at 383). Vautour was discharged on July 18, 2008. (Id. at 384).
After leaving Emerson, Vautour resumed seeing Dr. Lofgren and obtained new prescriptions for Xanax (alprazolam) and Ritalin (methylphenidate), the drugs for which Dr. Stern had discontinued prescriptions. (Id. at 390). On July 25, 2008, Vautour presented at Emerson in an acutely psychotic and agitated state after calling "911" to request assistance in dealing with "pimps with large hats" who had entered his home. (Id. at 394). He had armed himself with several knives and an improvised flame-thrower. (Id. at 390). The Chelmsford police responded to his call and escorted him to Lowell General Hospital, where he was evaluated, cleared, and transferred to Emerson for further stabilization. (Id. at 394).
Upon admission, Dr. Stern made a differential diagnosis that included organic delusional disorder and polysubstance dependence. (Id. at 391). While Vautour denied current substance abuse, Dr. Stern believed that he "was abusing methylphenidate (Ritalin), snorting it and doubling his dose." (Id. at 390). He assessed Vautour as presenting a clear and present danger for psychotic violence, and concluded that inpatient psychiatric hospitalization was a medically necessary treatment that could not be provided in a less-intensive setting. (Id. at 391).
Dr. Stern diagnosed organic drug-induced delusional syndrome and prescribed Seroquel and Zyprexa. (Id. at 393, 401). Vautour was discharged on August 4, 2008. (Id. at 390). Dr. Stern scheduled a follow-up appointment at Greater Lowell Psychiatric Services for September 8, 2008. (Id. at 392-93).
On September 8, 2008, Martha Huff, an RNCS at Greater Lowell Psychiatric Services, evaluated Vautour. (Id. at 356). She noted that he had stopped taking his Zyprexa shortly after his discharge from Emerson. (Id.). Vautour told her that he was currently taking amitriptyline (Elavil) and lorazepam. (Id. at 358). Nurse Huff noted that she needed to corroborate his prescription information; while Vautour had produced prescriptions from CVS Pharmacy for those drugs and Effexor, they were old and had last been filled in April 2008. (Id. at 359). She diagnosed bipolar disorder NOS and opiate dependence in sustained full remission. (Id.). She prescribed Methylin ER, Abilify, amitriptyline (Elavil), and lorazepam on the condition that Vautour begin therapy. (Id. at 359-360).
On September 17, 2008, Nurse Huff telephoned Vautour and found that he was confused as to who she was. (Id. at 354). She suspected that he might have taken more than the prescribed dosage of lorazepam and denied his request to increase his Ritalin dosage. (Id.)
On September 23, 2008, Vautour told Nurse Huff that the medications she had prescribed did not work, and requested that she change them. (Id. at 351). He admitted to overusing his lorazepam, but stated that he had not yet exhausted all of the four-week supply that she had prescribed two weeks earlier. (Id. at 353). Nurse Huff prescribed Concerta to replace the Methylin ER, increased his Abilify dosage, and wrote a new prescription for lorazepam, dated a week later, for the same dosage and frequency. (Id. at 352, 353).
Vautour began therapy sessions with psychologist Christine Aposhian on September 23, 2008. (Id. at 341, 345). She noted that he seemed agitated, aggressive, untruthful, and uncooperative, and that he wanted to leave after only twenty minutes. (Id. at 346). Ms. Aposhian observed that Vautour did not want his previous clinicians
On October 7, 2008, Nurse Huff and Ms. Aposhian met with Vautour and told him that they had concluded that he required a level of care that they could not provide. (Id. at 344). Ms. Aposhian recommended that Vautour attend a daily treatment program that included training in coping skills and access to psychopharmacological services. (Id. at 341). Vautour refused. He continued to focus on his medications throughout the meeting, requesting an increased dose of Concerta and stating that he had already run out of lorazepam because he had taken excessive doses. (Id.). Nurse Huff increased his Concerta dose and prescribed a low dose of clonazepam (Klonopin) to prevent lorazepam withdrawal. (Id. at 344). Vautour was discharged, and resumed treatment with Dr. Lofgren later that month. (Id. at 75, 341).
Vautour lives with his wife of more than 37 years, Cathy Vautour, who has been disabled since 1995 due to post-polio syndrome. (Id. at 66, 223). He testified that he spends three or four hours a day caring for her, but they argue constantly when they are in the house together, and those arguments trigger his depression. (Id. at 34-35, 65).
On a daily basis, Vautour takes his medication, dresses himself, watches television, prepares meals for himself and his wife, does the laundry, walks in his yard, and does what he can to clean the house. (Id. at 139). He is able to perform household chores such as vacuuming, mopping the floor, and putting away the dishes. (Id. at 138). He also does the grocery shopping, although he has a hard time leaving the house and feels a strong urge to return home once he does. (Id. at 138, 141, 142). On Thursdays, his son-in-law visits him with his two year-old grandson. (Id. at 145)
Vautour testified that he wakes up in the morning and does not want to leave the house. (Id. at 64). He suffers from panic attacks at least once a day, and testified that one attack can last an entire day. (Id. at 64-65). During these attacks, "his mind and mouth go completely dry" and he feels that he has to be able to "get out, walk out, breathe, do something in order to shake it off." (Id. at 64). He does not feel that his prescription drug regimen has ever been a fully effective course of treatment for his anxiety and depression. (Id.).
Vautour has stated that while he used to be active, outgoing, and interactive, he no longer socializes with others. (Id. at 143, 175).
On March 6, 2007, Vautour applied for SSDI benefits, contending that he had been unable to work since November 8, 2005, due to anxiety, agoraphobia, fatigue, and concentration problems. (Id. at 92). The claim was denied at the initial level of review on April 26, 2007. (Id. at 19). In a decision dated March 10, 2008, a federal reviewing official subsequently denied Vautour's claim. (Id.).
After obtaining counsel, Vautour requested a hearing, which was held before an Administrative Law Judge on November 18, 2008. (Id.). On December 16, 2008, the ALJ issued a decision concluding that he was not disabled at any time from his alleged onset date of November 8, 2005, through the date of the decision. (Id. at 20). The case was selected for review by the Decision Review Board. (Id. at 1). The ALJ's decision became the final decision of the Commissioner when the Board did not act on the claim within 90 days. (Id.).
Vautour appealed the decision to this Court on December 16, 2010, seeking reversal of the decision.
Under the Social Security Act, this Court may affirm, modify, or reverse the final decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g). The findings of the Commissioner as to any fact, however, shall be conclusive if supported by substantial evidence and must be upheld "if a reasonable mind, reviewing the evidence in the record as a whole, could accept it as adequate to support his conclusion." Rodriguez v. Sec'y of Health & Human Srvcs., 647 F.2d 218, 222 (1st Cir.1981); see also Evangelista v. Sec'y of Health & Human Srvcs., 826 F.2d 136, 144 (1st Cir.1987). It is the responsibility of the Commissioner, not the courts, to evaluate credibility, draw inferences from the evidence, and resolve conflicts in the evidence. Rodriguez, 647 F.2d at 222. While the ALJ must take medical evidence, "the determination of ultimate disability is for [the Commissioner], not for the doctors or the courts." Lizotte v. Sec'y
In order to qualify for disability insurance benefits, a claimant must demonstrate that he or she is disabled within the meaning of the Social Security Act. See 42 U.S.C. §§ 423(a)(1)(A), (d) (setting forth the definition of disabled in the context of SSDI). The 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). The impairment(s) must be severe enough to prevent the claimant from performing not only his past work, but any substantial gainful work existing in the national economy. 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 404.1560(c)(1).
An applicant's impairment is evaluated under a five-step analysis set forth in the regulations promulgated under the statute. 20 C.F.R. § 404.1520. The First Circuit has described the analytical sequence as follows:
Goodermote v. Sec'y of Health & Human Srvcs., 690 F.2d 5, 6-7 (1st Cir.1982).
The burden of proof is on the applicant as to the first four steps of the analysis. See 42 U.S.C. § 423(d)(5)(A) ("An individual shall not be considered to be under a disability unless he furnishes such medical and other evidence of the existence thereof as the [ALJ] may require."). At the fifth step of the analysis, the burden shifts to the Commissioner to show that the claimant is capable of performing jobs available in the national economy. Freeman v. Barnhart, 274 F.3d 606, 608 (1st Cir.2001). In making that determination, the ALJ must assess the claimant's RFC in combination with vocational factors, including the claimant's age, education, and work experience. 20 C.F.R. § 404.1560(c).
To determine whether plaintiff was disabled, the ALJ conducted the five-part analysis required by the regulations. At the first step, the ALJ found that plaintiff had not engaged in substantial gainful activity since the alleged onset date of his disability. (Id. at 21). At the second step, the ALJ found that his anxiety disorder and substance-abuse disorder were severe impairments. (Id.). At step three, the ALJ found that when he was abusing substances, his anxiety impairment medically equalled sections 12.06 and 12.09 on the list of impairments set forth in the regulations. (Id. at 23-24). However, if he stopped abusing substances, his anxiety disorder, while severe, would not meet or medically equal a listed impairment. (Id. at 24). Accordingly, the ALJ found that plaintiff, when sober, would have the RFC to perform work at all exertional levels, but would have a moderate limitation in his ability to engage in extensive interaction with the general public. (Id. at 24-27). At step four, the ALJ found that he would be able to perform his past relevant work if he stopped abusing substances. (Id. at 27-28).
On December 18, 2008, the ALJ issued his decision. (Id. at 28). He found that although plaintiff exhibited signs of disability during periods when he abused substances, he would not be disabled if he stopped abusing substances. (Id.). The ALJ concluded that plaintiff's substance-abuse disorder was a contributing factor material to the determination of disability, and that he was therefore not disabled within the meaning of the relevant provisions of the Social Security Act, 42 U.S.C. §§ 416(i) and 223(d). (Id.).
In this appeal, plaintiff has submitted medical records concerning his upper neck, shoulder, and lower back problems, which he contends should have been considered by the ALJ at his SSDI hearing. Of the documents that plaintiff has submitted, only one is a medical record. These records consist of plaintiff's long-term disability statement, in which he alleges disability due to anxiety, cervical radiculopathy, and lower back pain; two letters from The Hartford dated January 5, 2006, and October 11, 2006, informing him that his claims for short-term and long-term disability, respectively, had been approved; a December 12, 2005, letter from National Imaging Associates, Inc., confirming a mutual agreement between it and plaintiff to withdraw his request for a neck MRI; a December 16, 2009, letter from Atul L. Bhat, M.D., to Spyridon Kantas, M.D., discussing plaintiff's MRIs of the cervical and lumbar spine and his follow-up evaluation; a cover letter from Dr. Hopkins indicating that he had attached five pages of plaintiff's medical records in support of his short-term and long-term disability applications (no attachments were found); and a letter from plaintiff to a Dr. Taylor that provides dates for his short-term disability insurance paperwork.
The letter from Dr. Bhat indicates that on December 11, 2009, MRIs of plaintiff's cervical and lumbar spine were performed. (Pl. Br. Ex. I). The MRI of his cervical spine demonstrated relative flattening of the normal cervical lordosis; moderate right-sided facet osteroarthritis at C2-C3; left severe foraminal narrowing noted at the C3-C4 level; moderate bilateral foraminal
Dr. Bhat acknowledged that "multilevel spinal stenosis both in the cervical spine as well as in the lumbar spine ... can certainly cause radicular complaints as well as upper and/or any lower extremity sensory complaints," but did not recommend any interventional injection therapy. (Id.). He concluded that since plaintiff did not want to pursue surgical options, there was "nothing else his office could offer him." (Id.).
Plaintiff appears to contend that the decision of the ALJ should be reversed because this evidence of physical ailments related to his upper neck, shoulder, and lower back was not considered by the ALJ along with the evidence concerning his mental disorders. Defendant contends that there is substantial evidence in the record supporting the ALJ's decision and that plaintiff failed to present available evidence of these alleged physical impairments during those proceedings.
The Court may order additional evidence to be taken only upon a showing that the new evidence is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding. 42 U.S.C. § 405(g). New evidence is material if the ALJ's decision "might reasonably have been different" if the evidence had been considered. Evangelista, 826 F.2d at 140 (quoting Falu v. Sec'y of Health & Human Srvcs., 703 F.2d 24, 27 (1st Cir.1983)). Here, plaintiff has met neither requirement for an order remanding the decision of the ALJ for reconsideration based on new evidence.
As to the first requirement, plaintiff suggests no grounds on which the administrative decision might reasonably have been different if the ALJ had considered evidence of the physical impairments that plaintiff now raises. The ALJ concluded that if the plaintiff stopped the substance abuse, he would have the residual functional capacity to perform work at all exertional levels. (A.R. at 24). The ALJ determined the plaintiff's statements regarding the intensity, persistence, and limiting effects of his underlying medically determinable physical or mental impairment(s) to be not credible. (Id. at 25).
Moreover, substantial evidence in the record supports the ALJ's conclusion that no physical afflictions rendered plaintiff disabled. A pain questionnaire that plaintiff has submitted does not allude to any of the impairments he now claims to have suffered. (Id. at 137). A disability report states agoraphobia is the only illness that limits his ability to work and that his conditions do not cause him pain or other symptoms. (Id. at 159). It further states he could walk, stand, sit, stoop, kneel, crouch, handle, grab, and grasp big objects in the course of performing his job. (Id.). In a letter dated July 5, 2006, Doctor Hopkins states that plaintiff had recovered from his neck and shoulder pain. (Id. at 220). The fact that the ALJ explicitly considered plaintiff's physical abilities and determined that plaintiff was not disabled
Moreover, even if the new evidence were material, remand would be unwarranted because plaintiff has not satisfied the second requirement for a remand by showing good cause for his failure to present that evidence during the administrative process. Plaintiff appeared and testified at the SSDI hearing. (Id. at 19). After the SSDI hearing, the ALJ granted plaintiff two weeks to submit any additional evidence if plaintiff thought the record was incomplete. (Id. at 86). Plaintiff did not present any evidence of these impairments at either opportunity, nor has he offered a good cause explanation for its absence. This failure is particularly salient because plaintiff was represented by counsel at his hearing who presumably was capable of raising relevant evidence within the two-week period provided by the ALJ. (Id. at 19).
In sum, although plaintiff contends that additional evidence should have been considered by the ALJ, he has shown neither that the new evidence is material nor that there is good cause for his failure to presented it during the administrative process.
For the foregoing reasons, the Commissioner's motion to affirm is GRANTED.
