Gonzalez v. Astrue

Full title: FABIAN GONZALEZ, JR., Plaintiff v. MICHAEL J. ASTRUE, Commissioner of the…

Court: UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

Date published: Jul 5, 2012

Civil Action No. 11-30201-KPN (D. Mass. Jul. 5, 2012)

Opinion

Civil Action No. 11-30201-KPN

07-05-2012

FABIAN GONZALEZ, JR., Plaintiff v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, Defendant

NEIMAN, U.S.M.J.

MEMORANDUM AND ORDER REGARDING PLAINTIFF'S MOTION FOR JUDGMENT ON THE PLEADINGS and DEFENDANT'S MOTION TO AFFIRM THE DECISION OF THE COMMISSIONER
(Document Nos. 10 and 15)

This is an action for judicial review of a final decision by the Commissioner of the Social Security Administration ("Commissioner") regarding an individual's entitlement to Social Security Disability Insurance ("SSDI") benefits and Supplemental Security Income ("SSI") pursuant to 42 U.S.C. §§ 405(g) and 1381(c)(3). Fabian Gonzalez, Jr. ("Plaintiff") asserts that the Commissioner's decision denying him such benefits -- memorialized in a February 25, 2011 decision of an administrative law judge -- is not supported by substantial evidence. 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); Fed. R. Civ. P. 73. For the following reasons, the court will deny the Commissioner's motion and allow Plaintiff's motion to the extent he seeks a remand.

I. STANDARD OF REVIEW

A court may not disturb the Commissioner's decision if it is grounded in substantial evidence. See 42 U.S.C. §§ 405(g) and 1383(c)(3). Substantial evidence is such relevant evidence as a reasonable mind accepts as adequate to support a conclusion. Rodriguez v. Secretary of Health & Human Services, 647 F.2d 218, 222 (1st Cir. 1981). The Supreme Court has defined substantial evidence as "more than a mere scintilla." Richardson v. Perales, 402 U.S. 389, 401 (1971). Thus, even if the administrative record could support multiple conclusions, a court must uphold the Commissioner's findings "if a reasonable mind, reviewing the evidence in the record as a whole, could accept it as adequate to support his conclusion." Ortiz v. Secretary of Health & Human Services, 955 F.2d 765, 769 (1st Cir. 1991) (citation and internal quotation marks omitted).

A denial of benefits, however, will not be upheld if there has been an error of law in the evaluation of a particular claim. See Manso-Pizarro v. Secretary of Health & Human Services, 76 F.3d 15, 16 (1st Cir. 1996). In the end, the court maintains the power, in appropriate circumstances, "to enter . . . a judgment affirming, modifying, or reversing the decision of the Commissioner" or to "remand[ ] the cause for a rehearing." 42 U.S.C. § 405(g).

II. DISABILITY STANDARD

The Social Security Act (the "Act") defines disability, in part, 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 last for a continuous period of not less than twelve months." 42 U.S.C. § 423(d)(1)(A). See also 42 U.S.C. § 1382c(a)(3)(A) (similar). An individual is considered disabled under the Act

only if his physical and mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.

42 U.S.C. §§ 423(d)(2)(A) and 1382c(a)(3)(B). See generally Bowen v. Yuckert, 482 U.S. 137, 146-49 (1987).

In determining disability, the Commissioner follows the five-step protocol described by the First Circuit as follows:

First, is the claimant currently employed? If he is, the claimant is automatically considered not disabled.

Second, does the claimant have a severe impairment? A "severe impairment" means an impairment "which significantly limits the claimant's physical or mental capacity to perform basic work-related functions." If he does not have an impairment of at least this degree of severity, he is automatically considered not disabled.

Third, does the claimant have an impairment equivalent to a specific list of impairments contained in the regulations' Appendix 1? If the claimant has an impairment of so serious a degree of severity, the claimant is automatically found disabled.

. . . .

Fourth, . . . does the claimant's impairment prevent him from performing work of the sort he has done in the past? If not,

he is not disabled. If so, the agency asks the fifth question.

Fifth, does the claimant's impairment prevent him from performing other work of the sort found in the economy? If so, he is disabled; if not, he is not disabled.

Goodermote v. Secretary of Health & Human Services, 690 F.2d 5, 6-7 (1st Cir. 1982).

III. BACKGROUND

On March 13, 2009, Plaintiff filed for both SSDI benefits and SSI, alleging a disability onset date of January 8, 2007. After Plaintiff's claim was denied both initially and upon reconsideration, he requested a hearing before an administrative law judge ("ALJ"). The hearing was held on November 10, 2010, at which both Plaintiff and a vocational expert testified.

In a decision dated February 25, 2011, the ALJ denied Plaintiff's claim, finding: Plaintiff has not engaged in substantial gainful activity since approximately the onset of his alleged disability (question one); Plaintiff has certain impairments considered "severe", namely, atrial fibrillation, alcohol-induced cardiomyopathy, congestive heart failure, gout, chronic renal failure, and alcohol abuse, but those do not meet or medically equal one of the listed impairments in Appendix 1 (questions two and three); Plaintiff is unable to perform any past relevant work (question four) but has the residual functional capacity to perform sedentary work, with certain limitations, that exist in significant numbers in the national economy (question five). As a result, the ALJ determined that Plaintiff is not disabled within the meaning of the Act. (A.R. at 19.) On May 25, 2011, the Decision Review Board affirmed the ALJ's decision, making it the final decision of the Social Security Administration. (A.R. at 1-3.)

IV. D ISCUSSION

An individual is entitled to SSDI benefits if, among other things, he has an insured status and, prior to its expiration, is disabled. See 42 U.S.C. § 423(a)(1)(A) and (D). Entitlement to SSI, on the other hand, requires a showing of both financial need and disability. See 42 U.S.C. § 1381a. Plaintiff's insured status, for purposes of SSDI, and his need, for purposes of SSI, are not challenged.

Plaintiff argues that the ALJ erred by not properly evaluating the opinion of his treating physician, Dr. Bernard Price, while conducting his residual functional capacity assessment. Relatedly, Plaintiff contends that the ALJ inappropriately discounted Dr. Price's opinion because it had been solicited by his counsel. In response, the Commissioner asserts that the record supports the ALJ's findings. The court, for the reasons that follow, finds Plaintiff's argument more persuasive. A. Weight Accorded to Treating Physician's Opinion

In his decision, the ALJ declined to accord any "significant probative weight" to Dr. Price's opinion for essentially three reasons. First, the ALJ suggested that Dr. Price's opinion was suspect because it had been solicited by Plaintiff's counsel. Second, the ALJ stated that Dr. Price's opinion was not consistent with the longitudinal history of Plaintiff's impairments. Third, the ALJ stated that Dr. Price's opinion did not account for the material contribution of alcohol abuse. (A.R. at 15.) The court addresses these rationales seriatim.

1. The ALJ's Initial Reason: Solicited Opinion

The ALJ first concluded that Dr. Price's opinion was suspect because it had been solicited by Plaintiff's counsel and "appear[ed] to be an accommodation to [Plaintiff's] application more than an honest opinion as to the [Plaintiff's] ability to perform work-related activities on an ongoing basis." (A.R. at 15.) Standing alone, of course, this is not a permissible basis on which to discount a treating physician's opinion. As the First Circuit has directed, it is improper to discount a treating source's opinion simply because it was solicited. See Gonzalez Perez v. Secretary of Health & Human Services, 812 F.2d 747, 749 (1st Cir. 1987) ("[s]omething more substantive than just the timing and impetus of medical reports obtained after a claim is filed must support an ALJ's decision to discredit them."). Likewise, this court has admonished administrative law judges in the past for questioning the motivations of a treating physician in issuing a report. See, e.g., Rodriguez v. Astrue, 694 F.Supp.2d 36, 43 (D. Mass. 2010).

Here, the court notes that the ALJ did not refer to any specific evidence -- and the court is not aware of any on record -- that indicates that Dr. Price's opinion was anything but his honest assessment of Plaintiff's limitations. Given the lack of a more specific explanation that would support the ALJ's suspicion of Dr. Price's motives, the court finds this first reason for discounting the opinion unsupported and speculative and, hence, improper.

2. The ALJ's Second Reason: Longitudinal History

As his second reason for discounting Dr. Price's opinion, the ALJ stated that it was "not consistent with the longitudinal history" of Plaintiff's impairments. (A.R. at 15.) In this vein, an administrative law judge's decision can still pass muster if the other reasons given to accord a treating physician's opinion little weight are adequately supported. See Rodriguez, 694 F.Supp. 2d at 45.

The ALJ's conclusory statement here, however, was offered with no further explanation. It is therefore difficult for the court to understand or infer the exact ways in which the ALJ deemed Dr. Price's opinion inconsistent with the record. See Gonzalez Perez, 812 F.2d at 749 (administrative law judge's "brief statement of alternative support" for assigning less weight to a doctor's report was "not sufficiently developed to allow [the court] to uphold the ALJ's decision"). Accordingly, the ALJ's second reason falls short as well.

3. The ALJ's Third Reason: Failure to Account for Alcohol Abuse

The ALJ provided yet another reason why Dr. Price's opinion was accorded little weight, namely, that it failed to "account for the material contribution of [Plaintiff's] alcohol abuse." (A.R. at 15.) However, for the reasons set forth below, this rationale is also unpersuasive. In essence, the ALJ's rationale lacks the premise required for consideration of whether alcohol abuse had a material effect on Plaintiff's disability.

The Act establishes that "an individual shall not be considered disabled . . . if alcoholism or drug abuse 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)and 1382c(a)(3)(J) (emphasis added). In turn, the implementing regulations require an administrative law judge to first determine whether a claimant is disabled using the five-step protocol. See 20 C.F.R. §§ 404.1535(a), 416.935(a). If a determination is made that a claimant is disabled, an administrative law judge must then follow regulatory guidelines and explain "which of [a claimant's] current physical and mental limitations . . . would remain if [he or she] stopped using drugs or alcohol" and then "determin[ing] whether any or all of [the claimant's] remaining limitations would be disabling. See 20 C.F.R. §§ 404.1535(b); 416.935(b). If the remaining limitations would not be disabling, "[a claimant's] drug addiction or alcoholism is a contributing factor material to the determination of disability." Id.

Here, the ALJ never made an initial determination that Plaintiff was disabled. Thus, the ALJ lacked the premise required for consideration of whether alcohol abuse had a material effect on Plaintiff's disability. Accordingly, the ALJ's third reason for discounting Dr. Price's opinion lacks a proper foundation.

Granted, that error, standing alone, may be insufficient to warrant remand. See Reyes v. Astrue, 2012 WL 1076129, at *4-5 (D. Mass. Mar. 27, 2012) (citing Briggs v. Astrue, 2008 WL 4849332, at *5 (D.Me. Nov. 6, 2008)) (an administrative law judge's failure to follow procedure established by sections 404.1535(b) and 416.935(b), "standing alone", does not justify reversal and remand); but see Brueggemann v. Barnhart, 348 F.3d 689, 695 (8th Cir. 2003) (remand to administrative law judge solely because he refused to follow "the proper procedure" which requires "giving due weight to medical evidence without factoring in [claimant's] alcoholism."). But here, the ALJ's failure to follow the regulatory procedure does not stand alone. As described, the ALJ's decision to accord Dr. Price's opinion diminished weight was flawed for several other reasons. Accordingly, the court has little choice but to remand the matter so as to allow the ALJ to properly reassess the weight which should be accorded Dr. Price's opinion.

V. CONCLUSION

For the reasons stated, the Commissioner's motion to affirm is DENIED and Plaintiff's motion for judgment on the pleadings is ALLOWED to the extent it seeks a remand. IT IS SO ORDERED. DATED: July 5, 2012

/s/ Kenneth P. Neiman

KENNETH P. NEIMAN

U. S. Magistrate Judge