UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Philip Simard, Claimant

v. Case No. 15-cv-413-SM Opinion No.

Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Defendant

O R D E R

Pursuant to

(g) and 1383(c)(3), claimant,

Philip Simard, moves to reverse or vacate the Acting

Commissioner’s decision denying his applications for Disability

Insurance Benefits under Title II of the Social Security Act,

, and Supplemental Security Income Benefits under

Title XVI,

, 1381-1383c (the “Act”). The Acting

Commissioner objects and moves for an order affirming her

decision.

For the reasons discussed below, claimant’s motion is

denied, and the Acting Commissioner’s motion is granted.

1 Factual Background

I. Procedural History.

In January of 2013, claimant filed applications for

Disability Insurance Benefits (“DIB”) and Supplemental Security

Income (“SSI”), alleging that he was disabled and had been

unable to work since June of 2012. Claimant was 46 years old at

the time of his alleged onset of disability. His applications

were denied and claimant requested a hearing before an

Administrative Law Judge (“ALJ”).

In January of 2015, claimant, his attorney, an impartial

vocational expert, and an impartial medical consultant appeared

before an ALJ, who considered claimant’s applications de novo.

Approximately 10 weeks later, the ALJ issued his written

decision, concluding that claimant was not disabled, as that

term is defined in the Act, at any time prior to the date of his

decision. Claimant then sought review by the Appeals Council,

which denied his request for review. Accordingly, the ALJ’s

denial of claimant’s applications for benefits became the final

decision of the Commissioner, subject to judicial review.

Subsequently, claimant filed a timely action in this court,

asserting that the ALJ’s decision is not supported by

substantial evidence.

2 Claimant then filed a “Motion to Reverse” the decision of

the Acting Commissioner (document no. 12). In response, the

Acting Commissioner filed a “Motion for an Order Affirming the

Decision of the Commissioner” (document no. 13). Those motions

are pending.

II. Stipulated Facts.

Pursuant to this court’s Local Rule 9.1, the parties have

submitted a joint statement of stipulated facts which, because

it is part of the court’s record (document no. 15), need not be

recounted in this opinion. Those facts relevant to the

disposition of this matter are discussed as appropriate.

Standard of Review

I. “Substantial Evidence” and Deferential Review.

Pursuant to

(g), the court is empowered “to

enter, upon the pleadings and transcript of the record, a

judgment affirming, modifying, or reversing the decision of the

Commissioner of Social Security, with or without remanding the

cause for a rehearing.” Factual findings and credibility

determinations made by the Commissioner are conclusive if

supported by substantial evidence. See

(g),

1383(c)(3). See also Irlanda Ortiz v. Secretary of Health &

Human Services,

(1st Cir. 1991). Substantial

3 evidence is “such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” Consolidated

Edison Co. v. NLRB,

(1938). Importantly, it

is something less than a preponderance of the evidence, so the

possibility of drawing two inconsistent conclusions from the

evidence does not prevent an administrative agency’s finding

from being supported by substantial evidence. Consolo v.

Federal Maritime Comm’n.,

(1966). See also

Richardson v. Perales,

(1971).

II. The Parties’ Respective Burdens.

An individual seeking SSI and/or DIB benefits is disabled

under the Act if he or she is unable “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.”

(d)(1)(A). See also 42 U.S.C. § 1382c(a)(3). The

Act places the initial burden on the claimant to establish the

existence of a disabling impairment. See Bowen v. Yuckert,

(1987); Santiago v. Secretary of Health & Human

Services,

(1st Cir. 1991). To satisfy that

burden, the claimant must prove, by a preponderance of the

evidence, that his impairment prevents him from performing his

4 former type of work. See Gray v. Heckler,

(1st Cir. 1985); Paone v. Schweiker,

(D. Mass. 1982). If the claimant demonstrates an inability to

perform his previous work, the burden shifts to the Commissioner

to show that there are other jobs in the national economy that

he can perform, in light of his age, education, and prior work

experience. See Vazquez v. Secretary of Health & Human

Services,

(1st Cir. 1982). See also

(f) and 416.912(f).

In assessing a disability claim, the Commissioner considers

both objective and subjective factors, including: (1) objective

medical facts; (2) the claimant’s subjective claims of pain and

disability, as supported by the claimant’s testimony and/or that

of other witnesses; and (3) the claimant’s educational

background, age, and work experience. See, e.g., Avery v.

Secretary of Health & Human Services,

(1st Cir.

1986); Goodermote v. Secretary of Health & Human Services,

(1st Cir. 1982). Ultimately, a claimant is disabled

only if his:

physical or 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

5 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.

(d)(2)(A). See also 42 U.S.C. § 1382c(a)(3)(B).

With those principles in mind, the court reviews claimant’s

motion to reverse and the Acting Commissioner’s motion to affirm

her decision.

Background - The ALJ’s Findings

In concluding that claimant was not disabled within the

meaning of the Act, the ALJ properly employed the mandatory

five-step sequential evaluation process described in

and 416.920. See generally Barnhart v. Thomas,

(2003). Accordingly, he first determined that

claimant had not been engaged in substantial gainful employment

since his alleged onset of disability: June 13, 2012. Admin.

Rec. at 105. Next, he concluded that claimant suffers from the

following severe impairment: “degenerative disc disease of the

cervical spine, carpal tunnel syndrome, depression, a ‘likely’

posttraumatic stress disorder, and polysubstance abuse.”

. The ALJ also concluded that claimant’s mental impairments,

including his substance use disorder, meet listings 12.04 and

12.09 of the impairments listed in 20 C.F.R. Part 404, Subpart

6 P, Appendix 1.

. The ALJ went on, however, to find

that if claimant discontinued his alcohol and substance abuse,

he would not have an impairment or combination of impairments

that meet or medically equal any of the listed impairments.

.

Next, the ALJ concluded that if claimant discontinued his

substance abuse, he would have the residual functional capacity

(“RFC”) to perform the exertional demands of a range of light

work.

. He noted, however, that claimant could have

only brief and routine contact with co-workers, supervisors, and

the general public. The ALJ also concluded that, “[d]espite his

depression, [claimant] would retain the ability to handle simple

and fairly complex matters [and] he could concentrate and

persist on tasks for two-hour periods over a typical workday and

workweek.”

In light of those restrictions, the ALJ

concluded that claimant was not capable of performing any past

relevant work.

. See also

(vocational

expert’s testimony about claimant’s work history).

At the final step of the analysis, the ALJ considered

whether there were any jobs in the national economy that

claimant might perform. Relying upon the testimony of the

vocational expert, the ALJ concluded that if claimant

7 discontinued his substance abuse, “there would be a significant

number of jobs in the national economy that the claimant could

perform.”

. Consequently, the ALJ determined that

claimant’s “substance use disorder is a contributing factor

material to the determination of disability because the claimant

would not be disabled if he stopped the substance use.”

. That, in turn, led the ALJ to conclude that claimant has

not been disabled, as that term is used in the Act, at any time

from his alleged onset date through the date of the ALJ’s

decision.

Discussion

Claimant challenges the ALJ’s decision on three grounds,

asserting that he erred by: (1) improperly striking some of

claimant’s late-filed exhibits from the record; (2) erroneously

concluding that if claimant discontinued his substance abuse,

his mental impairments would not meet or equal a listed

impairment; and (3) erroneously concluding that if claimant

discontinued his substance abuse, he would retain the RFC to

perform a range of light work.

I. Stricken Exhibits.

Claimant’s hearing before the ALJ took place on January 5,

2015. On January 2, 2015, fewer than five days prior to his

8 hearing, claimant submitted two additional documents in support

of his applications for benefits (one of which is now at issue).

He submitted three more documents on January 16th (11 days after

his hearing). The ALJ struck those exhibits from the record,

concluding that claimant failed to comply with the so-called

“Five Day Rule” set forth in

(a) (“You must

submit any written evidence no later than 5 business days before

the date of the scheduled hearing.”). Specifically, the ALJ

concluded that claimant failed to provide a “good-cause

explanation regarding the untimely submission.” Admin. Rec. at

101. The ALJ did, however, go on to review those documents, but

concluded that all were, at best, of “minimum probative value.”

Pursuant to the “Five Day Rule,” if a claimant wishes to

submit evidence fewer than five days before his hearing, the ALJ

may decline to consider such evidence unless the claimant

satisfies at least one of three criteria. And, if a claimant

wishes to submitted evidence after the hearing, in addition to

satisfying one of those three criteria, he must also “show that

there is a reasonable possibility that the evidence, alone or

when considered with the other evidence of record, would affect

the outcome of [his] claim.”

(c). Here,

claimant asserts that he satisfied one of the specified criteria

9 by demonstrating that there was some “other unusual, unexpected,

or unavoidable circumstance beyond [his] control [that]

prevented [him] from submitting the evidence earlier.”

(b). And, as for the materials submitted after

the hearing, he says he has shown that there is a reasonable

probability that those documents would affect the outcome of his

claim. The court disagrees.

Claimant first challenges the ALJ’s refusal to admit

Exhibit 32F, Dr. Whitesell’s responses to a Drug and Alcohol

Abuse Questionnaire and a Mental Impairment Questionnaire. At

the hearing, counsel for claimant explained that she had only

received those document on the Friday before the hearing (which

was held on a Monday). There was, however, no discussion about

whether those documents could have been obtained earlier and

what efforts counsel undertook (or could have undertaken) to

obtain them in a timely way. Consequently, claimant failed to

sustain his burden to demonstrate that there was some “unusual,

unexpected, or unavoidable circumstance” beyond his control that

prevented timely submission of those documents. See, e.g.,

Raymond v. Astrue, No. 1:12-CV-92-DBH,

, at *2

(D. Me. Dec. 31, 2012) (“[Claimant] offers nothing beyond his

lack of memory as the necessary “unusual, unexpected, or

unavoidable circumstances beyond [his] control.” That is not

10 enough to meet this rather rigorous standard. The rule itself

says that the administrative law judge may decline to consider

such evidence,

(a), and the plaintiff has

shown no abuse of that discretion here.”), aff'd, No. 1:12-CV-

92-DBH,

(D. Me. Jan. 18, 2013).

Of course, the ALJ was present when counsel was discussing

the late-filed exhibits and certainly could have - and probably

should have - developed the record on this matter. See

generally Heggarty v. Sullivan,

(1st Cir.

1991). The ALJ could have inquired into the reason(s) behind

the delay in filing those documents and fleshed out whether

claimant could, or could not, meet his burden under

(b). Nevertheless, even if the ALJ had erred by failing

to develop the record, and even if he did ultimately err by

excluding the documents at issue, that error was harmless. See,

e.g., Lemire v. Colvin, No. CV 15-331L,

, at *10

(D.R.I. May 4, 2016) (holding that, “Even assuming that the ALJ

erred by not accepting the late-tendered records, a review of

the records reveals that any such error is plainly harmless”),

report and recommendation adopted, No. CV 15-331L,

(D.R.I. June 6, 2016); Wilner v. Astrue, No. 2:11-CV-21-

GZS,

, at *2 (D. Me. Jan. 26, 2012) (“I conclude

that the new evidence to which the plaintiff points was

11 cumulative and that the new evidence, as a whole, did not

consistently support her claim. Its exclusion, thus, was

harmless.”), aff'd, No. 2:11-CV-21-GZS,

(D. Me.

Feb. 14, 2012).

Despite having excluded Dr. Whitesell’s responses to the

questionnaires from the record, the ALJ plainly read them. And,

indeed, he gave a lengthy explanation in his written decision as

to why he determined that those opinions were entitled to no

weight. See Admin. Rec. at 102. Among other things, the ALJ

noted that Dr. Whitesell opined that claimant’s “alcohol abuse,

opiate abuse, cocaine abuse [are] all in remission.” Exhibit 3

to Claimant’s Memorandum (document no. 12-5) at 1. Yet,

claimant had only recently been discharged from an inpatient

hospitalization related to his alcohol abuse. And, less than a

month prior to Dr. Whitesell’s opinion, claimant reported to

Southern New Hampshire Medical Center with a blood alcohol level

of 244, stated that he had been evicted from his residence for

heroin use, and admitted that he had used heroin only two days

prior. Admin. Rec. at 989. Based upon the record evidence,

including that referenced above, the ALJ was entitled to dismiss

Dr. Whitesell’s opinion that claimant was “in remission” with

respect to his alcohol and substance abuse.

12 Having carefully reviewed the record, as well as the

parties’ arguments, the court cannot conclude that the ALJ’s

stated reasons for affording no weight to Dr. Whitesell’s

opinions were supported by less than substantial evidence.

Consequently, for the reasons stated, as well as those set forth

in the Acting Commissioner’s memorandum (document no. 13-1) at

5-7, the ALJ did not err in excluding those records. But, even

if it was error, any such error was harmless - had those records

been admitted, the ALJ adequately explained why he would have

afforded them no weight (and, therefore, why they would have had

no impact on his disability determination).

The materials claimant submitted to the ALJ after the

hearing were accompanied by a cover letter that provided little

explanation for why some “unusual, unexpected, or unavoidable

circumstance beyond [claimant’s] control” prevented their timely

submission.

(c)(3). Nor did that letter

include any statement attempting to demonstrate that there was a

“reasonable possibility” that the included material would affect

the outcome of claimant’s applications for benefits. See

at

§ 405.331(c). Given those undisputed facts, the court cannot

conclude that the ALJ erred (or abused his discretion) when he

determined that claimant failed to carry his modest burden of

demonstrating entitlement to submit the challenged materials in

13 an untimely manner. See generally Lemire v. Colvin, No. CV 15-

331L,

, at *10 (D.R.I. May 4, 2016) (holding that

the claimant failed to meet the burden imposed by § 405.331,

which it noted was similar to the “excusable neglect” standard);

Dax v. Colvin, No. 1:15-CV-21-JHR,

, at *2 (D.

Me. Dec. 28, 2015) (holding that absent a showing that the

materials in question might result in a different outcome on the

merits of claimant’s applications, the ALJ did not err in

excluding late-submitted evidence); Freeman v. Colvin, No. 2:14-

CV-412-JHR,

, at *3 (D. Me. July 1, 2015) (“The

only justification supplied to the administrative law judge, in

either the cover letter transmitting the materials or at the

hearing, was that the plaintiff had ‘some difficulty’ getting

the records and had submitted them immediately when they did

finally arrive. This showing was patently insufficient to

satisfy the rather rigorous standard of section 405.331(b)(3).”)

(citation omitted).

Parenthetically, the court notes that the district courts

in this circuit seem to disagree as to the precise nature of the

burden imposed upon claimants by section 405.331. As noted

above, those in Maine have described the claimant’s burden as

“rather rigorous,” while those in Rhode Island have held it is

less demanding and analogized it to “excusable neglect.”

14 Compare Raymond v. Astrue, No. 1:12-CV-92-DBH,

,

at *2 (D. Me. Dec. 31, 2012) with Howe v. Colvin,

(D.R.I. 2015). This court need not weigh in on that

issue since, even giving claimant the benefit of the lighter

burden, it is plain he failed to meet it.

II. Claimant’s Mental Impairments.

When claimant’s alcohol and substance abuse are taken into

consideration, the ALJ concluded that his mental impairments are

of listing severity and, therefore, he would be considered

disabled. But, as the Acting Commissioner notes, the central

question in this case is whether, absent claimant’s alcohol and

substance abuse, his impairments would render him disabled. In

other words, the ALJ had to determine whether claimant’s

substance abuse was a contributing factor material to his

disability. The pertinent regulations provide, in part, that:

If we find that you are disabled and have medical evidence of your drug addiction or alcoholism, we must determine whether your drug addiction or alcoholism is a contributing factor material to the determination of disability.

* * *

The key factor we will examine in determining whether drug addiction or alcoholism is a contributing factor material to the determination of disability is whether we would still find you disabled if you stopped using drugs or alcohol.

15

. See also

. See

generally

(d)(2)(C) (“An individual shall not be

considered to be disabled for purposes of this subchapter 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.”).

At step three of the sequential analysis, the ALJ began by

finding that claimant’s mental impairments meet the requirements

for both section 12.04 (Affective Disorders) and section 12.09

(Substance Addiction Disorders) of the listings in 20 C.F.R.

Part 404, Subpart P, Appendix 1. Admin. Rec. at 107-10.

Specifically, he concluded that “when actively abusing

substances, the claimant would meet listing level criteria.”

Id. at 110. See generally SSR 13-2p, Titles II and XVI:

Evaluating Cases Involving Drug Addiction and Alcoholism,

(S.S.A. Feb. 20, 2013). But, relying largely upon the

testimony of Dr. Herbert Golub, a clinical psychologist who

testified at claimant’s hearing, see id. at 130-51, the ALJ then

found that claimant’s substance abuse is a contributing factor

material to the determination of disability. Id. at 110. See

generally

(d)(2)(C). The ALJ went on to conclude

that if claimant stopped abusing alcohol and illegal drugs, he

would not have an impairment or combination of impairments that

16 meet or equal any of the listed impairments. Id. at 111.

Claimant challenges those findings, saying the ALJ failed to

properly consider his anxiety disorder and personality disorder

in reaching the conclusion that claimant would not be disabled

absent his alcohol and substance abuse.

But, the record of claimant’s hearing is clear: Dr. Golub

testified that he specifically considered whether claimant’s

impairments met any one or more of the listings set forth in

sections 12.04 (affective disorder), 12.06 (anxiety disorder),

12.08 (personality disorder), and 12.09 (substance addition

disorder). Admin. Rec. at 137. After reviewing claimant’s

medical record, Dr. Golub concluded that, absent claimant’s

alcohol and substance abuse, his impairments would not be

sufficiently severe to meet any of those listed impairments

(other than the substance addition disorder). Id. (“I did not

see him meeting any of these listings other than 12.09 without

alcohol or other drugs being material. The severity did not

seem to be there without these [substances] and he was using so

much . . . 10 to 20 beers a day is quite substantial, plus the

other stuff he was using.”). The ALJ credited Dr. Golub’s

testimony - including that concerning claimant’s personality

disorder and anxiety disorder - gave it “significant weight,”

17 and more than adequately explained his reasons for doing so.

Id. at 110.

Moreover, the ALJ specifically discussed - in substantial

detail - his findings that, when claimant’s drug and alcohol use

is considered, his mental impairments meet listings 12.04 and

12.09. Id. at 107-10. He also discussed why he concluded that,

absent alcohol and substance abuse, claimant would not meet

those listings. But, says claimant, that was not sufficient.

According to claimant, because Dr. Golub considered whether

claimant also met listings 12.06 and 12.08, the ALJ should have

included a discussion of those listings as well. It is,

however, well established that an ALJ need not specifically

address every piece of evidence in the record, nor need he

consider every one of the listings set forth in Appendix 1.

See, e.g., Mohr v. Colvin, 14-CV-245-JD,

, at *4

(D.N.H. Apr. 1, 2015) (“Although an ALJ must consider all of the

evidence in the record, an ALJ is not required to discuss every

piece of evidence as long as the ALJ’s finding is supported by

substantial evidence. More specifically, an ALJ is not required

to discuss every finding in a medical opinion as long as the

opinion was considered as part of the administrative record and

weighed as required by § 404.1527(c).”) (citations omitted).

18 Even if the ALJ did err in failing to specifically discuss

whether claimant might meet the listings set forth in sections

12.06 and 12.08, such error was plainly harmless. The ALJ gave

a detailed discussion of the degree of claimant’s restriction in

his activities of daily living, his social functioning, his

concentration, persistence and pace, and his episodes of

decompensation. Admin. Rec. at 107-10. And, the degree of

impairment required by the omitted listings (12.06 and 12.08) is

the same as required by the listing the ALJ specifically

considered: 12.04. So, when the ALJ supportably concluded that,

when claimant’s drug and alcohol abuse is not factored in, he no

longer meets the listing requirements, that conclusion holds

true for all of the listings at issue. See id. at 112-13.

Claimant’s next argument is less clear. He first notes

that the ALJ concluded that if claimant discontinued his

substance abuse, he would not suffer from an impairment (or

combination of impairments) that meets or equals one of the

listed impairments. But, claimant then asserts that, “According

to the hearing transcript, however, Dr. Golub testified that

[claimant] met listing 12.09 without alcohol or drugs being

material.” Claimant’s Memorandum (document no. 21-1) at 12.

That, says claimant, is a material discrepancy between the ALJ’s

conclusions and Dr. Golub’s testimony - a discrepancy the ALJ

19 should have addressed in his written decision. Again, the court

is constrained to disagree.

At the hearing, Dr. Golub testified that, “I did not see

him meeting any of these listings other than 12.09 without

alcohol or other drugs being material.” Admin. Rec. at 137.

That testimony is not inconsistent with the ALJ’s ultimate

findings. Rather, it seems to be a somewhat awkwardly phrased

statement about the very nature of the impairment discussed in

section 12.09: “Substance Addition Disorders.” Plainly,

claimant’s substance abuse was a material factor - indeed it was

the material factor - prompting Dr. Golub’s conclusion that

claimant met listing 12.09. In other words, absent claimant’s

drug and alcohol abuse, he would not meet that listed

impairment. There was no error in the ALJ’s findings on this

matter.1

As noted above, the central question in this case is

whether, absent his substance and alcohol abuse, claimant would

1 It probably bears noting that the listing for substance addition disorders in section 12.09 is “different from that of other mental disorder listings.” 20 C.F.R. Pt. 404, Subpt. P, App’x 1, Part A, § 12.00A. It is not an independent indicator of disability. Instead, “it will only serve to indicate which of the other listed mental or physical impairments must be used to evaluate the behavioral or physical changes resulting from regular use of addictive substances.” Id.

20 be considered disabled, as that term is defined in the Act. The

ALJ concluded that he would not. Beyond the substantial record

evidence supportive of the ALJ’s conclusions, claimant’s own

statements to his various treating professionals support the

conclusion that his drug and alcohol addictions materially

contributed to his disability - particularly his mental

impairments. For example, in hospital notes dated August 19,

2014, it is reported that claimant “relayed that his main

problem is his inability to stop drinking and using drugs.

[Claimant] states that when he is not drinking, although this

happens rarely with very short periods of time, his mood is

fine, but drinking and doing drugs made him feel more

depressed.” Admin. Rec. at 660 (emphasis supplied). Similarly,

in October of 2014, claimant reported to Dr. Elena Galkina that

he “needs to stop using drugs and alcohol because it is

dangerous and makes him feel depressed, hopeless, suicidal.”

Id. at 999.

In light of the foregoing, the court cannot conclude that

the ALJ erred in finding that, absent drug and alcohol abuse,

claimant’s mental impairments would not meet or equal a listed

impairment.

21 III. Medical Opinions and Claimant’s RFC.

Finally, claimant asserts that the ALJ erred in concluding

that if claimant discontinued his substance abuse, he would have

the residual functional capacity to perform a range of light

work. Specifically, claimant says the ALJ failed to properly

weigh the medical opinion evidence and placed too much weight on

the testimony of the independent medical consultant, Dr. Golub.

In reaching the conclusion that if claimant stopped abusing

alcohol and illegal substances, he would retain the RFC to

perform a range of light work, the ALJ more than adequately

explained his reasons for affording substantial weight to the

opinions of Dr. Golub as to claimant’s mental impairments.

Admin. Rec. at 119. Claimant’s arguments to the contrary, see

Claimant’s Memorandum at 16-20, are unavailing. The ALJ also

adequately explained his decision to afford only limited weight

to the opinion of state examiner Michael Schneider (who, it

should probably be noted, opined that claimant’s mental

impairments were non-severe), as well as the determination made

by the State of New Hampshire Aid to the Permanently and Totally

Disabled, and why he chose, instead, to defer to the opinions of

Dr. Golub. Admin. Rec. at 120.

22 The ALJ also supportably explained his decision to afford

no weight to the opinions contained in the letter authored by

Dr. Christopher Benton. Id. at 119-20. See also id. at 581.

As the ALJ properly noted, although Dr. Benton acknowledged

claimant’s alcohol dependence and opined that claimant

“struggles with severe depression, . . . PTSD and anxiety

issues,” he did not discuss the impact claimant’s drug and

alcohol abuse have on those impairments. See id. at 581 (letter

from Dr. Benton). And, Dr. Benton’s opinion that claimant is

“unable to engage in gainful employment at this time” is an

issue reserved to the Commissioner. See

(d)(1). See also SSR 96-5p, Titles II and XVI: Medical

Source Opinions on Issues Reserved to the Commissioner,

(S.S.A. July 2, 1996). Similarly, as noted above, the

ALJ adequately supported his determination that, even if the

opinions of Dr. Whitesell had been made part of the record, he

would have afforded them no weight. Admin. Rec. at 120.

As for claimant’s physical limitations, the ALJ adequately

explained his reasons for affording substantial weight to the

opinions of state examiner Burton Nault, M.D., and consultative

examining physician Robert Yager, M.D., Admin. Rec. at 120-21,

both of whom opined that claimant retained the physical and

mental capacity to perform activities consistent with a range of

23 light work. See

(report of Dr. Nault); 545-49

(report of Dr. Yager). The ALJ also provided adequate support

for his decision to discount some of the opinions of Dr.

Salvatore Vella, one of claimant’s treating physicians,

including the fact that Dr. Vella’s examination notes did not

support the very restrictive range of work he opined claimant

could perform. Id. at 121-22.2

Conclusion

Judicial review of the ALJ’s decision is both limited and

deferential. This court is not empowered to consider claimant’s

application de novo, nor may it undertake an independent

assessment of whether he is disabled under the Act.

Consequently, the issue before the court is not whether it

2 Claimant also challenges the ALJ’s musing on the “theories” underlying the “treating source rule,” as well as his speculation about possible motivations that treating sources might have to exaggerate a claimant’s impairments or symptoms in order to “assist a patient with whom he or she sympathizes.” Admin. Rec. at 117-18. To be sure, that portion of the ALJ’s decision is neither helpful nor particularly illuminating. But, that portion of the written decision appears to be little more than standard boilerplate, repeated in most, if not all, of this ALJ’s opinions. In fact, perhaps through some typographical or proof-reading error, that paragraph appears twice in this particular decision. The important point is this: it is clear from the substantive elements of his written decision that the ALJ adequately explained his decision to discount the opinions of some of claimant’s treating sources. And, it is equally plain that he relied upon permissible, rather than speculative, reasons for doing so. See

(c).

24 believes claimant is disabled. Rather, the permissible inquiry

is “limited to determining whether the ALJ deployed the proper

legal standards and found facts upon the proper quantum of

evidence.” Nguyen v. Chater,

(1st Cir. 1999).

Provided the ALJ’s findings are properly supported by

substantial evidence - as they are in this case - the court must

sustain those findings even when there may also be substantial

evidence supporting the contrary position. Such is the nature

of judicial review of disability benefit determinations. See,

e.g., Tsarelka v. Secretary of Health & Human Services,

(1st Cir. 1988) (“[W]e must uphold the [Commissioner’s]

conclusion, even if the record arguably could justify a

different conclusion, so long as it is supported by substantial

evidence.”); Rodriguez v. Secretary of Health & Human Services,

(1st Cir. 1981) (“We must uphold the

[Commissioner’s] findings in this case if a reasonable mind,

reviewing the evidence in the record as a whole, could accept it

as adequate to support his conclusion.”).

Having carefully reviewed the administrative record and the

arguments advanced by both the Acting Commissioner and claimant,

the court concludes that there is substantial evidence in the

record to support the ALJ’s determination that claimant was not

“disabled,” as that term is used in the Act, at any time prior

25 to the date of the ALJ’s decision (March 23, 2015). The ALJ’s

decision to strike the challenged documents from the record was

consistent with the provisions of

(b) and

(c). And, even if that decision had been made in error, it

would have been harmless. Additionally, the ALJ’s determination

that, if claimant discontinued his alcohol and substance abuse,

his mental impairments would not meet or equal any of the listed

impairments is supported by substantial evidence in the record.

Finally, the ALJ’s conclusion that, if claimant discontinued his

substance abuse, he would retain the RFC to perform a range of

light work is also supported by substantial evidence.

For the foregoing reasons, as well as those set forth in

the Acting Commissioner’s legal memorandum, claimant’s motion to

reverse the decision of the Commissioner (document no. 12) is

denied, and the Acting Commissioner’s motion to affirm her

decision (document no. 13) is granted. The Clerk of the Court

shall enter judgment in accordance with this order and close the

case.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge October 21, 2016

cc: Janine Gawryl, Esq. Robert J. Rabuck, Esq.

26