UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Andrea Silva

v. Case No. 17-cv-368-PB Opinion No.

US Social Security Administration, Acting Commissioner

MEMORANDUM AND ORDER

Andrea Silva challenges the denial of her claim for Social

Security disability insurance (“SSDI”) benefits under Title II

of the Social Security Act,

(g). Silva argues

that the Administrative Law Judge (“ALJ”) erred by failing to

adequately develop the record in considering her physical

impairments, and by inadequately explaining the finding that she

“sought minimal treatment” during the period in question. She

also argues that the ALJ’s determination that her polysubstance

abuse was a “contributing material factor” to her disability was

unsupported by substantial evidence. The Acting Commissioner

moves for an order affirming the decision. For the following

reasons, I deny Silva’s motion and affirm the Commissioner’s

decision. I. BACKGROUND 1

Silva is a 50 year-old woman with a high school education.

Doc. No. 11 at 2; Administrative Transcript (“Tr.”) 134. She

has previously worked as a licensed nurse’s assistant (“LNA”)

from 2000 to 2014. Doc. No. 11 at 2; see Tr. 160. In or around

January 2014, Silva was fired from her job at Speare Memorial

Hospital in Plymouth, NH for violating the hospital’s drug and

alcohol policy. Doc. No. 11 at 2. She had violated the drug

and alcohol policy by overdosing on multiple substances while at

work. See Tr. 159, 321. As a result of the incident, her

nursing license was revoked. Tr. 159, 302. Although Silva has

reported struggles with anxiety and substance abuse stretching

as far back as 2004, those afflictions worsened in March 2013

when her husband of 22 years left her. Tr. 302, 321. She

alleges a disability onset date of January 21, 2014, claiming

that her anxiety and panic disorder have prevented her from

working since that time. Doc. No. 11 at 1.

Silva’s application for benefits was initially denied. Tr.

96. Her claim progressed to a hearing before ALJ Elizabeth M.

Tafe on March 30, 2016. Tr. 18, 27. Both Silva, unrepresented

1 In accordance with Local Rule 9.1, the parties have submitted a joint statement of stipulated facts. Doc. No. 11. Because that joint statement is a part of the court’s record, I only briefly discuss the facts here. I discuss further facts relevant to the disposition of this matter as necessary below. 2 by counsel, and a vocational expert testified at the hearing.

Tr. 34, 42, 58. During the hearing, Silva notified the ALJ of

some recent back pain that limited her ability to lift things,

and presented a record of a recent medical appointment

evaluating that pain. Tr. 37, 54-56. This was the first time

she alleged a physical impairment of any kind. Tr. 54; see Tr.

159-62 (SSDI application claiming her medical conditions were

only anxiety, panic disorder, and depression). She also

notified the ALJ that several follow-up appointments to further

address this pain had been scheduled for the upcoming weeks.

Tr. 37. At the end of the hearing, the ALJ decided to hold the

record open for two weeks for Silva to submit any additional

evidence from those upcoming appointments. Tr. 63. The post-

hearing evidence obtained by the ALJ was then incorporated into

the administrative record and reviewed by the ALJ. Tr. 222-223

(referencing Tr. 342-349). On August 31, 2016, the ALJ denied

Silva’s claim by written decision. Tr. 27. On July 11, 2017,

the Social Security Administration (“SSA”) Appeals Council

denied Silva’s request for review, rendering the ALJ’s decision

the final decision of the Acting Commissioner. Doc. No. 11 at

2; Tr. 1. Silva now appeals. Doc. No. 10.

II. THE ALJ’S Decision

3 On August 31, 2016, the ALJ determined that Silva was “not

disabled” under the Social Security Act because she would not be

disabled if she stopped her substance use. Tr. 26-27. In her

written decision, the ALJ first assessed Silva’s claim in light

of all her impairments, including her diagnosed polysubstance

abuse, and concluded that Silva was disabled. Tr. 19-25.

Pursuant to applicable regulations, the ALJ continued her

analysis to determine whether Silva’s polysubstance abuse was a

“contributing factor material to the determination of

disability.” Tr. 25-26; see

; SSR 13-2P,

, at *4-5 (S.S.A. Feb. 20, 2013). After finding

that it was, the ALJ concluded that Silva had not been disabled

“at any time from the alleged onset date through the date of

[her] decision.” Tr. 26-27.

At step one of her initial analysis, the ALJ determined

that Silva had not engaged in substantial gainful activity since

January 21, 2014. Tr. 21. At step two, she determined that

Silva suffered from “the following severe impairments:

generalized anxiety disorder, depressive disorder-NOS [not

otherwise specified] and polysubstance abuse disorder.” Tr. 21.

She also found that Silva’s back pain constituted a non-severe

impairment. Tr. 22. In making the latter determination, the

ALJ noted a lack of evidence of treatment related to Silva’s

complaints of back pain.

She further emphasized that

4 Silva’s back strain was a non-severe impairment because there

was no evidence of any “medically determinable musculoskeletal

impairment [affecting] her ability to perform basic work

functions for any period of 12 months.” Tr. 22. At step three,

the ALJ found that none of Silva’s impairments, considered

individually or in combination, qualified for any impairment

listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, which would

have rendered her disabled per se. Id.; see

(d), 404.1525, and 404.1526.

At step four, the ALJ determined that Silva had the

residual functional capacity (“RFC”) “to understand, recall and

carry out short, simple instructions,” but that she could not

“sustain concentration and attention for even routine, familiar

tasks for 2-hours at a time throughout an 8-hour workday.” Tr.

23. She further determined that Silva could not “maintain a

regular work schedule,” that “she [would] be off task [for] at

least 15% of the workday,” and that she would “be out of work at

least two days per month on a consistent basis.”

She

finally found that Silva could have “occasional brief

interactions with the public,” and was capable of

“accommodat[ing] to routine, familiar, changes.”

In light

of this RFC, the ALJ determined that Silva could not return to

her past work as an LNA. Tr. 24.

5 In making her RFC determination, the ALJ considered Silva’s

entire medical record and several expert opinions, including

those pertaining to the effects and diagnoses of her

polysubstance abuse. Tr. 23-24. In so doing, the ALJ gave

great weight to the June 2014 opinion of Dr. Laura Landerman, a

State Agency reviewing psychologist. Tr. 23, 72-76. At the

time of her review, Dr. Landerman believed that Silva’s

substance abuse was still an active issue despite Silva’s claims

of sobriety since the overdose in January 2014. Tr. 75.

Accordingly, she opined that it could “not be factored out” in

assessing Silva’s mental RFC. Tr. 75. Importantly, she opined

that all of Silva’s impairments rendered her “unable to maintain

a regular full time work schedule and attendance.” Tr. 74. She

also opined that Silva was “unable to adequately and

consistently sustain” concentration, persistence, and pace for

extended periods “without interruptions from [her] psych

symptoms, namely anxiety and [drug addiction or alcoholism].”

Tr. 88.

At step five, after considering the hearing testimony of a

Vocational Expert (“VE”), the ALJ determined that there were no

jobs that existed in significant numbers in the national economy

that Silva could perform when her polysubstance abuse was an

active issue. Tr. 24-25. In rendering her opinion, the VE was

asked to consider whether jobs existed for a hypothetical person

6 of Silva’s age, education, work experience, and the

aforementioned RFC. Tr. 59-61. Specifically, the VE was asked

to consider the significance of the RFC components limiting such

a person to “be[ing] off task at least 15 percent of the

workday,” and being absent from work more than one day per

month. Tr. 61. She opined that such limitations would be

“beyond customary tolerances” and would completely preclude such

a person from “competitive work.” Tr. 61. Therefore, the ALJ

concluded that she would be disabled when “considering all of

[Silva’s] impairments, including [her] substance use disorders,”

she was disabled. Tr. 24.

Due to the evidence of substance abuse, however, the ALJ

proceeded with her analysis to determine whether substance abuse

was a “contributing factor material to the determination of

disability.”

. Social Security Ruling 13-

2p prescribes the manner in which an ALJ must proceed in cases

involving objective medical evidence of drug addiction and

alcoholism (“DAA”). SSR 13-2P,

, at *6; see

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

be disabled . . . if alcoholism or drug addiction would . . . be

a contributing factor material to the Commissioner's

determination that the individual is disabled.”);

. According to SSR 13-2p, once the ALJ finds a claimant

disabled, he or she must go on to determine “whether the

7 claimant would continue to be disabled if he or she stopped

using drugs or alcohol,” i.e. “whether DAA is ‘material’ to the

finding that the claimant is disabled.” See SSR 13-2P,

, at *2. Accordingly, the DAA evaluation process

essentially requires the ALJ to apply the sequential analysis a

second time while disregarding the effects of the claimant’s

substance abuse. See

; SSR 13-2P,

, at *4-6, 14; see also, e.g., Sax v. Colvin,

(E.D. Wash. 2014) (“[T]he ALJ conducts the

sequential evaluation a second time and considers whether the

claimant would still be disabled absent the substance abuse.”).

Thus, in Silva’s case, the ALJ performed a so-called DAA

evaluation to determine whether Silva’s polysubstance abuse was

“a contributing factor material to the determination of

disability.”

; SSR 13-2P,

,

at *6. At step two of her reanalysis, the ALJ determined that

“even when [Silva’s] substance abuse is not a factor,” she has

“continued to have problems with anxiety and depression.” Tr.

25. Therefore, the ALJ found that Silva would continue to have

severe impairments even in the absence of substance use.

The ALJ then determined that without the substance use, Silva

would still not have an impairment that meets any listing in 20

C.F.R. Part 404, Subpart P, Appendix 1. Tr. 25. Next, at step

four, the ALJ determined that, without substance use, Silva

8 would have the RFC “to perform work at all exertional levels,”

that she “would be able to understand, recall, and carry out

short, simple instructions,” and that she could “sustain

concentration and attention for 2-hours at a time for routine,

familiar tasks.” Tr. 25. She also found that Silva could

“persist[] at routine, familiar tasks at a variable, but

acceptable pace,” and that “[s]he could have occasional, brief

interactions with the public,” and “could accommodate to

routine, familiar changes.” Tr. 25. The ALJ nevertheless

determined that even if Silva stopped her polysubstance abuse,

she would not be able to return to her past work as an LNA. Tr.

26.

In making this non-DAA RFC determination, the ALJ again

relied on an opinion of Dr. Landerman, but from a second, more

recent evaluation in November 2014. Tr. 25, Tr. 89-92. By the

time of her second review, Dr. Landerman opined that Silva’s

polysubstance abuse was in early remission, but her anxiety was

still active. Tr. 91. Her updated mental RFC was similar to

the one previously discussed, except that it differed in two

material respects. First, in November 2014, Dr. Landerman

opined that Silva “was not significantly limited” in her

abilities “to perform activities within a schedule, maintain

regular attendance, and be punctual within customary

tolerances.” Tr. 90. Second, she opined that Silva was “able

9 to sustain concentration and attention for two hours for routine

familiar tasks.” Tr. 90. The ALJ read Dr. Landerman’s opinion

to indicate that “in the absence of substance abuse, [Silva]

would have no more than moderately impaired functioning in any

domain.” Tr. 25. The ALJ also found her non-DAA RFC to be

consistent with the opinion of Dr. Rexford Burnette, a state

consultative psychologist, who examined Silva in October 2014,

Tr. 320-325, as well as a report submitted from Speare Memorial

Hospital, Silva’s longtime employer up until her alleged onset

date, Tr. 191-192. Tr. 25-26. The report from Speare Memorial

Hospital stated that, up until the time she lost her license in

January 2014, Silva had been able to perform her work “properly

and satisfactorily,” providing direct and indirect patient care.

Tr. 25, 191.

Finally, at step five, after considering testimony from the

VE, the ALJ found that there would be a significant number of

jobs in the national economy that Silva could perform if she

stopped substance use. Tr 25. Specifically, the ALJ accepted

the VE’s opinion that a hypothetical person of Silva’s age,

education, work experience, and non-DAA RFC could perform the

representative jobs of “housekeeper,” “merchandise marker,” and

“kitchen helper.” Tr. 26. Accordingly, the ALJ found that

Silva’s polysubstance use disorder was a “contributing factor

material to the determination of disability,” and she was

10 therefore “not disabled” within the meaning of the Social

Security Act. Tr. 26; see

(d)(2)(c);

.

Silva asked the SSA Appeals Council to review the ALJ’s

decision. See Tr. 13. In a letter dated July 11, 2017, to

Silva, SSA explained that it found no reason under its rules to

review the ALJ’s decision and therefore denied Silva’s request

for review, leaving the ALJ’s decision as the final decision.

Tr. 1. 2

III. STANDARD OF REVIEW

I am authorized under

(g) to review the

pleadings submitted by the parties and the administrative record

and enter a judgment affirming, modifying, or reversing the

“final decision” of the Commissioner. That review is limited,

however, “to determining whether the [ALJ] used the proper legal

standards and found facts [based] upon the proper quantum of

evidence.” Ward v. Comm’r of Soc. Sec.,

(1st

Cir. 2000). I defer to the ALJ’s findings of fact, as long as

2 The letter stated that under SSA rules, it will review an ALJ’s decision for any of the following reasons: abuse of discretion by the ALJ, an error of law, lack of substantial evidence, broad policy or procedural issues affecting the public interest, or if it receives additional, new, material evidence that could reasonably change the outcome of the ALJ’s decision. It determined that none applied in this case, and affirmed the ALJ’s decision. Tr. 1-2. 11 those findings are supported by substantial evidence.

Substantial evidence exists “if a reasonable mind, reviewing the

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

to support his conclusion.” Irlanda Ortiz v. Sec’y of Health &

Human Servs.,

(1st Cir. 1991) (per curiam)

(quoting Rodriguez v. Sec’y of Health & Human Servs.,

(1st Cir. 1981)).

If the ALJ’s factual findings are supported by substantial

evidence, they are conclusive, even where the record “arguably

could support a different conclusion.” Id. at 770. If,

however, the ALJ “ignor[ed] evidence, misappl[ied] the law, or

judg[ed] matters entrusted to experts,” her findings are not

conclusive. Nguyen v. Chater,

(1st Cir. 1999)

(per curiam). The ALJ is responsible for determining issues of

credibility, drawing inferences from evidence in the record, and

resolving conflicts in the evidence. See Irlanda Ortiz,

.

IV. ANALYSIS

Silva alleges three errors that she argues warrant

reversal. Doc. No. 10-1. First, she contends that the ALJ

failed to adequately consider the combined impact of all of her

medically determinable impairments and neglected to sufficiently

develop the record with regard to her reported back pain.

12 at 3. Second, she argues that the ALJ incorrectly evaluated her

personal testimony regarding the extent of her functional

limitations and polysubstance abuse. Id. at 6. Third, she

argues that the ALJ’s DAA evaluation was not based on

substantial evidence. I address and reject each of Silva’s

arguments in turn.

A. Failure to Adequately Develop the Record

Silva first argues that the ALJ failed to adequately

develop the record with regard to her lower back pain. Doc. No.

10-1 at 3-4. She contends that the ALJ failed to obtain

available and more complete reports of her back injury, which

could have been used to determining whether her back injury was

a severe impairment and whether it limited her ability to work.

Id. at 5. I reject this argument because the ALJ held the

record open after the hearing and requested additional records,

and because Silva has failed to indicate what, if any, records

would have influenced the outcome of the ALJ’s decision.

“Because Social Security proceedings are not adversarial in

nature, the [ALJ has] a duty to develop an adequate record from

which a reasonable conclusion can be drawn.” Heggarty v.

Sullivan,

(1st Cir. 1991) (internal citations

and quotations omitted). “This duty to develop the record is

heightened where the claimant is not represented by counsel, but

applies in all cases.” Brunel v. Barnhardt, No. 00-cv-402, 2002

, *8 (D.N.H. Jan. 7, 2002) (citing

(d)). “[F]or an ALJ’s failure to develop the record to

constitute reversible error, the claimant must demonstrate that

he or she has suffered some prejudice as a result.” Russell v.

Colvin, No. 13-cv-398,

, *4 (D.N.H. Sept. 29,

2014) (citing Gaudreault v. Astrue,

)).

“Prejudice is demonstrated by showing that the additional

evidence might have led to a different decision.” Alker v.

Astrue,

(internal citations and quotations

omitted).

Here, the ALJ satisfied her obligation to develop the

record by keeping the record open after the March 2016 hearing

took place, and requesting and obtaining additional medical

evidence from that time. During the March 30, 2016 hearing,

Silva testified that she had had recent back pain that caused

her foot to drag, although no such impairment had been cited in

her original application. Tr. 54. She also indicated that she

had several appointments scheduled in the two weeks following

the hearing. Tr. 62-63. Accordingly, the ALJ told Silva that

she would leave the record open for two weeks to allow Silva to

submit any additional evidence of her back pain generated during

those appointments. Tr. 63. On August 11, 2016, the ALJ

notified Silva of the records she had received during the post-

14 hearing period and provided Silva with specific options as to

how to proceed. See Tr. 222.

The new records included treatment notes from Nurse

Practitioner Kelly Watkins from March 21, 2016 and April 4,

2016, who treated Silva for a lower back strain. 3 See Tr. 349,

344. The ALJ invited Silva to submit written comments about the

new evidence, any additional records that she wished to be

considered, and any questions that Silva might have for the

authors of the records. Tr. 222. The ALJ also wrote that she

would grant a supplemental hearing to discuss the records if

requested by Silva.

At such hearing, the ALJ stated, Silva

would have an opportunity to produce witnesses, testify, and

submit additional evidence.

The notice further emphasized

that if the ALJ did not receive a response from Silva within ten

days, she would assume that Silva did not want to submit any

additional evidence or hold a supplementary hearing and would at

that time accept the new evidence into the record and issue her

decision accordingly. 4 Tr. 223.

3 Silva also indicated her expectation that additional records would be generated from an appointment with a clinical social worker, Joe McKeller, relating to her depression and anxiety. See Tr. 63. The ALJ obtained at least some of those records, but they do not reflect any material change. Tr. 342, 343, 348. 4 The record does not contain a response from Silva, nor does

Silva contend that she responded. 15 Consistent with that notice, the ALJ considered the records

received, and discussed them in her August 31 decision. Tr. 22.

She found that although NP Watkins had diagnosed Silva with a

lumbar strain, and prescribed her physical therapy, see 344,

there was no evidence that Silva had had a medically

determinable musculoskeletal impairment affecting her “ability

to perform basic work functions for any period of 12 months,” as

required to be considered as an impairment under applicable

regulations. Tr. 22; see

, 404.1521,

404.1523. Although NP Watkins had also ordered Silva to undergo

a lumbar spine x-ray, see Tr. 344, a hypothetical record that

Silva now faults the ALJ for failing to obtain, see Doc. No. 10-

1 at 6, Silva does not allege that she even underwent such an x-

ray, let alone when. Nor does she provide any indication as to

what that x-ray would show if it exists.

The ALJ’s post-hearing efforts in obtaining and considering

these records are appropriate and sufficient to fulfill her

aforementioned duty. Cf. Gaudreault,

(the

ALJ should have kept the record open post-hearing to fix

“glaring gaps” in the medical records because it “would have

entailed little or no extra effort on the ALJ’s part, and would

not have delayed” her decision). The ALJ notified Silva of her

opportunity to review the received records, submit comment,

16 supplement the records, and request a further hearing. Her duty

to develop the record required nothing more.

Nevertheless, even if the ALJ had not sufficiently

fulfilled her obligation to develop the record, Silva has failed

to demonstrate that any additional records would have changed

the outcome of the ALJ’s decision in her favor. See Blanchette

v. Astrue, No. 08-cv-349,

, *13 (D. N.H. June 9,

2009) (finding that the claimant could not show harmful error

when the “claimant does not say what more the ALJ would have

learned from the questioning she says should have been

conducted”). All Silva presents to establish that she was

prejudiced by the ALJ’s post-hearing development is her

speculation that had the ALJ obtained records of a lumbar spine

x-ray or records from similarly ordered physical therapy, the

ALJ would have determined her back impairment to be severe.

Silva alleges that these records might have been generated

sometime between the March 2016 hearing and the August 2016

decision based on the mere fact that NP Watkins ordered them.

See Doc. No. 10-1 at 6. But Silva fails to present any evidence

that she followed through on those orders and that the records

of the x-ray or physical therapy actually exist, let alone that

they would have led to a different decision. This conjecture

falls well short of establishing reversible error. See Doc. No.

10-1 at 6; Nelson v. Apfel,

(7th Cir. 1997)

17 (“Mere conjecture or speculation that additional evidence might

have been obtained in the case is insufficient to warrant

remand.”) (internal quotation and citation omitted).

In sum, Silva was given ample opportunity to supplement the

post-hearing records, but failed to do so. Because Silva has

not demonstrated that the ALJ’s failure to obtain her X-ray and

physical therapy records prejudiced her claim, such a failure

was harmless and does not warrant remand.

B. Failure to Seek or Comply with Treatment

Silva next appears to argue that the ALJ erred in finding

that her failure to regularly seek treatment for her impairments

undermined her own subjective allegations of pain and its

limiting effects. Specifically, Silva cites the ALJ’s finding

that her “allegations [were] generally consistent with the

medical evidence to the extent that she has had some problems

with anxiety and mood,” but also noted that Silva had “sought

minimal treatment” over the two-and-half-year period in

question. Tr. 23. 5 The ALJ went on to cite several examples,

such as evidence that Silva did not “follow-through” with

certain counseling in April 2014, and that “she did not seek any

5 Although this observation was made in the context of developing the initial, all-inclusive RFC, which supported a finding of disability, it arguably implicates the second, non-DAA RFC with equal force. 18 mental health treatment again until approximately March 2016.”

Tr. 23.

Citing Social Security Ruling 16-3P, Silva now argues that

the ALJ erred in failing to consider possible reasons that might

explain why she had infrequently sought and complied with

treatment. Doc. No. 10-1 at 7-9. Specifically, she cites three

“reasons” that the ALJ should have considered: (1) she lacked

medical insurance coverage and was unable to pay for treatment,

(2) she believed the side effects of the medication were worse

than the original symptoms, and (3) her mental impairments

prevented her from understanding her need for treatment. Doc.

No. 10-1 at 8-9. None of these arguments are ultimately

persuasive.

The ALJ may consider an individual’s treatment history,

“when evaluating whether symptom intensity and persistence

affect the ability to perform work-related activities”. SSR 16-

3p,

, *8. SSR 16-3p provides that an ALJ may

find a claimant’s subjective complaints “inconsistent with the

overall evidence of record” if “the frequency or extent of the

treatment sought . . . is not comparable with the degree of the

individual’s subjective complaints,” or if the if the individual

fails to follow prescribed treatment.

Such a

determination, however, cannot be made “without considering

possible reasons [why] he or she may not comply with . . . or

19 seek treatment.

Possible reasons that a claimant may not

seek or comply with treatment include, inter alia,(i) “side

effects [of medication that] are less tolerable than the

symptoms,” (ii) an inability to afford treatment or lack of

access to low-cost care, or (iii) an inability to appreciate the

need for treatment because of a mental impairment. Id. at *9.

It is worth emphasizing at the outset that the ALJ did not

find Silva’s subjective complaints to be “inconsistent” with the

objective medical evidence. Instead, she found them to be

“generally consistent.” Tr. 23. Thus, arguably, there is no

departure from SSR 16-3P to even address, as the ruling plainly

conditions the requirement that an ALJ consider these “reasons”

on a finding that a claimant’s failure to seek treatment renders

his or her subjective complaints inconsistent with the medical

record. SSR 16-3p,

, *8.

Nevertheless, Silva is not entitled to a remand even if I

assume for purposes of analysis that the ALJ’s finding that

Silva’s subjective complaints were “generally consistent” with

the medical record, juxtaposed with her comments regarding the

“minimal treatment” sought, implies some degree of

inconsistency. Although the ALJ did not explicitly identify any

reasons Silva might have had for failing to more regularly seek

treatment, any error was harmless because the record as a whole

reveals that the ALJ sufficiently considered these reasons where

20 they were relevant. For example, at the hearing, the ALJ

explicitly addressed any concern Silva might have had as to the

harmful side effects of antidepressants, recently prescribed to

her by NP Watkins, in March 2016. See Tr. 56. Further, it is

unclear what side effects may be implicated by attending mental-

health counseling, so this consideration was not relevant to

Silva’s failure to “follow-through” on referrals in April 2014.

The record also establishes that Silva had both adequate

access to low-cost medical care and that she was aware of the

need for such treatment. For example, in March 2014, Silva was

enrolled in an affordable treatment program at Horizons

Counseling Center, upon her own request, but stopped attending

after two sessions. See Tr. 292, 318. In January 2015, Silva

saw her primary care provider (“PCP”), Rebecca Rose, for breast

pain as a self-pay patient and complied with an order for a

mammogram and an ultrasound. See Tr. 327-332. When asked by

the ALJ why she had not seen a doctor or therapist since 2015,

Silva replied that she “didn’t bother” because she “found the

Lord.” Tr. 38-39. 6 Silva further stated that she kept her panic

attacks under control, but decided to seek treatment in March

6 According to the Joint Statement of Material Facts, Silva did not participate in any formal mental health treatment from April 2014 to March 2016. Doc. No. 11 at 6.

21 2016 when she began to have an attack every day. See Tr. 45. 7

In sum, to the extent the ALJ’s omission of the aforementioned

“reasons” from her decision was error, it was harmless because

it is clear that the ALJ addressed the possible side effects of

medication with Silva, that Silva could afford treatment when

necessary, and that Silva had the mental capacity to seek

treatment. See Moore v. Comm’r of Soc. Sec., 573 Fed. App’x

540, 542-43 (6th Cir. 2014) (holding that claimant’s failure to

pursue treatment when the record indicates that she had the

resources to afford treatment “greatly erodes her credibility”);

Hanna v. Chater,

(N.D. Iowa 1996)

(because the claimant had an ability to hire others to assist

her in her daily life and much of her prescribed treatment

required no expense, “the ALJ could have concluded her financial

concerns were not severe enough to justify her failure to seek

further treatment.”).

C. Drug and Alcohol Abuse – Materiality Determination

Silva’s principal argument is that the ALJ’s determination

that she would not be disabled if she stopped substance use was

based on the false premise that her substance abuse was an

active impairment during the period under review. In other

words, Silva challenges the ALJ’s conclusion that her

7 When Silva did seek treatment in March 2016, Mid-State Health assisted her in applying for Medicaid. See Tr. 51. 22 polysubstance use was a “contributing factor material to the

determination of disability,” despite Silva’s claim that she had

been sober since her alleged onset date and an alleged lack of

evidence to contradict that claim. She argues that because she

was sober during the entire period in question, a two-year

stretch in which her anxiety symptoms continued to worsen, the

ALJ erred in finding her history of substance use material to

the determination of disability. I reject her argument. The

ALJ’s materiality determination is supported by substantial

evidence for the reasons discussed.

The Social Security Act, as amended, provides that an

individual otherwise determined to be disabled, “shall not be

considered disabled . . . if alcoholism or drug addiction . . .

[is] a contributing factor material” to that determination.

(d)(2)(C); Ell v. Berryhill, No. 16-cv-465-SM,

, at *3 (D. N.H. Jan. 5, 2018). Thus, if a claimant is

determined to be disabled and there is medical evidence of

substance abuse, then the ALJ “must go one step further” and

determine whether substance abuse is a material factor

contributing to the disability. Benelli v. Comm’r of Soc. Sec.,

No. 14-cv-10785,

, at *22 (D. Mass May 28, 2015)

(quoting Brown v. Apfel,

(D. R.I. 1999)).

In assessing materiality, the critical inquiry is “whether the

Commissioner would still find the claimant disabled if he or she

23 stopped using drugs or alcohol.”

(b)(1).

If the answer is no, then the claimant’s DAA is material to the

initial disability determination and he or she will ultimately

be considered “not disabled” under the Act. See

; Cage v. Comm’r of Soc. Sec.,

(2d

Cir. 2012); Parra v. Astrue,

(9th Cir.

2007). If the answer is yes, then the opposite results.

.

In practice, this requires the ALJ to engage in the

familiar five-step sequential analysis for a second time, while

discounting the effects of the claimant’s substance abuse. See

Sax v. Colvin,

(E.D. Wash. 2014);

Lohmeier v. Colvin, No. CV-14-02247,

, at *8 (D.

Ariz. Mar. 3, 2016); SSR 13-2p,

, at *4-6. His or

her decision must address which impairments would remain in the

absence of any substance abuse disorder, and whether those

remaining impairments would be disabling either alone or in

combination.

(b)(2); see SSR 13-2P,

, at *14. The burden of proving DAA immateriality, like

the burden of proving disability, lies with the claimant. Cage,

; SSR 13-2p,

, at *4. The question

of materiality is reserved to the ALJ, and will be upheld so

long as it is supported by substantial evidence. Benelli,

, at *24 (citing Cage,

).

24 With that framework in mind, I conclude that the ALJ’s

materiality determination is supported by substantial evidence.

First, the record contains clear evidence of Silva’s

polysubstance abuse diagnoses by multiple medical sources. For

example, on January 27, 2014, Silva was diagnosed with

“sedative, hypnotic, or anxiolytic abuse,” “alcohol dependence,”

and “cocaine dependence in remission” during a diagnostic

assessment at the Genesis Behavioral Health clinic. Tr. 296.

On April 14, 2014, Elsa Johnson, a counselor at Horizons

Counseling Center wrote that Silva met the criteria for severe

opioid, alcohol, and sedative use disorder. Tr. 299. Later, in

June and October 2014, upon examination, Silva was again

diagnosed by two different consultative psychologists with

alcohol use disorder, anxiolytic use disorder, and opioid use

disorder. Tr. 305, Tr. 325. Furthermore, Silva herself

testified that she used to regularly use Oxycontin, cocaine,

heroin, and Klonopin. Tr. 55. Although she claimed that she

had not done so since January 2014, see Tr. 55, the ALJ was

well-justified in finding “medical evidence of [her] drug

addiction or alcoholism” and proceeding with the DAA evaluation

as she did. See

(a); SSR 13-2P,

, at *10-11 (establishing the existence of DAA).

Moreover, despite Silva’s claim of sustained sobriety,

there is substantial evidence to support the ALJ’s contrary

25 assessment. 8 For example, on February 5, 2014, Angela

DeFabrizio, a treating social worker, spoke with Silva’s

attorney after Silva cancelled a psychotherapy appointment. Tr.

288. Silva’s attorney reported to DeFabrizio that Silva was

“currently drinking every day and may be engaging in cocaine.”

Later that month, on February 21, DeFabrizio reported that

Silva’s probation officer had informed her that Silva had failed

a drug test, testing positive for “opiates and barbiturates.”

Tr. 283, 290. 9 Nevertheless, on March 11, 2014, Silva informed

DeFabrizio that she had been “sober for a week.” Tr. 291.

Similarly, on April 14, 2014, Silva’s counselor at Horizons

Counseling Center reported that Silva had “failed various

alcohol and urine screening due to relapsing,” and opined that

8 Although substantial evidence also supports Silva’s claim that her anxiety became more problematic as her sobriety progressed, see Tr. 343, as well as her claim that she had been sober since January 2014, see Tr. 299, 302, 320, this does not justify a finding of reversible error as long as the ALJ’s materiality determination was supported by substantial evidence. See Benetti v. Barnhart,

(1st Cir. 2006) (per curiam) (“The ALJ's resolution of evidentiary conflicts must be upheld if supported by substantial evidence, even if contrary results might have been tenable also.”); Mooney v. Shalala,

(D. N.H. 1994) (“[T]he possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.”) (citing Consolo v. Fed. Mar. Comm’n,

(1966)). 9 DeFabrizio further reported that Silva had failed to show up for any scheduled “sobriety group” sessions that month. Tr. 282-84, 290. 26 Silva’s “anxiety is likely attribute[able] to her chronic

substance abuse over the years.” Tr. 299. On June 17, 2014

Silva presented to consultative licensed psychologist, Jessica

Stern, and again reported that she had been sober since “the end

of January” 2014. Tr. 302. Stern opined, however, that Silva

was not “forthcoming” regarding her substance abuse issues and

that it was “not clear . . . that she [was] in fact in

remission.” Tr. 304. She further opined that Silva’s abilities

germane to the work setting were impaired by her “substance

abuse problems,” inter alia. Tr. 305. All of these records and

others were reviewed by Dr. Landerman on June 19, 2014, who

rendered an opinion as to Silva’s mental RFC at the time and

concluded that she was “unable to adequately and consistently

sustain” concentration, persistence, and pace, and “unable to

maintain a regular full time work schedule.” Tr. 74. In her

assessment, Dr. Landerman opined that Silva’s DAA could “not be

factored out” given the evidence that she was in fact in

remission. Tr. 75.

Second, the ALJ appropriately conducted the DAA evaluation

to determine the materiality of Silva’s substance abuse to her

initial finding. The ALJ swiftly proceeded to step four of her

second sequential analysis after finding that Silva’s anxiety

and depression persisted as severe impairments regardless of her

substance abuse problems. See Tr. 25. In her non-DAA RFC

27 determination, the ALJ critically modified her prior, all-

inclusive RFC to reflect only moderately impaired functioning

once Silva’s substance abuse was excluded from the analysis.

Tr. 25; see Nickerson v. Colvin,

(equating

the ability to understand and carryout short, simple tasks and

to sustain attention for two-hour periods with a moderate

limitation). In constructing her non-DAA RFC, the ALJ relied

exclusively on medical records from the period in which Silva’s

early remission was medically recognized by Dr. Burnette.

Specifically, the ALJ found that Silva “could sustain

concentration and attention for 2-hours at a time for routine,

familiar tasks,” and “could persist[] at routine, familiar tasks

at a variable, but acceptable pace” (emphasis added). Tr. 25.

This significantly differed from previous, all-inclusive

findings that Silva “[could not] sustain concentration and

attention for even routine, familiar tasks for 2-hours at a

time,” “[could not] maintain a regular work schedule,” and would

be absent “at least two days per month” and “off task at least

15% of the workday.” Tr. 23. Her non-DAA RFC also differed

from the all-inclusive RFC in that it omitted any limitations

pertaining to Silva’s inability to maintain a regular work

schedule or to expect excessive absences. 10

10The rest of the limitations in the non-DAA RFC were also included in the all-inclusive RFC, namely abilities to only (i) 28 At step five, those changes measured the difference, in the

opinion of the testifying VE, between a person who could and

could not perform the representative jobs available for a person

of Silva’s age, education, and work experience. See Tr. 60-61.

As the VE testified, the “15-percent-off-task” and “monthly

absence” limitations would put such a person “beyond the

[relevant] customary tolerances,” and preclude her from

performing those or any other jobs. Tr. 61. Thus, the ALJ’s

determination that Silva would not be disabled if she stopped

the substance use and only had impairments of anxiety and

depression was soundly reached.

Finally, the question then becomes whether the ALJ’s non-

DAA RFC was supported by substantial evidence. See Benelli,

, at *24 (citing Cage,

). I

conclude that it was, particularly when considering Dr.

Landerman’s 2014 opinion. Generally, in configuring a non-DAA

RFC, an ALJ can either draw from medical evidence from a period

of sobriety, or rely on hypothetical, predictive evidence. See,

e.g., Benelli,

, at *23; see also Parra, 481 F.3d

“understand, recall and carry out short, simple instructions,” (ii) “have occasional, brief interactions with the public,” and (iii) “accommodate to routine, familiar changes.” Compare Tr. 25; with Tr. 23 (all-inclusive RFC listing the same). In this respect, both RFCs essentially adopted either of the two mental RFCs of Dr. Landerman, which both reflected only moderate limitations in these areas. See Tr. 87-91. 29 at 748-49; SSR 13-2P,

, at *12. One or the other

is naturally required in order to separate out a claimant’s

remaining functional limitations once substance abuse is a

nonfactor. Here, the ALJ did the former: she adopted an expert

opinion as to Silva’s remaining limitations from a period in

which her substance abuse was in early remission. As discussed,

Dr. Landerman’s second RFC opinion was rendered during a period

in which Silva’s polysubstance abuse was in early remission, see

Tr. 91, i.e. several diagnoses by Dr. Burnette on October 14,

2014. Tr. 320-325. Accepting that evidence, Dr. Landerman

opined that Silva was “not significantly limited” in her

“ability to perform activities within a schedule, maintain

regular attendance, and be punctual within customary

tolerances.” Compare Tr. 90 with Tr. 88 (June 2014, all-

inclusive RFC). She further opined that she was “able to

sustain concentration and attention for two hours for routine

and familiar tasks.” Tr. 90-91. Importantly, this differed

from her previous June 2014 opinions that Silva was “moderately

limited” in both functional areas, and that she was “unable to

maintain a regular full time work schedule” and “unable to

adequately and consistently” sustain concentration, persistence,

and pace. Tr. 88. This earlier, more restrictive RFC from June

2014 considered the effects of Silva’s polysubstance abuse,

whereas the more recent, less restrictive opinion did not.

30 Thus, the ALJ’s determination that if Silva remained sober, she

would require no limitations as to her ability to maintain a

regular work schedule is supported by Dr. Landerman’s opinion.

All other facets of the ALJ’s non-DAA RFC, including Silva’s

ability “to sustain concentration and attention for 2-hours at a

time for routine, familiar tasks,” are plainly supported by Dr.

Landerman’s opinion because they were taken verbatim therefrom.

See Tr. 89-91. Thus, the non-DAA RFC is indeed supported by

substantial evidence, and I find no error. 11

V. CONCLUSION

For the reasons set forth above, I grant the Acting

Commissioner’s motion to affirm (Doc. No. 13), and I deny

11The ALJ also found that Silva’s non-DAA RFC was consistent with the opinions of Dr. Burnette. This conclusion is also supported by substantial evidence, and Dr. Burnette’s opinion only provides further support for the ALJ’s materiality determination. For example, Dr. Burnette’s treatment notes from his October 2014 examination of Silva indicate that “[t]here was absolutely no overt indication that [Silva] was alcohol or drug- intoxicated at the time of [his] evaluation,” and she again reported being sober since January 2014. Tr. 320. He found Silva’s mood to be “humorless and somewhat dysphoric, but not especially anxious,” and although she “described panic like symptoms,” Dr. Burnette did not actually observe any. Tr. 322. He opined that Silva was “able to understand and perform ordinary affairs of life such as providing for her own food budgeting money, housing, and clothing.” Tr. 325. He also found that her anxiety and depression could “probably be better managed after about 6-8 months” with “competent, timely and aggressive treatment.”

31 Silva’s motion to reverse and remand (Doc. No. 10). The clerk

is directed to enter judgment accordingly and close the case.

SO ORDERED.

/s/Paul Barbadoro ____ Paul Barbadoro United States District Judge

August 3, 2018

cc: Terry L. Ollila, Esq. D. Lance Tillinghast, Esq.

32