Alker v. SSA

Alker v. SSA               13-CV-221-JD                  02/20/14
               UNITED STATES DISTRICT COURT FOR THE
                     DISTRICT OF NEW HAMPSHIRE



Steven Brian Alker
     v.                              Civil No. 13-CV-221-JD
                                     Opinion No. 

Carolyn W. Colvin,1
Acting Commissioner,
Social Security Administration


                             O R D E R

     Steven Brian Alker seeks judicial review, pursuant to 

(g), of the decision of the Commissioner of the

Social Security Administration, denying his application for

disability insurance benefits under Title II and supplemental

security income under Title XVI.   Alker contends that the

Administrative Law Judge ("ALU") improperly assessed Alker's

treating physicians' opinions, which led to incorrect findings

that, if Alker stopped abusing alcohol and cocaine, he would not

have an impairment that met or equaled a listed impairment and he

could perform work which existed in significant numbers in the

national economy.    The Acting Commissioner moves to affirm the

decision on the grounds that substantial evidence supports the

ALU's decision.




     1
      Carolyn W. Colvin became the Acting Commissioner on
February 14, 2013, and is substituted automatically as the
defendant pursuant to Federal Rule of Civil Procedure 25(d).
                              Background

     Alker applied for social security disability insurance

benefits and supplemental security income on August 5, 2010,

alleging a disability as of October 7, 2008.2    Alker claimed a

disability due to bipolar disorder, degenerative disc disease,

bulging discs in his lumbar spine at levels L4/L5, depression,

anxiety, panic attacks, insomnia, paranoia, alcohol and cocaine

abuse, cirrhosis, and gout.


A.   Back Pain

     From August of 2010 through Uanuary of 2012, Alker saw

several practitioners for treatment of his back pain, which

resulted from a car accident in the mid-1990s.    Alker saw Dr.

Dean Morris in August and September of 2010 with complaints of

abdominal pain and back pain.    Dr. Morris noted that Alker's back

revealed no abnormality upon inspection, and that Alker had no

kyphosis, scoliosis, posterior tenderness, or pain upon a

straight leg raising test while in the supine position.     In

addition, although Dr. Morris saw Alker for complaints of

physical pain, he noted that Alker had no unusual anxiety or

evidence of depression.




     2
      0n May 24, 2012, Alker wrote the ALU a letter amending his
disability onset date from October 7, 2008, to August 5, 2010.
In the ALU's opinion, he states that Alker's alleged disability
onset date is October 7, 2008.

                                  2
        On November 17, 2010, Dr. Frank Graf diagnosed Alker with

chronic discogenic lumbosacral pain with intermittent radiation

into the left lower extremity with partial radicular pain at

level L5 patterning into the right leg.     Dr. Graf opined at that

time that Alker was impaired in bending, stooping, lifting,

carrying, pushing, and pulling due to orthopedic changes in the

lumbosacral spine.

        On December 9, 2010, state agency reviewing physician. Dr.
Hugh Fairley, assessed Alker's physical residual functional

capacity from his medical records.     Dr. Fairley concluded that

Alker could occasionally lift twenty pounds and frequently lift

ten pounds.     Dr Fairley also opined that Alker could stand or sit

for six hours in an eight-hour workday.     Dr. Fairley found that

Alker "is considered capable of fulltime work."

        Alker had an MRI and an x-ray of his spine on Uanuary 2,

2011.     Both procedures showed spinal stenosis, a disc

degeneration, and a bulging disc.

        Alker saw Dr. Ashton Stanton in Uanuary and March of 2011,

with complaints of lower back pain that radiated down his left

leg, which left his left leg weak and immobile.     Dr. Stanton

noted in Uanuary that Alker was in no acute distress, had no

muscle atrophy in the lumbar spine or lower extremities, had a

well-balanced and coordinated gait, had moderately restricted

range of motion of the lumbar spine upon extension and side-

bending, and had five out of five muscle strength in the lower

extremities.     Dr. Stanton diagnosed Alker with lower back pain

                                   3
caused by a symptomatic disc bulge at level L4-5.     In Uanuary,

Alker was prescribed a course of physical therapy focusing on

neutral spine core strengthening with a home exercise program.

In March, Dr. Stanton gave the same diagnosis and prescription,

instructed Alker to continue with physical therapy and home

exercise, and told Alker to begin an independent routine of

aerobic exercise, including gentle distance walking on a

treadmill.
        Alker attended several physical therapy sessions for his

back at Exeter Hospital in February and March of 2011.        During

his first visit, Alker stated that his pain was between a four

and ten on a ten-point scale, and that he could only sit for ten

minutes without disturbance and could not stand for any length of

time.     He stated that one of his goals was to sleep for at least

four hours without waking due to pain.     Upon discharge from the

program on March 9, 2011, Alker reported that his pain was

between a zero and two on a ten-point scale, that he could sleep

for four hours, stand for one hour, and sit for one to two hours

without disruption.     Alker was told to follow up with a physician

for further evaluation and to continue with an independent home

exercise program.

        On April 26, 2011, Dr. Graf completed a Medical Source

Statement of Ability to do Work-Related Activities form.       Dr.

Graf opined that Alker was limited to lifting or carrying up to

ten pounds occasionally.     Alker had sit, stand, and walk

limitations of twenty, thirty, and twenty minutes, respectively.

                                   4
He could sit for eighty minutes in an eight-hour day, stand for
120 minutes, and walk for eighty minutes.    Dr. Graf opined that
Alker could not shop, walk a block, use public transportation,
prepare meals, or feed himself.    He further opined that Alker
would need to frequently miss work due to his pain, and that his
ability to maintain attention and concentration on work tasks
would be compromised by pain.

     On December 12, 2011, Alker saw Hugh Cochran, a certified
registered nurse, at Paincare Centers, for complaints of pain in
his left leg and back.   Cochran found that Alker was in no acute
distress, had a normal gait, and had a normal range of motion and
strength in the extremities with no joint enlargement or
tenderness.   Cochran diagnosed Alker with a muscle spasm, facet
joint arthopathy, lumbago, and lumbar radiculopathy.

     On December 14, 2011, Alker received an epidural steroid
injection in the lumbar spine.    Alker saw Cochran on December 23,
2011, who gave the same diagnosis as he did on December 14.

     On Uanuary 11, 2012, Alker saw Dr. Graf, who diagnosed Alker
with lumbosacral pain with left lower extremity radiculopathy.
Dr. Graf opined that Alker's pain was severe, that pain caused
him to need to alter his daily activities, and that pain was
present with minimal activity.    Dr. Graf also found that Alker's
pain was enhanced by stress and compromised his ability to deal
with work stresses, required him to miss work and take frequent
rest periods, and frequently compromised his ability to maintain
attention and concentration on work tasks throughout an eight-

                                  5
hour day.    Dr. Graf stated that Alker's medications frequently

compromised his ability to maintain attention and concentration,

that he was not capable of engaging in any type of employment on

a sustained, regular, and competitive basis for eight hours a

day, forty hours per week, and that he was not capable of

engaging in part-time employment on a sustained and regular

basis.   Dr. Graf also stated that Alker's limitations had existed

since October 7, 2008.


B.   Mental Health and Substance Abuse

     Alker began seeking treatment for complaints of anxiety,
depression, paranoia, hallucinations, and alcohol and cocaine
abuse in Uuly of 2010.   On Uuly 28, 2010, Alker was seen at
Seacoast Mental Health Center ("SMHC"), seeking assistance in
staying sober because he had recently used alcohol and cocaine.
Later that day, Alker was seen at Exeter Hospital for complaints
of anxiety, depression, paranoia, and visual hallucinations.

     On September 8, 2010, Alker was seen at Exeter Hospital for
complaints of suicidal thoughts and a possible overdose of drugs
and alcohol.   Alker also complained of severe feelings of
withdrawal, mood swings, anxiety, and depression.    He was
diagnosed with depression and polysubstance abuse, and was
instructed to avoid alcohol and receive outpatient treatment for
his abuse.

     On October 14, 2010, Alker saw Tracie Warner, a mental
health social worker at SMHC, for an initial evaluation.      Alker

                                  6
was diagnosed with a mood disorder, alcohol dependence in early-

partial remission, cocaine dependence in early-full remission,

and a note to rule out psychotic disorder.   Warner prescribed a

course of individual psychotherapy sessions.    From October of

2010 though March of 2012, Alker attended psychotherapy sessions

with Warner several times a month.

     During Alker's sessions in October through December of 2010,

Warner noted that Alker learned how to identify his symptoms and
appeared committed to his recovery.   At that time, Alker

experienced anxiety, depression, and hallucinations, and

occasionally blacked out and suffered panic attacks.    Beginning

at the end of November of 2010, Warner noted that Alker appeared

"stable" or "reasonably stable" during each session and

instructed him to continue with his current treatment plan.

     On October 19, 2010, Dr. Sandra Vallery, a clinical

psychologist, performed a consultative examination of Alker, who

complained of bipolar disorder, depression, anxiety, and

substance abuse.   Alker told Dr. Vallery that he had been treated

for an alcohol and valium overdose a month prior to the exam, and

that he drinks to alleviate his anxiety and depression.     Alker

also stated that he started drinking when he was thirteen years

old and started abusing cocaine when he was seventeen years old.

     Upon exam, Alker had an anxious mood and a constricted

affect, and he reported audio and visual hallucinations,

paranoia, and passive suicidal ideations.    Dr. Vallery noted that

Alker had fair insight, fair to good judgment, and no cognitive

                                 7
impairment.    Dr. Vallery conducted a Folstein Mini Mental Status

Examination on which Alker scored a 28 out of 30.    Dr. Vallery

stated that Alker was unable to tolerate stresses common to the

work environment or maintain attendance.    She further stated that

Alker would have difficulty with short and simple instructions.

Alker was diagnosed with alcohol abuse, panic disorder with

agoraphobia, major depression, social phobia, and cirrhosis of

the liver.    Dr. Vallery recommended psychotropic medications for
anxiety and depression, therapy, and that Alker continue

attending Alcoholic Anonymous ("AA") meetings.    She did not

provide an opinion regarding the impact of substance abuse on

Alker's disability.

     On October 26, 2010, Dr. Patricia Salt, a state agency

psychologist, reviewed the record and completed a Psychiatric

Review Technique form.    Dr. Salt noted that Alker had "depressive

syndrome," an anxiety-related disorder, severe panic attacks,

thoughts of suicide, hallucinations, and paranoid thinking.     Dr.

Salt also opined that if Alker worked in a setting that did not

require regular interaction with groups of people, he could

"perform activities within a schedule and maintain regular

attendance," and work a normal forty-hour workweek without

interruptions.

      On November 22, 2010, Alker saw Dr. Uohn Miller,

complaining of chronic pain, anxiety, depression, panic attacks,

poor memory, auditory and visual hallucinations, and paranoia.

Alker was cooperative, alert, and oriented, with a normal gait,

                                  8
no abnormal movements, symmetrical and normal motor strength,
good attention, reasonable insight, impaired judgment, sad
affect, poor long-term memory, logical thought processes, selfdescribed hallucinations and paranoia, and no suicidal or
homicidal ideation.    Alker was diagnosed with mood disorder,
alcohol dependence, and cocaine dependence in full-sustained
remission.

     Alker saw Dr. Miller again on December 13, 2010, and Uanuary
3, 2011.     During both exams. Dr. Miller noted that Alker was
cooperative, alert, and oriented; had good attention, limited
insight, and adequate judgment; was anxious and depressed; and
had a congruent affect, grossly intact cognition, logical thought
processes, no evidence of any psychoses, and no suicidal or
homicidal ideation.

     Alker was prescribed several medications throughout 2010,
2011, and 2012.    He was prescribed Zoloft, which helped him with
his anxiety and depression.     He was also prescribed Neurontin,
which, at the proper dosage, helped to relieve his anxiety, but
also sometimes caused significant sedation and weight gain.3

     From Uanuary through the middle of April of 2011, Warner's
treatment notes from Alker's psychotherapy sessions indicate that
Alker was doing well and largely feeling much better than he did



     3
      Alker was also prescribed Trilafon, which he took
throughout 2011. The Uoint Statement of Material Facts does not
state why Trilafon was prescribed or what effect it had on Alker.


                                   9
when he first started his sessions with her back in October of
2010.    Although Alker reported some anxiety, Warner often noted
improvement and commented after each session that Alker was in a
reasonably stable mood.    After each session, Warner instructed
Alker to continue with his current treatment plan.

        During his sessions with Warner on April 21, 2011, and April
28, 2011, Alker reported visual and auditory hallucinations, some
of which were "disturbing," and continued anxiety attacks.     His
anxiety and hallucinations, however, decreased in May and Uune of

2011.    Alker told Warner on May 20, 2011, that he had a relapse
with alcohol, but immediately began going to AA meetings.     Warner
continued to note, despite Alker's hallucinations and anxiety,
that he was in a reasonably stable mood, and she instructed him
to continue with his current treatment plan.

        On Uune 20, 2011, Dr. Miller and Warner completed a Medical
Source Statement of Ability to do Work-Related Activities form.
They indicated on the form that Alker had marked to extreme
issues in understanding and memory, sustained concentration and
persistence, and social interaction.     They also opined that Alker
had extreme issues in adaptation, including with the ability to
respond appropriately to changes in the work setting, the ability
to make realistic goals, and the ability to make plans
independently of others.    Warner further stated that since August
21, 2008, Alker had extreme limitations in his ability to
remember locations and work-like procedures, carry out detailed
instructions, maintain attention and concentration for extended

                                  10
period, perform activities within a schedule, and maintain

regular attendance.

     From Uuly through October of 2011, Alker often reported

anxiety and hallucinations during his psychotherapy sessions with

Warner.   In September, Alker reported that a change in medication

helped to significantly reduce the frequency of his

hallucinations.    In October, Alker expressed concern about the

cancellation of his state benefits, but was attempting to remain
positive and handle stress without drinking alcohol.    After each

session, Warner noted that Alker was reasonably stable in mood

and instructed him to continue with his current treatment plan.

     In November of 2011, Dr. Miller referred Alker to SMHC for

cognitive evaluation.    On November 10, 2011, Dr. Karen Pearson,

Licensed Psychologist Supervisor, and Michael Valenti, a

Psychology Intern, of SMHC, provided a Psychological Testing

Report ("PTR") based on their assessment of Alker.     During the

three hour assessment, Valenti described Alker as cooperative,

engaged, and focused.   Valenti also described Alker as exhibiting

a dysphoric mood with slightly restricted affect.

     The PTR showed that Alker had cognitive impairment

sufficient in severity to limit academic, occupational, and

social pursuits.   Among other examinations. Dr. Pearson

administered the Wechsler Adult Intelligence Scale Exam - Fourth

Edition ("WAIS-IV").    On the WAIS-IV, Alker scored in the bottom

5% on the Perceptual Reasoning Index, which showed limited

cognitive flexibility, abstract problem solving, and pattern

                                 11
recognition.   He also scored in the bottom 13% in Working Memory

Index, and in the bottom 14% in Processing Speed Index.        Dr.

Pearson opined that Alker suffered from post traumatic stress

disorder.

     From November of 2011 through Uanuary of 2012, Alker

generally reported during his psychotherapy sessions that,

although he continued to experience anxiety about being in public

places and had hallucinations, he was doing reasonably well and
attending AA meetings.   He reported going to the gym to work out

often in an attempt to deal with stress and lose weight, but he

reported pain from his workouts.     In December of 2011, Alker told

Dr. Miller and Warner that he felt he was gaining weight because

of Neurontin, and so stopped taking the medication.     In Uanuary

of 2012, Alker stated that his symptoms were returning and

getting worse after he stopped taking Neurontin, and that he was

experiencing anxiety and was constantly stressed.     After each

psychotherapy session, Warner noted that Alker was stable and

instructed him to continue with his current treatment plan.

     From February through March of 2012, Alker reported to

Warner that his current dosage of Neurontin, which he began

taking again but at a lower dosage than in 2011, was working well

and helping to reduce his anxiety and hallucinations.     In

February, he reported increased anxiety about his Social Security

disability appeal, and expressed regret about being unable to go

to the gym because of financial concerns and pain in his back.



                                12
Warner noted after each session that Alker was stable and

instructed him to continue with his current treatment plan.

     On May 12, 2012, Dr. Miller opined that "Mr. Alker has been

disabled by his severe anxiety, depression, personality

dysfunction, and cognitive limitations since well before he began

abusing alcohol at the age of 13."     Dr. Miller also noted that

"[d]espite [Alker's] abstinence from both the alcohol and

cocaine, he continues with significant symptoms of anxiety and
depression, which I continue to treat with pharmacotheraphy, and

which continue to be quite disabling for him."     He further opined

that Alker's depression and anxiety pre-dated his substance

dependence.


C.   Procedural Background

     After his application was denied on initial review, Alker

requested a hearing before an ALU which was held on May 22, 2012.

Alker was represented by counsel and testified at the hearing.

In addition, an impartial medical expert. Dr. Stuart Gitlow, and

a vocational expert, Ruth Baruch, testified.

     The ALU issued a decision on Uune 15, 2012, denying

benefits.     The ALU found that if Alker stopped his substance

abuse, he would not have an impairment or combination of

impairments that met or equaled a listed impairment.     He also

found that if Alker stopped his substance abuse, he would have

the residual functional capacity to perform work that existed in

significant numbers in the national economy.

                                  13
     As a result, the ALU concluded that Alker was not disabled.
The Appeals Council denied Alker's request for review on December
11, 2012, making the ALU's decision the final decision of the
Acting Commissioner.



                        Standard of Review

     In reviewing the final decision of the Commissioner in a

social security case, the court "is limited to determining
whether the ALU deployed the proper legal standards and found

facts upon the proper quantum of evidence."   Nguyen v. Chater,

 (1st Cir. 1999); accord Seavey v. Barnhart, 

 (1st Cir. 2001).   The court defers to the ALU's factual

findings as long as they are supported by substantial evidence.

§ 405(g).   "Substantial evidence is more than a scintilla.     It

means such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion."   Astralis Condo. Ass'n v.

Sec'y Dep't of Housing & Urban Dev., 

 (1st Cir.

2010).

     Disability, for purposes of social security benefits, is
"the inability to do 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




                                14
months."    

(a).4   The ALU follows a five-step

sequential analysis for determining whether a claimant is

disabled.    

 at § 404.1520.   The claimant bears the burden,

through the first four steps, of proving that his impairments

preclude him from working.     Freeman v. Barnhart, 

 (1st Cir. 2001).    At the fifth step, the Commissioner

determines whether other work that the claimant can do, despite

his impairments, exists in significant numbers in the national
economy and must produce substantial evidence to support that

finding.    Seavey, 

.


                             Discussion

     The ALU concluded that Alker would not be disabled if he

stopped his substance abuse.      Specifically, the ALU found at Step

Three that without engaging in substance abuse, Alker did not

have an impairment or combination of impairments that meets or

medically equals a listed impairment.      The ALU also found at Step

Five that if Alker stopped his substance abuse, he could perform

work that existed in significant numbers in the national economy.

Alker contends that these findings are not supported by



     4
      The Social Security Administration promulgated regulations
governing eligibility for disability insurance benefits at Part
404 and for supplemental security income at Part 416. Because
the regulations are substantially the same, the court will cite
only to the disability insurance benefits regulations. See
McDonald v. Sec'y of Health & Human Servs., 

, 1120
n.l (1st Cir. 1986) .

                                   15
substantial evidence, and that the ALU improperly assessed

Alker's treating physicians' opinions.

     If the ALU finds a claimant is disabled and there is medical

evidence of drug addiction or alcoholism, the ALU must determine

whether the drug addiction or alcoholism is a contributing factor

material to the determination of disability.    

.   The central issue in determining the materiality of

drug addiction or alcoholism is whether the ALU would find the

claimant disabled even if he or she stopped using drugs or

alcohol.   

 at (b)(1).   If the claimant's drug addiction or

alcoholism is a contributing factor material to the determination

of the claimant's disability, the claimant is ineligible for

supplemental security income and disability benefits.     See Grogan

v. Barnhart, 

 (10th Cir. 2005); Randall v.

Astrue, 

, at *1 (D. Mass. Feb. 15, 2011).       In

determining that a claimant's alcoholism or drug addiction was a

contributing factor material to the determination of disability,

the ALU must identify some medical evidence supporting the

conclusion that a claimant no longer would be disabled if he or

she stopped drinking or taking drugs.    See Sklenar v. Barnhart,

 (W.D. Pa. 2002).


A.   Step Three

     At Step Three of the sequential analysis, the ALU

compares the medical evidence of the claimant's impairment "to a


                                 16
list of impairments presumed severe enough to preclude any

gainful work."    Sullivan v. Zebley, 

 (1990).

"If the claimant's impairment matches or is ,equal' to one of the

listed impairments, he qualifies for benefits without further

inquiry."     Id.; § 404.1520(a)(4)(iii).   If not, the ALU continues

on to consider Step Four.

     The ALU found at Step Two that Alker had severe impairments

due to degenerative disc disease, obesity, cirrhosis, mood

disorder not otherwise specified, alcohol dependence, and cocaine

dependence.    At Step Three, the ALU found that Alker's

impairments, including the substance abuse disorders, met

Listings 12.04 (Affective Disorders) and 12.09 (Substance

Addiction Disorder) of 20 C.F.R. Part 404, Subpart P, Appendix 1.

The ALU also found, however, that if Alker stopped the substance

abuse, his impairments did not meet any of the listed

impairments, including Listing 12.04 and 12.09.

    Alker contends that he would continue to meet Listings 12.04

and 12.09 absent his substance abuse and that the ALU's contrary

finding is not supported by substantial evidence.5     He argues

that the ALU should have given the opinion of Dr. Miller, a

treating source, controlling weight, as it was supported by Dr.



     5
      Although Alker claimed disability due to physical ailments,
such as degenerative disc disease and bulging discs in his lumbar
spine, he does not challenge the ALU's findings that Alker's
physical impairments did not meet or medically equal a listed
impairment.

                                  17
Miller's treatment notes and other evidence in the record.    Alker

also argues that the ALU gave too much weight to Dr. Gitlow's

opinion.    In addition, Alker contends that the medical record as

a whole supports a finding that he had a listed impairment absent

substance abuse, and that the ALU misinterpreted test results and

medical records from several practitioners.


     1.     Dr. Miller

    Alker argues that "Dr. Miller's opinion is clearly entitled

to controlling weight as a treating source opinion with respect

to the nature and severity of [Alker's] impairments.    His opinion

was well supported by medically acceptable clinical and

laboratory diagnostic techniques . . . .   Both his medical records

and records from [SMHC] provide support, documentation and

correlation for his opinion and psychiatric evaluation."   PI.

Mot. at 3-4.

     The ALU attributes weight to a medical opinion based on the

nature of the relationship between the medical source and the

claimant, the extent to which the opinion includes supporting
information, the consistency of the opinion with the record as a

whole, the specialization of the source, and other factors,

including the source's understanding of the administrative

process and the source's familiarity with the claimant's record.

(d); see also SSR 96-2p, 

 (Uuly

2, 1996).    "[A] treating source's opinion on the question of the


                                 18
severity of an impairment will be given controlling weight so

long as it ,is well-supported by medically acceptable clinical

and laboratory diagnostic techniques and is not inconsistent with

the other substantial evidence in [the] record.'"   Ormon v.

Astrue, 

, at *4 (1st Cir. Sept. 7, 2012) (quoting

§ 404.1527(d) (2) ) .

     Dr. Miller concluded that Alker was "extremely limited in

nearly every functional category."   The ALU gave Dr. Miller's

opinion limited weight because it was inconsistent with both Dr.

Miller's own treatment notes and Warner's treatment notes.     The

ALU cited Dr. Miller's treatment notes which repeatedly showed

normal mental status examinations, which were inconsistent with

tremendous limitations in mental functioning.    The ALU also found

that Dr. Miller's opinion was not credible because he opined that

Alker has been disabled since he was thirteen years old, even

though Dr. Miller's treatment notes do not indicate that he

reviewed any medical records concerning Alker's mental health

prior to 2010.

     The ALU also found that Dr. Miller's opinion was

inconsistent with the observations of other clinicians treating

Alker for physical and mental illnesses, such as Dr. Stanton and

Dr. Morris, both of whom noted normal results.    The ALU noted

that "[i]t is unlikely that these treating sources, particularly

[Alker's] primary care physician Dr. Morris, would fail to detect




                               19
signs of anxiety or depression if [Alker's] symptoms were as

severe as Dr. Miller . . . allege[s]."

     The ALU also addressed Dr. Miller's opinion that Alker's

mental impairments are not materially affected by his substance

abuse and that his symptoms are disabling regardless of the

substance abuse.   The ALU gave this opinion little weight because

Alker's mental status examinations had normal results and because

the improvement in Alker's condition during periods of sobriety

noted by Dr. Miller and Warner, was inconsistent with that

opinion.6   The ALU noted, for example, that when Alker had a

prolonged period of abstinence, he reported significantly fewer,

shorter, and less distracting hallucination episodes.7

     The ALU appropriately found that Dr. Miller's opinion was

not entitled to controlling or significant weight because the

opinion lacked support from the medical record and was not

consistent with his own medical notes.   The ALU properly

explained the basis for his decision not to give controlling




     6
      Warner, a mental health social worker, is not an acceptable
medical source whose opinion can establish a medically
determinable impairment. 

(a).
     7
      Alker suggests that the reduction in his hallucinations
could have been the result of medication and not the result of
ending his substance abuse. Even if that were the case, however,
"[i]mpairments that can be controlled with medication are not
disabling." Phelps v. Astrue, 

, at *8 n.7 (D.N.H.
Uuly 7, 2011) (citing Schultz v. Astrue, 

 (8th
Cir. 2007)).

                                20
weight to Dr. Miller's opinions, which complies with his

obligations under the social security regulations.


     2.   Dr. Gitlow

    Alker argues that the opinion of Dr. Gitlow, the independent

medical examiner, was "not entitled to great weight because it is

not supported by the record as a whole."     PI. Mot. at 15.    Alker

notes that Dr. Gitlow does not have a treating relationship with
Alker and argues that his criticisms of Dr. Miller's and Warner's

opinions are unfounded.

    An ALU may obtain an opinion from an independent medical

expert about the nature and severity of the claimant's

impairments.   See Keating v. Sec'y of Health & Human Servs., 

 (1st Cir. 1988); Chapin v. Astrue, 

, at *3-*4 (D.N.H. Sept. 28, 2012).     In appropriate

circumstances, the opinions of a medical expert retained by the

Commissioner may be given greater weight than other opinions.

Keating, 

 n.l.    The ALU uses the same evaluation

process that is used for all medical opinions to decide the
weight of opinions he has commissioned.    § 404.1527(e) (2) (iii).

     The ALU gave great weight to the opinion of Dr. Gitlow, who

testified that Alker's substance abuse was material to the

severity of his impairments.    The ALU found that "Dr. Gitlow's

testimony was particularly persuasive because he identified

specific instances where Dr. Miller's mental status examinations


                                 21
of [Alker], during periods of prolonged abstinence, showed

relatively normal mental functioning."     For example. Dr. Gitlow

testified that the medical record shows that after May of 2011,

the month when Alker stopped his substance abuse,8 Alker's

"mental status exams are normal [and] it does not appear that

there would be any significant contribution from his psychiatric

illness in terms of functional impairment."    Admin. Rec. at 55-

56.   Dr. Gitlow cited several of Dr. Miller's treatment records,
including those dated September 28, 2011, December 12, 2011, and

April of 2012, which all show that Alker's mood symptoms were

well treated and show normal results on mental status

examinations.    Id. at 57.   In addition. Dr. Gitlow noted that Dr.

Miller's exams during Alker's brief periods of sobriety prior to

May of 2011, show that Alker's symptoms improved significantly

without substance abuse and were consistent with those after May

of 2011.   Id.

      The ALU reasonably found that Dr. Gitlow's opinion was

consistent with the record as a whole.     Dr. Gitlow is an expert

in the field of psychiatry and the subspecialty of addiction



      8
      The month when Alker stopped engaging in substance abuse is
based on the testimony of Dr. Gitlow, who cited several medical
records in support of that assertion. Alker does not contest
that finding, although he refers to one of Dr. Miller's records
noting that Alker had been abstinent from cocaine since November
of 2010 and abstinent from alcohol since about March of 2011.
See PI. Mot. at 4. If Alker intended to argue that the ALU erred
in finding that Alker stopped his substance abuse in May of 2011,
that argument was not sufficiently developed.

                                  22
disorder, and he gave a detailed explanation for his opinion and

examined the evidence as a whole.      Therefore, Dr. Gitlow's

opinion could reasonably be given great weight, and the ALU did

not err in according it that weight.


     3.     Other Evidence

     The ALU found that, taken as a whole, the medical evidence

supported a finding that Alker did not have a listed impairment
absent his substance abuse.    Alker contends that the ALU either

ignored or mischaracterized several medical records.      For

example, Alker argues that the ALU misunderstood the PTR authored

by Dr. Pearson and Valenti.    Alker contends that the results of

the WAIS-IV and Dr. Pearson's comments in the PTR support a

finding that Alker has severe functional limitations.      Dr.

Gitlow, however, testified that the PTR supported his conclusion

that Alker was not disabled absent substance abuse.     Admin. Rec.

at 58.    Dr. Gitlow conceded that Dr. Pearson noted that the test

showed low functioning in terms of cognitive skills and other

symptoms.    Id.   Dr. Gitlow noted, however, that Dr. Pearson's
opinion was that Alker's symptoms do not impair his ability to

function.    Id.   The ALU explained that the PTR indicated that

Alker has intellectual deficiencies, but reasoned that the

results of the testing, when considered in combination with the

rest of the record evidence, were consistent with Alker's ability

to perform simple routine repetitive work.     Alker does not point


                                  23
to anything in the record to show that the results of the WAIS-

IV, or Dr. Pearson's opinion, are inconsistent with the ALU's

findings.

     Alker also criticizes the ALU's opinion because it is

inconsistent Dr. Vallery's opinion in October of 2010 that Alker

could not tolerate stresses in the work environment.    The ALU

addressed Dr. Vallery's opinion, and stated that he gave it some

weight, but noted that the examination took place when Alker was

abusing substances.   Therefore, the ALU determined that Dr.

Vallery's opinion was not particularly relevant to determining

whether Alker was disabled absent substance abuse.

     Alker further argues that he continued to have

hallucinations even when he was sober, which he contends

undermines the ALU's finding that he would not be disabled absent

substance abuse.   The ALU, however, did not state that Alker's

hallucinations disappeared when he was sober, but rather only

that they were less frequent and shorter in duration.   Dr.

Miller's and Warner's treatment notes support that assertion.9

     The power to resolve conflicts in the evidence lies with the

ALU, not with the doctors or the courts, see Quintana v. Comm'r



     9
      Alker appears to argue that Dr. Graf's statement in the
Medical Source Statement of Ability to do Work-Related Activities
form that Alker had "psychological problems for entire life"
should have been given great weight. Dr. Graf's assessment
addressed Alker's back pain and he is an orthopedist. Admin.
Rec. at 577. Therefore, the ALU did not err in failing to
address Dr. Graf's comment.

                                24
of Social S e c , 

 (1st Cir. 2004), and he

is responsible for making the ultimate determination on whether

Alker is disabled, § 404.1527(d); see also Pariseau v. Astrue,

, at *4 (D.R.I. Uune 13, 2008) (citing authority).

Taking into account all of the evidence in the record, the ALU's

opinion at Step Three is supported by substantial evidence.      See

Irlanda Ortiz v. Sec'y of Health & Human Servs., 

 (1st Cir. 19991) (per curiam) (If the substantial evidence

standard is met, factual findings are conclusive even if the

record "arguably could support a different conclusion.").


B.   Step Five

     At Step Five, the ALU bears the burden of showing that there

are jobs that the claimant can do despite his impairments.

Seavey, 27 6 F.3d at 5.   The ALU found at Step Five that if Alker

stopped his substance abuse, there would be a significant number

of jobs in the national economy that Alker could perform and,

therefore, he was not disabled.    Alker contends that the ALU

erred at Step Five because that determination was based on an
erroneous residual functional capacity assessment.

     A residual functional capacity assessment determines the

most a person can do in a work setting despite his limitations

caused by impairments.    

(a)(1).   The

Commissioner's residual functional capacity assessment is

reviewed to determine whether it is supported by substantial


                                  25
evidence.     Irlanda Ortiz, 

; Pacensa v. Astrue, 

 (D. Mass. 2012).


     1.     Mental Limitations

     The ALJ found that, absent substance abuse, Alker's mental

impairments did not preclude him from being able to maintain

focus on simple tasks or preclude him from being able to perform

work that existed in significant numbers in the national economy.
Alker's arguments concerning the ALJ's determination of the

severity of Alker's mental impairments are addressed above.       The

ALJ's opinion in that regard is supported by substantial

evidence.



     2.     Physical Limitations

     With regard to the effect of Alker's back pain, Alker argues

that Dr. Graf's opinion was entitled to great weight, as he had

examined Alker on three occasions and supported his opinion with

medical findings.     The ALJ acknowledged these facts, as well as

Dr. Graf's status a consultative examiner for the Social Security
Administration.     The ALJ gave Dr. Graf's opinion limited weight,

however, because it was inconsistent with Dr. Graf's own notes in

the record.    For example, the ALJ noted that Dr. Graf's first

examination, which was conducted when he was a consultative

examiner for the Social Security Administration, provided a

cursory opinion of Alker's limitations.    When Dr. Graf was


                                   26
retained by Alker, however. Dr. Graf provided a much more

detailed assessment of Alker's limitations.   The ALJ also noted

that Dr. Graf opined that Alker had severe physical limitations

since 1993, even though he did not examine Alker until 2010,

Alker alleged a disability onset date in 2008, and Alker had

worked as a landscaper after 1993.

     The ALJ also noted that Dr. Graf's opinion was inconsistent

with other record evidence, such as the opinions of Dr. Stanton

and Dr. Morris, both of whose examinations were relatively

normal.   The ALJ also cited the opinions of Dr. Fairley and

Cochran, neither of whom concluded that Alker had the severe

physical limitations that Dr. Graf found.

     In addition, the ALJ noted that Dr. Graf's opinions were

contradicted by Alker's own statements.   Alker reported

significant improvement after going to physical therapy, such

that he had limited pain and far fewer limitations after only a

few sessions.   In addition, Alker went to the gym frequently, and

engaged in several daily activities which were inconsistent with

Graf's findings of severe limitations, such as walking, shopping,

and doing household chores.

     Alker disputes the ALJ's findings concerning Alker's

exertional limitations.   The record, however, supports the ALJ's

summary of the evidence and the ALJ's residual functional

capacity assessment, which requires that it be affirmed.     See

Ortiz v. Sec'y of Health & Human Servs., 

 (1st


                                27
Cir. 1991); Evangelista v. Sec'y of Health & Human Servs., 

 (1st Cir. 1987).


                            Conclusion

      For the foregoing reasons, the plaintiff's motion to reverse

the Commissioner's decision (document no. 10) is denied.     The

Commissioner's motion to affirm (document no. 14) is granted.

      The clerk of court shall enter judgment accordingly and
close the case.

      SO ORDERED.



                                      \s[£i^epn A. DiClerico, Jr. ^
                                      United States District Judge
February 20, 2014

cc:   Stephan Patrick Parks, Esq.
      Robert J. Rabuck, Esq.




                                 28