UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Dean A. Poirier
v. Civil No. 14-cv-242-LM
Opinion No. 2015 DNH 166
Carolyn W. Colvin, Acting
Commissioner, Social
Security Administration
O R D E R
Pursuant to 42 U.S.C. § 405(g), Dean Poirier moves to
reverse the Acting Commissioner’s decision to deny his
application for Social Security disability insurance benefits,
or DIB, under Title II of the Social Security Act,
42 U.S.C. §
423, and for supplemental security income, or SSI, under Title
XVI,
42 U.S.C. § 1382. The Acting Commissioner, in turn, moves
for an order affirming her decision. For the reasons that
follow, the decision of the Acting Commissioner, as announced by
the Administrative Law Judge (“ALJ”) is affirmed.
I. Standard of Review
The applicable standard of review in this case provides, in
pertinent part:
The [district] court shall have power 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. The findings of
the Commissioner of Social Security as to any fact, if
supported by substantial evidence, shall be conclusive
. . . .
42 U.S.C. § 405(g) (setting out the standard of review for DIB
decisions); see also
42 U.S.C. § 1383(c)(3) (establishing
§ 405(g) as the standard of review for SSI decisions). However,
the court “must uphold a denial of social security . . .
benefits unless ‘the [Acting Commissioner] has committed a legal
or factual error in evaluating a particular claim.’” Manso-
Pizarro v. Sec’y of HHS,
76 F.3d 15, 16 (1st Cir. 1996) (quoting
Sullivan v. Hudson,
490 U.S. 877, 885 (1989)).
As for the statutory requirement that the Acting
Commissioner’s findings of fact be supported by substantial
evidence, “[t]he substantial evidence test applies not only to
findings of basic evidentiary facts, but also to inferences and
conclusions drawn from such facts.” Alexandrou v. Sullivan, 764
F. Supp. 916, 917-18 (S.D.N.Y. 1991) (citing Levine v. Gardner,
360 F.2d 727, 730 (2d Cir. 1966)). In turn, “[s]ubstantial
evidence is ‘more than [a] mere scintilla. It means such
relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.’” Currier v. Sec’y of HEW,
612 F.2d
594, 597 (1st Cir. 1980) (quoting Richardson v. Perales,
402
U.S. 389, 401 (1971)). But, “[i]t is the responsibility of the
[Acting Commissioner] to determine issues of credibility and to
2
draw inferences from the record evidence. Indeed, the
resolution of conflicts in the evidence is for the [Acting
Commissioner], not the courts.” Irlanda Ortiz v. Sec’y of HHS,
955 F.2d 765, 769 (1st Cir. 1991) (citations omitted).
Moreover, the court “must uphold the [Acting Commissioner’s]
conclusion, even if the record arguably could justify a
different conclusion, so long as it is supported by substantial
evidence.” Tsarelka v. Sec’y of HHS,
842 F.2d 529, 535 (1st
Cir. 1988). Finally, when determining whether a decision of the
Acting Commissioner is supported by substantial evidence, the
court must “review[] the evidence in the record as a whole.”
Irlanda Ortiz,
955 F.2d at 769 (quoting Rodriguez v. Sec’y of
HHS,
647 F.2d 218, 222 (1st Cir. 1981)).
II. Background
The parties have submitted a Joint Statement of Material
Facts, document no. 19. That statement is part of the court’s
record and will be summarized here, rather than repeated in
full.
Much of the medical record in this case pertains to
treatment Poirier has received for an injury to his left knee.
However, he also has a history of complaints concerning back
pain. In November of 2010, an MRI showed a small disc bulge at
L5-S1 with no nerve root impingement and no spinal stenosis. It
3
would appear that treatment for Poirier’s back condition has
been limited to non-narcotic medication and, perhaps, some
physical therapy.
The record includes two Disability Determination
Explanation (“DDE”) forms prepared by the Social Security
Administration (“SSA”): one pertaining to Poirier’s claim for
disability insurance benefits; and the other pertaining to his
claim for supplemental security income. The SSA disability
adjudicator who completed those forms indicated that no
consultative examination was required, and none was ordered.
See Administrative Transcript (hereinafter “Tr.”) 58, 67. The
DDE forms also report the results of an assessment of Poirier’s
physical residual functional capacity (“RFC”)1 completed by Dr.
Burton Nault, a state-agency medical consultant. Among other
things, Dr. Nault opined that Poirier could sit, with normal
breaks, for a total of about six hours in an eight-hour workday.
See Tr. 60, 69. Dr. Nault’s opinion is the only opinion on
Poirier’s physical RFC in the record; Poirier did not submit a
statement from a treating or examining source concerning his
ability to perform work-related activities.
1 “Residual functional capacity” is a term of art that means
“the most [a claimant] can still do despite [his] limitations.”
20 C.F.R. §§ 404.1545(a) & 416.945(a).
4
Poirier received a hearing before an ALJ. He represented
himself. The transcript of Poirier’s hearing demonstrates that
he neither called any witnesses nor asked the ALJ, on the
record, whether he could do so. In an affidavit he submitted in
support of his motion for a remand pursuant to sentence six of
42 U.S.C. § 405(g), Poirier described two brief conversations he
had concerning potential witnesses, one with an SSA employee
outside the hearing room, and one with the ALJ, inside the
hearing room, but before the hearing went on the record. See
Order (doc. no. 14) 2.
After the hearing, the ALJ issued a decision that includes
the following relevant findings of fact and conclusions of law:
3. The claimant has the following severe impairments:
degenerative disc disease (lumbar spine); degenerative
joint disease (left knee); depression; and anxiety (20
CFR 404.1520(c) and 416.920(c)).
. . . .
4. The claimant does not have an impairment or
combination of impairments that meets or medically
equals the severity of one of the listed impairments
in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925
and 416.926).
. . . .
5. After careful consideration of the entire record,
I find that the claimant has the residual functional
capacity to perform sedentary work as defined in 20
CFR 404.1567(a) and 416.967(a). He is able to
occasionally balance, stoop, kneel, crouch and crawl,
and must avoid all ladders, ropes and scaffolds. He
5
is able to perform simple unskilled work. He is able
to maintain attention and concentration for two-hour
increments throughout an eight-hour workday.
. . . .
6. The claimant is unable to perform any past
relevant work (20 CFR 404.1565 and 416.965).
. . . .
10. Considering the claimant’s age, education, work
experience, and residual functional capacity, there
are jobs that exist in significant numbers in the
national economy that the claimant can perform (20 CFR
404.1569, 404.1569(a), 416.969, and 416.969(a)).
Tr. 13, 14, 16, 20. Based upon his assessment of Poirier’s
residual functional capacity, and a hypothetical question posed
to a vocational expert (“VE”) that incorporated the RFC recited
above, the ALJ determined that Poirier was able to perform the
jobs of touch-up screener, surveillance system monitor, and
escort vehicle driver.
III. Discussion
A. The Legal Framework
To be eligible for disability insurance benefits, a person
must: (1) be insured for such benefits; (2) not have reached
retirement age; (3) have filed an application; and (4) be under
a disability. 42 U.S.C. §§ 423(a)(1)(A)-(D). To be eligible
for supplemental security income, a person must be aged, blind,
or disabled, and must meet certain requirements pertaining to
income and assets.
42 U.S.C. § 1382(a). The question in this
6
case is whether the ALJ correctly determined that Poirier was
not under a disability from August 15, 2010, through May 24,
2013, which is the date of the ALJ’s decision.
For the purpose of determining eligibility for disability
insurance benefits,
[t]he term “disability” means . . . inability to
engage in any substantial gainful activity by reason
of any medically determinable physical or mental
impairment which can be expected to result in death or
which has lasted or can be expected to last for a
continuous period of not less than 12 months.
42 U.S.C. § 423(d)(1)(A); see also 42 U.S.C. § 1382c(a)(3)(A)
(setting out a similar definition of disability for determining
eligibility for SSI). Moreover,
[a]n individual shall be determined to be under a
disability 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 exists in the immediate area in
which he lives, or whether a specific job vacancy
exists for him, or whether he would be hired if he
applied for work. . . .
42 U.S.C. § 423(d)(2)(A) (pertaining to DIB); see also 42 U.S.C.
§ 1382c(a)(3)(B) (setting out a similar standard for determining
eligibility for SSI).
To decide whether a claimant is disabled for the purpose of
determining eligibility for either DIB or SSI benefits, an ALJ
7
is required to employ a five-step process. See 20 C.F.R.
§§ 404.1520 (DIB) & 416.920 (SSI).
The steps are: 1) if the [claimant] is engaged in
substantial gainful work activity, the application is
denied; 2) if the [claimant] does not have, or has not
had within the relevant time period, a severe
impairment or combination of impairments, the
application is denied; 3) if the impairment meets the
conditions for one of the “listed” impairments in the
Social Security regulations, then the application is
granted; 4) if the [claimant’s] “residual functional
capacity” is such that he or she can still perform
past relevant work, then the application is denied; 5)
if the [claimant], given his or her residual
functional capacity, education, work experience, and
age, is unable to do any other work, the application
is granted.
Seavey v. Barnhart, 276 F.3d 1, 5 (1st Cir. 2001) (citing
20
C.F.R. § 416.920).
The claimant bears the burden of proving that he is
disabled. See Bowen v. Yuckert, 482 U.S. 137, 146 (1987). He
must do so by a preponderance of the evidence. See Mandziej v.
Chater,
944 F. Supp. 121, 129 (D.N.H. 1996) (citing Paone v.
Schweiker,
530 F. Supp. 808, 810-11) (D. Mass. 1982)). However,
[o]nce the [claimant] has met his or her burden at
Step 4 to show that he or she is unable to do past
work due to the significant limitation, the
Commissioner then has the burden at Step 5 of coming
forward with evidence of specific jobs in the national
economy that the [claimant] can still perform. Arocho
v. Sec’y of Health & Human Servs., 670 F.2d 374, 375
(1st Cir. 1982).
Seavey, 276 F.3d at 5 (parallel citations omitted). Finally,
8
[i]n assessing a disability claim, the [Commissioner]
considers objective and subjective factors, including:
(1) objective medical facts; (2) [claimant]’s
subjective claims of pain and disability as supported
by the testimony of the [claimant] or other witness;
and (3) the [claimant]’s educational background, age,
and work experience.
Mandziej, 944 F. Supp. at 129 (citing Avery v. Sec’y of HHS,
797
F.2d 19, 23 (1st Cir. 1986); Goodermote v. Sec’y of HHS,
690
F.2d 5, 6 (1st Cir. 1982)).
B. Poirier’s Claims
Poirier claims that the ALJ erred by failing to adequately
develop the record and also erred by refusing to hear testimony
from two witnesses he wanted to call. The court considers each
issue in turn.
1. Development of the Record
Poirier first claims that the ALJ committed reversible
error by failing “to order a consultative examination in order
for him to be able to make an informed decision about [his]
sitting limitations and ability to do sedentary work.” Cl.’s
Mem. of Law (doc. no. 16-1) 6.
Given the non-adversarial nature of Social Security
proceedings, the Acting Commissioner “had a duty ‘to develop an
adequate record from which a reasonable conclusion [could have
been] drawn.’” Heggarty v. Sullivan, 947 F.2d 990, 997 (1st
9
Cir. 1991) (per curiam) (quoting Carrillo Marin v. Sec’y of
Health & Human Servs., 758 F.2d 14, 17 (1st Cir. 1985)).
Moreover, the Acting Commissioner’s responsibility to develop
the record
increases in cases where the appellant is
unrepresented, where the claim itself seems on its
face to be substantial, where there are gaps in the
evidence necessary to a reasoned evaluation of the
claim, and where it is within the power of the
administrative law judge, without undue effort, to see
that the gaps are somewhat filled — as by ordering
easily obtained further or more complete reports or
requesting further assistance from a social worker or
psychiatrist or key witness.
Heggarty, 947 F.2d at 997 (quoting Currier,
612 F.2d at 598).
In Heggarty, the claimant suffered from various physical
impairments, including eczema. See 947 F.2d at 992. At the
time of his hearing, he was receiving treatment from a Dr.
Bixby. See
id. At the claimant’s hearing, when the ALJ learned
that the administrative record contained no information or
reports from Dr. Bixby, the ALJ told the claimant that he would
obtain whatever medical records Dr. Bixby had. See
id. The
ALJ, however, failed to do so. See
id. at 997. Based upon the
foregoing, the court of appeals determined that the case should
be remanded, so that the SSA could obtain the records of Dr.
Bixby’s treatment of the claimant. See
id. at 998.
Here, Poirier criticizes the ALJ for making a decision
based upon a medical record that is not very extensive, filled
10
with duplication, focused primary upon his knee condition rather
than his back condition, and lacking an assessment of his
physical RFC from his treating physician. He does not, however,
identify any additional treatment notes or other medical
records, such as those in Heggarty, that would have been
material to the ALJ’s decision. Rather, claimant argues that
the ALJ was obligated to obtain a consultative medical
examination in order to properly assess his claim that he was
unable to perform the sitting requirements of sedentary work.
The court does not agree.
The relevant Social Security regulations provide that if a
claimant’s
medical sources cannot or will not give us sufficient
medical evidence about [a claimant’s] impairment for
us to determine whether [the claimant is] disabled . .
. we may ask [the claimant] to have one or more
physical or mental examinations or tests.
20 C.F.R. §§ 404.1517 & 416.917. Such examinations are referred
to as “consultative examinations,” and the regulations define a
“consultative examination” as “a physical or mental examination
or test purchased for [a claimant] at [the] request and expense
[of the SSA] from a treating source or another medical source.”
20 C.F.R. §§ 404.1519 & 416.919.
Regarding the circumstances under which a consultative
examination must be procured:
11
The ALJ is required to order additional medical
tests and exams only when a claimant’s medical sources
do not give sufficient medical evidence about an
impairment to determine whether the claimant is
disabled. 20 C.F.R. § 404.1517; see also Conley v.
Bowen, 781 F.2d 143, 146 (8th Cir. 1986). In
fulfilling this duty to conduct a full and fair
inquiry, the ALJ is not required to order a
consultative examination unless the record establishes
that such an examination is necessary to enable the
ALJ to render an informed decision. Carrillo Marin v.
Sec’y of Health & Human Servs., 758 F.2d 14, 17 (1st
Cir. 1985).
Pelletier v. Colvin, C.A. No. 13-651 ML, 2015 WL 247711, at *11
(D.R.I. Jan. 20, 2015). In other words, “[t]he regulations do
not require an ALJ to refer a claimant to a consultative
specialist, but simply grant him the authority to do so if the
existing medical sources do not contain sufficient evidence to
make a determination.” Rudge v. Astrue, No. 1:11-cv-440-DBH,
2012 WL 5207591, at *2 (D. Me. Sept. 30, 2012) (emphasis added)
(quoting Foster v. Halter,
279 F.3d 348, 355 (6th Cir. 2001)),
report and recommendation adopted by
2012 WL 5199412 (Oct. 22,
2012).
There are at least three problems with Poirier’s claim that
the ALJ erred by failing to order a consultative examination.
First, he never alerted the ALJ to any gap in his medical
records that would necessitate a consultative examination, nor
did he ever ask the ALJ to procure one. See Stefanowich v.
Colvin, Civ. Action No. 13-30020-KPN, 2014 WL 357293, at *3 (D.
12
Mass. Jan. 30, 2014) (concluding “that the ALJ did not err in
failing to order a third CE” and noting “that Plaintiff did not
request such a consultative examination”). Second, Poirier has
identified nothing in the record to suggest that this is a case
in which his medical sources cannot or will not provide medical
evidence such as a treating-source assessment of his RFC. Thus,
it would not appear that Poirier has established a necessary
prerequisite for obtaining a consultative examination.
Third, and most importantly, Poirier has not established
that the ALJ needed a consultative examination in order to make
an informed decision, i.e., a decision supported by substantial
evidence. He argues that his testimony about his inability to
sit for long periods imposed an obligation upon the ALJ to
obtain medical evidence concerning that claimed physical
limitation. However, there is medical evidence on that claimed
limitation in the record, in Dr. Nault’s RFC assessment. The
presence of that evidence obviated any need for a consultative
examination. See Austin v. Barnhart, No. 03-156-B-W, 2004 WL
1896999, at *3 (D. Me. Aug. 25, 2004) (ruling that “the presence
of . . . state-agency psychological evaluations mean[t] that [a
consultative psychological examination] was not necessary”),
report and recommendation adopted by
2004 WL 2095727 (Sept. 20,
2004).
13
Poirier also argues that a remand is in order because the
ALJ failed to adequately develop the record concerning his
inability to take pain medication due to a stomach disorder.
The court begins by describing the manner in which the ALJ
handled Poirier’s stomach condition and then turns to claimant’s
argument on this point.
Early in the hearing, the ALJ noted Poirier’s claims that
he suffered from degenerative disease in his left knee and back,
irritable bowel syndrome, gastroesophageal reflux disease,
depression, and anxiety. Then he asked “Did I miss anything?”
Tr. 35. Poirier responded:
I’ve got a stomach disorder. I’m unable to take any
type of medications because [of] the stomach disorder
I have due to the long term taking of Motrin in the
military, I don’t remember what they labeled it as for
the disorder, but they try and have me take powders
and everything for my stomach because I can’t handle
pills.
Id. In the context of discussing the treatment he had received
for his mental impairments, Poirier explained:
They bounced me around from person to person,
[exacerbating] my problem instead of helping, just
telling me to take the pills. And when I told them I
had the stomach issue, that I was having difficulty
with the pills, it was making me ill, just physically
making me more pain which was making me have more
problems mentally, all I got was the types of
comments, well you have to do your own part. You have
to participate.
14
Tr. 41. Shortly thereafter, the following exchange took place
between the ALJ and Poirier:
Q With your stomach issues you’re on no
medication?
A Yes, sir. The stomach causes me to, any
time I try and take any medications I get so
[INAUDIBLE] stomach, that if I don’t stop the process
I end up throwing up and the bowel distress that it
causes, and the nature of the vomiting and the bowel
distress causes a surge of flexing of my muscles that
then cause[s] all my joints and everything to hurt so
bad that even my limited amount of rest that I get, I
don’t. So it’s just the entire package that comes
with the pills.
Q Without any medication, what kind of GI
issues are you having now?
A I don’t, as long as I’m making myself eat
okay, which has been doing better since I’m living
with my son. I do okay with the GI stuff. I don’t
really have any issues with my bowel track or any
problems until I take medication. Even something as
simple as Ibuprofen, if I take Ibuprofen two times a
day at normal dosage I’ll spend three to four days
with loose to watery bowel distress. It’s severe.
As far as narcotic pain pills, I have
irritability from it. It causes my stomach to be very
very irritated, but I don’t take them long enough to
get in a cycle with them because of the irritation
they cause me, to know whether or not they would have
that same long term bowel effect issue, because I get
so irritated in the stomach, I take them because the
pain is so severe that I have to have something for it
and I tolerate the stomach ache all night long, but I
very rarely will go a second dose because I know
what’s coming with my stomach.
Tr. 43-44. Finally, after he heard testimony from the VE, the
ALJ asked Poirier whether he had any questions for the VE or
15
anything else he wanted to say. While Poirier provided further
testimony about his inability to sit for prolonged periods, he
said nothing more about his ability to tolerate pills.
In his decision, when assessing the severity of Poirier’s
physical impairments, the ALJ had this to say about Poirier’s
stomach condition: “In addition, the claimant alleges stomach
issues due to GERD/irritable bowel syndrome when he takes
prescription medication. However, he currently is not on any
medications and he testified that with proper diet, he presently
has no stomach/GI issues.” Tr. 14. Then, in his discussion of
Poirier’s credibility, the ALJ stated that “[t]he claimant’s
pain is treated with only mild over the counter pain control.”
Tr. 17.
Poirier argues that the ALJ erred by failing to ask him any
questions about how his inability to take pain medications
impacted his pain. That error, Poirier argues, taints both the
ALJ’ credibility assessment and the ALJ’s determination that he
was capable of sedentary work. There are several problems with
Poirier’s argument.
While Poirier criticizes the ALJ for failing to ask
sufficient follow-up questions, he does not indicate what
additional testimony he would have provided in response to the
questions he says the ALJ should have asked. And, indeed, the
16
hearing transcript includes a rather substantial amount of
testimony on Poirier’s claimed inability to tolerate pain
medication. Poirier’s specific complaint seems to be that after
the ALJ elicited testimony about his inability to tolerate pain
medication, the ALJ should have asked him about the pain he had
to endure as a result of not taking such medication. But, other
parts of the hearing transcript contain ample testimony about
Poirier’s alleged pain, and the ALJ’s decision not to elicit
duplicative testimony on this issue does not constitute a
failure to develop the record.
Moreover, this case is readily distinguishable from the
case upon which Poirier relies for his argument, Musto v.
Halter, 135 F. Supp. 2d 220 (D. Mass. 2001). In that case, the
ALJ questioned the claimant in a series of exchanges that the
court characterized as “more confusing than informative.”
Id.
at 230. Based upon that characterization, the court ruled:
[T]he administrative law judge failed adequately to
develop the record of Musto’s pain medications.
Corchado v. Shalala, 953 F. Supp. 12, 16 (D. Mass.
1996) (“[T]he Administrative Law Judge neglected to
ask [the claimant], as Avery requires, whether any of
[the claimant’s pain] treatments had either alleviated
his pain or caused any adverse side effects.”).
Therefore, his conclusion that Musto’s assertions of
pain were not credible and his finding that Musto has
the residual functional capacity to perform sedentary
jobs are not supported by substantial evidence.
Bazile [v. Apfel], 113 F. Supp. 2d [181,] 190 [(D.
Mass. 2000)]; Corchado, 953 F. Supp. at 16 (“Because
the Administrative Law Judge did not adequately
17
develop the record as to [the claimant’s] subjective
complaints of disabling pain, her conclusion that [the
claimant] has the residual functional capacity to
perform sedentary work is not supported by substantial
evidence.”).
Musto, 135 F. Supp. 2d at 230-31. Here, by contrast, the ALJ
did elicit testimony on the issues identified in Corchado, i.e.,
the effects of Poirier’s pain medication. And, in his decision,
the ALJ provided a detailed explanation of his determination
that Poirier’s statements concerning his symptoms were not fully
credible.
In support of that determination, the ALJ noted, among
other things, that Poirier relied upon mild over the counter
pain medication. According to Poirier, his reliance upon over
the counter pain medication results not from a lack of severe
pain, but from his inability to tolerate stronger medications.
The ALJ’s finding on this point does not constitute reversible
error.
In the first place, it is for the ALJ, not the courts, to
draw inferences from the record evidence. See Irlanda Ortiz,
955 F.2d at 769. Thus, the court declines to second-guess the
ALJ’s inference that Poirier’s reliance upon over the counter
medication casts doubt on his statements about the intensity of
his pain. But, even if the court were to find that the ALJ’s
inference was not supported by substantial evidence, the ALJ’s
18
ultimate assessment of Poirier’s credibility is supported by
substantial evidence. That is because the ALJ based his
credibility determination on far more than Poirier’s limited use
of pain medication. Specifically, the ALJ also relied upon
evidence of the positive effects of treatment other than
medication, observations made by Poirier’s treating physician
and physical therapist, and Poirier’s activities of daily
living. Given that constellation of evidence supporting the
ALJ’s credibility assessment, the court cannot conclude that the
ALJ’s reference to Poirier’s use of over the counter pain
medication in his credibility assessment was an error warranting
a remand.
2. Witness Testimony
Poirier’s second claim of error concerns the ALJ’s alleged
refusal to hear testimony from his ex-wife and his son
concerning the manner in which pain affected his activities of
daily living. In his view, that testimony would likely have
resulted in a favorable decision from the ALJ. The Acting
Commissioner argues that Poirier’s claim fails because there is
no cognizable evidence that the ALJ refused to let his witnesses
testify and also argues, in the alternative, that Poirier cannot
demonstrate that he was prejudiced by the absence of the
testimony he wanted to place before the ALJ.
19
The administrative record includes a transcript of
Poirier’s hearing. That transcript does not document any
request by Poirier to admit witness testimony. Necessarily, it
documents no denial of such a request. Indeed, in his motion
for a sentence-six remand, document no. 10, Poirier relied
exclusively upon his own affidavit to establish that before his
hearing went on the record, he discussed the admission of
witness testimony with the ALJ. According to the Acting
Commissioner, the lack of record evidence bars Poirier from
arguing, in this court, that the ALJ erred by refusing to allow
his witnesses to testify. The court agrees.
Sentence four of 42 U.S.C. § 405(g) provides that “[t]he
court shall have power 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” (emphasis
added). On its face, that statute limits this court’s review,
under sentence four, to a consideration of the administrative
record, which does not document a refusal by the ALJ to allow
Poirier’s witnesses to testify. Plainly, it was appropriate for
the court to consider Poirier’s affidavit when ruling on his
motion for a sentence-six remand. See Dawson v. Bowen,
136
F.R.D. 618, 620 (S.D. Ohio 1988). But the court has been able
20
to locate no authority that would permit the consideration of
that affidavit now, when the question before the court is
whether Poirier is entitled to a sentence-four remand.
Poirier cites two cases for the proposition that an ALJ
fails to properly develop the record when he or she refuses to
hear testimony from lay witnesses a claimant proposes to call.
See Echevarria v. Sec’y of Health & Human Servs., 685 F.2d 751
(2d Cir. 1982); Barrera v. Sec’y of Health & Human Servs.,
872
F. Supp. 24 (E.D.N.Y. 1995). But in both of those cases, the
ALJ’s refusal to allow testimony was evident to the reviewing
court from the transcripts of the claimants’ hearings. See
Echevarria,
685 F.2d at 754 n.2; Barrera,
872 F. Supp. at 25.
Here, it is not.
Based upon the foregoing, it would appear that Poirier’s
argument is barred by his failure to ask the ALJ, on the record,
whether he could call his ex-wife and son as witnesses. But,
even if the court were to assume that Poirier’s affidavit
contains an accurate description of his pre-hearing interaction
with the ALJ, and that the rather ambiguous interaction
described therein is properly construed as a refusal to allow
the disputed testimony, and that the ALJ had a duty to prompt
Poirier to make his request to admit that testimony on the
record, Poirier’s claim would still fail.
21
The court begins by noting that Poirier does not identify
any legal framework or standard for deciding whether an ALJ’s
failure to allow witness testimony requires a remand. Neither
Echevarria nor Barrera offers any assistance on this point. In
Echevarria, the ALJ’s failure to allow the claimant’s witness to
testify was insufficient, standing alone, to warrant a remand
but, rather, was one of several errors which, in total, deprived
the claimant of a fair hearing. See 685 F.2d at 757. In
Barrera, the court granted the claimant a sentence-six remand
and ordered the SSA to consider new evidence in the form of a
doctor’s report. The court also criticized the way the ALJ
handled witness testimony the claimant wanted to introduce:
[T]he ALJ, knowing that the claimant’s husband
initially intended to testify, nevertheless failed to
obtain corroboration from him regarding the claimant’s
subjective symptoms of pain. This area, likewise,
should have been explored further at the
administrative hearing.
872 F. Supp. at 28 (citing Echeverria,
685 F.2d at 755-56).
Judge Seybert’s order, however, provides no guidance regarding
how to determine whether an ALJ’s failure to hear testimony from
a potentially corroborating witness, standing alone, warrants a
remand.
Be that as it may, according to Poirier, “[t]he testimony
of [his] witnesses had the likelihood of changing the ALJ’s
assertion that his activities of daily living supported the RFC
22
to do sedentary work.” Cl.’s Mem. of Law (doc. no. 16-1) 9.
The record does not support that argument. After the ALJ stated
in his decision that “[t]he claimant’s reported daily activities
show a fairly independent, active lifestyle that further
supports the claimant’s residual functional capacity assessment
noted above,” Tr. 18, he went on to base his analysis largely
upon claimant’s own reports of his daily activities. If Poirier
were arguing that his witnesses’ testimony would somehow show
that he did not actually engage in the activities that he
reported, then, perhaps, his argument might have some merit.
But that is not his argument. Moreover, the court has found
nothing in the affidavits of Poirier’s ex-wife and son that is
likely to have altered the conclusion the ALJ drew from
Poirier’s reports of his activities of daily living. Thus, even
if properly before the court, Poirier’s argument would not
entitle him to a remand.
IV. Conclusion
Because the ALJ has committed neither a legal nor a factual
error in evaluating Poirier’s claim, see Manso-Pizarro, 76 F.3d
at 16, Poirier’s motion for an order reversing the Acting
Commissioner’s decision, document no. 16, is denied, and the
Acting Commissioner’s motion for an order affirming her
decision, document no. 18, is granted. The clerk of the court
23
shall enter judgment in accordance with this order and close the
case.
SO ORDERED.
__________________________
Landya McCafferty
United States District Judge
August 27, 2015
cc: Bennett B. Mortell, Esq.
Robert J. Rabuck, Esq.
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