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Martinez v. Colvin

United States District Court, D. Vermont

May 4, 2016

Daniel Joel Martinez, Plaintiff,
Carolyn W. Colvin, Acting Commissioner of Social Security Administration, Defendant.


John M. Conroy United States Magistrate Judge

Plaintiff Daniel Martinez brings this action pursuant to 42 U.S.C. § 405(g) of the Social Security Act, requesting review and remand of the decision of the Commissioner of Social Security denying his applications for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI). Pending before the Court are Martinez’s motion to reverse the Commissioner’s decision (Doc. 8), and the Commissioner’s motion to affirm the same (Doc. 9). For the reasons stated below, Martinez’s motion is DENIED, and the Commissioner’s motion is GRANTED.


Martinez was 27 years old on his alleged disability onset date of October 24, 2011. He completed school through the tenth grade, and does not have a GED. He has worked as a brush cutter, a concrete laborer, a fence installer, and a busboy. He is single and has no children. He lives in Irasburg, Vermont with his mother and younger brother, who are both disabled.

Martinez had a traumatic childhood and experienced behavioral as well as intellectual problems in school, requiring special education classes and an IEP. He has a long history of polysubstance abuse, including abuse of opioids and cocaine, which resulted in his arrest and imprisonment on at least one occasion for heroin possession and breaking and entering in 2011. (AR 411-12.) Starting in late 2011, Martinez participated in a Suboxone program to manage his heroin addiction. (Id. at 412.) Although he stopped using heroin and other illegal drugs around that time, he has continued to use marijuana on almost a daily basis, despite his medical providers’ advice to avoid all recreational drugs while on Suboxone. (Id.; AR 50-51, 53-54, 57, 69, 372, 376.) In addition to his struggles with polysubstance abuse, Martinez suffers from depression, anxiety, anger management issues, and learning-related deficiencies including attention deficit hyperactivity disorder (ADHD). He also suffers from back pain and headaches.

In June 2012, Martinez filed applications for DIB and SSI. In his disability application, Martinez alleges that, starting on October 24, 2011, he has been unable to work due to back problems, ADHD, a heroin addiction, depression, “defiant disorder, ” anxiety, and migraine headaches. (AR 290; see also AR 52.) In a July 2012 Function Report, Martinez stated that he cannot stand to be around people, and he feels like killing them. (AR 297, 304.) He further stated that he hears voices in his head, fights with people because of his ADHD, and has trouble sleeping. (AR 297-98.) Martinez stated that he stays in his room most of the time, leaving the house only for doctor appointments and to shop at the supermarket once a month. (AR 298, 300-02.) He further stated that his mother prepares most of his meals and does almost all the household chores.[1] (AR 298-300.) Finally, Martinez stated in the July 2012 Function Report that he does not drive[2] and he is unable to handle a savings account or use a checkbook. (AR 300; see also AR 72.) A more recent Function Report, from January 2013, indicates that Martinez is able to do “some light housework or play with the family dog” on a daily basis (AR 311; see also AR 313), and that he prepares his own “quick and easy meals” every day (AR 313).

Martinez’s application was denied initially and upon reconsideration, and he timely requested an administrative hearing, which was conducted on April 18, 2014 by Administrative Law Judge (ALJ) Matthew Levin. (AR 46-95.) Martinez, represented by counsel, appeared and testified at the administrative hearing, as did medical expert Herburt Golub, PhD and vocational expert (VE) James Parker. Martinez testified that it had been approximately three years since he had taken a drug illegally. (AR 56-57.) He stated, however, that he smoked marijuana at least five times a week before bed to help him sleep, and that he could not sleep without it.[3] (AR 53-54, 69.) When asked by the ALJ how he afforded the marijuana, given that he did not work and was “living off [his] mom” (AR 50), Martinez testified that his friends and brother gave it to him (AR 51, 69-70). Martinez further testified at the administrative hearing that he had been hearing voices in his head for the prior 12-18 months, and that he stayed in his room all the time and had not been out socially in the prior six months. (AR 57-59.) He stated that he could not concentrate due to hearing voices and feeling anxious and irritable (AR 64); he had trouble getting along with others and got into physical fights with others (AR 63-64); he was limited in his ability to stand, walk, bend, lift, and squat due to back pain (AR 65); he napped a lot due to anxiety (AR 65-66); and he had mood swings “all the time, ” which involved getting “really mad” and yelling and screaming at people (AR 67). Martinez testified that he attended counseling sessions with mental health counselor Gretchen Lewis, LCMHC; obtained prescriptions for most of his medications-including Zyprexa and Trazodone-from David Mooney, MD; and obtained Suboxone from Bruce Latham, DO. (AR 57, 61-62.)

On May 2, 2014, the ALJ issued a decision finding that Martinez would not be disabled if he stopped the substance use, and thus he was not disabled under the Social Security Act at any time from his alleged onset date through the date of the decision. (AR 12-29.) Thereafter, the Appeals Council denied Martinez’s request for review, rendering the ALJ’s decision the final decision of the Commissioner. (AR 1-3.) Having exhausted his administrative remedies, Martinez filed the Complaint in this action on April 27, 2015. (Doc. 3.)

ALJ Decision

The Commissioner uses a five-step sequential process to evaluate disability claims. See Butts v. Barnhart, 388 F.3d 377, 380-81 (2d Cir. 2004). The first step requires the ALJ to determine whether the claimant is presently engaging in “substantial gainful activity.” 20 C.F.R. §§ 404.1520(b), 416.920(b). If the claimant is not so engaged, step two requires the ALJ to determine whether the claimant has a “severe impairment.” 20 C.F.R. §§ 404.1520(c), 416.920(c). If the ALJ finds that the claimant has a severe impairment, the third step requires the ALJ to make a determination as to whether that impairment “meets or equals” an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“the Listings”). 20 C.F.R. §§ 404.1520(d), 416.920(d). The claimant is presumptively disabled if his or her impairment meets or equals a listed impairment. Ferraris v. Heckler, 728 F.2d 582, 584 (2d Cir. 1984).

If the claimant is not presumptively disabled, the ALJ is required to determine the claimant’s residual functional capacity (RFC), which means the most the claimant can still do despite his or her mental and physical limitations based on all the relevant medical and other evidence in the record. 20 C.F.R. §§ 404.1520(e), 404.1545(a)(1), 416.920(e), 416.945(a)(1). The fourth step requires the ALJ to consider whether the claimant’s RFC precludes the performance of his or her past relevant work. 20 C.F.R. §§ 404.1520(f), 416.920(f). Finally, at the fifth step, the ALJ determines whether the claimant can do “any other work.” 20 C.F.R. §§ 404.1520(g), 416.920(g). The claimant bears the burden of proving his or her case at steps one through four, Butts, 388 F.3d at 383; and at step five, there is a “limited burden shift to the Commissioner” to “show that there is work in the national economy that the claimant can do, ” Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009) (clarifying that the burden shift to the Commissioner at step five is limited, and the Commissioner “need not provide additional evidence of the claimant’s [RFC]”).

When, as here, there is medical evidence of a claimant’s drug or alcohol abuse (DAA), the “disability” inquiry does not end with the five-step analysis. See Cage v. Comm’r of Soc. Sec., 692 F.3d 118, 123 (2d Cir. 2012) (citing 20 C.F.R. § 416.935(a)). In 1996, Congress enacted the Contract with America Advancement Act (CAAA), which amended the Social Security Act by providing that: “An individual shall not be considered to be disabled . . . if alcoholism or drug addiction would (but for this subparagraph) be a contributing factor material to the Commissioner’s determination that the individual is disabled.” 42 U.S.C. § 423(d)(2)(C); see also 20 C.F.R. § 416.935(b)(1, 2); 42 U.S.C. § 1382c (a)(3)(J). The “key factor” is “whether [the Social Security Administration] would still find [the claimant] disabled if [he] stopped using drugs or alcohol.” 20 C.F.R. §§ 404.1535(b)(1), 416.935(b)(1); see also 20 C.F.R. § 416.935(b)(2)(i) (“If [the Commissioner] determine[s] that [the claimant’s] remaining limitations would not be disabling, [she] will find that [the claimant’s] drug addiction or alcoholism is a contributing factor material to the determination of disability.”); Frankhauser v. Barnhart, 403 F.Supp.2d 261, 272 (W.D.N.Y. 2005).

The CAAA does not specify who bears the burden of proving that the claimant’s DAA is not material to the determination that he is disabled, but the Second Circuit has sided with almost all the other circuits in holding that the claimant bears that burden. Cage, 692 F.3d at 123 (listing cases). The court explained: “[B]ecause the CAAA amended the definition of ‘disabled’ to exclude conditions materially caused by DAA, proving DAA immateriality is best understood as part of a claimant’s general burden of proving that she is disabled.” Id. at 124. Moreover, the Second Circuit found that “[f]airness and practicality . . . counsel in favor of placing this burden on [claimants], ” who are “better positioned than the [Social Security Administration] to offer proof as to the relevance of any DAA to their disability determinations because facts relevant to those determinations ordinarily would be in their possession.” Id. (citing Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987) (“It is not unreasonable to require the claimant, who is in a better position to provide information about his own medical condition, to do so.”)).

Employing this sequential analysis, ALJ Levin first determined that Martinez had not engaged in substantial gainful activity since his alleged disability onset date of October 24, 2011. (AR 15.) At step two, the ALJ found that Martinez had the following severe impairments: degenerative disc disease of the lumbar spine, depression, anxiety, and marijuana addiction. (Id.) Conversely, the ALJ found that Martinez’s headaches and ADHD were non-severe. (AR 15-16.) At step three, the ALJ found that Martinez’s impairments, including the substance use disorders, met sections 12.04 (affective disorders) and 12.09 (substance abuse disorders) of the Listings. (AR 16.) The ALJ further found that, if Martinez stopped ...

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