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Alker v. Colvin

United States District Court, D. New Hampshire

February 20, 2014

Steven Brian Alker,
Carolyn W. Colvin, [1] Acting Commissioner, Social Security Administration. No. 2014 DNH 032.


JOSEPH A. DiCLERICO, Jr., District Judge.

Steven Brian Alker seeks judicial review, pursuant to 42 U.S.C. ยง 405(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 ("ALJ") 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 ALJ's decision.


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 January 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.

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 January 2, 2011. Both procedures showed spinal stenosis, a disc degeneration, and a bulging disc.

Alker saw Dr. Ashton Stanton in January 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 January 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 sidebending, and had five out of five muscle strength in the lower extremities. Dr. Stanton diagnosed Alker with lower back pain caused by a symptomatic disc bulge at level L4-5. In January, 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. 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 January 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-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 July of 2010. On July 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 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 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 ...

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