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November 19, 1985


The opinion of the court was delivered by: CURTIN

This action is before me after a remand for a new hearing consistent with Campbell v. HHS, 665 F.2d 48 (2d Cir. 1981), rev'd, 461 U.S. 458, 103 S. Ct. 1952, 76 L. Ed. 2d 66 (1982). The case was remanded March 24, 1982.

Once again, the court must address the problem which was recently raised in Wolf v. Secretary, CIV-84-86, (W.D.N.Y. June 27, 1985). In that case, plaintiff, an alcoholic, was denied benefits because of a finding by the Secretary that he was not disabled, so no assessment was made of his ability to control his drinking. That case was remanded to the Secretary for reconsideration and further findings. Here, although the Secretary found plaintiff to be an alcoholic, she determined that he had retained the voluntary ability to control his drinking.

Although in this case the Secretary found that plaintiff's present abstinence indicated that he had always had the ability to control his drinking, the remarks made by the United States Court of Appeals for the Fifth Circuit in Ferguson v. Schweiker, 641 F.2d 243, 249 (5th Cir. 1981), have particular force:

 The fact that Ferguson may have undergone what was formerly thought to be successful detoxification some time ago does not present evidence that he now has the ability to control his drinking. Indeed, the fact that appellant has been hospitalized more than once as a result of his drinking problem . . . suggests that while past detoxification as apparently thought to have been successful . . ., the roots of the disease remained deep within appellant. One of the more tragic aspects of alcoholism is that the hopes spawned by an apparently successful effort to "dry out" may in a moment be dashed against the rocks of a whiskey glass. Hence, the reports of appellant's past detoxification provide little guidance concerning his present ability to control his alcoholism. The conclusory assertion that because a person has once stopped drinking, he can again do so . . . is unwarranted and shows an insensitivity to the problems faced by alcoholics.

 Ferguson, supra at 249.

 In this case, on January 4, 1982, plaintiff was admitted to a hospital, during which time his left leg was amputated above the knee. On remand, the Administrative Law Judge [ALJ) found that plaintiff was disabled and awarded benefits beginning January 4, 1982. The ALJ found, however, that plaintiff was not disabled from the alleged onset date of December 4, 1978, through January 4, 1982. There was evidence before the Secretary that after the operation, plaintiff stopped drinking. It appears to be the Secretary's theory that if he could stop drinking at that time, he could have done so during the period from 1978 through January of 1982. Plaintiff in this action appeals from the finding of the Secretary.

 At the outset, the court notes that an onset date of January 4, 1982, seems somewhat arbitrary. The record clearly demonstrates the progressive nature of plaintiff's illnesses. Plaintiff's condition was obviously disabling sometime prior to the decision to amputate his leg.

 On this appeal, the main issues before the court are the non-exertional limitations resulting from plaintiff's drinking and whether or not plaintiff was able to control his drinking. As has been stated in a supplemental brief from the government, the determination as to whether plaintiff retains the voluntary ability to control his drinking need only be made once it has been found that plaintiff is disabled under the Act and that discontinuance of drinking would end the disability. See Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).

 The evidence in the record as to plaintiff's limitations in 1979 is contradictory. Several reports from physicians indicate that plaintiff will be able to return to work after treatment (Tr., pp.180-81, 186-87). Others say it is unknown when plaintiff will be able to return to work (Tr., pp.175-78).

 Treating physician Barry Gruber issued two reports and a residual functional capacities assessment in February of 1980. In a February 27, 1980, report, he found plaintiff "severely disabled." He found plaintiff unable to engage in sustained work and termed the outlook "dismal" (Tr., p.208). In the same report, he noted that plaintiff was incapable of handling benefits on his own (Tr., p.210). The physical capacities assessment prepared that same day, however, indicated that plaintiff could do sedentary work (Tr., p.211). In view of that report, the Secretary's finding that plaintiff had the physical capacity for sedentary work is supported by substantial evidence.

 However, the ALJ failed to account for the non-exertional limitations caused by plaintiff's drinking as shown by the record. During the second hearing, a vocational expert testified that if plaintiff retained the ability for sedentary work and had no other restrictions, he would be able to work (Tr., p.264). However, the expert also stated that if plaintiff had a "chronic and acute" problem with alcohol, which caused forgetfulness and frequent absences, plaintiff could not work (Tr., pp. 262 and 263).

 Plaintiff has been repeatedly diagnosed as a chronic alcoholic, and this was one of the diagnoses upon which his treating physician found him to be "severely disabled" (Tr., p.208). The testimony of plaintiff's brother indicates that plaintiff was released from his last job due to his drinking and poor health. He testified that plaintiff has worked for 23 years despite a drinking problem, but that his drinking eventually caught up with him. Plaintiff was sent home from work on several occasions because of his drinking. Finally, plaintiff's brother testified that plaintiff did not remember things when he was drinking (Tr., pp.254-57).

 Plaintiff's sister also testified. She said he had a "drinking problem" during the years in question. His drinking forced him to leave his mother's home and live, for a time, at a YMCA. His sister recalled that plaintiff would forget his doctor's appointments during this time (Tr., p.257-61).

 Plaintiff himself testified that he does not concentrate well. He appeared confused (Tr., pp.74-76). Finally, a CAT scan of his brain revealed minimal cortical cerebral atrophy ...

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