peripheral neuropathies, liver damage, gastritis, pancreatitis, or seizures. 20 C.F.R. Pt. 404, Subpt. P, Appendix 1, § 12.09 (A)-(I). The evaluation of such disorders requires a medically determinable finding of the impairment, and consideration of the degree of limitation that the impairment has on the individual's ability to work, and whether the limitation has lasted or is expected to last for a continuous period of at least twelve months. 20 C.F.R. Pt. 404, Subpt. P, Appendix 1, § 12.00(A). Some of the doctors who assessed Manns over the years made psychological evaluations, stating that Manns may have had an adjustment disorder with anxious mood, and a dependent personality disorder, (R. 52, 83-84, 192), as well as the possibility of hypersensitive disease or a possible anti-social personality disorder, (R. 222, 238). None of these characteristics approach the level of severity necessary for any of the criteria listed under Section 12.09 to apply.
Although it is obvious that Manns has had a drug problem, there is no medical evidence in the record to support a finding of disability under any of the subcategories listed under Section 12.09. 20 C.F.R. Pt. 404, Subpt. P, Appendix 1, §§ 12.09(A)-(I). Manns argues that "chronic substance abuse can be disabling if it results in personality disorders or where claimant has lost the voluntary ability to control substance abuse." See Plaintiff's Memorandum of Law in Opposition to the Defendant's Motion for Judgment on the Pleadings, filed September 13, 1994, at p. 10. It is true that even if an addiction does not meet the requirements of the listings in Appendix 1, it can still be disabling if it prevents a person from engaging in substantial gainful employment. See Ferguson v. Schweiker, 641 F.2d 243, 248 (5th Cir. 1981); Wolf v. Secretary of Health and Human Services, 612 F. Supp. 289, 291 (W.D.N.Y. 1991). However, before a showing of disability based on a drug or alcohol addiction can be made, it must first be shown that the claimant is addicted, and does not have the ability to control his use voluntarily. Ferguson, supra, at 248-249.
In the case at bar, the ALJ found that Manns had problems with substance abuse. (R. 19). Manns underwent several detoxification treatments at various substance abuse centers, however, he successfully completed a treatment program at Columbus Hospital on April 22, 1992, (R. 143), and has consistently followed his Methadone maintenance treatment program at the Drug Abuse Research and Treatment Center for over five months before his hearing. (R. 40-41, 48, 52, 58). Therefore, as the record supports a finding that Manns has the ability to control his substance abuse problem, and has continued to do so for several months, the ALJ properly concluded that Manns' history of substance abuse did not amount to a disability preventing Manns from engaging in substantial gainful employment.
In summary, the ALJ found that Manns' physical and mental impairments, or any equivalents, were not so severe as to be encompassed by the Listing of Impairments as identified in Appendix 1 of the federal regulations. (R. 19). The court finds that substantial evidence in the record supports this determination.
4. "Residual Functional Capacity" to Perform Past Work
The fourth inquiry in the five-step analysis is whether the applicant has the "residual functional capacity" to perform past relevant work. "Residual functional capacity" is defined as the capability to perform work comparable to the applicant's past substantial gainful activity. Cosme, supra, at *3.
The ALJ found, however, that Manns did not have any relevant past work experience. (R. 19). This evidence is undisputed, and accordingly, the court finds that the determination is supported by substantial evidence.
5. Suitable Alternative Employment in the National Economy
As the ALJ concluded that Manns did not have any past relevant work, the ALJ went on to make a determination as to whether there was any position within the national economy for which Manns would be qualified or suitable.
In order to make such a determination, first, the Secretary must show that the applicant's impairment is such that it permits certain basic work activities essential for other employment opportunities. Decker v. Harris, 647 F.2d 291, 294 (2d Cir. 1981). The Secretary must prove by substantial evidence the applicant's "residual functional capacity" with regard to the applicant's strength and "exertional capabilities." Decker, supra, at 294. An individual's exertional capability refers to the performance of "sedentary", "light", "medium", "heavy", and "very heavy" work.
Decker, supra, at 294.
In addition, the Secretary must prove that the claimant's skills are transferrable to the new employment, if the claimant was employed in a "semi-skilled" or "skilled" job.
Decker, supra, at 294. This element is particularly important in determining the second prong of the test, whether suitable employment exists in the national economy.
In this case, the ALJ determined that Manns had the residual functional capacity to perform the "physical exertional and nonexertional requirements of [sedentary] work except for his exertional inability to lift or carry more than fifteen pounds with his left arm or to stand or walk for more than six hours during the course of an eight-hour workday, and his nonexertional inability to perform fine manipulation with his left hand." (R. 19-20). The ALJ noted that Manns did not have any acquired work skills which would be transferable to the skilled or semi-skilled work functions. (R. 20).
In the second prong of the analysis, the Secretary must evidence the existence of particular jobs available in the national economy practical for an individual limited to the applicant's abilities and transferable work skills. Decker, supra, at 296. Therefore, the ALJ was required to show substantial evidence that there was alternative employment for Manns in the national economy.
The Medical Vocational Guidelines (the "grids") are often used to determine whether alternative employment exists in the national economy. Decker, supra, at 296; Bapp v. Bowen, supra, at 604. The grids combine several factors including education, work experience and age to determine whether a finding of "disabled" or "not disabled" should be rendered. Decker, supra, at 296; Bapp, supra, at 604.
In this case, Manns has both exertional and nonexertional impairments; including his inability to lift or carry more than fifteen pounds with his left arm, and his inability to perform fine manipulations with his left hand, respectively. Even when there is a nonexertional impairment, it is permissible for the ALJ to resort to the grids, provided that the ALJ finds, and the record supports the finding, that the nonexertional impairment does not significantly diminish
the claimant's residual functional capacity to perform the full range of activities listed in the grids. Thompson v. Bowen, 850 F.2d 346, 349-350 (8th Cir. 1988). However, where the claimant's nonexertional impairments do significantly diminish his capacity to perform the full range of activities listed in the grids, the Secretary must produce expert vocational testimony or other similar evidence to establish that there are jobs available in the national economy for a person with claimant's characteristics. Harris v. Shalala, 1995 WL 15372, at *3 (8th Cir. 1995) (citing Thompson, supra, at 349); Bapp v. Bowen, supra, at 605; 20 C.F.R. Pt. 404, Subpt. P, Appendix 2, § 200.00(e)(2). Where a claimant's work capacity is significantly diminished beyond that caused by his exertional impairments, the grids will not accurately determine disability status as they fail to take into account claimant's nonexertional limitations. Bapp v. Bowen, supra, at 605. The Second Circuit has held that when a claimant's nonexertional impairments significantly diminish his ability to work, over and above any incapacity caused solely by exertional limitations, so that the claimant is unable to perform the full range of employment indicated by the grids, the Secretary must introduce the testimony of a vocational expert that jobs exist in the economy that the claimant can obtain and Perform. Babb v. Bowen, supra, at 603.
In the present case, the ALJ gave full consideration to all of the relevant facts, including the testimony of Mr. Alan Winship, a vocational expert. (R. 12-20). The ALJ found Manns to be a "younger" person, between the ages of eighteen and forty-four, with a tenth grade education and limited ability to read and write. (R. 20); 20 C.F.R. § 416.963; 20 C.F.R. § 416.964. Thus, based on his age, education, work experience and exertional limitations, Manns would be considered capable of performing sedentary work, and would be considered "not disabled" based on the grids. See 20 C.F.R. Pt. 404, Subpt. P, Appendix 2, §§ 201.23, 201.24 (1994). However, the ALJ continued her analysis of Manns' situation by stating that his additional nonexertional impairment would prevent him from performing the full range of activities in the sedentary category. (R. 20). The ALJ then considered the expert testimony of Mr. Winship, who testified that a person of Manns' age, with a limited ability to read or write, who can stand or walk for up to six hours a day, lift up to fifteen pounds and use his left hand in only a limited fashion, and who is right hand dominant, could find work as a film touch-up screener, a production inspector, a sorter, or an electron tube assembler. (R. 18, 70-78). There was substantial evidence in the record to support the assumptions upon which Winship based his opinions. (R. 33-70). Consequently, the expert's opinion that Manns could perform such sedentary jobs as a film touch-up screener, a production inspector, a sorter or an electron tube assembler with his exertional and nonexertional limitations, and that there were approximately 414,000 of these jobs available in the national economy satisfied the Secretary's burden of showing the existence of alternative substantial gainful activity suited to Manns' physical and vocational capabilities. Winship also testified that such sedentary jobs would be available in afternoon shifts so as to accommodate Manns' morning Methadone treatment needs. (R. 79).
Therefore, in this case, there is substantial evidence in the record supporting the ALJ's conclusion that Manns' can perform substantial gainful activity despite his limitations. Since the ALJ determined that Manns would be able to be employed in positions such as a film screener, tube assembler, or sorter, the ALJ found Manns not to be disabled. (R. 20). The court agrees. The court finds that the relevant circumstances indicate that Manns can obtain an unskilled sedentary position, in the national economy, and, therefore, he is not entitled to Supplemental Security Income benefits.
Accordingly, there is substantial evidence in the record to support the ALJ's finding that Manns is not disabled within the meaning of the law.
Based on the foregoing analysis, I recommend that Defendant's motion for judgment on the pleadings be GRANTED.
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED: February 16th, 1995
Buffalo, New York
Pursuant to 28 U.S.C. § 636(b)(1), it is hereby
ORDERED that this Report and Recommendation be filed with the Clerk of the Court.
ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of the Court within ten (10) days of receipt of this Report and Recommendation in accordance with the above statute, Rules 72(b), 6(a) and 6(e) of the Federal Rules of Civil Procedure and Local Rule 30(a).
Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Court's Order. Thomas v. Arn, 474 U.S. 140, 88 L. Ed. 2d 435, 106 S. Ct. 466 (1985); Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989); Wesolek v. Canadair Limited, 838 F.2d 55 (2d Cir. 1988).
Let the Clerk send a copy of this Report and Recommendation to the attorneys for the Plaintiff and the Defendant.
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED: February 16th, 1995
Buffalo, New York