Very significantly, as pointed out by defendant, plaintiff's treating physician, Dr. Stewart Kaufman, did not believe that plaintiff was disabled from all work activity, and the record contains no further treatment for plaintiff's back after June 1989. On December 22, 1988, Dr. Kaufman advised plaintiff to find work that did not require heavy labor. (Rec. 105). Thereafter, on March 16, 1989, the doctor reported that he did not believe that surgery would solve plaintiff's problem and that plaintiff remained "at least markedly disabled for his previous work . . . ." (Rec. 105). Nonetheless, he advised consideration of testing and retraining. (Rec. 105). Finally, following plaintiff's last visit on June 22, 1989, Dr. Kaufman reported some " mild restriction of motion . . . some tenderness, no apparent neurologic deficits." (Rec. 106) (emphasis added). Very significantly, while he opined that plaintiff was "permanently disabled for iron work," he recommended that plaintiff consider "a light type of work." (Rec. 106). These opinions clearly support the ALJ's determination, as do the doctor's objective findings, which are summarized in defendant's brief and need not be repeated here.
Furthermore, as also correctly noted by defendant, plaintiff's own statements about his activities belie his disability claim. In a Disability Report dated January 11, 1994, plaintiff stated that his doctor restricted just heavy lifting and strenuous exercises. (Rec. 86). In addition, plaintiff reported that he cooked, cleaned, did laundry, shopped, cleaned up after himself, fished, went to the library, read, did crossword puzzles, attended A.A. and N.A. meetings, visited relatives and friends, and rode the bus. (Rec. 86).
On another form completed later that month, he reported that he shopped with his girlfriend, cooked and washed dishes every day, took out the trash daily, swept and mopped the floor every other day, and did the laundry once a week. (Rec. 94). He also stated that he went to meetings five times a week and to the Alcohol Council two to three time per week, riding the bus every day. (Rec. 94-95). In addition, when asked about his last two jobs, he did not report his back condition as being one of the reasons for leaving. Rather, he was fired or quit due to being "very stressed out and I was late and missed alot [sic] of days due to drug and alcohol abuse" and he "couldn't cope with the hours and the stress created by the state inspector." (Rec. 95).
Furthermore, when seen by Dr. William Rogers on April 26, 1994, plaintiff complained of " aches in the center of his lumbar spine on an intermittent basis," as well as "numbness in the left anterior thigh and left posterior calf upon awakening which then quickly resolves." (Rec. 274-75) (emphasis added). Plaintiff told the doctor he could sit for an hour, which he tolerated well, and walked extensively, without back complaints. (Rec. 275). His back bothered him the most while sleeping and upon awakening. (Rec. 275). The heaviest things he lifted were grocery bags. (Rec. 275).
Most recently, in a psychological evaluation completed in November 1994, it was reported that plaintiff "currently attends school and spends a good deal of time doing housework. He attends counseling and AA meetings. He plays with his 9 month old daughter and does some work around the house. He will also spend a good deal of time laying on the couch 'watching TV'. . . . [He] is able to cook and clean, but his girlfriend does the laundry and the shopping. . . ." (Rec. 301).
While plaintiff testified during the administrative hearing that his daily activities were much more limited,
the ALJ properly considered plaintiff's subjective complaints (Rec. 15), and substantial evidence supports his disability determination. The ALJ stated:
It should be noticed that the claimant continued working through 1990 engaging in heavy exertion, although he has the lumbar condition and history of alcoholism and drug abuse since at least 1986. Furthermore, the medical records do not reveal any frequent, intense or prolonged lumbar pain radiating to the extremities on a sustained basis through September 30, 1994. Rather, the claimant had occasional lumbar discomfort that allowed him to engage in light exertion . . . . The claimant indicated in the Disability Report that he could not engage in heavy lifting or strenuous exercise. However, he cooks, cleans, goes shopping and engages in other basic daily activities. He has recreational activities such as fishing and reading. He goes to Alcoholic Anonymous Meetings and has good social relations. . . .
The court also notes that several reports in the record regarding plaintiff's various admissions and treatment for drug and alcohol abuse contain information which supports defendant's determination concerning plaintiff's alleged back impairment. For example, a report completed on April 21, 1992, states regarding "MUSCULOSKELETAL SYSTEM - SPINE & EXTREMITIES," "Full ROM [range of motion] all joints. No back deformity." (Rec. 17). The final discharge note concerning that admission discussed plaintiff's general health but made no mention of any back complaints. (Rec. 181). Similarly, on July 2, 1992, in a Physical Examination and Assessment form, even when asked about plaintiff's musculoskeletal system, there was no indication of any back impairment or complaints. (Rec. 196, 198). Subsequently, in an intake form dated November 25, 1992, when asked to "list any current or past medical problems/conditions," plaintiff reported both a broken back and a left knee condition, both of which required physical therapy. Significantly, he indicated that both conditions were currently "Okay." (Rec. 237). In addition, he also stated on that form that during his free time, he enjoyed "bowling, hunting, fishing, crosswords, reading, movies, hiking." (Rec. 238). Certainly, these activities support the ALJ's determination.
A report written the following year reported that "most leisure time is now spent going to the YMCA, bicycling and reading." (Rec. 257). In the Medical History portion of that report, it stated that plaintiff stated that he was "generally healthy. Current physical ailments include: cold symptoms and a toothache and current treatment is Actifed for cold symptoms and Motrin for tooth pain. Adverse effects of alcohol and/or drug use on physical health is injury due to car accident (left knee). Past problems or disabilities include: a back injury in 1986. . . ." (Rec. 260) (emphasis added). Other documents in the record report similar information. See, e.g., Rec. 262 ("No medical problem."), 268, 271 ("Broken back in 1986, healed, with occasional stiffness."), 299 ("The client drove his bicycle to the interview."), 300 (When plaintiff was asked if he felt capable of working, he did not mention his back impairment as an impediment. Rather, he mentioned stress and difficulty remaining sober.).
In sum, the court finds that there is substantial evidence of record to support the ALJ's determination that plaintiff's back impairment was not disabling and that plaintiff had the RFC for light work.
PUBLIC LAW NO. 104-121
Earlier this year, on March 29, 1996, the Contract With America Advancement Act of 1996 was enacted, which contains amendments to portions of the Social Security Act. Pub. L. No. 104-121, 110 Stat. 847 (1996) (hereinafter "the amendments"). Significant to today's decision is section 105, entitled "Denial of Disability Benefits to Drug Addicts and Alcoholics" (hereinafter "the preclusion paragraph"), which provides in pertinent part: "an individual shall not be considered disabled for purposes of this title 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." Pub. L. No. 104-121 § 105(a)(1). Based upon the administrative record, there can be no question in this case that alcoholism and drug addiction would be a contributing factor material to the disability determination. See 20 C.F.R. § 404.1535 ("How we will determine whether your drug addiction or alcoholism is a contributing factor material to the determination of disability.").
The question remains, however, as to whether the recent amendments are to be applied retroactively to plaintiff's case. The amendments provide the following effective date for the preclusion paragraph:
(A) The amendments made by paragraphs (1) and (4) shall apply to any individual who applies for, or whose claim is finally adjudicated by the Commissioner of Social Security with respect to, benefits under title II of the Social Security Act based on disability on or after the date of the enactment of this Act, and, in the case of any individual who has applied for, and whose claim has been finally adjudicated by the Commissioner with respect to, such benefits before such date of enactment, such amendments shall apply only with respect to such benefits for months beginning on or after January 1, 1997.
Pub. L. No. 104-121 § 105(a)(5)(A) (emphasis added). Consequently, if plaintiff's claim was "finally adjudicated by the Commissioner" before March 29, 1996, he would be eligible for benefits up to January 1, 1997, due to his alcoholism and drug abuse. However, if his claim was not "finally adjudicated by the Commissioner" before March 29, 1996, he would be precluded from receiving benefits.
Plaintiff makes the conclusory argument that the amendments do not require that benefits be denied in this case. Without citing any authority, he contends that
subsequent administrative promulgations from the Social Security Administration have indicated that claims which are in 'the pipeline' will continue to be adjudicated where alcohol and drugs are alleged to be a material factor contributing to disability. All claimants who allege that there [sic] disabling condition is caused in part by addiction to alcohol and drugs will then be afforded the ability to reapply for benefits between the present time and January 1, 1997.