United States District Court, W.D. New York
February 4, 2004.
JOHN WHITE, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant
The opinion of the court was delivered by: DAVID LARIMER, Chief Judge, District
DECISION AND ORDER
This is an action brought pursuant to 42 U.S.C. § 405(g) to review
the final determination of the Commissioner of Social Security ("the
Commissioner") that John White ("plaintiff) is not disabled under the
Social Security Act ("the Act") and, therefore, is not entitled to
Supplemental Security Income benefits. Plaintiff applied for benefits
under Title XVI of the Act on March 20, 2000. (T. 96-99).*fn1 His
application was denied both initially and upon reconsideration. (T.
59-64, 70-73).*fn2 Plaintiff requested a hearing before an
Administrative Law Judge ("ALJ"), which was held
on November 8, 2001. (T. 26-58). The ALJ, after considering all of
the evidence, decided that plaintiff was not disabled within the meaning
of the Act. (T. 15-25). The ALJ's decision became the final decision of
the Commissioner when, on August 17, 2002, the Appeals Council denied
plaintiffs request for review. (T. 6-7).
Plaintiff timely appealed the Commissioner's decision and the action is
properly before this Court. Both the plaintiff and the Commissioner have
moved to remand the case pursuant to sentence four of section 205(g) of
the Act. (Dkts. ##5 and 8). Plaintiff argues that the ALJ erred in
determining that his alcoholism was a contributing factor material to the
determination of disability and seeks to remand the case solely for the
calculation of benefits. The Commissioner concedes that the ALJ applied
the law incorrectly, both when assessing plaintiff's credibility and when
considering whether alcoholism was material to plaintiff's disability.
The Commissioner, however, seeks to remand the case to the ALJ so that he
may make additional findings. I agree with the plaintiff.
For the reasons discussed below, the Commissioner's decision is
reversed, and this matter is remanded solely for the calculation and
payment of benefits.
A. Standards for Determining Disability
A person is considered disabled when he is unable "to engage in any
substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuous period of
not less than 12 months. . . ." 42 U.S.C. § 423(d)(1)(A). A
physical or mental impairment (or combination of impairments) is
disabling if it is of such severity that a person "is not only unable
to do his previous work but cannot, considering his age, education,
and work experience, engage in any other kind of substantial gainful work
which exists in the national economy. . . ."
42 U.S.C. § 423(d)(2)(A).
To determine whether a person is disabled within the meaning of the
Act, the ALJ proceeds through a five-step sequential evaluation.
Bowen v. City of New York, 476 U.S. 467, 470-71 (1986)
(citations omitted); Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir.
1999).*fn3 Once a person has proven steps one through four, the burden
then shifts to the Commissioner to show that the person "retains a
residual functional capacity to perform alternative substantial gainful
work which exists in the national economy." Rosa v. Callahan,
168 F.3d 72, 77 (2d Cir. 1999) (quoting Bapp v. Bowen,
802 F.2d 601, 604 (2d Cir. 1986)).
However, pursuant to 42 U.S.C. § 423(d)(2)(C), a person found to be
disabled after employment of the sequential evaluation, will not be
considered disabled within the meaning of the
Act "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." The regulations provide
that the "key factor" in this analysis is whether the Commissioner would
still find a person disabled if he stopped using alcohol.
20 C.F.R. § 416.935(b)(1). In this regard, the Commissioner must evaluate
which of a disabled person's current physical and mental limitations would
remain if plaintiff stopped using alcohol, and then determine whether those
remaining limitations would be disabling. Id. at §
416.935(b)(2). If his remaining limitations would still be disabling,
then alcoholism will not be a contributing factor material to the
determination of disability and the disabled person will be eligible for
benefits. The disabled person bears the burden of proving that his
alcoholism is not a contributing factor material to the disability
determination. Brueggemann v. Barnhart, 348 F.3d 689, 693 (8th
Cir. 2003); Ball v. Massanari, 254 F.3d 817, 821 (9th Cir.
2001); Doughty v. Apfel, 245 F.3d 1274, 1281 (11th Cir. 2001);
Ostrowski v. Barnhart, No. 01-CV-2321, 2003 WL 22439585, *3 (D.
Conn. Oct. 10, 2003).
B. The ALJ's Decision
Here, the ALJ found that plaintiff had a combination of impairments
(including an anxiety disorder, a personality disorder, alcohol
dependence, and a discogenic lumbar spine) that was severe but that did
not meet or equal a listed impairment. (T. 19). He found that plaintiff
had exertional impairments that limited him to performing light work.
However, he found that he had non-exertional mental limitations
(including psychological impairments) that prevented him from working at
all. The ALJ reached this conclusion with the assistance of a vocational
expert. Accordingly, at the fifth step of the sequential evaluation, the
ALJ found that plaintiff was disabled
within the meaning of the Act. (T. 22-23).*fn4 However, the ALJ
concluded that plaintiff's alcohol dependence was a contributing factor
material to his disability. According to the ALJ, absent alcohol
dependence, plaintiff would not have many of the identified psychological
and mental impairments that rendered him unable to work. (T.23).
The Commissioner concedes that the ALJ erred in his determination
regarding plaintiff's alcoholism because he failed to explain
sufficiently the basis for his decision and did not correctly assess
plaintiff's credibility. (Dkt. #8). Importantly, the ALJ cited no record
evidence to support his conclusion regarding the effects of plaintiff s
alcoholism on his mental impairments. See Rosa, 168 F.3d at 79
(an ALJ "`cannot arbitrarily substitute his own judgment for competent
medical opinion.'") (citing McBrayer v. Sec'y of Health and Human
Servs., 712 F.2d 795, 799 (2d Cir. 1983)). Therefore, the ALJ's
decision must be reversed.
The Commissioner asks that the Court remand the case so that the ALJ
can another opportunity to state the basis for his decision. (Dkt. #8). I
disagree. First, the Administration had an opportunity to correct this
error once before and send it back to the ALJ. However, it choose not to
do so when the Appeals Council summarily denied plaintiff's request for
review that was based on this error and on additional evidence of
plaintiff's impairments. (T. 6-7).
Second, a remand for the calculation of benefits is warranted because
further administrative proceedings or another hearing would serve no
useful purpose. Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir.
1987); Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980)
("Where the existing record contains persuasive proof of disability and a
remand for further evidentiary proceedings would serve no further
purpose, a remand for calculation of benefits is appropriate.");
Martinez v. Commissioner, 262 F. Supp.2d 40, 49 (W.D.N.Y.
2003). The record here has already been developed fully for the relevant
period. The ALJ completed the five-step sequential evaluation and
determined that plaintiff was disabled. Neither party disputes the ALJ's
finding that plaintiff has a combination of impairments that is severe
within the meaning of the Act. It is also undisputed that a vocational
expert testified that, given his impairments, no jobs exist in the
national economy that plaintiff could perform. (T. 57). Therefore, to
remand the case to the ALJ would result in unnecessary delay on an
application that plaintiff filed almost four years ago. When the Court
considers all of the relevant evidence and applies the proper legal
standards, substantial evidence exists that plaintiffs disabling mental
impairments would continue absent plaintiff's alcohol dependence.
Therefore, remand is appropriate but only for the calculation and payment
C. Evidence Regarding Plaintiff's Disability
Between July 2000 and June 2001, plaintiff was treated at the Genesee
Mental Health Clinic by Dr. Gregory Seeger, a psychiatrist, and Garry
Mount, plaintiff's therapist and a certified social worker. On August 22,
2000, Dr. Seeger completed a mental residual functional capacity
assessment of plaintiff and diagnosed him with a panic disorder without
agoraphobia, alcohol abuse, and a personality disorder. (T. 216-19). Dr.
Seeger found that plaintiff had "severe" or "moderately severe" mental
impairments in nine categories of assessment and "moderate" mental
in four others.*fn5 (T. 216-19). Dr. Seeger concluded that
plaintiff's "anxiety (panic) may improve slightly with counseling and
meds. Claimant's problems nevertheless render him unable to perform
substantial employment for at least twelve months." (T. 218). Dr. Seeger
opined that plaintiff's prognosis was "poor for panic disorder," but was
"good for alcohol abuse." (T. 218).
Dr. Seeger next examined plaintiff on November 3, 2000 and found that
plaintiff had a history of panic disorder with symptoms that "waxed and
waned over the years" but were "quite severe" at the time. (T. 213).
Plaintiff had "classic panic symptoms," including hyperventilation,
shortness of breath and tingling in hands, chest tightness, and a fear of
having a heart attack that resulted in plaintiff's trips to the Emergency
Department. Plaintiff also avoided crowded situations, and primarily
stayed at home. Dr. Seeger diagnosed plaintiff with a panic disorder that
had worsened to include agoraphobia, a history of alcohol abuse, and a
personality disorder. Dr. Seeger recognized that plaintiff had a history
of alcohol abuse, but stated that plaintiff and his wife reported that he
was sober. Importantly, as part of plaintiff's treatment for panic
disorder, Dr. Seeger did not refer him to alcoholism counseling or
treatment. (T. 213). This fact is significant because, according to
evidence that plaintiff submitted to the Appeals Council, Dr. Seeger was
the medical director of the Genesee Alcohol Treatment Center at the time
he evaluated plaintiff. (T. 288).
Plaintiff was also treated on approximately a monthly basis by Genesee
Mental Health Clinic social worker Garry Mount. (T.246-260). Mount's
records report that plaintiff had a panic disorder with significant
anxiety, tremulousness, and agoraphobia. Mount worked with plaintiff
individual therapy with the goal of having plaintiff master his
anxiety and panic attack symptoms. However, treatment proved to be
unsuccessful. Mount's reports indicate that, although plaintiff has a
history of alcoholism, he no longer abused alcohol and occasionally had a
few alcoholic drinks once a month. (T. 228, 251, 260). According to
Mount, plaintiff's self reports regarding his alcohol consumption were
"reliable" and were confirmed by his wife. (T. 260). Importantly, in a
report dated July 10, 2000, Mount stated that plaintiff "has a panic
disorder that has become more noticeable because he stopped drinking."
Plaintiff continued to treat with Mount between July 2001 and March
2002 at the Rochester Mental Health Center. In a report dated July 17,
2001, Mount states that he believed that plaintiff's "extremely rare" use
of alcohol "was not a high enough level to refer him to an alcohol and
drug clinic." (T. 228). Further, Mount's treatment records state that
through February 2002, plaintiff continued to present with significant
symptoms of panic and anxiety disorder and agoraphobia. (299-303).
Other reports from Mount filed with the Appeal Council elaborate on the
effect that plaintiff's alcoholism had on his mental impairments.
Specifically, in a letter to plaintiff's legal representative dated April
26, 2002, Mount reiterated his opinion that he did not find that
plaintiff was drinking alcohol frequently enough to refer him to an
alcohol treatment program. (T. 288). Mount also stated that plaintiff was
not disabled from working because of substance abuse and that, even with
limited improvements in his anxiety disorder, he was not able to work
full time at any meaningful employment. (T. 289).
In his decision, the ALJ did not mention Dr. Seeger's reports. Further,
although he stated that he reviewed the Genesee Mental Health Clinic
records carefully, he gave them "little weight"
because "they were not completed by a physician." (T. 22). This was
error. The Genesee Mental Health Clinic records include reports from Dr.
Seeger, a psychiatrist and an "acceptable medical source" according to
the Commissioner's regulations. See
20 C.F.R. § 416.913(a). At the very least, the ALJ should have considered Dr.
Seeger's records and provided an explanation as to the weight he gave Dr.
Seeger's findings. See 20 C.F.R. § 416.1527(d)(2); see
also Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999) ("Failure to
provide good reasons for not crediting the opinion of a claimant's
treating physician is a ground for remand.") (internal quotations
In addition, the ALJ erred by not giving appropriate weight to the
opinion of plaintiff's social worker. Although reports of a social worker
are not an "acceptable medical source" under the regulations,
see 20 C.F.R. § 416.913(a), the ALJ should have considered
Mount's records as "other source" evidence. 20 C.F.R. § 416.913(d);
Schaal v. Callahan, 993 F. Supp. 85, 94 (D. Conn. 1997) (ALJ
erred by not considering opinion of social worker); Marziliano v.
Sullivan, 177 F. Supp. 69, 75 (S.D.N.Y. 1991) (same); Social
Security Ruling 85-16, 1985 WL 56855, at *4 (S.S.A.) (other source
evidence, including reports of social workers, "may play a vital role in
the determination of the effects of impairment. . . .").
Consideration of Mount's reports was particularly important here given
that he is sole source that had a regular treatment relationship with
plaintiff. Bergman v. Sullivan, No. 88-CV-513, 1989 WL 280264,
*3 (W.D.N.Y. Aug. 7, 1989) (social worker's opinion is "a non-medical
source whose opinion concerning the nature and degree of plaintiff s
impairment is not only helpful, but critically important, since he is the
only treating source.").
Applying the correct legal standards to all of the relevant evidence
compels the conclusion that plaintiffs' mental impairments would still
exist even without his alcohol dependence. See
20 C.F.R. § 416.935(b)(2); Clark v. Apfel, 98 F. Supp.2d 1182, 1185-86 (D.
Or. 2000) (remanding case
solely for calculation of benefits where ALJ's decision regarding
plaintiff's drug addiction was not supported by substantial evidence and
was based on legal error); accord Ingram v. Barnhart, 72 Fed.
Appx. 631, 2003 WL 21801532 (9th Cir. Aug. 4, 2003) (unpublished opinion)
(remand solely for calculation of benefits where ALJ's determination
regarding the materiality of plaintiff's alcoholism was not supported by
substantial evidence and record compelled conclusion that plaintiff would
still be disabled absent alcoholism); cf. Ostrowski, 2003 WL
22439585, at *4-*5 (remanding case for reconsideration and further
development of the record where ALJ's determination regarding plaintiff's
alcohol and drug addiction was not supported by substantial evidence, the
medical evidence on this issue was "fundamentally inconclusive," the ALJ
failed to consider the effect of plaintiff's psychological impairments on
his residual functional capacity, and no vocational expert testimony was
taken); Eltayyeb v. Barnhart, 02 Civ. 925, 2003 WL 22888801
(S.D.N.Y. Dec. 8, 2003) (plaintiff's alcohol and marijuana dependence
considered a contributing factor material to his disability where there
was medical evidence from multiple sources that it exacerbated
plaintiff's depression, paranoia, and social isolation); Tablas v.
Apfel, 98 Civ. 5430, 2000 WL 423914 (S.D.N.Y. Mar. 21, 2000)
(plaintiff's drug and alcohol dependence were contributing factors
material to disability where medical evidence showed that plaintiff
relapsed several times into alcohol and drug dependence and that his
impairments improved during periods of sobriety to the point he could
Plaintiff's motion for summary judgment and to remand (Dkt. #5) is
granted. The final decision of the Commissioner is reversed, and the case
is remanded for calculation and payment of Supplemental Security Income
benefits. The Commissioner's motion to remand (Dkt. #8) is denied.
IT IS SO ORDERED.