The opinion of the court was delivered by: DAVID LARIMER, Chief Judge, District
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).
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 ...