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WHITE v. COMMISSIONER OF SOCIAL SECURITY

February 4, 2004.

JOHN WHITE, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant



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

DECISION AND ORDER

INTRODUCTION

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 Page 2 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.

  DISCUSSION

  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 Page 3 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 Page 4 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 Page 5 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 ...


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