United States District Court, W.D. New York
May 5, 2004.
AMY FREDERICK, Plaintiff,
JO ANNE BARNHART, Commissioner of Social Security,[fn1] Defendant
The opinion of the court was delivered by: DAVID LARIMER, Chief Judge, District
*fn1 Plaintiff's complaint names former Acting Commissioner of Social
Security Larry G. Massanari as the defendant. Jo Anne B. Barnhart, the
current Commissioner, automatically is substituted as the defendant
pursuant to Fed.R.Civ.P. 25(d)(1).
DECISION AND ORDER
This is an action brought pursuant to 42 U.S.C. § 405(g) and
1383(c)(3) to review the final determination of the Commissioner of the
Social Security Administration ("the Commissioner") that Amy Frederick
("plaintiff) is not entitled to benefits under the Social Security Act
("the Act") pursuant to 20 C.F.R. § 404.1535 and 416.935 because
alcoholism was found to be a contributing factor material to the
determination of disability. Plaintiff applied for Social Security
disability insurance benefits ("SSD") and Supplemental Security Income
disability benefits ("SSI") on December 21, 1998 alleging an onset date of December 4, 1998. (T.
76-82).*fn2 Plaintiff asserts she was unable to work due to mental
impairments, including anxiety, depression, and a bipolar disorder. (T.
Plaintiff's application was denied initially and on reconsideration.
(T. 44-51, 55-57, 463-67). Plaintiff requested a hearing before an
Administrative Law Judge ("ALJ"), which was held on July 7, 2000. (T.
23-43). The ALJ, after considering all of the evidence, found that
plaintiff was disabled based on mental impairments. (Tr. 15-16, 19-22).
However, the ALJ determined that because plaintiff's alcoholism was a
contributing factor material to her disability, she was not eligible for
SSD or SSI benefits. (T. 16-18). The ALJ's decision became the final
decision of the Commissioner when, on March 16, 2001, the Appeals Council
denied plaintiff's request for review. (T. 6-8).
Plaintiff timely commenced this action to review the Commissioner's
decision. The Commissioner moves for judgment on the pleadings pursuant
to Fed.R.Civ.P. 12(c), and seeks an affirmance of her decision that
plaintiff cannot be considered disabled due to her alcoholism. (Dkt. #5).
Plaintiff cross-moves to remand the case for the calculation and award of
benefits. (Dkt. #9). As discussed below, the Commissioner's decision is
reversed, and this matter is remanded solely for the calculation and
payment of benefits.
Plaintiff was born on March 29, 1968. (T. 28). She graduated from high
school and completed a two-year degree in chemical technology from
Corning Community that she took three and one-half years to complete. (T. 28; 263). She has two children,
a girl born in 1988 and a son born in 1996. (T. 427). Plaintiff has an
extensive list of intermittent employment, including grocery work,
restaurant work, adult care, and various types of employment at temporary
employment agencies. (T. 101, 191). Her last job was with U.S. Salt
Corporation lab doing quality control testing on salt products. (T. 29).
She was fired on December 4, 1998, because she was repeatedly tardy and
suffered from depressive symptoms at work, including crying during the
day and the inability to concentrate or remember tasks. (T. 29, 123, 144,
146-47, 158-59, 161, 171-72).
Plaintiff has a long history of mental illness and alcohol abuse. She
was sexually abused as a child and raped as a teenager. (T. 366, 369).
She first reported depression and hallucinations and first attempted
suicide around the age of fifteen. (T. 258, 369). By the time of the
ALJ's hearing, she had been admitted for in-patient psychiatric treatment
seven times. Her eighth in-patient treatment was at a facility that
treats both alcohol abuse and mental illness. She also has a history of
out-patient psychological counseling for her mental impairments and for
alcohol abuse. (T. 37-38). At the time of the hearing she was residing
at MICA, a group home for individuals with mental illness and addiction
problems, where professionals monitored her daily activities and her
medications. (T. 27, 38-39). Plaintiff's treating physicians have
diagnosed her as having bipolar disorder with psychotic features,
depression, anxiety, post traumatic stress disorder, affective disorder,
personality disorder, and alcohol abuse. (T. 196, 207, 226, 264). She had
been treated with different medications, including Tegretol, Zoloft,
Trilafon, Remeron, and Prozac, but with little success. (T.195, 205, 263,
315, 316, 439, 470). DISCUSSION
I. Standard for Determining Disability
A person is considered disabled when she 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);1382c(a)(3)
(A). In order to determine whether a claimant is disabled, an ALJ employs
a five-step inquiry:
The first step determines whether the claimant is
engaged in `substantial gainful activity.' If
[s]he is, benefits are denied. If [s]he is not
engaged in such activity, the process moves to the
second step, which decides whether the claimant's
condition or impairment is `severe' i.e.,
one that significantly limits [her] physical or
mental ability to do basic work activities. If the
impairment is not severe, benefits are denied. If
the impairment is severe, the third step
determines whether the claimant's impairments meet
or equal those set forth in the `Listing of
Impairments' . . . contained in subpart P,
appendix 1, of the regulations. . . . If the
claimant's impairments are not listed, the process
moves to the fourth step, which assesses the
individual's `residual functional capacity' (RFC);
this assessment measures the claimant's capacity
to engage in basic work activities. If the
claimant's RFC permits [her] to perform [her]
prior work, benefits are denied. If the claimant
is not capable of doing [her] past work, a
decision is made under the fifth and final step
whether, in light of his RFC, age, education, and
work experience, [s]he has the capacity to perform
other work. If [s]he does not, benefits are
Bowen v. City of New York, 476 U.S. 467
, 470-71 (1986)
(citations omitted) (explaining the process for determining eligibility
for SSI and SSD).
II. Ineligibility for Benefits Where Alcoholism is "Material" to
Finding of Disability
Pursuant to42 U.S.C. § 423(d)(2)(C) and 1382c(a)(3)(J), a claimant
found to be "disabled" after employment of the five-step sequential
evaluation will not be considered disabled within the meaning of the Act
"if alcoholism . . . would (but for this subparagraph) be a
contributing factor material to the Commissioner's determination that the individual is
disabled." The "key factor" in determining whether alcoholism is a
"material" factor is whether the claimant would still meet the definition
of disabled under the Act if she stopped using alcohol.
20 C.F.R. § 404.1535(b)(1); 416.935(b)(1).
The regulations provide that, where there is evidence of alcoholism,
the Commissioner must identify which physical and mental limitations
would still remain assuming the claimant did not use alcohol. Then, the
Commissioner must analyze whether these limitations would be disabling by
themselves. Id. at §§ 404.1535(b)(2); 416.935(b)(2). If
plaintiff's remaining limitations would still be disabling independent of
her alcoholism, then alcoholism will not be a contributing
factor material to disability and plaintiff will be entitled to SSI and
SSD benefits. Id. at §§ 404.1535(b)(2)(ii);
416.935(b)(2)(ii). If, however, the Commissioner determines that
plaintiff's remaining limitations would not be disabling, then alcoholism
will be considered a "material" factor and plaintiff will not be eligible
to receive benefits. Id. at §§ 404.1535(b)(2)(i);
The burden is on the disabled claimant to prove that her alcoholism is
not a contributing factor material to disability. See 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); see also Birdsall
v. Barnhart, No. 03-CV-448, 2004 WL 834686, *8 (D. Conn. Mar. 12,
2004); Ostrowski v. Barnhart, No. 01-CV-2321, 2003
WL22439585, *3 (D. Conn. Oct. 10, 2003). III. The ALJ's Decision
Here, the ALJ proceeded through step three of the five-step inquiry.
See Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1999);
20 C.F.R. § 404.1520, 416.920. At the first step, the ALJ found that plaintiff
had not engaged in substantial gainful activity since December 4, 1998.
(T. 14). Next, the ALJ determined that plaintiff suffered from a "severe"
impairment, namely bipolar disorder with psychotic features, borderline
personality disorder, and alcohol abuse. Id. At the third step
in the sequential evaluation, the ALJ found that plaintiff's mental
impairments were severe enough that they met the requirements of Listing
12.04 (Affective Disorders)*fn3 of the Commissioner's Listing of
Impairments, found at 20 C.F.R. Part 404, Subpart P, Appendix 1.
Specifically, the ALJ found that the medical evidence demonstrated that
plaintiff suffered from elements of depressive and manic syndrome,
including hallucinations, delusions, and/or paranoid thinking,
anhedonia,*fn4 thoughts of suicide, feelings of guilt or worthlessness,
difficultly concentrating or thinking, and involvement in activities that
have a high probability of painful consequences which are not recognized.
He also found that plaintiff had marked limitations of function in
activities of daily living and maintaining social functioning. (T. 15).
Further, the ALJ cited clinical treatment notes that showed that
plaintiff believed that staff at her mental health clinic and others
followed her at times, and that she was afraid of people because she thinks that "they know about her." (T. 15). He also
recounted an incident that led to a criminal charge of arson in which
plaintiff set fire to her kitchen curtains but had not remembered doing
so. The ALJ noted another incident where plaintiff stabbed her husband
with a knife during an argument.
The ALJ noted that plaintiff had been hospitalized on numerous
occasions for suicidal ideation and/or attempted suicide, and for her
loss of adaptive behavior. (T. 15-16). He found that her memory,
attention, judgment, and concentration were poor, her affect labile,*fn5
and that she had difficulty trusting people and leaving home to do
activities. (T. 15). The ALJ further found that plaintiff's interests
were constricted and that she spends her days caring for her young son
and drinking alcohol. Plaintiff admitted to having visual hallucinations
and to seeing changing faces on the walls. Based on all of this evidence,
the ALJ found that plaintiff "is incapable of sustaining the performance
of even simple job tasks." (T. 16). Thus, the ALJ found that plaintiff
Nevertheless, the ALJ held that plaintiff was not disabled under the
Act because her alcoholism was a contributing factor material to the
determination of her disability. According to the ALJ:
[Plaintiff's] mental functional limitations would
significantly improve if she no longer used
alcohol. Her ability to maintain attention and
concentration for extended periods would greatly
improve. She would be able to complete a normal
work day and work week without interruptions. She
would be capable of performing simple repetitive
work tasks on a sustained basis.
[Plaintiff] has a mood disorder which is
exacerbated by alcohol abuse. Her mood is
stabilized by medication when she is not drinking.
She decompensates and needs hospitalization when drinking [.W]hile she has
a severe psychiatric impairment, drug and alcohol
abuse is material in the case.
In reaching his conclusion, the ALJ referred to evidence that
plaintiff's psychiatric hospitalizations were preceded by episodes of
drinking and that plaintiff experienced increased anxiety, depression and
paranoia when she drinks alcohol. He also cited evidence that plaintiff
admitted to drinking heavily before certain episodes of "acting out
behavior" and that she did not act impulsively when she was not drinking.
He further cited to the fact that plaintiff was able to work part-time in
August 1998 (at a time when she apparently was not drinking), despite
ongoing anxiety and depression. (T. 16-17).
The ALJ went on to state:
The claimant's psychiatric disorder responds to
treatment when she is sober. In March 1998, the
claimant was briefly hospitalized after having a
fight with her spouse. At the time of discharge,
she had returned to her normal level of
functioning after being stabilized on medication.
. . . when the claimant abuses alcohol, she
suffers decompensation with worsening of affective
symptoms and the addition of psychotic symptoms.
When she abstains from alcohol use, her mood
disorder is well controlled in a remitted state
and the claimant has the ability to
understand/recall instructions, sustain
concentration, interact socially, and adapt to
change. The undersigned finds that drug and
alcohol addiction is material to the finding of
If the claimant abstained from alcohol use, she
would be capable of performing unskilled work on a
sustained basis. Given this fact and considering
the range of work at all exertional levels which
the claimant is still functionally capable of
performing, in combination with her age,
education, and work experience, and using the
above-cited Section 204.00, Appendix 2, Subpart P,
Regulations No. 4 as a framework for
decisionmaking, the claimant is not disabled.
(T. 18). IV. Standards of Review
The Commissioner's decision that plaintiff was ineligible to receive
benefits must be affirmed if it applies the correct legal standards and
is supported by substantial evidence. 42 U.S.C. § 405(g); 1383(c)(3);
Shaw v. Carter, 221 F.3d 126, 131 (2d Cir. 2000); Balsamo v.
Chater, 142 F.3d 75, 79 (2d Cir. 1998). Substantial evidence is
defined as "`more than a mere scintilla. It means such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.'"
Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting
Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). If
the Commissioner's decision "rests on adequate findings supported by
evidence having rational probative force," a district court cannot not
substitute its own judgment for that of the Commissioner. Veino v.
Barnhart, 312 F.3d 578, 586 (2d Cir. 2002); see also Melville v.
Apfel, 198 F.3d 45, 52 (2d Cir. 1999) ("[i]t is not the function of
a reviewing court to decide de novo whether a claimant was
Such a deferential standard, however, is not applied to the
Commissioner's conclusions of law. Townley v. Heckler,
748 F.2d 109, 112 (2d Cir. 1984); accord Tejada v. Apfel, 167 F.3d 770,
773 (2d Cir. 1999). The Court must determine if the Commissioner's
decision applied the correct legal standards in finding that plaintiff
was not disabled. "Failure to apply the correct legal standards is
grounds for reversal." Townley, 748 F.2d at 112. Only after
finding that the correct legal standards were applied should the Court
consider the substantiality of the evidence. Johnson v. Bowen,
817 F.2d 983, 985 (2d Cir. 1987). "`Where there is a reasonable basis for
doubt whether the ALJ applied correct legal principles, application of
the substantial evidence standard to uphold a finding of no disability
creates an unacceptable risk that a claimant will be deprived of the
right to have her disability determination made according to the correct
legal principles.'" Schaal v. Apfel, 134 F.3d 496, 504 (2d
Cir. 1998) (quoting Johnson, 817 F.2d at 986).
V. Analysis of Plaintiff's Mental Impairments and Alcoholism
I agree with the plaintiff that the Commissioner's decision that
alcohol is a contributing factor material to the finding of disability is
based on legal error and is not supported by substantial evidence. The
ALJ erred by failing to determine which of plaintiff's mental impairments
would still exist if she stopped using alcohol and by failing to
determine whether these limitations would be disabling. In addition, the
ALJ improperly accorded more weight to the opinions of non-examining,
non-treating physicians than to the opinions of plaintiff's treating
sources, and he substituted his own opinion for competent medical
opinion. Applying the correct legal standards to all of the evidence in
the record, including the medical evidence before the Appeals Council,
compels the conclusion that plaintiff would still be disabled as a result
of mental impairments even if she stopped using alcohol.
A. 20 C.F.R. § 404.1535 and 416.935
The ALJ failed to follow the Commissioner's regulations in deciding
that plaintiff's alcoholism is material to her disability. Pursuant to
20 C.F.R. § 404.1535 and 416.935, the ALJ was required to determine
which of the many psychological impairments that he found plaintiff
suffered from existed independently from her alcohol use and then
determine whether those limitations were disabling. See
20 C.F.R. § 424.1535(b)(2);416.935(d)(2). The ALJ found that the medical
evidence supported a finding that plaintiff suffered from a laundry list
of psychological impairments and symptoms that met the severity
requirements of a Listed Impairment. However, he never indicated which of these impairments would still exist if
plaintiff did not abuse alcohol. Instead, the decision glosses over this
analysis by stating simply that plaintiffs "mental functional limitations
would significantly improve" if she stopped using alcohol. (T. 16). This
is insufficient to comply with the applicable regulations and, therefore,
the analysis of whether plaintiff's alcoholism was material to her
disability is incomplete.
For instance, the ALJ never addresses whether plaintiff would continue
to suffer from bipolar disorder with psychotic features, borderline
personality disorder, paranoia, delusions, or hallucinations if she
stopped using alcohol. Nor does the decision discuss whether plaintiff
would continue to suffer from depressive and manic syndrom elements,
including feelings of guilt or worthlessness, suicidal ideation,
anhedonia, or difficulty concentrating or thinking. Instead, the ALJ's
decision focuses on the fact that certain psychological symptoms become
worse when plaintiff uses alcohol. However, a finding that there would be
improvement in her symptoms is not dispositive of whether her
alcoholism is material to her disability. It only proves that her
psychological impairments were exacerbated by alcohol, but it says
nothing of whether plaintiff still would have disabling psychological
impairments if she abstained from abusing alcohol.
The ALJ needed to identify plaintiff's remaining limitations so that he
could complete the materiality analysis by determining whether these
impairments (absent alcohol abuse) were themselves disabling within the
meaning of the Act. By failing to do so, the ALJ never determined
whether, absent alcohol abuse, plaintiff's mental impairments would still
meet the severity of Listing 12.04 for Affective Disorders. Therefore,
his decision regarding plaintiff's alcoholism must be reversed.
Brueggemann, 348 F.3d at 694 (ALJ committed reversible error by
failing to follow the procedures outlined in 20 C.F.R. § 404.1535);
accord Ingram v. Barnhart, 72 Fed. Appx. 631, 2003 WL 21801532 (9th Cir. Aug. 4, 2003) (unpublished opinion) (reversing
ALJ decision regarding the effects of plaintiff's alcoholism where the
ALJ committed legal error by failing to identify which of plaintiff's
impairments would still exist if she stopped using alcohol).
B. Treating Physician Opinions
In addition, reversal is required because the ALJ failed to give
plaintiff's treating physicians' opinions concerning plaintiff's
impairments adequate weight. It is well-settled that "the medical opinion
of a claimant's treating physician is given controlling weight if it is
well supported by medical findings and not inconsistent with other
substantial record evidence." Shaw, 221 F.3d at 134;
see 20 C.F.R. § 404.1527(d)(2); 416.927(d)(2). In
determining what weight to give a treating physician's opinion, the
Commissioner must consider: (1) the length, nature and extent of the
treatment relationship; (2) the frequency of examination; (3) the
evidence presented to support the treating physician's opinion; (4)
whether the opinion is consistent with the record as whole; and (5)
whether the opinion is offered by a specialist.
20 C.F.R. § 416.927(d); 416.927(d). Further, the ALJ must articulate
his reasons for assigning the weight that he does accord to a
treating physician's opinion. Shaw, 221 F.3d at 134.
Here, the ALJ failed to make any such findings with respect to the
medical opinions of Dr. Paul Povinelli, Dr. Faiz Khan, and Dr. Kyung
Chun, all of whom treated plaintiff at one time or another. The ALJ never
explained how much weight he gave to their findings in reaching his
conclusion. See 20 C.F.R. § 404.1527(d)(2), 416.927(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 omitted). This error is not harmless here because, as discussed below, the
opinions and records of plaintiffs treating physicians support the
conclusion that plaintiff suffers from numerous psychological impairments
that would still exist even if she stopped abusing alcohol. The ALJ,
however, failed even to discuss many of these opinions in his decision.
1. Medical Evidence of Plaintiff's Mental Impairments
Plaintiff has been treated by a number of doctors since 1995 in
connection with her various in-patient and out-patient treatment
programs. Plaintiff was admitted to Elmira Psychiatric Center on August
17, 1995 as an in-patient for three weeks after she attempted to set the
curtains of her house on fire and expressed suicidal intentions.
Plaintiff was intoxicated at the time of her admission. (T. 350). Dr.
Paul Povinelli, a psychologist, performed an extensive psychological
examination and assessment of plaintiff fourteen days after her admission
that included a battery of psychological tests. (T. 361-65).
Specifically, Dr. Povinelli found that plaintiff suffered from
significant mental impairments, including a high level of anxiety,
paranoia, and hypervigilance, flight of ideas, and unorganized thinking,
which he opined were consistent with a diagnosis of "a recurrent
affective disorder with periods of manic-like behavior, alternating with
depression and periods of uninhibited behavior which tend to be somewhat
psychotic." (T. 362-63). According to Povinelli, plaintiff was
"ill-equipped to assume mature and independent roles in life. She is
lacking functional competencies and avoids self assertion." (T. 362). He
diagnosed plaintiff with bipolar disorder, most recent episode hypomanic
with transient psychotic features, alcohol abuse, and dependent and
passive-aggressive personality traits. (T. 364). Dr. Povinelli also noted that plaintiff "has a very negative reaction
when alcohol enters into her system." (T. 363). He cited the fact that
plaintiff had been "drinking heavily" prior to her most recent
psychiatric admission. (T. 363). Nevertheless, Dr. Povinelli opined that
the psychological tests were not affected by her pre-admission alcohol
use and that the results of those examinations gave a "valid picture of
her mental status and emotional functioning at this time." (T. 361).
Plaintiff began treating with Dr. Faiz Khan in November 1996 at the
Steuben County Mental Health Clinic and continued through early 1999. (T.
247-48; 374-399). Dr. Khan's treatment records note depression, anxiety,
suicidal gestures, paranoid thinking (including that people and/or cars
were following her), sporadic alcohol abuse, and continued domestic
violence problems with her husband. (T. 374-99). Dr. Khan tried plaintiff
on a variety of psychiatric medications during this time, including
Paxil, Trilafon, Serzone, Zyprexa, Remeron, Tegretol, and Vistaril, which
had varying degrees of success. (T. 377). Dr. Khan noted that plaintiff
had "bad experiences in the past while working at Corning Glass. Lately,
she even has trouble going to stores. She is afraid of people and
sometimes she thinks that they know about her." (T. 377). He also noted
that plaintiff struggled with fatigue during the day due to her
psychotropic medications. (379, 380, 388, 389).
Throughout 1998, Dr. Khan noted that plaintiff went through periods
where she drank alcohol and other times when she tried to remain
abstinent. (T. 381, 394, 395). He advised plaintiff that "she should not
drink while taking medication, because that will make things worse." (T.
395). In August 1998, plaintiff reported to Dr. Khan that she was not
using alcohol at that time. Nevertheless, he found that she was
depressed, anxious, and "feeling panicky." Further, plaintiff admitted
that she was having difficulty taking her medications regularly. (T.
396-97). Moreover, on or about plaintiff's alleged onset date in December
1998, Dr. Khan found that plaintiff was anxious, tense, and depressed, and noted that she was having panic
attacks. He also noted that when plaintiff attempts to work, "she gets
sick" and then gets fired for being unreliable. (T. 247-48).
While treating with Dr. Khan, plaintiff was hospitalized twice. She was
admitted a second time to the Elmira Psychiatric Center in March 1998 for
approximately thirty days for continued treatment of her bipolar illness
with psychotic features because of a relapse of her symptoms that could
not be adjusted through medication. Plaintiff was admitted in a very
manic and paranoid state, and was experiencing visual and olfactory
hallucinations. (T. 209). Plaintiff had recently attacked her husband
with a knife during a fight. (T. 209). Dr. Povinelli conducted another
metal status examination of plaintiff during this hospital stay. (T.
209-211). He noted that she had a long history of psychotic range and
affective disturbances since 1988, as well as a history of alcohol abuse.
(T. 210). He found that she currently was suffering from "a very clear
bipolar disorder with psychotic features, manic phase" and "alcohol
abuse." (T. 210).
Dr. Povinelli also noted that "heavy drinking usually precipitates her
psychotic decompensations." (T. 209). Nevertheless, the medical records
from this psychiatric admission indicate clearly that plaintiff had
mental illnesses that exist apart from her alcohol abuse, including
bipolar disorder, hypomanic with transient psychotic features, and a
personality disorder with dependent and passive aggressive traits. (T.
196). Although alcohol tended to exacerbate these conditions, plaintiff's
in-patient treatment focused primarily on treating her mental illnesses.
Her medications were adjusted, the dosages were monitored closely, she
received individual and group psychotherapy, and completed activity
programs that required maintained concentration and an absence of
paranoid thinking. Her condition was noted to have improved on discharge
and "she was able to return to her normal level of functioning" (which
was not defined). (T. 196). On discharge, it was recommended that she receive follow up treatment for "both
her alcohol abuse and for her affective disorder." (T. 196).
A few months later, plaintiff was admitted to Saint Joseph's Hospital
for a week in July 1998 for extreme depression and suicidal ideation. On
discharge, she was found to be "somewhat more emotionally stable but
remained severely depressed." (T. 244). Plaintiff was treated there by
Dr. Jeannine Bordonaro. Dr. Bordonaro noted that although plaintiff had a
history of alcohol use, she was not drinking prior to her admission.
Plaintiff sought counseling and treatment rather than acting impulsively
and taking an overdose of pills, which could well have occurred if
plaintiff had been under the influence of alcohol. (T. 427-33). Dr.
Bordonaro found that plaintiff did not act impulsively as long as she was
not drinking. (431). However, impulse control was not plaintiff's only
mental impairment. She diagnosed bipolar and personality disorders and
depression. (T. 427).
From March 1999 through 2000, plaintiff sought more intensive
treatment, three days a week, at Steuben County Community Mental Health
Center and Alcoholism/Substance Abuse Services Day Treatment Program. (T.
258-319). While there, she was seen by her treating psychiatrist, Dr.
Kyung Chun, and her treating social worker and counselor, Angela
Jeronimo. (T. 258-319). She attended group and individual therapy,
received alcohol counseling, and various skills training. Plaintiff was
diagnosed with bipolar disorder with psychotic features, post-traumatic
stress disorder, alcohol abuse and caffeine intoxication. She complained
of increased anxiety, suicidal thoughts, and paranoid thinking. Dr. Chun
worked with plaintiff to find an appropriate level of psychiatric
medication, and adjusted the type and dosage of her medications a number
of times. (T. 291, 308, 315). Plaintiff's compliance with her medication
regimen varied. At times, she abused the medication, once requiring a visit to the Corning Hospital
Emergency Room in September 1999. (T. 214-15).
During this time period, plaintiff's alcohol abuse fluctuated between
drinking on a daily basis to periods of sobriety that lasted for weeks at
a time. (T. 260. 281, 286, 311, 315, 319). Dr. Chun and Ms. Jeronimo
found that plaintiff used alcohol as "self-medication" for her mental
impairments, and both counseled her about that practice on a number of
occasions. (284; 286; 315). Even during periods of sobriety, however,
plaintiff experienced high anxiety, was unable to perform an everyday
routine, and continued to suffer from paranoia and thoughts that people
were trying to hurt her. (T. 277; 297).
In October 1999, Dr. Chun also completed a psychiatric review
evaluation and mental residual functional capacity assessment at the
request of the Office of Disability Determination. (T. 226-33). In it, he
gives his opinion that plaintiff suffers from severe depression,
debilitating anxiety, poor coping skills, limited insight, and poor
judgment. He diagnosed her with bipolar disorder with psychotic features,
post-traumatic stress disorder, and alcohol abuse. (T. 226; 231-33). When
asked about plaintiff's mental impairments when not abusing alcohol, Dr.
Chun concluded that plaintiff continued to suffer from mental
impairments. (T. 229). He referenced his residual functional capacity
assessment which concluded that plaintiff suffered from limiting
psychiatric impairments that precluded her from working. (T. 229;
Specifically, Dr. Chun reports in his evaluation of plaintiff that her
anxiety prevents her from completing tasks in her treatment groups, that
she suffers limited insight and judgment, does not take criticism well,
and is unable to remember or follow simple instructions. In addition, Dr.
Chun opined that plaintiff was unable to maintain an ordinary routine and
had a very difficult time adapting to changes. He found that she was limited in her
activities of daily living, understanding and memory, sustained
concentration and persistence, social interaction, and adaption. (T.
The ALJ's failure to discuss these opinions in his decision was legal
error and requires reversal. 20 C.F.R. § 404.1527(d)(2);
416.927(d)(2) ("We will always give good reasons in our . . . decision
for the weight we give your treating source's opinion.");
Schaal, 134 F.3d at 505. Further, given the length, nature and
extent of the treating relationship, the frequency of examination, the
objective evidence supporting their opinions, and their respective
specialties in the area of psychiatric medicine, I find that the ALJ
should have accorded controlling weight to them.
20 C.F.R. § 404.1527(d)(2); 416.927(d)(2); Shine v. Barnhart, No.
02-CV-1482, 2004 WL 834642, * 17 (D. Conn. Mar. 8, 2004) (reversing ALJ's
decision that plaintiff's alcohol and drug dependency were material to a
finding of disability because ALJ failed to address the opinions of
plaintiff's treating physicians and did not articulate the weight he gave
to their opinions); Corretjer v. Barnhart, No. 02 Civ. 1700,
2003 WL 1936146, *3-*4 (S.D.N.Y. Apr. 22, 2003) (reversing Commissioner's
decision finding alcohol and drug abuse material to disability where the
ALJ failed to properly weigh treating physician's opinion that
plaintiff's psychiatric impairments exist independently of her substance
abuse and persist even in periods of abstinence). 2. Other Consistent Medical Evidence
Furthermore, plaintiff's treating physician's opinions were consistent
with other evidence in the record. For instance, plaintiff was seen by
Dr. Ruana Starer on February 10, 1999 for an examining consultative
psychiatric evaluation at the request of the Office of Disability
Determination. (T. 437). Dr. Starer diagnosed plaintiff with bipolar
disorder, most recent episode mixed, and alcohol dependence in partial
remission. She also noted plaintiff's history of psychiatric
hospitalizations. (T. 439). Dr. Starer gave the following opinion of
plaintiff's mental condition:
Miss Frederick appears to be an individual who has
decompensated emotionally and can barely function
adequately. Her thought processes are disjointed,
tangential and hypomanic. Flight of ideas is
evident. Affect is quite labile. She has many
suicidal thoughts but denies any intent. Her
medications do not appear to be particularly
affective in controlling her symptoms. It was
therefore recommended to her that she seek further
help from her psychiatrist and counselor as soon
Given the severity of Miss Frederick's current
psychopathology, it is felt that she could not
work in any job capacity. She could not
concentrate adequately nor could she be reliable.
She also has a history of alcohol dependence and
has not entirely stopped drinking. Her inability
to express emotion appropriately would preclude
any adequate functioning in a job situation.
(T. 439). Although Dr. Starer does not speak directly to the issue of
the materiality of plaintiff's alcoholism to her disability, her opinion
indicates that plaintiff suffers from mental illnesses that are severe
and separately identifiable from her alcohol abuse, which Dr. Starer
found was in "partial remission."
In addition, Dr. Renaida Prado completed a mental RFC and psychiatric
review of plaintiff's medical records in December 1999. (T. 223-25;
249-57). Dr. Prado opined that plaintiff suffered from an affective
disorder, an anxiety related disorder, a personality disorder, and
alcohol addiction. (T. 249). She also found that plaintiff was markedly
limited in three areas of functioning, including the ability to sustain an ordinary routine without special
supervision, the ability to complete a normal workday and workweek
without interruptions from psychologically based symptoms and to perform
at a consistent pace without an unreasonable number and length of rest
periods, and the ability to accept instructions and respond appropriately
to criticism from supervisors. (T. 223-24). She further found that
plaintiff was moderately limited in ten areas of functioning, including
the ability to understand and remember detailed instructions, to maintain
attention and concentration, to perform activities within a schedule,
maintain regular attendance and punctuality, to work in coordination with
others, to interact appropriately with the general public, to get along
with coworkers, to respond appropriately to changes in the work setting,
and to set realistic goals or make plans independently. (T. 223-24). Dr.
Prado does not give an opinion as to the effects that plaintiff's
alcoholism have on her mental illnesses. Nevertheless, her opinion
regarding plaintiff's mental impairments are consistent with the treating
physician's opinions outlined above.
3. Improper Reliance on Non-Examining Sources
Although the ALJ's decision is silent as to the weight he accorded any
particular medical opinion, it is clear that the ALJ relied primarily on
the opinions of the non-examining, non-treating review physicians, Dr. C.
Richard Nobel, Dr. Theodore Cohen, and Dr. S. R. Bortner, who opined that
alcohol abuse was material to the determination of plaintiff's
disability.*fn6 (T. 442-55). In fact, most of the ALJ's findings regarding the effects of plaintiff's
alcoholism are taken verbatim from the review physician's opinions.
(See third full paragraph at T. 16, and T. 443; see also third
full paragraph at T. 17 and T. 455).
The ALJ's reliance on these opinions was legal error. First of all,
their opinions were offered in early 1999, before plaintiff began
treatment with the Steuben County Community Mental Health Center. As
such, none of the review physicians had the benefit of the medical
records from March 1999 through 2000, when plaintiff was being treated
regularly by Dr. Chun and Ms. Jeronimo. Second, their findings are not
consistent with the other medical evidence of record summarized above and
are not adequately explained. Lastly, none of the review physicians had a
treatment relationship with plaintiff.
In light of these facts, it was incorrect for the ALJ to place such
significant weight on their findings. See
20 C.F.R. § 404.1527(d)(3); 416.927(d)(3) ("because nonexamining
sources have no examining or treating relationship with you, the
weight we will give their opinions will depend on the degree to
which they provide supporting explanations for their opinions. We
will evaluate the degree to which these opinions consider all of the
pertinent evidence in your claim, including opinions of treating and
other examining sources."). C. Substantial Evidence
Finally, the ALJ's decision that plaintiff would not be disabled if she
stopped abusing alcohol is not supported by substantial evidence. The ALJ
did not cite evidence in the record to support his conclusion that if
plaintiff stopped using alcohol, her other obvious mental impairments
would somehow evaporate. See Rosa v. Callahan, 168 F.3d 72, 79
(2d Cir. 1999) (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)). The ALJ
also failed to cite medical evidence to support his conclusion that her
"mental functional limitations would significantly improve if she no
longer used alcohol." The ALJ's conclusions conflict with the medical
records from plaintiff's treating sources that indicate that plaintiff's
primary diagnoses are serious mental illnesses with a secondary issue
concerning alcohol abuse, an abuse frequently tied to plaintiff's efforts
to alleviate the symptoms of her mental disease. (T. 226-33, 258-59,
In addition to the evidence discussed above, plaintiff submitted a
report to the Appeals Council co-signed by her treating psychiatrist, Dr.
Chun, and her treating counselor, Ms. Jeronimo, that speaks directly to
the relationship between plaintiff's mental illness and her alcohol use.
(T. 470-71). Although the ALJ did not have this evidence before him, the
law is settled that this evidence is properly part of the record and can
be considered by the Court when reviewing the final decision of the
Commissioner. Perez v. Chater, 77 F.3d 41, 45 (2d Cir. 1996)
("the new evidence submitted to the Appeals Council following the ALJ's
decision becomes part of the administrative record for judicial review
when the Appeals Council denies review of the ALJ's decision."); see
also 20 C.F.R. § 404.976(b); 416.1476(b).
The report from her treating sources clearly summarized plaintiff's
condition: [Plaintiff] has a lengthy history of mental
illness and psychiatric treatment with numerous
hospitalizations and out-patient treatments. . . .
She has been diagnosed with Bipolar Disorder and
Post Traumatic Stress Disorder.
[Plaintiff] has made numerous suicidal gestures
including overdosing, ingesting nail polish
remover and cutting her writs and forearms. She
has often experienced anxiety attacks with severe
depression. She had difficulty concentrating and
exhibited flight of ideas on a consistent basis.
She often had suicidal thoughts with hopelessness,
worthlessness, and uselessness. Her mood was
labile and her behavior erratic. Overall,
[plaintiff] has shown little progress in her
ability to remain psychiatrically stable for
extended periods of time. Medications have proved
There have been periods during her out-patient
stays where [plaintiff] did use alcohol to "self
medicate." She would experience such emotional
pain that she resorted to alcohol to help
alleviate this pain. When she was sober for a
period of time, her mood did improve somewhat but
she continued to be plagued by paranoia, suicidal
thoughts, anxiety and "fears of being around other
people." [Plaintiff's] use of alcohol is typical
of a person who is unable to get relief from
medications and other normal coping strategies. It
is known that alcohol and other addictive
properties will not resolve mental illness but
only exacerbate one's symptoms.
It is our clinical opinion that [plaintiff's]
mental impairments do exist independently of her
alcohol problem. However, she does often attempt
to relieve symptoms of mental illness (i.e.,
depression, anxiety, bipolar disorder and
borderline personally disorder) with alcohol.
Based on the entire record, I feel that plaintiff has sustained her
burden to show that her disabling mental impairments continue to exist in
spite of her alcohol abuse.
A remand for the calculation of benefits is warranted because further
administrative proceedings or another hearing would serve no useful
purpose. Johnson, 817 F.2d at 986; Parker v. Harris,
626 F.2d 225, 235 (2d Cir. 1980); Martinez v. Commissioner,
262 F. Supp.2d 40, 49 (W.D.N.Y. 2003) ("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."). The record here has already been
developed fully for the relevant period, and there is substantial
evidence and persuasive proof of disability. Therefore, plaintiff is
entitled to benefits. See Corretjer, 2003 WL 1936146, at *3-*4
(remanding case solely for calculation of benefits where the ALJ failed
to accord controlling weight to treating physician's opinion that
plaintiff's psychiatric diagnoses, including PTSD, borderline personality
disorder, and major recurrent depression, exist independently of her
substance abuse); 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, 72 Fed. Appx. at 636-38, 2003 WL 21801532, at *3-*5 (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).*fn7
The Commissioner's motion for judgment on the pleadings (Dkt. #5) is
denied. Plaintiff's motion to remand for the calculation and payment of
benefits (Dkt. #9) is granted. The final decision of the Commissioner is reversed, and the case is remanded for
calculation and payment of Social Security disability insurance benefits
and Supplemental Security Income benefits.
IT IS SO ORDERED.