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May 5, 2004.

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).



  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. 29).

  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 awarded.
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); 416.935(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 ...

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