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Charles R. v. Michael J. Astrue

December 30, 2011

CHARLES R. KOWALSKE, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court

DECISION AND ORDER

1. Plaintiff Charles R. Kowalske challenges an Administrative Law Judge's ("ALJ") determination that he is not disabled within the meaning of the Social Security Act ("the Act"). Plaintiff alleges that he has been disabled since August 6, 2004 due to flu-like symptoms associated with hepatitis C treatment.(R. at 76, 87, 89, 606.)*fn1 Plaintiff contends that his impairments render him unable to work and, therefore, argues that he is entitled to disability benefits under the Act.

2. Plaintiff first filed an application for Supplemental Security Income ("SSI") on April 6, 2005. (Id. at 44.) That application was initially denied on August 13, 2005, after which he requested a hearing before an ALJ. (See id. at 44.) That hearing took place before ALJ Robert T. Harvey on January 8, 2008. (Id. at 575-601.) The ALJ considered Plaintiff's case de novo, and on March 28, 2008, issued a decision denying Plaintiff's application for benefits. (Id. at 25-36.) Plaintiff requested review, and on June 20, 2008, the Appeals Council vacated the decision and remanded the case to the ALJ for a new hearing and decision. (Id. at 37-43.) A second hearing took place before ALJ Harvey on January 15, 2009. (Id. at 602-25.) The ALJ issued a second decision on June 1, 2009 again denying Plaintiff's claim, as well as Plaintiff's claim under a May 14, 2008 application, which was consolidated and adjudicated with the claim on remand. (Id. at 10-24, 604.) Plaiintiff requested review, but this time the Appeals Council denied his request. (Id. at 6-9, 564-67, 569.) Plaintiff filed the current civil action challenging Defendant's final decision on April 26, 2010.*fn2

3. The parties subsequently filed Motions for Judgment on the Pleadings. Defendant filed its motion on October 12, 2010. Plaintiff followed suit on May 28, 2011.*fn3

For the following reasons, the parties' motions are denied, and this matter is remanded. 4. A court reviewing a denial of disability benefits may not determine de novo whether an individual is disabled. See 42 U.S.C. §§ 405(g), 1383(c)(3); Wagner v. Sec'y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the Commissioner's determination will be reversed only if it is not supported by substantial evidence or there has been a legal error. See Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983); Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979). Substantial evidence is that which amounts to "more than a mere scintilla," and it has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971). Where evidence is deemed susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld. See Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).

5. "To determine on appeal whether the ALJ's findings are supported by substantial evidence, a reviewing court considers the whole record, examining the evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from its weight." Williams on Behalf of Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). If supported by substantial evidence, the Commissioner's finding must be sustained "even where substantial evidence may support the plaintiff's position and despite that the court's independent analysis of the evidence may differ from the [Commissioner's]." Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992). In other words, this Court must afford the Commissioner's determination considerable deference, and will not substitute "its own judgment for that of the [Commissioner], even if it might justifiably have reached a different result upon a de novo review." Valente v. Sec'y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).

6. The Commissioner has established a five-step sequential evaluation process to determine whether an individual is disabled under the Act. See 20 C.F.R. § § 404.1520, 416.920. The United States Supreme Court recognized the validity of this analysis in Bowen v. Yuckert, and it remains the proper approach for analyzing whether a claimant is disabled. 482 U.S. 137, 140-42, 107 S. Ct. 2287, 2291, 96 L. Ed. 2d 119 (1987).

7. This five-step process is detailed below: First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the [Commissioner] next considers whether the claimant has a "severe impairment" which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the [Commissioner] will consider him disabled without considering vocational factors such as age, education, and work experience; the [Commissioner] presumes that a claimant who is afflicted with a "listed" impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the [Commissioner] then determines whether there is other work which the claimant could perform.

Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam) (quotations in original); see also Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999); 20 C.F.R. § 404.1520.

8. Although the claimant has the burden of proof on the first four steps, the Commissioner has the burden of proof on the fifth and final step. See Bowen, 482 U.S. at 146 n.5; Ferraris v. Heckler, 728 F.2d 582, 584 (2d Cir. 1984). The final step is divided into two parts: First, the Commissioner must assess the claimant's job qualifications by considering his physical ability, age, education and work experience. Second, the Commissioner must determine whether jobs exist in the national economy that a person having the claimant's qualifications could perform. See 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 404.1520(f); Heckler v. Campbell, 461 U.S. 458, 460, 103 S. Ct. 1952, 1954, 76 L. Ed. 2d 66 (1983).

9. In this case, the ALJ made the following findings with regard to the five-step process set forth above: (1) Plaintiff has not engaged in substantial gainful activity since August 6, 2004 (R. at 15); (2) Plaintiff's "alcohol abuse, depressive disorder, hepatitis C, status post partial hepatomegaly, cholecystectomy, abdominal pain and low back pain" are severe impairments (id. at 16); (3) whether or not Plaintiff stopped his substance abuse, his impairments or combination of impairments do not meet 20 C.F.R. § 404.1520(d); (4) if Plaintiff stopped the substance abuse, he would retain the residual functional capacity to do light work with various limitations (id. at 20);*fn4 (5) although Plaintiff is unable to perform his past relevant work (id. at 22), based on his age, education, work experience, and residual functional capacity, there would be a significant number of jobs in the national economy that he could perform if he discontinued his substance abuse. (Id. at 23). Ultimately, the ALJ concluded that Plaintiff was not under a disability as defined by the Act from August 6, 2004, through June 1, 2009, the date of the ALJ's decision. (Id.)

10. Plaintiff's sole challenge appears to be that the ALJ erred in finding Plaintiff had a substance abuse problem. According to Plaintiff, his medical issues are sufficient to show his complete disability without substance abuse constituting a contributing factor. Plaintiff concedes that alcohol "may be a problem," but argues that he "will not be cured and able to work if he never drinks alcohol again." (Docket No. 11, p.6.)

Defendant has not challenged the ALJ's initial determination that Plaintiff would be disabled if his substance abuse problems were made part of the analysis. Nor has Defendant challenged the ALJ's severity determination as to Plaintiff's remaining impairments. The only issue then is whether those impairments would satisfy the criteria at step 4.

Under the Act, "[a]n individual shall not be considered to be disabled for purposes of this title if alcoholism or drug addiction would be a contributing factor material to the Commissioner's determination that the ...


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