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Kelley v. Colvin

United States District Court, N.D. New York

February 13, 2014

RUTH KELLEY, Plaintiff,
CAROLYN COLVIN, Acting Commissioner of Social Security, Defendant.

MARK A. SCHNEIDER, ESQ., SCHNEIDER LAW OFFICE, Plattsburgh, NY, for Plaintiff.

PETER W. JEWETT, ESQ., Special Assistant U.S. Attorney, HON. RICHARD S. HARTUNIAN, United States Attorney for the Northern District of New York, Syracuse, NY, for Defendan.


DAVID E. PEEBLES, Magistrate Judge.

Currently pending before the court in this action, in which plaintiff seeks judicial review of an adverse administrative determination by the Commissioner, pursuant to 42 U.S.C. § 405(g), are cross-motions for judgment on the pleadings.[1] Oral argument was conducted in connection with those motions on February 10, 2014, during a telephone conference held on the record. At the close of argument I issued a bench decision in which, after applying the requisite deferential review standard, I found that the Commissioner's determination did not result from the application of proper legal principles and is not supported by substantial evidence, providing further detail regarding my reasoning and addressing the specific issues raised by the plaintiff in her appeal.

After due deliberation, and based upon the court's oral bench decision, a transcript of which is attached and incorporated herein by reference, it is hereby

ORDERED, as follows:

1) Plaintiff's motion for judgment on the pleadings is GRANTED.

2) The Commissioner's determination that plaintiff was not disabled at the relevant times, and thus is not entitled to benefits under the Social Security Act, is VACATED.

3) The matter is hereby REMANDED to the Commissioner, without a directed finding of disability, for further proceedings consistent with this determination.

4) The clerk is respectfully directed to enter judgment, based upon this determination, remanding the matter to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) and closing this case.

THE COURT: Thank you. I'll let that be the last word.

So, I have before me a plaintiff who was born in March of 1969. She's 44 years old. Well, she's almost 45. High school graduate. Has two children age 16 and 20. The 20-year-old, according to the record, lives with her during the school year. She last worked in November of 2009 and her prior work experience encompasses various positions.

It's very clear that the plaintiff suffers from mental impairments, as well as alcohol abuse and cannabis dependency. Among her mental impairments is a depressive disorder that worsened in 2007 through 2009 with the deaths of her brother in 2007, her father in 2008, her mother in 2010, and a suicide of an ex-boyfriend shortly after their breakup. She has had at least two failed attempts at rehabilitation, one at Conifer Park on another at a place called OASAS.

She has requested that she be provided with disability insurance benefits, filed an application on May 10, 2010 alleging an onset date of November 17, 2009. She has insurance coverage through December 31, 2014. A hearing was conducted by Administrative Law Judge Mary Sparks on July 6, 2011. ALJ Sparks issued a decision on October 14, 2011, finding that the plaintiff was not disabled at the relevant times and, therefore, not eligible for benefits. The Social Security Appeals Council denied review on May 22, 2014.

In her decision ALJ Sparks applied the five-step disability test and concluded when considering all of plaintiff's limitations, including those resulting from her alcohol and drug use, that she would be disabled. She concluded, however, that if it were not for the influence of the drug and alcohol use, she would not be disabled. A Residual Functional Capacity, or RFC, was determined, and that RFC was presented in the form of a hypothetical to a vocational expert who concluded that there are at least three jobs that the plaintiff would be capable of performing but for her alcoholism and drug dependency.

At this point the Court's task is well-defined and well understood. Under 42, United States Code, Section 405(g) I must determine: A, whether correct legal standards were applied; and B, whether the Commissioner's decision is supported by substantial evidence.

Substantial evidence is defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. The case is subject to the Contract with America Advancement Act of 1996, which addressed the influence of drug addiction and alcohol abuse on disability. The CAA, which is codified in part at 42, United States Code, Section 423(d)(2)(C), provides that an individual is not considered disabled for purposes of disability insurance and SSI benefits if alcoholism or drug addiction would be a contributing factor material to the Commissioner's determination that the individual is disabled.

To determine whether alcoholism is a contributing factor material to the determination of disability, both the Commissioner and a reviewing court must look to whether the claimant is disabled, and, if so, whether he or she would still be disabled absent the use of drugs or alcohol.

The burden of demonstrating that substance abuse is not a contributing factor to the disability determination rests, of course, with the claimant. Second Circuit's decision in Cage versus Commissioner, reported at 692 F.3d 118 from 2012 adequately states the legal principles associated with the Contract with America Advancement Act of 1996.

In this case I have several problems with the Commissioner's determination. There doesn't seem to be any issue or challenge with regard to steps one through four. I have before me a report by Dr. Hartman of a consultative exam administered in July of 2010 at a period of sobriety, at least according to the plaintiff, that in my view casts doubt on whether or not the plaintiff would be disabled but for alcoholism.

The obvious, more serious issue and Dr. Hartman identifies major depression disorder, general anxiety disorder and social phobia as diagnoses. I'll note parenthetically that on two separate occasions the Administrative Law Judge seems to minimize the mental diagnoses. At one point on page 26 of the Administrative Transcript she states, "The only documented diagnosis is alcohol dependence and cannabis abuse and finds little support for allegations of disabling symptomatology absent drug and alcohol abuse." And discounts the claimant's report that she suffers from significant levels of social anxiety. And yet both Dr. Hartman and her treating psychiatrist Dr. John Schenkel clearly reflect those diagnoses.

The CVPH report of August 14, 2009 at 375 of the Administrative Transcript also substantiates major depression. Plaintiff has been diagnosed at various times with GAF scores of 47, that is at page 474 to 477, and 48. And that is in I believe Dr. Schenkel's, one of Dr. Schenkel's reports. Of course, a GAF of 47 and 48 reflects serious symptoms such as suicidal ideations, severe obsessional rituals and frequent shoplifting, or any series of impairment of social, occupational or school functions, such as lack of friends or an inability to maintain employment.

Sarah Marlow, although she is not a physician and not a treating source, per se, under the Commissioner's regulations, she is someone whose opinions can be considered under Social Security Ruling 13-2. And her reports in my view also support the suggestion that if she stopped drinking, she would still have these mental and psychological issues.

The ALJ's determination is extremely deficient in the area of treating source. As the Commissioner acknowledges, there is no indication of what, if any, weight the ALJ gave to the opinions of Dr. Schenkel, who is clearly a treating source. And under the Commissioner's regulations and case law, when a treating source's opinions are repudiated, there is a process or steps that the ALJ must go through in order to allow for meaningful judicial review. That did not happen in this case.

I also find that the ALJ's credibility determination is lacking in meaningful analysis and does not meet the requirements of the Commissioner's regulations and case law concerning credibility determinations, and it's important to allow for meaningful judicial review to go through the analysis as envisioned by the regulations.

So, in sum, I find that the Commissioner's determination is not supported by substantial evidence.

And the last issue to be addressed is remand. Obviously, I know Mr. Schneider has argued that the case should be remanded solely for calculation of benefits. I don't find that that's necessarily the appropriate way to proceed in this case. I don't find necessarily that there is persuasive proof of disability, bearing in mind that it is the plaintiff's burden to show that but for the effects of alcoholism and drug addiction she would still be disabled. I think remand for further consideration is justified in order to cure the defects that I've just outlined. And so I will vacate the Commissioner's determination and remand for further proceedings.

The only other thing that I wanted to mention for future reference. I was given, I think I counted up the pages that with the latest addition of 26 pages, I was given by the plaintiff's counsel 291 pages of additional materials without helpful citations to the parts of those materials that might support the plaintiff's argument. And I'll just go on record as saying I didn't review every one of those 291 pages because I don't view it as the Court's responsibility to review an Administrative Transcript from cover to cover without the benefit of some citation and pointing the Court to the truly relevant excerpts. But I did want to say that for future reference. It would be helpful to have had citations to specific excerpts.

So, I will issue an order today memorializing my determination and - well, it might not be today. It will be when the transcript is prepared. I want to thank you both for excellent presentations and arguments.

MR. JEWETT: Thank you, Your Honor. I will try to remedy that in the future, I'm sorry.

THE COURT: Excellent. Thank you.

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