United States District Court, W.D. New York
Report and Recommendation
HUGH B. SCOTT, Magistrate Judge.
Before the Court are the parties' respective motions for judgment on the pleadings (Docket Nos. 14 (defendant Commissioner), 15 (plaintiff)).
This is an action brought pursuant to 42 U.S.C. § 405(g) to review the final determination of the Commissioner of Social Security that plaintiff is not disabled and, therefore, is not entitled to disability insurance benefits and/or Supplemental Security Income benefits.
The plaintiff, Darius Michael Duggan ("Duggan" or "plaintiff"), filed an application for disability insurance benefits on October 1, 2009. That application was denied initially and on reconsideration. The plaintiff appeared before an Administrative Law Judge ("ALJ"), who considered the case de novo and concluded, in a written decision dated September 29, 2011, that the plaintiff was not disabled within the meaning of the Social Security Act. The ALJ's decision became the final decision of the Commissioner on March 7, 2013, when the Appeals Council denied plaintiff's request for review.
Plaintiff commenced this action on April 29, 2013 (Docket No. 1). The parties moved for judgment on the pleadings (Docket Nos. 15, 14). The motions were submitted on papers.
Plaintiff was born on April 20, 1982, and was 29 years old at the time of his hearing before the ALJ. He has a high school education and worked as a car wash attendant, worked in his uncle's restaurant, worked as a furniture delivery helper, and worked county fair concessions for less than two weeks in 2010 (R. 26).
MEDICAL AND VOCATIONAL EVIDENCE
Plaintiff has severe impairments for congenital central hypoventilation syndrome (or "CCH") with resultant sleep apnea, attention deficit hyperactivity disorder ("ADHD"), impulse control disorder, not otherwise specified, personality disorder with antisocial features, and polysubstance abuse/dependence (R. 26). The ALJ found that plaintiff may have an impairment or combination of impairments that meet or exceed regulatory standards for disability, but continued the five-step analysis to determine if plaintiff's substance abuse is a contributing factor material to a disability finding (R. 26, 22), see 20 C.F.R. § 416.935, Pub. L. No. 104-121.
In January 2010, Dr. Renee Baskin, Ph.D., the examining psychologist estimated that plaintiff's intellectual functioning was in the below average to borderline range (R. 29, 320). The ALJ, however, found that this finding was inconsistent with plaintiff's IQ tests when he was a 12th grader in September 1998, when he had verbal IQ score of 99, performance IQ of 95, and full-scale IQ of 97 (R. 29, 196). The ALJ explained Dr. Baskin's findings may have been due to plaintiff's use of alcohol and marijuana, since plaintiff admitted to Dr. Baskin that he smoked marijuana daily and stopped drinking only two months before the evaluation (R. 29). Dr. Baskin discounted plaintiff's alcohol use concluding that he may be minimizing his actual use (R. 29, 321-22).
The ALJ concluded that plaintiff's mental impairments met listings 12.04, 12.06, or 12.08, but, when factoring in plaintiff's substance abuse, the ALJ found that plaintiff's impairments were only moderate restriction of his activities of daily living, marked difficulties in maintaining social functioning, marked difficulties in maintaining concentration, persistence or pace, and no episodes of decomposition (R. 35-36), concluding that the requirements of paragraph B were met (R. 36).
The ALJ found plaintiff's residual functional capacity was that he could perform all ranges of physical work, with mental limitations, to simple unskilled work tasks (R. 36), but cannot perform past relevant work (R. 37-38). With his substance use disorder, the ALJ found that there were no jobs in the national economy that plaintiff could perform, but if plaintiff stopped substance use, he would not have an impairment that meets or equals any listed impairments in the Social Security regulations (R. 38, 39) and he could return to his past relevant work as a car wash attendant (R. 45). The ALJ found that plaintiff's treatment history was inconsistent with his allegations (R. 41) and that he ...