United States District Court, W.D. New York
DECISION AND ORDER
MICHAEL A. TELESCA United States District Judge.
by counsel, plaintiff Marcel Valerian Timmons
("plaintiff") brings this action pursuant to the
Social Security Act (the "Act"), seeking review of
the final decision of defendant the Acting Commissioner of
Social Security (the "Commissioner" or
"defendant") denying his application for
supplemental security income ("SSI") . The Court
has jurisdiction over this matter pursuant to 42 U.S.C.
§ 405(g). Presently before the Court are the
parties' cross-motions for judgment on the pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil
Procedure. For the reasons discussed below, plaintiff s
motion is granted to the extent that this case is remanded to
the Commissioner for further administrative proceedings
consistent with this Decision and Order, and the
Commissioner's motion is denied.
protectively filed an application for SSI on August 15, 2012,
which was denied. Administrative Transcript ("T.")
72-77, 150-55. At plaintiff's request, a hearing was held
before administrative law judge ("ALJ") Horetensia
Haaversen on April 16, 2014. T. 35-41. The ALJ adjourned the
hearing to allow plaintiff an opportunity to obtain a
representative. T. 36-37. She also inquired about additional
medical records and ordered two additional consultative
examinations. T. 38-39. Plaintiff appeared before the ALJ for
a second time on July 16, 2014, and indicated that he had
been unable to obtain an attorney. T. 45. Plaintiff agreed to
proceed with the hearing without representation. Id.
In a decision dated December 19, 2014, ALJ Haaversen found
that plaintiff was not disabled as defined in the Act and
denied his claim. T. 5-25. On March 21, 2016, the Appeals
Council issued an order denying plaintiff s request for
review, thereby rendering the ALJ's decision the
Commissioner's final determination. T. 1-4. Plaintiff
subsequently filed this action.
The ALJ's Decision
one of the five-step sequential evaluation, see 20 C.F.R.
§§ 404.1520, 416.920, the ALJ determined that
plaintiff had not engaged in substantial gainful activity
since August 15, 2012, the alleged onset date. T. 10. At step
two, the ALJ found that plaintiff suffered from the severe
impairments of polysubstance abuse including continuous
drinking behavior and marijuana abuse, alcoholic gastritis,
seizures secondary to alcohol withdrawal, unspecified
depressive disorder, and status-post left knee surgery. T.
11. At step three, the ALJ found that plaintiff's
impairments, including the substance use disorders, met
sections 12.04 and 12.09 of 20 CFR Part 404, Subpart P,
Appendix 1 (20 CFR 416.920(d)). Id. Specifically,
the ALJ determined that plaintiff had continuous periods of
decompensation during which he experienced an altered mental
state. T. 11-12.
1996, Congress enacted the Contract with America Advancement
Act . . .which amended the Act by providing that [a]n
individual shall not be considered ... disabled ... if
alcoholism or drug addiction would ... be a contributing
factor material to the Commissioner's determination that
the individual is disabled." Cage v. Coram'r of
Soc. Sec, 692 F.3d 118, 123 (2d Cir. 2012) (internal
quotations omitted). Accordingly, the ALJ next considered
whether, if plaintiff stopped his substance abuse, the
remaining limitations would cause more than a minimal impact
on his ability to perform basic work activities, and
concluded that they would. T. 13. However, the ALJ also
concluded that if plaintiff stopped his substance abuse, he
would not have an impairment or combination of impairments
that would meet or medically equal one of the listed
impairments set forth in 20 C.F.R. § 404, Subpart P,
Appendix 1. T. 14.
proceeding to step four, the ALJ determined that, if
plaintiff stopped his substance abuse and considering all of
plaintiff's impairments, plaintiff retained the RFC to
perform mediume work as defined 20 CFR 416.967(c)
"except that he can occasionally kneel, and climb
ladders, ropes, and scaffolds." T. 15. The ALJ further
held that plaintiff would be unable to drive an automobile
for employment; is precluded from working at heights; should
avoid concentrated exposure to hazards; is able to follow and
understand simple directions and instructions and can perform
simple tasks independently; is able to maintain attention and
concentration, make appropriate workplace decisions, and
relate adequately with others. Id.
four, the ALJ found that if plaintiff stopped his substance
abuse, he would still be unable to perform any past relevant
work. T. 18. At step five, the ALJ concluded that,
considering plaintiff's age, education, work experience,
and RFC, there are jobs that exist in significant numbers in
the national economy that plaintiff could perform if he
stopped his substance abuse. Id. Accordingly, the
ALJ found plaintiff not disabled.
district court may set aside the Commissioner's
determination that a claimant is not disabled only if the
factual findings are not supported by "substantial
evidence" or if the decision is based on legal error. 42
U.S.C. § 405(g); see also Green-Younger v.
Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003).
"Substantial evidence means, such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.'" Shaw v. Chater, 221
F.3d 126, 131 (2d Cir. 2000).
Evaluation of "Rule Out Mild Neurocognitive Disorder due
to Seizure or Stroke" Diagnosis
first argues that the ALJ improperly failed to properly
evaluate consultative psychiatrist Adam Brownfeld,
Ph.D.'s diagnosis of "[r]ule out mild neurocognitive
disorder due to seizures and stroke." See T.
407. In the alternative, plaintiff argues that the ALJ had a
duty to develop the record with respect to this issue. For
the reasons discussed below, the Court ...