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Timmons v. Berryhill

United States District Court, W.D. New York

June 29, 2017

MARCEL VALERIAN TIMMONS, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          DECISION AND ORDER

          HON. MICHAEL A. TELESCA United States District Judge.

         I. Introduction

         Represented 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[1] (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.

         II. Procedural History

         Plaintiff 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.

         III. The ALJ's Decision

         At step 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.

         "In 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.

         Before 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.

         At step 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.

         IV. Discussion

         A 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).

         A. Evaluation of "Rule Out Mild Neurocognitive Disorder due to Seizure or Stroke" Diagnosis

         Plaintiff 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 ...


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