BOWERS v. COMMISSIONER OF SOCIAL SECURITY

Filing 16

OPINION. Signed by Judge Kevin McNulty on 10/20/17. (cm, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

Maurice Bowers,
Plaintiff,

Civ. No. 16-6589 (KM)

V.

OPINION
Commissioner of Social Security,
Defendant.
KEVIN MCNULTY, U.S.D.J.:

Maurice Bowers brings this action pursuant to 42 U.S.C.

§

405(g) to

review a final decision of the Commissioner of Social Security (“Commissioner”)
denying his claims to Disability Insurance Benefits (“DIB”) under Title II of the
Social Security Act, 42 U.S.C.

§

401—34.

The critical issue on this, Mr. Bowers’ second appeal, is whether the AU
properly denied benefits because alcoholism contributed to his disability. It is
possible to imagine a system in which alcoholism is treated as a medical
impairment like any other. That, however, is not the system that Congress and
the Social Security Administration have adopted, and this Court’s review is
constrained by statute and by the Administration’s implementing regulations.
(See Section II.B, infra.) For the reasons set forth below, the decision of the
Administrative Law Judge (“AU”) is AFFIRMED.
I.

Background

Mr. Bowers seeks to reverse an AU’s finding that he was not disabled
from November 25, 2008, the alleged onset date, through December 16, 2015,
the date of the AU’s decision. (R. 22-31).’
Pages of the administrative record (ECFnos. 6 to 6-13) are cited as “R.
Brief in Support of Plaintiff (ECF no. 13) is cited as “P1. Br.” Defendant’s Brief
Pursuant to Local Civil Rule 9.1 (ECF no. 15) is cited as “Def. Br.”
1

1

.“

The

Mr. Bowers applied for DIB under Title II and supplemental security
income under Title XVI on September 24, 2010, alleging that he has been
disabled since November 25, 2008. (R. 340). The specific disabilities alleged
were left eye blindness, metal rods in his right leg, asthma, depression, and a
stomach stab wound. (R. 70). Mr. Bowers originally sought benefits starting
from November 25, 2008. He amended the onset date to May 18, 2010,
however, at an April 6, 2012 hearing before AU April M. Wexler. (1?. 38).
Mr. Bowers’ applications were denied on April 12, 2011 (R. 69-74), and
upon reconsideration on December 1, 2011. (R. 77-82). On February 1, 2012,
Mr. Bowers requested an administrative hearing. (R. 88-89). On April 6, 2012,
Mr. Bowers appeared with counsel, Patricia Franklin, at a hearing before AU
Wexler. (R. 34-64). Mr. Bowers and Rocco Meola, a vocational expert, testified.
(1?. 38-64). On April 17, 2012, the AU issued a decision finding that Mr.
Bowers could perform unskilled, sedentary work and therefore was not
disabled. (R. 17-33). On November 19, 2012, the Appeals Council denied Mr.
Bowers’ request for review, (R. 1-6), rendering the AU’s decision the final
decision of the Commissioner. Mr. Bowers then appealed to the U.S. District
Court for the District of New Jersey.
In a written opinion dated June 27, 2014, Judge Claire C. Cecchi
affirmed in part, vacated in part, and remanded the AU’s decision. (R. 362-76)
(reported as Bowers v. Colvin, No. 13-CV-444 CCC, 2014 WL 2926524 (D.N.J.
June 27, 2014)). In particular, Judge Cecchi found that the AU erred when
considering Mr. Bowers’ subjective complaints during the Residual Functional
Capacity analysis. (R. 370-73). Judge Cecchi “vacate[d] the AJ2’s credibility
determination with respect to the time and frequency [Mr. Bowersi need[edj to
clean his eye socket, and

.

.

.

remand[ed] the case with instruction to reopen

the Record on th[at] point, and to determine whether or not the duration and
frequency would affect [Mr. Bowers’j RFC.” (R. 373).
Based on Judge Cecchi’s decision, on August 6, 2014, the Appeals
Council vacated the final decision of the Commissioner of Social Security and
remanded the case to an AU for further proceedings consistent with the
2

opinion. (R. 422) A remand hearing was held on January 29, 2015. (1?. 377409) Mr. Bowers appeared with counsel, Agnes Wladyka, before AL) Mezyl L.
Lissek. (R. 377-409). Mr. Bowers testified. (R. 38 1-408).
A supplemental hearing was held on November 10, 2015. (R. 410-19).
Mr. Bowers appeared with counsel, Ms. Wiadyka, before AL) Lissek. Andrew
Vaughn, a vocational expert, testified. (R. 413-19). On December 16, 2015, the
AL) issued a decision finding that, absent substance abuse, Mr. Bowers could
perform unskilled sedentary work, and therefore was not disabled. (R. 340-60).
On August 9, 2016, the Appeals Council denied Mr. Bowers’ request for
review (R. 326-31), rendering the AU’s decision the final decision of the
Commissioner.
Mr. Bowers then appealed to this Court, challenging the AU’s
determination that he was not disabled from November 25, 20082 through
December 16, 2015.
II.

Discussion
A. The Five-Step Process

Under the authority of the Social Security Act, the Social Security
Administration has established a five-step evaluation process for determining
whether a claimant is entitled to benefits. 20 C.F.R.

§ 404.1520, 4 16.920.

This Court’s review necessarily incorporates a determination of whether the
ALl properly followed the five-step process prescribed by regulation. The steps
may be briefly summarized as follows:
Step 1: Determine whether the claimant has engaged in substantial

gainful activity since the onset date of the alleged disability. 20 C.F.R.

§ 404.1520(b), 416.920(b). If not, move to step two.
Step 2: Determine if the claimant’s alleged impairment, or

combination of impairments, is “severe.” Id.

§ 404.1520(c),

On remand, Mr. Bowers relied on an onset date of November 25, 2008, rather
than the onset date of May 18, 2010, that was alleged in his initial application for
benefits. Compare 1?. 20 and 1?. 38 with R. 340.
2

3

4 16.920(c). If the claimant has a severe impairment, move to step
three.
Step 3: Determine whether the impairment meets or equals the
criteria of any impairment found in the Listing of Impairments. 20
C.F.R. Pt. 404, subpt. P, app. 1, Pt. A. (Those Part A criteria are
purposely set at a high level, to identify clear cases of disability
without further analysis.) If so, the claimant is automatically eligible
to receive benefits; if not, move to step four, Id.

§

404.1520(d),

416.920(d).
Step 4: Determine whether, despite any severe impairment, the
claimant retains the Residual Functional Capacity (“RFC”) to perform
past relevant work. Id.

§

404.1520(e)—rn, 416.920(e)—rn. If not, move

to step five.
Step 5: At this point, the burden shifts to the Commissioner to
demonstrate that the claimant, considering his age, education, work
experience, and RFC, is capable of performing jobs that exist in
significant numbers in the national economy. 20 C.F.R.

§

404.1520(g), 416.920(g); see Poulos v. Comm’r of Soc. Sec., 474

F.3d 88, 91-92 (3d Cir. 2007). If so, benefits will be denied; if not, they
will be awarded.
B. Consideration of Substance Abuse
In cases involving individuals suffering from drug or alcohol addiction,
“lain individual shall not be considered to be disabled
addiction would

.

.

.

...

if alcoholism or drug

be a contributing factor material to the Commissioner’s

determination that the individual is disabled.” 42 U.S.C.
1382c(a)(3)(J); see also 20 C.F.R.

§

§

423(d)(2)(C),

404.1535, 416.935.

In determining whether drug addiction or alcoholism is a material
contributing factor to an individual’s disability, the “key factor” is “whether [the
ALl] would still find [the claimant] disabled if [he or she] stopped using drugs
or alcohol.” 20 C.F.R.

§

404. 1535(b)(1). To make this determination, the ALl
4

must evaluate which of the claimant’s physical and mental limitations would
remain if the claimant stopped using drugs or alcohol. 20 C.F.R.

§

404.1535(b) (2). The AU must then determine whether any or all of the
claimant’s remaining limitations would be disabling. Id.
If the AU finds that the claimant’s remaining limitations would not be
disabling, the AU) “will find that [the claimant’s] drug addiction or alcoholism
is a contributing factor material to the determination of disability.” 20 C.F.R.

§

404. 1535(b)(2)(i). If, however, the AU finds that the claimant’s remaining
limitations are disabling, the claimant is “disabled independent of [his or her]
drug addiction or alcoholism” and the AU) “will find that Ithe claimant’s] drug
addiction or alcoholism is not a contributing factor material to the
determination of disability.” 20 C.F.R.

§ 404.1535(b)(2)(ii).

Social Security Ruling (SSR) 13—2p establishes the procedure used by
AWs when evaluating drug addiction or alcoholism materiality. SSR l3—2p, 78
Fed. Reg. 11939-47 (Feb. 20, 2013). First, the AU) will “apply the sequential
evaluation process to show how the claimant is disabled.” Id. at 11942. Next,
the AU) will “apply the sequential evaluation process a second time to
document [drug addiction and alcoholism] materiality

....“

Ibid.

In determining materiality, SSR i3-2p provides a six-step evaluation
process. It states: “Although the steps are in a logical order from the simplest
to the most complex cases, we do not require our adjudicators to follow them in
the order we provide. For example, when [drug addiction or alcoholism] is the
only impairment adjudicators can go directly to step three and deny the claim
because DAA is material.” SSR l3—2p, 78 Fed. Reg. at 11941.
The steps are summarized as:
1. Does the claimant have DAM3?

2. Is the claimant disabled
considering all impairments,
including DAA?

a. No—No DAM materiality determination
necessary.
b. Yes—Go to step 2.
a. No—Do not determine DA4 materiality.
(Denial.)

“DAA” stands for drug addiction and alcoholism.
5

b. Yes—Go to step 3.
3. Is DAlI the only impairment?

a. Yes—DAli material. (Denial.)
b. No—Go to step 4.

a. No—DAA material. (Denial.)
4. Is the other impairment(s)
disabling by itself while the claimant b. Yes—Go to step 5.
is dependent upon or abusing drugs
or alcohol?
5. Does the DAlI cause or affect the
claimants medically determinable
impairment(s)?

a. No—DA4 not material. (Allowance.)
b. Yes, but the other impairment(s) is
irreversible or could not improve to the
paint of nondisability—DAA not material.
(Allowance.)
c. Yes, and DAA could be material—Go to
step 6.

6. Would the other impairment(s)
improve to the point of nondisability
in the absence of DAA?

a. Yes—DAA material. (Denial.)
b. No—DAA nat material (Allowance.)

Id.

The Third Circuit has not decided whether the claimant or the
Commissioner bears the burden of showing the materiality of substance abuse.
McGill a Commissioner of Soc. Sec., 288 F. App’x 50, 52 (3d Cir. 2008) (finding

allocation of burden immaterial because Commissioner would have met burden
that substance abuse was dispositive).4 Regardless of who has the burden, the
AL] still must identify “substantial evidence” to support his or her conclusion
of materiality. Martin v. Comm’r of Soc. Sec., 547 F. App’x. 153, 157 (3d Cir.
2013). Here, even on the assumption that the Commissioner has the burden,
the AW’s determination was supported by substantial evidence and must be
affirmed.

Other Circuits have held that the Commissioner has the burden on this issue.
Pan-a u. Astrue, 481 F.3d 742, 748 (9th Cir. 2007); Doughty u. Apfel, 245 F.3d 1274,
1280 (11th Cir. 2001); Pettit v. Apfel, 218 F.3d 901, 903 (8th Cir. 2000); Brown u.
Apfel, 192 F.3d 492, 498 (5th Cfr. 1999).
6

C. Standard of Review

As to all legal issues, this Court conducts a plenary review. See
Schaudeck v. Comm’r of Soc. Sec., 181 F.3d 429, 431 (3d Cir. 1999). As to
factual findings, this Court adheres to the ALT’s findings, as long as they are
supported by substantial evidence. Jones a Bamhart, 364 F.3d 501, 503 (3d
Cir. 2004) (citing 42 U.S.C.

§ 405(g)). Where facts are disputed, this Court will

“determine whether the administrative record contains substantial evidence
supporting the findings.” Sykes a Apfel, 228 F.3d 259, 262 (3d Cir. 2000).
“Substantial evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Zimsak v. Coivin, 777 F.3d 607,
610 (3d Cir. 2014) (internal quotation marks and citation omitted). Substantial
evidence “is more than a mere scintilla but may be somewhat less than a
preponderance of the evidence.” Id. (internal quotation marks and citation
omitted).
[Ijn evaluating whether substantial evidence supports the ALl’s
leniency should be shown in establishing the
findings
the Secretary’s responsibility to
claimant’s disability, and
rebut it should be strictly construed. Due regard for the
beneficent purposes of the legislation requires that a more
tolerant standard be used in this administrative proceeding
than is applicable in a typical suit in a court of record where the
adversary system prevails.
...

...

Reefer v. Bamhart, 326 F.3d 376, 379 (3d Cir. 2003) (internal quotation marks
and citations omitted). When there is substantial evidence to support the AU’s
factual findings, however, this Court must abide by them. See Jones, 364 F.3d
at 503 (citing 42 U.S.C.

§ 4O5(gfl; Zimsak, 777 F.3d at 610-11 (“[W]e are

mindful that we must not substitute our own judgment for that of the fact
finder.”).
This Court may, under 42 U.S.C.

§ 405(g), affirm, modify, or reverse the

Commissioner’s decision, or it may- remand the matter to the Commissioner for
a rehearing. Podedwomy a Harris, 745 F.2d 210, 221 (3d Cir. 1984); Bordes a
Comm’r of Soc. Sec., 235 F. App’x 853, 865-66 (3d Cir. 2007).
7

Remand is proper if the record is incomplete, or if there is a lack of
substantial evidence to support a definitive finding on one or more steps of the
five-step inquiry. See Podedworny, 745 F.2d at 22 1-22. Remand is also proper
if the AW’s decision lacks adequate reasoning or support for its conclusions, or
if it contains illogical or contradicton findings. See Burnett v. Comm’r of Soc.
Sec., 220 P.3d 112, 119-20 (3d Cir. 2000). It is also proper to remand where
the AW’s findings are not the product of a complete review which “explicitly
weigh[s] all relevant, probative and available evidence” in the record. Adomo v.
Shalala, 40 F.3d 43, 48 (3d Cir. 1994) (internal quotation marks omitted).
D. The AU’s Decision
AlA Lissek (the “AlA”) properly followed the five-step sequential

evaluation process in determining that Mr. Bowers was not disabled for the
period of November 25, 2008, through December 16, 2015.
Pursuant to SSR 23-2p, the AlA first conducted the five-step process to
show how Mr. Bowers is disabled. Then, because the AlA found Mr. Bowers’
impairments to include alcohol abuse, the AlA conducted the five-step process
a second time to determine whether alcohol abuse was a “material contributing
factor” to Mr. Bowers’ disability.
I will now summarize her findings at each five-step analysis.

i.

Initial five-step process

Step 1: At step one, the AlA determined that Mr. Bowers had not
engaged in substantial gainful activity in the relevant period. (1?. 343).
Step 2: At step two, the AlA found that Mr. Bowers had the following
severe impairments: “enucleated left eye, status-post right leg injury resulting
in right leg impairment, depression, PTSD, asthma, history of stab wound in
the stomach, carpal tunnel syndrome, and drug and alcohol abuse.”5 (1?. 343).

The use of the phrase “drug and alcohol abuse” appears to be a typographical
error. There is no evidence in the record that Mr. Bowers suffered from drug abuse
and alcohol abuse. The record only reflects only alcohol abuse.
8

Step 3: At step three, the AW determined that, through December 16,

2015, Mr. Bowers did not have an impairment or combination of impairments
that meets or medically equals the severity of one of the listed impairments in
20 C.F.R. Pt. 404, subpt. P., app. 1. (R. 343-44).
Step 4: At step four, “[a]fter careful consideration of the entire record.

including the substance use disorder”, the ALl found that Mr. Bowers had the
following residual functional capacity (RFC):
to perform sedentary work as defined in 20 CFR 404.1567(a) and
419.967(a) except that [Mr. Bowers] can do work that does not
require excellent peripheral vision or depth perception, needs to
take a break for 10 minutes every 2 hours to clean discharge from
his missing eye, and is limited to performing work that does not
bring him into contact with temperature extremes, high humidity,
or excessive amounts of dust or known pulmonary irritants.
Moreover, [Mr. Bowers] can perform work that involves frequent,
but not continuous, bilateral grasping, and is limited to work that
can be learned in 1 month or less and involves simple instructions.
Finally, the claimant would need a 10-minute break every hour
and is able to focus no more than 15% of an 8-hour day.
(R. 345).
The ALl stated that because she “determined that [Mr. Bowers] is
disabled at [the fourth] step primarily due to his history of substance abuse
and psychiatric impairments, the focus of [her] present analysis w[ould] be on
the claimant’s mental impairments.” (R. 345).
The AU relied on the following evidence in determining Mr. Bowers’ RFC.
In May 2010, Mr. Bowers was seen at University Hospital for symptoms of
depression. (Exh. iF, 1?. 211; R. 345). Dr. Joseph Relta diagnosed Mr. Bowers
with alcohol intoxication and depression. (Exh. iF, R. 211; R. 345). Dr. Relta’s
treatment notes indicated that Mr. Bowers self-reported “drinking four 24
ounce cans of beer a day “‘for many years.”’ (Exh. iF, R. 214). Dr. Relta stated
that Mr. Bowers had a “long history of alcohol abuse”, was drinking without
eating food, and was feeling weak and dizzy. (R. 222; R. 345). Moreover, Paul F.
Fulford, a clinical psychologist, reported in late January 2011 that Mr. Bowers
9

has a history of “sleep disturbances and auditory hallucinations.” (1?. 345; Exh.
3F, R. 235).
A June 2014 report from Newark Beth Israel Medical Center noted that
Mr. Bowers suffered from post-traumatic stress disorder and was engaging in
“ongoing substance abuse.” (Exh, 27F, R. 648; R. 345) The report found that
Mr. Bowers was at risk to himself and others. (R. 648; 1?. 345) Moreover,
treatment notes from Bethel Family and Youth Resource Center indicated that
in April 2014, [Mr. Bowersj was admitted for treatment for alcohol abuse,
which induced hallucinations and a diminished capacity to focus. (Exit. 30F, R.
656-62; R. 345) Mr. Bowers was discharged in October 2014 for not complying
with his treatment regimen and continuing to drink alcohol. (R. 656; 1?. 345).
The AU also stated that in a January 2015 medical source statement,
Dr. Kathyann Duncan opined that Mr. Bowers was unable to sustain work on a
full-time basis and recommended that Mr. Bowers participate in a substance
abuse program. (Exh. 23F, R. 627; 1?. 345). A more recent March 2015 letter
from an outpatient program indicated that Mr. Bowers was admitted to the
program in late October 2014, and that Mr. Bowers submitted two positive
urine screens. (Exh. 29F, 654; 1?. 345).
Step 5: At step five, the AU considered Mr. Bowers’ age, education, work
experience, substance use disorder, and RFC, as well as the Medical-Vocational
Guidelines, and determined that there are no jobs that exist in significant
numbers in the national economy that the claimant can perform. (R. 346-47).
Relying on the testimony of a vocational expert (“yE”), Andrew Vaughn,
who testified that “given all of the[] factors there are no jobs in the national
economy that the individual could perform,” the AU concluded that Mr.
Bowers was disabled, as defined by the Social Security Act, from November 25,
2008 to December 16, 2015. (1?. 347).
ii.

Second five-step process

Because the AU found Mr. Bowers’ impairments to include alcohol
abuse, the AU then conducted the five-step analysis a second time to control
for the effects of the alcohol abuse.
10

The AW’s findings at Steps 1 and 2 are the same as those found in the
initial five-step process. See Section D.i, supra.
Step 3: At step three of the second analysis, the ALT determined that,
through December 16, 2015, if Mr. Bowers stopped the alcohol use, he would
not have an impairment or combination of impairments that meets or medically
equals the severity of one of the listed impairments in 20 C.P.R. Pt. 404, subpt.
P., app. 1. (R. 347).
Step 4: At step four, the AU

found that if Mr. Bowers stopped his

alcohol use he would have the following RFC:
perform sedentary work as defined in 20 CFR 404.1567(a) and
4 16.967(a) except that [Mr. Bowers] can do work that does not
require excellent peripheral vision or depth perception, needs to
take a break for 10 minutes every 2 hours to clean discharge from
his missing eye, and is limited to performing work that does not
bring him into contact with temperature extremes, high humidity,
or excessive amounts of dust or known pulmonary irritants.
Moreover, [Mr. Bowers] can perform work that involves frequent,
but not continuous, bilateral grasping, and is limited to work that
can be learned in 1 month or less and involves simple instructions.
(R. 349).
The ALT further stated that if Mr. Bowers stopped the alcohol use, his
“medically determinable impairments could reasonably be expected to produce
the alleged symptoms; however, [Mr. Bowers’j statements concerning the
intensity, persistence and limiting effects of these symptoms are not credible to
the extent they are inconsistent with the [RFC] assessment.

.

.“

(R. 350).

The AU then considered Mr. Bowers’ medical record, numerous medical
opinions, and subjective allegations, pointing out that Mr. Bowers had
“submitted little evidence of sustained treatment for his impairments since his
alleged onset date.” (R. 350). The AU emphasized that “likewise there is a
paucity of evidence of sustained treatment for either depression or PTSD.
Indeed, in the few instances in which [Mr. Bowers] has been treated for mental

11

impairments, it has invariably been in the context of treatment for substance
abuse.” (R. 351; see Exhs. iF; 3F; 23F; 30F).
As a final matter, the AU

found it “worth emphasizing that the claimant

testified that his longest period of sobriety from alcohol was for a six-month
period [in] 2012. [Mr. Bowers] conceded that he functions better and
communicates more clearly when he is not drinking.” (R. 351).
Step 5: At step five, the ATJ considered Mr. Bowers’ age, education, work

experience, and RFC, as well as the Medical-Vocational Guidelines, and
determined that if Mr. Bowers stopped the alcohol abuse, there would be a
significant number of jobs in the national economy that Mr. Bowers could
perform. (R. 352).
The AU consulted the vocational expert, Mr. Vaughn, and adopted the
conclusion that Mr. Bowers would be able to perform the requirements of
representative occupations, such as press operator, assembly clerk, and order
clerk. (R. 352).
Based on these findings, the AU ultimately concluded that Mr. Bowers is
not disabled within the meaning of the Social Security Act because “substance
abuse is a contributing factor material to the determination of disability.” (1?.
352).
E. Analysis of Maurice Bowers’ Appeal

Maurice Bowers challenges AU Lissek’s determination that Bowers’
alcohol abuse was a “contributing factor material to the determination of
disability.” (P1. Br. 17 to 23); 20 C.F.R.

§

404.1535(b)(2)(i).

Mr. Bowers argues that the AU did not, but should have considered
evidence of his disability during a period of alcohol abstinence. f P1. Br. 20 to
23). He also argues that the AU’s final RFC finding was not based on
substantial evidence. (P1. Br. 23). His argument focuses on the specific
limitation that Mr. Bowers “would need a 10-minute break every hour and is
able to focus no more than 15% of an 8-hour dat, a limitation which was
included in the ALl’s initial RFC determination, but absent from the AU’s
12

second RFC determination. (1?. 345; R. 349). Characterizing the different RFC
determinations as contradictory, Mr. Bowers asserts that the AW erred by
failing to explain why her second RFC decision did not include that limitation.
(P1. Br. 23 to 24).
Mr. Bowers requests that this Court reverse the ALl’s decision. (P1. Br.
24). Addressing each of Mr. Bowers’ arguments in turn, I find that the ALl’s
findings do not contain any errors of law or procedure, and that her findings
are supported by substantial evidence.
1. Mr. Bowers’ substance use was a material factor contributing to his
disability
Mr. Bowers generally asserts that the ALl failed to follow the six-step
drug addiction and alcoholism evaluation process. (P1. Br. 22). He further
argues that the ALl erred by not relying on evidence from a period of
abstinence when considering whether Mr. Bowers’ physical impairments would
improve in the absence of alcohol abuse. (P1. Br. 20 to 23). He relies on 551? 132p, and the reports from Paul F. Fulford, Ph.D., Dr. Christine Zolli, Dr. Justin
Fernando, Dr. Kathyann S. Duncan, and MRI7 scans as support. (P1. Br. 20 to
22).
Mr. Bowers summarizes each of those reports’ findings regarding Mr.
Bowers’ physical impairments. (P1 Br. 20 to 22). He emphasizes that the
examinations do not mention intoxication, thereby suggesting that the
examinations were conducted when he was not intoxicated. (P1. Br. 20 to 22).
Therefore, Mr. Bowers says, the reports are evidence of physical disabilities
Mr. Bowers’ Statement letter pursuant to Local Rule 9.1, (ECF no. 7), presents
different and additional arguments that are not reiterated in his brief (P1. Br.). Local
Rule 9.1(d) directs plaintiffs to serve the Commissioner with a statement “setting forth
Plaintiffs primary contents or arguments as to why plaintiff believes that he or she is
entitled to relief L. Civ. R. 9.1(d). The purpose of the rule is “[tjo encourage early and
amicable resolution of Social Security manners.” Id. Local Rule 9.1(1) states that “[ajil
Social Security cases will be handled by the Court on written briefs unless a request
for oral argument is granted or as otherwise directed by the Court.” I will therefore
only consider the arguments presented in the parties’ briefs.
6

“MRI” refers to Magnetic Resonance Imaging.
13

that were present during a period of abstinence, which the AU

should have

considered. While the argument is not wholly frivolous, it is foreclosed by SSA
regulations and this Court’s standard of review.
“The Social Security Administration advises adjudicators assessing
whether an individual’s substance abuse problems were a factor material to the
disability determination that ‘[t]he most useful evidence

...

is that relating to a

period when the individual was not using drugs/alcohol.tm Mirabile u. Comm’r of
Soc. Sec., 354 F. App’x 619, 622 (3d Cir. 2009) (quoting Social Security
Administration, Questions and Answers Concerning DAA from the 07/02/96
Teleconference, No. EM—96200 (Aug. 30, 1996)).
SSR 13-2p addresses the relevance of a period of abstinence8 in
determining whether drug addiction and alcohol abuse is material. ft provides,
in part:
b. Usually, evidence from a period of abstinence is the best
evidence for determining whether a physical impairment(s) would
improve to the point of nondisability. The period of abstinence
should be relevant to the period we are considering in connection
with the disability claim. This evidence need not always come from
an acceptable medical source. If we are evaluating whether a
claimant’s work-related functioning would improve, we may rely on
evidence from “other” medical sources, such as nurse
practitioners, and other sources, such as family members, who are
familiar with how the claimant has functioned during a period of
abstinence
.

v. Adjudicators should generally not rely on a medical opinion to
find that DAA is material if the case record contains credible
evidence from an acceptable medical source from a relevant period
of abstinence indicating that the impairment(s) would still be
disabling in the absence of DAA. In cases in which it is appropriate
to rely on a medical opinion to find that DAA is material despite
evidence indicating the impairment(s) may not improve,
adjudicators must provide an appropriate rationale to resolve the
apparent conflict in the evidence.
The term “period of abstinence” is used in SSR 13-2p “to describe a period in
which a claimant who has, or had, been dependent upon or abusing drugs or alcohol
and stopped their use.” SSR 13—2p, 78 Fed. Reg. at 11943 n. 17.
8

14

d. We will find that DAA is not material to the determination of
disability and allow the claim if the record is fully developed and
the evidence (including medical opinion evidence) does not
establish that the claimant’s physical impairment(s) would improve
to the point of nondisability in the absence of DAA.
SSR 13—2p, 78 Fed. Reg. at 11943.
Here, in a detailed and comprehensive opinion, the AW addressed all of
the reports now cited by Mr. Bowers. She properly supported her conclusion
that Mr. Bowers’ impairments were not totally disabling, as shown by evidence
that showed Mr. Bowers’ ability to function when he stopped drinking alcohol.
True, the medical reports do not indicate that Mr. Bowers was intoxicated at
the precise time of examination; that omission, however, does not compel a
finding that there was a period of abstinence. The AW recognized these specific
instances of (presumed) sobriety and considered them in rendering her opinion.
No more is required.
2. The ALl’s assessment of Mr. Bowers’ RFC

Mr. Bowers asserts that the AU

did not properly assess his RFC. (P1. Br.

23). Specifically, he claims that the AU failed to explain why her second RFC
determination, which evaluated Mr. Bowers as if he had stopped using alcohol,
did not include the limitation of Mr. Bowers “need[ingj a 10 minute break every
hour and [being] able to focus no more than 15% of an 8-hour day.” (P1. Br. 23;
R. 345; R. 349). Mr. Bowers argues that “on thiat] error alone”, this case must
be remanded. (P1. Br. 24). Upon a review of the record, I find that substantial
evidence supports the AU’s second RFC decision and that a remand is not
warranted.
RUt is an assessment of the most a claimant can do despite his

impairments. 20 C.F.R. § 404.1545. To determine a claimant’s RFC, an AU
must engage in a two-step process: first, consider all of a claimant’s symptoms
that can reasonably be accepted as consistent with the objective medical
evidence; and second, determine how those symptoms affect the claimant’s
ability to work. 20 C.F.R.

§

404.1529. In making the RFC determination, an
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AW is not required “to adhere to any set format for explaining [her] analysis so
long as there is ‘sufficient development of the record and explanation of
findings to permit meaningful judicial review.’” Garrett tc Commr of Soc. Sec.,
274 F. App’x 159, 162-63 (3d Cir. 2008) (quoting Jones v. Bamhart, 364 F.3d
501, 505 (3d Cir. 2004)).
Here, pursuant to SSR l3—2p, the AW provided two RFCs: one which
considered Mr. Bowers’ alcohol abuse, and another which hypothesized no
alcohol abuse.
En the initial RFC analysis which considered Mr. Bowers’ alcohol abuse,
the AW found that Mr. Bowers had the RFC
to perform sedentary work as defined in 20 CFR 404.1567(a) and
4 19.967(a) except that [Mr. Bowers] can do work that does not
require excellent peripheral vision or depth perception, needs to
take a break for 10 minutes every 2 hours to clean discharge from
his missing eye, and is limited to performing work that does not
bring him into contact with temperature extremes, high humidity,
or excessive amounts of dust or known pulmonary irritants.
Moreover, [Mr. Bowers} can perform work that involves frequent,
but not continuous, bilateral grasping, and is limited to work that
can be learned in 1 month or less and involves simple instructions.
Finally, the claimant would need a 10-minute break every hour and
is able to focus no more than 15% of an 8-hour day.
(R. 345)(emphasis added).
The AW further explained that “based upon the objective medical record,
the opinion of Dr. Duncan, and the fact that multiple reports indicate that [Mr.
Bowers] has been engaging in sustained alcohol use throughout the period at
issue,” she would “find that [Mr. Bowers] is unable to focus more than 15% of
the workday and requires 10-minute breaks every hour.” (R. 346). The AW
provided a thorough summary of Mr. Bowers’ medical records and Dr.
Duncan’s opinion. Her review included treatment notes which stated that Mr.
Bowers was admitted to Bethel Family and Youth Resource Center due to
alcohol abuse, which induced symptoms of hallucinations and a diminished
capacity to focus. (R. 345; Exh. 30F p. 1-6).

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Next, because the AW found Mr. Bowers’ impairments to include alcohol
abuse, the AU conducted the five-step analysis a second time to determine
whether the alcohol abuse was a “material contributing facto?’ to Mr. Bowers’
disability.
In the second RFC analysis, the AU did not include the requirement
from the first RPC analysis that Mr. Bowers “needs a 10 minute break every
hour and is able to focus no more than 15% of an 8-hour day.” (R. 345; R.
349). Rather, the AU concluded that if Mr. Bowers stopped the alcohol abuse,
he would have the RFC to
perform sedentary work as defined in 20 CPR 404.1567(a) and
4 16.967(a) except that [Mr. Bowers] can do work that does not
require excellent peripheral vision or depth perception, needs to
take a break for 10 minutes every 2 hours to clean discharge from
his missing eye, and is limited to performing work that does not
bring him into contact with temperature extremes, high humidity,
or excessive amounts of dust or known pulmonary irritants.
Moreover, [Mr. Bowers] can perform work that involves frequent,
but not continuous, bilateral grasping, and is limited to work that
can be learned in 1 month or less and involves simple instructions.
(R. 349).
I find that the AU did not err by failing to explicitly address and the
differences between the two RFC analyses. The explanation for the discrepancy
is implicit: one took alcohol use into account, and the other did not. In
reaching her second RFC determination, the AU provided detailed findings
regarding Mr. Bowers’ mental and physical impairments, and referred to
medical opinions and other medical evidence. See R. 349-52. She concluded
that Mr. Bowers’ “psychiatric limitations are primarily, if not exclusively, the
result of substance abuse.” R. 351 (citing Exhs. 6F and 19F). She also noted
Mr. Bowers “conceded that he functions better and communicates more clearly
when he is not drinking.” R. 351. SeeR. 405-06. It is therefore inherent in the
AU’s opinion that absent alcohol abuse, Mr. Bowers would not “need a 10minute break every hour and is able to focus no more than 15% of an 8-hour

17

day,” because the psychological effects of alcohol on Mr. Bowers’ mental state
would not be present.
HI.

Conclusion

For the foregoing reasons, I find that the ALl’s decision properly applied
the applicable legal standards and was supported by substantial evidence.
Under the applicable standard of review, that is sufficient to require that I
uphold the ALl’s denial of Mr. Bowers’ claims for DIB, and the decision of the
Commissioner is therefore AFFIRMED. An appropriate order accompanies this
Opinion.
Dated: October 20, 2017

MCNULTY
United States District Ju

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