PHELPS v. COMMISSIONER OF SOCIAL SECURITY

Filing 21

OPINION filed. Signed by Judge Freda L. Wolfson on 5/25/2017. (mmh)

*NOT FOR PUBLICATION*
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
____________________________________
:
:
:
Plaintiff,
:
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v.
:
:
CAROLYN W. COLVIN, ACTING
:
COMMISSIONER OF SOCIAL
:
SECURITY,
:
:
Defendant.
:
____________________________________:
ERIC PHELPS,

Civ. Action No.: 15-3146 (FLW)
OPINION

WOLFSON, United States District Judge:
Eric Phelps (“Plaintiff”) appeals from the final decision of the Acting Commissioner of
Social Security, Carolyn W. Colvin (“Defendant” or “Commissioner”), who denied Plaintiff
disability insurance benefits (“DIB”) and supplemental security income (“SSI”) under the Social
Security (the “Act”). After reviewing the administrative record (“A.R.”), the Court finds that the
Administrative Law Judge’s (“ALJ”) determinations were based on substantial evidence and,
accordingly, affirms the decision.
I.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiff was born on August 5, 1986, and was 25 years old on his alleged disability onset

date of January 1, 2012. On April 18, 2012, Plaintiff filed applications for DIB and SSI alleging
that he was disabled based on his bipolar manic psychosis and substance abuse disorder. Those
applications were denied, and Plaintiff requested reconsideration, which was also denied.
Plaintiff appealed and requested a hearing before an ALJ. On March 14, 2014, a hearing was

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held before ALJ Dennis O’Leary. On May 29, 2014, the ALJ issued a written opinion, finding
that Plaintiff was not disabled. Plaintiff appealed that decision to the Appeals Council, which
denied his request for review. Having exhausted his administrative remedies, Plaintiff filed his
Complaint in the instant action.
a.

Work Activity and Function Reports
In his work history report, Plaintiff stated that he worked as a line cook and food handler.

A.R. at 211. Starting in 2009, Plaintiff worked as a line cook at Aramark where he prepared
“lunch menu items for employee purchase in company cafeteria.” Id. at 211, 215. In 2010,
Plaintiff was employed as a line cook at Nutrition Management Services. Id. at 211. That same
year, Plaintiff began working for Compass Group USA, Inc. (“Compass Group”) as a line cook,
where he made both “lunch and dinner items for residents in private assisted living facility.” Id.
at 211, 213. In 2011, Plaintiff was promoted to food handler at Compass Group and, as a result,
he was responsible for preparing “mostly sandwiches” that were “shipped out to vending
machines.” Id. at 211-12.
In his function report, Plaintiff stated that he is currently living in a group home, and
explained that “[he] wake[s] up[,] go to program for 7 hours. Then come home eat[;] then go to
an AA meeting[;] then go to sleep.” Id. at 266. Plaintiff states that he frequently cooks meals
and performs household chores, such as “cleaning [and] laundry.” Id. With respect to social
activities, Plaintiff reports that he eats with his roommates at the group home “every so often,”
and that he attends “AA/ NA meetings.” Id. at 270. According to Plaintiff, he is able to follow
written instructions “the best [he] can,” and he can follow spoken instructions well. Id. at 271.
In regard to his job at Compass Group, Plaintiff explained that he was terminated because he
“couldn’t go in everyday.” Id. at 272.

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b.

Review of the Objective Medical Evidence
1.

Medical Records

In 2009, Plaintiff was hospitalized on five occasions for mental health issues triggered by
drug usage. On January 19, 2009, Plaintiff was admitted to the Carrier Clinic “for homicidal
threats toward [his] family.” Id. at 353. In the discharge summary, Paul Goodnick (“Dr.
Goodnick”), M.D., diagnosed Plaintiff with “Bipolar I, mania” and adjusted his medication
regimen. Id. at 353-54. Dr. Goodnick noted that, after several days of treatment, “[Plaintiff]
stated he was taking his medication and was feeling a lot better.” Id. at 354. Dr. Goodnick
observed that “[Plaintiff] sounded positive and was friendlier to nursing staff,” and that “[h]e
was doing better” and his “mood [was] balanced.” Id.
On March 15, 2009, Plaintiff was admitted to the Carrier Clinic for “delusions and
threatening behavior” directed at his parents. Id. at 314. Dr. Goodnick reported that Plaintiff
thinks his parents are withholding “millions of dollars” in inheritance from his deceased
grandmother, so “[h]e stalk[ed] parents around the house and blocked mother from leaving the
bedroom until she gave him money.” Id. A couple days later, Plaintiff was released from
Carrier Clinic, and Dr. Goodnick noted that “[Plaintiff] said he would not use marijuana which
seems to be the major trigger in his behavioral disturbances and will stay on medication.” Id. at
315. Plaintiff admitted, in June 2009, that he consumed approximately one gram of marijuana
every day for the past six years. Id. at 285.
On August 11, 2009, Plaintiff was admitted to the Princeton Healthcare Systems. Id. at
426-27. In the discharge summary, Richard Prus-Wisniewski (“Dr. Prus-Wisniewski”), M.D.,
stated that Plaintiff was diagnosed with a “[s]chizoaffective disorder, cannabis dependence, [and]
nicotine dependence.” Id. at 426. The doctor stated that “[P]laintiff did report a history of 2

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years of mood swings with racing thoughts and irritability,” and that “[h]e remained delusional
that his brother might get with his ex-girlfriend….” Id. at 426, 430. Dr. Prus-Wisniewski stated
that “[Plaintiff] was strongly advised not to use [] marijuana, given that it might worsen his
psychosis and delusions.” Id. at 426.
On August 27, 2009, Plaintiff was readmitted to the Princeton Healthcare Systems. Id. at
415-16. In the discharge summary, Dr. Prus-Wisniewski stated that “MD spoke to [Plaintiff’s]
father who felt that [Plaintiff] was doing better after [] the prior discharge for 2 days and then
[Plaintiff] went… to get some marijuana and that is when he became aggressive and sat on the
family’s car and they called 9-1-1.” Id. at 415. Dr. Prus-Wisniewski stated that Plaintiff agreed
to start a treatment program, and that “[h]e was tolerating his medications well and he was
discharged on his medications,” including Abilify, Cogentin, Inderal, Depakote, Doxycycline,
Vistaril and Paxil. Id.
On September 11, 2009, Plaintiff was committed to the Hagedorn Psychiatric Hospital
because “[Plaintiff] [was] highly paranoid that his parents [were] keeping his inheritance money
from him so… he [became] irritable, angry, threatening them, following them and barricading
his parents in the home, as well as in the car.” Id. at 442. Dr. Lourdes Montezon (“Dr.
Montezon”), M.D., noted that “[Plaintiff] has also been smoking pot excessively,” and that “[he]
started using cannabis at 16.” Id. at 442-43. The doctor stated that Plaintiff was prescribed
Depakote, Abilify, Cogentin, Haldol and Vistaril. Id. at 447. With respect to his condition on
discharge, Dr. Montezon explained that “[Plaintiff] appears to be alert, fairly groomed, friendly
and pleasant with stable mood noted and with no signs of psychosis or paranoia noted.” Id. at
449. Plaintiff was diagnosed with bipolar disorder and cannabis dependence. Id.

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On December 2, 2009, Plaintiff visited Dr. Henry B. Odunlami (“Dr. Odunlami”), a
psychiatrist at Genpsych, who noted that Plaintiff has an anger management issue that “manifests
itself as harsh, angry words.” Id. at 555. Dr. Odunlami also reported that “[Plaintiff] has a
history of marijuana abuse,” and that “[h]e uses a few times per week,” including “using some
hours ago.” Id. at 556. A mental status examination revealed that Plaintiff did not have any
serious abnormalities. Id. His speech was normal, and his language skills were intact. Id.
Plaintiff denied any suicidal thoughts, hallucinations and delusions. Id. Dr. Odunlami found that
Plaintiff’s behavior was generally appropriate, and that his thinking was logical, and his thought
content was appropriate. Id. Plaintiff displayed no signs of anxiety or hyperactivity. Id.
Plaintiff was diagnosed with “Major Depressive Disorder, Recurrent, Severe with Psychotic
Features” and “Cannabis Dependence.” Id. at 557.
On December 23, 2009, Plaintiff visited Dr. Odunlami, who reported that “[Plaintiff’s]
behavior has been stable and uneventful and he denies any psychiatric problems or symptoms.”
Id. at 558. Dr. Odunlami stated that Plaintiff’s “[m]ood was euthymic with no signs of
depression or elevation.” Id. The following month, on January 26, 2010, Dr. Odunlami reported
that “[Plaintiff] denies all psychiatric problems.” Id. at 560. However, on March 2, 2010,
Plaintiff saw Dr. Odunlami, who reported that Plaintiff was “[u]sing ½ a gram of [marijuana]
daily... [and] says that he [is] not willing to stop it....” Id. at 562. Nevertheless, Dr. Odunlami
determined that Plaintiff suffered from a depressive disorder and cannabis abuse. Id.
On May 12, 2010, Plaintiff told Dr. Odunlami that he suffers from paranoia “and [said]
that [marijuana] makes him very paranoid.” Id. at 569. Additionally, Plaintiff stated that he
experiences “[b]izzare or magical thoughts” and “[h]as severe mood swings with ups and downs
and irritability.” Id. Dr. Odunlami stated that Plaintiff has abused marijuana “for years,” and

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that “[he] reports that his last use was hours ago.” Id. Dr. Odunlami stated that “[Plaintiff] has
also abused alcohol.” Id. With respect to his mental status, Dr. Odunlami stated that “[t]here are
no signs of hallucination, delusions, bizarre behaviors, or other indicators of psychotic process.”
Id. at 570. Indeed, the doctor found that “[Plaintiff] is fully oriented.” Id. Plaintiff was
diagnosed with major depressive disorder, and he was instructed to continue with his medicine
regimen of Depakote, Abilify and Cogentin. Id. at 570-71.
On June 22, 2010, Dr. Odunlami reported that Plaintiff has been taking his medication
regularly and his “behavior has been stable and unremarkable.” Id. at 572. On July 28, 2010,
Plaintiff visited Lydia Kelse (“Dr. Kelse”), a psychiatrist at Genpsych, who noted that Plaintiff
had improved. Id. at 581. Specifically, Plaintiff had no symptoms of anxiety or depression and
was feeling better and attending group therapy sessions. Id. Dr. Kelse noted that Plaintiff also
denied any substance use. Id. A mental status examination revealed normal findings. Id. Dr.
Kelse diagnosed Plaintiff with major depressive disorder, and continued Plaintiff on his
medication regimen. Id. at 581-82.
On August 18, 2010, Plaintiff saw Ngozi Nwobi (“Nwobi”), a nurse practitioner at
Genpsych, who reported that Plaintiff was in a “good mood.” Id. at 578. Nwobi reported that
Plaintiff denies substance abuse, as well as the temptation or craving to smoke marijuana.1 Id.
With respect to his mental status, Nwobi found that Plaintiff was “euthymic with no signs of
depression or manic process,” so his diagnoses were unchanged and his medications were
continued. Id. On September 16, 2010, Plaintiff visited Nwobi, again, who found that
“[m]edication has been regularly taken as prescribed and behavior has been stable.” Id. at 576.
Indeed, the nurse practitioner reported that “[n]o psychiatric complaints [were] made.” Id.

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However, Plaintiff’s mother informed Nwobi that her son continued to use marijuana. Id.
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However, Plaintiff requested a decrease in his medications because of “low energy,” so Nwobi
decreased his dosage of Abilify. Id.
On November 8, 2010, Nwobi reported that “Plaintiff did not show up for appointment,”
but his “[p]arents said he has been taking the Space drugs and can’t function.” Id. at 574.
Nwobi recommended that “[Plaintiff] be sent to a long term drug rehab place.” Id. On
December 6, 2010, Plaintiff saw Maryann Minischetti (“Minischetti”), an advanced nurse
practitioner at Genpsych. Id. at 602-04. Minischetti reported that “[Plaintiff] is guarded,
becomes angry when asked about drug use [and] refused [a urine drug screen].” Id. at 602.
However, she noted that Plaintiff denied substance abuse. Id.
In January 2011, Plaintiff saw Minischetti on three separate occasions. Id. at 596-601.
On January 5, 2011, Minischetti noted that Plaintiff admitted to smoking synthetic marijuana
(also referred to as “K2” or “Spice”), and she found that Plaintiff exhibited mild depressive
symptoms and anxiety. Id. at 600. Minischetti diagnosed Plaintiff with major depressive
disorder and cannabis dependence. Id. On January 24, 2011, Minischetti stated that “[Plaintiff]
smoked a couple of days ago” and complained of anxiety. Id. at 598. On January 31, 2011,
Minischetti reported that Plaintiff “keeps asking for benzos,” but she stated that “benzos would
not be given.” Id. at 596. Indeed, Minischetti stated that Plaintiff was “[o]verly polite,
somewhat manipulative, [and] states he has not smoked [synthetic marijuana] for one week.” Id.
Plaintiff was then prescribed Buspar and his dosage of Vistaril was increased. Id. at 596-97.
On February 14, 2011, Plaintiff visited Minischetti, and she reported “confront[ing]
[Plaintiff] about leaving group [therapy] early last Thursday, makes excuses, told if he leaves
again he will probably be discharged.” Id. at 592. At that evaluation, Plaintiff denied substance
abuse, and Minischetti found that he did not “express depressive thoughts.” Id. However, she

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also noted that Plaintiff “[r]emains manipulative [and] overly polite.” Id. On February 23, 2011,
Minischetti reported that “[Plaintiff] stopped [using synthetic marijuana] two days ago but is
feeling some withdrawal from [it].” Id. at 590. However, Plaintiff denied abusing any other
substances, as well as any psychotic symptoms. Id. Minischetti indicated that Plaintiff’s insight
and judgment was “fair at best,” and that he needed direction and support. Id.
On March 2, 2011, Minischetti reported that Plaintiff had relapsed and smoked synthetic
marijuana after “manag[ing] to stay clean for one week only.” Id. at 588. Minischetti noted that,
although Plaintiff was in a good mood, he experienced some anxiety. Id. The nurse practitioner
continued Plaintiff on his medication regimen without adjustments. Id. at 588-89. On March 7,
2011, Minischetti noted that Plaintiff was still smoking synthetic marijuana, and that “he needs it
for anxiety, but cannot state what the anxiety is about.” Id. at 585. Minischetti increased
Plaintiff’s dosage of Buspar. Id. at 586. On March 16, 2011, Plaintiff visited Minischetti, who
reported that Plaintiff had smoked synthetic marijuana over the past weekend, but that Plaintiff
had read an “article about [synthetic marijuana], [and] stated it opened his eyes [because] he did
not realize people had been killed from [synthetic marijuana].” Id. at 583. Minischetti explained
that Plaintiff “[s]eems to relapse on [synthetic marijuana] over weekends.” Id.
On March 22, 2011, Plaintiff was admitted to Seabrook House for substance abuse
treatment, and he was diagnosed with a depressive disorder, an anxiety disorder, and cannabis
and nicotine dependence. Id. at 504-08. The discharge summary states that Plaintiff said “he has
been doing his drug of choice for too long now.” Id. at 507. During his treatment, Plaintiff
attended group therapy sessions. Id. On April 7, 2011, Plaintiff returned to Seabrook House for
substance abuse treatment. Id. at 509. Records reveal that Plaintiff admitted drinking alcohol
twice a month for the past eight years; smoking three grams of marijuana daily for the past seven

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years, as well as two grams of synthetic marijuana daily for one year; and, ingesting bath salts at
least once a week for the past year. Id. at 521, 533. Plaintiff reportedly stated that he needed
help with his addiction because “[he] cannot seem to stop on his own.” Id. at 521. On July 29,
2011, Plaintiff started substance abuse treatment at Seabrook House, again. Id. at 532. The
medical reports reveal that Plaintiff suffered from cannabis and hallucinogen dependence and
alcohol abuse. Id. Plaintiff stated that “he would like to continue his sobriety and learn more
about addiction.” Id. at 533. Despite that sentiment, on October 11, 2011, Plaintiff “[l]eft
treatment to live with a young woman [that] he met in the rooms of AA/NA.” Id. at 535.
Approximately four months after he left Seabrook House, Plaintiff entered substance
abuse treatment at Summit Oaks Hospital (“Summit Oaks”) on February 16, 2012. Id. at 537.
Susan Borja (“Dr. Borja”), M.D., reported that Plaintiff was admitted because he became
aggressive with his parents and punched a hole in their wall when they refused to buy Plaintiff a
pack of cigarettes. Id. at 537-38. Plaintiff was diagnosed with “Bipolar Disorder, Mixed,
Cannabis Dependence, Continuous.” Id. at 537. Dr. Borja noted that Plaintiff “reports that he
has been abusing synthetic marijuana for over a year and smok[es] 4 grams per day.” Id. at 538.
Plaintiff was advised to follow-up at Hunterdon Behavioral Health. Id. at 539.
On March 23, 2012, Plaintiff visited Dr. Odunlami at Genpsych, who reported that
Plaintiff admitted to abusing marijuana and synthetic marijuana. Id. at 564. Indeed, Dr.
Odunlami stated that Plaintiff had used synthetic marijuana hours before the evaluation, and
appeared to be “high.” Id. at 564, 567. Dr. Odunlami reported that “[Plaintiff] has [also]...
abused crack cocaine, ecstasy [and] hallucinogens.” Id. Plaintiff admitted that he drinks alcohol
and has snorted bath salts, which Dr. Odunlami referred to as “synthetic amphetamines.” Id. at
565. Dr. Odunlami determined that “[Plaintiff] has symptoms of anxiety” and “reports fears of

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losing control or of dying.” Id. at 564. Plaintiff also described “[s]ensations of excessive
muscular tension,” and is restless and irritable. Id. Plaintiff was diagnosed cannabis and
synthetics dependence. Id. at 567. Dr. Odunlami stated that Plaintiff has “a history of
medication non-compliance,” and that “[h]e stopped taking his antidepressants last month
because he was feeling better.” Id. Dr. Odunlami informed Plaintiff about the importance of
taking his prescribed medication. Id. at 567-68.
In April 2012, Plaintiff was enrolled in a partial care program at Genpsych. Id. at 685.
Carly DeCotiis (“DeCotiis”), a licensed professional counselor, noted that Plaintiff was admitted
into “the program for substance abuse, labile moods and volatile behavior.” Id. Although he
was supposed to attend 25 hours of group therapy, DeCotiis reported that Plaintiff had poor
attendance, and that he was ultimately discharged after “[he] came to the program under the
influence” and refused to provide a urine sample for a drug screen. Id. According to DeCotiis,
“when [the doctor] met with [Plaintiff], she recommended a higher level of care – long term
residential detox program.” Id.
On April 21, 2012, Ryan DiMeglio (“DiMeglio”), a counselor at Endeavor House,
performed an intake evaluation on Plaintiff. Id. at 689-97. DiMeglio reported that Plaintiff
entered this substance abuse program because his “[f]amily intervened and stated that [Plaintiff]
needed to get treatment.” Id. at 689. DiMeglio noted that, although Plaintiff denied psychosis,
he experienced “anxiety, cannabis abuse, and depression.” Id. During the evaluation, Plaintiff
admitted that he abuses marijuana and synthetic marijuana, but that his “drug of choice” is
synthetic marijuana. Id. at 690. Indeed, Plaintiff stated that he had smoked synthetic marijuana
before the intake evaluation. Id.

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With respect to his mental status, DiMeglio found that Plaintiff was well oriented with a
bland affect. Id. at 696. His “[m]ood [was] anxious and depressed,” and “[h]e presented himself
in a disheveled fashion.” Id. According to DiMeglio, Plaintiff made sufficient eye contact, and
his speech was logical and coherent. Id. Plaintiff appeared fidgety and displayed a mild degree
of conceptual disorganization. Id. Plaintiff also exhibited poor judgment. Id. However, his
attitude was open and cooperative, and his attention and concentration were intact. Id. DiMeglio
diagnosed Plaintiff with cannabis dependence and bipolar disorder. Id. Nevertheless, Plaintiff
was discharged four days later against medical advice, because the program was “too intense.”
Id. at 698-99.
In October 2012, Plaintiff was a patient at Integrity House, a substance abuse facility, but
he decided to go to Bergan Regional for inpatient treatment. Id. at 711, 716. Following his
discharge from Bergan Regional, Plaintiff began treatment at the Gateway Day Treatment
Program in November 2012. Id. at 707. Records reveal that, at that time, Plaintiff was
prescribed Depakote, Cogentin, Risperidone and Buspirone. Id. at 711. His intake assessment
reports that “[Plaintiff] was abusing [synthetic marijuana] which activated his illness,” since
“[h]e was using it daily for almost 3 years in addition to cannabis.” Id. at 720. In addition, the
records state that, even though “[Plaintiff] was having repeated psychotic episode and even on
medications,” he “continued to use cannabis and [synthetic marijuana].” Id. Plaintiff was
diagnosed with a psychotic disorder, hallucinogen and cannabis dependence with a history of
cocaine abuse. Id. at 717.
In August 2013, Sahar Kousa (“Dr. Kousa”), a psychiatrist, did an intake evaluation at
CPC Behavioral Healthcare (“CPC”). Id. at 727-36. Dr. Kousa reported that Plaintiff has been
living at Easter Seals, a group home, for approximately ten months. Id. at 728. Plaintiff stated

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that he did not abuse any substances for nine months, but he recently relapsed on several
occasions. Id. at 728-29. Dr. Kousa reported that, when Plaintiff was medicated, there was no
psychosis. Indeed, Plaintiff stated that “[he is] fine on meds even if [he] use[s],” but he could
not remember “how he feels without meds but on drugs.” Id. Dr. Kousa found that Plaintiff has
a long history of “substance abuse/dependence,” and that he “presents with [symptoms] of
manic/hypomanic [symptoms] with and without using [drugs],” but has “periods of psychosis
when off antipsychotics.” Id. at 735.
Dr. Kousa performed a mental status examination, which revealed that Plaintiff was
cooperative with good eye contact. Id. at 732. His thought process was linear with no abnormal
thought content. Id. Plaintiff denied any hallucinations, and his mood was “good” and his affect
was euthymic, reactive, and appropriate. Id. at 732-33. Plaintiff was fully oriented and was able
to identify similarities and explain proverbs. Id. at 733. His memory was intact and he displayed
average intelligence and good insight and judgment. Id. Dr. Kousa noted that Plaintiff stated, “I
do well as long as I take my medications.” Id. Plaintiff was diagnosed with bipolar disorder,
attention deficit hyperactivity disorder, substance dependence and substance induced anxiety
disorder. Id. Dr. Kousa noted that Plaintiff was on Depakote, Risperdal, Buspar and Cogentin.
Id. at 736.
On September 24, 2013, Ira Hays (“Hays”), a licensed social worker at CPC, performed a
biopsychosocial assessment on Plaintiff. Id. at 737-49. Hays noted that Plaintiff was living at
Easter Seals, and that “he has been attending Community Connections for almost a year and
wants to change programs as he feels that [it] is ‘not working’ and is ‘repetitive.’” Id. at 743,
748. Hays noted that Plaintiff has a history of mental illness and substance abuse, but “[he]
denies any history of or current psychosis or suicide attempt.” Id. at 748. However, Plaintiff

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stated that he experiences “symptoms of depression including feelings of sadness, periods of
poor motivation and not following through on things,” as well as “anxiety including finding it
hard to sit still and fidgeting.” Id.
During the biopsychosocial assessment, Hays performed a mental status examination. Id.
at 744-46. According to Hays, Plaintiff was cooperative and well-groomed with average eye
contact and clear speech. Id. at 744. Plaintiff displayed no signs of hallucinations or delusions,
and his thought process was logical. Id. at 744-45. Hays found that Plaintiff had a full affect,
but an anxious and depressed mood. Id. at 745. His ability to think abstractly was intact, but he
reported problems with memory and concentration. Id. Hays determined that Plaintiff has
average intelligence with good insight and judgment. Id. at 746. Plaintiff was diagnosed with
bipolar disorder, an anxiety disorder and a substance dependency. Id.
On November 7, 2013, Plaintiff visited Dr. Kousa, and Plaintiff reported medication
compliance and that “[he] feel[s] better, anxiety is not as bad as it used to be.” Id. at 753. A
mental status examination revealed that Plaintiff was alert, calm, and cooperative. Id. His
speech was fast, but otherwise normal. Id. Dr. Kousa found that Plaintiff was in a good mood,
and his affect was congruent and broad. Id. Plaintiff was fully oriented, and his thought form
was logical and linear. Id. Plaintiff denied any hallucinations or delusions, and Dr. Kousa found
that his insight and judgment were good. Id. Plaintiff was diagnosed with a bipolar disorder, an
anxiety disorder and a substance dependence. Id.
2.

State Agency Medical Opinions

On July 25, 2012, Kim Arrington (“Dr. Arrington”), a consultative psychologist,
examined Plaintiff, and the doctor reported that Plaintiff had been participating in Integrity
House, a substance abuse program, for the past twenty days. Id. at 700-01. During the

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examination, Plaintiff reported that he experiences “dysphoric moods, fatigue, difficulty
concentrating, isolating himself from others, and irritability.” Id. at 700. Plaintiff also reported
that “[h]e makes careless mistakes and is impulsive.” Id. at 701. Dr. Arrington found that
Plaintiff was cooperative with adequate social skills, and that he was casually dressed with fair
hygiene and grooming. Id. Plaintiff made appropriate eye contact, but his motor behavior was
restless. Id. His speech was fluent and clear with adequate language. Id. Dr. Arrington
determined that Plaintiff appeared coherent and goal directed, and there was no evidence of
hallucinations, delusions or paranoia. In addition, his affect was restricted, and his mood was
dysthymic. Id. However, Dr. Arrington stated that “[Plaintiff’s] judgment ranges from fair to
poor due to mood fluctuations.” Id. at 702.
After performing tests on his intellectual functioning, Dr. Arrington concluded that
“[Plaintiff] is able to follow and understand simple directions and instructions,” but had
difficulty maintaining attention and concentration. Id. Indeed, Dr. Arrington found that
“[Plaintiff] will have difficulty learning new tasks and performing complex tasks independently.”
Id. Thus, Dr. Arrington opined that “[t]he results of the present evaluation appear to be
consistent with psychiatric problems, which may significantly interfere with [Plaintiff’s] ability
to function on a daily basis.” Id. Dr. Arrington recommended that “[Plaintiff] continue with his
current substance abuse program,” and that “he continue with his current psychiatric treatment as
well.” Id. Plaintiff diagnosed attention deficit hyperactivity disorder, polysubstance abuse,
and substance-induced mood disorder. Id.
In August 2012, Michael Dadamo (“Dr. Dadamo”), a state agency psychologist, opined
that Plaintiff suffered from the following severe impairments: substance abuse disorder and
attention deficit disorder and attention deficit hyperactivity disorder. Id. at 63, 80-81. Although

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Dr. Dadamo did not personally examine Plaintiff, the doctor reviewed the medical evidence in
the record, including the findings and opinions of Dr. Arrington. Id. at 64. Dr. Dadamo
concluded that Plaintiff was “moderately limited” in his ability to remember locations, work
procedures and detailed instructions. Id. at 65. However, Dr. Dadamo concluded that Plaintiff
was “not significantly limited” in his ability to understand, remember and carry out very short
and simple instructions. Id. In fact, Dr. Dadamo found that Plaintiff was “not significantly
limited” in his ability to carry out detailed instructions. Id. Dr. Dadamo additionally determined
that Plaintiff was “moderately limited” in his ability to sustain concentration and persistence,
including some limitations in regard to “maintain[ing] regular attendance and be[ing] punctual
within customary tolerances.” Id. In conclusion, Dr. Dadamo opined that Plaintiff is “best
equipped” for work with two or three step directions, and that “[h]e is able to focus adequately
upon routine job tasks.” Id. Dr. Dadamo opined that “[l]imitations in stress tolerance and
practical judgment limit [Plaintiff] to jobs where the changes in routine are modest and he does
not have to exercise a lot of independent judgment.” Id. at 66. Ultimately, Dr. Dadamo opined
that Plaintiff is not disabled. Id. at 67. In March 2013, Ellen Gara (“Dr. Gara”), a state agency
psychiatrist, confirmed the opinion of Dr. Dadamo. Id. at 94, 115.
c.

Review of the Testimonial Record
1.

Plaintiff’s Testimony

Plaintiff testified that he is twenty-five years old. Id. at 28. While in high school,
Plaintiff worked as a deli clerk at Steck’s Delicatessen for approximately four years. Id. at 28,
44. He worked “[r]oughly five hours a day” and about “[f]our to five days a week.” Id. at 28.
However, Plaintiff left Steck’s to go to culinary school, where he earned an associate degree. Id.
at 28, 44. Plaintiff testified that his last job, at Compass Group, was terminated “[d]ue to [his]

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dual diagnosis; my mental illness.” Id. at 29. Plaintiff clarified that his “dual diagnosis” refers
to his “bipolar depression anxiety, and addiction to marijuana.” Id. at 30.
Based on his illnesses, Plaintiff stated that he has been involuntarily committed to the
hospital on “[a]t least five; five to six” occasions. Id. The first time Plaintiff was involuntarily
committed was “roughly around the age of 22,” but, at the time of the hearing, the most recent
commitment “was probably about two years ago.” Id. at 29-30. With respect to the cause of his
last involuntary commitment, Plaintiff explained, “I feel as if I wasn’t right on my medications,
and I have to get them regulated.” Id. at 30.
Plaintiff testified that he was twenty-two years old when he was diagnosed with bipolar
disorder, and that he still experiences both manic and depressive episodes. Id. at 32. Plaintiff
stated that his longest depressive episode was “[r]oughly a month; maybe a month” and it lasted
“[q]uite a few days.” Id. at 33. Plaintiff explained, “I don’t feel like getting out of bed. I just
don’t feel like being active in any way, shape, or form.” Id. Conversely, Plaintiff testified that
he also experiences manic episodes “[m]aybe a couple of times a week” and he gets “these high
moments.” Id. According to Plaintiff, “I’m just very up, excited; feel like I’m on the top of the
world type of feeling. But then it goes away and [] I get very drained.” Id. at 33-34.
During manic episodes, Plaintiff testified that he “mak[es] poor decisions,” such as
“[u]sing marijuana or something like that.” Id. at 34. Plaintiff stated that, while he has abused
other substances, his “drug of choice” is marijuana or synthetic marijuana. Id. at 35. However,
Plaintiff claimed that he had not used marijuana or synthetic marijuana in “[o]ver a year.” Id.
Plaintiff testified that he currently attends CPC Behavioral Healthcare for mental health
treatment, including group counseling, and that he goes “five days a week, Monday through
Friday.” Id. at 35-36. Plaintiff explained that he has “been in [the] program for over a year and

16

a half now.” Id. at 36. After starting his treatment, Plaintiff stated that he is feeling better, and
that “[i]t’s very rare that I get a manic episode now.” Id. at 37. However, Plaintiff further stated
that “I still get [depressive episodes] from time to time.” Id.
Plaintiff is prescribed “Haldol, BuSpar, Depakote, and Cogentin.” Id. at 36. Plaintiff
stated that his current medication regimen is better than past regimens, but the doctors at CPC
are “still experimenting [with the proper combination of medication and dosages] because [his]
anxiety level is through the roof at some points.” Id. at 40. Indeed, Plaintiff declared that “[i]t’s
very hard to function with [his] anxiety” because he experiences “tremors, sweaty palms,
crawling out of [his] skin.” Id. at 40-41.
In regard to his living situation, Plaintiff testified that he has lived in a group home “for
over a year and a half now.” Id. at 38. At the house, Plaintiff stated that he is responsible for
various chores, including “cleaning the house, do[ing] [] laundry, making [] beds, just cleaning.
Stuff like that.” Id. Plaintiff enjoys listening to music, cooking and “talking to girls.” Id. On
the weekends, Plaintiff stated that his “family comes down… [a]nd they take [him] out for, like,
dinner or lunch. And then [they] go grocery shopping; sometimes [they] go walk around the
mall.” Id. at 42-43. Plaintiff explained that, based on the rules at the group home, he is “not
really allowed to go out with anyone” other than his parents. Id. at 43.
Finally, at the hearing, the ALJ asked Plaintiff whether he would be able to resume his
former job as a deli clerk, and Plaintiff responded that, “[t]o be honest, your honor, I don’t think
I would be able to do it at this point due to the fact that I don’t think I’d be able to hold the job
because some days I would probably have to miss.” Id. at 45. Plaintiff testified that his “mental
illness is overbearing at some points,” and that he experiences “anxiety working around people;
my depression.” Id. Nevertheless, Plaintiff stated that, although he still suffers from depressive

17

episodes, “I’m kind of forced to go into the program” because he “can’t stay at the [group home]
during the day.” Id.
2.

Vocational Expert’s Testimony

Patricia Sheshon (“Sheshon”), a vocational expert, also testified at the hearing. Id. at 4649. Sheshon testified that Plaintiff had previously worked as a deli clerk, cook and food
assembler. Id. at 47. The ALJ then asked Sheshon to assume a hypothetical individual who was
able perform a full range of work at all exertional levels, but had the following non-exertional
limitations:
As a result of the combined effects of depression and/or medication side effects,
the individual would be restricted to jobs of a simple and repetitive nature
involving one or two step processes for completion. In other works, unskilled
work. And also assume that the individual would be restricted to jobs that do not
involve direct contact with the public.
Id. Sheshon opined that Plaintiff could not perform his past relevant work, but he could perform
the following jobs that exist in significant numbers in the national economy, including: (i) a
machine feeder – Dictionary of Occupational Titles (“DOT”) 699.686-010; (ii) laborer, salvage –
DOT 929.687-022; and (iii) cleaner II – DOT 919.687-014. Id.
In addition, the ALJ asked Sheshon to “assume additionally the individual would, for a
variety of reasons, not be able to work three or more days per month on an unscheduled basis.”
Id. Sheshon concluded that, based on that additional limitation, there would be no jobs for such
an individual. Id. The ALJ then asked Sheshon that, “if... an individual would not be able to
stay on task for 15 or more percent of the workday for any reason, would I be correct in
assuming that there would be no jobs that such a person could perform?” Id. Sheshon agreed
and concluded there would be no jobs. Id. at 49.
d.

Review of the ALJ’s Decision

18

The ALJ issued his written decision on May 29, 2014. Id. at 11-18. The ALJ found that
“[Plaintiff] is under a disability, but that a substance abuse disorder is a contributing factor
material to the determination of disability.” Id. at 12. Stated differently, the ALJ concluded that
Plaintiff is not disabled under the Act, “because [he] would not be disabled if he stopped the
substance use.” Id. at 12, 18.
In reaching that determination, the ALJ found that Plaintiff’s date of last insured was
September 30, 2012, and that Plaintiff has not been engaged in substantial gainful activity since
January 1, 2012, the alleged onset date. Id. at 14-15. The ALJ concluded that Plaintiff suffered
from two severe impairments: (i) bipolar disorder, and (ii) a substance abuse disorder. Id. at 15.
Indeed, the ALJ determined that “[Plaintiff’s] impairments, including the substance abuse
disorder, meet section 12.04 of 20 CFR Part 404, Subpart P, Appendix 1.” Id. The ALJ
explained that “[i]t is clear that [Plaintiff] has a severe mental impairment but it is also clear that
drug and alcohol abuse is a material part of the impairment.” Id.
With respect to step four, the ALJ concluded that, if Plaintiff stopped his substance use,
“[he] would have the residual functional capacity to perform a full range of work at all exertional
levels,” but “he is [only] able to perform work which is simple and repetitive with no direct
contact with the public.” Id. at 13, 17. The ALJ reasoned that, “[a]lthough [Plaintiff] has been
hospitalized on several occasions, all of these were associated with drug abuse; he has admitted
to use of multiple types of street drugs.” Id. at 16. However, “[w]hen detoxed and stabilized,
[Plaintiff’s] thought and cognitive processes were mostly normal.” Id. Put differently,
“[Plaintiff] is essentially symptom free” when he follows his medication regimen. Id. As a
result, the ALJ concluded that “[Plaintiff] would be able to work without consideration of his

19

substance abuse,” since “[t]he record clearly shows that when he sobers up he is functional with
few apparent mental problems.” Id. at 17.
The ALJ concluded that Plaintiff would not be able to perform his past relevant work “as
a cook which involved more than simple tasks and constant contact with others,” but the ALJ
determined, based on the testimony of the vocational expert, that Plaintiff could perform the
following jobs, which exist in significant numbers in the national economy: (i) a machine feeder
– Dictionary of Occupational Titles (“DOT”) 699.686-010; (ii) laborer, salvage – DOT 929.687022; and (iii) cleaner II – DOT 919.687-014. Id. at 17-18.
II.

STANDARD OF REVIEW
On a review of a final decision of the Commissioner of the Social Security

Administration, a district court “shall have power to enter, upon the pleadings and transcript of
the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of
Social Security, with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g); see
Matthews v. Apfel, 239 F.3d 589, 592 (3d Cir. 2001). The Commissioner’s decisions regarding
questions of fact are deemed conclusive on a reviewing court if supported by “substantial
evidence in the record.” 42 U.S.C. § 405(g); see Knepp v. Apfel, 204 F.3d 78, 83 (3d Cir. 2000).
While the court must examine the record in its entirety for purposes of determining whether the
Commissioner’s findings are supported by substantial evidence, Gober v. Matthews, 574 F.2d
772, 776 (3d Cir. 1978), the standard is highly deferential. Jones v. Barnhart, 364 F.3d 501, 503
(3d Cir. 2004). Indeed, “substantial evidence” is defined as “more than a mere scintilla,” but less
than a preponderance. McCrea v. Comm’r of Soc. Sec., 370 F.3d 357, 360 (3d Cir. 2004). “It
means such relevant evidence as a reasonable mind might accept as adequate.” Plummer v.
Apfel, 186 F.3d 422, 427 (3d Cir. 1999). A reviewing court is not “empowered to weigh the

20

evidence or substitute its conclusions for those of the fact-finder.” Williams v. Sullivan, 970
F.2d 1178, 1182 (3d Cir. 1992), cert. denied, 507 U.S. 924 (1993). Accordingly, even if there is
contrary evidence in the record that would justify the opposite conclusion, the Commissioner’s
decision will be upheld if it is supported by the evidence. See Simmonds v. Heckler, 807 F.2d
54, 58 (3d Cir. 1986).
Disability insurance benefits may not be paid under the Act unless Plaintiff first meets the
statutory insured status requirements. See 42 U.S.C. § 423(c). Plaintiff must also demonstrate
the “inability to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not less than 12 months….” 42
U.S.C. § 423(d)(1)(A); see Plummer, 186 F.3d at 427. An individual is not disabled unless “his
physical or mental impairment or impairments are of such severity that he is not only unable to
do his previous work but cannot, considering his age, education, and work experience, engage in
any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. §
423(d)(2)(A). Eligibility for supplemental security income requires the same showing of
disability. Id. at § 1382c (a)(3)(A)-(B).
The Act establishes a five-step sequential process for evaluation by the ALJ to determine
whether an individual is disabled. See 20 C.F.R. § 404.1520. First, the ALJ determines whether
the claimant has shown that he or she is not currently engaged in “substantial gainful activity.”
Id. at § 404.1520(a); see Bowen v. Yuckert, 482 U.S. 137, 146-47 n.5 (1987). If a claimant is
presently engaged in any form of substantial gainful activity, he or she is automatically denied
disability benefits. See 20 C.F.R. § 404.1520(b); see also Bowen, 482 U.S. at 140. Second, the
ALJ determines whether the claimant has demonstrated a “severe impairment” or “combination

21

of impairments” that significantly limits his physical or mental ability to do basic work activities.
20 C.F.R. § 404.1520(c); see Bowen, 482 U.S. at 146-47 n.5. Basic work activities are defined
as “the abilities and aptitudes necessary to do most jobs.” 20 C.F.R. § 404.1521(b). These
activities include physical functions such as “walking, standing, sitting, lifting, pushing, pulling,
reaching, carrying or handling.” Id. A claimant who does not have a severe impairment is not
considered disabled. Id. at § 404.1520(c); see Plummer, 186 F.3d at 428.
Third, if the impairment is found to be severe, the ALJ then determines whether the
impairment meets or is equal to the impairments listed in 20 C.F.R. pt. 404, subpt. P., app. 1 (the
“Impairment List”). 20 C.F.R. § 404.1520(a)(4)(iii). If the claimant demonstrates that his or her
impairments are equal in severity to, or meet those on the Impairment List, the claimant has
satisfied his or her burden of proof and is automatically entitled to benefits. See id. at §
404.1520(d); see also Bowen, 482 U.S. at 146-47 n.5. If the specific impairment is not listed, the
ALJ will consider in his or her decision the impairment that most closely satisfies those listed for
purposes of deciding whether the impairment is medically equivalent. See 20 C.F.R. §
404.1526(a). If there is more than one impairment, the ALJ then must consider whether the
combination of impairments is equal to any listed impairment. Id. An impairment or
combination of impairments is basically equivalent to a listed impairment if there are medical
findings equal in severity to all the criteria for the one most similar. Williams, 970 F.2d at 1186.
If the claimant is not conclusively disabled under the criteria set forth in the Impairment List,
step three is not satisfied, and the claimant must prove at step four whether he or she retains the
“residual functional capacity” to perform his or her past relevant work. 20 C.F.R. § 404.1520(e);
Bowen, 482 U.S. at 141. If the claimant is able to perform previous work, the claimant is
determined to not be disabled. 20 C.F.R. §§ 404.1520(e), 416.920(e); Bowen, 482 U.S. at 141-

22

42. The claimant bears the burden of demonstrating an inability to return to the past relevant
work. Plummer, 186 F.3d at 428. Finally, if it is determined that the claimant is no longer able
to perform his or her previous work, the burden of production then shifts to the Commissioner to
show, at step five, that the “claimant is able to perform work available in the national economy.”
Bowen, 482 U.S. at 146-47 n.5; Plummer, 186 F.3d at 428. This step requires the ALJ to
consider the claimant’s residual functional capacity, age, education, and past work experience.
20 C.F.R. § 404.1520(f). The ALJ must analyze the cumulative effect of all the claimant’s
impairments in determining whether the claimant is capable of performing work and not
disabled. Id.
III.

DISCUSSION
Plaintiff makes two arguments on appeal as to why the ALJ’s disability determinations

are unsupported by substantial evidence. First, Plaintiff contends that the ALJ failed to properly
weigh the medical evidence, since Plaintiff clearly does not have the residual functional capacity
to perform work-related activities, even if he stopped his substance abuse. Next, Plaintiff
contends that the ALJ failed to construct and propose hypothetical questions to the vocational
expert that accurately portrayed Plaintiff’s physical and mental limitations.
a.

Whether the ALJ Properly Considered the Medical Evidence
Plaintiff takes issue with the ALJ’s determination that Plaintiff maintains some residual

functional capacity when he stops abusing drugs and complies with his mediation regimen.
Plaintiff contends that the medical evidence supports the finding that Plaintiff suffers from
various ailments, including depression and anxiety, even when he stops abusing drugs. For
example, Plaintiff points to his own complaints to medical professionals, as well as Dr.

23

Arrington’s medical report that concluded that Plaintiff’s psychiatric problems may interfere
with his ability to function on a daily basis.
In a case involving drug or alcohol addiction, “[a]n individual shall not be considered to
be disabled… if alcoholism or drug addiction would (but for this subparagraph) be a contributing
factor material to the Commissioner’s determination that the individual is disabled.” 42 U.S.C. §
423(d)(2)(C); see Mirabile v. Comm’r of Soc. Sec., 354 Fed. Appx. 619, 622 (3d Cir. 2009). In
order to determine whether an addiction is material, “the key factor” is whether the ALJ would
still find the claimant disabled if he or she stopped using drugs or alcohol. 20 C.F.R. §
404.1535(b)(1). “The ALJ is to determine which of the claimant’s physical and mental
limitations would remain if the claimant stopped using drugs or alcohol, and then must determine
whether any of the claimant’s remaining limitations would be disabling.” Ford v. Barnhart, 78
Fed. Appx. 825, 827 (3d Cir. 2003). If the ALJ determines that the claimant’s remaining
limitations are disabling, then the claimant is “disabled independent of [his or her] drug addiction
or alcoholism and [the ALJ] will find that [the] drug addiction or alcoholism is not a contributing
factor material to the determination of disability.” 20 C.F.R. § 404.1535(b)(2)(ii).
Here, the ALJ initially concluded that Plaintiff was disabled, since he suffers from
bipolar disorder and a substance abuse disorder.2 A.R. at 15. However, because Plaintiff has a

2

Plaintiff argues that the ALJ incorrectly found that Plaintiff suffered from both drug and
alcohol abuse, since “[t]here is no history of alcohol abuse in the medical record.” Pl.’s Br. at p.
16. However, that argument is not supported by the record. While alcohol was not his “drug of
choice,” the medical evidence reveals that Plaintiff did abuse alcohol. For example, Dr.
Odunlami wrote in a 2010 report that “[Plaintiff] has also abused alcohol.” A.R. at 569. The
following year, records from Seabrook House provide that Plaintiff was diagnosed with cannabis
and hallucinogen dependence and “alcohol abuse.” Id. at 532. In 2012, Plaintiff informed Dr.
Odunlami that he continues to drinks alcohol, as well as snort bath salts. Id. at 565. Therefore,
substantial evidence in the record supports the ALJ’s finding that Plaintiff abused alcohol.
24

medically verifiable substance abuse disorder, the ALJ performed a drug and alcohol addiction
analysis in which he concluded that Plaintiff is not disabled because “the substance use disorder
is a contributing factor material to the determination of disability.” Id. at 18. The ALJ
specifically found that “[Plaintiff] would be able to work without consideration of his substance
abuse problem,” and that “[t]he record clearly shows that when he sobers up he is functional with
few apparent mental problems.” Id. at 17. The ALJ explained that, when he stops using drugs
and complies with his medication regime, “[Plaintiff] is essentially symptom free.” Id. at 16.
Because the ALJ concluded that Plaintiff is able to perform simple and repetitive work without
direct contact with the general public, the ALJ determined that Plaintiff is capable of performing
jobs in the national economy. Id. at 13, 18.
The record shows that, when Plaintiff abuses illicit substances, his bipolar disorder is
agitated, which severely exacerbates his disabling symptoms, such as depression, anxiety,
paranoia, delusions, anger and impaired judgment. For instance, in 2009, Plaintiff admitted that
he was using a substantial amount of marijuana. Id. at 285, 312, 357, 427. That year, Plaintiff
was involuntarily committed on five separate occasions. Specifically, Plaintiff suffered
delusions, and he repeatedly directed homicidal threats at his parents, as well as lashed out
violently and destroyed property. See id. at 314, 353-54. Dr. Goodnick, who treated Plaintiff
regularly, reported that marijuana “seem[ed] to be the major trigger in his behavioral
disturbances,” and he strongly advised Plaintiff to take his prescribed medication. Id. at 315.
Likewise, Dr. Prus-Wisniewski instructed Plaintiff to stop using marijuana, “given that it might
worsen his psychosis and delusions.” Id. at 426.
In subsequent years, Plaintiff continued to use drugs, including marijuana and synthetic
marijuana, on a daily basis. See id. at 423, 521, 533, 562, 564-67, 572, 672, 720. Throughout

25

his struggle with addiction, Plaintiff attended multiple substance abuse programs, but he often
relapsed and started abusing drugs again. See id. at 516, 583, 728-29. In April 2012, Plaintiff
attended a substance abuse program at Genpsych, but he was discharged when he showed up
under the influence of drugs. Id. at 685. That same year, Plaintiff started attending Gateway
Day Treatment Program, where the records reveal that Plaintiff was smoking synthetic
marijuana, “which activated his [mental] illness,” yet Plaintiff continued to smoke drugs, even
though “[he] was having repeated psychotic episode….” Id. at 720. Tellingly, Plaintiff admitted
to Dr. Odunlami that his drug usage exacerbated his mental health symptoms. For example,
Plaintiff candidly admitted “that [marijuana] makes him very paranoid.” Id. at 569. In addition,
while high on synthetic marijuana, Plaintiff complained to Dr. Odunlami about worsening
symptoms of anxiety, restlessness and irritability. Id. at 564.
Moreover, the ALJ concluded that Plaintiff’s bipolar disorder showed marked
improvement when he stopped consuming illicit drugs and complied with his medication
regimen. Id. at 15-16. The ALJ relied on Dr. Odunlami’s treatment records. Id. at 16. Dr.
Odunlami specifically reported that, when Plaintiff regularly takes his medication, he showed no
signs of serious mental abnormalities and his erratic behavior stabilized. Id. at 354, 572.
Similarly, Dr. Kelse reported that, when Plaintiff denied any substance abuse, he presented no
symptoms of anxiety or depression. Id. at 581. Furthermore, the ALJ relied on Dr. Kousa’s
November 2013 report.3 Id. at 16. Dr. Kousa noted that Plaintiff was complying with his

The Third Circuit has explained that “[t]he 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.’” Mirabile, 354 Fed. Appx. at 622 (alteration in original)
(citation omitted). In the instant matter, Dr. Kousa’s report is useful because Plaintiff had
experienced a long period of abstinence from drug abuse. A.R. at 16, 35.
3

26

medication regimen, and that he reported feeling better because his “anxiety is not as bad as it
used to be.” Id. at 753. Dr. Kousa found that Plaintiff was alert, calm, and cooperative. Id. His
speech was fast, but otherwise normal. Id. He was in a good mood, and his affect was congruent
and broad. Id. Plaintiff was fully oriented, and his thought form was logical and linear. Id.
Plaintiff, at that time, denied any hallucinations or delusions, and his insight and judgment were
good. Id. In a separate report, Dr. Kousa noted that Plaintiff stated that “[he] do[es] well as long
as [he] take[s] [his] medications.” Id. at 733.
Finally, notwithstanding other medical records to the contrary, Plaintiff contends that Dr.
Arrington’s July 2012 report and opinions conclusively establish that he is disabled.4 Id. at 70001. However, that argument is misplaced. The ALJ provided some weight to Dr. Arrington’s
opinion that “[t]he results of the present evaluation appear to be consistent with psychiatric
problems, which may significantly interfere with [Plaintiff’s] ability to function on a daily
basis.” Id. at 16, 700-01. However, Dr. Arrington did not specify the cause of the “psychiatric
problems,” i.e., whether his problems were caused solely by his mental issues and/or his
substance abuse. Indeed, the ALJ specifically noted that Dr. Arrington opined that Plaintiff’s
mood disorder was induced by his substance abuse. This opinion is consistent with the ALJ’s
determination that Plaintiff’s drug usage is a contributing factor material to the determination of
disability. The ALJ also appears to give some weight to Dr. Arrington’s opinion that “[Plaintiff]
is able to follow and understand simple directions and instructions,” but had difficulty with
attention and concentration. Id. at 702.

Under Mirabile, Dr. Arrington’s report is less useful than Dr. Kousa’s report because, at the
time of Dr. Arrington’s examination, Plaintiff had only been “clean” for approximately twenty
days. Id. at 700-01.
4

27

After careful review of the record, there is substantial evidence to support the ALJ’s
finding that Plaintiff is not completely disabled absent his drug abuse, especially since many of
Plaintiff’s disabling symptoms are affected by his consumption of drugs. Accordingly, Plaintiff
has failed to satisfy his burden of proving disability throughout the drug and alcohol addiction
materiality analysis. See Social Security Ruling (“SSR”) 13-2P, 2013 S.S.R. LEXIS 2, *11.
b.

Whether the ALJ Properly Questioned the Vocational Expert
Plaintiff argues, without citing any legal support, that remand is appropriate because the

ALJ “did not include in his hypothetical to the vocational expert that plaintiff would not be able
to be at work on a sustained basis due to his required participation in his mental health program
five days a week….” Pl.’s Br. at p. 23. Plaintiff maintains that “an individual [such as himself]
cannot perform substantial gainful activity if he/she is required to attend an outpatient program
four hours a day five days a week.” Pl.’s Reply Br. at p. 4. I disagree.5
The Third Circuit has explained that, with respect to hypothetical questions posed to
vocational experts, “the ALJ may proffer a variety of assumptions to the expert, [but] the
vocational expert’s testimony concerning a claimant’s ability to perform alternative employment
may only be considered for purposes of determining disability if the question accurately portrays

Plaintiff also argues that he is not able to perform the job of laborer/ salvage, since “[t]his
occupation exceeds the simple, repetitive task restriction placed on plaintiff by the
Administrative Law Judge.” Pl.’s Br. at p. 23. Assuming that Plaintiff is correct, it is harmless
error because Plaintiff is able to perform other jobs that exist in significant numbers in the
national economy. See Rutherford v. Barnhart, 399 F.3d 546, 553 (3d Cir. 2005) (“We…
conclude that a remand is not required here because it would not affect the outcome of the
case.”). Indeed, Plaintiff does not challenged the ALJ’s determination that Plaintiff is able to
perform the job of machine feeder or cleaner II. See A.R. at 17-18. The vocational expert
testified that, in the national labor market, there are 26,000 machine feeder jobs and 69,000
cleaner II jobs. Id. at 47-48. So long as Plaintiff can perform those types of jobs, under the Act,
Plaintiff is not considered disabled. See Plummer, 186 F.3d at 428.
5

28

the claimant’s individual physical and mental impairments.” Burns v. Barnhart, 312 F.3d 113,
123 (3d Cir. 2002) (internal quotation marks and citation omitted); see 42 U.S.C. § 423(d)(3) (a
physical and mental impairment is defined as “an impairment that results from anatomical,
physiological, or psychological abnormalities which are demonstrable by medically acceptable
clinical and laboratory diagnostic techniques.”). “A hypothetical question posed to a vocational
expert must reflect all of a claimant’s impairments.” Burns, 312 F.3d at 123 (internal quotation
marks and citation omitted). When the record contains objective medical evidence of specific
impairments not included in a hypothetical question to a vocational expert, “the expert’s repose
is not considered substantial evidence.” Id.
Typically, when formulating hypothetical questions, an ALJ must consider whether a
claimant could perform certain occupations given his residual functional capacity, work
experience, education and age. See Plummer, 186 F.3d at 427-28; see also Walker v. Astrue,
733 F. Supp. 2d 582, 590 (E.D. Pa. Aug. 9, 2010) (stating that “the ALJ typically poses
hypothetical questions to the [vocational expert] asking whether the claimant could perform
certain occupations given [his residual functional capacity], age, education, and past work
experience….”) (internal quotation marks and citation omitted). When a claimant presents
limitations imposed by a mental impairment, and supported by objective medical evidence, the
ALJ must consider four categories of functional limitations: “(1) activities of daily living, (2)
social functioning, (3) concentration, persistence, or pace, and (4) deterioration or
decompensation in work or work-like settings.” Ramirez v. Barnhart, 372 F.3d 546, 551 (3d Cir.
2004); see Mellor-Milam v. Comm’r of Soc. Sec., No. 13-5732, 2014 U.S. Dist. LEXIS 178247,
at *49 (D.N.J. Dec. 30, 2014) (stating that the hypothetical questions “must ‘accurately portray’

29

all of the physical and mental impairments that are supported by objective medical findings in
the record.”).
In the instant matter, the ALJ concluded that Plaintiff maintained some nonexertional
restrictions, even when he stops using drugs, and that “[he] is able to perform work which is
simple and repetitive with no direct contact with the public.” A.R. at 13, 15. That determination
is supported by Dr. Arrington’s opinion that “[Plaintiff] is able to follow and understand simple
directions and instructions.” Id. at 702. In addition, Dr. Dadamo, a state agency psychologist,
opined that Plaintiff is not disabled. Id. at 67. In reaching that opinion, Dr. Dadamo found that
Plaintiff is “best equipped” for work with two or three step directions, and that “[h]e is able to
focus adequately upon routine job tasks.” Id. at 65. Dr. Dadamo also found that “[l]imitations in
stress tolerance and practical judgment limit [Plaintiff] to jobs where the changes in routine are
modest and he does not have to exercise a lot of independent judgment.” Id. at 66. Based on
that evidence, the ALJ correctly posed several questions to the vocational expert about Plaintiff’s
ability to perform work-related activities. Id. at 46-49.
While Plaintiff argues that his participation in a mental health and substance abuse
program should have been included in the hypothetical questions posed to the vocational expert,
that argument must fail. In connection with a residual functional capacity determination, an ALJ
may consider the effects of attending treatment, such as the “frequency of treatment, duration
[or] disruption to routine….” SSR 96-8P, 1996 SSR LEXIS 5, at *13-14. However, an ALJ is
not required to question the vocational expert about restrictions imposed by ongoing medical or
mental health treatment, unless there is objective medical opinion evidence in the record that the
claimant must attend such treatment for a prescribed period of time, and that there is a likelihood
of absenteeism due to the frequency of the appointments. See Burns, 312 F.3d at 123; see also

30

Robinson v. Astrue, No. 10-689, 2011 U.S. Dist. LEXIS 144541, at *14 (S.D. Ohio Oct. 12,
2011) (“No physician or other medical source opined about the likelihood of absenteeism
required for Plaintiff’s medical treatment.”), report and recommendation adopted, No. 10-689,
2011 U.S. Dist. LEXIS 144546 (S.D. Ohio Dec. 14, 2011); Walker v. Astrue, No. 03-0078, 2008
U.S. Dist. LEXIS 124728, at *33 (M.D. Tenn. Sept. 24, 2008) (“Though a treating physician’s
opinion regarding a plaintiff’s expected rate of absenteeism may be entitled to deference, there
was no such opinion from a treating physician in this case.”), report and recommendation
adopted, No. 03-0078, 2008 U.S. Dis. LEXIS 84791 (M.D. Tenn. Oct. 21, 2008).
In this case, Plaintiff argues on appeal that he must attend outpatient program for four
hours a day five days a week. In support of that argument, Plaintiff relies on his own testimony
from the hearing. Plaintiff specifically testified that he was attending CPC Behavioral
Healthcare for mental health and substance abuse treatment, which included a group counseling
component, and that he goes “five days a week, Monday through Friday.” A.R. at 35-36.
However, Plaintiff has failed to present any medical opinion – from Dr. Odunlami or any other
medical source – during the administrative process that he is medically required to attend mental
health and substance abuse treatment, and that his required attendance in such a program would
render Plaintiff unemployable. Although the ALJ noted that “[Plaintiff] spends his days going to
drug rehab 5 days a week,” see id. at 16, the Court notes that Plaintiff has not presented any
evidence that he must continue with his mental health and substance abuse program indefinitely,
or that he could not adjust his schedule to accommodate both his treatment and work
responsibilities. More importantly, no physicians have even suggested that Plaintiff must attend
certain mental health and substance abuse programs for a particular period of time to treat his
illnesses. Without such medical opinion evidence, the ALJ did not err in refraining from asking

31

the vocational expert about Plaintiff’s participation in the mental health and substance abuse
program. In fact, “it would be error to include limitations not credibly established by the record
when relying on a vocational expert’s testimony to make a disability determination.” Chiucchi v.
Comm’r of Soc. Sec., No. 15-2460, 2016 U.S. Dist. LEXIS 173259, at *25 n.4 (D.N.J. Dec. 15,
2016).
In addition, the issue of absenteeism was addressed by the ALJ when he asked the
vocational expert to “assume [an] individual would, for a variety of reasons, not be able to work
three or more days per month on an unscheduled basis.” A.R. at 47. Based on that question, the
vocational expert concluded that there would be no jobs for such an individual. Id. Ultimately,
the ALJ determined that Plaintiff did not suffer from this limitation because, when he stopped
using drugs and complied with his medication regime, Plaintiff was capable of performing light
work with minor restrictions. Id. at 13, 15. This Court has already found that the ALJ’s residual
functional capacity determination was supported by substantial evidence, and as such, the ALJ’s
rejection of more extensive limitations as to the number of days Plaintiff could work was also
supported by the evidence. See Chiucchi, 2016 U.S. Dist. LEXIS 173259, at *25 n.4.
IV.

CONLCUSION
For the reasons set forth above, the Court finds that the ALJ’s decision is supported by

substantial evidence in the record. Accordingly, the ALJ’s decision is affirmed, and Plaintiff’s
Complaint is dismissed.

DATE: May 25, 2017

/s/ Freda L. Wolfson
The Honorable Freda L. Wolfson
United States District Judge

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