Sarner v. Astrue

Filing 47

MEMORANDUM AND ORDER denying 22 Motion to Dismiss. Because the Court is concerned that the Commissioner did not properly determine that Plaintiff's drug or alcohol abuse was a contributing factor material to his disability prior to March 1 , 2005, this case is hereby remanded for a fuller explanation of the Commissioner's rationale. The Commissioner's motion (Docket Entry 22) is DENIED, and the Clerk of the Court is directed to mail Plaintiff a copy of this decision and to mark this matter CLOSED. So Ordered by Judge Joanna Seybert on 5/22/12. C/M; C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------X
PHILIP SARNER,
Plaintiff,
-against-

MEMORANDUM & ORDER
08-CV-3281(JS)

MICHAEL J. ASTRUE, Commissioner of
Social Security,
Defendant.
--------------------------------------X
APPEARANCES
For Plaintiff:
Philip Sarner, pro se
290 South Ocean Avenue
Freeport, New York 11520
For Defendant:

Michelle L. Christ, Esq.
United States Attorney's Office
Eastern District Of New York
271 Cadman Plaza East, 7th Floor
Brooklyn, NY 11201

SEYBERT, District Judge:
Pro se Plaintiff Philip Sarner appeals the decision of
the Commissioner of Social Security (the “Commissioner”) denying
in

part

Plaintiff’s

application

for

Childhood

Benefits and Social Security Income Benefits.
Commissioner

moved

for

judgment

on

the

Disability

(See R. 11.)

pleadings.

For

The
the

following reasons, the Commissioner’s motion is DENIED, and this
case is remanded to the Commissioner for further consideration
consistent with the discussion below.

BACKGROUND
Plaintiff

claims

that

his

depressive

disorder

and

attention deficit disorder rendered him disabled beginning on
October

30,

decision,

2002.

the

(See

R.

Administrative

11.)
Law

In

a

Judge

partially

(the

favorable

“ALJ”)

concluded

that Plaintiff was disabled as of March 1, 2005 but was not
entitled to benefits for the period before that date.
11-13.)

Specifically,

Plaintiff

may

have

the

suffered

ALJ
prior

found
to

that

March

any
1,

(See R.

disability

2005

was

not

independent of Plaintiff’s history of drug and alcohol abuse
and, accordingly, Plaintiff was ineligible for benefits during
that period.

(R. 12.)

In relevant part, the ALJ’s decision reads as follows:
The
remainder
of
the
record
reflects
treatment for and symptomatology associated
with a depressive disorder and attention
deficit disorder.
However, until March 1,
2005,
noteworthy
among
the
claimant’s
various hospitalizations and treatments, is
a
thread
of
substance
abuse.
More
specifically, when hospitalized on May 21,
2004, cocaine/alcohol/and marijuana abuse
were noted.
In addition, treatment notes
from the Nassau County Corrections Center,
spanning the period of May 2004 through June
2006, cite a diagnosis of cocaine abuse.
The claimant was also hospitalized at Good
Samaritan Hospital on February 18, 2005, for
an overdose of pills.
However, since said
time, the claimant has consistently been
clean and sober.
The claimant is currently under the care of
Dr. A. Nagra.
In a recent questionnaire
2

dated October 4, 2006, the doctor furnished
diagnoses of a mood disorder and attention
deficit disorder.
In an addendum thereto,
he stated that the claimant has been clean
and
sober
for
“more
than
one
year.”
Pertinent clinical findings included mood
disturbance,
emotional
liability
and
suicidal ideation.
Functionally, Dr. Nagra
noted serious restrictions regarding the
claimant’s ability to be employed.
The Administrative Law Judge finds, based
upon all of the evidence of record, that the
claimant
is
severely
impaired
by
a
depressive disorder and attention deficit
disorder, which in and of themselves, prior
to
March
1,
2005,
did
not
prevent
understanding, remembering and carrying out
work
instructions
nor
responding
appropriately to co-workers, supervisors and
customary work pressures in a work setting.
It was only when the claimant’s substance
abuse was added to the mix that it could be
said that the claimant was so impaired as to
be unable to work. In fact, prior to March
1, 2005, the claimant’s substance abuse was
patently material to a finding of disability
and inexorably interwoven with his other
impairments. Accordingly, prior to March 1,
2005,
the
claimant
was
ineligible
for
benefits pursuant to Public Law 104-121.
However, as of March 1, 2005, the record
reflects that the claimant has been clean
and sober.
Moreover, despite same, his
impairments
have
continued
to
exist,
independent of substance abuse, and have
eroded his ability to understand, remember
and carry out work instructions as well as
respond appropriately to supervision, coworkers and customary work pressures in a
work setting.
As such, the claimant is
entitled to benefits beginning on March 1,
2005.
(R. 12-13 (citations omitted).)

3

DISCUSSION
Plaintiff argues that the ALJ erred because he (1)
made

no

(Docket

mention
Entry

of

27

Plaintiff’s

at

1);

(2)

history

ignored

of

suicide

pre-2005

attempts

evidence

that

Plaintiff had a history of attempting to hurt himself (id.); (3)
overlooked evidence that Plaintiff spent considerable time in
jail

and

thus,

in

Plaintiff’s

view,

could

not

have

abused

alcohol or drugs during the relevant timeframe (id. at 2); and
(4)

failed

to

give

proper

testimony (see id. at 3).
discussion,

Plaintiff’s

weight

to

Plaintiff’s

hearing

In accordance with the following

case

is

remanded

for

a

clearer

explanation of the Commissioner’s decision.
I. Legal Standard
In reviewing the ruling of the ALJ, this Court will
not determine de novo whether Plaintiff is in fact disabled.
Thus, even if the Court may have reached a different decision,
it must not substitute its own judgment for that of the ALJ.
See Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991) (internal
quotations omitted).

Instead, this Court must determine whether

the ALJ’s findings are supported by “substantial evidence in the
record as a whole or are based on an erroneous legal standard.”
Curry v. Apfel, 209 F.3d 117, 122 (2d Cir. 2000) superseded by
statute

on

quotations

other

grounds,

omitted).

If

20
the

C.F.R.
Court

4

§

404.1560

finds

that

(internal
substantial

evidence

exists

decision

will

exists.

See

to

be

support

upheld,

Johnson

v.

the

even

Commissioner’s
if

evidence

Barnhart,

269

decision,

to

F.

the

Supp.

the

contrary

2d

82,

84

(E.D.N.Y. 2003).

“Substantial evidence is such evidence that a

reasonable

might

mind

conclusion.”

Id.

accept

as

adequate

to

support

a

The substantial evidence test applies not

only to the ALJ’s findings of fact, but also to any inferences
and conclusions of law drawn from such facts.

See id.

To determine if substantial evidence exists to support
the ALJ’s findings, this Court must examine the entire record,
including any conflicting evidence and any evidence from which
conflicting

inferences

may

be

drawn

when

deciding

findings are supported by substantial evidence.

if

the

See Gonzalez v.

Barnhart, No. 01-CV-7449, 2003 WL 21204448, at *2 (E.D.N.Y. May
21, 2003) (internal quotations omitted).

“The findings of the

Commissioner of Social Security as to any fact, if supported by
substantial evidence, shall be conclusive . . . .”
405(g).

42 U.S.C. §

Where an ALJ’s decision is not supported by substantial

evidence, however, or where the Court is “‘unable to fathom the
ALJ's

rationale

without

further

in

relation

findings

to

or

the

evidence

clearer

decision,’ remand is appropriate.”

in

the

explanation

record

for

the

Hernandez v. Astrue, 814 F.

Supp. 2d 168, 184 (E.D.N.Y. 2011) (quoting Pratts v. Chater, 94
F.3d 34, 39 (2d Cir. 1996)).
5

II. A Clearer Explanation is Required
Plaintiff’s

case

must

be

explanation of the ALJ’s rationale.

remanded

for

a

clearer

Drug and alcohol abuse can,

in certain cases, disqualify an applicant from receiving social
security benefits.
Cir. 2002).

See Veino v. Barnhart, 312 F.3d 578, 580 (2d

The Commissioner may not award benefits if alcohol

or drug addiction is “a contributing factor material to the
Commissioner’s determination that the individual is disabled.”
Id. (quoting U.S.C. § 423(d)(2)(C)).

“In determining whether

alcohol or substance abuse is material to the determination of
disability, the key factor is whether the Commissioner would
still

find

the

claimant

alcohol or substance.”

disabled

if

she

stopped

using

the

Hernandez, 814 F. Supp. 2d at 181.

In

other words, alcohol or drug abuse only precludes an award of
benefits where the abuse is a “but for” cause of the applicant’s
disability.
In Plaintiff’s case, it is not clear that the ALJ
properly determined that Plaintiff’s substance abuse was a but
for cause of his disability.
disabled

during

the

period

In concluding that Plaintiff was
after

March

1,

2005

because

his

“impairments have continued to exist, independent of substance
abuse,”

after

that

date

(R.

13

(emphasis

added)),

the

ALJ

implied that the same impairments did not suffice to render
Plaintiff disabled when they were combined with his drug and
6

alcohol

use

prior

to

March

2005.

Put

differently,

if

Plaintiff’s impairments were disabling when he was sober, then
the same impairments ought to have been disabling during the
time when he was abusing drugs and alcohol.
The Commissioner argues that the different outcomes
are justified because Plaintiff’s impairments worsened from the
period during which he was abusing drugs and alcohol to the
post-March 2005 period during which he was clean.
28.)
he

(Def. Br.

That may be correct, and it may be what the ALJ meant when

noted

that,

post-March

2005,

Plaintiff’s

impairments

had

“eroded” Plaintiff’s ability “to understand, remember and carry
out

work

instructions.”

undermined

by

language

(R.

13.)

elsewhere

in

But
the

that
ALJ’s

conclusion
decision

is

that

Plaintiff’s impairments “continued” after Plaintiff became sober
and

that

his

disabling.
that,

“remaining

impairments,

standing

(R. 13-14 (emphasis added).)

rather

than

worsening,

alone”

were

These phrases suggest

Plaintiff’s

level

of

impairment

remained somewhat constant from when he was abusing drugs and
alcohol
evidence

to

when

that

he

was

not.

Plaintiff’s

prior to March 1, 2005.

Moreover,

cognitive

there

abilities

is

certainly

were

impaired

For example, in a July 3, 2003 report,

Dr. Judith Shaw concluded that although Plaintiff’s “trend of
thought was coherent” (R. 154), he had “borderline intellectual

7

functioning” and his “insight appeared to be fair to poor” (R.
155).
CONCLUSION
Because the Court is concerned that the Commissioner
did

not

properly

determine

that

Plaintiff’s

drug

or

alcohol

abuse was a contributing factor material to his disability prior
to March 1, 2005, this case is hereby remanded for a fuller
explanation of the Commissioner’s rationale.

The Commissioner’s

motion (Docket Entry 22) is DENIED, and the Clerk of the Court
is directed to mail Plaintiff a copy of this decision and to
mark this matter CLOSED.
SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

May
22 , 2012
Central Islip, New York

8