Davis v. Commissioner of Social Security
MEMORANDUM-DECISION and ORDERED, that the Commissioners Decision denying disability benefits is AFFIRMED. Signed by Senior Judge Lawrence E. Kahn on March 31, 2014. (sas)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
FRANKLIN H. DAVIS, JR.,
COMMISSIONER OF SOCIAL
MEMORANDUM-DECISION and ORDER
Before the Court is an action for judicial review of the Commissioner of the Social Security
Administration’s (“SSA”) final denial of Plaintiff Franklin H. Davis, Jr.’s (“Plaintiff”) application
for supplemental security income (“SSI”) benefits. Both parties have filed briefs. Dkt. Nos. 10
(“Plaintiff’s Brief”); 11 (“Defendant’s Brief”). For the following reasons, the Court affirms the
A. Factual History
Plaintiff was incarcerated in 1998 after supporting himself for eight years selling drugs. Dkt.
No. 8 (“Record”) at 258-60.1
Plaintiff first sought treatment for, and was formally diagnosed with,
chronic depression in 2000.2 R. at 258. However, he asserts that his depression began after his
mother’s alcohol-related death in 1979. Id. Plaintiff recalls being prescribed trazodone and
Citations to the Record are to the pagination assigned by SSA. On ECF, the Record
appears in seven parts as Docket Numbers 8-1 through 8-7.
The Record contains no medical records of this treatment.
Wellbutrin and being referred to outpatient individual and group therapy. Id. Plaintiff responded
positively to the treatment. Id. He found employment in 2002 and worked for about a year as a
certified nursing assistant at a nursing home in Utica, New York; it was the first job that he had held
since 1990. Id. at 258-260. However, during his employment he relapsed into cocaine and alcohol
dependence. R. at 259. His addiction continued until his incarceration in federal prison in 2005,
where he again received mental health treatment. Id. During the last four years of Plaintiff’s
incarceration, he worked a food service position in the prison mess hall. Id. The position was “low
stress” and in a “controlled environment.” Id.
Shortly after Plaintiff’s release, he relapsed into substance use and then entered Hospitality
House, a halfway house rehabilitation program. R. at 367-68. Hospitality House assigned Plaintiff
to group therapy classes as well as five-hour “job functioning” shifts everyday. Id. Although
Plaintiff was able to carry out these five-hour shifts without issue, his therapist and social worker at
Hospitality House opined that Plaintiff likely could not handle significant additional responsibility.
R. at 368. Plaintiff became easily distracted and overwhelmed when assigned organized tasks, such
as learning how to use a computer. Id. Hospitality House referred Plaintiff for additional
psychiatric treatment after “a number of ‘clean’ months in treatment.” Id.
However, Plaintiff’s psychiatrist, Dr. Janay Fake, denies that Plaintiff’s work ability is
significantly impaired when his depression and substance use are appropriately managed. R. at 397409. Dr. Fake treated Plaintiff following his referral from Hospitality House and filled out a mental
residual functional capacity assessment (“RFC”). Id. Dr. Fake found Plaintiff’s diagnosed “major
depressive disorder, recurrent, moderate in partial remission” not to “affect his ability to understand,
respond to and act on requests by supervisors or co-workers.” R. at 398-400. Dr. Fake stated
Plaintiff’s recent substance abuse would not affect his ability to engage in gainful employment. R.
at 399. However, “with prolonged abstinence, substance use would no longer be a contributing
factor in Plaintiff’s ability to maintain employment.” R. at 400.
Dr. C. Butensky also prepared a Psychiatric Review Technique (“PRT”) and mental RFC as
a consultative examiner. In the PRT, Dr. Butensky listed Plaintiff’s impairments as ranging
between “mild” and “moderate,”3 with no repeated episodes of deterioration. R. at 283. Based on
his interview with Plaintiff, Dr. Butensky concluded that Plaintiff was able to do simple repetitive
work in a low-contact setting. R. at 285. Likewise, on the RFC, which further breaks down areas of
potential impairment, Dr. Butensky identified Plaintiff’s limitations as “not significant” or
“moderate” in all respects. R. at 287-88.
Plaintiff also underwent an internal medicine examination by consultative examiner Dr.
George Alexis Sirotenko. R. at 291-94. Dr. Sirotenko noted that Plaintiff’s prognosis was “fair”
and that Plaintiff suffered no significant physical limitations. R. at 293. However, Dr. Sirotenko
did note that Plaintiff has some arthritis in his knees, as well as a history of Hepatitis C, which is
currently controlled and being treated. R. at 291-93, 371-76.
B. The Commissioner’s Decision
The ALJ concluded that Plaintiff has not engaged in substantial gainful activity since March
16, 2009, and has the following severe impairments: osteoarthritis; history of hepatitis C; depressive
disorder; and substance use disorder. R. at 14-17. The ALJ found Plaintiff not to have an
impairment or combination of impairments that meets or medically equals one listed in 20 C.F.R. §
As per the PRT form, only “marked” or “extreme” limitations satisfy the functional criteria
for disability benefits.
404(P), Appendix 1, due to a lack of findings establishing that the Plaintiff is subject to advanced
functional limitations necessary to meet any pertinent listing. R. at 17. The ALJ further found that
although Plaintiff retains the physical RFC to perform medium work activity, his occupational base
is eroded by nonexertional limitations including an inability to regularly sustain concentration,
persistence, or pace. R. at 18-22. However, the ALJ found Plaintiff’s diminished RFC to be a result
of substance use and that, if Plaintiff were not using these substances, Plaintiff’s RFC would allow
him to resume past employment or a full range of other medium work activity. Id. The ALJ
therefore found Plaintiff not to be disabled because his substance use disorder is a contributing
factor material to the determination of disability, see 20 C.F.R. 416.935. R. at 22.
C. Procedural History
Plaintiff filed an application for Title XVI SSI benefits on April 20, 2009, alleging a period
of disability beginning on January 30, 2009. R. at 134-40. After an initial denial of Plaintiff’s
application and a hearing, Administrative Law Judge (“ALJ”) Arthur Patane denied the application.
R. at 9-27. The Appeals Council denied Plaintiff’s request for review on August 27, 2012,
rendering ALJ Patane’s decision the final decision of the Commissioner. R. at 1-4. The present
A. Standard of Review
In reviewing an SSA decision, a court’s role is to determine whether the ALJ’s findings are
supported by substantial evidence in the record and whether the ALJ applied the correct legal
standards. 42 U.S.C. § 405(g); Featherly v. Astrue, 793 F. Supp. 2d 627, 630 (W.D.N.Y. 2011)
(citations omitted). Substantial evidence is “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Consol. Edison Co. of New York v. Nat’l Labor
Relations Bd., 305 U.S. 197, 229 (1938). It must be “more than a mere scintilla” of evidence
scattered throughout the administrative record. Featherly, 793 F. Supp. 2d at 630.
The reviewing court should not affirm an ALJ’s decision if it reasonably doubts that the proper legal
standards were applied, even if the decision appears to be supported by substantial evidence.
Johnson v. Bowen, 817 F.2d 983, 986. If the ALJ applied the correct legal standards, the decision
must be upheld if the evidence is deemed to be susceptible to more than one rational interpretation,
and must be sustained “even where substantial evidence may [also] support the plaintiff’s position.”
Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982); see also Rosado v. Sullivan, 805 F. Supp.
147, 153 (S.D.N.Y. 1992). The reviewing court may not determine de novo whether an individual is
disabled. See 42 U.S.C. §§ 405(g), 1383(c)(3); Wagner v. Sec’y of Health & Human Servs., 906
F.2d 856, 860 (2d Cir. 1990). It must afford the SSA’s determination considerable deference and
may not substitute “its own judgment for that of the [Commissioner], even if it might justifiably
have reached a different result upon a de novo review.” Valente v. Sec’y of Health & Human
Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).
B. Title XVI SSI
Disability is defined as 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.A. § 423(d)(1)(a). Moreover, a plaintiff’s
physical or mental impairment or impairments [must be] 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, regardless of whether such work exists in the immediate area in
which he lives, or whether a specific job vacancy exists for him, or whether he would
be hired if he applied for work.
42 U.S.C. § 1382c(a)(3)(B).
In determining whether a plaintiff has a disability, the Commissioner applies a five-step
process. See 20 C.F.R. §§ 404.1520 and 416.920. Moreover, “[i]f at any step a finding of disability
or non-disability can be made, the SSA will not review the claim further.” Barnhart v. Thomas, 540
U.S. 20, 24 (2003). The five-step process is as follows:
First, the Secretary considers whether the claimant is currently engaged in substantial
gainful activity. If [she] is not, the Secretary next considers whether the claimant has
a “severe impairment” which significantly limits his [or her] physical or mental ability
to do basic work activities. If the claimant suffers such an impairment, the third inquiry
is whether, based solely on medical evidence, the claimant has an impairment which is
listed in Appendix 1 of the regulations. If the claimant has such an impairment, the
Secretary will consider him [or her] disabled without considering vocational factors such
as age, education, and work experience; the Secretary presumes that a claimant who is
afflicted with a ‘listed’ impairment is unable to perform substantial gainful activity.
Assuming the claimant does not have a listed impairment, the fourth inquiry is whether,
despite the claimant’s severe impairment, [she] has the residual functional capacity to
perform his past work. Finally, if the claimant is unable to perform his past work, the
Secretary then determines whether there is other work which the claimant could
Bush v. Shalala, 94 F.3d 40, 44-45 (2nd Cir. 1996) (citations omitted). The plaintiff bears the
burden of proof with regard to the first four steps; the Commissioner bears the burden at the fifth
step. Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008).
The ALJ found that, although Plaintiff would otherwise have the capacity for medium work,
non-exertional limitations including substance abuse disorder warranted finding Plaintiff disabled.
R. at 20-23. If Plaintiff ceased his substance abuse, however, his remaining functional limitations
would not allow a finding of disability pursuant to 42 U.S.C. § 1382c(a)(3)(J). R. at 22. The ALJ
accordingly found that the Plaintiff’s substance abuse was a material factor in his disability
determination and denied benefits. R. at 23.
“When there is medical evidence of an applicant’s drug or alcohol abuse, the ‘disability’
inquiry does not end with the five-step analysis.” Cage v. Comm’r of Soc. Sec., 692 F.3d 118, 123
(2d Cir. 2012); See 20 C.F.R. § 416.935(a). The codification of 42 U.S.C. § 1382c(a)(3)(J)
amended the Social Security Act’s definition of “disabled” to exclude conditions materially caused
by drug addiction or alcoholism. Cage, 692 F.3d at 124. A claimant “shall not be considered to be
disabled . . . if alcoholism or drug addiction would . . . be a contributing factor material to the
Commissioner’s determination that the [plaintiff] is disabled.” Id. at 123. The claimant bears the
burden of proving the immateriality of their drug addiction or alcoholism as they pertain to the
ALJ’s disability determination. Id. Where a claimant’s remaining limitations would not be
disabling, her drug addiction or alcoholism is deemed to be a materially contributing factor in the
plaintiff’s determination of disability. 20 C.F.R. § 416.935(b)(2)(I). An ALJ determines the
materiality of a plaintiff’s drug addiction or alcoholism primarily on the basis of whether would still
be able to be found disabled if they were to cease their use of the drug or alcohol. 20 C.F.R. §
416.935(b)(1). The ALJ “will evaluate which of [the plaintiff’s] current physical and mental
limitations, upon which [the ALJ] based [their] disability determination, would remain if [the
plaintiff] stopped using drugs or alcohol and then determine whether any or all of [the plaintiff’s]
remaining limitations would be disabling.” 20 C.F.R. § 416.935(b)(2).
The Plaintiff bears the burden of proving the immateriality of his drug addiction, see Cage,
692 F.3d at 123, and the Court finds that the ALJ properly considered available record evidence in
determining that Plaintiff would not be disabled absent substance dependence. See R. at 21. While
in rehabilitation, Plaintiff completed daily five-hour shifts of “job functioning” without issue. Id.
The doctors at the facility opined that Plaintiff’s “substance abuse/dependence affected his ability to
participate in gainful employment.” Id. To the extent that Plaintiff’s challenge to the ALJ’s
findings relies on Plaintiff’s continued diminished RFC after the hearing, the ALJ could not have
known this information when she made her decision. See Pl.’s Br. at 11-12. Although such
information might allow Plaintiff to succeed on a new application for benefits, the ALJ reasonably
concluded, based on substantial evidence, that Plaintiff’s substance abuse contributed to his
diminished RFC, particularly in light of Plaintiff’s burden to prove otherwise.
Furthermore, the ALJ properly found that Plaintiff’s exertional disabilities not to
significantly limit Plaintiff’s capacity to work. In making an RFC determination, the ALJ must
assess all of the relevant medical and other record evidence, as well as the claimant’s testimony
provided by concerning any “limitations that result from [the plaintiff’s] symptoms, such as pain.”
20 C.F.R. § 416.945(a)(3). The ALJ considers the claimant’s “ability to meet the physical, mental,
sensory, and other requirements of work.” Id. § 416.945(a)(4). Concerning physical abilities, the
ALJ should weigh “the nature and extent of [a claimant’s] physical limitations and then determine
[her] residual functional capacity for work activity on a regular and continuing basis.” Id. §
416.945(b). “A limited ability to perform certain physical demands of work activity, such as sitting,
standing, walking, lifting, carrying, pushing, pulling, or other physical functions . . . may reduce [a
claimant’s] ability to do past work and other work.” Id.
The ALJ properly considered record evidence of Plaintiff’s physical limitations. The ALJ
specifically mentioned the x-ray and treatment notes that revealed Plaintiff’s bilateral knee pain and
previous diagnosis of osteoarthritis. R. at 15. The ALJ further reviewed the findings of Dr.
Sirotenko, which stated that Plaintiff’s “examination findings were within normal limits and
[Plaintiff] did not have any frank physical limitations.” R. at 16. The ALJ concluded that the
Plaintiff had the physical RFC to perform medium work. That conclusion was supported by
substantial evidence: Plaintiff’s only significant exertional limitation was some chronic fatigue due
to Plaintiff’s hepatitis C and an inability to engage in heavy lifting. R. at 18-22. Therefore, the ALJ
did not err in finding Plaintiff to be able to engage in medium work activity absent substance use.
The Court has reviewed the remainder of the ALJ’s findings, concludes that the decision was
based on substantial evidence, and therefore affirms.
Accordingly, it is hereby:
ORDERED, that the Commissioner’s Decision denying disability benefits is AFFIRMED;
and it is further
ORDERED, that the Clerk of the Court serve a copy of this Memorandum-Decision and
Order upon the parties to this action.
IT IS SO ORDERED.
March 31, 2014
Albany, New York
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