Radlinsky v. Astrue

Filing 13

MEMORANDUM-DECISION and ORDER that plaintiffs motion for judgmenton the pleadings (Doc. No. 10) is hereby DENIED, and the Commissioners motionfor judgment on the pleadings (Doc. No. 11) is hereby GRANTED. The Clerk isinstructed to close this case. Signed by Senior Judge Neal P. McCurn on 9/13/2012. (see)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

RICHARD RADLINSKY,
Plaintiff,
-v.-

3:10-CV-01416 NPM

MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

APPEARANCES

OF COUNSEL:

Hinman, Howard, & Kattell, LLP
Attorney for the Plaintiff
700 Security Mutual Building
80 Exchange Street
PO Box 5250
Binghamton, NY 13902-5250

Laurie M. Ceparano, Esq.

Social Security Administration
Attorney for the Defendant
Office of Regional General Counsel,
Region II
26 Federal Plaza - Room 3904
New York, NY 10278

Katrina M. Lederer, Esq.

Neal P. McCurn, Senior United States District Judge
MEMORANDUM-DECISION and ORDER
This action was filed by plaintiff Richard Radlinsky (“plaintiff”) pursuant to

42 U.S.C. § 405(g) to review the final determination of the Commissioner (“the
Commissioner”) of the Social Security Administration (“SSA”), who denied his
application for Disability Insurance Benefits (“DIB”). Currently before the court is
plaintiff’s motion for judgment on the pleadings (Doc. No. 10) seeking rescission of
the Commissioner’s August 23, 2010 decision, with a finding that plaintiff has been
under a disability within the meaning of the Social Security Act (“the Act”) since
February 1, 2002, instead of the disability onset date of April 3, 2007 found by the
Commissioner. Also before the court is the Commissioner’s motion for judgment
on the pleadings (Doc. No. 11) seeking affirmation of the Commissioner’s findings.
For the reasons set forth below, the Commissioner’s motion is granted, and
plaintiff’s motion is denied.
I.

Procedural History and Facts
A.

Procedural History

Plaintiff filed a claim for DIB on October 15, 2003, alleging a disability
onset date of January 1, 2002. That application was denied initially on January 6,
2004. Plaintiff filed a timely request for a hearing on February 4, 2004. Tr. 32-33.
Following that hearing before Administrative Law Judge (“ALJ”) Boyer, in a
decision dated September 9, 2004, the ALJ determined that plaintiff was not
disabled. The appeals council denied review, and plaintiff appealed the decision to

2

this court on May 10, 2005, Dkt. No. 3:05-cv-00562 (“the 2005 case”). The court
remanded the case on July 17, 2007 to obtain the testimony of a Vocational Expert
(“VE”).
In the interim, while the matter was still pending before this court, plaintiff
filed a subsequent claim for DIB and Supplemental Security Income (“SSI”) dated
April 29, 2005. The Appeals Council consolidated the two cases for a hearing
which was held on February 15, 2008. Plaintiff appeared with his attorney at that
hearing before ALJ Lischak, at which a VE testified.
In his March 28, 2008 decision, the ALJ found that plaintiff had severe
impairments consisting of bipolar disorder and alcohol dependence in full sustained
remission as of April 3, 2007. The ALJ found that, considering the VE testimony,
plaintiff’s age, education, work experience, and residual functional capacity (“RFC
“)1 and all the plaintiff’s impairments, including his substance abuse disorder, there
were no jobs that existed in significant numbers in the national economy that
plaintiff could perform. However, the ALJ found that prior to April 3, 2007,
plaintiff’s substance abuse disorder was a contributing factor material to the
determination of disability. Accordingly, although plaintiff was found to be
1

Residual functional capacity (“RFC”) refers to what a claimant can still do in a
work setting despite any physical and/or mental limitations caused by his or her impairments and
any related symptoms, such as pain. An ALJ must assess the patient’s RFC based on all the
relevant evidence in the case record. See 20 C.F.R. § 404.1545 (a)(1).
3

disabled as of January 1, 2002, entitlement to a period of disability and DIB
benefits was limited to the period after April 3, 2007, when his substance abuse was
no longer a contributing factor. Because the ALJ found plaintiff’s alcohol
dependence to be in full sustained remission as of April 3, 2007, plaintiff’s
substance abuse was no longer a contributing factor material to the determination of
disability, and plaintiff was found to be entitled to DIB as of that date.
Plaintiff requested Appeals Council review, and while the request for review
was pending, plaintiff filed a third application for DIB and SSI on May 29, 2008.
Following another hearing on July 14, 2010, ALJ Firestone issued a fully favorable
bench decision on plaintiff’s May 2008 application for benefits, finding plaintiff
disabled as of March 29, 2008. ALJ Firestone then reopened plaintiff’s prior DIB
determination, and by decision dated August 3, 2010, established a new disability
onset date of February 2, 2002.
By order dated September 23, 2010, the Appeals Counsel assumed
jurisdiction of case, upholding ALJ Lischak’s March 28, 2008 decision which
determined that plaintiff was disabled commencing April 3, 2007. The Appeals
Council then reopened and revised ALJ Firestone’s August 3, 2010 decision by
order dated August 13, 2010. The Appeals Council found ALJ Firestone’s
reopening of plaintiff’s previous applications for benefits to be improper, and

4

accordingly, reversed the ALJ’s established onset date of February 2, 2002. The
Appeals Council’s decision became the final decision of the Commissioner.
Plaintiff filed this civil action on November 22, 2010, seeking judicial review of the
Commissioner’s decision.
B.

Facts

The facts of this case are contained in a 759 page administrative transcript.
The court assumes familiarity with the relevant facts based on the well-written and
comprehensive Report-Recommendation dated February 27, 2007, in the 2005 civil
case (see Dkt. No. 3:05-cv-00562-NPM). Additional facts are taken from the
plaintiff’s statement of the facts, with the exception of any inferences, suggestions
or arguments therein. Plaintiff provides no citations to the administrative transcript.
The Commissioner incorporates the facts from the ALJ’s March 2008 decision, and
also provides a supplement to what the Commissioner alleges are plaintiff’s
incomplete facts, providing citations to the administrative transcript, and the court
includes those facts as it deems they are relevant. The court also includes relevant
facts from the record, which this court has reviewed in its entirety.
Plaintiff’s date of birth is October 30, 1964, making him 37 years old on
January 1, 2002, the alleged onset date of disability. Plaintiff has a high school
diploma and a college education. Plaintiff has past relevant work as an engineering

5

technician, inspector and electrical technician. Plaintiff alleges disability arising
out of multiple mental impairments including bipolar disorder, anxiety and panic
attacks. Plaintiff alleges that he has treated with a number of different physicians
for these conditions since at least 1998. An initial evaluation took place by Dr.
Mark Simko (“Dr. Simko”) on August 4, 1998. At that time, plaintiff told Dr.
Simko the details of what plaintiff felt was a three year period of harassment by his
neighbors in an apartment complex. Plaintiff asserted that his tires were slashed
every Thanksgiving on three consecutive years and alleged, inter alia, that someone
was tampering with his car. Dr. Simko noted his preliminary thoughts regarding
diagnoses, including possible paranoid ideation, possible delusions, brief reactive
psychosis and underlying depressive disorder. Plaintiff’s complaints ceased when
he moved from the apartment complex. Plaintiff saw Dr. Simko on a few more
occasions and thereafter, treated for a number of years with Dr. Blumenthal.
During the period of treatment with Dr. Blumenthal, plaintiff was diagnosed
with bipolar disorder and was treated at the Broome County Mental Health Clinic.
Upon the retirement of Dr. Blumenthal in 2001, plaintiff was referred for
continuation of care back to Dr. Simko, who saw plaintiff again on July 31, 2001.
Treatment continued on a regular basis with Dr. Simko through at least August of
2003. Plaintiff has also undergone treatment by his family physician, Dr. Alan

6

Miller (“Dr. Miller”).
Plaintiff has had multiple hospitalizations and inpatient treatments for alcohol
abuse. The Commissioner posits that the record indicates that plaintiff was abusing
alcohol during the relevant period between January 1, 2002 and April 3, 2007, the
date plaintiff allegedly ceased abusing alcohol. On July 18, 2002, plaintiff told his
treating physician, Dr. Simko, that his drinking had increased in the past few
months, to either “one drink per hour,” or “five to six drinks per day.” Tr. 191. On
September 9, 2002, plaintiff told Dr. Simko that “I’ve been OK since I stopped
drinking,” one month ago. Dr. Simko noted that plaintiff exhibited no paranoia and
his mood had improved. Tr. 189. Plaintiff reported that he was planning to attend
job training after the appointment. Id.
On October 10, 2002, plaintiff told Dr. Simko that “I feel better when I’m not
drinking.” Tr. 188. As of December 12,2002, Dr. Simko noted that plaintiff had
stopped drinking, and his symptoms were “much better.” Tr. 187. On January 20,
2003, Dr. Simko noted that plaintiff was drinking again, and that his functioning
was poor, secondary to alcohol relapse. Tr. 186.
Plaintiff was hospitalized for alcohol rehabilitation treatment at Conifer Park
between January 29, 2003 and February 11, 2003. Tr. 150-52. He reported using six
to nine shots of rum daily from age 15 to January 26, 2003, age 38. Tr. 150.

7

Following his release from treatment, plaintiff was evaluated by Florante Tinio,
M.D. (“Dr. Tinio”), on February 15, 2003, who noted that plaintiff was neat, had
spontaneous speech, well-organized thoughts, no delusions or hallucinations, no
suicidal or homicidal ideation, was fully oriented and had intact memory. Tr. 168.
Dr. Tinio diagnosed alcohol dependence, posttraumatic stress disorder, and major
depression. Tr. 169. He assessed a Global Assessment of Functioning (GAF) of
55-60, indicating moderate symptoms.2 Id.
On February 25, 2003, following plaintiff’s release from Conifer Park, Dr.
Simko noted that plaintiff’s mood was good, and that he was abstaining from
alcohol. Tr. 185. His thought processes were coherent and relevant. Id. On March
25, 2003, plaintiff was “good,” with no evidence of depressive symptoms, but

2

The Global Assessment of Functioning Scale is a 100-point scale that measures a
patient’s overall level of psychological, social, and occupational functioning on a hypothetical
continuum. A score of 61-70 is indicative of some mild symptoms (e.g., depressed mood and
mild insomnia) OR some difficulty in social occupational, or school functioning (e.g., occasional
truancy or theft within the household), but generally functioning pretty well, has some
meaningful interpersonal relationships. A score of 51-60 indicates moderate symptoms (e.g., flat
affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social,
occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). A
score of 41-50 indicates severe symptoms (e.g., suicidal ideation, severe obsessional rituals,
frequent shoplifting) OR any serious impairment in social, occupational or school functioning
(e.g., no friends, unable to keep a job). A score of 31-40 indicates some impairment in reality
testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) OR major
impairment in several areas, such as work or school, family relations, judgment, thinking, or
mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child
frequently beats up younger children, is defiant at home, and is failing at school). See Diagnostic
and Statistical Manual of Mental Disorders (“DSM-IV-TR”), 4th. Edition, rev. 2000.
8

complained of poor sleep. Tr. 184. On April 15, 2003, plaintiff was again “good,”
and was sleeping better with medication. Tr. 183. On June 16, 2003, plaintiff was
“fine,” and was satisfied with his current functioning. Tr. 181. On July 9, 2003,
plaintiff told Alan Miller, M.D., that he had started working. Tr. 214. Plaintiff
reported that he was using large amounts of caffeine and over-the-counter
stimulants, and Dr. Miller advised him to stop using those substances immediately.
Plaintiff asked about the possibility of obtaining disability benefits, and Dr. Miller
stated that it would be better for plaintiff to work if possible. Dr. Miller stated that
he would not support plaintiff’s disability request. Tr. 214.
Plaintiff received outpatient treatment for alcohol dependence at the
Addiction Center of Broome County between July 23, 2003 and August 14, 2003.
Tr. 170. On July 31, 2003, plaintiff reported to Dr. Simko that he was “doing fine,”
and had a new job, working three days per week. Tr. 180. On August 13, 2003,
plaintiff reported to a social worker that he had been sober for six months. Tr. 173.
He said that his depression was “not so bad,” and that he was
“almost happy at times,” and had a lot of energy. Id. On examination, plaintiff was
fully oriented, had adequate short term memory, logical and coherent thought
processes, no hallucinations or delusions, and no suicidal or homicidal ideations.
Tr. 175. His GAF was assessed at 55. Id. On August 14, a social worker assessed

9

plaintiff’s GAF at 60. Tr. 170. On August 18, 2003, Surya Toraty, M.D., noted that
plaintiff claimed to have been sober for the past two to three years. On
examination, plaintiff was fairly cooperative, spontaneous, fairly relevant, and
coherent in his speech. Plaintiff denied gross delusions or hallucinations, and had
an adequate and appropriate affect. His sensorium was clear and his memory was
intact. He was lacking insight but had fair judgment. Plaintiff stated that he had
been working at a manual job. The doctor assessed plaintiff’s current GAF at 55,
and his highest GAF in the past year at 65 (indicating only some mild symptoms).
Tr. 172.
On December 22, 2003, plaintiff told consultative examiner John Cusick,
M.D., that he had bipolar disorder and panic attacks, but that he had never been
hospitalized for these conditions. Tr. 111. He stated that he had overdosed on
alcohol and Tylenol in the past, and had been hospitalized for alcohol detoxification
in 1998. He reported having a history of alcohol dependency, but claimed to have
stopped daily consumption of beer and liquor in January 2003. Id. On the same
date, plaintiff reported to consultative psychiatric examiner Alan Dubro, Ph.D., that
he abused alcohol only until July 2002. Tr. 117. He reported that he used to drink
eight shots of rum per night. Id. Dr. Dubro assessed bipolar disorder, and alcohol
dependence in early remission. Tr. 119. Plaintiff saw Dr. Miller on March 17,

10

2004, after a seven-month absence from treatment. Tr. 213. Plaintiff stated that he
felt well from a psychiatric standpoint and was avoiding alcohol. Id. Plaintiff
reported that he was seeking employment. Plaintiff again visited Dr. Miller on May
12, 2004, to discuss the possibility of obtaining disability benefits. Tr. 212.
At a hearing on August 11, 2004, plaintiff testified that he last consumed
alcohol in January 2003. Tr. 238. On January 11, 2005, Dr. Miller noted that
plaintiff initially denied drinking, but later admitted to having several drinks per
day. Tr. 669. Plaintiff was treated by nurse-practitioners at Broome County Mental
Health beginning in 2003. Tr. 591. On August 10, 2005, a nurse practitioner noted
that plaintiff was fully alert and oriented. Plaintiff reported that his mood was okay
and his anxiety was under control, and he had no suicidal or homicidal thoughts, no
hallucinations, and a clear thought process. Tr. 588.
On January 31, 2006, plaintiff was alert and oriented, and his mood was “much
better.” Tr. 583. He denied any worsening of depression, suicidal thoughts,
hallucinations, or paranoia. Id. He stated that he was afraid he may start drinking
again. Tr. 583. On February 14, 2006, plaintiff reported that he had relapsed and
had been drinking “on and off.” Tr. 583. He stated that his last drink was on
January 24, 2006. Plaintiff was doing “OK” on March 22, 2006, denying mood
swings, suicidal thoughts, and any recent drinking. Tr. 582. Plaintiff again denied

11

drinking on April 20, 2006. Tr. 582. On May 30, 2006, plaintiff reported that he
had stopped drinking on May 17, and had been in an alcohol rehabilitation facility
from May 17 to May 24, 2006. Tr. 707. Plaintiff stated that he did not drink after
that time. On June 20, 2006, plaintiff denied drinking. He was clean and
well-groomed, had no suicidal thoughts, and was fully alert and oriented. Tr. 581.
On June 26, 2006, plaintiff was alert and oriented, and his mood was “OK,” and he
stated that he was not drinking. Tr. 581. On July 19, 2006, plaintiff again denied
suicidal thoughts or worsening of depression. On August 16, 2006, plaintiff was
alert and oriented, and stated that he had been doing well for the past month. He
stated that he last drank alcohol on May 17, 2006. He had no suicidal thoughts or
hallucinations. On August 31, 2006, plaintiff denied recent drinking. Tr. 580. He
had no suicidal thoughts, paranoia, or hallucinations. He was fully alert and
oriented, but his clothes were unkempt. On October 20, 2006, plaintiff was
unkempt but alert and oriented. He denied drinking since May 2006. He also
denied any suicidal thoughts or worsening of depression. Id.
Despite plaintiff’s admonitions of continued sobriety, he was admitted to
Bradford Regional Medical Center on January 4, 2007, for treatment of bipolar
disorder and alcoholism. Tr. 649. He reported that he had recently been in the
county jail. Id. Plaintiff described his alcohol use as drinking at least one liter of

12

vodka per day for the past 20 years. Tr. 652. He reported associated blackouts, loss
of control, inability to abstain, compulsive use, morning use, change in personality,
legal complications, withdrawal symptoms, concern from others, guilt over usage,
and multiple failed attempts at abstinence. Id. He was discharged on February 1,
2007, with a GAF of 65, indicating only “some mild symptoms.” Tr. 650.
On February 7, 2007, plaintiff reported to a nurse practitioner at Broome
County Mental Health that he had been in jail for two months due to driving while
intoxicated, and subsequently completed a treatment program at Bradford Medical
Center. Tr. 579. He stated that he was 90 days clean from alcohol. Id. On March 7,
2007, plaintiff reported to a nurse-practitioner that he was “doing good” and
attending Alcoholics Anonymous meetings. Tr. 579. He was happy about
recently being approved for disability benefits. Id. A treating physician at Broome
County noted on April 3, 2007, that plaintiff’s alcoholism was in early full
remission. Tr. 703. Plaintiff denied any manic symptoms or suicidal/homicidal
ideation. Tr. 703. The physician opined that plaintiff was unable to work due to
anxiety. Id. At his hearing on February 15, 2008, plaintiff testified that he last
consumed alcohol on October 31, 2006. Tr. 744. He reiterated this claim during a
consultative examination on July 21, 2008. Tr. 516.

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II.

Discussion
Plaintiff argues that the substantial weight of the medical evidence supports a

finding of disability within the meaning of the Act from January 1, 2002 through
April 3, 2007, and that plaintiff’s substance abuse disorder was not a contributing
factor material to the determination of disability in the relevant time frame.
Plaintiff also argues that the Appeals Counsel had no reasonable basis for its action
of August 23, 2010, and its reversal of the findings of ALJ Firestone. The
Commissioner argues that the ALJ’s March 28, 2008 decision is supported by
substantial evidence and therefore must be affirmed.
A.

Standard of Review

This court does not review a final decision of the Commissioner de novo, but
instead “must determine whether the correct legal standards were applied and
whether substantial evidence supports the decision.” Butts v. Barnhart, 388 F.3d
377, 384 (2d Cir. 2004) (internal citations omitted). See also Halloran v. Barnhart,
362 F.3d 28, 31 (2d Cir. 2004); Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998).
“Substantial evidence” is evidence that amounts to “more than a mere
scintilla. It means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Halloran, 362 F.3d at 31 (quoting Richardson v.
Perales, 402 U.S. 389, 401, 91 S.Ct. 1420 (1971)). “An ALJ must set forth the

14

crucial factors justifying his findings with sufficient specificity to allow a court to
determine whether substantial evidence supports the decision.” Gravel v. Barnhart,
360 F.Supp.2d 442, 444-45 (N.D.N.Y. 2005) (citing Ferraris v. Heckler, 728 F.2d
582, 587 (2d Cir. 1984)). When reviewing a determination by the Commissioner, a
district court, in its discretion, “shall have the power to enter, upon the pleadings
and transcript of 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).
B.

Disability Defined

An individual is considered disabled for purposes of his or her eligibility for
Social Security Disability if he or she is unable 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).
The Commissioner may deem an individual applicant for Social Security
Disability to be disabled
only if 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
15

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. § 423(d)(2)(A).
Social Security Administration regulations set forth a five-step sequential
evaluation process, by which the Commissioner is to determine whether an
applicant for Social Security Disability is disabled pursuant to the aforementioned
statutory definition. See 20 C.F.R. § 404.1520. The Second Circuit Court of
Appeals summarizes this process as follows:
The first step of this process requires the Secretary to
determine whether the claimant is presently employed. If
the claimant is not employed, the Secretary then
determines whether the claimant has a “severe
impairment” that limits [his] capacity to work. If the
claimant has such an impairment, the Secretary next
considers whether the claimant has an impairment that is
listed in Appendix 1 of the regulations. When the
claimant has such an impairment, the Secretary will find
the claimant disabled. However, if the claimant does not
have a listed impairment, the Secretary must determine,
under the fourth step, whether the claimant possesses the
residual functional capacity to perform [his] past relevant
work. Finally, if the claimant is unable to perform [his]
past relevant work, the Secretary determines whether the
claimant is capable of performing any other work. If the
claimant satisfies [his] burden of proving the
requirements in the first four steps, the burden then shifts
to the Secretary to prove in the fifth step that the claimant
is capable of working.
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Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999) (quoting Perez v. Chater, 77 F.3d
41, 46 (2d Cir. 1996)).
The fifth step “requires the [ALJ] to consider the so-called vocational factors
(the claimant’s age, education, and past work experience), and to determine whether
the claimant is capable of performing other jobs existing in significant numbers in
the national economy.” Quezada v. Barnhart, 2007 WL 1723615 (S.D.N.Y. 2007)
(internal quotations omitted).
A person is deemed disabled if he or she is unable 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 twelve months.
Substantial work activity is defined as “work activity that involves doing significant
physical or mental activities. Your work may be substantial even if it is done on a
part-time basis or if you do less, get paid less, or have less responsibility than when
you worked before.” Gainful work activity is defined as “work activity that you do
for pay or profit. Work activity is gainful if it is the kind of work usually done for
pay or profit, whether or not a profit is realized.” 20 C.F.R. § 404.1572(a-b) (West
2009).
C.

Material Effect of Substance Abuse

The Social Security Act, as amended in 1996, states that “an individual shall
17

not be considered to be disabled ... if alcoholism or drug addiction would ... be a
contributing factor material to the Commissioner's determination that the individual
is disabled.” Mims v. Apfel, 182 F.3d 900 (2d Cir. 1999) (citing 42 U.S.C. §
1382c(a)(3)(J) (Supp. II 1996)). “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 disabled if [he] stopped using the
alcohol or substance.” Hernandez v. Astrue, ---F.Supp.2d ----, 2011 WL 1630847 at
* 8 (E.D.N.Y. 2011) (citing 20 C.F.R. §§ 404.1535(b)(1); 416.935(b)(1)). “Under
the regulations, where there is evidence of alcoholism or drug use, the
Commissioner must determine which physical and mental limitations would remain
in the absence of substance abuse and whether these limitations would be disabling
on their own.” Id., citing 20 C.F.R. §§ 404.1535(b)(2); 416.935(b)(2). “If the
remaining limitations would still be disabling to the claimant on their own, then the
claimant is entitled to ... SSD benefits. If the remaining limitations would not be
disabling on their own, then the alcohol or substance abuse is considered material;
and the claimant would not be eligible for benefits.” Id., (citing 20 C.F.R. §§
404.1535(b)(2)(ii); 416.935(b)(2)(ii); 404.1535(b)(2)(i); 416.935(b)(2)(i)).
E.

Analysis

Plaintiff argues that the substantial weight of the medical evidence supports a

18

finding of disability within the meaning of the Act from January 1, 2002 through
April 3, 2007, and that plaintiff’s substance abuse disorder was not a contributing
factor material to the determination of disability during that time frame. In
addition, plaintiff argues that the Appeals Counsel had no reasonable basis for its
action of August 23, 2010, and its reversal of the findings of ALJ Firestone.
The Commissioner counters that the ALJ properly determined that plaintiff’s
substance abuse was a contributing factor to his disability, arguing that the record is
replete with evidence that the plaintiff was abusing alcohol during the relevant
period, and that alcoholism was the primary focus of plaintiff’s treatment during the
relevant period. The Commissioner argues, and the court concurs, that although
plaintiff was also treated for bipolar disorder during this period, all of his inpatient
admissions were due to alcoholism, and plaintiff’s outpatient treatment was also
primarily related to alcoholism.
The Commissioner also argues that the plaintiff’s mental symptoms varied,
[a]lthough there was no extended period of sobriety during the relevant
period, plaintiff’s symptoms were usually reduced on days when he
was not drinking. For example, on September 9, 2002, plaintiff
reported being “ok” since he stopped drinking. Tr. 189. His mood and
concentration were improved, he showed no paranoia, and spoke of
attending job training. Id. Plaintiff reiterated in October 2002 that he
felt better when not drinking, and Dr. Simko noted in December 2002
that plaintiff was much better when he wasn’t drinking. Tr. 187-88. In
contrast, in January 2003, plaintiff’s functioning was poor, secondary
to alcohol abuse. Tr. 186. This pattern continued throughout the
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relevant period, with plaintiff showing improvements following his
release from rehab in February 2003. Tr. 168-69, 184-85. In August
2003, when plaintiff reported not drinking, he was fully oriented, had
logical and coherent thought processes, adequate short term memory,
no hallucinations or delusions, and no suicidal or homicidal ideations.
Tr. 175.
Doc. No. 11, p. 14.
The Commissioner also notes plaintiff’s allegation that he had periods of
sobriety during the relevant period, arguing that the ALJ correctly found that
plaintiff was dishonest about the extent of his alcohol use during the relevant
period. The Commissioner cites various instances of contradictory statements and
false testimony from the record. The court has independently verified this
information, and deems it unnecessary to repeat it here. Accordingly, based on the
record before it, the court affirms the ALJ’s finding that plaintiff’s substance abuse
disorder was a contributing factor material to the determination of disability during
that the time period from January 1, 2002 through April 3, 2007, based on the
substantial evidence on the record.
Plaintiff next argues that the Appeals Counsel had no reasonable basis for its
action of August 23, 2010, and its reversal of the findings of ALJ Firestone. The
Commissioner counters that in its September 23, 2010 order, the Appeals Council
affirmed ALJ Lischak’s March 28, 2008 decision finding that plaintiff’s alcohol
abuse was a contributing factor material to the determination of disability for the
20

period between January 1, 2002 and April 3, 2007, but also affirmed ALJ Lischak’s
determination that plaintiff’s alcohol abuse ceased to be a severe impairment as of
April 3, 2007, and that he was disabled as of that date, entitling him to receive DIB
payments.
The Appeals Council also reopened the decision on plaintiff’s later-filed
claim, dated August 3, 2010, and found that ALJ Firestone’s reopening of ALJ
Lischak’s final decision, to establish a disability onset date of February 2, 2002,
was improper. Tr. 249; see Tr. 262. Pursuant to 20 C.F.R. § 404.988 (Conditions
for reopening), “[a] determination, revised determination, decision, or revised
decision may be reopened— (a) Within 12 months of the date of the notice of the
initial determination, for any reason; (b) Within four years of the date of the notice
of the initial determination if we find good cause, as defined in § 404.989, to reopen
the case .... ( see http://www.ssa.gov/OP_Home/cfr20/404/404-0988.htm). Section
404.989 defines good cause for reopening as the following:
(a) We will find that there is good cause to reopen a determination or decision if—
(1) New and material evidence is furnished;
(2) A clerical error in the computation or recomputation of benefits was made; or
(3) The evidence that was considered in making the determination or decision
clearly shows on its face that an error was made.

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(see http://www.ssa.gov/OP_Home/cfr20/404/404-0989.htm).
The Appeals Council found that the reopening was improper because it was
not done within four years of the date of the notice of initial determination. Tr. 249.
As the Appeals Council noted, the notice of initial determination on the April 29,
2005 application was issued on July 2, 2005. Tr. 249. Therefore, the August 3,
2010 action was improperly taken more than four years after the notice of initial
determination. Finding error in ALJ Firestone’s reopening of the prior
determination outside the allotted four-year period by the regulations, the Appeals
Counsel was correct in assuming jurisdiction and in finding that ALJ Firestone’s
revised disability onset date improperly invaded the period adjudicated by ALJ
Lischak. Accordingly, the court finds for the Commissioner on this issue.
After a comprehensive review of the entire administrative transcript, the
court concludes that substantial evidence supports the Commissioner’s
determination that plaintiff was in fact disabled for the relevant time period at issue
in this case, from January 1, 2002 through April 3, 2007, but that his substance
abuse was a material contributing factor, precluding an award of benefits. Despite
plaintiff’s contentions that there were discrete periods of sobriety during this time,
the record shows that his statements to his treating physicians were conflicting, and
less than credible, and the record contains concrete evidence of his treatment for

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substance abuse during this time frame. The court also finds that the Appeals
Counsel was operating under the appropriate rules when it assumed jurisdiction in
this matter and reversed the error made by ALJ Firestone in reopening the case to
reset the disability onset date, after the time do to so had passed. Accordingly, the
court affirms the Commissioner’s decision in this matter.
III.

Conclusion
Accordingly, for the reasons set forth above, plaintiff’s motion for judgment

on the pleadings (Doc. No. 10) is hereby DENIED, and the Commissioner’s motion
for judgment on the pleadings (Doc. No. 11) is hereby GRANTED. The Clerk is
instructed to close this case.
SO ORDERED.
September 13, 2012

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