Queal v. Commissioner of Social Security

Filing 13

STIPULATION AND ORDER: Approving the # 12 Stipulation. It is ORDERED that the final decision of the Commissioner be and hereby is, in part, REVERSED, and the matter is REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) to the defendant for further administrative action. It is further ORDERED that the within matter be and hereby is DISMISSED in accord with the decision in Melkonyan v. Sullivan, 111 S. Ct. 2157 (1991). It is further ORDERED that, upon remand, the Commissioner shall o nly consider Plaintiff's claims for benefits under Title XVI of the Act for a period beginning of April 19, 2012. It is further ORDERED that the Commissioner's final decision dismissing Plaintiff's claims for benefits under Titles II and XVI of the Act for the period of October 1, 2004 through April 18, 2012 is hereby AFFIRMED and remains undisturbed by this Order. Signed by U.S. Magistrate Judge Andrew T. Baxter on 8/16/2017. (mc)

GRANT C. JAQUITH
Acting United States Attorney
Fergus Kaiser
Special Assistant U.S. Attorney c/o
Social Security Administration
Office of General Counsel
26 Federal Plaza, Room 3904
New York, NY 10278-0004
[phone] [e-mail]
Bar Roll No. 518633
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
------------------------------------------------------x
WILLIAM C. QUEAL JR.,
Plaintiff,
Civil Action No. 16-CV-1497
v.

NANCY A. BERRYHILL,1
Acting Commissioner of Social Security,

STIPULATION FOR REMAND

Defendant.
------------------------------------------------------x
IT IS HEREBY STIPULATED by and between Fergus Kaiser, Special Assistant
United States Attorney, for Grant C. Jaquith, Acting United States Attorney for the Northern
District of New York, attorneys for the defendant herein, and Peter L. Walton, Esq., Plaintiff’s
attorney, that the final decision of the Commissioner be, in part, reversed and the above

Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d)
of the Federal Rules of Civil Procedure, Nancy A. Berryhill should be substituted for Acting
Commissioner Carolyn W. Colvin as the defendant in this suit. No further action needs to be
taken to continue this suit by reason of the last sentence of section 205(g) of the Social Security
Act, 42 U.S.C. § 405(g).
1

1

captioned action be remanded to the Acting Commissioner of Social Security for further
administrative proceedings pursuant to the fourth sentence of 42 U.S.C. § 405(g) (the “Social
Security Act” or the “Act”). It is further stipulated by and between the parties that this reversal
and remand shall only apply to Plaintiff’s claim for benefits under Title XVI of the Social
Security Act for the period beginning on April 19, 2012. As such, upon remand, the
Commissioner shall only consider Plaintiff’s claim for benefits under Title XVI of the Act for a
period beginning on April 19, 2012. See Exhibit A (District Court’s March 21, 2016 Decision
and Order affirming Commissioner’s final decision finding Plaintiff not disabled under the Act
from October 1, 2004 through April 18, 2012).
ORDERED that the final decision of the Commissioner be and hereby is, in part,
REVERSED, and the matter is REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) to
the Defendant for further administrative action, and it is further ORDERED that the within
matter be and hereby is DISMISSED in accord with the decision in Melkonyan v. Sullivan, 111
S. Ct. 2157 (1991).
ORDERED that, upon remand, the Commissioner shall only consider Plaintiff’s claims
for benefits under Title XVI of the Act for a period beginning on April 19, 2012.

2

ORDERED that the Commissioner’s final decision dismissing Plaintiff’s claims for
benefits under Titles II and XVI of the Act for the period of October 1, 2004 through April 18,
2012 is hereby AFFIRMED and remains undisturbed by this Order.

Dated August 16, 2017

GRANT C. JACQUITH
Acting United States Attorney
By:

/s/ Fergus Kaiser
Fergus Kaiser
Special Assistant U.S. Attorney
Bar Roll No. 518633

PETER L. WALTON, ESQ.
Attorney for Plaintiff
By:

SO ORDERED:

________________________________
ANDREW T. BAXTER
UNITED STATES MAGISTRATE JUDGE
Dated: August 16 , 2017

3

/s/ Peter L. Walton
_
Peter L. Walton, Esq.
Conboy, McKay, Bachman & Kendall, LLP
407 Sherman Street
Watertown, New York 13601
Tel: [phone]
Email: [e-mail]

Case 7:13-cv-00516-FJS Document 13 Filed 03/21/16 Page 1 of 14

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_______________________________________________
WILLIAM C. QUEAL, JR.,
Plaintiff,
v.

7:13-CV-516
(FJS)

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
_______________________________________________
APPEARANCES

OF COUNSEL

CONBOY, McKAY,
BACHMAN & KENDALL, LLP
407 Sherman Street
Watertown, New York 13601-9990
Attorneys for Plaintiff

PETER L. WALTON, ESQ.

SOCIAL SECURITY ADMINISTRATION
OFFICE OF REGIONAL
GENERAL COUNSEL – REGION II
26 Federal Plaza – Room 3904
New York, New York 10278
Attorneys for Defendant

SERGEI ADEN, ESQ.

SCULLIN, Senior Judge
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Plaintiff William C. Queal, Jr. brought this action pursuant to the Social Security Act, 42
U.S.C. §§ 405(g) and 1383(c)(3) (“Act”), seeking judicial review of a final decision of the
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Commissioner of Social Security (the “Commissioner”), denying his application for a period of
disability and disability insurance benefits (“DIB”), together with Supplemental Security Income
(“SSI”). See generally Dkt. Nos. 1, 10. Currently before the Court are the parties’ cross-motions
for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure. See
Dkt. Nos. 10, 11.

II. PROCEDURAL HISTORY AND BACKGROUND
Plaintiff filed an application for benefits on September 30, 2006, alleging disability
beginning on October 1, 2004. See Administrative Record (“AR”) at 20. Plaintiff’s application
was denied; and, after a hearing, Administrative Law Judge (“ALJ”) Marie Greener issued an
unfavorable written decision on October 21, 2008. See id. at 47-56. The Appeals Council of the
Social Security Administration (“Appeals Council”) remanded; and, following a supplemental
hearing, ALJ Greener issued a second unfavorable decision on October 26, 2009. See id. at 6380. On September 21, 2011, the Appeals Council remanded again, directing that the case be
assigned to a new ALJ. See id. at 172-75.
Plaintiff then had a hearing before ALJ Elizabeth W. Koennecke, who issued an
unfavorable written decision on April 18, 2012. See AR at 20-41. In her written decision, the
ALJ made the following findings “[a]fter careful consideration of all the evidence . . . .”
1) Plaintiff “met the insured status requirements of the Social Security Act
through December 31, 2009.”
2) Plaintiff “has not engaged in substantial gainful activity (“SGA”) since
October 1, 2004, the alleged onset date.”
3) Plaintiff “has had the following severe impairments: polysubstance abuse and
anxiety disorders (as variously characterized). If [Plaintiff] stopped the
substance abuse, the remaining limitations would cause more than a minimal
impact on [his] ability to perform basic work activities; therefore, [Plaintiff]
would continue to have a severe impairment or combination of impairments.”

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4) Plaintiff “does not have an impairment or combination of impairments that
meets or medically equals one of the listed impairments in 20 CFR Part 404,
Subpart P, Appendix 1. If [Plaintiff] stopped the substance use, [he] would
not have an impairment or combination of impairments that meets or
medically equals any of the impairments listed in 20 CFR Part 404, Subpart P,
Appendix 1.”
5) “After careful consideration of the entire record, the undersigned finds that,
based on all of the impairments, including the substance use disorders,
[Plaintiff] has the residual functional capacity to perform the physical
demands of work at all exertional levels, [he] retains the ability (on a
sustained basis) to frequently understand, carry out and remember simple
instructions; to frequently make simple work-related decisions; to
occasionally respond appropriately to supervision, co-workers, and usual work
situations; and to occasionally deal with changes in a routine work setting. If
[Plaintiff] stopped the substance use, [he] would have the residual functional
capacity to perform the physical demands of work at all exertional levels.
[Plaintiff] would retain the ability (on a sustained basis) to frequently
understand, carry out and remember simple instructions; to frequently respond
appropriately to supervision, co-workers, and usual work situations; and to
frequently deal with changes in a routine work setting in the long-term
absence of drug and alcohol abuse.”
6) “Based on consideration of all of the impairments, including the substance
use, [Plaintiff] is unable to perform any past relevant work. If [Plaintiff]
stopped the substance use, [he] would continue to be unable to perform past
relevant work.”
7) Plaintiff “was born on September 15, 1971, and was a younger individual age
18-49, on the alleged disability onset date.”
8) Plaintiff “obtained his General Education Development (GED) diploma and is
able to communicate in English.”
9) Plaintiff’s “acquired job skills do not transfer to other occupations within the
residual functional capacity defined above. If [Plaintiff] stopped the
substance use, transferability of job skills is not material to the determination
of disability because using the Medical-Vocational Rules as a framework
supports a finding that [Plaintiff] is “not disabled,” whether or not [he] has
transferable job skills.”
10) “Considering [Plaintiff’s] age, education, work experience, and residual
functional capacity based on all of the impairments, including the substance
use disorders, there are no jobs that exist in significant numbers in the national
economy that [Plaintiff] can perform.”
11) “If [Plaintiff] stopped the substance use, considering [his] age, education,
work experience, and residual functional capacity, there would be a significant
number of jobs in the national economy that [he] could perform.”
12) “The substance use disorder is a contributing factor material to the
determination of disability because the claimant would not be disabled if he
stopped the substance use. Because the substance use disorder is a
contributing factor material to the determination of disability, [Plaintiff] has
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not been disabled within the meaning of the Social Security Act at any time
from the alleged onset date through the date of this decision.”
See id. (citations omitted).
The ALJ’s decision became the Commissioner’s final decision on March 26, 2013, when
the Appeals Council denied Plaintiff’s request for review. See AR at 10-13. Plaintiff then
commenced this action on May 3, 2013, filing a supporting brief on October 30, 2013. See Dkt
Nos. 1, 10. Defendant filed a response brief on December 16, 2013. See Dkt. No. 11.
In support of his motion, Plaintiff advances two main arguments. First, Plaintiff argues
that the ALJ erroneously gave his treating physicians’ opinions less than controlling weight and
that, as a result, there was not substantial evidence to support the ALJ’s findings with respect to
whether his impairment met or medically equaled those listed in 20 C.F.R. Pt. 404, Subpt. P,
§12.04, and with respect to his residual functional capacity. Second, Plaintiff challenges the
ALJ’s conclusion that his substance abuse was a contributing factor material to the determination
of disability. See generally Dkt. No. 10, Pl.’s Br.

III. DISCUSSION
A. Standard of review
Absent legal error, a court will uphold the Commissioner's final determination if there is
substantial evidence to support it. See 42 U.S.C. § 405(g). The Supreme Court has defined
substantial evidence to mean “‘more than a mere scintilla’” of evidence and “‘such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.’” Richardson
v. Perales, 402 U.S. 389, 401 (1971) (quotation omitted). To be eligible for SSI, a claimant must
show that he suffers from a disability within the meaning of the Act. The Act defines
“disability” as an inability to engage in substantial gainful activity (“SGA”) by reason of a
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medically determinable physical or mental impairment that can be expected to cause death or last
for twelve consecutive months. See 42 U.S.C. § 1382c(a)(3)(A). To determine if a claimant has
sustained a disability within the meaning of the Act, the ALJ follows a five-step process:
1) The ALJ first determines whether the claimant is engaged in SGA.
See 20 C.F.R. §§ 416.920(b), 416.972. If so, the claimant is not
disabled. See 20 C.F.R. § 416.920(b).
2) If the claimant is not engaged in SGA, the ALJ determines if the
claimant has a severe impairment or combination of impairments. See
20 C.F.R. § 416.920(c). If not, the claimant is not disabled. See id.
3) If the claimant has a severe impairment, the ALJ determines if the
impairment meets or equals an impairment found in the appendix to
the regulations (the “Listings”). If so, the claimant is disabled. See
20 C.F.R. § 416.920(d).
4) If the impairment does not meet the requirements of the Listings,
the ALJ determines if the claimant can do his past relevant work. See
20 C.F.R. § 416.920(e), (f). If so, he is not disabled. See 20 C.F.R.
§ 416.920(f).
5) If the claimant cannot perform his past relevant work, the ALJ
determines if he can perform other work, in light of his RFC, age,
education, and experience. See 20 C.F.R. § 416.920(f), (g). If so,
then he is not disabled. See 20 C.F.R. § 416.920(g). A claimant is
only entitled to receive benefits if he cannot perform any
alternative gainful activity. See id.
For this test, the burden of proof is on the claimant for the first four steps and on the
Commissioner for the fifth step, if the analysis proceeds that far. See Balsamo v. Chater, 142
F.3d 75, 80 (2d Cir. 1998) (quotation omitted).

B. ALJ’s weighing of treating physician opinions
The Commissioner’s regulations instruct that
[g]enerally, we give more weight to opinions from your treating sources, since
these sources are likely to be the medical professionals most able to provide a
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detailed, longitudinal picture of your medical impairment(s) . . . . If we find that a
treating source's opinion on the issue(s) of the nature and severity of your
impairment(s) is well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial evidence
in your case record, we will give it controlling weight.
20 C.F.R. § 404.1527(c)(2) (emphasis added). When affording a treating physician’s opinion
less than controlling weight, the ALJ “will always give good reasons” for doing so. Id. To that
end,
[t]he factors that must be considered when the treating physician's opinion is not
given controlling weight include: “(i) the frequency of examination and the
length, nature, and extent of the treatment relationship; (ii) the evidence in support
of the opinion; (iii) the opinion's consistency with the record as a whole; and (iv)
whether the opinion is from a specialist.”
Brickhouse v. Astrue, 331 F. App’x 875, 877 (2d Cir. 2009) (quoting Clark v. Commissioner of
Social Sec., 143 F.3d 115, 118 (2d Cir. 1998)); see also 20 C.F.R. § 404.1527(c)(1)-(6). In
particular, treating physician opinions are “’not afforded controlling weight where . . . the
treating physician issued opinions that are not consistent with other substantial evidence in the
record, such as the opinions of other medical experts.’” Petrie v. Astrue, 412 F. App’x 401, 405
(2d Cir. 2011) (quoting Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (per curiam)).
“The report of a consultative physician may constitute such substantial evidence.” Id. (quoting
Mongeur, 722 F.2d at 1039).
In this case, Plaintiff argues that the ALJ erred by affording less than controlling weight
to the opinions of Drs. Camillo, Michaels, Savino, and Kimball. However, the ALJ discussed
the opinions of other medical experts whose opinions contradicted those of the treating
physicians. See AR at 30-32. Additionally, with respect to Dr. Camillo’s opinion, the ALJ noted
that Dr. Camillo is Plaintiff’s former treating psychiatrist. See AR at 33. The ALJ thoroughly
discussed a number of case notes from Dr. Camillo’s clinic that were inconsistent with his

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opinion, including a mental status examination. See id. The ALJ’s written decision also
considered other facts from the record that were inconsistent with Dr. Camillo’s opinion, such as
Plaintiff’s self-reports of only “very episodic instances of isolation” together with his daily
activities including going to a diner for coffee daily, going to the YMCA twice per week, and
missing his appointments only infrequently. See id. The Court finds that the ALJ offered
sufficient reasons for affording Dr. Camillo’s opinion less than controlling weight.
With respect to Dr. Michaels’ opinion, the ALJ noted that Dr. Michaels is Plaintiff’s
former psychiatrist and that the treating relationship lasted 28 days. See AR at 35. The ALJ
further noted that Dr. Michaels’ opinion was provided less than two weeks after Plaintiff’s
discharge from Clifton Springs Hospital & Clinic and before Plaintiff’s longest period of
sobriety, during which he displayed significant improvement in function. See id. Additionally,
the ALJ discussed a number of progress notes from Dr. Michaels’ clinic that were inconsistent
with her opinion, including Plaintiff’s awareness of coping skills and progress with decreasing
worry and projection. See id. Finally, the ALJ considered evidence from Plaintiff’s later
medical records at Mercy Center and Community Clinic that tended to show that Plaintiff would
“get out of his apartment on most days” in order to socialize, shop, attend church, volunteer, and
attend medical appointments. See id. The Court finds that the ALJ offered sufficient reasons for
affording Dr. Michaels’ opinion less than controlling weight.
With respect to Dr. Savino’s opinion, the ALJ identified Dr. Savino as Plaintiff’s treating
psychiatrist. See AR at 35. The ALJ then discussed the extent to which she found Dr. Savino’s
opinion to be inconsistent with the record. For example, the ALJ noted that Plaintiff received his
highest Global Assessment of Function (“GAF”) score to date at his initial interview at the
Community Clinic. See id. at 36. Additionally, the ALJ noted that, although Dr. Savino opined

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that Plaintiff’s functioning was limited by insomnia, Plaintiff’s treatment for insomnia was
essentially minimal. See id. Perhaps most importantly, the ALJ noted that Dr. Savino’s
assessment took place less than one month after Plaintiff suffered a major relapse of drug and
alcohol use in December of 2011. See id. The Court finds that the ALJ offered sufficient
reasons for affording Dr. Savino’s opinion less than controlling weight.
Finally, Plaintiff argues that the ALJ erred by failing to address Dr. Kimball’s opinion as
that of a treating source. The Court finds this argument to be without merit. The record shows
that Dr. Kimball performed a consultative examination on Plaintiff on April 29, 2009, through
the New York State Department of Temporary and Disability Assistance. See AR at 572. Dr.
Kimball noted in his report that he had seen Plaintiff for an evaluation at Mercy Center. See id.
at 573. However, the same report also stated that Plaintiff “sees Dr. Camill[o] and nurse, Joyce
Combs, RN, is his counselor” when he attends outpatient services as Mercy Center. See id. at
575. Thus, it appears that Dr. Kimball saw Plaintiff once at the Mercy Center, was not his
regular care provider there, and then later examined him while working for New York State in a
different capacity. The Court finds that the ALJ did not err by declining to find a treatment
relationship between Plaintiff and Dr. Kimball under those circumstances.
In summary, for the above-stated reasons, the Court finds that the ALJ properly applied
the treating physician rule with respect to the opinions of Drs. Camillo, Michaels, Savino, and
Kimball. 1 See Bonet ex rel. T.B. v. Colvin, 523 F. App’x 58, 59 (2d Cir. 2013) (instructing that
“’[a]n ALJ does not have to state on the record every reason justifying a decision’” (quoting
Brault, 683 F.3d at 448)).

1

Additionally, to the extent that Plaintiff argues that the ALJ’s residual functioning capacity
analysis was erroneous based upon her weighing of the treating physician opinions, the Court’s
findings in this section render any such argument academic.
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C. ALJ’s Listing 12.04 finding
Under Listing 12.04, Affective Disorders, a claimant is presumptively disabled when he
meets his burden of showing that he suffers from a “disturbance of mood, accompanied by a full
or partial manic or depressive syndrome.” Listing 12.04. “The required level of severity . . . is
met when the requirements in both [paragraphs] A and B are satisfied[:]”
A. Medically documented persistence, either continuous or intermittent, of one of
the following:
1. Depressive syndrome characterized by at least four of the following:
a. Anhedonia or pervasive loss of interest in almost all activities; or
b. Appetite disturbance with change in weight; or
c. Sleep disturbance; or
d. Psychomotor agitation or retardation; or
e. Decreased energy; or
f. Feelings of guilt or worthlessness; or
g. Difficulty concentrating or thinking; or
h. Thoughts of suicide; or
i. Hallucinations, delusions, or paranoid thinking; or
2. Manic syndrome characterized by at least three of the following:
a. Hyperactivity; or
b. Pressure of speech; or
c. Flight of ideas; or
d. Inflated self-esteem; or
e. Decreased need for sleep; or
f. Easy distractibility; or
g. Involvement in activities that have a high probability of painful
consequences which are not recognized; or
h. Hallucinations, delusions or paranoid thinking; or
3. Bipolar syndrome with a history of episodic periods manifested by the
full symptomatic picture of both manic and depressive syndromes (and
currently characterized by either or both syndromes);
AND
B. Resulting in at least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence, or pace;
or
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4. Repeated episodes of decompensation, each of extended duration; . . .
Listing 12.04. In this context, a “marked” limitation is one that is “more than moderate but less
than extreme . . . such as to interfere seriously with your ability to function independently,
appropriately, effectively, and on a sustained basis.” Listing 12.00(C) (citations omitted). It is
the claimant’s burden to show that his impairment or combination of impairments meets “’all of
the specified medical criteria’” in the Listing. Lamond v. Astrue, 440 F. App’x 17, 20 (2d Cir.
2011) (quoting Sullivan v. Zelby, 493 U.S. 521, 530, 110 S. Ct. 885, 107 L. Ed. 2d 967 (1990));
see also 20 C.F.R. §§ 404.1525(c)(3), 416.925(c)(3).
In this case, Plaintiff argues that “[t]he comprehensive medical evidence has shown, and
the ALJ does not dispute, that Plaintiff satisfies [paragraph] (A)” of Listing 12.04. See Dkt. No.
10, Pl.’s Br., at 20. He then argues that his impairments amount to marked limitations in all four
of the paragraph B criteria, even absent his substance abuse. See id. at 21.
The ALJ made no express finding with respect to the paragraph A criteria. However, she
did find that Plaintiff failed to meet the paragraph B criteria. See AR at 28. In particular, the
ALJ found that, absent his substance abuse, Plaintiff “has mild restriction of activities of daily
living; mild difficulties in maintaining social functioning; moderate difficulties in maintaining
concentration, persistence or pace; and no episodes of decompensation.” See id. In support of
these findings, the ALJ noted that Plaintiff successfully obtained a driver’s license, that he
worked for several years as a direct care aide, requiring significant mental demands, and that he
reported to multiple care providers that he was “able to perform a range of daily activities
independently, including caring for his personal needs, cooking, doing general cleaning and
doing his own laundry.” See id. at 29.

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Additionally, the ALJ concluded that Plaintiff’s “problems in social functioning occurred
in limited circumstances” when he abstained from substance abuse from August of 2009 through
the end of November 2011. 2 See AR at 33. In particular, she noted that Plaintiff reported
increased socialization with “church activities, going to the YMCA, going to a diner for coffee,
going tanning, and attending Narcotics Anonymous (“NA”) and Alcohol[ics] Anonymous
(“AA”) group meetings on a regular basis”; that he did his own grocery shopping at times; that
he was able to establish a new group of friends; that he reported in March, 2012 that he usually
got along with family and friends; and that a consultative medical examiner noted that Plaintiff’s
manner of relating, social skills, and overall presentation were adequate, that he was able to
maintain appropriate eye contact, and that there were no problems with his speech or personal
hygiene. See id.
Finally, the ALJ emphasized the fact that Plaintiff was able to live on his own and
manage his own medications upon his discharge from the supportive apartment program at
Transitional Living Services of Northern New York. See id. at 35. The Court finds that this
evidence constitutes such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion that Plaintiff did not meet the criteria listed in paragraph B of Listing 12.04.
See Richardson, 402 U.S. at 401.

D. Substance abuse as a materially contributing factor
The Act precludes disability benefits where drug and alcohol abuse is a “contributing
factor material to” the determination of disability. See 42 U.S.C. §§ 423(d)(2)(C),

2

The ALJ noted that her RFC analysis “reflects the degree of limitation” that she found in the
mental function analysis. See AR at 29. Accordingly, the Court considers the RFC analysis as
instructive in assessing which evidence the ALJ considered in her mental function analysis.
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1382c(a)(3)(J). The relevant inquiry in this context is “whether we would still find you disabled
if you stopped using drugs or alcohol.” 20 C.F.R. §§ 404.1535(b)(1), 416.935(b)(1). In other
words, “[i]f we determine that your remaining limitations would not be disabling, we will find
that your drug addiction or alcoholism is a contributing factor material to the determination of
disability.” 20 C.F.R. §§ 404.1535(b)(2)(i), 416.935(b)(2)(i). The claimant bears the burden to
prove that his drug addiction or alcoholism was not material to the determination of disability.
See Cage v. Comm’r of Soc. Sec., 692 F.3d 118, 123 (2d Cir. 2012) (citations omitted).
In this case, Plaintiff argues that his treating physicians and other medical sources
assessed extreme and marked limitations even during period of sobriety. In her written decision,
however, the ALJ found that Plaintiff “has not been a reliable historian or particularly truthful
about the extent of his substance abuse, as noted by his medical professionals.” See AR at 31.
For example, the ALJ noted that Plaintiff reported in March 2012 that he had last used in 2009,
when an inpatient hospital record from late 2011 showed a positive drug screen. See id. The
ALJ further noted that Plaintiff had reported drinking 12 to 20 beers every day until December 3,
2011. See id. In so finding, the ALJ applied the correct two-step credibility analysis. See id. at
31; Meadors v. Astrue, 370 F. App’x 179, 183 (2d Cir. 2010).
Additionally, the ALJ in her written decision found that “the record establishes a clear
period of sustained sobriety” from the fall of 2009 through late 2010, with only minor relapses in
2011. See AR at 37. The ALJ based this finding upon records indicating that Plaintiff’s mother,
who previously had rejected him in part because of his substance abuse, had renewed their
relationship. See AR at 31-32. According to the ALJ, “[t]his suggests that [Plaintiff’s] mother
believed that he had sustained some period of sobriety.” See id. Having established a significant

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period of sobriety, the ALJ found that she was able to “clearly separate” Plaintiff’s substance
abuse from his other limitations. See id. at 32.
The ALJ then found that Plaintiff “has experienced a significant improvement in his
mental function with prolonged abstinence from drug or alcohol use . . . .” See id. In particular,
the ALJ noted that Plaintiff was able to control his own medication beginning in January of
2010. See id. The written decision also noted “no significant decline in the claimant’s
functioning” during this time, with increasing GAF scores throughout 2011. See id. at 32-33.
Finally, the ALJ noted that Plaintiff was able to live alone beginning in August of 2011. See id.
at 33. According to the ALJ, this evidence showed “gradual improvement in mental function
over the length of the period of sobriety.” See id. at 36.
For these reasons, the Court finds that there is substantial evidence in the record to
support the ALJ’s finding that Plaintiff’s substance abuse was a contributing factor material to
the determination of disability. 3 See Richardson, 402 U.S. at 401.

IV. CONCLUSION
Having reviewed the entire record in this matter, the parties’ submissions, and the
applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Plaintiff’s motion for judgment on the pleadings, see Dkt. No 10, is
DENIED; and the Court further

3

Moreover, the Court rejects Plaintiff’s argument that the ALJ should have made a finding with
respect to whether Plaintiff could have controlled his substance abuse. Plaintiff’s authority for
this argument, Williams v. Callahan, 30 F. Supp. 2d 588 (E.D.N.Y. 1998), merely instructs the
ALJ to determine “whether plaintiff has a disability independent of . . . drug addiction.” Id. at
594 (citation omitted). The Court finds that the ALJ did so here.
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Case 7:13-cv-00516-FJS Document 13 Filed 03/21/16 Page 14 of 14

ORDERS that Defendant’s motion for judgment on the pleadings, see Dkt. No. 11, is
GRANTED; and the Court further
ORDERS that the Commissioner’s decision is AFFIRMED and Plaintiff’s complaint is
DISMISSED; and the Court further
ORDERS that the Clerk of the Court shall enter judgment in favor of Defendant and
close this case.

IT IS SO ORDERED.
Dated: March 21, 2016
Syracuse, New York

- 14 EXHIBIT A