Panaro v. Colvin

Filing 16

-CLERK TO FOLLOW UP-DECISION AND ORDER denying 9 Plaintiff's Motion for Summary Judgment; granting 11 Commissioner's Motion for Judgment on the Pleadings; and dismissing the complaint in its entirety with prejudice. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 1/26/16. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

CARLENE A. PANARO,
Plaintiff,
-vs-

No. 1:14-CV-00777 (MAT)
DECISION AND ORDER

CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

I.

Introduction
Represented by counsel, Carlene A. Panaro (“plaintiff”) brings

this action pursuant to Title II of the Social Security Act (“the
Act”), seeking review of the final decision of the Commissioner of
Social Security (“the Commissioner”) denying her application for
disability insurance benefits (“DIB”). The Court has jurisdiction
over this matter pursuant to 42 U.S.C. § 405(g). Presently before
the Court are the parties’ cross-motions for judgment on the
pleadings pursuant to Rule 12(c) of the Federal Rules of Civil
Procedure. For the reasons discussed below, the Commissioner’s
motion is granted.
II.

Procedural History
This case has a long history. Plaintiff (d/o/b February 1,

1966)

originally

filed

for

DIB

on

April

22,

2002,

alleging

disability as of January 2, 2001. After initial denial and a
hearing, Administrative Law Judge (“ALJ”) Robert T. Harvey issued
an unfavorable decision on March 16, 2005. The Appeals Council
granted plaintiff’s request for review of that decision, and by

order dated September 25, 2006, remanded the case with various
instructions. While that appeal was pending, plaintiff filed a
second

application

for

DIB

dated

July

3,

2006.

The

Appeals

Council’s September 25, 2006 order directed that plaintiff’s two
claims be consolidated as duplicative. However, on February 23,
2007, the state agency determined that plaintiff had been disabled
since May 17, 2005, but that she was not disabled prior to that
date.1
Subsequent to the Appeals Council’s May 25, 2006 remand order,
a second hearing was held before ALJ Harvey on December 2, 2008. In
a decision dated February 4, 2009, in which ALJ Harvey addressed
both of plaintiff’s consolidated claims, he determined that she had
not

been

under

a

disability

at

any

point

relevant

to

his

determination. The Appeals Council again granted review, and on
July 19, 2011 again remanded the case with various instructions.
Pursuant to that remand order, a hearing was held by ALJ
William M. Weir on June 1, 2012. On September 17, 2013, ALJ Weir
issued a decision which found that plaintiff was not under a
disability from January 2, 2001 (her original alleged onset date)
through May 16, 2005. In so finding, the ALJ did not disturb the
February 23, 2007 decision of the state agency, which had found
plaintiff disabled as of May 17, 2005. Thus, the relevant time
1
The ALJ in the decision at issue here found that this determination was
made without jurisdiction because the Appeals Council had already held that
plaintiff’s two applications should be consolidated. However, the ALJ noted that
the determination was not subject to reopening.

2

period under review in this proceeding is the time period from
January 2, 2001 through May 16, 2005.
III. Summary of the Relevant Evidence
A.

Physical Impairments

Plaintiff last worked as a cafeteria manager for the Buffalo
City Schools, until she suffered an on-the-job back injury on
January 2, 2001. As a result of that injury, she was diagnosed with
moderate to large posterolateral disc protrusion which affected the
nerve root and caused moderate neuroforaminal origin stenosis.
Plaintiff also had a history of left knee surgeries, and reported
exacerbation of knee pain with her new injury. After several months
of treatment including physical therapy, plaintiff underwent left
L5-S1 microdiscectomy surgery on May 2, 2001. Postoperative MRI
showed normal postoperative changes at L5-S1, with no recurrent
disc

herniation.

plaintiff

showed

After

several

improvement,

postoperative
plaintiff’s

visits

treating

in

which

physician,

Dr. Douglas Moreland, concluded in November 2001 that she had “some
myofascial pain and inflammation,” and that “her psychological
state may be effecting her as well here.” T. 238. Throughout her
postoperative

treatment,

she

was

prescribed

narcotic

pain

medication.
Plaintiff was referred to Dr. Eugene Gosy for pain management
therapy due to her ongoing subjective complaints of pain. Dr. Gosy
noted that plaintiff had been hospitalized for alcohol abuse in

3

December 2001, “secondary to pain.” T. 270. On examination in
January 2002, Dr. Gosy diagnosed plaintiff with fibromyalgia,
noting

findings

of

a

normal

physical

examination.

Dr.

Gosy

prescribed muscle relaxants in addition to plaintiff’s psychiatric
medication, while noting continued normal physical examinations and
finding that plaintiff was neurologically unimpaired. That same
month, Dr. Moreland attested that plaintiff could return to work
“without any restrictions.” T. 840.
In September 2002, Dr. Samuel Balderman performed a consulting
physical exam

at

the request

of

the

state

agency.

Plaintiff

reported having an alcohol relapse the prior month. Plaintiff’s
physical examination was unremarkable. Dr. Balderman opined that
plaintiff had mild limitations in bending and lifting, due to her
history of back surgery, stating that her “major limitations [were]
related to her battles with alcoholism and depression.” T. 280.
From

February through December 2004, plaintiff treated with

an acupuncturist and continued to complain of low back and knee
pain. In May 2004, orthopedic spine surgeon Dr. Andrew Cappuccino
found

an

essentially

normal

physical

examination,

but

noted

plaintiff’s complaints of pain. Dr. Cappuccino diagnosed post
laminectomy syndrome with discogenic and discopathic mechanical low
back pain.
In

January

2005,

Dr.

Taj

Jiva

conducted

a

consulting

orthopedic examination at the request of the state agency. X-rays

4

performed in connection with that exam showed mild narrowing of the
disc space at L2-L3 with tiny anterior osteophytes and slight
narrowing of the disc space at L5-S1. Plaintiff’s knee showed mild
degenerative changes involving the lateral aspect of the joint. On
physical

examination,

plaintiff

appeared

to

be

in

no

acute

distress, “but claimed to have generalized body aches and pain with
intensity of 9 out of 10.” T. 1054. She did not need help changing
for the exam, used no assistive devices, was able to rise from the
chair without difficulty, and needed no help getting on or off the
exam table. Plaintiff exhibited limited range of motion of the
spine

and

lower

extremities;

however,

her

physical

exam

was

otherwise normal, with full strength of all extremities, negative
straight

leg

raise

(“SLR”),

and

no

muscle

atrophy,

sensory

abnormality, joint effusion, inflammation, or instability. Dr. Jiva
opined

that

plaintiff

was

“moderately

limited

for

walking,

standing, climbing, lifting, squatting, and bending,” secondary to
her low back spasm, fibromyalgia, and myofascial pain.
At plaintiff’s most recent hearing, Dr. Donald Goldman, an
orthopedic surgeon, testified that he had reviewed the entire
medical record, which consists of 49 exhibits totaling over 1100
pages. Dr. Goldman was questioned by the ALJ and plaintiff’s
counsel at the hearing, and he also asked plaintiff questions about
her

symptoms

during

the

relevant

time

frame.

Ultimately,

Dr. Goldman opined that, based on all of the information he had

5

reviewed including the plaintiff’s responses, he would consider her
to have disabling limitations during a postoperative healing period
of approximately six months, “at the outmost,” following her May
2001 discectomy. T. 1633-34. Dr. Goldman opined that after that
period,

plaintiff

would

not

have

any

significant

physical

limitations. According to Dr. Goldman, if plaintiff did have such
physical

limitations,

there

would

have

been

more

significant

objective medical findings to substantiate those limitations.
B.

Mental Impairments

Plaintiff’s mental health treatment history reflects diagnoses
of

alcohol-induced

mood

disorder,

depression,

and

anxiety.

Plaintiff treated with psychiatrist Dr. Michael Hallett beginning
in December 2001. On initial examination, plaintiff was visibly
intoxicated,

could

not

walk

without

assistance,

and

reported

drinking excessively (approximately two quarts of whiskey per week)
in addition to taking prescribed medication. Plaintiff’s regular
treatment with Dr. Hallett from approximately November 2002 through
April

20052

examinations,

revealed

regular

with

exception

the

unremarkable
of

mental

occasional

status

notations

of

depressed mood and psychomotor retardation.
In late December 2001, plaintiff was involuntarily admitted to
Erie

County

Medical

Center

(“ECMC”)

2

due

to

an

episode

of

Plaintiff continued to treat with Dr. Hallett beyond these dates;
however, those treatment notes do not relate to the time period at issue in this
case.

6

intoxication in which she exhibited an “agitative and combative
state.” T. 370. Upon discharge, it was noted that plaintiff “did
not appear to have a primary mood disorder,” but she was encouraged
to follow up with alcohol abuse treatment. Id.
In August 2002, plaintiff underwent a psychiatric evaluation
by Dr. Michael Lynch, in connection with a workers compensation
claim. Dr. Lynch diagnosed adjustment disorder, but found that
“[f]rom

a

psychiatric

point

of

view,

[plaintiff

had]

no

restrictions or limitations.” T. 686. Plaintiff was hospitalized
again on August 29-30, 2002, for symptoms associated with alcoholinduced mood disorder. She was referred to outpatient treatment,
which she began in September 2002 at Sisters Healthcare Dependent
Services Star Program (“SHDS”). The record indicates that this
treatment was also administered in connection with a drug court
program related to a charge of driving while intoxicated. Mental
status examination on September 10, 2002 was unremarkable, except
that plaintiff exhibited depressed and anxious affect. Treatment
notes from SHDS reflected participation in individual and group
therapy, with goals of abstinence, but multiple relapses, noted.
In

September

psychiatric

2002,

evaluation

at

Dr.

Thomas

the

request

Dickinson
of

the

performed
state

a

agency.

Dr. Dickinson diagnosed alcohol dependency, continuous; anxiety
disorder, not otherwise specified (“NOS”); and depressive disorder,
NOS. He opined that plaintiff had “overall functioning in the

7

average

range,”

instructions,

and

maintain

could

follow

attention

and

and
make

understand

simple

appropriate

job

decisions, learn new assignments, and remember job duties. T. 276.
Dr. Dickinson found that plaintiff would have “some trouble”
performing tasks in a reliable and consistent manner, performing
complex tasks in an independent manner, and dealing with quick
decisions. Id. According to Dr. Dickinson, she would have “mild
difficulty” relating to co-workers, supervisors, and customers, and
“[d]istractions and stress situations would be mildly difficult.”
Id. In October 2002, state agency psychiatrist Dr. George Burnett
reviewed plaintiff’s file and determined that she was able to
perform simple, repetitive tasks in a low-contact environment.
In September 2003, Dr. Ralph Benedict and Dr. Lynch examined
plaintiff in connection with her workers compensation case. Both
doctors

concluded

that

plaintiff

did

not

have

psychiatric

restrictions. Both doctors noted doubts about plaintiff’s veracity,
noting inconsistencies between plaintiff’s subjective complaints of
pain and her appearance, clinical examinations, and reports of
daily activities. Dr. Lynch went so far as to state that plaintiff
was “malingering many of her symptoms,” noting that she reported no
financial need and when asked about a return to work, plaintiff
flatly stated, “It’s not going to happen.” T. 654.
In January 2005, Dr. Thomas Ryan examined plaintiff at the
request of the state agency. He concluded that she could follow and

8

understand simple instructions, perform simple tasks independently,
maintain attention and concentration, maintain a regular schedule,
learn new tasks, perform some complex tasks independently, make
adequate decisions, relate with others, and had no difficulty
dealing with stress.
IV.

ALJ Weir’s September 17, 2013 Decision
ALJ Weir (“the ALJ”) followed the well-established five-step

sequential
adjudicating

evaluation
disability

promulgated
claims.

by

See

the
20

Commissioner

C.F.R.

§

for

404.1520.

Initially, the ALJ found that plaintiff met the insured status
requirements of the Social Security Act through December 31, 2008.
At step one, the ALJ determined that plaintiff had not engaged in
substantial gainful activity since January 2, 2001, the alleged
onset date. At step two, the ALJ found that plaintiff suffered from
the following severe impairments: alcohol-induced mood disorder,
major depressive disorder, anxiety disorder, and alcohol abuse
disorder. At step three, the ALJ found that plaintiff did not have
an impairment or combination of impairments that met or medically
equaled a listed impairment.
Before proceeding to step four, the ALJ determined that,
considering all of plaintiff’s impairments including those stemming
from substance abuse disorder, plaintiff retained the residual
functional capacity (“RFC”) to perform a full range of work at all
exertional levels, but was limited to only occasional contact with

9

co-workers, the public, and supervisors, and, due to alcohol abuse,
had occasional limitations in the ability to perform certain
activities within a schedule, maintain regular attendance, be
punctual within customary tolerance, and complete a normal workday
and workweek. The ALJ determined, while abusing alcohol, plaintiff
was unable to perform any past relevant work. He then found, at
step four, that considering plaintiff’s age, work experience, and
RFC based on all of her impairments including those relating to
substance abuse, there were no jobs in the national economy which
she could perform.
The ALJ went on to consider plaintiff’s limitations in light
of

the

drug

addiction

or

alcoholism

standards

set

forth

in

20 C.F.R. § 404.1535. The ALJ found that if plaintiff stopped
substance abuse during the relevant time frame, she would not have
had an

impairment

or

combination

of impairments

that

met

or

medically equaled a listing. The ALJ found that if she stopped
substance abuse, she would have retained the RFC to perform a full
range of work at all exertional levels, but with only occasional
interaction with co-workers, the public, and supervisors. After
finding that she would still be unable to perform past relevant
work, the ALJ made the step-five determination that, if she stopped
substance abuse, there were a significant number of jobs in the
national economy that she could have performed during the relevant
period. Finally, as noted above, the ALJ found that plaintiff was

10

not disabled for the time period from January 2, 2001 through
May 16, 2005.
V.

Discussion
A

district

court

may

set

aside

the Commissioner’s

determination that a claimant is not disabled only if the factual
findings are not supported by “substantial evidence” or if the
decision is based on legal error. 42 U.S.C. § 405(g); see also
Green-Younger v. Barnhard, 335 F.3d 99, 105-06 (2d Cir. 2003).
“Substantial evidence means ‘such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.’” Shaw v.
Chater, 221 F.3d 126, 131 (2d Cir. 2000).
A.

Severity of Plaintiff’s Physical Impairments

Plaintiff contends that the ALJ committed reversible error in
finding that plaintiff had no severe physical impairments. As
discussed

above,

impairments

were

the

ALJ

mental

found
in

that

nature.

plaintiff’s
In

only

considering

severe

which

of

plaintiff’s impairments were severe, the ALJ engaged in a thorough
consideration of the evidence of plaintiff’s impairments, both
physical and mental. His decision reflects a reasoned analysis as
to why plaintiff’s physical impairments were not severe, i.e., did
not impose more than minimal limitations on plaintiff’s daily
functioning. In arriving at this conclusion, the ALJ relied on
repeated findings of normal physical examinations, as well as
Dr. Goldman’s hearing testimony that plaintiff’s back and knee pain

11

would not have resulted in limitations beyond six months after her
discectomy.
The ALJ’s analysis was supported by substantial evidence in
the record. It is clear that the ALJ fully reviewed the record both
as to plaintiff’s physical, and mental, impairments. He simply
found that, based on the evidence, she did not have significant
physical limitations during the relevant time frame. Even if the
ALJ erred in finding plaintiff’s physical impairments technically
non-severe, the record amply supports his finding that she would
have no physical restrictions after her recovery from surgery. “As
a general matter, an error in an ALJ's severity assessment with
regard to a given impairment is harmless . . . when it is clear
that the ALJ considered the

claimant's [impairments] and their

effect on his or her ability to work during the balance of the
sequential evaluation process.” Diakogiannis v. Astrue, 975 F.
Supp. 2d 299, 311-12 (W.D.N.Y. 2013) (internal quotation marks and
citations omitted). Therefore, any error at step two under these
circumstances was harmless.
B.

Weight Given to Medical Source Opinions

Plaintiff next argues that the ALJ failed to properly weigh
the medical source opinions. Specifically, plaintiff contends that
the ALJ erred in failing to give controlling weight to the opinions
of treating sources Drs. Gosy and Hallett. Dr. Hallett’s opinion,
completed in November 2008 and stating, in the heading, that it

12

pertained to the time period “January 2, 2001 and continuing,”
opined that plaintiff had poor to no ability to relate to coworkers, deal with the public, interact with supervisors, deal with
work stresses,

function

independently,

maintain

attention and

concentration, understand and remember complex job instructions,
relate predictably in social situations, and behave in a stable
manner. T. 1520.
The ALJ gave Dr. Hallett’s opinion significant weight as “a
generally accurate indicator of the claimant’s work-related mental
functioning

when

her

alcohol

abuse

and

alcohol-induced

mood

disorder are considered.” T. 33. Otherwise, the ALJ did not give
controlling weight to the opinion, citing Dr. Hallett’s ample
treatment

notes,

which

consistently

reflected

normal

status

examinations when plaintiff was not under the influence of alcohol,
as well as consulting opinions from Drs. Ryan, Dickinson, and
Lynch. The ALJ noted that he gave little weight to Dr. Hallett’s
conclusion

that

alcoholism

was

not

a

contributing

factor

to

plaintiff’s work-related mental limitations.
The treating physician rule provides that an ALJ must give
controlling weight to a treating physician’s opinion if that
opinion is well-supported by medically acceptable clinical and
diagnostic techniques and not inconsistent with other substantial
evidence in the record. See Halloran v. Barnhart, 362 F.3d 28, 32
(2d Cir. 2004); 20 C.F.R. § 416.927(c)(2). However, “[w]hen other

13

substantial evidence in the record conflicts with the treating
physician's

opinion

.

.

.

that

opinion

will

not

be

deemed

controlling. And the less consistent that opinion is with the
record as a whole, the less weight it will be given.” Snell v.
Apfel, 177 F.3d 128, 133 (2d Cir. 1999) (emphasis added) (citing 20
C.F.R. § 404.1527(d)(4)).
The

ALJ’s

decision

not

to

give

controlling

weight

to

Dr. Hallett’s November 2008 opinion was supported by substantial
evidence. First, even though the opinion states that it relates to
the time period prior to 2001, Dr. Hallett’s treatment notes during
the time frame prior to May 17, 2005 consistently indicate normal
mental status examinations over approximately monthly treatment
during a four-year time frame. Second, multiple opinions from three
different

consulting

sources

found

that

plaintiff

had

no

significant mental limitations. These sources found that plaintiff
would have, at most, mild limitations performing complex tasks and
dealing with supervisors, co-workers, or the public.
Substantial evidence also supported the ALJ’s decision to
afford little weight to Dr. Hallett’s opinion that alcoholism was
not a contributing factor to plaintiff’s limitations. The record
reflects that, when under the influence of alcohol, plaintiff’s
condition

deteriorated

to

a

point

where

she

was

essentially

nonfunctional and required hospitalization on multiple occasions.
However, when plaintiff reported abstinence and attended regular

14

mental health treatment, her mental status was consistently normal
with the exception of occasional depressed mood and psychomotor
retardation. For all of these reasons, the Court concludes that the
ALJ properly applied the treating physician rule to Dr. Hallett’s
opinion.
Plaintiff also points to Dr. Gosy’s November 2008 opinion as
to plaintiff’s physical limitations, which opinion also stated that
it

related

to

the

period

beginning

“January

2,

2001

and

continuing.” T. 1523. Dr. Gosy opined that plaintiff could: lift
only three to five pounds, and rarely; walk for two hours in an
eight-hour workday and walk for only 10 minutes at a time without
interruption; sit for less than two hours in an in an eight-hour
workday

and

sit

for

20

to

30

minutes

at

a

time

without

interruption; never climb, crouch, kneel, or crawl; never reach or
push/pull; and needed a cane for ambulation. The ALJ rejected this
opinion, finding that, despite its heading, it clearly pertained to
the time period of July 2005 and after.
The record reveals that, in July 2005, plaintiff returned to
Dr. Gosy for treatment after a gap in treatment of approximately
two years. Dr. Gosy’s treatment after that date reflected that
plaintiff had an antalgic gait and required a cane to ambulate.
However, as discussed above, during the time period relevant to
this case, Dr. Gosy stated that plaintiff was neurologically
unimpaired and made no objective findings to support her subjective

15

complaints of pain. In her hearing, plaintiff also testified that
did not start using a cane for ambulation until 2005. Thus,
substantial evidence supports the ALJ’s decision to give little
weight to Dr. Gosy’s opinion, because despite its notation that it
pertained to the time period from January 2001 and continuing,
Dr. Gosy’s treatment notes support the opinion only from July 2005
forward.
The ALJ was entitled to rely on the consulting opinion of
Dr.

Goldman,

plaintiff’s

who

testified

discectomy

unequivocally

surgery,

and

based

that,
on

following

her

subsequent

examinations during the relevant time frame, she would not have had
any significant physical limitations extending beyond six months
postoperatively. See, e.g., Younes v. Colvin, 2015 WL 1524417, *5
(N.D.N.Y. Apr. 2, 2015) (“Consultative opinions can be afforded
even greater weight than treating-source opinions when there is
good reason to reject treating source opinion, and substantial
evidence

supports

them.”)

(citing

SSR

96-6p

(“In

appropriate

circumstances, opinions from State agency medical and psychological
consultants and other program physicians and psychologists may be
entitled to
examining

greater

weight

sources.”)).

For

than
all

the
of

opinions

these

of

reasons,

treating
the

or

Court

concludes that the ALJ properly applied the treating physician rule
to Dr. Gosy’s opinion.

16

C.

Credibility

Plaintiff contends that the ALJ erroneously assessed her
credibility. The ALJ’s credibility assessment, however, reflects a
thorough review of the record, including the objective medical
evidence as well as plaintiff’s subjective complaints regarding her
symptoms.

The ALJ’s discussion reflects a proper application of

the two-step credibility process laid out in the regulations, see
20 C.F.R. § 404.1529, and cites other relevant authorities. T. 37
(citing 20 C.F.R. § 1527, SSRs 96-4p, 96-5p, 96-6p, 96-7p, 06-3p);
see Britt v. Astrue, 486 F. App'x 161, 164 (2d Cir. 2012) (finding
explicit mention of 20 C.F.R. § 404.1529 and SSR 96–7p as evidence
that the ALJ used the proper legal standard in assessing the
claimant's credibility). The ALJ’s discussion demonstrates that,
although he did not explicitly address every factor laid out in the
regulations, he properly applied the rule, his reasoning is readily
discernible,

and

his

decision

was

supported

by

substantial

evidence. See Judelsohn v. Astrue, 2012 WL 2401587, *6 (W.D.N.Y.
June 25, 2012) (“Failure to expressly consider every factor set
forth in the regulations is not grounds for remand where the
reasons for the ALJ's determination of credibility are sufficiently
specific to conclude that he considered the entire evidentiary
record.”).

17

D.

Consideration of Impairments in Combination

Plaintiff

next argues

that

the

ALJ

erred

in

failing

to

consider all of her impairments in combination. As the Commissioner
points out, this argument is a reiteration of plaintiff’s earlier
arguments that (1) the ALJ did not properly consider limitations
stemming from her physical impairments; and (2) the ALJ failed to
consider all of her impairments due to an improper credibility
determination. The Court has already decided that the ALJ properly
considered plaintiff’s physical impairments and properly determined
her credibility. Accordingly, this argument is rejected.
E.

Vocational Expert Testimony

Plaintiff
vocational

contends

expert

that

(“VE”)

the

ALJ

testimony

erroneously
which

was

relied
“based

on
on

hypotheticals that omitted [plaintiff’s] limitations.” Doc. 10 at
42. This argument essentially contends that the ALJ improperly
determined plaintiff’s RFC. However, the ALJ’s decision reflects a
thorough

consideration

of

the

entire

record,

which

included

plaintiff’s medical record and her own testimony, the testimony of
a medical expert, and the testimony of the VE. The Court has
already

found

that

substantial

evidence

supported

the

ALJ’s

conclusion that plaintiff did not suffer from physical limitations
during

the

relevant

time

frame.

As

to

plaintiff’s

mental

impairments, the Court concludes that the ALJ properly considered
those as well. The ALJ found that absent alcohol abuse, plaintiff

18

was limited to only occasional interaction with co-workers, the
public, and supervisors. This limitation was supported by the
record. The consulting psychiatric examinations in the record,
combined

with

Dr.

Hallett’s

ample

treatment

notes

showing

unremarkable mental status examinations over the four-year relevant
period, support

the

ALJ’s

finding

in

that

regard.

The

ALJ’s

specific application of the alcohol and drug abuse standards is
addressed below.
F.

Consideration of Alcohol or Drug Abuse

Finally, plaintiff contends that the ALJ erred in finding that
alcohol abuse was a contributing factor material to her disability.
In assessing the impact of drug addiction or alcoholism on a
disability claim, the ALJ must first determine whether the claimant
is disabled. See 20 C .F.R. § 416.935(a). The ALJ must reach this
determination

initially

using

the

standard

five-step approach

described above without segregating out any effects that might be
due to substance abuse disorders. If the inquiry suffices to show
disability, then the ALJ must next consider which limitations would
remain when the effects of the alcohol addiction are absent. If, in
following the five-step sequential analysis, the claimant would
still not be disabled considering the remaining limitations, then
alcohol or drug addiction is a contributing factor material to the
determination of disability and the individual is not considered
disabled

for

the

purposes

of

19

the

Act.

See

20

C.F.R.

§ 416.935(b)(2). If the record shows substance abuse, “it is the
claimant's

burden

[to]

prove

that

substance

abuse

is

not

a

contributing factor material to the disability determination.”
Badgley v. Astrue, 2009 WL 899432, at *4 (W.D.N.Y. Mar. 27, 2009).
The ALJ followed that procedure in this case. His decision,
which concluded that alcoholism was a contributing factor material
to her disability, was well-supported by substantial evidence.
Medical evidence from both plaintiff’s treating and consulting
doctors supports the conclusion. Plaintiff’s initial treatment with
Dr. Hallett, in December 2001, occurred when she was under the
influence of alcohol. At that time, plaintiff was so intoxicated
that she was unable to ambulate without assistance. She

reported

drinking excessively in addition to taking prescribed narcotic pain
medication. Upon discharge from hospitalization later that month,
she was assessed with no primary mood disorder.
As the Commissioner points out, the consulting examinations of
Drs. Dickinson and Ryan also support the ALJ’s conclusion regarding
alcoholism. In September 2002, Dr. Dickson assessed a normal mental
status, but, noting plaintiff’s report that she had been drinking
despite knowing she was not supposed to, indicated that if she
could not return to work she should be referred to vocational
rehabilitation “when matters [were] more stable.” T. 276. However,
even at that time, he assessed no significant mental limitations.
In

January

2005,

Dr.

Ryan

examined

20

plaintiff

when

she

was

apparently

sober,

limitations.

and

Dr.

concluded

Lynch’s

that

findings

she
also

had

no

support

psychiatric
the

ALJ’s

determination; although he diagnosed plaintiff with adjustment
disorder, he opined in August 2002 and 2003 that plaintiff had no
psychiatric limitations.
The Court notes that “the question is not whether [p]laintiff
was more severely limited when she was engaged in substance abuse,
but

rather

whether

she

continues

to

meet

the

definition

of

disability during sobriety.” Kinner v. Comm'r of Soc. Sec., 2010 WL
653703, *6 (N.D.N.Y. Feb. 19, 2010). In this case, as described
above, the bulk of plaintiff’s treatment notes with Dr. Hallett
indicate that she had a consistently normal mental status over the
four-year time period relevant to this claim. The record (including
treating and consulting reports) reflects that during that time
period, when she was not abusing alcohol, she did not suffer any
significant mental limitations. Thus, the ALJ correctly found that
alcoholism was a contributing factor to her disability. Plaintiff
has failed to meet her burden of establishing that her alcoholism,
which is well-established in the record, was not a contributing
factor to disability during the relevant time period. Accordingly,
the ALJ’s finding will not be disturbed.
VI.

Conclusion
For the foregoing reasons, plaintiff’s motion for judgment on

the pleadings (Doc. 9) is denied and the Commissioner’s motion

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(Doc. 11) is granted. The ALJ’s finding that plaintiff was not
disabled is supported by substantial evidence in the record, and
accordingly, the Complaint is dismissed in its entirety with
prejudice. The Clerk of the Court is directed to close this case.
ALL OF THE ABOVE IS SO ORDERED.

S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

January 26, 2016
Rochester, New York.

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