Bukowski v. Colvin
DECISION AND ORDER granting 11 Plaintiff's Motion for Judgment on the Pleadings; and denying 16 Commissioner's Motion for Judgment on the Pleadings. This matter is reversed and remanded solely for the calculation and payment of benefits. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 11/29/17. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JENNIFER A. BUKOWSKI o/b/o KRISTIN
DECISION AND ORDER
-vsNANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Represented by counsel, Jennifer A. Bukowski (“Plaintiff”)
brings this action on behalf of Kristin Bukowski1 (“Claimant”)
pursuant to Titles II and XVI of the Social Security Act (“the
Presently before the Court are the parties’ competing
motions for judgment on the pleadings pursuant to Rule 12(c) of the
Federal Rules of Civil Procedure. For the reasons set forth below,
Plaintiff’s motion is granted and Defendant’s motion is denied.
On July 31, 2015, Jennifer A. Bukowski was substituted as Plaintiff for her
daughter Kristin Bukowski by order of the Court (Arcara, D.J.) (Docket No. 8).
Kristin Bukowski passed away on June 30, 2015, three months after she filed this
action (Docket No. 7-1).
Nancy A. Berryhill replaced Carolyn W. Colvin as Acting Commissioner of
Social Security on January 23, 2017. The Clerk of the Court is instructed to
amend the caption of this case pursuant to Federal Rule of Civil Procedure 25(d)
to reflect the substitution of Acting Commissioner Berryhill as the defendant in
On November 25, 2011, Plaintiff, a then-twenty-five year old
alleging disability beginning December 31, 2009 due to anxiety,
panic attacks, bipolar disorder, depression and ADHD (T. 14, 129145, 162).
Plaintiff’s application was denied on May 30, 2012
administrative law judge (“ALJ”).
ALJ William M. Weir held a
hearing on July 22, 2013 (T. 31-58).
On September 26, 2014, more
than fourteen months after the hearing and nearly three years after
Plaintiff filed for DIB and SSI, the ALJ issued a decision in which
Claimant filed a request for review of the ALJ’s
decision with the Appeals Council on September 27, 2014 (T. 6-10).
Due to Claimant becoming homeless and moving into a homeless
because of dire need (T. 59).
On March 23, 2015, the Appeals
Council denied review leaving the ALJ’s decision as the final
agency decision (T. 1-5). This action followed. The Court assumes
the parties’ familiarity with the facts of this case as set forth
in the record and will not repeat them except as necessary.
The ALJ’s Decision
Initially, the ALJ found that Claimant met the insured status
requirements of the Act through December 31, 2013 (T. 16).
substantial gainful activity since December 31, 2009, the alleged
onset date (Id.).
At step two, the ALJ found that Claimant had the
severe impairment of drug and alcohol abuse, bipolar disorder, and
borderline personality disorder (20 C.F.R. §§ 404.1520(c) and
416.920(c)) (T. 17).
At step three, the ALJ found that Claimant
Claimant’s impairments were disabling, he turned to the materiality
analysis (T. 20).
He concluded that, if Claimant stopped abusing
substances, she would no longer satisfy any listings and would
retain the RFC to perform a full range of work at all exertional
levels, but with the following nonexertional limitations: (1) no
more than occasional contact with co-workers and the public;
(2) able to understand and follow work directions; (3) able to
maintain concentration, persistence and pace; (4) able to relate
adequately with supervisors; and (5) able to exercise sufficient
judgment to perform non-complex work (T. 21).
At step four, the
ALJ found that Claimant had no past relevant work (T. 24).
five, the ALJ found that if Claimant stopped her substance abuse,
considering Claimant’s age, education, work experience, and RFC,
there would be a significant number of jobs in the national economy
that Claimant could perform (T. 25).
Accordingly, the ALJ found
§§ 404.1520(g), 404.1535, 416.920(g) and 416.935) (T. 25).
the ALJ concluded that Claimant was not disabled within the meaning
of the Act from the onset date through the date of his decision
Scope of Review
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. Barnhart, 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.’”
Chater, 221 F.3d 126, 131 (2d Cir. 2000).
standard of review for substantial evidence does not apply to the
Commissioner’s conclusions of law.”
Byam v. Barnhart, 336 F.3d
172, 179 (2d Cir. 2003) (citing Townley v. Heckler, 748 F.2d 109,
112 (2d Cir. 1984)).
Plaintiff makes the following arguments in support of her
motion for judgment on the pleadings: (1) the ALJ erred by failing
to properly evaluate the materiality of drug and alcohol abuse
under SSR 13-2p; and (2) the ALJ erred by not using a vocational
expert to assess the impact of Claimant’s nonexertional impairments
and limitations on the occupational base of unskilled work.
SSR 13-2p and Plaintiff’s Drug and Alcohol Abuse
Plaintiff argues that the ALJ failed to properly evaluate
Claimant’s hospitalizations in connection with decompensation in
light of SSR 13-2p.
Specifically, Plaintiff contends that the
ALJ’s decision shows he disregarded SSR 13-2p by ignoring the fact
that all but one of Claimant’s hospitalizations were related to her
psychiatric impairments, and Claimant’s toxicology results were
Plaintiff has failed to carry her burden of showing her substance
discussed below, the Court finds that the ALJ’s decision was the
product of legal error and was unsupported by substantial evidence.
The Social Security Act provides that a claimant shall not be
“contributing factor material to the Commissioner’s determination
that the individual is disabled.”
DAA is defined as a
“substance use disorder” which is diagnosed “by the presence of
medications, and toxic substances (such as inhalants).”
In order to find a claimant not disabled, SSR 13-2p requires
that an ALJ have positive evidence showing that Plaintiff’s severe
mental impairment would improve to the point of nondisability in
the absence of her DAA.
Specifically, an ALJ “will find that DAA
is not material to the determination of disability and allow the
claim if the record is fully developed and the evidence does not
establish that the claimant’s co-occurring mental disorder(s) would
improve to the point of nondisability in the absence of DAA.”
However, Plaintiff is not required to put forth
evidence of “a period of abstinence” to meet “her burden of proving
hospitalizations, emergency department visits, or other treatment
for the co-occurring mental disorder — with or without treatment
for DAA — is an indication that DAA may not be material even if the
intervention.” Id. “[A] single hospitalization or other inpatient
intervention is not sufficient to establish that DAA is material
when there is evidence that a claimant has a disabling co-occurring
Id. (emphasis added).
An ALJ needs positive
“evidence from outside of such highly structured treatment settings
demonstrating that the claimant’s co-occurring mental disorder(s)
has improved, or would improve, with abstinence.”
In order “[t]o support a finding that DAA is material,” an ALJ
“must have evidence in the case record that establishes that a
claimant with a co-occurring mental disorder(s) would not be
“Self-reported drug or alcohol use,” as SSR 13-2p explains, “does
not establish DAA” because it is “not objective medical evidence.”
Here, the ALJ failed to properly apply SSR 13-2p and his
conclusion that Claimant would not be disabled in the absence of
her DAA is not supported by substantial evidence in the medical
Initially, the Court concludes that this record is fully
developed and notes that neither party argues otherwise.
decision, the ALJ found that, considering this evidence, Claimant’s
including DAA, were considered (T. 17-19).
The Court concludes
that this specific finding is supported by substantial evidence in
Buffalo General Hospital and Erie County Medical Center based on
her mental impairments, and her therapist Gordon Comstock who
treated Claimant for bipolar disorder (T. 247, 281, 292, 296, 299,
314, 319, 413-32, 447-50, 682, 699, 720, 727-28, 755).
pursuant to the materiality analysis, substantial evidence in this
record showed that absent her DAA, Claimant was disabled, and the
ALJ, pursuant to SSR 13-2p, was required to enter a finding of
In proceeding to the question of whether Claimant would be
disabled by her co-occurring mental disorders in the absence of her
DAA, the ALJ improperly ignored SSR 13-2p’s requirement that the
medical record contain positive evidence that Claimant’s mental
disorders would improve to the point of nondisability without the
presence of her DAA.
Instead, the ALJ improperly treated the
absence of evidence that Plaintiff would be disabled independent of
her DAA as proof that Plaintiff’s co-occurring mental disorders
would improve to the point of nondisability.
For example, the ALJ
found that the medical record contained “no evidence that the
claimant . . . has an inability to function outside a highly
supportive living arrangement” (T. 20).
The ALJ added that there
was also no evidence that Claimant had “a residual disease process
that would result in decompensation due to even a slight increase
in mental demands or change in environment, a history of at least
environment, or a complete inability to function independently
outside of [her] home” (Id.).
The ALJ also did not find “any
evidence of repeated episodes of decompensation” (Id. (emphasis
added)) despite Plaintiff’s multiple hospitalizations at Buffalo
General Hospital and Erie County Medical Center (T. 281, 292, 296,
299, 314, 319, 682, 699, 720, 727-28, 755).
The ALJ further noted,
without reference to any evidence in the medical record, that if
Claimant stopped her DAA, she would have mild restrictions in
concentration, persistence and pace, and in activities of daily
He reasoned that this was supported by the fact that
Claimant could dress, bath, and groom herself, as well as cook,
clean, do laundry, and shop (Id.).
He conceded, however, that she
would have moderate difficulties with respect to social functioning
if she did not have her DAA (Id.).
The ALJ further found that Claimant could adjust to increased
mental demands and changes in her environment, was able to function
outside of a highly supporting living arrangement, and had not been
hospitalized for psychiatric treatment (Id.), despite Plaintiff’s
Despite extensive medical record evidence of Plaintiff’s mental
disorder, the ALJ only discussed the medical record of Claimant’s
bipolar disorder as it relates to her DAA and does not address
disorder (T. 18-19).
SSR 13-2p is clear that the question is not
whether DAA is a contributing factor to Claimant’s disability, but
rather whether evidence in the record establishes that, but for the
DAA, Claimant’s limitations would render her not disabled.
Commissioner does not cite any evidence in the medical record, and
the Court is not aware of any, that indicates that Claimant’s
“co-occurring mental disorder(s) would improve to the point of
nondisability in the absence of DAA.”
SSR 13-2p (emphasis added).
Indeed, as the Commissioner concedes, the record reveals no “period
of abstinence . . . long enough to allow the acute effects of [DAA]
Furthermore, as Plaintiff points out, the ALJ erred in his
example out of nearly a dozen hospitalizations in support of his
finding that Claimant’s hospitalizations were a result of her
“running out of/stopping her medications,” and noting that “she
became very functional shortly after resuming her medications”
(T. 21). During her hospitalization in April 2011, Plaintiff asked
to be admitted in order to detox from multiple substances used the
day of her admission (T. 247).
However, the record is clear that
Claimant was not seen by anyone at the emergency room during that
April 2011 incident and “left without being seen” (Id.). Moreover,
sufficient to show that a DAA is material.
hospitalizations - with or without treatment for DAA - indicate
that DAA may not be material even if a claimant’s condition
improves upon discharge. As Claimant’s medical record reveals, she
was hospitalized on at least ten separate occasions between 2011
and 2014 for her psychiatric impairments, in particular depression
and suicidal thoughts (T. 281, 292, 296, 299, 314, 319, 682, 699,
720, 727-28, 755).
The medical record shows that Claimant had no
positive toxicology results from any of these hospitalizations,
including her then most recent hospitalization in 2014 at Erie
County Medical Center (T. 727-28, 755).
The Commissioner argues, in attempting to discount the medical
record of Plaintiff’s multiple hospitalizations, that Plaintiff’s
immateriality of her DAA because Plaintiff admitted during some
hospitalizations that she was trying to get away from her boyfriend
or homelessness, she was known to fake urine tests, and her
symptoms could have been related to withdrawal. However, under SSR
13-2p, self-reported drug or alcohol use “does not establish DAA”
because it is “not objective medical evidence.”
rationalizations for agency action.” Snell v. Apfel, 177 F.3d 128,
134 (2d Cir. 1999) (internal quotation marks omitted).
Considering Plaintiff’s multiple hospitalizations, the medical
establishing that Claimant would not be disabled but for her DAA,
this Court has “‘no reason to doubt that [Claimant] is disabled
Murray v. Colvin, No. 1:16-CV-00181 (MAT),
2017 WL 1289588, at *4 (W.D.N.Y. Apr. 4, 2017) (quoting Franz v.
Colvin, 91 F. Supp. 3d 1200, 1218 (D. Or. 2015)).
Failure to Use a Vocational Expert
Plaintiff also argues that the ALJ erred by failing to use a
vocational expert to assess the impact of Claimant’s nonexertional
impairments and limitations on the occupational base of unskilled
work that the ALJ found Plaintiff capable of performing.
the Court concludes that the medical record demonstrates that
Claimant was disabled under the Act, the Court declines to consider
Remand for Calculation of Benefits
benefits is met when the record persuasively demonstrates the
claimant’s disability, see Parker v. Harris, 626 F.2d 225, 235
(2d Cir. 1980), and where there is no reason to conclude that
additional evidence might support the Commissioner’s finding that
the claimant is not disabled, see Butts v. Barnhart, 388 F.3d 377,
385–86 (2d Cir. 2004). Because the Court concludes that Claimant’s
disability is conclusively demonstrated by this medical record, no
Moreover, the Second Circuit “has recognized delay
as a factor militating against a remand for further proceedings
where the record contains substantial evidence of disability.”
McClain v. Barnhart, 299 F. Supp. 2d 309, 310 (S.D.N.Y. 2004)
Reversal for calculation of benefits is
particularly appropriate in this case because Claimant’s benefits
claim has been pending for more than six years.
Indeed, of the
nearly three years this action has been pending, Claimant has been
significant delay already experienced by the parties, and the
convincing evidence of disability in this case, the Court remands
this case solely for the calculation and payment of benefits.
For the foregoing reasons, the Commissioner’s motion for
judgment on the pleadings is denied and Plaintiff’s motion for
judgment on the pleadings is granted.
This matter is reversed and
remanded solely for the calculation and payment of benefits.
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
November 29, 2017
Rochester, New York.
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