Mullen v. Colvin

Filing 15

DECISION AND ORDER. Plaintiff's Motion for Judgment on the Pleadings 11 is GRANTED, the Commissioner's Motion for Judgment on the Pleadings 12 is DENIED, and this matter is REMANDED to the Commissioner for further administrative proceedings. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 6/26/2017. (AFM)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JOHN MULLEN, JR.,
Plaintiff,
Case # 16-CV-476-FPG
v.
DECISION AND ORDER
NANCY A. BERRYHILL,1 ACTING COMMISSIONER
OF SOCIAL SECURITY,
Defendant.

John Mullen, Jr. (“Mullen” or “Plaintiff”) brings this action pursuant to the Social
Security Act (“the Act”) seeking review of the final decision of the Acting Commissioner of
Social Security (“the Commissioner”) that denied his applications for disability insurance
benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles II and XVI of the Act.
ECF No. 1. The Court has jurisdiction over this action under 42 U.S.C. §§ 405(g), 1383(c)(3).
Both parties have moved for judgment on the pleadings pursuant to Federal Rule of Civil
Procedure 12(c).

ECF Nos. 11, 12.

For the reasons that follow, Plaintiff’s motion is

GRANTED, the Commissioner’s motion is DENIED, and this matter is REMANDED to the
Commissioner for further administrative proceedings.
BACKGROUND
On April 30 2012, Mullen protectively applied for DIB and SSI with the Social Security
Administration (“the SSA”). Tr.2 157-77. He alleged that he had been disabled since January 1,
2012 due to mania, paranoia, depression, and anxiety. Tr. 199. On October 16, 2013, Mullen

1
Nancy A. Berryhill is now the Acting Commissioner of Social Security and is therefore
substituted for Carolyn W. Colvin as the defendant in this suit pursuant to Federal Rule of Civil
Procedure 25(d).
2
References to “Tr.” are to the administrative record in this matter.
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and a vocational expert (“VE”) testified at a hearing before Administrative Law Judge Bruce R.
Mazzarella (“the ALJ”). Tr. 36-93. On May 27, 2014, the ALJ issued a decision finding that
Mullen was not disabled within the meaning of the Act. Tr. 14-31. On April 14, 2016, the
Appeals Council denied Mullen’s request for review. Tr. 1-4. Thereafter, Mullen commenced
this action seeking review of the Commissioner’s final decision. ECF No. 1.
LEGAL STANDARD
I.

District Court Review
“In reviewing a final decision of the SSA, this Court is limited to determining whether

the SSA’s conclusions were supported by substantial evidence in the record and were based on a
correct legal standard.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (quotation marks
omitted); see also 42 U.S.C. § 405(g). The Act holds that a decision by the Commissioner is
“conclusive” if it is supported by substantial evidence. 42 U.S.C. § 405(g). “Substantial
evidence means more than a mere scintilla. It means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Moran v. Astrue, 569 F.3d 108, 112 (2d
Cir. 2009) (quotation marks omitted). It is not the Court’s function to “determine de novo
whether [the claimant] is disabled.” Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (quotation
marks omitted); see also Wagner v. Sec’y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir.
1990) (holding that review of the Secretary’s decision is not de novo and that the Secretary’s
findings are conclusive if supported by substantial evidence).
II.

Disability Determination
An ALJ must follow a five-step sequential evaluation to determine whether a claimant is

disabled within the meaning of the Act. See Parker v. City of New York, 476 U.S. 467, 470-71
(1986). At step one, the ALJ must determine whether the claimant is engaged in substantial

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gainful work activity. See 20 C.F.R. § 404.1520(b). If so, the claimant is not disabled. If not,
the ALJ proceeds to step two and determines whether the claimant has an impairment, or
combination of impairments, that is “severe” within the meaning of the Act, meaning that it
imposes significant restrictions on the claimant’s ability to perform basic work activities. 20
C.F.R. § 404.1520(c). If the claimant does not have a severe impairment or combination of
impairments, the analysis concludes with a finding of “not disabled.” If the claimant does, the
ALJ continues to step three.
At step three, the ALJ examines whether a claimant’s impairment meets or medically
equals the criteria of a listed impairment in Appendix 1 of Subpart P of Regulation No. 4 (the
“Listings”). 20 C.F.R. § 404.1520(d). If the impairment meets or medically equals the criteria
of a Listing and meets the durational requirement (20 C.F.R. § 404.1509), the claimant is
disabled. If not, the ALJ determines the claimant’s residual functional capacity (“RFC”), which
is the ability to perform physical or mental work activities on a sustained basis, notwithstanding
limitations for the collective impairments. See 20 C.F.R. § 404.1520(e)-(f).
The ALJ then proceeds to step four and determines whether the claimant’s RFC permits
him or her to perform the requirements of his or her past relevant work. 20 C.F.R. § 404.1520(f).
If the claimant can perform such requirements, then he or she is not disabled. If he or she
cannot, the analysis proceeds to the fifth and final step, wherein the burden shifts to the
Commissioner to show that the claimant is not disabled. To do so, the Commissioner must
present evidence to demonstrate that the claimant “retains a residual functional capacity to
perform alternative substantial gainful work which exists in the national economy” in light of his
or her age, education, and work experience. See Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir.
1999) (quotation marks omitted); see also 20 C.F.R. § 404.1560(c).

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DISCUSSION
I.

The ALJ’s Decision
The ALJ’s decision analyzed Mullen’s claim for benefits under the process described

above. At step one, the ALJ found that Mullen had not engaged in substantial gainful activity
since the alleged onset date. Tr. 17. At step two, the ALJ found that Mullen has the following
severe impairments: bipolar disorder, manic-depressive psychosis, schizophrenia, paranoid
anxiety, and marijuana dependency that exacerbates his other mental impairments. Id. At step
three, the ALJ found that these impairments met sections 12.03, 12.04, 12.06, and 12.09 of the
Listings. Tr. 17-22.
Pursuant to the SSA’s regulations regarding drug or alcohol abuse (“DAA”) the ALJ
considered the effect of Mullen’s marijuana abuse on the disability finding. Tr. 20-30; see 42
U.S.C. §§ 423(c)(1)(A)(2)(C), 1382c(a)(3)(J); 20 C.F.R. §§ 404.1535, 416.935.

The ALJ

concluded that if Mullen stopped abusing marijuana he would continue to have severe
impairments but that those impairments, alone or in combination, would not meet or medically
equal any impairment in the Listings. Tr. 22-24.
Next, the ALJ determined that if Mullen stopped abusing marijuana he would retain the
RFC to perform the full range of work at all exertional levels but with nonexertional limitations.
Tr. 24-29. Specifically, the ALJ found that Mullen could perform only simple, repetitive, and
routine tasks in a low contact work environment with the public and coworkers. Tr. 24.
At step four, the ALJ found that if Mullen stopped abusing marijuana this RFC would
prevent him from performing his past relevant work as a short order cook. Tr. 29. At step five,
the ALJ relied on the VE’s testimony and found that if Mullen stopped abusing marijuana he
could adjust to other work that exists in significant numbers in the national economy given his

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RFC, age, education, and work experience. Tr. 29-30. Specifically, the VE testified that Mullen
could work as a housekeeper, handpacker, and packing machine tender. Tr. 30. Accordingly,
the ALJ concluded that Mullen was not “disabled” under the Act. Id.
II.

Analysis
Mullen argues that remand is required because the ALJ erred when he determined that

DAA was a material factor contributing to his disability. ECF No. 11-1, at 16-21. Specifically,
Mullen asserts that the ALJ reached this conclusion by improperly rejecting an opinion rendered
during a period of abstinence3 and ignoring an opinion from his psychiatrist. Id. The Court
agrees.
A claimant is not considered disabled under the Act if DAA would “be a contributing
factor material to the Commissioner’s determination that the individual is disabled.” See 42
U.S.C. §§ 423(c)(1)(A)(2)(C), 1382c(a)(3)(J); 20 C.F.R. §§ 404.1535, 416.935. “When DAA is
shown to be at issue in a claim, the ALJ must make a finding as to the materiality of DAA to the
claimant’s disability, and this finding must be supported by substantial evidence.” Straughter v.
Comm’r of Soc. Sec., No. 12-CV-825 DAB DCF, 2015 WL 6115648, at *21 (S.D.N.Y. Oct. 16,
2015) (citing Cage v. Comm’r of Soc. Sec., 692 F.3d 118, 126 (2d Cir. 2012)). This finding can
be “based on the record as a whole” and “need not rely on any predictive opinions.” Id. The
materiality finding requires the ALJ to evaluate disability a second time to determine “whether
the individual would still be disabled if he or she stopped using drugs or alcohol.” Cordero v.
Astrue, 574 F. Supp. 2d 373, 378 (S.D.N.Y.2008) (citing 20 C.F.R. § 416.935(b)(2)); see also 20
C.F.R. § 404.1535(b)(2). It is the plaintiff’s burden to establish that DAA is immaterial to the
disability determination. See Cage, 692 F.3d at 123; S.S.R. 13-2p, 2013 WL 621536, at *4.

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A “period of abstinence” is “a period in which a claimant who has, or had, been dependent upon
or abusing drugs or alcohol and stopped their use.” S.S.R. 13-2p, Titles II & XVI: Evaluating Cases
Involving Drug Addiction & Alcoholism (DAA), 2013 WL 621536, at *8 n.17 (S.S.A. Feb. 20, 2013).
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Here, the ALJ’s decision identifies a period of marijuana abstinence from May to
September 2012. Tr. 25-26. The ALJ found that “during this period of abstinence, [Mullen] had
significant improvement in his co-occurring mental impairments and that his substance abuse is
material to the issue of disability.” Tr. 25. The ALJ cited various treatment notes indicating,
among other things, that Mullen denied hallucinations, paranoia, depression, mania, and
homicidal ideation during this time. Tr. 26. The ALJ’s decision, however, overlooks two key
medical opinions that undermine his finding that DAA is material to Mullen’s disability
determination.
On June 15, 2012, during Mullen’s period of abstinence, licensed mental health counselor
Anna Marie Bruschi-Skop (“Ms. Bruschi-Skop”) wrote a letter opining that Mullen “is not able
to work at this time due to the instability of his symptoms.” Tr. 341. Psychiatrist Hong Rak
Choe, M.D. (“Dr. Choe”) co-signed this letter. Id. The ALJ discussed this opinion in his
decision, but he failed to recognize that Dr. Choe co-signed the opinion. Tr. 28. Even though an
acceptable medical source co-signed the letter, the ALJ discounted the opinion in part because
Ms. Bruschi-Skop is an “other source” whose opinion may be considered but need not be given
controlling weight. Tr. 28; see 20 C.F.R. §§ 404.1513(d), 416.913(d) (effective June 13, 2011 to
Sept. 2, 2013); S.S.R. 06-03p,  Titles II & XVI: Considering Opinions & Other Evidence from
Sources Who Are Not “Acceptable Medical Sources” in Disability Claims, 2006 WL 2329939,
at *2 (S.S.A. Aug. 9, 2006).
There is no evidence, however, that this letter did not reflect Dr. Choe’s opinion and
therefore the ALJ should have considered it an opinion from an “acceptable medical source.”
See, e.g., Vongsouvanh v. Comm’r of Soc. Sec., No. 6:13-CV-1581 TJM/ATB, 2015 WL 926200,
at *9 (N.D.N.Y. Mar. 3, 2015) (noting that the ALJ should have deemed a medical source

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statement by a nurse practitioner that the plaintiff’s doctor co-signed to be an acceptable medical
source’s report); see also 20 C.F.R. §§ 404.1502(a)(1), 416.902(a)(1). Thus, the ALJ should
have considered the following factors when he weighed that opinion: (1) whether Dr. Choe
examined the claimant; (2) the length, nature, and extent of the treatment relationship; (3)
whether Dr. Choe presented relevant evidence to support the opinion; (4) whether the opinion is
consistent with the record as a whole; (5) Dr. Choe’s specialty and whether his opinion related to
his area of expertise; and (6) other factors that tend to support or contradict the opinion. 20
C.F.R. §§ 404.1527(c)(1)-(6), 416.927(c)(1)-(6).
Although Dr. Choe’s opinion that Mullen cannot work is an issue that is reserved to the
Commissioner, see 20 C.F.R. §§ 404.1527(d)(1), 416.927(d)(1), in DAA cases “evidence from a
period of abstinence is the best evidence for determining whether a physical impairment(s)
would improve to the point of nondisability.” S.S.R. 13-2p, 2013 WL 621536, at *8. Thus,
proper consideration of this opinion was crucial because it was rendered during Mullen’s period
of abstinence. This is especially true because the ALJ rejected the other medical opinions
rendered during that time. See Tr. 21 (citing Tr. 375-88); Tr. 28 (citing Tr. 342-46). Moreover,
it is very favorable to Mullen that Dr. Choe found him unable to work during a period of
abstinence as this contradicts the ALJ’s finding that marijuana abuse was a material factor
contributing to his disability.
Additionally, the ALJ failed to evaluate the opinion of psychiatrist Herman Szymanski,
M.D. (“Dr. Szymanski”) (Tr. 447), even though the SSA’s regulations require an ALJ to
“evaluate every medical opinion [he or she] receives, regardless of its source.” Pena v. Chater,
968 F. Supp. 930, 937 (S.D.N.Y. 1997), aff’d, 141 F.3d 1152 (2d Cir. 1998); 20 C.F.R. §§
404.1527(c), 416.927(c). Unless a treating source’s opinion is given controlling weight, the ALJ

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must weigh every medical opinion of record considering several factors. See 20 C.F.R. §§
404.1527(c)(1)-(6), 416.927(c)(1)-(6).
Here, the ALJ did not give controlling weight to a treating source’s opinion and was
therefore required to evaluate Dr. Szymanski’s opinion. However, the ALJ’s decision does not
mention that opinion at all. Tr. 24-29. This error is especially harmful because Dr. Szymanski’s
opinion contradicts the ALJ’s finding that Mullen’s marijuana use was a material factor
contributing to his disability. Tr. 447. In an Individual Progress Note dated July 30, 2013, Dr.
Szymanski opined that:
From the record, it is suggested, on a couple of occasions while
[Mullen] was an inpatient, that his psychosis resolved completely
after only a few days of medication. This was interpreted as a
psychosis due to marijuana abuse. However, there is nothing in
the literature that supports that conclusion[.]
Id.
Although this opinion indicated that marijuana did not play a role in Mullen’s psychotic
episodes, the ALJ concluded that marijuana abuse was a material factor contributing to Mullen’s
disability. The ALJ should have acknowledged and weighed Dr. Szymanski’s opinion and
reconciled this inconsistency.
For the reasons stated, the Court finds that the ALJ erred by improperly evaluating Dr.
Choe’s opinion and ignoring Dr. Szymanski’s opinion. Based on these opinions and the record
as a whole, the Court cannot conclude that the ALJ’s DAA finding is supported by substantial
evidence. Accordingly, remand is required.
CONCLUSION
Plaintiff’s Motion for Judgment on the Pleadings (ECF No. 11) is GRANTED, the
Commissioner’s Motion for Judgment on the Pleadings (ECF No. 12) is DENIED, and this
matter is REMANDED to the Commissioner for further administrative proceedings consistent
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with this opinion, pursuant to sentence four of 42 U.S.C. § 405(g). See Curry v. Apfel, 209 F.3d
117, 124 (2d Cir. 2000); 42 U.S.C. § 1383(c)(3). The Clerk of Court is directed to enter
judgment and close this case.
IT IS SO ORDERED.
Dated: June 26, 2017
Rochester, New York
______________________________________
HON. FRANK P. GERACI, JR.
Chief Judge
United States District Court 

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