Cyman v. Berryhill

Filing 18

DECISION AND ORDER: For the reasons set forth in the attached Decision and Order, Plaintiff's motion for judgment on the pleadings 10 is granted, and this matter is remanded for further administrative proceedings. Defendant Commissioner's motion for judgment on the pleadings 15 is denied. The Clerk of Court shall take all steps necessary to close the case. SO ORDERED. Signed by Hon. Richard J. Arcara on 5/31/2019. (LAS)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

SHEILA A. CYMAN,
Plaintiff,
DECISION AND ORDER
17-CV-571-A

v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

Plaintiff Sheila A. Cyman (“Plaintiff”) brings this action pursuant to the Social
Security Act for review of a final decision of the Acting Commissioner of Social Security
(the “Commissioner”) that denied her applications for Disability Insurance Benefits and
Supplemental Security Income under Titles II and XVI of the Social Security Act. (Dkt.
No. 1). The Court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3).
The parties each moved for judgment on the pleadings pursuant to Federal Rule
of Civil Procedure 12(c). (Dkt. Nos. 10 and 15). Upon consideration of the record, and
for the reasons set forth below, the Court GRANTS Plaintiff’s motion for remand and
DENIES the Commissioner’s motion.
DISCUSSION
The Court reviews the record to determine whether the Commissioner applied
the correct legal standards and whether substantial evidence supports the
Commissioner’s final decision. 42 U.S.C. § 405(g). The Court assumes the parties’
familiarity with the prior proceedings and the issues before the Court in this short ruling
on their cross-motions for judgment on the pleadings.

An Administrative Law Judge, William M. Weir (the “ALJ”), found Plaintiff
ineligible for benefits by concluding that a severe impairment due to a broken ankle, in
combination with some mental impairments, did not render Plaintiff disabled because he
found that other work exists in significant numbers in the national economy that Plaintiff
could perform. See (Tr. 542-43). Unfortunately, the ALJ committed a procedural error
in evaluating plaintiff’s alleged multiple impairments, and the record does not allow the
Court to determine whether the error was a harmless error.
An ALJ is to conduct the following “five step, sequential evaluation” to determine
whether a claimant is disabled:
(1) whether the claimant is currently engaged in substantial
gainful activity; (2) whether the claimant has a severe impairment
or combination of impairments; (3) whether the impairment
meets or equals the severity of the specified impairments in the
Listing of Impairments; (4) based on a "residual functional
capacity" assessment, whether the claimant can perform any of
his or her past relevant work despite the impairment; and (5)
whether there are significant numbers of jobs in the national
economy that the claimant can perform given the claimant's
residual functional capacity, age, education, and work
experience.
20 C.F.R. §§ 404.1520(a)(4)(i)–(v), 416.920(a)(4)(i)–(v)). The claimant bears the
burden of proving her case at steps one through four. Id. The burden of proof shifts to
the Commissioner at step five. Id.
When a claimant allegedly suffers mental impairments, the ALJ is also required
to use a “special technique” (it is sometimes called the “psychiatric review technique”) at
the second and third steps of the five-step evaluation to determine whether the claimant
has any severe mental impairments and whether such impairments meet or equal an

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impairment listed in 20 CFR Part 404, Subpart P, Appendix 1. 20 C.F.R. § 404.1520a.
This special technique applies at each stage of administrative review. Id.
The special technique first requires the ALJ to assess the claimant's degree of
functional limitation resulting from a mental impairment in four “broad functional areas”
identified in the “paragraph B” of the adult mental disorders listings. See 20 C.F.R. §§
404.1520a(c)(3), 416.920a(c)(3); see SSR 96–8p, 1996 WL 374184, at *4. Those four
functional areas are: “[u]nderstand, remember, or apply information; interact with others;
concentrate, persist, or maintain pace; and, adapt or manage oneself.” 20 C.F.R. §§
404.1520a(c)(3), 416.920a (c)(3). “[I]f the degree of limitation in each of the first three
areas is rated ‘mild’ or better, [and the evidence otherwise does not indicate that there is
more than a minimal limitation in your ability to do basic work activities, then the
reviewing authority will conclude that claimant's mental impairment is not ‘severe’ and
will deny benefits.” Kohler v. Astrue, 546 F.3d 260, 266 (2d Cir. 2008) (citing 20 C.F.R.
§ 404.1520a(d)(1) as amended). If the claimant's mental impairment is severe, the
reviewing authority will determine whether the impairment meets or is equivalent in
severity to any listed mental disorder. Id. If so, the claimant will be found to be
disabled; if not, reviewing authority then proceeds to assess the claimant's residual
functional capacity. 20 C.F.R. § 404.1520a(d)(3). The regulation at § 404.1520a
“require[s] the ALJ's written decision to reflect application of the [special] technique, and
explicitly provide[s] that the decision ‘must include a specific finding as to the degree of
limitation in each of the functional areas described in paragraph (c) of this section.’”
Kohler, 546 F.3d at 266 (quoting former 20 C.F.R. § 404.1520a(e)(2)).

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When a claimant alleging physical and mental impairments also allegedly suffers
ill-effects of drug or alcohol abuse, the disability determination becomes even more
involved because the Social Security Act provides that a claimant “shall not be
considered disabled . . . if alcoholism or drug addiction would be a contributing factor
material to the Commissioner’s determination that the individual is disabled”. 42 U.S.C.
§ 423(d)(2)(C); 20 C.F.R. §§ 416.935(a), 404.1535(a); see SSR 13-2p. In such a case,
the ALJ first assesses whether the claimant’s physical and mental impairments result in
disability while taking account of the ill-effects of drug and alcohol abuse during the fivestep evaluation using the special technique, and then determines whether the claimant’s
impairments would stop or diminish if the claimant stopped drug and alcohol abuse. 20
C.F.R. § 416.935.
To determine whether alcoholism or drug addiction is a “material” factor, an ALJ
is required to apply the following standards:
(1) The key factor we will examine in determining whether drug
addiction or alcoholism is a contributing factor material to the determination
of disability is whether we would still find you disabled if you stopped using
drugs or alcohol.
(2) In making this determination, we will evaluate which of your
current physical and mental limitations, upon which we based our current
disability determination, would remain if you stopped using drugs or alcohol
and then determine whether any or all of your remaining limitations would
be disabling.
(i) If 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.
(ii) If we determine that your remaining limitations are
disabling, you are disabled independent of your drug addiction
or alcoholism and we will find that your drug addiction or
alcoholism is not a contributing factor material to the
determination of disability.
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20 C.F.R. §§ 416.935(b), 404.1535(b).
The parties’ primary dispute is whether the ALJ was required to make an
alcoholism-materiality determination. The Commissioner argues the determination was
not required because the ALJ properly considered the assumed impact of Plaintiff’s
chronic alcoholism and found Plaintiff not disabled even when taking full account of all
of her substance-related impairments. Plaintiff contends that because it is obvious that
the ALJ made no findings regarding the severity of Plaintiff’s substance abuse problems
at the appropriate steps of his evaluation of her impairments, despite repeatedly having
noted their prevalence and severity based upon medical records, the ALJ could not
have properly considered the issue.
The Court finds it clear from the ALJ’s decision that the ALJ did not evaluate
Plaintiff’s disabilities pursuant to the required procedures. (Tr. 528-43). As described
above, a conditional assessment of disability that fully takes account of a claimant’s
drug addiction and alcoholism during the five-step evaluation, including use of the
special technique, is required before the ALJ proceeds to assess the materiality of drug
addiction and alcoholism. See e.g., Dailey v. Astrue, 2010 WL 4703599, *7 (W.D.N.Y.
Oct. 26, 2010). But the ALJ in this case separated out the impact of Plaintiff’s alcohol
abuse before completing the five-step evaluation. For example, the ALJ’s analysis at
step three concludes, in the context of assessing the Plaintiff’s mental impairments, but
before he explicitly considered the four broad paragraph B criteria for assessing mental
functions, that:
The record shows that [the Plaintiff] is a chronic alcoholic in
severe denial of her problem and that alcohol abuse is the sole
source of her emotional limits.
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(Tr. 536; see also Tr. 534-36). This conclusion, among others in the ALJ’s decision,
shows that the ALJ discounted plaintiff’s mental impairments due to her chronic
alcoholism without first assessing her mental impairments with alcoholism, contrary to
the protocol required by 20 C.F.R. § 416.935. (Tr. 531-36). Particularly because the
ALJ considered the paragraph B functions without first including the impact of Plaintiff’s
chronic alcoholism in assessing the Plaintiff’s mental impairments, the ALJ committed
procedural error 1.
The five-step evaluation, using the special technique, and the alcoholismmateriality-determination protocol all serve as scaffolds for an ALJ’s reasoning. They
are regulatory frameworks for an ALJ’s reasoning that, when attended to, show the
reasoning on required topics in a specific sequence that is consistent with the topics
and sequence of other ALJs’ reasoning on similar issues. They are time consuming to
apply explicitly, particularly when a claimant has a difficult complex of different alleged
impairments and potentially disqualifying chronic alcoholism and drug abuse, as the
Plaintiff does in this case, but attending to the procedures mandated by the regulations
facilitates consistent decision making by ALJs and consistent administrative and judicial
review.
In this case, the Court is unable to determine whether substantial evidence would
support the ALJ’s determinations of the seriousness of Plaintiff’s cognizable

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The Second Circuit recently repeated that it has “frequently cautioned that ALJs should not rely heavily
on the findings of consultative physicians after a single examination [and that] this concern is even more
pronounced in the context of mental illness where . . . a one-time snapshot of a claimant's status may not
be indicative of her longitudinal mental health.” Estrella v. Berryhill, No. 17-3247, 2019 WL 2273574 *5
(2d Cir. May 29, 2019). That repeated caution is pertinent because the ALJ seems to have relied heavily
upon a consultative psychologist’s single examination in assessing Plaintiff’s mental functioning pursuant
to the Paragraph B factors. (Tr. 535-36 (citing Ex. 32F)).

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impairments and his ultimate determination that Plaintiff was not disabled. The Court is
cognizant that it is a claimant’s burden to show that drug addiction or alcoholism is not a
contributing factor material to a determination of disability, assuming a conditional
determination of disability is made pursuant to 20 C.F.R. § 416.935. Newsome v.
Astrue, 817 F. Supp. 2d 111, 126–27 (E.D.N.Y. 2011) (citing cases). Accordingly,
although the ALJ’s procedural error may have been a harmless error, the Court is
unable to find the error harmless on this record.
CONCLUSION
Based on the foregoing, Plaintiff Sheila A. Cyman’s motion pursuant to Fed. R.
Civ. P. for judgment on the pleadings (Dkt. No. 10) is granted and the case is
remanded. The Commissioner’s cross-motion for judgment on the pleadings (Dkt. No.
15) is denied. The Clerk of the Court is directed to enter Judgment remanding this case
to the Commissioner.
IT IS SO ORDERED.

s/Richard J. Arcara
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT COURT
Dated: May 31, 2019

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