Avilas v. Commissioner of Social Security

Filing 13

-CLERK TO FOLLOW UP-DECISION AND ORDER denying 10 Plaintiff's Motion for Judgment on the Pleadings; granting 12 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 3/8/16. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

LUIS A. AVILAS,
Plaintiff,
DECISION and ORDER
No. 6:15-cv-6210(MAT)

-vsCAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

INTRODUCTION
Represented by counsel, Luis A. Avilas (“Plaintiff”) brings
this action pursuant to Titles II and XVI of the Social Security
Act (“the Act”), seeking review of the final decision of the
Commissioner of Social Security (“the Commissioner”) denying his
application
Supplemental

for

Disability

Security

Insurance

Insurance

Benefits

(“SSI”).

This

(“DIB”)

and

Court

has

jurisdiction over the matter pursuant to 42 U.S.C. §§ 405(g),
1383(c).
BACKGROUND
I.

Procedural Status
Plaintiff protectively filed applications for DIB and SSI on

February 16, 2012, alleging disability since June 30, 2011, due to
depression, heart disease, high cholesterol, diabetes, and high

blood pressure. T.126-39, 172.1 After these applications were
denied, Plaintiff requested a hearing, which was held before
Administrative Law Judge Michael Devlin (“the ALJ”) on March 11,
2014, in Rochester, New York. T.29-52. Plaintiff appeared with his
attorney and testified, as did impartial vocational expert Carol G.
McManus (“the VE”). The ALJ issued a decision on May 9, 2014,
finding

Plaintiff

not

disabled

under

the

Act.

T.12-24.

This

decision became the final decision of the Commissioner when the
Appeals

Council

denied

Plaintiff’s

request

for

review

on

February 10, 2015. T.1-5.
Plaintiff timely commenced this action. The parties have filed
cross-motions

for

judgment

on

the

pleadings

and

supporting

memoranda of law, but neither party has filed a reply brief. For
the

reasons

discussed

below,

the

Commissioner’s

decision

is

affirmed.
II.

Summary of the Relevant Medical Evidence
Because Plaintiff does not allege error in connection with the

ALJ’s assessment of his physical residual functional capacity
(“RFC”), the summary below will focus on the medical evidence
regarding Plaintiff’s mental impairments and alcohol abuse.

1

Citations to “T.” refer to pages from the certified transcript of the
administrative record, submitted by the Commissioner in connection with her
answer to the complaint.

-2-

A.

Treatment Notes

Both prior to and after the onset date of June 30, 2011,
Plaintiff

has

hospitalizations

had

recurrent

due

to

pancreatitis

alcohol

and

intoxication

multiple

and

alcohol

dependency, including on September 15, 2006, to September 18, 2006;
April 1, 2010, to April 2, 2010; July 6, 2010 to July 12, 2010; and
November 7, 2010. See T.238, 412-413, 432, 445-447. For instance,
on April 1, 2010, Plaintiff visited the emergency room, complaining
of depression and alcohol abuse, with a recent alcohol binge.
T.445-48. Upon discharge, Plaintiff was given a prescription for
Atvian

to

ease

withdrawal

symptoms.

T.446-47.

Plaintiff

also

suffered a period of depression in September 2009, during which he
was unable to work or concentrate. T.595.
On February 4, 2011, Plaintiff reported to the Emergency
Department at Rochester General Hospital (“RGH”) in a lethargic,
obtunded

state

with

decreased

mental

status;

his

speech

was

slurred, he had tremors, and he smelled of alcohol. T.484. He was
treated

with

Narcan

(naloxone).

His

discharge

diagnoses

were

encephalopathy and acute renal failure. T.489.
From August 16, 2011, to August 17, 2011, Plaintiff was
admitted to RGH with symptoms of confusion, dizziness, and upper
abdominal pain with nausea after a one-week alcohol binge. T.492,
497. He reported remaining sober for four months after undergoing
inpatient alcohol rehabilitation in October 2010. T.497. Initial

-3-

assessment was alcohol intoxication and epigastric pain likely
secondary

to

alcohol-induced

gastritis.

He

was

treated

with

benzodiazepine, thiamine, folate, and multivitamins. Inpatient
rehabilitation was discussed, but Plaintiff refused, citing a need
to return to work. T.499.
About a month later, on September 23, 2011, Plaintiff was
admitted to RGH with acute pancreatitis and hypertension. After
being sober for about two to three weeks, he began drinking half a
liter of rum daily about nine to ten days prior to his admission.
T.508.

His

abdominal

pain,

which

had

been

mild

for

four

to

five days, had become severe the night before his admission. T.516.
Plaintiff was treated with MS Contin and Dilaudid for pain control,
and discharged on September 29, 2011.
From October 1, 2011, to October 2, 2011, Plaintiff was readmitted to RGH with complaints of unresolved sharp left upper
abdomen quadrant pain. T.517-19. He reported that his health
insurance

company

was

refusing

to

cover

pain

prescriptions.

Examination revealed mild abdominal tenderness in the epigastric
area and left upper quadrants. T.525. Although Plaintiff said his
last drink had been prior to his September 23rd hospital admission,
staff noted he smelled of alcohol. T.517-18. He was held in the
emergency room due to alcohol intoxication, and discharged once he
was sober. Diagnoses were abdominal pain and possible alcoholic
pancreatitis. He was treated with Dilaudid, Percocet, and Ativan.

-4-

On December 13, 2011, Plaintiff saw his primary care physician
Dr. Hilary Southerland at Culver Medical Group (“CMG”) and reported
drinking about four alcoholic beverages at a time, though not every
day. T.255-56. He was alert, fully oriented, and in no acute
distress.
On January 5, 2012, Plaintiff informed Dr. Brett Robbins at
CMG that he had passed out at work on December 23, 2011. T.252. He
had been found hypotensive with blood pressure in the 70s, and had
spent the night in observation. T.252-53.
When Plaintiff followed up with Dr. Robbins on January 19,
2012, after being discharged from the hospital for recurrent
alcoholic pancreatitis, he expressed an interest in treatment for
alcohol

abuse

Plaintiff’s

and

main

depression.
problems

T.249.

were

Dr.

Robbins

alcoholism

with

noted

that

recurrent

pancreatitis, uncontrolled hypertension, and high lipids. T.251.
Plaintiff returned to see Dr. Southerland on February 9, 2012,
and reported he had not had a drink since his hospitalization in
January

2012.

T.246,

686.

His

hypertension

and

diabetes

had

improved, but he had difficulty falling asleep and staying asleep
most nights. T.246. However, he was feeling much better overall.
T.246.

Dr.

Southerland

diagnosed

Plaintiff

with

insomnia

and

prescribed Ambien. T.247. Plaintiff’s alcohol abuse was deemed to
be in remission. Id. Dr. Southerland noted that Plaintiff was
clearly doing much better with his diabetes and blood pressure

-5-

control, with his alcohol abuse currently in remission. T.247. She
encouraged

him

to

continue

with

mental

health

treatment

and

consider AA. Id.
On February 21, 2012, Plaintiff had an intake assessment with
therapist Shannon Baker (“Ms. Baker”) at Rochester Mental Health
Center

(“RMHC”)

regarding

his

depression,

alcohol

abuse,

and

related health issues. T.228-31. Plaintiff reported depressive
symptoms

beginning

in

2008,

after

his

ex-wife’s

new

husband

murdered her and Plaintiff’s 15-year-old daughter. Plaintiff had a
history of suicidal ideation, noting that three months earlier he
had thoughts of wanting to kill himself and had deeply scratched
his arms and legs while intoxicated. T.228. Plaintiff’s alcohol
binges lasted from two weeks to two months. T.228. His drinking
interfered with his job and caused him to be miss a lot of work and
have his hours reduced to part-time. He had undergone inpatient and
outpatient alcohol treatment in the past, the longest of which was
41-day inpatient program. T.228. Plaintiff explained that he tended
to

go

on

drinking

binges

shortly

after

completing

treatment

programs. On examination, Plaintiff had a depressed mood with
congruent affect, and fair concentration, insight, and judgment.
T.228-29. Ms. Baker diagnosed him with depressive disorder, not
otherwise specified (“NOS”) and alcohol abuse disorder. T.229.
On March 7, 2012, and March 12, 2012, Plaintiff returned to
RMHC for further intake evaluation. T.226-27, 615-16, 619-21. He

-6-

reported feeling depressed, having low motivation, not sleeping,
and gaining weight. He was attending chemical dependency evening
treatment at RMHC. He recognized that his symptoms were interfering
with both his social and occupational functioning since he felt
unmotivated to work and had been receiving fewer hours at work due
to his alcohol abuse. On mental status examination, he had a
depressed mood, somewhat poor insight, and appropriate judgment.
T.619. Plaintiff expressed a desire to maintain his sobriety and
decrease his depressive symptoms. T.620. He reported that his
family was his primary support and that he had a good relationship
with his

family

members.

T.615.

Ms.

Baker

assessed

him with

depressive disorder NOS, and alcohol abuse disorder. His treatment
plan included individual therapy and medication.
At his next appointment at RMHC was March 19, 2012, he
reported that his depression is “episodic” and that he “can go for
a month feeling fine and then the depression comes back.” T.620. He
expressed

a

desire

to

reduce

depressive

symptoms,

maintain

sobriety, return to full-time employment, and move back to the
Bronx.
Dr. Southerland saw Plaintiff on March 22, 2012, and he
reported having a glass of wine with dinner, but said he was not
drinking liquor or drinking excessively. T.243. His examination was
unremarkable. He was advised to cease all alcohol consumption.
T.244.

-7-

From April 13, 2012, to April 21, 2012, Plaintiff was admitted
at

Syracuse

Behavioral

Health

for

alcohol

withdrawal

and

stabilization services (detoxification). T.558, 560. At admission,
his blood alcohol content was .020; he was anxious and numerous
withdrawal symptoms including tremors, nausea, malaise, diaphoresis
(excessive sweating), irritability, dizziness, rapid heartbeat,
depression, and agitation. T.555. He reported sleeping for

only

two hours at a time and staying up the rest of the night. T.556. He
had night sweats and bad dreams. During his program evaluation, he
admitted to self-harming thoughts in the past but no suicide
attempts.
consistent

Plaintiff reported
binge

drinking

a

(up

seven-to-eight-year
to

two

liters

of

history

rum

on

of

each

occasion) interspersed with periods of daily drinking. T.533-34.
On May 4, 2012, Plaintiff saw Ms. Baker at RMHC for therapy.
He

reported

depressive

symptoms

including

low

mood,

social

isolation, increased fatigue, and occasional tearfulness. He said
he had recently relapsed and had undergone detoxification. T.625.
On May 29, 2012, Plaintiff saw Dr. Southerland in follow-up,
noting that he had relapsed. However, he attended a detoxification
program and had not had an alcoholic drink in the past six weeks.
T.681-82. He was in no distress, with a normal affect, and linear
and appropriate thought.
Plaintiff appeared at RMHC without an appointment on May 30,
2012,

and

requested

help

from

Ms.

-8-

Baker,

his

therapist,

in

completing paperwork. He reported persistent depressive symptoms,
including low mood, social isolation, sleeplessness. He admitted
increased marijuana use. T.626.
On July 3, 2012, Plaintiff saw nurse practitioner Linda
Tantalo

(“NP

experiencing

Tantalo”)
increased

at

RMHC.

T.627-28,

depressive

symptoms

640-42.
but

He

was

Wellbutrin

prescribed by Dr. Southerland was providing some help. His chief
complaint was sleeplessness, which had been a problem for the past
six or seven years. His longest time abstaining from alcohol was
seven months, about three years earlier. On examination, Plaintiff
did

not

display

any

significant

signs

of

anxiety;

he

was

appropriately dressed, polite, cooperative, with normal speech,
organized

thought

suicidal

ideation,

concentration,

and

processes,
intact
adequate

dysphoric

memory,
insight

mood,

full

affect,

fair

attention

span,

and

judgment.

NP

no

fair

Tantalo

prescribed Lunesta for sleeplessness. Plaintiff was not interested
in adjusting his Wellbutrin dosage, which remained at 150 mg per
day.
Plaintiff returned to Dr. Southerland on July 13, 2012, noting
increased depression and fatigue over the past month. T.677-78. He
denied any alcohol consumption since April. T.678. On examination,
he had a flat affect, depressed mood, and linear and appropriate
thought. Id. Dr. Southerland found Plaintiff’s depressive symptoms

-9-

to be uncontrolled and increased his Wellbutrin dosage to 300 mg
per day. Id.
Plaintiff saw NP Tantalo at RMHC on July 31, 2012, for
medication

management.

T.654-55.

Plaintiff

noted

that

it

was

difficult time for him as the anniversary of his daughter’s death
was

the

previous

week.

He

had

isolated

himself

and

stopped

attending group alcohol abuse counseling sessions, but he had
resumed

attendance

and

was

proud

that

he

had

not

relapsed.

Plaintiff’s mood was slightly dysphoric but appropriate overall,
his affect was full-range, and his thought processes were organized
and logical, with no suicidal ideation. Plaintiff’s memory was
intact, and his judgment and insight were adequate. Plaintiff’s
Wellbutrin was continued at 300 mg.
On August 3, 2012, Plaintiff saw Dr. Southerland in follow-up.
He reported going to the emergency room the night before. T.675.
Although he stated that he continued to experience depression on
the increased Wellbutrin, he was sleeping much better with Lunesta.
Plaintiff’s affect was normal.
On August 10, 2012, Plaintiff saw social worker and certified
alcohol and substance abuse counselor Pamela Smith (“Ms. Smith”) at
RMHC. Currently, he had mild symptoms of depression and lack of
motivation. He had relapsed on July 31, 2012, after four months of
sobriety.

Plaintiff

had

been

depressed

due

to

it

being

the

anniversary of his daughter’s murder. His drinking caused him to

-10-

develop

a

bad

migraine

so

he

went

to

the

hospital,

but

he

apparently blacked out and could not remember doing this. On
examination, Plaintiff was cooperative and well-groomed, with good
eye

contact,

logical

thought

process,

goal-directed

thought

content, intact short- and long-term memory, good insight and
impulsive

judgment.

His

mood

was

depressed

and

his

affect

appropriate. Ms. Smith noted that Plaintiff’s alcohol use was his
greatest barrier to stable mental and physical health. T.652.
Dr.

Southerland

also

saw

Plaintiff

on

August

10,

2012.

Plaintiff’s affect was normal. He stated he had not had alcohol
since his recent relapse. Dr. Southerland stressed that Plaintiff
should not drink any alcohol and that he needed to continue
therapy. T.673.
On August 29, 2012, Plaintiff saw NP Tantalo at RMHC and
observed that his mood had been generally stable for the past
month. T.656. He planned to obtain some seasonal road-work. He was
compliant with his medications and reported that his counseling
session with Ms. Smith had gone well and that he would meet with
her regularly. He said that his alcohol abuse treatment program
continued to provide adequate support. On examination, NP Tantalo
noted that Plaintiff’s mood was slightly dysphoric but appropriate
overall, his affect was full-range, and his thought processes were
organized and logical, with no suicidal ideation. Plaintiff’s
memory was intact, and his judgment and insight were adequate.

-11-

On September 28, 2012, Plaintiff informed Dr. Southerland that
he had not been feeling depressed or sad at all for the past
several weeks. T.669, 858-59. He was compliant with his Wellbutrin,
but did not need medication to help him sleep. He currently was
doing seasonal work for the Department of Transportation, which
kept him very busy. He had not had a drink for several weeks. On
examination,

Plaintiff

appeared

comfortable,

with

a

pleasant

demeanor and calm affect. Dr. Southerland noted that Plaintiff was
doing “really well” and that the “main factor” was that he was “NOT
drinking and is working.” T.669 (emphasis in original). Plaintiff’s
diabetes, hypertension, and depression all were well-controlled,
which

Dr.

Southerland

believed

was

directly

related

to

his

abstinence. Id.
On January 18, 2013, Plaintiff saw Dr. Hilary Yehling2 at
Culver Medical Group. Though he had stopped seeing his mental
healthcare providers, he had continued taking his Wellbutrin, and
his depressive symptoms were well controlled. T.666, 855. He was
not drinking any alcohol. He admitted to having a few drinks over
Christmas, but had not binged. He was walking a mile and a half
every day with his new dog.

2

Dr. Hilary Southerland and Dr. Hilary Yehling appear to be the same person,
as they share the same State professional license number. See Verification Search
f o r
H i l a r y
S o u t h e r l a n d ,
a v a i l a b l e
a t
http://www.nysed.gov/coms/op001/opsc2a?profcd=60&plicno=261538&namechk=SOU (last
accessed Mar. 4, 2016); Verification Search for Hilary Yehling, available at
http://www.nysed.gov/coms/op001/opsc2a?profcd=60&plicno=261538&namechk=YEH (last
accessed Mar. 4, 2016).

-12-

On February 6, 2013, Plaintiff had an appointment with an
endocrinologist. He reported that he had no depression, anxiety,
insomnia, memory loss, or pain. T.658-59.
On February 20, 2013, Plaintiff was discharged from RMHC.
T.631-32. After attending a few therapy sessions, being evaluated
by a psychiatrist, and starting a treatment program, he eventually
stopped attending appointments and the program, and failed to
respond to outreach from RMHC. His last appointment had been August
29, 2012.
On March 15, 2013, Plaintiff saw Dr. Karen Nead at CMG. He
said he was avoiding alcohol after experiencing pancreatitis in
February. T.852-53. Plaintiff was in no distress, with a normal
affect and linear and appropriate thought.
On June 14, 2013, Plaintiff returned to see Dr. Yehling.
T.662-63, 849-50. He had been hospitalized in April 2013, with
alcohol-inducted pancreatitis. His last drink was two weeks ago. He
tended to have difficulty with drinking when he was not working,
and he was not planning to do seasonal work again until the fall.
Plaintiff returned to CMG several times in July 2013, with
complaints of eye swelling, which was diagnosed as cellulitis.
T.837-48. On July 6, 2013, Plaintiff presented with a tremor, and
reported he had stopped drinking four days earlier, after consuming
alcohol daily and having several binges. T.842. He quit because he
soon was returning to seasonal work as a road-crew employee. On

-13-

examination, Plaintiff was in no acute distress, with appropriate
and pleasant mood and affect, normal speech, ability to converse
appropriately, good eye contact, no suicidal ideation, and fair
judgment. T.839, 843, 847.
Plaintiff was admitted to inpatient rehabilitation at Unity
Chemical Dependency Center on July 18, 2013, and completed the
program on August 1, 2013. Dr. Tisha Smith, an addiction therapist,
recommended that he continue with treatment. T.738.
On September 5, 2013, Plaintiff told his primary care doctor
at CMG that he only had been drinking alcohol occasionally and had
not binged since June of 2013. T.834.
Plaintiff was hospitalized on October 2, 2013, for alcohol
withdrawal symptoms (tremors, sweating, anxiety, abdominal pain,
and nausea. T.743, 775-810. He had been drinking 500 to 700 mL of
rum each day, and had imbibed 300 mL of rum the night before his
admission. He reported that he had no psychiatric issues. On
examination he was cooperative with appropriate mood and affect.
T.809. On discharge, it was recommended that he admit himself to an
inpatient chemical dependency program the following day. T.776,
783.
On October 9, 2013, he was admitted to a one-week inpatient
detoxification program. T.743. He told the doctor that on October
8, 2013, he had consumed 450 mL of rum.

-14-

Plaintiff

was

hospitalized

from

October

14,

2013,

to

October 20, 2013, due to acute pancreatitis, likely caused by
alcohol abuse. T.740-74. On examination, Plaintiff was alert,
oriented, and cooperative, in mild distress because of pain, with
an appropriate mood and affect. T.772. On discharge, he was told to
completely stop all alcohol consumption.
On

November

19,

2013,

Plaintiff

saw

his

primary

care

physician, Dr. Michael Winter, complaining of radiating back pain
down his left leg. T.815-17, 829-32. Straight-leg-raising test was
positive,

with

tenderness

to

palpation

at

the

left

stenocleidomastoid and paraspinal muscles but no focal tenderness
at

the

spinous

processes.

Dr.

Winter

diagnosed

sciatica

and

prescribed physical therapy and naproxen. Plaintiff also was having
difficulty

falling

asleep

but

not

staying

asleep,

for

which

Dr. Winter recommended melatonin. On examination, Plaintiff was in
no

distress,

with

normal

affect,

and

linear

and

appropriate

thought.
On January 23, 2014, Plaintiff returned to Dr. Winter

and

reported that he had been consuming large quantities of alcohol in
November and December of 2013. T.826. His last drink had been on
January 10th. Plaintiff believed his “ego” was the trigger, as he
would be abstinent for months and then think he could have one
drink. He was feeling depressed two to four days a week with
symptoms

of

anhedonia.

On

examination,

-15-

Plaintiff

was

in

no

distress, with normal affect and linear and appropriate thought.
T.827. Dr. Winter again recommended alcohol cessation.
B.

Medical Opinion Evidence
1. Consultative Psychologist

On

May

11,

2012,

consultative

psychologist

Lynn

Lambert, D.Psy. examined Plaintiff at the Commissioner’ request.
Plaintiff reported that he was currently attending an outpatient
drug and alcohol treatment program. On examination, Plaintiff had
a dysphoric, depressed, and moderately anxious affect, and a
dysthymic mood. T.535. Dr. Lambert observed that he “worked very
hard” on the tests regarding his attention and concentration and
his recent and remote memory. She found that he had “intact”
attention and concentration and “mostly intact” recent and remote
memory. T.535. He had fluent and clear speech, coherent and goal
directed

thought-processes,

“[a]verage”

cognitive

functioning,

“[f]air to good” insight, and “[f]air” judgment. T.535. Plaintiff
reported

to

Dr.

Lambert

that

he

often

was

so

depressed

and

overwhelmed with “realistic life stressors and excessive worry”
that he did not even think to eat, could not focus his mind to plan
meals, and had little to no appetite. T.535. He occasionally did
laundry and occasionally took public transportation, though he
struggled to do shopping as a result of high anxiety levels, a
tendency to lose focus when overwhelmed with stressors, and a
tendency to have to trouble planning ahead. T.535. Plaintiff told

-16-

Dr. Lambert that he had “no socialization whatsoever.” Although his
mother, with whom he lived, was supportive, he had little to no
contact with extended family. T.535-36. Plaintiff spent his time
occasionally watching television and playing online computer games,
going to various appointments, attending his drug and alcohol
treatment

program

Department

of

applications,

twice

Social
and

weekly,

completing

Services

occasionally

and

going

paperwork

unemployment
to

AA

meetings.

for

the

benefit
T.536.

Dr. Lambert diagnosed Plaintiff with (1) adjustment disorder, with
mixed anxiety and depressed mood; and (2) “alcohol dependence and
only very recent reported remission.”3 T.536. She stated that his
prognosis was “guarded” given the level of daily psychosocial
stress, “reported and apparent inability to manage psychosocial
stressors without anxiety and depressive symptoms getting the
better of him”; lack of social support system; and “[i]ncrease in
diabetes and other medical problems in tandem with high levels of
psychosocial stress.” T.536. Dr. Lambert found that Plaintiff is
able to manage his own funds. Id.
2.
On

State Agency Review Psychiatrist

May

21,

2012,

state

agency

review

psychiatrist

Dr. R. Altmansberger reviewed Plaintiff’s medical records, T.580-

3

As noted in the summary of medical evidence, Plaintiff was admitted to
Syracuse Behavioral Health from April 13, 2012, to April 21, 2012, for alcohol
withdrawal and stabilization services (detoxification). T.558, 560. This was
approximately a month before his appointment with Dr. Lambert.

-17-

93, and stated, “Impairment(s) Not Severe[.]” T.580. Accordingly,
Dr.

Altmansberger

did

not

complete

a

Rating

of

Functional

Limitations with regard to the “paragraph B” and “paragraph C”
criteria. See T.590-93.
II. The ALJ’s Decision
A.

Regulatory Standards

The

Commissioner

evaluation

process

has

for

promulgated

determining

a

five-step

whether

an

sequential

individual

is

disabled. See 20 C.F.R. §§ 404.1520(a) and 416.920(a). Where, as
here, there is evidence of a claimant’s drug or alcohol abuse
(“DAA”), the disability inquiry does not end with the five-step
sequential evaluation. If the claimant is found disabled, the ALJ
must determine whether the DAA is a contributing factor material to
the

determination

of

disability.

20

C.F.R.

§§

404.1535(a),

416.935(a). In this Circuit, the claimant bears the burden of
proving that his DAA is not material to a determination that he is
disabled. Cage v. Comm’r of Soc. Sec., 692 F.3d 118, 123 (2d Cir.
2012). The Commissioner’s finding on DAA materiality may be based
on the record as a whole and does not require a medical opinion
specifically addressing this issue. Id. at 126-27.
B.

The ALJ’s Disability and DAA Findings

At step one, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since June 30, 2011, the alleged onset
date. At step two, the ALL found that Plaintiff has the “severe”
-18-

impairments of history of sciatica, adjustment disorder with mixed
anxiety

and

dependence.

depressed
T.15.

With

mood,

depressive

regard

to

disorder,

Plaintiff’s

and

heart

alcohol
disease,

pancrceatitis, gastroesophageal reflux disease, migraines, diabetes
and hypertension, the ALJ found that these conditions do not cause
more than minimal limitation in Plaintiff’s ability to perform
basic work activities and are therefore not considered “severe.”4
At step three, the ALJ determined that Plaintiff does not have
an impairment or combination of impairments that meets or medically
equals the criteria of any listed impairment. The ALJ particularly
considered Listings 12.04 and 12.09, and found that Plaintiff has
“moderate” restrictions in activities of daily living and in social
functioning, and “marked” limitations in maintaining concentration,
persistence or pace. The ALJ also stated that Plaintiff “has
experienced one to two episodes of decompensation. The record shows
multiple relapses of alcohol abuse.” However, because Plaintiff’s
mental impairments, including DAA, do not cause at least two
“marked” limitations or one “marked” limitation and “repeated”
episodes of decompensation, the “paragraph B” criteria of Listings

4

Plaintiff does not challenge this finding on appeal.

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12.04 and 12.09 are not satisfied.5 The ALJ also summarily found
that the “paragraph C” criteria were not satisfied.
The ALJ determined Plaintiff’s residual functional capacity
(“RFC”), including his alcohol abuse, allows him to perform light
work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), with
some additional postural limitations.6 Plaintiff can understand,
remember,

and

carry

out

simple

instructions

and

tasks;

can

occasionally interact with co-workers and supervisors; can rarely
work in conjunction with co-workers; can have little to no contact
with the general public; is unable to work in a low stress work
environment; and is unable to consistently maintain concentration
and focus for up to two hours at a time.
At step four, the ALJ noted that Plaintiff has past relevant
work as an auto glass worker (DOT# 865.684-01 O; semi-skilled SVP
4; medium exertional work), which he is no longer able to perform.
At step five, the ALJ relied on the VE’s hearing testimony to
determine

that

considering

Plaintiff’s

age,

education,

work

5

The ALJ’s factual findings regarding the episodes of decompensation are
unclear and contain an apparent internal consistency. The ALJ appears to be
equating Plaintiff’s alcohol binges and subsequent hospitalizations with episodes
of decompensation, and it is clear from the record that Plaintiff has experienced
well more than “one to two” such episodes. In the next sentence, the ALJ
curiously states that Plaintiff has experienced “multiple” relapses. It is
unclear how the ALJ found that such “multiple” relapses, which occurred as
frequently as every other month, could not be considered “repeated.” However,
Plaintiff does not advance such an argument on appeal.
6

Because Plaintiff does not challenge the physical component of the ALJ’s
RFC assessment, the Court omits discussion of it here.

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experience, and RFC including DAA, there are no jobs that exist in
significant numbers in the national economy that he can perform.
Because of Plaintiff’s DAA, the ALJ continued past step five
and

found

that

if

he

ceased

abusing

alcohol,

the

remaining

limitations would cause more than a minimal impact on his ability
to perform basic work activities. Therefore, he would continue to
have a severe impairment or combination of impairments, but not one
that

would

meet

or

medically

equal

a

listed

impairment.

Specifically, with regard to the “paragraph B” criteria of Listings
12.04 and 12.09, Plaintiff would have only “mild” restriction in
activities of daily living; “moderate” difficulties in social
functioning; “mild” difficulties in maintaining concentration,
persistence

or

pace;

and

he

would experience no

episodes

of

decompensation.
The ALJ then determined Plaintiff’s RFC without alcohol abuse
and found that if he stopped drinking, he would have same physical
RFC, and would still be able to occasionally interact with coworks, to rarely work in conjunction with co-workers, to and have
little to no contact with the general public. However, the ALJ
found, Plaintiff would be able to work in a low stress work
environment

and

would

be

able

to

consistently

maintain

concentration and focus for up to two hours at a time.
Although a person with the above RFC still could not perform
Plaintiff’s past relevant work, the VE had testified that such an

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individual

would

be

able

to

perform

the

requirements

of

representative occupations such as battery tester and gate guard.
The

ALJ

relied

on

the

VE’s

testimony

to

find

Plaintiff’s

impairments not disabling in the absence of his alcohol abuse.
DISCUSSION
I. Standard of Review
When considering a claimant’s challenge to the decision of the
Commissioner denying benefits under the Act, a district court must
accept the Commissioner’s findings of fact, provided that such
findings are supported by “substantial evidence” in the record.
See 42 U.S.C. § 405(g) (the Commissioner’s findings “as to any
fact, if supported by substantial evidence, shall be conclusive”).
The reviewing court nevertheless must scrutinize the whole record
and examine evidence that supports or detracts from both sides.
Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1998) (citation
omitted). “The deferential 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)). “Failure to apply
the correct legal standards is grounds for reversal.” Townley, 748
F.2d at 112.

-22-

II. Plaintiff’s Contentions
A.

Error in Assessing Plaintiff’s RFC in the Absence of
Alcohol Abuse

Plaintiff contends that the ALJ erred in assessing his RFC in
the absence of alcohol abuse and in finding that his alcohol abuse
was “material” to the finding of disability.
1.

Error in Evaluating Dr. Lambert’s Opinion

According to Plaintiff, the ALJ mischaracterized Dr. Lambert’s
opinion as relating to a period of time when Plaintiff was actively
abusing

alcohol.

The

ALJ

specifically

noted

that

Plaintiff

“reported [to Dr. Lambert] that he was currently attending an
outpatient drug and alcohol treatment program.” T.22. Previously,
on

April

13,

2012,

Plaintiff

had

entered

an

inpatient

9-day

detoxification program. He was discharged April 21, 2012, which was
approximately three weeks before Dr. Lambert examined him on
May 11, 2012, and then began the outpatient treatment program.
Dr. Lambert noted that Plaintiff’s alcohol dependence was in a
“very recent reported remission.” T.536. Thus, it appears clear
that Dr. Lambert’s opinion was issued during a period, albeit
brief, during which Plaintiff was abstinent from alcohol.
Plaintiff relatedly argues that Dr. Lambert’s opinion contemplates
a level of functioning that was significantly more impaired than
the RFC that the ALJ assessed for Plaintiff in the absence of
alcohol abuse.

The Court disagrees, as explained further below.

-23-

The crucial portion of the ALJ’s RFC assessment in the absence
of alcohol abuse—the part that determined whether Plaintiff was
disabled—is that in the absence of alcohol abuse, the ALJ found
that

Plaintiff

has

the

ability

to

consistently

maintain

concentration and focus for up to 2 hours at a time, and work in a
low stress environment (i.e., one which has no supervisory duties,
requires no independent decision-making, has no strict production
quotas,

and

has

only

minimal

changes

in

work

routine

and

processes). See T.21-23. Dr. Lambert opined that her
current findings do appear consistent with [Plaintiff’s]
allegations of serious stress-related problems and
substance
abuse
problems,
likely
to
compromise
functioning at this time. Although [Plaintiff] appeared
very capable of performing simple tasks independently and
maintaining attention and concentration during basic
activities, he does appear moderately to seriously
challenged to learn new tasks and perform complex tasks
independently, relate adequately with others, and
appropriately deal with stress at this time, all due to,
as stated earlier, daily high and reportedly overwhelming
levels of psychosocial stress, as well as only recently
having achieved sobriety.
T.536

(emphases

supplied).

Dr.

Lambert’s

clinical

findings

regarding Plaintiff’s concentration and recent and remote memory
skills, see T.535,7 support the ALJ’s finding that Plaintiff, when
he

is

not

abusing

alcohol,

has

the

ability

to

maintain

concentration and focus for up to two hours at a time. In addition,
support for this is found in Dr. Lambert’s observation that he
7

Plaintiff correctly performed all counting, calculations, and serial 3s
exercises, remembered 3 of 3 objects immediately and after five minutes, and
recited 3 and 4 digits forward and 2 of 3 digits backwards. T.535.

-24-

“appeared very capable” of performing simple tasks and maintaining
focus. This also is consistent with the ALJ’s restriction of
Plaintiff to work involving simple instructions and tasks.
Plaintiff argues that Dr. Lambert’s finding that he was
“moderately to seriously

challenged” in his abilities to “relate

adequately with others, and appropriately deal with stress at this
time[,]” T.536, contradicts the ALJ’s assessment that Plaintiff can
work in a low stress environment and occasionally interact with coworkers.

However,

the

Court

cannot

find

that

the

ALJ

was

unreasonable in interpreting this opinion to mean that these
challenges would be lessened if Plaintiff maintained sobriety. It
should be noted that at the time of Plaintiff’s appointment with
Dr. Lambert, he only had been sober for at most three weeks; as
Dr. Lambert noted, his alcohol dependence was in “only very recent
reported remission.” T.536. Dr. Lambert also consistently referred
to

Plaintiff’s

problems,”

not

“stress-related
to

his

problems

medically

and

substance

determinable

abuse

impairment

of

adjustment disorder, as being the factors seriously compromising
his functioning. E.g., T.536. It was not unreasonable for the ALJ
to

conclude

that

if

Plaintiff’s

alcohol

abuse

problems

were

eliminated from the picture, Dr. Lambert’s opinion allowed for the
RFC without DAA that the ALJ assessed.
The Court agrees with the Commissioner that the ALJ’s RFC
without DAA and his reading of Dr. Lambert’s opinion are supported

-25-

by the other medical evidence of record, including Plaintiff’s
subjective

statements

about

his

symptoms

to

his

doctors

and

therapists, and their clinical observations of him. See generally
Defendant’s Memorandum of Law (Dkt #12-1) at 25-27 (compiling
evidence; citations to record omitted). For instance, he almost
always was noted to have a full, appropriate, congruent, calm, or
normal affect. T.226-27, 229, 619, 628, 652, 654, 656, 669, 673,
676, 682, 772, 809, 827, 831, 835, 843, 847, 853); but see T.259
(anxious); T.678 (flat). Likewise, he was usually found to have
fair or fair-to-good insight and judgment, although there is one
finding of “somewhat poor” insight and one finding of “impulsive”
judgment. T.227, 652.
While Plaintiff draws attention to statements he made to his
treatment providers in July of 2012, about increasing symptoms of
depression, but neglects to mention that Dr. Southerland increased
Plaintiff’s Wellbutrin from 150 mg to 300 mg at that time. Within
a month or two, Plaintiff reported no longer feeling depressed.
See, e.g., T.656 (8/29/12; reporting to NP Tantalo that his “mood
has been generally stable since” last month), T.669 (9/28/12;
reporting to Dr. Yehling that he was “[n]ot feeling at all down,
depressed or sad for several weeks”). Going forward, Plaintiff
continued to report good control of his depression on Wellbutrin.
See T.658, 666, 800, 842. While he did note anxiety on October 6,
2013, it was a symptom of alcohol withdrawal following a binge.

-26-

Likewise, he complained of being depressed several days a week in
January 2014, but this was very soon after he reported several
weeks of drinking alcohol in large quantities. T.826.
Most tellingly, Plaintiff’s treatment providers’ observations
of Plaintiff when he was abstinent support the ALJ’s RFC without
alcohol abuse. For instance, in September 2012, Dr. Yehling stated
that Plaintiff was doing “really well,” primarily due to the fact
he was “NOT drinking.” T.669 (emphasis in original). Similarly, in
January 2012, and March 2012, Dr. Southerland opined that alcohol,
along

with

diabetes,

were

Plaintiff’s

main

problems.

T.244.

However, Dr. Yehling observed in September 2012, that Plaintiff’s
diabetes

mellitus,

hypertension,

and

depression

were

“well

controlled . . . all of which [she] think[s] are directly related
to his abstinence.” T.669. In August 2012, one of Plaintiff’s
therapists noted that Plaintiff’s alcohol use was his “greatest
barrier for [sic] stable mental and physical health.” T.652.
The Court finds that the ALJ did not commit legal error in
evaluating Dr. Lambert’s opinion, and his interpretation of it is
supported by substantial evidence, i.e., “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). Substantial evidence likewise supports
the

ALJ’s

conclusion

that,

if

Plaintiff

were

abstinent

from

alcohol, the limitations from his impairments would improve to the

-27-

point that he would not be disabled. Faced with this quantum of
evidence, the Court must uphold the ALJ’s findings and ultimate
determination that he Plaintiff would not be disabled were he to
discontinue his abuse of alcohol. See Cage, 692 F.3d at 127.
B.

Credibility Assessment

Plaintiff also urges reversal on the basis that the ALJ erred
in evaluating the credibility of his subjective complaints. As
noted

above,

assessment

of

Plaintiff
his

has

not

physical

taken

RFC.

issue

with

Accordingly,

the

ALJ’s

Plaintiff’s

credibility argument necessarily is limited to the ALJ’s evaluation
of the effects of his mental impairments. Here, the ALJ concluded
that Plaintiff’s statements concerning the limiting effects of his
mental impairments when he was abusing alcohol were credible, but
were not entirely credible when he testified his limitations during
periods that he was abstinent from alcohol. See T.17, 23.
According to Plaintiff, the ALJ drew an adverse inference
against him based on his completion of an inpatient detoxification
and treatment program. In particular, Plaintiff notes the comment
by Dr. Smith that Plaintiff had completed her clinic’s program
through tremendous discipline and self-discovery. T.20 (citing
T.738). The ALJ cited this comment as one piece of evidence to
support

his

finding

that

Plaintiff

would

have

only

mild

difficulties with maintaining concentration, persistence, and pace,
if he ceased abusing alcohol T.20. The Court agrees with Plaintiff

-28-

that it is not proper for an ALJ to take a claimant’s “willingness
and ability to participate in his own psychiatric care and use[ ]
it against him.” Kane v. Astrue, No. 11-CV-6368 MAT, 2012 WL
4510046, at *17 (W.D.N.Y. Sept. 28, 2012). Here, however, the ALJ
cited to other instances of Plaintiff’s improved functioning in the
absence of alcohol abuse to support his analysis of the “paragraph
B” criteria. There accordingly was substantial evidence for this
finding, notwithstanding the ALJ’s reliance on the comment from
Plaintiff’s addiction therapist Dr. Smith.
Plaintiff’s own statements about the effects of alcohol abuse
on his social functioning support the ALJ’s credibility assessment.
For instance, in his Function Report, when asked if he had any
problems getting along with family, friends, neighbors, or others,
he

replied

“yes”

and

the

explanation

he

gave

was,

“due

to

alcoholism.” T.187. He did not cite other factors besides his
alcohol abuse as affecting his ability to relate with people. In
February 2012, Plaintiff reported that his drinking was interfering
with his job, and noted that his hours had been reduced to parttime because of “[alcohol] use and missing a lot of work.” T.228.
Furthermore, the only time Plaintiff engaged in an act of self-harm
was while he was extremely intoxicated. See T.228, 578.
The Court does not find that the ALJ mischaracterized the
record. Furthermore, the Court must agree with the Commissioner
that

substantial

evidence

underpins

-29-

the

ALJ’s

credibility

assessment. Accordingly, the Court finds no basis to reverse the
ALJ’s

decision

to

discount

Plaintiff’s

subjective

complaints

regarding his limitations while not actively drinking. See Aponte
v. Sec’y, Dep’t of Health & Human Servs. of U.S., 728 F.2d 588, 591
(2d Cir. 1984) (upholding ALJ’s decision to discount claimant’s
credibility because “there was substantial evidence in the record
as a whole to support the Secretary’s determination that Aponte was
not disabled by reason of her physical impairments or pain”).
CONCLUSION
For

the

foregoing

reasons,

the

Court

finds

that

the

Commissioner’s determination was not erroneous as a matter of law
and

was

supported

by

substantial

evidence.

Accordingly,

the

Commissioner’s determination is affirmed. Defendant’s Motion for
Judgment on the Pleadings (Dkt #12) is granted, and Plaintiff’s
Motion for Judgment on the Pleadings (Dkt #10) is denied. The Clerk
of the Court is directed to close this case.
SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

March 8, 2016
Rochester, New York.

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