Smith v. Colvin

Filing 19

DECISION AND ORDER granting 13 Plaintiff's Motion for Judgment on the Pleadings to the extent that this matter is remanded for further administrative proceedings consistent with this Decision and Order; denying 15 Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 5/23/17. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
LORENE SMITH,
No. 6:16-cv-06320(MAT)
DECISION AND ORDER

Plaintiff,
-vsNANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
INTRODUCTION

Represented by counsel, Lorene Smith (“Plaintiff”) instituted
this action pursuant to Title XVI of the Social Security Act (“the
Act”),

seeking

review

of

the

final

decision

of

the

Acting

Commissioner of Social Security (“the Commissioner”)1 denying her
application for Supplemental Security Income (“SSI”). This Court
has jurisdiction over the matter pursuant to 42 U.S.C. §§ 405(g),
1383(c).
PROCEDURAL STATUS

Plaintiff

protectively

filed

an

application

for

SSI

on

November 5, 2012, alleging disability beginning January 6, 1992;
this claim was denied initially on February 19, 2013. Plaintiff

1

Nancy A. Berryhill is now the Acting Commissioner of Social Security.
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A.
Berryhill should be substituted for Acting Commissioner Carolyn W. Colvin as the
defendant in this suit. No further action needs to be taken to continue this suit
by reason of the last sentence of section 205(g) of the Social Security Act, 42
U.S.C. § 405(g).

requested a hearing, which was held before administrative law judge
Brian Kane (“the ALJ”) on September 12, 2014. (T.41-83).2 Plaintiff
appeared

with

her

attorney

and

testified,

as

did

impartial

vocational expert Carol G. McManus (“the VE”). The ALJ issued an
unfavorable decision on December 22, 2014. The Appeals Council
denied Plaintiff’s request for review on March 24, 2016, making the
ALJ’s decision the final decision of the Commissioner. This timely
action followed.
The parties have cross-moved for judgment on the pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. The
Court adopts and incorporates by reference herein the undisputed
and comprehensive factual summaries contained in the parties’
briefs. The record will be discussed in more detail below as
necessary to the resolution of this appeal. For the reasons that
follow, the Commissioner’s decision is reversed, and the matter is
remanded for further administrative proceedings.
ANALYTICAL FRAMEWORK
To

qualify

for

disability

benefits

under

42

U.S.C.

§ 423(d)(1)(A), a claimant must establish his “inability to engage
in any substantial gainful activity by reason of any medically
determinable physical or mental impairment . . . which has lasted
or can be expected to last for a continuous period of not less than

2

Citations in parentheses to “T.” refer to pages from the certified
transcript of the administrative record.

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twelve months.” Butts v. Barnhart, 388 F.3d 377, 383 (2d Cir.
2004).

The

Commissioner’s

regulations

set

forth

a

five-step

sequential evaluation that the ALJ must follow when evaluating
disability claims. See 20 C.F.R. §§ 404.1520, 416.920. In cases
where there is medical evidence of drug addiction or alcoholism,
the ALJ is required to perform a secondary analysis. Pursuant to
42

U.S.C.

§

423(d)(2)(C),

even

if

a

claimant

qualifies

for

disability benefits under the five-step analysis, the 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); see also

20 C.F.R. §§ 416.935(a),

404.1535(a). In determining whether a claimant’s alcohol or drug
abuse is a “material” factor, an ALJ is required to apply the
following process codified at 20 C.F.R. §§ 416.935, 404.1535(b):
(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.

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(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.
20 C.F.R. §§ 416.935(b), 404.1535(b). “The claimant bears the
burden

of

proving

that

drug

or

alcohol

addiction

was

not

a

contributing factor material to the disability determination.”
Newsome v. Astrue, 817 F. Supp. 2d 111, 126–27 (E.D.N.Y. 2011)
(citing White v. Comm’r of Soc. Sec., 302 F. Supp.2d 170, 173
(W.D.N.Y. 2004); Parra v. Astrue, 481 F.3d 742, 748 (9th Cir. 2007)
(internal quotations omitted); Mittlestedt v. Apfel, 204 F.3d 847,
852 (8th Cir. 2000); Doughty v. Apfel, 245 F.3d 1274, 1280 (11th
Cir. 2001); Brown v. Apfel, 192 F.3d 492, 498 (5th Cir. 1999)).
DISCUSSION
Plaintiff contends that the ALJ’s materiality finding was
legally erroneous and unsupported by substantial evidence because
he

failed

to

first

determine

her

physical

impairments

with

substance and alcohol abuse before assessing which, if any, of her
physical impairments would remain if she stopped abusing drugs and
alcohol.

Plaintiff

administrative

seeks

proceedings;

remand
she

of

the

case

does

not

seek

for

further

reversal

and

calculation for payment of benefits. As discussed further herein,
the Court agrees that the ALJ erred by not performing an RFC
assessment regarding Plaintiff’s physical limitations.
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Here, at step two of the five-step sequential evaluation
process, the ALJ determined that Plaintiff had the following
“severe” impairments: Guillain-Barré Syndrome (“GBS”),3 obesity,
alcoholism, and cocaine dependence. (T.36). The ALJ then found that
while abusing substances, Plaintiff met Section 12.09 of 20 C.F.R.
Part 404, Subpart P, Appendix 1 (“the Listings”). (T.37). Unlike
other disorders in the Listings, Ҥ 12.09 does not have its own set
of requirements.” Pettit v. Apfel, 218 F.3d 901, 902 (8th Cir.
2000) (citing 20 C.F.R. pt. 404, subpt. P, app. 1, pt. A, § 12.00A
(“The structure of the listing for substance addiction disorders,
12.09, is also different from that for the other mental disorder
listings. Listing 12.09 is structured as a reference listing; that
is, it will only serve to indicate which of the other listed mental
or physical impairments must be used to evaluate the behavioral or
physical

changes

resulting

from

regular

use

of

addictive

substances.”). Under the version of the Regulations in effect at
the time of the ALJ’s decision, Section 12.09 provided as follows:
12.09 Substance Addiction Disorders: Behavioral changes
or physical changes associated with the regular use of
substances that affect the central nervous system. The
required level of severity for these disorders is met
when the requirements in any of the following (A through
I) are satisfied.

3

GBS is “a disorder in which the body's immune system attacks part of the
peripheral nervous system. The first symptoms of this disorder include varying
degrees of weakness or tingling sensations in the legs. In many instances the
symmetrical weakness and abnormal sensations spread to the arms and upper body.”
https://www.ninds.nih.gov/Disorders/Patient-Caregiver-Education/Fact-Sheets/Gu
illain-Barr%C3%A9-Syndrome-Fact-Sheet (last accessed May 22, 2017).

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A. Organic mental disorders. Evaluate under
12.02.
B. Depressive syndrome. Evaluate under 12.04.
C. Anxiety disorders. Evaluate under 12.06.
D. Personality disorders. Evaluate under
12.08.
E. Peripheral neuropathies. Evaluate under
11.14.
F. Liver damage. Evaluate under 5.05.
G. Gastritis. Evaluate under 5.00.
H. Pancreatitis. Evaluate under 5.08.
I. Seizures. Evaluate under 11.02 or 11.03.
20 C.F.R. § Pt. 404, Subpt. P, App. 1, § 12.09(A)-(I)). Therefore,
to find that Plaintiff met the requirements for § 12.09, the ALJ
had to find that Plaintiff’s alcohol and substance addiction
resulted in at least one of a number of other specified listings.
The

ALJ

determined

that

Plaintiff’s

“mental

impairments,

including the substance use disorders, meet listing 12.09,” because
the

“‘paragraph

claimant

has

A’

criteria

peripheral

[sic]

are

neuropathies

satisfied

because

(12.09E).”

the

(emphasis

supplied). This finding is legally erroneous and unsupported by
substantial evidence for several reasons. First, it is unclear to
this Court how Plaintiff’s mental impairments are pertinent to, are
caused by, or have symptoms of, her “peripheral neuropathies.” The
“peripheral neuropathies” to which the ALJ refers, based on the
record, are the symptoms of Plaintiff’s GBS, which she developed
following having pneumonia at age 19. (T.255). She was hospitalized
for approximately seven months and required a tracheostomy; since
that time, she reports, her legs have felt achy and weak, and she
cannot wiggle her toes. (E.g., T.255).
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Second, there is no “Paragraph A” criteria in Listing 12.09.
Nor is there any “Paragraph A” criteria in Listing 11.14, under
which the “peripheral neuropathies” referenced in Section 12.09E
are to be “[e]valuate[d].” 20 C.F.R. § Pt. 404, Subpt. P, App. 1,
§ 12.09(E).
Third,

the

ALJ

did

not

evaluate

Plaintiff’s

“peripheral

neuropathies” under the correct listed impairment, which is Section
11.14, as specified in Section 12.09E. Section 11.14 states as
follows
Peripheral neuropathies. With disorganization of motor
function as described in 11.04B, in spite of prescribed
treatment.
20 C.F.R. § Pt. 404, Subpt. P, App. 1, § 11.14. Section 11.04B in
turn states as follows:
Significant and persistent disorganization of motor
function in two extremities, resulting in sustained
disturbance of gross and dexterous movements, or gait and
station (see 11.00C).
20 C.F.R. § Pt. 404, Subpt. P, App. 1, § 11.14B.
The ALJ then proceeded to assess what he termed the “paragraph
B” criteria, and found that Plaintiff had “marked” limitations in
maintaining

concentration,

persistence,

or

pace;

and

“marked”

limitations in social functioning, when she is abusing substances
and

alcohol.

However,

it

is

unclear

which

listed

mental

impairment’s “paragraph B” were utilized by the ALJ.
After determining that Plaintiff had “marked” limitations in
the domains of social functioning and maintaining concentration,
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persistence, or pace, the ALJ concluded that Plaintiff “met”
Listing 12.09. At this point, the ALJ ceased applying the five-step
sequential evaluation4 and moved on to assessing the “materiality”
of Plaintiff’s substance and alcohol abuse disorders.
Significantly,

at

no

point

during

the

initial

five-step

evaluation process did the ALJ assess the limitations arising from
Plaintiff’s “severe” physical impairments of GBS and obesity.
Indeed, the ALJ did not assess Plaintiff’s physical residual
functional capacity (“RFC”)—with or without substance and alcohol
abuse—at any point during the decision. Instead, the ALJ summarily
concluded that Plaintiff would be capable of performing sedentary
work if she stopped abusing alcohol and cocaine. This was not a
correct application of the Regulations pertaining to assessment of
the “materiality” of a claimant’s substance abuse disorder on her
disability claim. See, e.g., Newsome v. Astrue, 817 F. Supp.2d 111,
134-35 (E.D.N.Y. 2011).
In Newsome, the ALJ first determined that if the claimant’s
alcohol abuse was removed from the equation, any mental impairments
caused by his alcoholism and

seizure disorder would resolve. 817

F. Supp.2d at 134. The district court did not take issue with this
finding, which it found was supported by substantial evidence. Id.
However, the district court found, the ALJ “did not follow the

4

However, as detailed above, the ALJ’s determination that Plaintiff met
Listing 12.09 is flawed.

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proper procedure of going through the five-step process before
making a materiality determination with respect to the [claimant]’s
impairments that cause physical limitations[,]” id., including
Newsome’s symptoms of neuropathy, deep vein thrombosis, and pain
following

a

hip

fracture.

“Rather

than

first

determining

[Newsome]’s present physical limitations and then assessing which
would remain if [Newsome] stopped drinking alcohol, the ALJ made an
RFC assessment that [Newsome] could perform sedentary work without
taking

into

account

any

disabling

symptoms

causing

physical

limitations that he determined were attributable to [Newsome]’s
alcohol abuse.” Id.
Contrary to the Commissioner’s contention, Newsome is directly
apposite to this case. The ALJ here made exactly the same error
that was made by the administrative law judge in Newsome. The
Commissioner attempts to distinguish Newsome by arguing that the
ALJ in that case was required to consider the claimant’s physical
limitations in the presence of substance abuse only because the ALJ
did not find the claimant met a listing. This is based on a
misreading of Newsome. At no point in that case did the district
court suggest that the ALJ would not have erred had he found that
the claimant met a listing first. See Newsome, 817 F. Supp.2d at
134-35. Rather, as is the case here, factors crucial to the ALJ’s
decision—namely, whether the claimant’s and Plaintiff’s physical or
exertional

limitations

permitted

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the

performance

of

sedentary

work—were not set forth with sufficient specificity to enable this
Court or the Newsome court to decide whether those determinations
were supported by substantial evidence. Id. (citing Ferraris v.
Heckler, 728 F.2d 582, 587 (2d Cir. 1984) (“On the basis of the
ALJ’s insufficient findings here, we cannot determine whether his
conclusory statement that Ferraris could carry out sedentary work
is supported by substantial evidence.”)).
The
required

Commissioner

also

to

Plaintiff’s

consider

argues

that

the

physical

ALJ

here

was

not

in

the

limitations

presence of substance abuse because the ALJ found Plaintiff met
Listing 12.09. This argument is meritless, and the Court has found
no legal authority to support it. Moreover, as discussed above in
this

Decision

and

Order,

the

ALJ

failed

to

properly

apply

Section 12.09 of the Listings.
As

the

district

court

explained

in

Newsome,

“[a]lthough

applying the wrong legal standard might not require reversal if the
error did not affect the outcome, that is not the situation
here[,]” id. at 135, where “[u]nlike the ALJ’s findings, the RFC
assessments by the [claimant]’s treating and examining physicians
are based on all of the [claimant]’s symptoms, not just those that
exist independent of the alcohol abuse . . . .” Id.; see also id.
at 137 (“While the medical evidence reflects that [Newsome]’s
alcohol abuse was a contributing factor to his abdominal pain and
the numbness and pain in his lower extremities, the record is

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equally clear that none of the treating physicians expressed an
opinion regarding what the severity of [Newsome]’s pain would be if
he abstained from alcohol consumption. Thus, the ALJ's conclusion
that

all

of

[Newsome]’s

impairments

that

caused

physical

limitations would be resolved if he stopped drinking was nothing
more than a guess.”). Such is the case here. The ALJ’s conclusion
that, if Plaintiff stopped abusing alcohol and drugs, all of her
impairments that cause physical limitations and symptoms would
resolve is based on pure speculation. It certainly is not based on
any medical opinion, because the only opinions in the record, from
consultative physicians Harbinder Toor, M.D., and Karl Eurenius,
M.D., are based on all of the Plaintiff’s symptoms; neither opinion
separates out those symptoms and limitations that exist independent
of her alcoholism and drug abuse. Thus, as in Newsome, there is a
lack of substantial evidence in the record supporting the ALJ’s RFC
assessment of Plaintiff’s physical limitations. Newsome, 817 F.
Supp.2d at 134. Therefore, the Commissioner’s decision must be
reversed and the matter remanded. Id. at 134-35 (citing Orr v.
Barnhart, 375 F. Supp.2d 193, 201 (W.D.N.Y. 2005) (remanding to
require the ALJ “to consider the ill effects that [claimant]’s
alcoholism had on her impairments and limitations” when determining
the issue of disability and “only after finding that [the claimant]
is disabled, determine which impairments would remain if [the
claimant] stopped using alcohol”); Frederick v. Barnhart, 317 F.

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Supp.2d 286, 293 (W.D.N.Y. 2004) (reversing ALJ’s decision where
“the ALJ never determined whether, absent alcohol abuse, [the
claimant]’s mental impairments would still meet the severity of
Listing 12.04 . . .”); Lunan v. Apfel, No. 98–CV–1942, 2000 WL
287988, at *8 (W.D.N.Y., Mar. 10, 2000) (reversing ALJ’s decision
where ALJ failed to determine whether the claimant was disabled
prior to finding that alcoholism was a contributing factor material
thereto)).
CONCLUSION
For the reasons discussed above, the Court finds that the
Commissioner’s decision contains legal error and was not supported
by substantial evidence. Accordingly, the Commissioner’s decision
is reversed, and the matter is remanded for further administrative
proceedings consistent with this Decision and Order.

The Clerk of

Court is directed to close this case.
SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

May 23, 2017
Rochester, New York.

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