LYMAN v. ASTRUE
Filing
22
MEMORANDUM JUDGMENT ORDER denying 9 plaintiff's Motion for Summary Judgment and granting 13 defendant's Motion for Summary Judgment. The decision of the Commissioner of Social Security is affirmed. See Memorandum Judgment Order for further details. Signed by Judge Gustave Diamond on 9/25/12. (kw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JAY LEON LYMAN,
Plaintiff,
v.
Civil Action No. 11-697
MICHAEL J. ASTRUE ,
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
MEMORANDUM JUDGMENT ORDER
AND
NOW,
") ~- 14
this
0< J
day
of
September,
2012,
upon due
consideration of plaintiff's request for review of the decision of
the Commissioner of Social Security ("Commissioner") denying his
application for supplemental security income ("SSP') under Title
XVI of the Social Security Act
("Act"),
IT IS ORDERED that the
Commissioner's motion for summary judgment (Document No. 13) be,
and the same hereby is, granted and plaintiff's motion for summary
judgment (Document No.9) be, and the same hereby is, denied.
As the factfinder, an Administrative Law Judge ("ALJ") has an
obligation to weigh all of the facts and evidence of record and
may rej ect
or discount
reasons for doing so.
Cir. 1999).
substantial
findings,
'IIloA072
(Rev. 8/82)
if
Plummer v. Apfel,
the ALJ explains
the
186 F.3d 422,
(3d
429
Where the ALJ's findings of fact are supported by
evidence,
even
differently.
any evidence
if
it
a
reviewing
would have
Fargnoli v.
court
is
bound
decided
the
factual
Massanari,
247 F.3d 34,
38
by
those
inquiry
(3d Cir.
2001).
Moreover,
disability
is
not
determined
merely
by
the
presence of impairments, but by the effect that those impairments
have upon an individual's ability to perform substantial gainful
activity.
Jones v. Sullivan, 954 F.2d 125, 129 (3d Cir. 1991).
These well established principles preclude a reversal or remand of
the ALJ's decision here because the record contains substantial
evidence to support the ALJ's findings and conclusions.
Plaintiff filed his SSI application on November 14,
alleging disability beginning November I,
disorder and schizophrenia.
2007,
2007,
due to bipolar
Plaintiff's application was denied.
At plaintiff's request, an ALJ held a hearing on January 19, 2010,
at which plaintiff, who was represented by counsel, appeared and
testified.
On February 24,
2010,
the ALJ
issued a
decision
finding that plaintiff is not eligible for SSI benefits because
his substance addiction is a contributing factor material to the
determination of his disability.
On March 31, 2011, the Appeals
Council denied plaintiff's request for review making the ALJ's
decision the final decision of the Commissioner.
The instant
action followed.
Plaintiff, who has an eighth grade education, was 32 years
old when he filed his application and is classified as a younger
individual
under
the
regulations.
20
C.F.R.
§416.963(c).
Plaintiff does not have any past relevant work experience, and he
has not engaged in substantial gainful activity at any time since
filing his application.
After reviewing plaintiff's medical records,
",,"Aon
(Rev. 8/82)
- 2
the ALJ found
that plaintiff suffers from the severe impairments of bipolar
disorder, schizophrenia, seizure disorder, post-traumatic stress
disorder, antisocial personality disorder and polysubstance abuse.
The ALJ determined that plaintiff's impairments,
substance abuse disorder,
12.04
and
12.09
in
the
including the
meet the criteria of sections 12.03,
listing
of
impairments
set
Appendix 1 of 20 C.F.R., Subpart P, Regulation No.4
1").
Thus,
forth
in
("Appendix
taking into account all of plaintiff's impairments,
including substance addiction, the ALJ found that plaintiff would
be disabled.
As
required by the
regulations,
the ALJ next
considered
whether, absent substance addiction, plaintiff's remaining severe
impairments would meet or equal a
listing in Appendix 1.
plaintiff stopped abusing alcohol and drugs,
that
his
other
severe
impairments,
even
If
the ALJ determined
when
considered
in
combination, would not meet or equal the criteria of any listed
impairments.
The
ALJ
then
found
that
absent
substance
addiction,
plaintiff would have the residual functional capacity to perform
work at all exertional levels with a number of non-exertional
limitations.
Plaintiff is limited to simple, routine tasks that
involve short, simple instructions, as well as simple work-related
decisions and few work place changes.
In addition, plaintiff must
avoid working at a production rate pace, and he is restricted to
only occasional interaction with supervisors, co-workers and the
general public (collectively, the "RFC Finding") .
'A072
(Rev. 8/82)
- 3
Based on the vocational expert's testimony, the ALJ concluded
that absent substance addiction, plaintiff's vocational factors
and his residual functional capacity would enable him to perform
work that exists in significant numbers in the national economy,
such as a house cleaner, grounds keeper/gardener or farm worker.
Accordingly, the ALJ found that plaintiff would not be disabled if
he stopped abusing drugs and alcohol, rendering him ineligible for
benefits under the Act.
The Act defines "disability" as the inability to engage in
substantial gainful activity by reason of a physical or mental
impairment that can be expected to last for a continuous period of
at
least
twelve
months.
42
U.S.C.
§1382c(a) (3) (A).
The
impairment or impairments must be so severe that the claimant "is
not only unable to do his previous work but cannot, considering
his age, education and work experience, engage in any other kind
of
substantial
economy ....
provides
disabled
/I
that
gainful
work
which
exists
42 U.S.C. §1382c(a) (3) (B).
"an individual
shall
not
in
the
national
The Act also expressly
be
considered to be
. . 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. §1382c(a) (3) (J).
The Commissioner has promulgated regulations that incorporate
a five-step sequential evaluation process for determining whether
a claimant is disabled.
The ALJ must determine:
(1) whether the
claimant is currently engaged in substantial gainful activity; (2)
if not, whether he has a severe impairment; (3) if so, whether his
~A072
(Rev. 8182)
- 4
impairment meets or equals the criteria listed in Appendix 1; (4)
if
not,
whether
the
claimant's
impairment
performing his past relevant work;
and
(5)
prevents
if so,
him
from
whether the
claimant can perform any other work that exists in the national
economy,
in light of his age,
residual functional capacity.
education,
work experience and
20 C.F.R. §416.920(a) (4).
If the
claimant is found disabled or not disabled at any step, further
inquiry is unnecessary.
Id.
However, if a claimant is found disabled and there is medical
evidence of alcoholism or drug addiction, the regulations require
the ALJ to determine whether the claimant's alcoholism or drug
addiction "is a contributing factor material to the determination
of disability."
20 C.F.R. §416.935(a).
The process for making
that determination is spelled out in the regulations as follows:
(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.
20 C.F.R. §416.935(b).
If the ALJ concludes based on the foregoing process that the
claimant's remaining limitations would not be disabling, then he
will
find
that
substance
addiction
'IIl.A072
(Rev. 8/82)
- 5
is
a
contributing
factor
material to the determination of disability, and the claimant will
be
ineligible
Conversely,
for
benefits.
20
C. F .R.
§416. 935 (b) (2) (i) .
if the ALJ determines that the claimant's remaining
limitations are disabling, the claimant is disabled independent of
his substance addiction, and the ALJ will find that the claimant's
substance addiction is not a contributing factor material to the
determination of disability.
20 C.F.R. §416.935(b) (2) (ii).
In this case, the ALJ initially considered all of plaintiff's
impairments, including his substance addiction, and found that he
met the criteria of certain listings at step 3 of the sequential
evaluation process, thus rendering him disabled.
In accordance
with 20 C.F.R. §416.935, the ALJ then considered whether plaintiff
still would be disabled by his other severe impairments if he
stopped
his
addiction,
substance
abuse.
Absent
the ALJ determined that
the
plaintiff's
functional
substance
limitations
which result from his remaining severe impairments do not preclude
him from performing work that exists in the national economy.
Accordingly,
the
addiction is a
determination
ALJ
concluded
that
plaintiff's
substance
contributing factor material to the disability
and
therefore
found
him
to
be
ineligible
for
benefits.
Plaintiff argues on appeal
to this
court that the ALJ's
conclusion that his substance addiction is a contributing factor
material to the determination of disability is not supported by
substantial evidence.
not
abusing
Plaintiff contends that even when he was
substances,
he
was
IIIlhA072
(Rev. 8/82)
- 6
disabled
by
his
mental
impairments. 1
court
After reviewing the medical evidence of record, the
concludes
that
the
ALJ's
decision
is
supported
by
substantial evidence.
Plaintiff
Dongiovanni,
relies
who
heavily
performed
on
the
report
consultative
a
of
Dr.
Vito
psychological
examination of plaintiff in March 2008, in arguing that the ALJ's
materiality analysis is flawed.
According to Dr. Dongiovanni's
written report, plaintiff told the doctor that he had not abused
drugs
or
alcohol
information,
Dr.
since
2002.
Dongiovanni
(R.
261).
diagnosed
dependence as being in full remission.
(R.
Based
plaintiff's
on
this
alcohol
266).
In assessing plaintiff's ability to perform various workrelated tasks on a form report, Dr. Dongiovanni indicated that
lPlaintiff also claims that the ALJ did not evaluate the effect of
his substance abuse consistent with internal SSA policy expressed in
Emergency
Message
96200
("EM
96200"),
available
at
https://secure.ssa.gov/appsl0/.
We note that EM-96200 is an internal
SSA document which provides guidance to its employees who are tasked
with processing claims for benefits. An internal document such as this
may be "entitled to respect" but only to the extent that it has the
"power to persuade." Christensen v. Harris County, 529 U.S. 576, 587
(2000) (holding that an agencyl s statutory interpretations which are
contained in formats such as opinion letters are entitled to respect,
but only to the extent that those interpretations have the power to
persuade) .
Plaintiff asserts that the ALJ's decision is based on guesswork
because "it [was] not possible to separate the mental restrictions and
limitations imposed by DAA and the various other mental disorders shown
by the evidence . . . . " See EM-962001 Answer to question #29.
Thus,
according to plaintiff the ALJ should have given him the benefit of
doubt and found in his favor on the key question of materiality. To the
contrary, the ALJ's decision makes clear that he evaluated this case
consistent with the procedure set forth in the regulations at 20 C.F.R.
§416.935, and his analysis did not contravene any relevant SSA policy
guidance outlined in EM-96200.
The ALJ's conclusion that plaintiff's
substance abuse is a contributing factor material to the determination
of disability is not the product of guesswork, but rather is supported
by substantial evidence of record as explained herein.
l
~A072
{Rev. 8182)
- 7
plaintiff
was
markedly
limited
in
his
ability
to
interact
appropriately with the public and respond appropriately to work
pressures and changes,
limited in
but he was only slightly or moderately
seven other work-related categories.
(R.
268).
Plaintiff relies on Dr. Dongiovanni's report and assessment to
support
his
contention
that,
even
when
he
was
not
abusing
substances, his mental functional limitations preclude him from
working. 2
Contrary to Dr.
Dongiovanni' s
report,
several
subsequent
hospital admissions reveal that plaintiff's functional limitations
were caused by his drug and alcohol abuse, not his other mental
impairments.
In that regard, the court finds instructive McGill
v. Commissioner of Social Security,
2008),
288 Fed. Appx.
50
(3d Cir.
a case in which substance abuse also was at issue.
In
McGill, the United States Court of Appeals for the Third Circuit
determined
the
ALJ's
finding
that
the
claimant's
mental
impairments were severe only when they coincided with drug and
alcohol addiction was supported by evidence that the majority of
her hospital visits involved drug overdoses, drug-seeking behavior
or both, and there was little evidence of severe depression or
anxiety independent of drug and alcohol addiction.
Here, as in McGill,
at 52-53.
"a reasonable mind might accept [the record
2The court notes that the ALJ properly considered Dr. Dongiovanni' s
opinion concerning plaintiff's functional capabilities, and determined
his opinion was not entitled to controlling weight because plaintiff's
inpatient hospitalizations occurred when he was abusing drugs and
alcohol, and he does not have significant functional limitations absent
substance abuse.
(R. 21).
'IIIoAOn
(Rev. 8/82)
- 8
evidence]
as adequate to support the ALJ's findings that
[the
claimant's] behavioral and functional problems were attributable
to DAA,
and
disabled."
that
in
the
absence
of
DAA,
[he]
would not
be
Id. at 53 (internal quotation and citation omitted) .
A review of
plaintiff's
hospital
admissions
underscores
this
point.
First, on October 18, 2008, plaintiff underwent a psychiatric
evaluation
ideation.
following
(R. 300).
a
hospital
admission
due
to
suicidal
Plaintiff reported that over the last nine
months, he was smoking 2 or 3 eight balls of cocaine per day.
300).
(R.
He used heroin three days prior to his hospital admission,
he drank alcohol a day earlier, and his urine screen was positive
for cocaine (R. 301).
During plaintiff's hospital stay, when he was not using drugs
and alcohol,
his
ability
to
function
improved.
He
reported
feeling much better and that the medications were helping, he did
not
have
suicidal
ideation
or
anxiety,
he
did
not
exhibit
aggressive behavior, and he was appropriate with hospital staff
and his peers.
hospital
on
(R. 294-95).
October
24,
Plaintiff was discharged from the
2008,
with
an
appropriate
affect,
organized thought process, appropriate behavior with others, no
anxiety and no aggressive behavior.
(R. 295).
Plaintiff next was admitted to the hospital on October 17,
2009, because apparently he was depressed and pointed a gun at his
head.
(R. 312).
Plaintiff admitted drinking heavily, having a
history of heroin use, and using cocaine the previous night.
'Il!!.A072
(Rev. 8/82)
- 9
(R.
327).
been
Significantly, plaintiff further admitted that he had "not
sober
and
clean
from
alcohol
and
drugs
since
early
adolescence, and he feels that this has contributed to most of his
mood problems."
(R. 312)
(emphasis added).
Moreover, plaintiff
stated that even if he was compliant with his medications, "he is
always abusing substances, which he knows [is] counterproductive. II
(R. 312).
resul ted
By plaintiff's own admission, his functional problems
from
abusing
drug
and alcohol,
not
from his
mental
impairments.
Plaintiff again was evaluated on January 15, 2010, following
another hospital admission due to a heroin and cocaine overdose.
(R.
342).
At the time,
he was using crack cocaine daily and
heroin and alcohol two times per week.
plaintiff
was
discharged
on
January
improved,
his affect was appropriate,
(R. 344).
18,
2010,
However, when
his
mood
had
his thought process was
coherent, his memory, attention, insight and judgment were intact,
and he was alert and oriented.
(R. 338).
at
about
the
administrative
hearing
When asked by the ALJ
this
plaintiff admitted he was there "for crack.
hospital
II
admission,
(R.35).
As the foregoing evidence of record makes clear, and as the
ALJ found, when plaintiff does not abuse alcohol and drugs, his
remaining
severe
mental
functional limitations.
impairments
do
not
cause
disabling
Indeed, plaintiff candidly admitted that
alcohol and drugs have contributed to most of his mood problems.
To the extent that plaintiff has functional limitations caused by
his remaining mental impairments absent substance addiction, the
~A072
(Rev. 8182)
- 10
ALJ fully accommodated those limitations in the RFC Finding, which
was
incorporated into the
hypothetical question posed to
the
vocational expert.
After
carefully and methodically
considering all
medical evidence of record and plaintiff's testimony,
of
the
the ALJ
determined that plaintiff's substance addiction is a contributing
factor material to the determination of disability,
ineligible for benefits.
thus he is
The ALJ's findings and conclusions are
supported by substantial evidence and are not otherwise erroneous.
Accordingly, the decision of the Commissioner must be affirmed.
~f./i~
Gustave DJ.amond
United States District Judge
cc: Karl E. Osterhout, Esq.
521 Cedar Way
Suite 200
Oakmont, PA 15139
Michael Colville
Assistant U.S. Attorney
700 Grant Street
Suite 4000
Pittsburgh, PA 15219
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(Rev. 8182)
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