Evans v. Astrue

Filing 15

ORDER denying 7 Motion to Reverse Decision of the Commissioner; granting 9 Motion to Affirm the Decision of the Commissioner; adopting 12 Report and Recommendations.. So Ordered by Judge William E. Smith on 9/25/12. (Jackson, Ryan)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
)
)
Plaintiff,
)
)
v.
)
)
MICHAEL J. ASTRUE,
)
COMMISSIONER OF SOCIAL SECURITY,
)
)
Defendant.
)
___________________________________)
BRIAN M. EVANS,

C.A. No. 11-146 S

ORDER
WILLIAM E. SMITH, United States District Judge.
The Report and Recommendation of United States Magistrate
Judge David L. Martin filed on August 23, 2012 (ECF No. 12), in
the above-captioned matter is hereby accepted pursuant to 28
U.S.C. § 636(b)(1).

Plaintiff’s objections to the Magistrate

Judge’s Report and Recommendation (ECF No. 13) are rejected,
Plaintiff’s

Motion

to

Reverse

(ECF

No.

7)

is

DENIED,

and

Defendant’s Motion to Affirm (ECF No. 9) is GRANTED.
The

Social

Security

Act

provides

that

“[a]n

individual

shall not be considered to be disabled for purposes of this
subchapter if alcoholism or drug addiction would (but for this
subparagraph)

be

a

contributing

factor

material

to

the

Commissioner's determination that the individual is disabled.”
42 U.S.C. § 423(d)(2)(C).

The Magistrate Judge affirmed the

Administrative
marijuana

Law

abuse

disability.

Judge’s

was

a

(“ALJ”)

contributing

Plaintiff

objects

to

decision
factor
the

that

Plaintiff’s

material

to

Magistrate

his

Judge’s

decision on this point, arguing that there was testimony before
the

ALJ

indicating

that

it

was

impossible

to

determine

the

extent to which Plaintiff would be impaired if he stopped using
marijuana because, other than when Plaintiff was incarcerated,
Plaintiff had not abstained from marijuana use for any continued
period of time.

Plaintiff contends that this testimony requires

a finding that Plaintiff’s marijuana use was not a contributing
factor material to his disability.
In
emergency

support

of

message,

this

argument,

EM-96200,

sent

Plaintiff
by

the

points
Social

to

an

Security

Administration to all disability adjudicators on August 30, 1996
(the “Teletype”).

The Teletype states, in relevant part:

We know of no research data upon which to
reliably predict the expected improvement in
a coexisting mental, impairment(s) should
drug/alcohol use stop. The most useful
evidence that might be obtained in such
cases is that relating to a period when the
individual
was
not
using
drugs
/alcohol. . . . When it is not possible to
separate
the
mental
restrictions
and
limitations imposed by [drug and alcohol
addiction] and the various other mental
disorders shown by the evidence, a finding
of ‘not material’ would be appropriate.
Soc. Sec. Teletype, No. EM-96200, (Aug. 30, 1996) (available at:
https://secure.ssa.gov/apps10/public/reference.nsf/links/
04292003041931PM) (emphasis added).
2

The

Magistrate

Judge

correctly

pointed

unclear whether the Teletype is binding.

out

that

it

is

See Brown v. Apfel, 71

F. Supp. 2d 28, 36 (D.R.I. 1999) (“Whether such a teletype is
even

binding

on

the

Social

Security

Administration

is

questionable.”); see also Parra v. Astrue, 481 F.3d 742, 749
(9th

Cir.

such

as

duties”).

2007)
the

(explaining

Teletype

“do

that
not

“internal

create

agency

judicially

documents”
enforceable

Moreover, several United States Courts of Appeals

have rejected the reasoning reflected in the Teletype.

See Cage

v. Comm'r of Soc. Sec., Docket No. 09–4530–cv, 2012 WL 3538264,
at *4 (2d Cir. Aug. 17, 2012) (“[C]laimants bear the burden of
proving [drug addiction or alcoholism] immateriality.”); Parra,
481 F.3d at 748 (same); Doughty v. Apfel, 245 F.3d 1274, 1280
(11th Cir. 2001) (same); Brown v. Apfel, 192 F.3d 492, 498 (5th
Cir. 1999) (same).

While the First Circuit has yet to rule on

this issue, at least one district court has agreed that “[t]he
burden of proving that alcoholism was not a contributing factor
to

the

disability

determination

falls

on

[the

claimant].”

Frazier v. Astrue, Civil Action No. 1:10-CV-10051-PBS, 2010 WL
5866215, at *6 (D. Mass. Feb. 22, 2010) (internal citation and
quotation marks omitted).
Plaintiff’s
decisions

of

position,

some

federal

however,
courts.

3

does

find

See,

support

e.g.,

in

Kluesner

the
v.

Astrue, 607 F.3d 533, 537 (8th Cir. 2010) (nominally stating
that “[t]he claimant has the burden to prove that alcoholism or
drug addiction is not a contributing factor” but going on to
conclude that a “tie” on the materiality issue would go to the
claimant); Whitney v. Astrue, No. 10 C 04231, 2012 WL 3686651,
at *7-8 (N.D. Ill. Aug. 24, 2012) (describing the circuit split
and holding that the “SSA bears the burden because the SSA is
the party asserting the benefit of an exception to the general
definition of ‘disabled’” (emphasis in original)).
Still,
conclusion

this
that

Court

agrees

Plaintiff

with

should

Magistrate

not

be

able

Judge
to

Martin’s

“avoid

the

consequences of his substance abuse by continuously remaining
under the influence of cannabis and then claiming that there is
no evidence to support a finding that he would not be disabled
if he ceased his cannabis use.”

See Friend v. Astrue, 788 F.

Supp. 2d 365, 370 (E.D. Pa. 2011) (rejecting an argument similar
to

Plaintiff’s

because

“[i]t

is

unthinkable

that

Emergency

Teletype–96 was intended to convey to agency employees that a
drug addict or alcoholic can bypass 20 C.F.R. § 404.1614(c)(3)
by

the

simple

Additionally,

the

expedient
claimant

of
is

always
“the

remaining

party

best

high”).

suited

to

demonstrate whether []he would still be disabled in the absence
of drug or alcohol addiction.”

Brown, 192 F.3d at 498.

4

For

the

foregoing

reasons,

this

Court

accepts

the

Magistrate Judge’s recommendations, including the finding that
“the ALJ’s materiality determination is supported by substantial
evidence in the record and is free of legal error.”

SO ORDERED:

/s/ William E. Smith
William E. Smith
United States District Judge
Date: September 25, 2012

5