United States District Court, D. New Jersey
MCNULTY UNITED STATES DISTRICT JUDGE.
Bowers brings this action pursuant to 42 U.S.C. § 405(g)
to review a final decision of the Commissioner of Social
Security ("Commissioner") denying his claims to
Disability Insurance Benefits ("DIB") under Title
II of the Social Security Act, 42 U.S.C. §§ 401-34.
critical issue on this, Mr. Bowers' second appeal, is
whether the ALJ properly denied benefits because alcoholism
contributed to his disability. It is possible to imagine a
system in which alcoholism is treated as a medical impairment
like any other. That, however, is not the system that
Congress and the Social Security Administration have adopted,
and this Court's review is constrained by statute and by
the Administration's implementing regulations.
[See Section II.B, infra.) For the reasons
set forth below, the decision of the Administrative Law Judge
("ALJ") is AFFIRMED.
Bowers seeks to reverse an ALJ's finding that he was not
disabled from November 25, 2008, the alleged onset date,
through December 16, 2015, the date of the ALJ's
decision. (R. 22-31 J.
Bowers applied for DIB under Title II and supplemental
security income under Title XVI on September 24, 2010,
alleging that he has been disabled since November 25, 2008.
(R. 340). The specific disabilities alleged were left eye
blindness, metal rods in his right leg, asthma, depression,
and a stomach stab wound. (R. 70). Mr. Bowers originally
sought benefits starting from November 25, 2008. He amended
the onset date to May 18, 2010, however, at an April 6, 2012
hearing before ALJ April M. Wexler. (R. 38).
Bowers' applications were denied on April 12, 2011 (R.
69-74), and upon reconsideration on December 1, 2011. (R.
77-82). On February 1, 2012, Mr. Bowers requested an
administrative hearing. (R. 88-89). On April 6, 2012, Mr.
Bowers appeared with counsel, Patricia Franklin, at a hearing
before ALJ Wexler. (R. 34-64). Mr. Bowers and Rocco Meola, a
vocational expert, testified. (R. 38-64). On April 17, 2012,
the ALJ issued a decision finding that Mr. Bowers could
perform unskilled, sedentary work and therefore was not
disabled. (R. 17-33). On November 19, 2012, the Appeals
Council denied Mr. Bowers' request for review, (R. 1-6),
rendering the ALJ's decision the final decision of the
Commissioner. Mr. Bowers then appealed to the U.S. District
Court for the District of New Jersey.
written opinion dated June 27, 2014, Judge Claire C. Cecchi
affirmed in part, vacated in part, and remanded the ALJ's
decision. (R. 362-76) (reported as Bowers v. Colvin,
No. 13-CV-444 CCC, 2014 WL 2926524 (D.N.J. June 27, 2014)).
In particular, Judge Cecchi found that the ALJ erred when
considering Mr. Bowers' subjective complaints during the
Residual Functional Capacity analysis. (R. 370-73). Judge
Cecchi "vacate[d] the ALJ's credibility
determination with respect to the time and frequency [Mr.
Bowers] need[ed] to clean his eye socket, and . . .
remand[ed] the case with instruction to reopen the Record on
th[at] point, and to determine whether or not the duration
and frequency would affect [Mr. Bowers'] RFC." (R.
on Judge Cecchi's decision, on August 6, 2014, the
Appeals Council vacated the final decision of the
Commissioner of Social Security and remanded the case to an
ALJ for further proceedings consistent with the opinion. (R.
422) A remand hearing was held on January 29, 2015. (R.
377-409) Mr. Bowers appeared with counsel, Agnes Wladyka,
before ALJ Meryl L. Lissek. (R. 377-409). Mr. Bowers
testified. (R. 381-408).
supplemental hearing was held on November 10, 2015. (R.
410-19). Mr. Bowers appeared with counsel, Ms. Wladyka,
before ALJ Lissek. Andrew Vaughn, a vocational expert,
testified. (R. 413-19). On December 16, 2015, the ALJ issued
a decision finding that, absent substance abuse, Mr. Bowers
could perform unskilled sedentary work, and therefore was not
disabled. (R. 340-60).
August 9, 2016, the Appeals Council denied Mr. Bowers'
request for review (R. 326-31), rendering the ALJ's
decision the final decision of the Commissioner.
Bowers then appealed to this Court, challenging the ALJ's
determination that he was not disabled from November 25,
through December 16, 2015.
The Five-Step Process
the authority of the Social Security Act, the Social Security
Administration has established a five-step evaluation process
for determining whether a claimant is entitled to benefits.
20 C.F.R. §§ 404.1520, 416.920. This Court's
review necessarily incorporates a determination of whether
the ALJ properly followed the five-step process prescribed by
regulation. The steps may be briefly summarized as follows:
Step 1: Determine whether the claimant has
engaged in substantial gainful activity since the onset date
of the alleged disability. 20 C.F.R. §§
404.1520(b), 416.920(b). If not, move to step two.
Step 2: Determine if the claimant's
alleged impairment, or combination of impairments, is
"severe." Id. §§ 404.1520(c),
416.920(c). If the claimant has a severe impairment, move to
Step 3: Determine whether the impairment
meets or equals the criteria of any impairment found in the
Listing of Impairments. 20 C.F.R. Pt. 404, subpt. P, app. 1,
Pt. A. (Those Part A criteria are purposely set at a high
level, to identify clear cases of disability without further
analysis.) If so, the claimant is automatically eligible to
receive benefits; if not, move to step four. Id.
§§ 404.1520(d), 416.920(d).
Step 4: Determine whether, despite any
severe impairment, the claimant retains the Residual
Functional Capacity ("RFC") to perform past
relevant work. Id. §§ 404.1520(e)-(f),
416.920(e)-(f). If not, move to step five.
Step 5: At this point, the burden shifts to
die Commissioner to demonstrate that the claimant,
considering his age, education, work experience, and RFC, is
capable of performing jobs that exist in significant numbers
in the national economy. 20 C.F.R. §§ 404.1520(g),
416.920(g); see Poulos v. Comm'r of Soc. Sec,
474 F.3d 88, 91-92 (3d Cir. 2007). If so, benefits will be
denied; if not, they will be awarded.
Consideration of Substance Abuse
cases involving individuals suffering from drug or alcohol
addiction, "[a]n individual shall not be considered to
be disabled ... if alcoholism or drug addiction would ... be
a contributing factor material to die Commissioner's
determination that the individual is disabled." 42
U.S.C. § 423(d)(2)(C), 1382c(a)(3)(J); see also
20 C.F.R. §§ 404.1535, 416.935.
determining whether drug addiction or alcoholism is a
material contributing factor to an individual's
disability, the "key factor" is "whether [the
ALJ] would still find [the claimant] disabled if [he or she]
stopped using drugs or alcohol." 20 C.F.R. §
404.1535(b)(1). To make this determination, the ALJ must
evaluate which of the claimant's physical and mental
limitations would remain if the claimant stopped using drugs
or alcohol. 20 C.F.R. § 404.1535(b)(2). The ALJ must
then determine whether any or all of the claimant's
remaining limitations would be disabling. Id.
ALJ finds that the claimant's remaining limitations would
not be disabling, the ALJ "will find that [the
claimant's] drug addiction or alcoholism is a
contributing factor material to the determination of
disability." 20 C.F.R. § 404.1535(b)(2)(i). If,
however, the ALJ finds that the claimant's remaining
limitations are disabling, the claimant is "disabled
independent of [his or her] drug addiction or
alcoholism" and the ALJ "will find that [the
claimant's] drug addiction or alcoholism is not a
contributing factor material to the determination of
disability." 20 C.F.R. § 404.1535(b)(2)(ii).
Security Ruling (SSR) 13-2p establishes the procedure used by
ALJs when evaluating drug addiction or alcoholism
materiality. SSR 13-2p, 78 Fed. Reg. 11939-47 (Feb. 20,
2013). First, the ALJ will "apply the sequential
evaluation process to show how the claimant is
disabled." Id. at 11942. Next, the ALJ will
"apply the sequential evaluation process a second time
to document [drug addiction and alcoholism] materiality
determining materiality, SSR 13-2p provides a six-step
evaluation process. It states: "Although the steps are
in a logical order from the simplest to the most complex
cases, we do not require our adjudicators to follow them in
the order we provide. For example, when [drug addiction or
alcoholism] is the only impairment adjudicators can go
directly to step three and deny the claim because DAA is
material." SSR 13-2p, 78 Fed. Reg. at 11941.
steps are summarized as:
1. Does the claimant have DAA?
a. No-No DAA materiality determination necessary.
b. Yes-Go to step 2.
2. Is the claimant disabled considering all impairments,
a. No-Do not determine DAA materiality. (Denial.)
b. Yes-Go to step 3.
3. Is DAA the only impairment?
a. Yes-DAA material. (Denial.)
b. No-Go to step 4.
4. Is the other impairment(s) disabling by itself while the
claimant is dependent upon or ...