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Bowers v. Commissioner of Social Security

United States District Court, D. New Jersey

October 20, 2017

Maurice Bowers, Plaintiff,
v.
Commissioner of Social Security, Defendant.

          OPINION

          KEVIN MCNULTY UNITED STATES DISTRICT JUDGE.

         Maurice 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.

         The 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.

         I. Background

         Mr. 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.[1]

         Mr. 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).

         Mr. 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.

         In a 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. 373).

         Based 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).

         A 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).

         On 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.

         Mr. Bowers then appealed to this Court, challenging the ALJ's determination that he was not disabled from November 25, 2008[2] through December 16, 2015.

         II. Discussion

         A. The Five-Step Process

         Under 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 three.
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.

         B. Consideration of Substance Abuse

         In 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.

         In 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.

         If the 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).

         Social 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 ...." Ibid.

         In 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.

         The steps are summarized as:

1. Does the claimant have DAA[3]?
a. No-No DAA materiality determination necessary.
b. Yes-Go to step 2.
2. Is the claimant disabled considering all impairments, including DAA?
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 ...

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