"[I]t is up to the agency, and not [the] court, to weigh the conflicting evidence in the record." Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998); see also Newsome v. Astrue, 817 F. Supp. 2d 111, 125 (E.D.N.Y. 2011) (quoting Clark, 143 F.3d at 118). Since the ALJ identified Dr. Faridi as a treating source, engaged in treating physician analysis and found conflicting evidence in the record, the ALJ did not commit legal error when deciding not to give Dr. Faridi's opinion significant weight.
"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
; courts consistently affirm ALJ determinations that alcohol withdrawal symptoms (including seizures) may not result in a finding of disability as long as substantial evidence supports the conclusion that the symptom in issue is not established independent of alcohol withdrawal. See, e.g., Bryant v. Colvin, No. 13-80758-CIV-HOPKINS, 2015 WL 12517574, at *4 (S.D. Fla. Feb. 19, 2015) (no error in ALJ finding that substance abuse is contributing factor material to symptoms of seizures and anxiety caused by alcohol withdrawal); Newsome v. Astrue, 817 F.Supp.2d 111, 135 (E.D.N.Y. 2011) (no error in ALJ's finding that seizures caused by alcohol withdrawal amount to symptom to which alcoholism is material contributing factor). Relatedly, the district court in Massachusetts affirmed an ALJ's finding of not disabled and did not even consider the ALJ's failure to consider absenteeism arising from claimant's repeated emergency room and hospital/rehabilitation for alcohol detoxification. Weeks v. Berryhill, Civil Action No. 18-11553-JGD, 2019 WL 2441848, at *1, *6-10 (D. Mass. June 11, 2019).
This Court may set aside a decision by the Commissioner only if it is based upon legal error or not otherwise supported by substantial evidence. Newsome v. Astrue, 817 F. Supp. 2d 111, 124 (E.D.N.Y. 2011). "Substantial evidence means more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."
This Court may set aside a decision by the Commissioner only if it is based upon legal error or not otherwise supported by substantial evidence. Newsome v. Astrue, 817 F. Supp. 2d 111, 124 (E.D.N.Y. 2011). "Substantial evidence means more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."
Where there is a gap in the record, however, district courts in this circuit have reached conflicting conclusions as to whether the ALJ satisfies that duty by relying on the claimant's counsel to obtain the missing evidence. Harris v. Colvin, No. 11-CV-1497, 2013 WL 5278718, at *8 (N.D.N.Y. Sept. 18, 2013); compare Newsome v. Astrue, 817 F. Supp. 2d 111, 137 (E.D.N.Y. 2011) ("The fact that the ALJ requested additional information from the Plaintiff's attorney and did not receive that information does not relieve the ALJ of his duty to fully develop the record."), and Harris v. Colvin, No. 11-CV-1497, 2013 WL 5278718, at *8 (N.D.N.Y. Sept. 18, 2013) ("[T]his Court is compelled to conclude that the ALJ's reliance on claimant's counsel to obtain the treating physician's records was inadequate.
The Second Circuit held that "the ALJ erred by failing to give controlling weight to the treating physician's opinion and effectively requiring objective evidence beyond the clinical findings necessary for a diagnosis of fibromyalgia under established medical guidelines." Id. at 106; Newsome v. Astrue, 817 F. Supp. 2d 111, 128 (E.D.N.Y. 2011) (holding that the ALJ erred by discounting a treating physician's opinion because it was not based on laboratory results even though the impairment could not conclusively be diagnosed through such results). "Fibromyalgia is a unique disease and courts have found error when an ALJ 'did not actually credit [the treating physician's] diagnosis of fibromyalgia or misunderstood its nature...."' Bailey, 815 F. Supp. 2d at 598 (quoting Green-Younger, 335 F.3d at 108.).
Where the record contains medical evidence of drug addiction or alcoholism, the ALJ must perform a secondary analysis. See Newsome v. Astrue, 817 F. Supp. 2d 111, 126 (E.D.N.Y. 2011). An individual is not considered disabled under the Social Security Act "if alcoholism or drug addiction would be a contributing factor material to the Commissioner's determination that the individual is disabled."
Plaintiff's argument that the ALJ “quibbled over the actual diagnoses of Plaintiff's foot pain” is misplaced, as is the assertion that “the ALJ failed to acknowledge many of the positive findings within the notes cited.” (Pl. Br. at 22). The Plaintiff asserts that the ALJ erred in finding that objective medical tests were the only objective evidence to support a diagnosis of neuropathy, citing to Newsome v. Astrue, 817 F.Supp.2d 111, 127 (E.D.N.Y. 2011). In Newsome, the court held in respect of alcoholic neuropathy “the requirement that the Plaintiff produce the results of laboratory tests as the only form of objective evidence to support a diagnosis of neuropathy is not supported by the regulations or the record.” Id.
The ALJ's omission of “supervisors” from the hypothetical posed to the vocational expert is not harmless because it frustrates the Court's ability to perform meaningful review, and because it appears, from the vocational expert's testimony, that the outcome of this case may change with inclusion of additional social limitations. See, e.g., Raymer v. Colvin, 2015 WL 5032669, *6 (W.D.N.Y. Aug. 25, 2015); Newsome v. Astrue, 817 F.Supp.2d 111, 134 (E.D.N.Y. 2011) (“Although applying the wrong legal standard might not require reversal if the error did not affect the outcome, that is not the situation here.”).