Opinion
Case No. 00-10426-BC.
June 14, 2004
The plaintiff filed the present action on November 6, 2000 seeking review of the Commissioner's decision denying the plaintiff's claim for a period of disability, disability insurance benefits, and supplemental security income benefits under Titles II and XVI of the Social Security Act. The plaintiff had been awarded benefits in December 1995 based in part on his disability due to alcoholism. Those benefits were discontinued as of January 1, 1997 as a result of the enactment of Public Law No. 104-121 § 105(a)(1), (b)(1), 110 Stat. 847, 852-53, which amended the Social Security Act to preclude benefits when alcoholism or drug addiction contributes to a claimant's disability. The plaintiff's present lawsuit challenges the Commissioner's determination that he is not disabled despite his alcohol abuse.
The case was referred to United States Magistrate Judge Charles E. Binder pursuant to 28 U.S.C. § 636(b)(1)(B) and E.D. Mich. LR 72.1(b)(3). Thereafter, the plaintiff filed a motion for summary judgment seeking reversal of the decision of the Administrative Law Judge and an award of benefits. The defendant filed a motion for summary judgment requesting that the decision of the Administrative Law Judge be affirmed, to which plaintiff responded. Magistrate Judge Binder filed a report and recommendation on June 22, 2001 recommending that the plaintiff's motion for summary judgment be denied, the defendant's motion for summary judgment be granted, and the findings of the Commissioner be affirmed. The plaintiff filed timely objections to the recommendation and this matter is now before the Court.
The Court has reviewed the file, the report and recommendation, and the plaintiff's objections, and has made a de novo review of the administrative record in light of the parties' submissions. The plaintiff's objections challenge the magistrate judge's conclusion that substantial evidence supports the decision of the Administrative Law Judge (ALJ) that the plaintiff was not disabled absent consideration of his alcoholism. The plaintiff also complains that the magistrate judge's report improperly characterized portions of the record by understating the severity of some of the medical findings. The plaintiff also argues that there is no evidence that he continued to drink or abuse alcohol after July 1996 other than his arrest for impaired driving in February 1997.
The plaintiff, who is now fifty-two years old, applied for a period of disability, disability insurance benefits, and supple mental security income benefits on June 22, 1995, when he was forty-four years old. He has worked as a truck driver, laborer, and a potato farmer. He last worked June 3, 1995, which was the date he alleged his disability began.
In his application for disability insurance benefits, the plaintiff alleged that he was disabled and unable to work at any job because of pain in his shoulder, back, and arm, and also because of numbness and pain in his legs. His claim was initially denied, and the denial was upheld on reconsideration. The plaintiff requested a hearing before an administrative law judge (ALJ). However, on March 28, 1996, prior to a hearing before an ALJ, a Senior Attorney Advisor for the Commissioner issued a decision finding that the plaintiff was "entitled to a period of disability benefits commencing June 3, 1995 and to disability insurance benefits." Tr. at 129. The Senior Attorney Advisor found that "alcoholism [was] a contributing factor material to the determination of the claimant's disability" and limited the time the plaintiff was able to receive benefits and made the benefits contingent on the plaintiff receiving treatment for alcoholism. Tr. at 129-30. The plaintiff renewed his request for a hearing before an ALJ arguing that he was disabled as a result of physical impairments, not alchoholism. Thereafter, the plaintiff received a notice from the Commissioner that his supplemental security income (SSI) benefits would end. The plaintiff filed a statement disagreeing with this determination.
On May 23, 1997, the plaintiff appeared before ALJ Paula M. Zera when he was forty-five years old. ALJ Zera filed a decision on February 24, 1998 in which she found that the plaintiff was not disabled. The ALJ reached that conclusion by applying the five-step sequential analysis prescribed by the Secretary in in 20 C.F.R. § 404.1520, 416.920. The ALJ concluded that the plaintiff had not engaged in substantial gainful activity since June 3, 1995 (step one); the medical evidence in the plaintiff's case established that he has "severe" impairments secondary to chronic alcohol dependence, grade I spondylolisthesis, bilateral spondylolysis of his lumbar spine, mild foraminal encroachment of the lumbar spine, and lumbar radiculophathy (step two); and these impairments did not by them selves or in combination meet or equal a listing in the regulations (step three). As part of this analysis, the ALJ, as required by law, evaluated the plaintiff's use of alcohol or drugs since it had been determined that alcohol was a material factor to a finding of disability. After reviewing the evidence and the plaintiff's testimony, the ALJ concluded that the plaintiff's alcohol dependence was a contributing factor material to a finding of disability. The ALJ also determined that the plaintiff could not perform any of his past relevant work (step four).
In applying the fifth step, the ALJ concluded that the plaintiff's residual functional capacity was for a range of sedentary work with a sit/stand option, no exposure to hazards, or to extremes of dampness or humidity as limitations. Relying on the testimony of a vocational expert, the ALJ found that such jobs as assemblers, security monitors, order clerks or order checkers, and sorters fit within those limitations, and that these jobs existed in significant numbers in the local and regional economies.
The plaintiff has the burden to prove that he is disabled and therefore entitled to benefits. Boyes v. Sec'y of Health Human Servs., 46 F.3d 510, 512 (6th Cir. 1994); Abbott v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990). Under 42 U.S.C. § 423(d)(1)(A) (B) and 1382c(a)(3)(A) (B), a person is disabled if he or she is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment" and the impairment is so severe that the person "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 gainful activity which exists in the national economy." Further, "[a] physical or mental impairment is an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 423(d)(2)(C), 1382c(a)(3)(D).
The plaintiff's sever disability as determined by the ALJ was intertwined with his alcoholism. As mentioned earlier, in 1996, Congress passed the Contract with America Advancement Act of 1996 which amended portions of the Social Security Act which defined disability for purpose of Title II and Title XVI benefits. Pub.L. 104-121 §§ 105(a)(1), 105(b)(1), 110 Stat. 847, 852-53 (1996) (codified at 42 U.S.C. § 423(d)(2)(c), 1382c(a)(3)(J) (West Supp. 2000). Section 105 of that legislation, entitled "Denial of Disability Benefits to Drug Addicts and Alcoholics," states that
[a]n individual shall not be considered to be disabled for the purposes of this Title 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.
Regulations promulgated pursuant to this amendatory legislation prescribe a sine qua non, or "but for," test for determining whether alcoholism or drug addiction is a "contributing factor material" to a claimant's disability. If the claimant would still be disabled after he or she stopped using drugs or alcohol, then drug or alcohol abuse is not a contributing factor material to the disability. However, if the claimant's limitation is not disabling absent the abuse of alcohol or drugs, then the drug or alcohol abuse is a material contributing factor which precludes a finding of disability for the purpose of determining entitlement to benefits. See 20 C.F.R. § 416.935(b)(2)(i) (ii).
The plaintiff contends both that he no longer drinks and that he is disabled even if he stops drinking. The ALJ rejected these contentions because the plaintiff's claim of abstinence was not credible and the ALJ found that the plaintiff had the residual functional capacity to perform sedentary work. There is ample evidence to support the ALJ's credibility determination, including the plaintiff's admission that he lied to the consulting physician, his admissions of copious drinking to Dr. Phelps, and his drunk driving arrest and conviction in February 1997. The magistrate judge found that substantial evidence supported the ALJ's determination that the plaintiff was capable of performing a limited range of sedentary work.
The plaintiff points to parts of the magistrate judge's report and recommendation that, he says, mischaracterizes the medical evidence in the record. For example, the plaintiff states that although the magistrate judge observed on page twelve of his report that the plaintiff got off an examination table "without acute distress" after being seen by a consultative examiner, the examiner's report actually stated that the plaintiff "gets on and off the examining table slowly and deliberately." Tr. at 242. The magistrate judge's report also states on page sixteen that the plaintiff's lumbosacral spine showed mild to moderate degenerative changes at L3-4 and L4-5, although the actual written report of an MRI performed on the plaintiff on March 15, 1996 discloses a diffuse cicumferential bulge at L4-L5 with distortion of the disc secondary to Grade I spondylolisthesis. The plaintiff also complains that the magistrate judge's report failed to mention that a consultative evaluation found that the plaintiff's back architecture revealed scoliosis with flattening of the dorsolumbar curve, failed to mention a therapist's comment that the plaintiff reported increased symptoms with any exercise or increase activity, and did not mention the treatment or findings of Dr. Gonzalez, who reported that the plaintiff had low back pain and increased weakness and numbness of the lower extremities that was exacerbated by walking or prolonged standing.
The statements recounted by the plaintiff indeed appear in the record. However, they do not diminish from the evidence upon which the ALJ relied to make her finding that the plaintiff could do some sedentary work. The record contains evidence that the plaintiff admitted to Dr. Rogers that he did some painting, he had calloused hands, and he had grease under his fingernails as if he had been doing mechanical repair work. The therapist at Alpena General Hospital stated that the TENS unit used by the plaintiff was effective in controlling his back pain. Dr. Gonzales reported that the plaintiff's EMG findings were normal. Where the Commissioner's decision is supported by substantial evidence, it must be upheld even if the record might support a contrary conclusion. Smith v. Sec'y of Health Human Servs., 893 F.2d 106, 108 (6th Cir. 1989). The substantial evidence standard "presupposes that there is a zone of choice within which the decisionmakers can go either way, without interference by the courts." Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (en banc) (internal quotes and citations omitted). Thus, the Court "may not try the case de novo, nor resolve conflicts in evidence, nor decide questions of credibility." Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984).
Finally, the plaintiff criticizes the hypothetical question posed to the vocational expert because he claims it did not completely account for his limitations on ability to concentrate. He points to the PRTF and suggests that the range of frequency of this deficiency in five categories from "never" to "constant," with "often" being the third category, implies a linear range that can be arithmetically quantified. He argues that "often" implies deficiencies in concentration fifty percent of the time. He then points to Chief Judge Lawrence Zatkoff's decision in Bankston v. Commissioner of Social Security, 127 F. Supp.2d 820, 827 (E.D. Mich. 2000), to support his argument that the hypothetical question posed in this case was defective.
In Bankston, the Court indeed attempted to quantify the term "often," but reversed the ALJ's no-disability finding not because the hypothetical question failed to incorporate that concept, but rather because the claimant's attorney actually posed a question to the vocational expert that incorporated the notion that the deficit occurred more than fifty percent of the time and obtained a response that supported a disability finding. The record in this case contains no such evidence. Rather, the ALJ's formulation of residual functional capacity in constructing the hypothetical question including "simple unskilled types of work," and limitations of "not working with the general public or in close interaction with co-workers." Tr. at 79. It is reasonable to conclude, therefore, that the vocational expert actually took into account the limitations that the plaintiff is advocating in this Court.
The Court finds that the determinations of the ALJ, including the finding that the plaintiff is not disabled within the meaning of the Social Security Act, are supported by substantial evidence, and that the magistrate judge's conclusion is correct.
Accordingly, it is ORDERED that the magistrate judge's report and recommendation is ADOPTED.
It is further ORDERED that the plaintiff's motion for summary judgment [dkt #11] is DENIED.
It is further ORDERED that the defendant's motion for summary judgment [dkt #14] is GRANTED. The findings of the Commissioner are AFFIRMED, and the complaint is DISMISSED with prejudice.