Opinion
Civ. 99-3001.
Filed February 18, 2000.
Cheryl Schrempp-DuPris, Assistant United States Attorney, Pierre, SD, Attorney for Plaintiff.
Duane Houdek, Legal Assistance of North Dakota, Fargo, MD, John Hamilton, SD Advocacy Services, Sioux Falls, SD Attorneys for Plaintiff.
REPORT AND RECOMMENDATIONS FOR DISPOSITION
The above-captioned social security case was referred to this Court by the District Court pursuant to 28 U.S.C. § 636 (b) for the purpose of entering a scheduling order, conducting any necessary hearings and submitting to it proposed findings of fact and recommendations for disposition of the case.
The Honorable Charles B. Kornmann, United States District Judge, presiding.
After careful scrutiny of the record and based on the totality of the circumstances present, the Court does now make and propose the following findings of fact, report and recommendations for disposition.
I.
Plaintiff, Cleveland Iron Heart, Jr. (Iron Heart) applied for supplemental security income benefits (SSI) under Title XVI of the Social Security Act (the Act), 42 U.S.C. § 1381 et. seq., on June 17, 1994. Iron Heart claimed he was disabled due to physical and mental impairments. He requested and was given an evidentiary hearing before an Administrative Law Judge (ALJ), who later concluded that Iron Heart was not disabled. Subsequently, the Social Security Administration's Appeals Council vacated the ALJ's decision and remanded the case for resolution of several issues. Following a supplemental hearing, the ALJ, on August 28, 1997, determined that Iron Heart was not disabled. The Appeals Council declined to review the ALJ's determination, making it the final decision of defendant, Kenneth S. Apfel (Commissioner). See 20 C.F.R. § 416.1481 (1999). After exhausting his administrative remedies, Iron Heart filed the instant action. The Commissioner then answered and moved for summary judgment. Both parties filed memoranda and waived oral argument.
II.
Iron Heart is fifty-two years old, has a GED and some college education. He has a lackluster work history, having worked sporadically as a construction laborer and janitor. He has a number of physical and mental problems including chronic back pain, degenerative disc disease, spondylolisthesis, diabetes, gastrointestinal and liver dysfunction, dysthymia, depression and an avoidant personality disorder. He also suffers from a long-term alcohol problem. The issues Iron Heart raises pertain to the ALJ's assessment of Iron Heart's pain and functional limitations and of the evidence offered by experts who examined him and/or assessed his condition and work capacity.
III.
A claimant seeking disability benefits bears the burden of proving that he is unable to engage in any substantial gainful activity because of a medically determinable physical or mental impairment which is expected to last for at least twelve months or result in death. 42 U.S.C. § 423 (d)(1)(A); 1382c(a)(3)(A)-(B); Jones v. Chater, 86 F.3d 823, 825 (8th Cir. 1996), Woolf v. Shalala, 3 F.3d 1210, 1212 (8th Cir. 1993). The Court's "role on review is to determine whether the Commissioner's findings are supported by substantial evidence on the record as a whole." Warburton v. Apfel, 188 F.3d 1047, 1050 (8th Cir. 1999) (quoting Clark v. Apfel, 141 F.3d 1253, 1255 (8th Cir. 1998) (internal citations omitted)); 42 U.S.C. § 405 (g). "Substantial evidence is less than a preponderance, but is enough that a reasonable mind would find it adequate to support the Commissioner's conclusion." Prosch v. Apfel, No. 99-1666, 2000 WL 124527 at *1 (8th Cir. Feb. 3, 2000); Cox v. Apfel, 160 F.3d 1203, 1206-07 (8th Cir. 1998). In determining whether the existing evidence is substantial, a reviewing court "must consider evidence that detracts from the [Commissioner's] decision as well as evidence that supports it." Warburton, 188 F.3d at 1050. A court "may not reverse the Commissioner's decision merely because substantial evidence exists in the record that would have supported a contrary outcome." Id.; Jackson v. Apfel, 162 F.3d 533, 537 (8th Cir. 1998).
IV. A.
Preliminarily, it must be noted, and the ALJ found, that Iron Heart is an alcoholic. In 1996, Title XVI of the Act was amended to eliminate alcoholism as a basis for obtaining supplemental security income benefits. Adams v. Apfel, 149 F.3d 844, 845 (8th Cir. 1998);Newton v. Chater, 92 F.3d 688, 695 n. 3 (8th Cir. 1996). Specifically, as amended, the Act provides that a claimant is not considered to be disabled if alcoholism is found to be a contributing factor material to the Commissioner's disability determination. 42 U.S.C. § 1382c(a)(3)(J). The "key factor" in ascertaining whether alcoholism is a material factor is whether the claimant would still be disabled if he stopped using alcohol. 20 C.F.R. § 416.935 (b)(1) (1999). In making this determination, the Commissioner must evaluate which of the claimant's current physical and mental limitations would remain if he stopped using alcohol and then determine whether any or all of the claimant's remaining limitations would be disabling. 20 C.F.R. § 416.935 (b)(2). If the Commissioner finds that the claimant's remaining limitations would not be disabling, the claimant's alcoholism is deemed to be a material factor. 20 C.F.R. § 416.935 (b)(2)(i). If, however, the Commissioner finds that the opposite is true (i.e., that the claimant's remaining limitations are disabling), then the claimant's alcoholism is not considered to be a material factor. 20 C.F.R. § 416.935 (b)(2)(ii). Here, substantial evidence exists that Iron Heart's chronic alcoholic abuse significantly impacted his overall condition so as to support the ALJ's finding that such abuse was a material factor to the question of whether or not Iron Heart was disabled.
B.
Iron Heart started drinking prior to his teenage years and first became intoxicated at age 12 when he began consuming up to two quarts of beer on Friday and Saturday nights. By age 15, he was drinking up to three times weekly, sharing three cases of beer and two fifths of vodka with three friends. At age 18, he and six others often drank up to four cases of beer, two and one-half gallon vodka bottles and a gallon of wine four times each week. When he reached his mid-twenties, Iron Heart was drinking on a daily basis. He reduced his drinking, by age 27, to two times monthly after his children were placed in foster care. At his childrens' request, he abstained from alcohol between ages 34 and 40 but from age 40 to 45, resumed a pattern of consuming up to a gallon and a half of wine over three-day weekends or one-week binges between two-or-three month periods of abstinence. From December, 1993 to May, 1994, Iron Heart drank daily, consuming unspecified amounts of wine. In May, 1994, he was hospitalized, and remained abstinent until August, 1994. Except for a one-day drinking episode in August, 1994, he continued to be alcohol-free until November, 1994, when he drank a combination of Listerine and wine over a several-day period and was committed, on an emergency basis, for inpatient treatment. Following his discharge, Iron Heart began drinking again, steadily increasing his frequency so that he was again consuming alcohol on a daily basis. In September, 1995, he was admitted for inpatient alcohol treatment a second time pursuant to a commitment arranged by his son. Thereafter, Iron Heart used alcohol periodically to numb his aches and pains or when he was depressed but, as of August 6, 1997, had not used alcohol for "quite awhile" and had the problem "under control."
In accordance with the Appeals Council's remand order, Iron Heart underwent a consultative psychological evaluation by Craig DeGree, Ph.D., on January 31, 1997. Dr. DeGree opined that from a psychological perspective, Iron Heart's "primary problem is one of alcohol dependency which has been severe and chronic." In Dr. DeGree's view, Iron Heart's alcoholism has led to and been a contributing cause of deteriorations in his physical and mental health.
Stephan Podrygule, Ph.D., a psychologist, gave testimony as a medical expert at the supplemental hearing. After reviewing all of the evidence of record, Dr. Podrygule testified that Iron Heart had an affective disorder (depression) and both a pain and substance addiction disorder. In evaluating Iron Heart's mental impairments, Dr. Podrygule testified that absent Iron Heart's alcohol abuse, he has had only slight restrictions in activities of daily living and social functioning, has seldom had deficiencies in concentration, persistence or pace resulting in failure to complete tasks in a timely manner, and, since 1980, has never had any episodes of deterioration or decomposition in work or work-like settings. Dr. Podrygule further testified that with alcoholism factored in, his restrictions in activities of daily living and social functioning rose from slight to moderate, his deficiencies of concentration, persistence or pace increased from seldom to often, and the episodes of deterioration or decomposition at the workplace went from never to repeatedly.
A vocational expert (VE) likewise testified at the supplemental hearing. In response to hypothetical questions based on Iron Heart's age, educational level, work skills and residual functional capacity, without alcohol use, the VE opined that Iron Heart could perform unskilled and non-complex jobs such as a gate attendant, toll collector, cashier, janitor and factory/assembly line laborer. The VE testified that these jobs existed in significant numbers, both nationally and regionally. According to the VE, alcoholism would have a negative impact on Iron Heart's ability to engage in substantial gainful activity and would make his chances of performing unskilled jobs, such as those listed above, "borderline."
C.
Without question, Iron Heart's alcohol dependency has had a profound effect on him, both physically and mentally, and on his ability to work. This being the case, the ALJ's finding that Iron Heart's alcoholism was a contributing and material factor to the determination of his disability is supported by substantial evidence in the record and must be sustained. Molloy v. Apfel, 77 F. Supp.2d 1009, 1011-13 (S.D. Iowa 1999).
V. A.
Iron Heart's physical limitations stem, for the most part, from degenerative disc disease, spondylolisthesis and other orthopedic problems. Iron Heart began reporting back pain more than a decade ago. In 1991, he was examined by Steven Stout, M.D., an orthopedic surgeon, following complaints of low back pain that radiated down to the dorsum of his right foot. During the examination, Dr. Stout noted that Iron Heart could bend over but that he had difficulty getting into an upright position and that his low back was tender and "extension" caused him a considerable amount of discomfort. Dr. Stout concluded that "[a]t this point, [Iron Heart] would certainly have difficulty having a job at which he has to stand or sit for any given length of time. He would certainly have a lot of trouble with any manual type of labor."
Almost three years later, on August 24, 1994, Iron Heart was seen by R.L. Jennings, M.D., a family practitioner. In his examination, Dr. Jennings reported that Iron Heart had full range of motion in his back, normal station and gait and that he could walk on his heels and toes, get in and out of a squatting position, get on and off the examining table as well as bend down and touch his toes with no difficulty. In Dr. Jennings' opinion, Iron Heart suffered from chronic alcoholism, with potential for chronic liver disease (although the disease was not yet present) and from spondylolisthesis and degenerative disc disease, but did not believe that he was disabled.
As part of the application process, E.J. Laskowski, M.D., a medical consultant, reviewed the evidence Iron Hart submitted and after doing so, assessed Iron Heart's residual physical functional capacity. In his assessment, Dr. Laskowski concluded that Iron Heart couldoccasionally lift, carry, push and/or pull twenty pounds, couldfrequently lift, carry, push and/or pull ten pounds and could stand, walk and/or sit for about six hours in an eight-hour workday. He also concluded that Iron Heart could occasionally climb ramps, stairs, ladders and scaffolds and could stoop, kneel, crouch and crawl and that he had no manipulative limitations. Dr. Laskowski opined that Iron Heart, despite his alcoholism and back problems, was capable of engaging in at least light work activity.
B.
This Court has reviewed the evidence of record that pertains to Iron Heart's physical impairments. The Court agrees with the ALJ's finding that Iron Heart, assuming his alcoholism remained in a controlled state, was capable of meeting the physical demands of the light work activity described by Dr. Laskowski and the VE. See Jackson, 162 F.3d at 535-38. The record contains substantial evidence that Iron Heart's physical condition was not severe enough to functionally prevent him from engaging in basic work activities or from performing substantial gainful employment. See 20 C.F.R. § 416.920, 416.921 (1999).
Iron Heart also reported having other physical ailments, all of which appear to be tied to his alcohol use, including a gastric ulcer, liver abnormalities and diabetes. His gastrointestinal complaints, however, have resolved themselves with treatment and there is no evidence that he currently has any complications resulting from alcohol-induced liver disease (or that he even has such a disease). similarly, there is no medical evidence of record that shows Iron Heart's diabetic condition would have anything more than a minimal impact on his ability to perform work-related activities and such cannot be considered a severe impairment.
Although Iron Heart claims to have had two heart attacks for which he was hospitalized, there is nothing in the record to substantiate that he suffers from a disabling cardiac impairment.
VI. A.
In addition to his physical limitations, Iron Heart alleged that he suffers from mental problems, including dysthymia, depression and an avoidant personality disorder. The ALJ determined that Iron Heart's mental impairments, absent his alcohol addiction problem, did not result in severe limitations so as to render him "disabled" under the Act and implementing regulations thereof. On thorough review of the record, this Court believes that there is substantial evidence to support the ALJ's determination.At the outset, no significant limitations of mental functioning were noted either time Iron Heart was admitted for alcohol treatment. On both occasions, he was conscious, alert and oriented and his stream of speech and thought content were relevant and logical. No psychotic manifestations, (i.e., delusions, hallucinations or bizarre behavior) were noted, his insight and judgment were not grossly impaired and he was not suicidal.
During his examination of Iron Heart, Dr. DeGree reported that although Iron Heart appeared slightly depressed, he had an average intelligence, no impairments in thinking or memory problems, and good calculation ability. In his test scores and profile, Iron Heart "endorsed a high frequency of pathological items" which Dr. DeGree thought might represent some attempt, on the part of Iron Heart, to make himself appear bad. Dr. DeGree believed that Iron Heart's main problem was alcohol dependence. He also believed that Iron Heart's low back pain may be exaggerated by his depression disorder. He was likewise of the opinion that Iron Heart had avoidant personality characteristics which made him prone to use alcohol and made it difficult for him to function in a job setting involving a great deal of social interaction.
False or exaggerated responses to examinations are entitled to be weighted against a claimant when determining whether a disabling impairment exists. See Lawrence v. Chater, 107 F.3d 674, 676-77 (8th Cir. 1997); Chamberlain v. Shalala, 47 F.3d 1489, 1495 (8th Cir. 1995).
In an accompanying mental assessment, Dr. DeGree rated Iron Heart as "good" in his ability to follow work rules, interact with supervisors, to understand, remember and carry out complex, detailed and simple job instructions, to maintain personal appearance, to behave in an emotionally stable manner, and to relate predictably in social situations. Moreover, he rated Iron Heart as "fair" in his ability to relate to co-workers, to deal with the public, to use judgment with the public, to deal with work stresses, and to function independently and in a reliable manner. The only areas in which Dr. DeGree thought Iron Heart had significant problems were in maintaining attention and concentration and, if drinking, in his ability to demonstrate reliability.
As mentioned earlier herein, Dr. Podrygule assessed the degree of Iron Heart's functional loss resulting from his mental impairments and rated him in accordance with the scale described in 20 C.F.R. § 416.920a (1999). The ratings Dr. Podrygule gave to Iron Heart in each of the four relevant areas of function indicated that, absent alcohol use, Iron Heart's impairments were not severe enough to significantly limit his mental ability to do basic work activities. See 20 C.F.R. § 416.920a(c)(1) ("If the four areas considered by us as essential to work have been rated to indicate a degree of limitation as `none' or `slight' in the first and second areas, `never' or `seldom' in the third area, and `never' in the fourth area, we can generally conclude that the impairment is not severe . . ."). Dr. Podrygule's assessment and rating is consistent with the evidence of record. Iron Heart does not appear to have any significant limitations in activities of daily living or social functioning. He lives with his son and his son's family, provides child care when needed and performs light household chores.
While the record suggests that Iron Heart may have some difficulty in making friends, there is no indication that his mental impairments interfered with his ability to get along and interact with household family members. The fact that Iron Heart demonstrated good verbal skills, intact concentration and short-term memory supports Dr. Podrygule's conclusion that Iron Heart would seldom have deficiencies in concentration, persistence or pace. Although admittedly, Iron Heart's 1979 suicide attempt might be suggestive of deterioration or decomposition in work or work-like settings, this incident is remote in time to the issue of whether or not Iron Heart was disabled at or around the time he filed his application for SSI benefits in 1994.
B.
Based on the record as a whole, there is ample evidence to support the ALJ's finding that Iron Heart's mental limitations were not severe so as to render him disabled. Because of this, the ALJ's decision, with respect to Iron Heart's mental impairment claim, is clearly correct and must be upheld. Jackson, 162 F.3d at 537-38; see also, Comstock v. Chater, 91 F.3d 1143, 1146-47 (8th Cir. 1996).
VII. A.
Iron Heart contends that the ALJ improperly discredited his subjective complaints of pain. "As is true in many disability cases, there is no doubt that a claimant is experiencing pain; the real issue is how severe that pain is." Haggard v. Apfel, 175 F.3d 591, 594 (8th Cir. 1999) (quoting Woolf, 3 F.3d at 1213)). When considering subjective complaints, the ALJ is required to make a credibility determination by taking into account: (1) the claimant's daily activities; (2) their duration, frequency, and intensity of the pain; (3) dosage, effectiveness and side-effects of medication; (4) precipitating and aggravating factors; and (5) functional restrictions. Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). Other relevant factors include the claimant's relevant work history and the absence of objective medical evidence to support the complaints. Id. The ALJ may discount such complaints if, but only if, there are inconsistencies in the record as a whole. Jackson, 162 F.3d at 538; Spradling v. Chater, 126 F.3d 1072, 1075 (8th Cir. 1997).
A review of the record reveals that the ALJ properly evaluated Iron Heart's subjective complaints of pain in accordance with applicable regulations and Eighth Circuit precedent, considering not only the medical evidence discussed above, but also various non-medical factors. See 20 C.F.R. § 416.929 (1999); Gray v. Apfel, 192 F.3d 799, 803-05 (8th Cir. 1999); Lawrence, 107 F.3d at 676-77; Miller v. Shalala, 8 F.3d 611, 613 (8th Cir. 1993). After evaluating the evidence and noting innumerable inconsistencies contained in the same, the ALJ found that Iron Heart's complaints of pain were not credible to the extent that he was unable to perform any type of work and was therefore totally disabled. See Gray, 192 F.3d at 803-05;Haggard, 175 F.3d at 594-95; Jackson, 162 F.3d at 538. This Court sees no need to disturb the decision of the ALJ, who plainly considered, but for good cause expressly discredited, Iron Heart's complaints of pain. See Reed v. Sullivan, 988 F.2d 812, 815 (8th Cir. 1993).
B.
Aside from the medical/psychological evidence and opinions discussed above, the ALJ considered other evidence of record in assessing the credibility of Iron Heart's subjective complaints of pain. For example, in 1995 when Iron Heart was hospitalized for alcohol treatment, he made no complaints of back pain and even expressed a desire to obtain full time employment and an interest in teaching the Lakota language to children. Moreover, Iron Heart has not had any regular treatment for his complaints of back pain since 1994 and on those occasions when he did seek treatment, a simple prescription of Motrin provided him with pain relief. Furthermore, Iron Heart's activities were not indicative of a person suffering from disabling pain. Contrary to Iron Heart's assertion that he only watched his grandchildren when they were sick, his son testified that Iron Heart cared for his grandchildren four hours a day, up to five days a week, and otherwise provided child care for them. Iron Heart himself testified that he cooked his own breakfast, washed dishes and did housework with rest periods in between. He also testified at the initial hearing that he sometimes went with his son to play pool or basketball and throw horseshoes. These activities supported the Commissioner's decision that Iron Heart's pain was not severe enough to prohibit him from performing light work. See Qualls v. Apfel, 158 F.3d 425, 427-28 (8th Cir. 1998); Johnson v. Chater, 108 F.3d 942, 947 (8th Cir. 1997). While Iron Heart maintains he could not afford pain medication, he reported to Dr. DeGree that he and his acquaintances did spot jobs to earn money for alcohol, thus suggesting that he would likewise be capable of obtaining funds to purchase medication. See Riggins v. Apfel, 177 F.3d 689, 693 (8th Cir. 1999) (where claimant was able to procure finances for his three-pack-a-day smoking habit, his allegation that he could not afford pain medication was not persuasive).
VIII.
In a similar and related argument, Iron Heart asserts that the ALJ improperly discounted Dr. Stout's opinions regarding Iron Heart's limited ability to perform a job that required him to stand or sit for lengthy periods of time. According to Iron Heart, under 20 C.F.R. § 416.927 (1999), the ALJ should have given more weight to the opinions of Dr. Stout than those of other health care providers, because Dr. Stout is a specialist who offered opinions about medical issues related to his area of specialty. Dr. Stout, however, only examined Iron Heart on one occasion (approximately two and one-half years before he filed his application for SSI benefits) and thus cannot be considered a treating physician. Id. Moreover, Dr. Stout's opinions, insofar as they stand for the proposition that Iron Heart was unable to stand or sit for any given length of time, are inconsistent with the opinions of other health care providers, who more recently assessed his physical condition, and with the evidence as a whole. An ALJ may resolve any conflicts among the opinions of examining physicians and this Court is convinced that the ALJ acted well within his authority in discrediting the opinions of Dr. Stout.Prosch, 2000 WL 124527 at **2-4.
IX.
Lastly, Iron Heart claims that the ALJ erred in failing to accept the opinion of the VE. According to Iron Heart, the VE testified that Iron Heart's physical impairments prevented him from working and therefore established that he was disabled.
The VE was requested to consider three separate hypothetical situations. In the first hypothetical, VE was asked the following:
Hypothetically speaking, if I had a person of the claimant's age and his education and his work experience and if that person had all of the limitations as described by the claimant in his testimony here today and if I found — if that were an accurate vocational picture, could that person do past work as described by the claimant or as done in the national economy?
Tr. 445. The VE replied:
No, they could not. The past work minimally would require being on your feet pretty much the full work day and lifting beyond what has been described as limits.Id. The ALJ followed up by inquiring whether Iron Heart could perform any other work in the national economy. The VE again replied:
Probably not. Again, the, the issue being the back pain as described in a description of some days, not even being able to get out of bed until noon, problems even with sitting or he has to prop himself up. Assuming those, those limitations and really an intolerance for a full work day, that would not be compatible with competitive work . . . .Id.
In the second hypothetical, the VE was asked to make some different assumptions regarding Iron Heart's functional abilities:
. . . [S]o hypothetically speaking, if I [ac]cepted DDS' evaluation where they have indicated they thought he could do light work, stand six hours, sit six hours, left, handle, grasp and so forth, but no limitations other than restricting it to light work, but then factoring in Dr. Podrygule's slight restrictions of activities of daily living, slight difficulties in maintaining social functioning, seldom deficiencies of concentration, persistence or pace and once or twice episodes of deterioration or decomposition, could a person with those limitations do anything recognized as substantial gainful activity in the national economy?
This refers to the disability determination and residual physical functional capacity assessment done by Dr. Laskowski in November, 1994. See Tr. 123-33.
Tr. 446. The VE responded in the affirmative to this hypothetical, saying:
. . . Dr. Podrygule's limitations would not limit a person from doing the more unskilled, non-complex-type jobs, so you've got the pretty close to the full range of light and sedentary unskilled-type of work.
Tr. 446-47. When asked if he could provide some examples of light work that would fall into this category, the VE stated as follows:
Varied, attendant-type jobs, gate attendant, toll collector, cashier jobs. There are cleaning person, janitorial jobs, a wide range of, of factory-type jobs, again, some of the ones that I described earlier, the assembly-type jobs and, and a large list beyond that and those are of the very common nationally. They're found in the hundreds of thousands and in this region, which is Minnesota, North Dakota and South Dakota, there are several thousand of each.
Tr. 447.
The VE was then queried as to whether the opinion he gave, in response to the preceding hypothetical question, would change if the alcohol aspects of Dr. Podrygule's assessment were factored into the question. The VE indicated that the addition of alcohol into the equation would indeed affect his opinion and make Iron Heart's ability to work "kind of borderline." The VE went on to explain his response:
It, it would be tough to be say it would preclude all work, but is it certainly a, a significant level, especially the repeated episodes and so forth. It would certainly have impact. I, I couldn't quite say whether it would rule out these types of jobs that I mentioned. These, again, are, are non-complex jobs, not requiring high degrees of concentration. They do not require a lot of significant interaction with the public and so on, so it, it would be borderline, but it would definitely have a negative impact.Id.
Testimony from a VE "based on a properly-phrased hypothetical question constitutes substantial evidence." Haggard, 175 F.3d at 595;Roe v. Chater, 92 F.3d 672, 675 (8th Cir. 1996). The ALJ's hypothetical question need only include those impairments which are accepted as true by the ALJ. Haggard, 175 F.3d at 595; Davis v. Shalala, 31 F.3d 753, 755 (8th Cir. 1994).
The second hypothetical question posed to the VE set forth with sufficient precision a set of limitations that are supported by the record as a whole. The question factors in both Iron Heart's physical limitations, taken from Dr. Laskowki's disability determination and functional assessment, and Iron Heart's mental impairments, as testified to by Dr. Podrygule. This Court is satisfied, after careful study of the entire record, that the question adequately set forth Iron Heart's impairments/limitations and was not deficient under relevant case law of this Circuit. See Prosch, 2000 WL 124527 at *4;Roe, 92 F.3d at 675-77.
To say or even suggest that the VE's testimony regarding Iron Heart's physical impairments clearly showed that he could not work, is a misnomer. The VE's opinion regarding Iron Heart's inability to work was based on the limitations described by Iron Heart himself in the first hypothetical question and not those shared by the two consultative professionals who were asked to assess his physical and mental condition and how his alcoholism affected the same. Once the limitations identified by Drs. Laskowki and Podrygule and Iron Heart's alcohol dependency were factored in, it is clear from the VE's testimony that Iron Heart would not be disabled if he abstained from alcohol use.
X.
Upon due consideration of the record in light of applicable precedent, this Court believes that there is substantial evidence on the record as a whole to affirm the decisions of the ALJ, the Appeals Council and the Commissioner, and that the Commissioner is entitled to judgment as a matter of law, there being no material issue of fact under Fed.R.Civ.P. 56. Accordingly, based on the foregoing findings of fact and legal discussion and pursuant to 28 U.S.C. § 636 (b), it is hereby
RECOMMENDED that the Commissioner's Motion for Summary Judgment, Docket No. 20, be GRANTED and that the case be dismissed in its entirety and with prejudice.
BY THE COURT:
ATTEST: JOSEPH HAAS, CLERK BY: Deputy Clerk Deputy
MARK A. MORENO UNITED STATES MAGISTRATE JUDGE
NOTICE
Failure to file written objections to the within and foregoing Report and Recommendation for Disposition within ten (10) days from the date of service shall bar an aggrieved party from attacking such Report and Recommendation before the assigned United States District Judge. See 28 U.S.C. § 636 (b)(1).