JASON L.,

Plaintiff, Civil Action No. 3:19-CV-0976 (DEP) v.

ANDREW M. SAUL, Commissioner of Social Security,

Defendant.

APPEARANCES: OF COUNSEL:

FOR PLAINTIFF

LACHMAN, GORTON LAW FIRM PETER A. GORTON, ESQ. Attorneys at Law 1500 Main Street Endicott, NY 13761

FOR DEFENDANT HON. GRANT C. JAQUITH CANDACE LAWRENCE, ESQ. United States Attorney Special Assistant U.S. Attorney P.O. Box 7198 100 S. Clinton Street Syracuse, NY 13261-7198

DAVID E. PEEBLES U.S. MAGISTRATE JUDGE

ORDER Currently pending before the court in this action, in which plaintiff seeks judicial review of an adverse administrative determination by the Commissioner of Social Security, pursuant to

(g) and 1383(c)(3), are cross-motions for judgment on the pleadings.1 Oral argument was heard in connection with those motions on August 3, 2020, during a telephone conference conducted on the record. At the close of

argument I issued a bench decision in which, after applying the requisite deferential review standard, I found that the Commissioner=s determination resulted from the application of proper legal principles and is supported by substantial evidence, providing further detail regarding my reasoning and

addressing the specific issues raised by the plaintiff in this appeal. After due deliberation, and based upon the court=s oral bench decision, which has been transcribed, is attached to this order, and is

incorporated herein by reference, it is hereby ORDERED, as follows: 1) Defendant=s motion for judgment on the pleadings is

GRANTED. 2) The Commissioner=s determination that the plaintiff was not disabled at the relevant times, and thus is not entitled to benefits under the Social Security Act, is AFFIRMED.

1 This matter, which is before me on consent of the parties pursuant to 28 U.S.C. ' 636(c), has been treated in accordance with the procedures set forth in General Order No. 18. Under that General Order once issue has been joined, an action such as this is considered procedurally, as if cross-motions for judgment on the pleadings had been filed pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. 3) The clerk is respectfully directed to enter judgment, based

upon this determination, DISMISSING plaintiff's complaint in its entirety.

David E. Peebles U.S. Magistrate Judge

Dated: August 11, 2020 Syracuse, NY

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK -------------------------------------------------------x JASON L.,

Plaintiff,

vs. 3:19-CV-976

ANDREW SAUL, Commissioner of Social Security, Defendant. -------------------------------------------------------x DECISION - August 3, 2020 HONORABLE DAVID E. PEEBLES United States Magistrate Judge, Presiding

APPEARANCES (by telephone) For Plaintiff: LACHMAN, GORTON LAW FIRM Attorneys at Law 1500 East Main Street Endicott, NY 13761 BY: PETER A. GORTON, ESQ.

For Defendant: SOCIAL SECURITY ADMINISTRATION 15 New Sudbury Street Boston, MA 02203 BY: CANDACE LAWRENCE, ESQ.

Eileen McDonough, RPR, CRR Official United States Court Reporter P.O. Box 7367 Syracuse, New York 13261 (315)234-8546 1 THE COURT: Let me begin by thanking counsel for 2 their excellent and succinct presentations, both written and 3 orally. I found this to be an interesting case. 4 The plaintiff has commenced this proceeding 5 pursuant to

(g) and 6 1383(c)(3) to challenge a determination by the Commissioner 7 of Social Security finding that plaintiff was not disabled at 8 the relevant times; therefore, ineligible for the benefits 9 which he sought. 10 The background is as follows. The plaintiff was 11 born in February of 1979. He is currently 41 years old. He 12 was 33 years of age at the time of the alleged onset of his 13 disability in June of 2012, and 39 years old at the time the 14 Administrative Law Judge rendered a decision in this case. 15 Plaintiff stands 5-foot, 11-inches in height and weighs 16 between 195 and 208 pounds, depending on the reference in the 17 record. 18 Plaintiff is divorced. He lives in a trailer in 19 Endicott, New York, with his mother, father, and son, who was 20 17 years old at the time of the hearing in this matter, July 21 of 2018. For a period of time, including in May of 2017, he 22 lived in a shelter, having had difficulties in the home 23 setting. 24 Plaintiff is right-handed. He obtained a GED in 25 1999. He finished eleventh grade, and while in school was in 1 regular non-special education classes. Plaintiff did not at 2 the time of the hearing have a driver's license; it had been 3 suspended due to his driving while intoxicated conviction, 4 but it appears that he may have obtained his license back. 5 Plaintiff stopped working in June of 2012. The 6 evidence is conflicting as to the reason for stopping. He 7 testified that he quit due to anxiety and panic attacks; he 8 had a conflict with the manager. However, he told an 9 evaluator at the Addiction Center for Broome County, at 10 page 250, that he quit to care for his mother. 11 Plaintiff was employed at National Pipe and 12 Plastics in 2003 where he made pipes and drove a forklift. 13 He was a charter bus cleaner from April 2005 to December 14 2006; a janitor from December 2006 to June of 2007; an oil 15 changer from September 2007 to October 2007. He was a 16 factory worker at Shop Vac from January 2008 to 17 November 2008. Thereafter, there is a significant gap where 18 he testified at page 38 that he did not work. He was a sub 19 maker in March of 2012 until he stopped working in June of 20 2012. 21 Physically, plaintiff suffers from some 22 impairments; RLS, acid reflux, hypertension. 23 Mentally, he suffers from anxiety disorder, 24 depressive disorder, panic disorder without agoraphobia, 25 panic attacks. Although, according to LCSW Olsen in her 1 letter he no longer experiences panic attacks. He suffers 2 from alcohol dependence in early remission. There is 3 evidence that he attempted suicide in or about 4 September 2016, slitting his wrists after a breakup. He was 5 also hospitalized at Wilson Hospital for detoxification in 6 2007. He has undergone inpatient treatment at New Horizons 7 for alcohol abuse and outpatient treatment at the Addiction 8 Center of Broome County, or ACBC. The outpatient treatment 9 appears to have been commenced in August of 2015 where there 10 was a referral from a Maine Town court. He was discharged 11 for noncompliance from that program in March of 2016. There 12 was also a relapse in November of 2015 while engaged in that 13 program when he was arrested and convicted for driving while 14 intoxicated. 15 The testimony and evidence is equivocal as to when 16 plaintiff was drinking and when he maintained a period of 17 sobriety. He testified he drank on and off in 2016 and 2017, 18 which the records support; he stopped drinking in April of 19 2017 but drank on June 30, 2017. He re-entered 20 rehabilitation with ACBC in 2017. He testified that he has 21 been sober since December of 2017. The plaintiff has been 22 prescribed and is currently on Gabapentin, Valium, 23 Wellbutrin, Nexium. In the past he has also been prescribed 24 Zoloft, Celexa, Remeron, Cymbalta, Disteril, Mirapex, 25 Diazepam, Omeprazole, Atenolol, Tenormin. He uses Effexor, 1 Prozac and Albuterol inhaler. 2 In terms of activities of daily living, plaintiff 3 is capable of bathing, grooming, dressing, does some 4 shopping, cooks, including for his son, can wash dishes, do 5 laundry, clean, takes trash to the landfill, does yard work. 6 He is active on social media, watches television. He listens 7 to music. He volunteers at the EPAC Arts Center, supports 8 his disabled mother, and he enjoys watching wrestling. 9 The plaintiff had a fight with his son and was 10 convicted of harassment, and I am trying to piece together 11 the records, that may have been the reason for the referral 12 by the Town of Maine court. He has used marijuana since age 13 18 and still does approximately two times per week. He has 14 consumed alcohol since his early twenties, at one point he 15 pinpointed that at age 22 for his first drink. Plaintiff is 16 also a heavy smoker; he smokes ten to twenty cigarettes per 17 day and has for twenty years. 18 Procedurally, plaintiff applied for Title II and 19 Title XVI benefits under the Social Security Act on 20 February 11, 2016. In his application he alleged an onset 21 date of June 1, 2012, and claimed disability based on 22 insomnia, anxiety, depression and alcohol addiction. A 23 hearing was conducted by Administrative Law Judge Robert A. 24 Lynch on July 10, 2018 to address plaintiff's application. 25 On September 14, 2018, Administrative Law Judge, or ALJ, 1 Lynch issued an unfavorable decision which became a final 2 determination of the Agency on June 26, 2019, when the Social 3 Security Administration Appeals Council denied plaintiff's 4 application for review of that decision. 5 This action was commenced on August 8, 2019, and is 6 timely. In his decision, ALJ Lynch applied the familiar 7 five-step test for determining disability and the 8 modification called for in cases of drug and alcohol 9 dependency or abuse. He first went to the analysis 10 considering all of plaintiff's impairments, including his 11 alcohol abuse. He found plaintiff had not engaged in 12 substantial gainful activity since June 1, 2012. 13 At step two, he concluded that plaintiff suffers 14 from severe impairments, including affective disorders, 15 including unspecified depressive disorder and persistent 16 depressive disorder; anxiety disorders variously described as 17 unspecified anxiety disorder and generalized anxiety 18 disorder; panic disorder without agoraphobia; personality 19 disorder with dependent, narcissistic, and antisocial traits; 20 post-traumatic stress disorder; and alcohol abuse, early 21 remission. 22 At step three, ALJ Lynch concluded that plaintiff's 23 conditions do not meet or medically equal any of the listed 24 presumptively disabling conditions set forth in the 25 Commissioner's regulations, specifically considering listings 1 12.04, 12.06, 12.08 and 12.15. 2 The ALJ next concluded that regardless of 3 notwithstanding his impairments, plaintiff retains the 4 residual functional capacity, or RFC, to perform work at all 5 exertional levels, but limited the work requirements based on 6 the mental impairments noted, and significantly included that 7 when abusing substances, the claimant cannot consistently 8 complete a forty hour workweek due either to absences or 9 being off task for 16 percent or more of the day or needing 10 to leave work early. 11 At step four, considering the effects of 12 plaintiff's alcohol abuse, the ALJ concluded that plaintiff 13 is unable to perform his past relevant work. 14 And at step five, concluded that there is no work 15 available in the national or local economy that plaintiff is 16 capable of performing given the RFC. 17 The Administrative Law Judge then went back to 18 consider what, if any, effects the alcohol abuse had on 19 plaintiff's residual functional capacity and whether it was 20 material to that finding. He found at step two that 21 plaintiff would still suffer from all of the mental 22 impairments noted in the prior analysis with the exception of 23 the alcohol abuse. 24 At step three, he concluded that plaintiff would 25 still not meet or medically equal any of the listed 1 presumptively disabling conditions. The RFC finding, absent 2 the effects of alcohol abuse, were similar to those 3 previously found with the notable exception that it was no 4 longer found that when abusing substances, the claimant 5 cannot consistently complete a forty hour workweek due to 6 either absences or being off task for 16 percent or more per 7 day or needing to leave work early. 8 At step four, the Administrative Law Judge 9 concluded that if plaintiff stopped drinking alcohol and 10 abusing alcohol, he could work in one of his past relevant 11 positions as a Commercial Cleaner and Cleaner II based on 12 testimony of a vocational expert. 13 Alternatively, ALJ Lynch proceeded to step five and 14 found that, according to the testimony of a vocational 15 expert, plaintiff could also work in other available 16 positions, including as a stubber, an automotive detailer, 17 and a spiral binder, and, therefore, is not disabled at the 18 relevant times. And specifically found that plaintiff's 19 alcohol abuse was a contributing factor material to 20 determining disability. 21 As you know, my task is limited. The test that the 22 Court must apply is exceedingly deferential. The Court must 23 determine whether correct legal principles were applied and 24 the resulting determination is supported by substantial 25 evidence. 1 Substantial evidence is an exacting standard. It 2 is even more stringent than the clearly erroneous standard 3 that attorneys are well familiar with. The Court noted in 4 Brault versus Social Security Administration,

, 5 the substantial evidence standard means once an ALJ finds a 6 fact, that fact can be rejected only if a reasonable 7 factfinder would have to conclude otherwise. 8 In this case plaintiff raises two contentions. The 9 first is that the residual functional capacity finding 10 without the effects of alcohol is not supported by any 11 medical evidence. And the second is a challenge on step 12 five, and it's two-pronged. The first challenge is the 13 vocational expert's job numbers since he used numbers for 14 broad OES categories that contain many positions besides 15 those that were identified that plaintiff could perform. And 16 also concluded that the step five determination is not 17 supported and the Commissioner did not carry his burden at 18 step five because the hypothetical is based on a flawed 19 residual functional capacity. 20 The backdrop, of course, is that it is plaintiff's 21 burden to establish disability through step four, including 22 at the residual functional capacity step under Poupore. This 23 is a case involving potential substance abuse. When there is 24 medical evidence of an applicant's drug or alcohol abuse, the 25 disability inquiry does not end with a step five analysis. 1 Cage versus Commissioner of Social Security,

, 2 that's at page 123 pincite (Second Circuit 2012.) 3 Under the Contract with America Advancement Act 4 adopted by Congress in 1996, it provides that, "An individual 5 shall not be considered to be disabled if alcoholism or drug 6 addiction would be a contributing factor material to the 7 Commissioner's determination that the individual is 8 disabled." That also appears under 42, United States Code, 9 Section 1382c(a)(3)(J), as well as in the regulations at 20 10 CFR Section 416.935. 11 The critical question then is whether the claimant 12 would be found disabled if he stopped using drugs or alcohol. 13 The burden, of course, of demonstrating that substance abuse 14 is not a contributing factor material to the disability 15 determination rests with the claimant. 16 In this case there are, as the Commissioner noted, 17 four medical opinions in the record. The first is from 18 Dr. Mary Ann Moore, a psychologist, who examined the 19 plaintiff one time on May 11, 2016. Interestingly, the 20 plaintiff told the examining psychologist that he was in an 21 outpatient program at the ACBC from August of 2015 to May of 22 2016, and that he recently completed the program. That's at 23 340. We know, of course, that he was actually discharged 24 from the program in March of 2016 for noncompliance. 25 It is questionable. I agree with plaintiff that we 1 shouldn't draw any adverse inferences, but part of the 2 problem in this case for both the Administrative Law Judge 3 and the Court, quite frankly, is it has been difficult to 4 pinpoint plaintiff's periods of sobriety and he suffers from 5 some credibility issues in that regard. 6 In her medical source statement, Dr. Moore stated 7 the following, "Claimant shows no evidence of limitation with 8 regard to following and understanding simple directions and 9 instructions, performing simple tasks independently. Mild 10 limitation with regard to maintaining attention and 11 concentration, learning new tasks, performing complex tasks 12 independently. Moderate limitation with regard to 13 appropriately dealing with stress. Moderate to marked 14 limitation with regard to relating adequately with others, 15 making appropriate decisions, and maintaining a regular 16 schedule." 17 The Administrative Law Judge indicated that the 18 opinion should be given substantial weight except with 19 respect to the opinion about relating to others, making 20 appropriate decisions and maintaining a regular schedule. 21 The remaining limitations are accounted for in plaintiff's 22 residual functional capacity pursuant to the Administrative 23 Law Judge. Again, it was noted that one of the issues is 24 that it relies on plaintiff's statement that he maintained 25 sobriety since November of 2015. 1 The second opinion comes by way of a letter from 2 Nan, or Nancy, Olsen, Licensed Clinical Social Worker. It is 3 not dated. It appears at 346 to 347 of the record. It is 4 attributed, according to the index to the Administrative 5 Transcript, to a date of June 14, 2016. Again, it's unclear 6 as to whether this was a period of sobriety. But, in any 7 event, the opinion given in this letter includes the 8 following: It notes, "His fear of groups and lack of 9 transportation has kept him from attending AA meetings, and 10 he has struggled to find ways to earn money to pay a fine 11 from his DUI due to his fear of entering new situations. In 12 spite of this, Jason did manage to pay the fine, and will 13 regain the ability to drive at the end of this year. He 14 spends his days helping his parents with chores and cooking, 15 but states that he continues to have difficulty leaving the 16 house. He no longer has panic attacks, but does continue to 17 experience anxiety sufficient to interfere with normal 18 activities, particularly in social settings." The 19 Administrative Law Judge did not give weight to this letter, 20 although does rely on it to support his ultimate finding at 21 page 25 with regard to the materiality issue. 22 The third is from Physician Assistant Susan 23 Anderson. It is dated June 18, 2018. And, significantly, it 24 opines that plaintiff would be off task less than 15 percent 25 but absent two days per month. 1 And the fourth is from non-examining psychologist 2 Dr. S. Bhutwala, who rendered an opinion on May 13, 2016 3 based upon a review of the records. Dr. Bhutwala did note 4 moderate limitations in the ability to perform activities 5 within a schedule, maintain regular attendance, and be 6 punctual within customary tolerances. That's at page 82. 7 And moderate limitation in the ability to complete a normal 8 workday and workweek without interruptions from 9 psychologically based symptoms and to perform at a consistent 10 pace without an unreasonable number and length of rest 11 periods. 12 In his mental RFC opinion, Dr. Bhutwala concludes 13 that plaintiff is capable of performing unskilled low contact 14 work. The Administrative Law Judge afforded Dr. Bhutwala's 15 opinion substantial weight when not using alcohol, at page 19 16 and 20. Dr. Bhutwala's opinions do support the residual 17 functional capacity. 18 I have carefully reviewed all of the available 19 records in this case, and I agree with the Commissioner that 20 in the periods that we know for certain plaintiff has 21 maintained sobriety, it shows that his depression and anxiety 22 improved and were controlled with medications. Under the 23 Second Circuit's decision in Smith v. Berryhill,

721, from the Second Circuit, June 29, 2018, this is a 25 relevant consideration and can provide support. 1 Administrative Law Judge Lynch discussed those 2 records extensively at 17 through 20 and 24 through 25 of his 3 decision. Two of the records, for example, are from 4 Physician Assistant Anderson, whose treatment notes are 5 fairly normal. For example, in August of 2015, a time of 6 abstinence, at page 303, the records are relatively benign 7 concerning plaintiff's psychological issues. Again, in 8 September 2015, while he is in treatment and before his 9 November 2015 relapse, at page 331, again they're benign. 10 And other records from periods of known sobriety support 11 that. 12 The consideration of and comparison of treatment 13 records during periods of sobriety versus periods of abuse is 14 a relevant consideration under Roe versus Colvin, a decision 15 from one of my colleagues, reported at

16 (Northern District of New York September 29, 2016). 17 So, the bottom line is after carefully reviewing 18 the medical records and the Administrative Law Judge's 19 decision and knowing that there is considerable confusion as 20 to when plaintiff was and was not abusing alcohol, I find 21 that the plaintiff has failed to prove that no reasonable 22 factfinder could conclude as the Administrative Law Judge 23 that alcohol abuse was material for the finding of 24 disability. The determination then, the residual functional 25 capacity is supported by substantial evidence. 1 Turning to step five, clearly there is an admitted 2 error. The vocational expert in this case did rely on OES 3 numbers, and did not get the granular analysis required of 4 the jobs and titles cited that fall within those OES broad 5 categories. That error is harmless, however, as the 6 Commissioner has pointed out, because the finding at step 7 four, the plaintiff is capable based on his residual 8 functional capacity absent the effects of alcohol of 9 performing his job of past relevant work as a Commercial 10 Cleaner and Cleaner II, both as generally performed and as 11 actually performed by him. Therefore, the finding at step 12 four is supported by substantial evidence and any error at 13 step five is harmless. 14 As to the second prong of the step five argument, 15 because I found the residual functional capacity is supported 16 by substantial evidence, the hypothetical posed to the 17 vocational expert was proper and the vocational expert's 18 testimony was sufficient to carry the Commissioner's burden 19 at step five. 20 In conclusion, I find that the determination 21 resulted from the proper consideration of legal principles 22 and is supported by substantial evidence. I will grant 23 judgment on the pleadings to the defendant and order 24 dismissal of plaintiff's complaint. 25 Thank you both for excellent presentations. I hope 1 you stay safe in these interesting, trying times. 2 * * * 3 4 C E R T I F I C A T I O N 5 6 I, EILEEN MCDONOUGH, RPR, CRR, Federal Official 7 Realtime Court Reporter, in and for the United States 8 District Court for the Northern District of New York, 9 do hereby certify that pursuant to Section 753, Title 28, 10 United States Code, that the foregoing is a true and correct 11 transcript of the stenographically reported proceedings held 12 in the above-entitled matter and that the transcript page 13 format is in conformance with the regulations of the 14 Judicial Conference of the United States. 15 16 17 18 ________________________________ 19 EILEEN MCDONOUGH, RPR, CRR Federal Official Court Reporter 20 21 22 23 24 25