Cordero v. Astrue

• Decision Date: 17 June 2008
• Docket Number: No. 06 Civ. 13289(VM).,06 Civ. 13289(VM).
• Citation: 574 F.Supp.2d 373
• Parties: Edwin CORDERO, Plaintiff, v. Michael J. ASTRUE, Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Southern District of New York

574 F.Supp.2d 373

Edwin CORDERO, Plaintiff, v. Michael J. ASTRUE, Commissioner of Social Security, Defendant.

No. 06 Civ. 13289(VM).

United States District Court, S.D. New York.

June 17, 2008.

Opinion Denying Reconsideration July 7, 2008.

COPYRIGHT MATERIAL OMITTED

Steven Banks, The Legal Aid Society Bronx Neighborhood Office, Bronx, NY, for Plaintiff.

John E. Gura, Jr., U.S. Attorney's Office, New York, NY, for Defendant.

DECISION AND ORDER

VICTOR MARRERO, District Judge.

Plaintiff Edwin Cordero ("Cordero") brought this action for review of the final determination by the Commissioner of Social Security (the "Commissioner")¹ denying Cordero's claim for Supplemental Security Income ("SSI") benefits under the Social Security Act (the "Act"), 42 U.S.C. §§ 405(g) ("405(g)"), 1383(c)(3) (2006). Cordero now moves for judgment on the pleadings and the Commissioner crossmoves for judgment on the pleadings. For the reasons discussed below, the Court denies Cordero's motion and grants the Commissioner's cross-motion.

I. BACKGROUND²

Cordero applied for SSI benefits on June 30, 2003,³ claiming that he was unable to work due to psychological impairments. After Cordero's application was denied in an initial administrative review, Cordero requested a hearing, which was held on September 27, 2005 (the "Hearing"). By Order dated January 23, 2006 (the "Decision") the Administrative Law Judge ("ALJ") denied Cordero's application, finding that, although Cordero had been technically disabled within the meaning of the Act, he was not entitled to SSI benefits because his drug abuse was a material contributing factor to his disability.

On September 14, 2006, the Decision became the final decision of the Commissioner when the Appeals Council denied Cordero's request for review. Cordero brought this action on November 17, 2006, seeking this Court's review of the Decision.

Pursuant to Federal Rules of Civil Procedure 12(c), Cordero moved for judgment on the pleadings on October 1, 2007 ("Cordero's Motion"), claiming that the ALJ had applied improper legal standards, and that the Decision was not supported by substantial evidence. The Commissioner cross-moved for judgment on the pleadings on December 14, 2007 (the "Cross Motion"), claiming that substantial evidence in the Record supports the Decision.

Cordero's reply to the Cross Motion was due on January 9, 2008. By Order dated March 25, 2008 (the "March 25 Order"), Cordero was directed to show cause by March 31, 2008 as to why no response to the Commissioner's Cross Motion had been filed. The Court also advised that, in the event no timely response was received, the Court may proceed to consider the Cross Motion as unopposed and rule upon it on the basis of the papers received. See, e.g., Rubet v. Comm'r of Soc. Sec., 442 F.Supp.2d 188, 189 (S.D.N.Y.2006). Cordero did not respond. Accordingly, the Court has reviewed the pending motions based upon the papers on file and finds there is substantial evidence to support the determination that, during the Application Period, Cordero's drug use was a material contributing factor to his disability. See 42 U.S.C. § 1382c(a)(3)(J).

II. DISCUSSION

A. STANDARD OF REVIEW

Section 405(g) provides that "findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g); see also Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir.1990) ("Where there is substantial evidence to support either position, the determination is one to be made by the factfinder."). A fact is supported by substantial evidence when the supporting evidence is "`more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Richardson, 402 U.S. at 401, 91 S.Ct. 1420 (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)).

"Disability" is defined in the Act as the inability "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can expect to last for a continuous period of not less than twelve months." 42 U.S.C. § 1382c(a)(3)(A). Furthermore, an individual may be found disabled "only if his physical or mental impairment or impairments are of such severity that he 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 work which exists in the national economy." Id. § 1382c(a)(3)(B).

To determine whether an individual is disabled under the Act, an ALJ must utilize the five-step sequential evaluation process (the "Five Steps") for the adjudication of disability claims contained in 20 C.F.R. § 416.920 (2008), and restated by the Second Circuit in Shaw v. Chater, 221 F.3d 126, 132 (2d Cir.2000) and DeChirico v. Callahan, 134 F.3d 1177, 1179-80 (2d Cir. 1998).

First, the ALJ considers "whether the claimant is currently engaged in substantial gainful activity" ("Step One"). Shaw, 221 F.3d at 132. Second, if the claimant is not engaged in substantial gainful activity, the ALJ considers "whether the claimant has a `severe impairment' which limits his or her mental or physical ability to do basic work activities" ("Step Two"). Id. Third, if the ALJ finds that the claimant does have a "severe impairment," the ALJ must determine "whether, based solely on medical evidence, [the] claimant has an impairment listed in Appendix 1 of the regulations" ("Step Three"). Id. If the claimant does have a listed impairment, the ALJ must find him disabled. See id. Fourth, if the claimant's impairment is not listed, the ALJ must consider whether, despite the claimant's severe impairment, he or she has the "residual functional capacity" ("RFC")⁴ to "perform his or her past work" ("Step Four"). Id. Finally, if the claimant's RFC does not enable him to perform his past work, the ALJ must consider "whether there is other work which the claimant could perform" ("Step Five"). Id. At Step Five, the Commissioner bears the burden of proof, while the claimant bears the burden at Steps One through Four. See id.

Where the claimant is found to be disabled and medical evidence indicates that the individual suffers from drug addiction or alcoholism ("DAA"), the ALJ must perform a second evaluation to determine whether DAA is a "contributing factor material to the determination of disability." 20 C.F.R. § 416.935(a). If DAA is found to be a contributing factor material to the determination of disability, the claim will be denied. See 42 U.S.C. § 1383c(a)(3)(J). To determine whether DAA is a material contributing factor, the ALJ must determine whether the individual would still be disabled if he or she stopped using drugs and alcohol. See 20 C.F.R. § 416.935(b)(1). The ALJ then determines which of the current physical and mental limitations would remain if the individual stopped using drugs or alcohol, and analyzes the Five Steps again to conclude whether these remaining limitations would be disabling under the Act. See id. § 416.935(b)(2). If the claimant's remaining limitations are not disabling without his drug or alcohol use, his claim for SSI benefits will be denied. See id. § 416.935(b)(2)(i); 42 U.S.C. § 1383c(a)(3)(J).

B. APPLICATION

In applying the Five Steps, the ALJ determined at Step One that Cordero had not engaged in substantial gainful activity since applying for SSI benefits.⁵ (R. at 11-12, 14.) At Step Two, the ALJ found that Cordero had "the following `severe' impairments: crack cocaine abuse, heroin abuse, and a schizoaffective disorder." (R. at 14; see also id. at 12.) The ALJ determined at Step Three that Cordero's abuse of crack cocaine and heroin qualified as a "substance addiction disorder." 20 C.F.R. Pt. 404, Subpt. P. App. 1, § 12.09 (the "Listings"); (see also R. at 12, 14.) On that basis the ALJ concluded that Cordero had "technically been `disabled' since June 30, 2003." (R. at 12.) Thus, the ALJ found that Cordero was disabled within the meaning of the Act at Step Three.

However, the ALJ also concluded that Cordero's drug use was a material contributing factor to Cordero's disability because Cordero would no longer be disabled under the Act were he to stop abusing crack cocaine and heroin. The ALJ found that, although Cordero's schizoaffective disorder would remain "severe" because Cordero "would probably continue [sic] need to take psychotropic medication for the rest of his life," it would not rise to the level of being disabling under the Act, absent Cordero's drug use. Id. The ALJ also determined that Cordero's schizoaffective disorder absent his drug use would not meet "any of the impairments defined and described in the Listings," and that it "would cause no more than `moderate' limitations in his ability to maintain social functioning and in his ability to maintain concentration, persistence or pace, and no more than `mild' limitations in his activities of daily living and would cause no episodes of decompensation." Id.; see also 20 C.F.R. § 416.920a(c)-(d); Listings § 12.00(C).

The ALJ determined at Step Four what Cordero's RFC would be if he stopped using drugs. The ALJ concluded that Cordero would be limited to jobs requiring simple instructions and limited contact with co-workers or the public, and, therefore, Cordero would be unable to return to his past work at McDonald's and as a security guard. (See R. at 13-14.)

At Step Five, the ALJ relied on the testimony of a vocational expert that, absent his drug use, Cordero would be capable of working as a housekeeper, cafeteria assistant or dishwasher. See id. Therefore, the ALJ concluded that absent his drug use, Cordero was not disabled within the meaning of the Act. Accordingly, the ALJ determined that Cordero's drug use was a...