Graber v. Comm'r of Soc. Sec.

Decision Date15 July 2020
Docket Number1:19-CV-00146(JJM)
PartiesJENNIFER LYNN GRABER, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
CourtU.S. District Court — Western District of New York
DECISION AND ORDER

This is an action brought pursuant to 42 U.S.C. §1383(c)(3) to review the Commissioner of Social Security's final determination that plaintiff was not entitled to Supplemental Security Income ("SSI"). Before the court are the parties' cross-motions for judgment on the pleadings [8, 9].1 The parties have consented to my jurisdiction [11]. Having reviewed the parties' submissions [8-10], the Commissioner's motion is granted, and plaintiff's motion is denied.

BACKGROUND

The parties' familiarity with the 696-page administrative record is presumed. On April 22, 2015, plaintiff, who was 31 years old, applied for SSI due to depression, "lack of motivation", asthma, "difficulty focusing and reading", "several hernias", and "learning disability". Administrative record [7], p. 191.2 After the application was denied, anadministrative hearing was conducted before Administrative Law Judge ("ALJ") Bryce Baird on October 31, 2017, at which plaintiff, who was represented by counsel, and Kevin Yi, a vocational expert, testified. Id., pp. 31-83.

The record indicates that in August 2013 plaintiff began treatment on an outpatient basis at the Lake Shore Behavioral Health Center for a variety of symptoms, including anxiety. Id., pp. 509-11. Plaintiff also had a history of substance abuse (id., p. 510), and on September 30, 2014, was discharged from Lake Shore Behavioral Health and referred to outpatient substance abuse treatment. Id., pp. 457-58. After being terminated from outpatient substance abuse treatment for missing appointments, plaintiff resumed her treatment at Lake Shore Behavioral Health in March 2015, and continued to treat there throughout the relevant period. Id., pp. 476, 556-58. In March 2015, shortly before the April 22, 2015 relevant period, plaintiff reported that she was "still doing cocaine, smoking it with heroin daily". Id., p. 361.

However, in June 2015, shortly after the relevant period, she became sober. Id., pp. 310, 319. According to plaintiff, she entered a 28-day inpatient program. Id., p. 45. Plaintiff continued to report being sober in August 2015, November 2015, and April 2016. Id., pp. 366, 533-34, 685. Plaintiff's sobriety appears to have continued until September 7, 2016, when she reported a recent use of cocaine ($30 worth). Id., p. 543.

The medical opinion evidence in the record includes a July 13, 2015 consultative psychiatric examination conducted by Kevin Duffy, Psy.D., who assessed plaintiff with the following limitations:

- "some limitations in adaptive functioning at times, especially when abusing substances";
- "can follow and understand simple directions and instructions, and perform simple tasks independently";- "may have mild to moderate difficulties maintain[ing] attention and concentration at times";
- "able to maintain a regular schedule";
- "can learn new tasks . . . .[and] perform complex tasks independently";
- "may have, at least moderate difficulties making appropriate decisions if she is abusing substances";
- "may have mild to moderate difficulties relating adequately with others"; and
- "may have at least moderate difficulties dealing appropriately with high levels of stress". Id., p. 321.

Dr. Duffy's examination was also "consistent with . . . substance abuse problems", which he found "may significantly interfere with the claimant's ability to function on a daily basis, given that the claimant is in an inpatient program". Id. He diagnosed plaintiff with bipolar disorder, cocaine and marijuana dependence, and alcohol and heroin abuse. Id. Plaintiff's prognosis was "[g]uarded to poor" at that time due to plaintiff's "lack of work history and substance abuse". Id., p. 322.

On August 6, 2015, state agency review consultant V. Reddy, Ph.D., determined that plaintiff was not significantly limited in the areas of functioning, except for moderate limitations carrying out detailed instructions, maintaining concentration and attention for extended periods, completing a normal workday/workweek without interruptions from psychological symptoms, interacting with the general public, responding appropriately to changes in the work setting, and setting realistic goals. Id., pp. 92-93.

On July 13, 2015, a consultative internal medicine examination was conducted by Samuel Balderman, M.D., who found that plaintiff had no physical limitations. Id., pp. 310-13. However, in March 2017 plaintiff sustained an ankle fracture, for which she underwent openreduction and internal fixation surgery. Id., p. 428. A June 15, 2017 x-ray revealed "good alignment" with "some . . . slight callus forming at the fracture site". Id., p. 628.

At the October 31, 2017 hearing, plaintiff testified that she had a relapse and used cocaine ($30 worth) two weeks earlier, but had otherwise been sober since August 2016. Id., pp. 45, 47. When asked why she had not worked since 2005, plaintiff testified that she was "getting involved in drugs at the time . . . . And getting in trouble, and arrested, and all that other . . . stuff. Hanging around with the wrong crowds". Id., p. 52. When asked what physical and mental conditions precluded her from working, plaintiff pointed to her leg pain, which began in March 2017. Id., pp. 52-53. She explained that her leg pain made it difficult for her to stand for long periods of time. Id., p. 53. Plaintiff's inability to move quickly and her son making fun of her because of that also caused "mental pain and depression". Id. At the time of the hearing, plaintiff used a cane and anticipated returning to physical therapy. Id., p. 61.

Based on the record, ALJ Baird determined that plaintiff's severe impairments were depressive disorder, bipolar disorder, anxiety disorder, and post-traumatic stress disorder, but that these impairments (individual or collectively) did not meet Listings 12.04, 12.06 or 12.15. Id., pp. 17-18. In finding that plaintiff's ankle impairment was not severe, ALJ Baird explained that she used "a boot and cane during the recovery period", but that there "is no evidence to show that this condition is not expected to improve with treatment or has met or is expected to meet the twelve month durational requirement". Id., p. 18.

ALJ Baird concluded that plaintiff had the residual functional capacity ("RFC") to perform "medium work", but limited her to "simple, routine tasks . . . and work that does not require travel to unfamiliar places". Id., p. 20. He further found that plaintiff was limited to occasional interaction with the public, no teamwork, and "requires doing the same tasks everyday with little variation in location, hours, or tasks". Id., pp. 20-21. In doing so, ALJ Baird afforded "significant weight" to the consultative opinions. Id., p. 24. ALJ Baird recognized that Dr. Duffy had assessed plaintiff with "significant limitations with adaptive functioning and making appropriate decisions when abusing substances", but noted that plaintiff "testified at the October 31, 2017 hearing that she has only relapsed once since August 2016". Id.

Based upon plaintiff's RFC and the testimony of the vocational expert, ALJ Baird concluded that there were sufficient jobs in the national economy that plaintiff was capable of performing. Id., p. 35. Therefore, he found that plaintiff was not disabled from April 22, 2015 through the date of his January 31, 2018 decision. Id., p. 26. The Appeals Council denied plaintiff's request for review (id., pp. 1-6), and thereafter she commenced this action.

DISCUSSION
A. Standard of Review

"A district court may set aside the Commissioner's determination that a claimant is not disabled only if the factual findings are not supported by 'substantial evidence' or if the decision is based on legal error." Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000) (quoting 42 U.S.C. §405(g)). Substantial evidence is that which a "reasonable mind might accept as adequate to support a conclusion". Consolidated Edison Co. of New York. Inc. v. NLRB, 305 U.S. 197, 229 (1938).

It is well settled that an adjudicator determining a claim for Social Security benefits employs a five-step sequential process. Shaw, 221 F.3d at 132; 20 C.F.R. §§404.1520, 416.920. The plaintiff bears the burden with respect to steps one through four, while the Commissioner has the burden at step five. Talavera v. Astrue, 697 F.3d 145, 151 (2d. Cir. 2012).

B. Did ALJ Baird Err in Addressing Plaintiff's Substance Abuse?

Plaintiff argues that she had a "continuous problem" with drug abuse and alcoholism ("DAA") that "continued throughout the relevant time period", but that ALJ Baird failed to conduct a proper DAA analysis. Plaintiff's Memorandum of Law [8-1], pp. 11-15. The Commissioner responds that plaintiff's own testimony confirms that she did not have a continuous problem with DAA throughout the relevant period, and that no separate DAA analysis was required because notwithstanding her substance abuse, it did not render her disabled for a period of 12 months. Commissioner's Brief [9-1], pp. 16-19. Alternatively, the Commissioner argues that "even accepting Plaintiff's theory . . . that she was, over a period of at least 12 months, precluded from working by her substance abuse", DAA materiality precludes a finding of disability. Id., p. 19.

Where there is evidence of drug or alcohol abuse, the ALJ is required to "first use the standard sequential analysis to determine whether the claimant is disabled, without segregating out any effects that might be due to substance use disorders". Stringer v. Astrue, 2010 WL 55925, *10 (N.D.N.Y. 2010) (emphasis added). When that analysis results in a determination that the claimant is disabled, the ALJ must "evaluate disability a second time to determine whether the individual would still be disabled if he or she stopped using drugs or alcohol". Trankle v. Berryhill, 2017...

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