held that the
claimant was required to "introduce evidence that . . . she would still
be disabled . . . even if she stopped using . . . alcohol. Of course, the
ALJ ha[d] the option of ordering a consultative examination to guide his
determination on remand." Id. (citation and internal quotations
omitted); see also Report and Recommendation in Kruck, Civil Action No.
99-940, at 22-24 (citing and quoting Brown and applying same standards).
The standards in Brown are well-reasoned, and they should be applied to
the remand in the instant case. Accordingly, it is recommended that this
case be remanded to the Commissioner for the collection of medical
evidence regarding whether the Claimant would still be disabled if she
stopped drinking. On remand, the ALJ should have the option of ordering a
consultative examination or examinations to fulfill his duties under
P.L. 104-121 and the regulations otherwise applicable under the five-step
sequential disability evaluation. See Brown, 192 F.3d at 499; see also
generally Knepp v. Apfel, 204 F.3d 78, 83-84 (3d Cir. 2000) (outlining
five-step sequential evaluation). In addition, the Claimant should be
afforded a reasonable opportunity to supplement the medical evidence to
address the issues identified herein. See Gachette v. Weinberger,
551 F.2d 39, 40-41 (3d Cir. 1977) (counsel "should be permitted to make
an offer of proof regarding what a more fully developed record might have
shown"); see also Stover v. Shalala, 1995 WL 327981, *8 (E.D.Pa. May 31,
1995) (on remand, claimant was to "be given an opportunity at th[e]
rehearing to submit additional relevant evidence"). Finally, the Claimant
should remain cognizant that the ultimate burden of proving continued
disability under P.L. 104-121 rests with her. See Brown, 192 F.3d at
For the reasons set forth above, the District Court should deny the
Defendant's Motion for Summary Judgment (Doc. 9), grant the Plaintiff's
Motion for Summary Judgment (Doc. 7), and remand this case to the
Commissioner of Social Security as consistent with this Report and
In accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1)(B)
and (C), and Rule 72.1.4(B) of the Local Rules for Magistrates,
objections to this report and recommendation are due by March 25,
2002. Responses to objections are due by April 5, 2002.
March 8, 2002
*fn2 Ms. Sklenar also allegedly suffered from "a spastic colon" and a
"previous rib fracture," but the ALJ concluded that those impairments were
"non[-]severe." See R. at 15. The Claimant does not challenge these
findings, and the court otherwise concludes they are supported by
*fn3 Technically, the ALJ's assertion that the Claimant was not disabled
"at any time through the date of the [ALJ's] decision" was incorrect. In
the body of his decision the ALJ explained that, absent an application of
P.L. 104-121, "the [C]laimant [wa]s found to be disabled by a substance
disorder and secondary depression with anxiety." See R. at 15 (emphasis
added). On the whole, then, the ALJ's decision reveals that the Claimant
was disabled but was denied benefits under P.L. 104-121. See id.; see
also id. at 17 ("alcoholism [wa]s a contributing factor material to the
determination of the [C]laimant's disability and, consequently, [she wa]s
ineligible for disability payments").
*fn4 The District Court should decline to further expound upon the types
of medical evidence that in other cases may be sufficient to establish
continued disability under P.L. 104-121. In a typical case, it would seem
most appropriate to require medical evidence directly addressing the
issue, in the form of physician opinion(s) regarding the impact of a
hypothetical or actual cessation on the claimant's impairments. It is not
beyond comprehension, though, that in some cases the medical evidence,
alone or in conjunction with non-medical evidence, may so clearly show a
marked improvement in the claimant's condition during a period of
abstinence that, even absent express medical opinion(s), a finding of
non-disability is supportable. As will be seen below, however, this is
not one of those cases, and the District Court should save these
determinations for another day.
*fn5 Because Dr. Wheeler did not purport to evaluate the Claimant's
impairments in the absence of alcohol consumption, the ALJ's seeming
reliance on the physician's RFC assessments was unjustified. As noted
above, the ALJ found Ms. Sklenar disabled absent an application of P.L.
104-121. See R. at 15.
*fn6 The ALJ's reliance on the portions of Dr. Stearns' report
purportedly supporting his disability determination, while rejecting those
portions that did not, also runs afoul of the general rule that "[a]n ALJ
is not entitled to pick and choose through a physician's opinion." See
generally, e.g., Bibbs v. Apfel, 3 Fed. Appx. 759, 761, 2001 WL 46325, *2
(10th Cir. Jan. 19, 2001); Loza v. Apfel, 219 F.3d 378, 393-94 (5th Cir.
2000) (ALJ "cannot `pick and choose' only the evidence that supports his
position") (citations omitted).
*fn7 In light of the ALJ's conclusion the Claimant was disabled but that
her alcohol consumption was a material contributing factor, his analyses
regarding the treatment of mental impairments cannot constitute evidence
addressing the effects that cessation would have on the Claimant's
condition. Only after the ALJ determined that alcoholism materially
contributed to Ms. Sklenar's disability should the issue of whether her
medications controlled her remaining impairments have been reached. See
20 C.F.R. § 416.935(a)-(b) (ALJ should "evaluate which . . . mental
limitations . . . would remain if [the claimant] stopped using . . .
alcohol and then determine whether any or all of [her] remaining
limitations would be disabling") (emphasis added).
*fn8 The Brown Court held that the claimant bears such a burden
because, among other things, P.L. 104-121 amended the definition of
"disability" under the Act, and proving disability has always ultimately
remained the claimant's burden. See id. at 498. It also held that,
"pragmatically," the claimant "is the party best suited to demonstrate
whether she would still be disabled in the absence" of drug or alcohol
use, and that the court was "at a loss to discern how the Commissioner is
supposed to make such a showing, the key evidence [of] which will be
available most readily to" the claimant. See id.