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Patricia Jean Johnston v. Commissioner of ) Social Security

March 30, 2012

PATRICIA JEAN JOHNSTON, PLAINTIFF,
v.
COMMISSIONER OF ) SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Judge Cathy Bissoon

MEMORANDUM AND ORDER

I. MEMORANDUM

For the reasons that follow, Plaintiff's Motion for Summary Judgment (ECF No. 9) will be denied, and Defendant's Motion for Summary Judgment (ECF No. 12) will be granted.

Patricia Jean Johnston ("Plaintiff") brings this action pursuant to 42 U.S.C. § 405(g), seeking review of the final determination of the Commissioner of Social Security ("Defendant" or "Commissioner") denying her application for supplemental security income ("SSI") under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381 -- 1383f ("Act"). An Administrative Law Judge ("ALJ") denied benefits to Plaintiff following an administrative hearing on May 14, 2010. (R. at 11 -- 43).*fn1 Following the denial of a request for review by the Appeals Council, Plaintiff filed the present action on April 29, 2011. (R. at 1 -- 5; ECF No. 3). The parties' cross-Motions for Summary Judgment are now ripe for adjudication.

The ALJ determined that Plaintiff had the medically determinable severe impairments of bipolar disorder, anxiety disorder, post-traumatic stress disorder ("PTSD"), polysubstance abuse, status post compression fracture to her back, status post fracture to her left foot, mild chronic obstructive pulmonary disease, and headaches. (R. at 13). The ALJ found Plaintiff disabled because of her drug and alcohol abuse ("DAA"). (R. at 15 -- 17). However, in the absence of DAA, she had the functional capacity to perform light work allowing for Plaintiff to alternate between sitting and standing, allowing for ready access to a bathroom, not involving more than simple instructions, simple decision making, assembly line rate pace, changes in the work setting, crowds or groups of people, close interaction with co-workers and intensive supervision, and not requiring more than fourth grade mathematics skills or tenth grade reading skills.

(R. at 18 -- 19). Consistent with the testimony of the vocational expert, Plaintiff was able to work a significant number of jobs that existed in the national economy. (R. at 23 -- 24). As a result, Plaintiff was found ineligible for benefits.

Plaintiff objects, arguing that the ALJ failed to apply the correct legal standard to determine whether DAA was material to Plaintiff's disability, and further failed to correctly analyze the impact of DAA upon Plaintiff's ability to work. (ECF No. 10 at 5 -- 14).

In order to qualify for SSI, a claimant must prove to the Commissioner that he or she is incapable of engaging in substantial gainful activity. 42 U.S.C. §423(d)(1)(A); Brewster v. Heckler, 786 F.2d 581, 583 (3d Cir. 1986). When reviewing a claim, the Commissioner utilizes a five-step sequential analysis to evaluate whether a claimant has met this requirement. 20 C.F.R. §§ 404.1520, 416.920; see Barnhart v. Thomas, 540 U.S. 20, 24-25 (2003).

Assuming a claimant meets her burdens at Steps 1 through 4, the Commissioner examines at step 5 whether she is able to perform substantial gainful activity in jobs available in the national economy. Doak v. Heckler, 790 F.2d 26, 28 (3d Cir. 1986).

In cases involving DAA, however, the Step 5 analysis takes on an additional component. The Act states that "an individual shall not be considered to be disabled . . . if alcoholism or drug addiction would . . . be a contributing factor material to the Commissioner's determination that the individual is disabled." Ambrosini v. Astrue, 727 F. Supp.2d 414, 428 (W.D. Pa. 2010) (quoting 42 U.S.C. §§ 423(d)(2)(c), 1382c(a)(3)(J)). According to 20 C.F.R. §§ 404.1535 and 416.935, the "key factor" in making the above determination is whether a claimant would continue to be disabled if he or she ceased using drugs and/or alcohol. Id.; see also Nomes v. Astrue, 2010 WL 3155507, at *7-8 (W.D. Pa. 2010) (quoting Warren v. Barnhart, 2005 WL 1491012, at *10 (E.D. Pa. 2005)).

Thus, the side effects of DAA suffered by a claimant, and any resulting impact on other existing impairments, must be isolated so that the remaining limitations experienced by a claimant may be assessed. Emergency Message 96200 ("EM-96200") at qs. 25-28. The ALJ must assess the impact of the remaining limitations on a claimant's ability to work, and if it is not possible to distinguish between the limitations created by DAA and the claimant's other impairments, DAA is not a contributing factor material to disability. Id. This "materiality finding must be based on medical evidence, and not simply on pure speculation about the effects that drug and alcohol abuse have on a claimant's ability to work." Ambrosini, 727 F. Supp. 2d at 430 (citing Sklenar v. Barnhart, 195 F. Supp. 2d 696, 699-706 (W.D. Pa. 2002)).

It is clear that, at Step 5 of the analysis, the burden shifts to the Commissioner to show that a significant number of jobs exist in the national economy for a claimant, despite established functional limitations. In non-DAA cases, this burden is met by providing substantial evidence from the case record to support the conclusion that a claimant can work. In cases where a claimant's use of drugs or alcohol may be a material contributor of functional limitation, regulation provides that the ALJ's burden is to provide substantial evidence from the record to show that -- absent DAA-related functional limitations -- a claimant is eligible for a significant number of jobs in the national economy. However, while an ALJ has the duty to develop a full and fair record, and provide substantial evidence to justify his or her final decision, it is important to emphasize that a claimant bears the ultimate burden of providing evidence as proof of disability. Ventura v. Shalala, 55 F. 3d 900, 902 (3d Cir. 1995); Schwartz v. Halter, 134 F. Supp. 2d 640, 656 (E.D. Pa. 2001) (citing Hess v. Sec'y of Health, Ed. and Welfare, 497 F. 2d 837, 840 (3d Cir. 1974)).

Here, the ALJ implicitly acknowledged that it was his duty to disentwine those limitations related solely to Plaintiff's DAA and those limitations stemming from Plaintiff's other impairments to determine whether the DAA was material to Plaintiff's disability, given the manner in which he analyzed the effects of Plaintiff's DAA on her ability to work. (R. at 19 -- 23). This is fully in line with Plaintiff's argument -- that the ALJ must provide substantial evidence to show that DAA is material. Even if the ALJ's reliance upon Brown v. Apfel, 192 F. 3d 492 (5th Cir. 1999), was erroneous, the error was harmless. The ALJ's materiality analysis comported with what is required by the regulations. The ALJ provided substantial evidence from the record to bolster his materiality finding, and separated those limitations attributable to Plaintiff's DAA from those attributable to the remainder of Plaintiff's impairments. The Commissioner's burden was, therefore, properly met. Plaintiff fails to illustrate how the substitution of particular language in the ALJ's decision in place of the ALJ's citation of Brown would have resulted in a different analysis or conclusion. See Rutherford v. Barnhart, 399 F. 3d 546, 553 (3d Cir. 2005) (error is harmless and does not justify remand where it would not affect outcome of case).

Turning to the ALJ's discussion of the facts, it is clear that the ALJ adequately supported his decision. Plaintiff would have the Court believe that the same level of functional limitation experienced by Plaintiff while engaging in DAA continued through her alleged period of sobriety beginning in August 2009, entitling ...


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