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Christopher Joseph Ellow v. Michael J. Astrue

January 15, 2013

CHRISTOPHER JOSEPH ELLOW, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Buckwalter, S.J.

MEMORANDUM

Currently pending before the Court are Plaintiff Christopher Joseph Ellow's Objections to the Report and Recommendation of United States Magistrate Judge Linda K. Caracappa. For the following reasons, the Objections are overruled.

I. PROCEDURAL HISTORY

Plaintiff protectively filed for Supplemental Security Income ("SSI") pursuant to Title XVI of the Social Security Act, 42 U.S.C. § 301, et seq., on April 16, 2009, due to bipolar disorder, anxiety, depression, attention deficit disorder, social phobia, mild obsessive compulsive disorder, insomnia, and infectious endocarditis. (R. 110, 153--54.)*fn1 The state agency denied Plaintiff's application on July 17, 2009, and Plaintiff timely requested a hearing before an administrative law judge ("ALJ"). (Id. at 110--13.) Following the hearing on March 31, 2010, (id. at 29--84), Administrative Law Judge ("ALJ") Javier Arrastia denied Plaintiff benefits in a decision dated May 21, 2010. (Id. at 13--25.) The Appeals Council denied Plaintiff's request for review on August 12, 2011, (id. at 6--8), making the ALJ's ruling the final decision of the agency.

20 C.F.R. § 416.1472.

Plaintiff initiated the present civil action in this Court on November 16, 2011. His Request for Review set forth multiple alleged errors, as follows: (1) the ALJ improperly evaluated his substance abuse disorder; (2) the ALJ failed to evaluate all of the relevant medical evidence; (3) the ALJ failed to properly weigh the opinion of the state agency medical expert; (4) the ALJ failed to explain his findings regarding Plaintiff's mental residual functional capacity; (5) the mental residual functional capacity assessment was not supported by substantial evidence; (6) the ALJ failed to properly weigh the physical residual functional capacity assessment of the state agency review decision; (7) the ALJ failed to explain his findings regarding Plaintiff's physical residual functional capacity; (8) the physical residual functional capacity assessment was not supported by substantial evidence; and (9) the ALJ failed to prove at step five of the sequential analysis that there were jobs available in the national economy that Plaintiff could perform on a sustained competitive basis. On November 16, 2012, United States Magistrate Judge Linda K. Caracappa issued a Report and Recommendation ("R&R") deeming these contentions meritless and recommending that the ALJ's decision be affirmed.

Plaintiff filed objections to the R&R, on December 3, 2012, asserting the following: (1) the Magistrate Judge improperly found that the ALJ had no duty to comply with applicable law and regulations concerning Plaintiff's drug and alcohol abuse; (2) the Magistrate Judge incorrectly determined that the ALJ's mental residual functional capacity assessment was without error; (3) the Magistrate Judge failed to address Plaintiff's argument that the ALJ had a duty to discuss detailed hand written statements from the treating psychiatrist or had a duty to recontact the treating psychiatrist for clarification; and (4) the Magistrate Judge improperly found that the ALJ was not required to explain why Plaintiff could sustain work activity despite being unable to do so for all jobs he performed in the past. To date, Defendant has not filed a Response to these Objections, making them ripe for this Court's consideration.

II. STANDARD OF REVIEW*fn2

When a party makes a timely and specific objection to a portion of a report and recommendation by a United States Magistrate Judge, the district court is obliged to engage in de novo review of the issues raised on objection. 28 U.S.C. § 636(b)(1); see also Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989). In so doing, the court may "accept, reject, or modify, in whole or in part, the findings and recommendations" contained in the report. 28 U.S.C. § 636(b)(1). The court may also, in the exercise of sound judicial discretion, rely on the Magistrate Judge's proposed findings and recommendations. See United States v. Raddatz, 447 U.S. 667, 676 (1980).

The Court's review of an ALJ's findings of fact, however, is limited to determining whether or not substantial evidence exists in the record to support the Commissioner's decision. Schaudeck v. Comm'r of Soc. Sec. Admin., 181 F.3d 429, 431 (3d Cir. 1999). De novo review of the Commissioner's decision is not permitted. Monsour Med. Ctr. v. Heckerl, 806 F.2d 1185, 1190--91 (3d Cir. 1986). Stated differently, "[t]his Court is bound by the ALJ's findings of fact if they are supported by substantial evidence on the record." Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999). "Substantial evidence 'does not mean a large or considerable amount of evidence, but rather such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999) (quoting Pierce v. Underwood, 487 U.S. 552 (1988)).

III. DISCUSSION

A. Whether the Report and Recommendation Improperly Found that the ALJ Had No Duty to Comply with Applicable Law and Regulations Concerning Plaintiff's Drug and Alcohol Abuse Plaintiff's first objection asserts that the ALJ failed to comply with the Commissioner's regulation concerning evaluation of substance abuse disorders. Upon review, the Court finds no merit to this contention.

In 1996, Congress amended the Social Security Act to preclude award of supplemental security income if drug addiction or alcoholism ("DAA") would be "a contributing factor material to the Commissioner's determination that the individual is disabled." 42 U.S.C. §§ 423(d)(2)(C) & 1382c(a)(3)(J); see also 20 C.F.R. § 416.935. To determine if DAA is "a contributing factor material to the determination of disability," the key question is whether the claimant would still be considered disabled if she stopped using drugs and/or alcohol. 20 C.F.R. § 416.935(b)(1); Gaines v. Astrue, No. Civ.A.10-5098, 2011 WL 5555629, at *1 n.1 (E.D. Pa. Sept. 7, 2011); Davis v. Astrue, 830 F. Supp. 2d 31, 37--38 (W.D. Pa. 2011). This inquiry involves several steps. In cases where there is evidence of drug addiction or alcoholism, the ALJ first performs the normal five-step analysis to determine if the claimant is disabled. Id.; 20 C.F.R. § 416.935(a). "Assuming he concludes that she is disabled (including any impairment attributable to DAA), he then performs a second analysis to determine the effects of drug or alcohol abuse." Davis, 830 F. Supp. 2d at 38. The ALJ must then evaluate which of the claimant's current physical and mental limitations, upon which the disability determination is based, would remain if the claimant stopped using drugs or alcohol and then decide whether any or all of the claimant's remaining limitations would be disabling. 20 C.F.R. § 416.935(b)(2); Gaines, 2011 WL 5555629, at *1 n.1. If the remaining limitations are not disabling, then the drug addiction or alcoholism is a contributing factor material to the determination of disability.

20 C.F.R. § 416.935(b)(2)(i); Gaines, 2011 WL 5555629, at *1 n.1. If the remaining limitations are disabling, the claimant is disabled independent of his drug addiction or alcoholism, and the DAA not a contributing factor material to the determination of disability. 20 C.F.R. § 416.935(b)(2)(ii); Gaines, 2011 WL 5555629, at *1 n.1. In short, "[w]hen an applicant for disability benefits both has a potentially disabling illness and is a substance abuser, the issue for the administrative law judge is whether, ...


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