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Polanco v. Berryhill

United States District Court, D. Connecticut

May 21, 2019

JOSE IVAN POLANCO, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          RULING ON CROSS MOTIONS TO REMAND AND AFFIRM DECISION OF THE COMMISSIONER OF SOCIAL SECURITY

          Jeffrey Alker Meyer United States District Judge

         Plaintiff Jose Ivan Polanco asserts that he is disabled and unable to work due to a combination of mental impairments. He has brought this action pursuant to 42 U.S.C. § 405(g), seeking review of the final decision of Nancy A. Berryhill, Acting Commissioner of Social Security, who denied Polanco's application for Social Security disability insurance benefits. For the reasons discussed below, I will deny Polanco's motion to reverse or remand the decision of the Commissioner (Doc. #19) and grant the Commissioner's motion for judgment on the pleadings (Doc. #23).

         Background

         I refer to transcripts provided by the Commissioner. See Doc. #13. Polanco filed an application for Social Security disability income on November 25, 2014, alleging a disability beginning on January 1, 2014. Id. at 170. Polanco's claim was initially denied on January 20, 2015. Id. at 98. The claim was denied again upon reconsideration on December 14, 2015. Id. at 105. He then timely filed a written request for a hearing by an administrative law judge (ALJ) on January 7, 2016. Id. at 109.

         ALJ Louis Bonsangue held a hearing on January 26, 2017. Id. at 23. Polanco did not attend because he was hospitalized at the Yale Psychiatric Institute from January 9 until January 28, 2017. Doc. #19-2 at 4. Polanco's counsel, Meryl Anne Spat, appeared at the hearing, and vocational officer Silvio S. Reyes testified by phone. Doc. #13 at 23. After the hearing, the ALJ sent Polanco a notice to show cause for failure to appear, which he did not return. Id. at 165. On August 24, 2017, the ALJ issued a decision concluding that Polanco was not disabled within the meaning of the Social Security Act because, while Polanco is unable to work due to multiple impairments, “a substance use disorder is a contributing factor material to the determination of disability.” Id. at 24. The Appeals Council affirmed the decision of the ALJ on April 20, 2018. Id. at 2. Polanco then filed this federal action on June 22, 2018. Doc. #1. In response, the Commissioner moved for judgment on the pleadings, asking this Court to affirm her decision. Doc #23.

         To qualify as disabled, a claimant must show that he is unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . has lasted or can be expected to last for a continuous period of not less than 12 months, ” and “the impairment must be ‘of such severity that [the claimant] 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.'” Robinson v. Concentra Health Servs., Inc., 781 F.3d 42, 45 (2d Cir. 2015) (quoting 42 U.S.C. §§ 423(d)(1)(A), 423(d)(2)(A)). “[W]ork exists in the national economy when it exists in significant numbers either in the region where [a claimant] live[s] or in several other regions of the country, ” and “when there is a significant number of jobs (in one or more occupations) having requirements which [a claimant is] able to meet with [his] physical or mental abilities and vocational qualifications.” 20 C.F.R. § 416.966(a)-(b); see also Kennedy v. Astrue, 343 Fed.Appx. 719, 722 (2d Cir. 2009).

         To evaluate a claimant's disability, and to determine whether he qualifies for benefits, the agency engages in the following five-step process:

First, the Commissioner considers whether the claimant is currently engaged in substantial gainful activity. Where the claimant is not, the Commissioner next considers whether the claimant has a “severe impairment” that significantly limits [his] physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment that is listed in the so-called “Listings” in 20 C.F.R. pt. 404, subpt. P, app. 1. If the claimant has a listed impairment, the Commissioner will consider the claimant disabled without considering vocational factors such as age, education, and work experience; the Commissioner presumes that a claimant who is afflicted with a listed impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, [he] has the residual functional capacity to perform [his] past work. Finally, if the claimant is unable to perform [his] past work, the burden then shifts to the Commissioner to determine whether there is other work which the claimant could perform.

Cage v. Comm'r of Soc. Sec., 692 F.3d 118, 122-23 (2d Cir. 2012) (internal alterations and citation omitted); see also20 C.F.R. § 416.920(a)(4)(i)-(v) (explaining the five-step evaluation process). In applying this framework, an ALJ can find a claimant to be disabled or not disabled at a particular step and can make a decision without proceeding to the next step. 20 C.F.R. § 416.920(a)(4). The claimant bears the burden of proving the case at Steps One through Four; at Step Five, the burden shifts to the Commissioner to demonstrate that there is other work that the claimant can perform. See McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014).

         When there is medical evidence of an applicant's drug addiction or alcoholism (DAA), “the ‘disability' inquiry does not end with the five-step analysis.” Cage, 692 F.3d at 123; see also 20 C.F.R. § 416.935(a) (describing next steps). The Social Security Act was amended in 1996 to provide that “[a]n individual shall not be considered . . . disabled . . . if alcoholism or drug addiction would . . . be a contributing factor material to the Commissioner's determination that the individual is disabled.” Senior Citizens' Right to Work Act of 1996, Pub. L. No. 104-121, § 105(a)((1), 110 Stat. 847, 852 (codified at 42 U.S.C. § 1382c (a)(3)(J)). Therefore, if a claimant abuses drugs or alcohol and if the ALJ finds he or she is disabled, then the ALJ must consider whether a claimant's DAA is a contributing factor material to the determination that the claimant is disabled. The “critical question is whether the SSA would still find the claimant disabled if she stopped using drugs or alcohol.” Cage, 692 F.3d at 123 (internal quotations and alterations omitted) (citing 20 C.F.R. § 416.935(b)(1)).

         The ALJ here concluded that Polanco was not disabled within the meaning of the Social Security Act. At Step One, the ALJ determined that Polanco had not engaged in substantial gainful activity for 12 continuous months, despite a brief stint of employment from October through December 2015. Doc. #13 at 26.

         At Step Two, the ALJ found that Polanco suffers from the following severe impairments: depressive disorder, bipolar disorder, post-traumatic stress disorder, anxiety disorder, schizophrenia, and substance addiction disorder. Id. at 26.

         At Step Three, the ALJ determined that Polanco's impairments, including his substance abuse disorder, met the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. § 416.920(d)). Id. at 27. This means he is considered per se disabled without regard to his age, education, and work experience.

         Next, the ALJ considered whether, if Polanco stopped abusing substances, his remaining limitations would be disabling. The ALJ found that “[d]uring periods of abstinence, [Polanco's] depressive disorder, bipolar disorder, post-traumatic stress disorder, anxiety disorder, and schizophrenia continue to cause more than a minimal limitation in [his] ability to perform basic work activities.” Doc. #13 at 31. However, the ALJ found that, if Polanco stopped using substances, he would not “have an impairment or combination of impairments that meet or medically equals any of the impairments listed in 20 CFR Part 404, Subpart P, Appendix 1.” Ibid. The ALJ found ...


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