Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-28-2003

Ford v. Comm Social Security
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1594




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                                       NOT PRECEDENTIAL




        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT


                       NO. 03-1594


                     JOSEPH FORD,
                              Appellant

                            v.

            *JOANNE B. BARNHART,
         COMM ISSIONER SOCIAL SECURITY

             *Pursuant to Rule 43(c), F.R.A.P.




      On Appeal From the United States District Court
               For the District of Delaware
           (D.C. Civil Action No. 00-cv-00456)
          District Judge: Honorable Kent Jordan


      Submitted Pursuant to Third Circuit LAR 34.1(a)
                    October 17, 2003


BEFORE: SLOVITER, ROTH and STAPLETON, Circuit Judges

             (Opinion Filed October 28, 2003)




               OPINION OF THE COURT
STAPLETON, Circuit Judge:

              Appellant Joseph Ford appeals the decision of the United States District

Court for the District of Delaware, affirming the decision of the Commissioner of the

Social Security Administration (“Commissioner”) to deny Ford’s claim for disability

insurance benefits (“DIB”) and supplemental security income (“SSI”) under Titles II and

XVI, respectively, of the Social Security Act (“Act”), 42 U.S.C. §§ 401-434, 1381-1383f

(2002). The parties are familiar with the facts and procedural history. Hence, we limit

ourselves to a brief statement of the reason for our decision.

              Appellant argues that the decision of the administrative law judge (“ALJ”)

finding that Appellant’s drug addiction and alcoholism were contributing factors material

to a finding of disability was not supported by substantial evidence because the ALJ

failed to properly evaluate Appellant’s mental impairments. Furthermore, Appellant

argues that the ALJ erred in accepting the testimony of a vocational expert that absent

drug addiction and alcoholism Appellant would be able to perform a limited range of light

work and, therefore, was not disabled within the meaning of the Act, arguing that the

testimony of the expert was based upon a defective hypothetical question asked by the

ALJ. For the reasons that follow, we affirm the decision of the District Court that the

ALJ both properly evaluated the evidence of Appellant’s mental impairments and based

his decision that absent drug addiction and alcoholism Appellant would be able to

perform a limited range of light work on substantial evidence.



                                             2
                                             I.

              The District Court had jurisdiction to hear this review of the

Commissioner’s final determination under 42 U.S.C. § 405(g) (2002) and we have

jurisdiction under 28 U.S.C. § 1291 (2002). Our review of the Commissioner’s final

decision to deny benefits is limited to a determination of whether that decision is

supported by substantial evidence. See, e.g., Hartranft v. Apfel, 

, 360 (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.’” 

v. Underwood, 

, 

, 2545, 

(1988)).

                                             II.

              “Disability” is defined in the Act as an inability “to engage in any

substantial gainful activity by reason of any medically determinable physical or mental

impairment which can be expected to result in death or which has lasted or can be

expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §§

423(d)(1)(A), 1382c(a)(3)(A). Under the Act, a claimant is considered unable to engage

in any substantial gainful activity “only if his physical or mental impairment or

impairments are of such severity that he 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....” 42 U.S.C. §§



                                             3
423(d)(2)(A), 1382c(a)(3)(B). The Commissioner makes this determination based upon a

regulation promulgated by the Social Security Administration that sets out a five-step

sequential evaluation process. See 20 C.F.R. § 404.1520, 416.920. This Court has

described the five-step sequential evaluation process as follows:

              In step one, the Commissioner must determine whether the claimant is
              currently engaging in substantial gainful activity. 20 C.F.R. § 404.1520(a).
              If a claimant is found to be engaged in substantial activity, the disability
              claim will be denied. Bowen v. Yuckert, 

, 140, 

,
              2290-91, 

(1987). In step two, the Commissioner must
              determine whether the claimant is suffering from a severe impairment. 20
              C.F.R. § 404.1520(c). If the claimant fails to show that her impairments are
              “severe”, she is ineligible for disability benefits.

              In step three, the Commissioner compares the medical evidence of the
              claimant's impairment to a list of impairments presumed severe enough to
              preclude any gainful work. 20 C.F.R. § 404.1520(d). If a claimant does not
              suffer from a listed impairment or its equivalent, the analysis proceeds to
              steps four and five. Step four requires the ALJ to consider whether the
              claimant retains the residual functional capacity to perform her past relevant
              work. 20 C.F.R. § 404.1520(d). The claimant bears the burden of
              demonstrating an inability to return to her past relevant work. Adorno v.
              Shalala, 

, 46 (3d Cir.1994).

              If the claimant is unable to resume her former occupation, the evaluation
              moves to the final step. At this stage, the burden of production shifts to the
              Commissioner, who must demonstrate the claimant is capable of
              performing other available work in order to deny a claim of disability. 20
              C.F.R. § 404.1520(f). The ALJ must show there are other jobs existing in
              significant numbers in the national economy which the claimant can
              perform, consistent with her medical impairments, age, education, past
              work experience, and residual functional capacity. The ALJ must analyze
              the cumulative effect of all the claimant’s impairments in determining
              whether she is capable of performing work and is not disabled.

Burnett v. Commissioner of Social Sec. Admin., 

, 118-19 (3d Cir. 2000)



                                             4
(quoting Plummer v. Apfel, 

, 428 (3d Cir.1999)).

              However, in the case of an individual suffering from alcoholism or drug

addiction, the Act additionally requires that “[a]n individual shall not be considered to be

disabled for purposes of this subchapter if alcoholism or drug addiction would (but for

this subparagraph) 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). Under the

Social Security Administration’s regulations, the “key factor” in determining whether a

claimant’s alcohol or drug abuse is a material contributing factor to the claimant’s

disability is “whether we would still find [the claimant] disabled if [he or she] stopped

using drugs or alcohol.” 20 C.F.R. §§ 404.1535(b)(1), 416.935(b)(1).

              The ALJ is to determine which of the claimant’s physical and mental

limitations would remain if the claimant stopped using drugs or alcohol, and then must

determine whether any of the claimant’s remaining limitations would be disabling. 20

C.F.R. §§ 404.1535(b)(2), 416.935(b)(2). If the ALJ determines that the remaining

limitations would not be disabling, the ALJ must find that the claimant’s “drug addiction

or alcoholism is a contributing factor material to the determination of disability.” 20

C.F.R. §§ 404.1535(b)(2)(I), 416.935(b)(2)(I). However, if the ALJ determines that the

remaining limitations would be disabling, the ALJ must conclude that the claimant is

“disabled independent of [his or her] drug addiction or alcoholism and ... [his or her] drug

addiction or alcoholism is not a contributing factor material to the determination of



                                             5
disability.” 20 C.F.R. §§ 404.1535(b)(2)(ii), 416.935(b)(2)(ii)

                                            III.

                                            A.

              Appellant first argues that the Commissioner’s decision is not supported by

substantial evidence because the ALJ mischaracterized or misstated the reports of various

medical personnel in reaching his determination, causing the ALJ to improperly evaluate

Appellant’s mental impairments. Appellant takes issue with the ALJ having referred to

an evaluation by Dr. William Shaw as a “psychiatric evaluation” rather than a

“psychological evaluation.” However, the ALJ evaluated the substance of Dr. Shaw’s

report and did not base his decision upon whether he thought that Dr. Shaw was

performing a psychiatric rather than psychological evaluation. Appellant argues that

because the ALJ characterized Dr. Shaw as saying that Ford had an “adjustment disorder

with an anxious mood secondary to his alcohol abuse,” the ALJ incorrectly characterized

Dr. Shaw’s testimony as supporting the conclusion that alcohol abuse was a contributing

factor material to the determination that Appellant is disabled.1 However, regardless of

what specifically the ALJ meant by “secondary to,” the ALJ referenced Dr. Shaw’s report

in the sentence quoted by Ford only for the limited purpose of showing that Ford still

suffered from alcohol abuse at the time of Dr. Shaw’s evaluation.

   1
     Dr. Shaw’s report read in pertinent part as follows: “In addition the alcohol abuse
needs to be ruled out prior to any real anxiety-reduction program. Reports has to start the
day off with drinking because of his nerves. Reports drinking a fifth of whiskey per
week.”

                                             6
              Appellant next objects to the ALJ’s characterization of Dr. Joseph Bryer’s

report, which the ALJ describes as having determined that “the claimant’s primary

impairment was alcohol dependence.” Dr. Bryer’s report did in fact indicate that his

diagnosis of Ford “would be alcohol dependence, although there may well be a separate

psychiatric disorder” and noted that “[t]he current heavy use of alcohol makes diagnosis

of any other psychiatric disorder impossible at this time.” Dr. Bryer did not attempt to

diagnose (and in fact notes that he could not have diagnosed) any separate psychiatric

disorders at that time that would exist regardless of Ford’s alcohol dependence. As with

Dr. Shaw’s report, the ALJ briefly references Dr. Bryer’s report and correctly notes that

the impairment diagnosed by Dr. Bryer was alcohol dependence. The ALJ does not rely

on Dr. Bryer’s report for a determination of what mental impairments Appellant would

suffer from had he not been abusing alcohol.

              Appellant additionally takes issue with the ALJ’s use of a report by Dr.

George Reynolds, which the ALJ describes as “conclud[ing] that the claimant had a

generalized anxiety disorder that would respond favorably to proper treatment.” In

Appellant’s opinion, the ALJ should have evaluated whether a “generalized anxiety

disorder” is related to or affected by Appellant’s use of alcohol. Appellant argues that a

“generalized anxiety disorder is not due to the direct physiological effects of a substance

(i.e., of drugs or alcohol),” and that therefore, Dr. Reynolds’s diagnosis of a generalized

anxiety disorder “eliminates any consideration of alcohol in determination of the



                                             7
diagnosis.” However, Dr. Reynolds’s opinion does not support a finding that Appellant’s

anxiety disorder, absent alcoholism, necessarily would be disabling. Dr. Reynolds

specifically indicated that he thought that Ford could “probably bring the condition under

control” if he received proper treatment. The ALJ properly considered the Reynolds

report in reaching his determination and did not mischaracterize its contents.

              Appellant then takes issue with the ALJ’s treatment of Dr. Patricia Lifrak’s

evaluation of Appellant. The ALJ described Dr. Lifrak as reporting that “the claimant’s

diagnoses included alcohol dependence, polysubstance abuse, and anxiety secondary to

alcohol withdrawal.” Appellant takes issue with the ALJ not having mentioned that Dr.

Lifrak at one point indicated that it was necessary to “[r]ule out panic disorder with

agoraphobia.” However, this statement was not indicative of a diagnosis of panic

disorder and need not have been considered on this basis as one of Appellant’s

impairments by the ALJ.

              Appellant similarly argues that the ALJ simply “did not consider” a

September 1998 opinion completed by Dr. Lifrak that described several of Ford’s mental

impairments. However, as the government has correctly indicated in its brief, the ALJ did

consider Dr. Lifrak’s opinion when he determined that Appellant’s anxiety disorder, as it

existed while Ford was under the influence of alcoholism and drug addiction, would in

fact be disabling. The ALJ correctly did not rely on Dr. Lifrak’s opinion in determining

whether Appellant’s anxiety disorder would still be disabling absent alcoholism and drug



                                             8
addiction, as Dr. Lifrak’s opinion was rendered in the context of substance abuse still

being present.

              Over a two-year period, Ford was also treated by the Northeast Treatment

Counseling Center (“NET”), which kept various medical records on his treatment. The

ALJ described these records as showing that “the claimant’s primary impairments were

alcohol and cannabis dependence.” Appellant notes that the ALJ did not discuss other

psychiatric diagnoses discussed in these records, including panic disorder with

agoraphobia, dysthymia, and impulse control disorder. The upshot of the ALJ not having

noted these diagnoses contained in the NET records, Appellant argues, is that the ALJ did

not consider them in reaching his determination that Appellant is not disabled but for his

alcoholism.

              However, in an attempt to fulfill the Appeals Council’s mandate that the

ALJ determine which of the established mental impairments would remain if Appellant

were to stop abusing alcohol, the ALJ supplied the entire medical record to Dr. Richard

B. Saul. Dr. Saul’s opinion provides sufficient support for the ALJ’s conclusion that in

the absence of alcohol abuse Appellant would not be disabled and is capable of

performing gainful work in the regional or national economy other than his previous

relevant employment. Appellant argues that the ALJ impermissibly rejected Dr. Lifrak’s

opinion in a wholesale fashion supposedly because the ALJ indicated that Dr. Lifrak’s

opinion did not describe Appellant’s limitations absent alcohol and drug use.



                                             9
Alternatively, Appellant argues that Dr. Lifrak was ambiguous as to whether she was

considering the impact of alcohol or drug abuse when she prepared her report, and that

therefore the ALJ should have sought clarification from Dr. Lifrak to resolve this alleged

ambiguity. Appellant views the ALJ as having rejected Dr. Lifrak’s opinion and having

relied solely on Dr. Saul’s opinion.

              However, the ALJ did not reject Dr. Lifrak’s opinion at all or find it to be

ambiguous. The ALJ found Dr. Lifrak’s various reports to be consistent with Dr. Saul’s

findings, and relied on Dr. Saul for a specific consideration of what limitations would

remain in the absence of alcohol abuse. In so relying on Dr. Saul’s opinion, we cannot

say that the ALJ lacked substantial evidence in reaching the conclusion that “the medical

evidence of record shows that the claimant’s condition does not meet or equal the criteria

of any listed impairment when the claimant’s alcohol abuse is not considered.”

                                             B.

              Appellant’s final claim is that the vocational expert’s testimony does not

support the ALJ’s finding of residual functional capacity because the doctor whose

evaluation provided the basis for the ALJ’s hypothetical question did not fill out a Mental

Residual Function Capacity (“MRFC”) assessment form. Appellant refers us to no

authority, however, requiring the use of such a form by a medical expert (or, indeed, by

an ALJ, whose analysis that form is intended to guide). The question posed by the ALJ to

the vocational expert accurately reflected the claimant’s individual physical and mental



                                            10
impairments as reflected in the evidence and as found by the ALJ. Appellant has

identified no impairment found by the ALJ that was not included in the hypothetical.

While Dr. Lifrak completed an MRFC, the ALJ found that her opinion did not consider

what limitations claimant would possess absent alcohol abuse. Nothing more was

required.

                                           IV.

             For the reasons stated, the judgment of the District Court will be affirmed.




             TO THE CLERK:




             Please file the foregoing Not Precedential Opinion.




                                     /s/ Walter K. Stapleton
                                            Circuit Judge




                                           11