pad, and a decrease in activities. (See R. 174.)
On April 22, 1992, Plaintiff was diagnosed at the VA Medical Center with an epigastric hernia. ( See R. 174.) On May 5, 1992, Plaintiff underwent surgery for the hernia and tolerated the procedure well. (See R. 158, 244.) He was discharged on May 9, 1992. (See R. 158.)
Immediately prior to that surgery, on April 27, 1992, Plaintiff reported in a Vocational Report that he had suffered from arthritis for ten years and that his condition had deteriorated in recent months. (See R. 329-30.) Plaintiff noted no relief from Motrin. (Id.) Plaintiff also complained of pain in his fingers and wrists. (See R. 330.) He underwent an examination which indicated generalized tenderness over both feet and no gross deformities. (See R. 329-30.) The examination revealed Plaintiff's full range of motion of both hands, wrists, ankles and feet. (See R. 330.) Additionally, the physician noted that the x-rays taken on April 14, 1992 had been normal. (Id.) The provisional diagnosis ruled out generalized arthropathy. (See R. 329-30.) Motrin was discontinued and the physician prescribed Naprosyn. (See R. 330.)
On May 18, 1992, Plaintiff related in a Vocational Report that since his illness (the hernia) began, "he could not stand too much, pull or lift anything." (See R. 129.)
On June 23, 1992, Plaintiff underwent a psychiatric evaluation performed by Giuseppe Scarcella, M.D. (See R. 183-197.) Dr. Scarcella recorded that Plaintiff attempted to cooperate during the interview, but noted that questions had to be repeated and Plaintiff often appeared perplexed and uncertain about the answer to give. (See R. 183.) Dr. Scarcella believed Plaintiff's account of his history to be only partially reliable because of omissions, contradictions, and evidence of memory impairment. (See R. 183.) Plaintiff reported that he continued to use alcohol and drugs. (Id.) He claimed that his drinking had decreased in frequency (consuming one pint of liquor "not every day"), and that he used cocaine instead of heroin. (Id.) Plaintiff related that he was supported by family members and did very little during the day. (Id.) He reported that he attended group therapy sessions at the Veterans' Administration hospital for alcohol and drug use, but that he was receiving no medication. (See R. 184.)
Dr. Scarcella found the claimant's mood to be fairly depressed and stated that he appeared to be a "somewhat distant, absent, and perplexed individual." (Id.) Plaintiff indicated that he heard voices calling his name and he occasionally spoke back to them. (Id.) Dr. Scarcella found that Plaintiff could not perform simple calculations, but that his interpretation of proverbs was complete. (Id.) Dr. Scarcella considered Plaintiff's judgment to be impaired, but found no evidence of process impairment and no delusional ideation. (Id.) Dr. Scarcella's diagnosis of Plaintiff recognized Plaintiff's alcohol dependence associated with cocaine abuse and past history of opiate dependence (which was in remission at the time of the examination). (See R. 184.) Dr. Scarcella noted that the Plaintiff's inclination to abuse alcohol and drugs would render him incompetent to handle funds. (Id.)
Dr. Willie Thompson, M.D., performed an orthopedic examination of Plaintiff on July 1, 1992. (See R. 203-5.) The Plaintiff reported a 14-year history of low back pain, but no pain in the lower extremities and no numbness, tingling, paresthesias, or weakness. (See R. 203.) Dr. Thompson noted that the Plaintiff had a full range of motion of the cervical spine and the upper extremities, without evidence of muscle wasting or atrophy. (See R. 204.) X-rays of Plaintiff's lumbosacral spine appeared normal. (Id.) Dr. Thompson reported that there was no medical evidence of "ratable" physical impairment in accordance with American Medical Association Guidelines. (See R. 205.) He concluded that the Plaintiff was capable of performing most all routine work activities of daily living without limitations. (Id.)
Plaintiff was hospitalized on May 11, 1993 for detoxification. (See R. 216.) He reported that he used heroin on a daily basis, and that he used cocaine twice a week. (Id.) He reported that he consumed seventy-two ounces of beer and one pint of vodka on a daily basis and drank one pint of wine two or three times a week. (See R. 217.) Plaintiff reported that he had used alcohol, heroin and cocaine all within twenty-four hours prior to admission. (Id.) Additionally, a drug screen was positive for cocaine. (See R. 216-7.) Plaintiff reported a history of blackouts and one alcohol-related seizure requiring hospital treatment. (Id.) Plaintiff denied delusions or hallucinations, and his thinking was considered to be coherent and goal-directed. (See R. 226.)
Standard of review
The Court has jurisdiction over the final judgments rendered in cases arising under 42 U.S.C. § 405(g). See 42 U.S.C. § 405(g) (1997). In reviewing the administrative record, the Court does not try de novo the factual issues involved, but instead must affirm the Secretary's decision if it is supported by "substantial evidence" in the record and is not tainted by an error of law. See Brown v. Bowen, 253 U.S. App. D.C. 409, 794 F.2d 703, 705 (1986); Smith v. Bowen, 264 U.S. App. D.C. 104, 826 F.2d 1120, 1121 (D.C. Cir. 1987); see also Di Benedetto v. Secretary of the Department of Health and Human Services, 518 F. Supp. 786 (1981). In essence, the Court must not reweigh evidence, and is limited to determining whether the administrative decision rests upon substantial evidence. See Di Benedetto, 518 F. Supp. at 787.
The Social Security Act ("Act") requires the Social Security Administration to give benefits to those "disabled" within the definition of the act. "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 twelve months." 42 U.S.C. § 423(d)(1)(A) (1997). There is a sequential five-step process for determining whether an individual has a disability covered under the Act. 20 C.F.R. § 404.1520 (1996). Plaintiff may be found to be "not disabled" at any of the five stages of this review. Id. In Stankiewicz v. Sullivan, this test was encapsulated as follows:
The claimant bears the burden of proving: first, that he is not engaged in substantial gainful work; second, that he has "severe" impairments, i.e., ones that "significantly limit" his ability "to do basic work activities"; third, that he has one of the impairments listed in Appendix 1, see 20 C.F.R., Part 404, Subpart P ("listing of impairments"), for the requisite duration; and fourth, that his impairment prevents him from engaging in past relevant work. If the claimant survives each of these steps, the Secretary has the burden of proving that given a claimant's age, education, work experience, and residual non-disability, he is still capable of doing work other than his past relevant work.
284 U.S. App. D.C. 25, 901 F.2d 131 (D.C. Cir. 1990) (internal citations omitted). Both Judge Taggart and Judge Sullivan, the administrative law judges in this case, found that Plaintiff does not have an impairment or combination of impairments which meet the listing in Appendix 1 and, therefore, that Plaintiff does not meet the requirement of the third step of this test.
In his motion for summary judgment, Plaintiff contends that his complaint of a severe impairment survives the first four steps in the process for evaluating disability. The parties seem to be in dispute as to whether the third and fifth stages of the five-step review performed by the Appeals Council were properly evaluated based on substantial evidence in the record. Plaintiff asserts that his impairment meets the standards under the "Listing of Impairments" of Appendix 1 to Subpart P of 20 C.F.R. section 404 to qualify as a disability. Further, Plaintiff alleges that under the definition of disability, his pain is such that he is disabled.
Claim of organic mental disorder
In his motion, Plaintiff relies partially on his substance abuse problems to place him in the category of disabled. Plaintiff's main problem, however, appears to be his reliance on alcohol and drugs. This is reflected consistently in the record. Defendant asserts a persuasive argument that the March 29, 1996 amendments to the Social Security Act preclude Plaintiff from obtaining supplemental security income based on a disability in which the Plaintiff's alcohol or drug dependency is material to the determination that the Plaintiff is disabled. See P.L. No. 104-121 § 105, 110 Stat. 847 (1996).
Plaintiff's contention on this issue is that he meets the requirements of the listing for substance abuse as outlined in 20 C.F.R. § 404, Subpt. P, App. 1 § 12.09, which reads:
Substance Addiction Disorders : Behavioral changes or physical changes associated with the regular use of substances that affect the central nervous system.
The required level of severity for these disorders is met when the requirements in any of the following (A through I) are satisfied.