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ALVES v. APFEL

September 17, 1998

KENNETH ALVES, Plaintiff,
v.
KENNETH S. APFEL, Commissioner of Social Security, Defendant.



The opinion of the court was delivered by: KEYS

MEMORANDUM OPINION AND ORDER

 The Plaintiff, Kenneth Alves, seeks judicial review pursuant to the Social Security Act, 42 U.S.C. § 405(g), of a final decision of the Commissioner of Social Security ("Commissioner") denying him Supplemental Security Income *fn1" ("SSI") benefits for a portion of the period during which he claims he was disabled. Plaintiff moves this Court for summary judgment reversing the Commissioner's decision denying his claim for such benefits during the period in question. The Commissioner has filed a Cross-Motion for Summary Judgment in his favor. For the reasons set forth below, Plaintiff's Motion is denied and the Commissioner's Motion is granted.

 Procedural History

 On October 4, 1988, Plaintiff filed his initial application for SSI, alleging that he had been disabled since March 1988, based solely on a broken ankle. (R. at 68.) *fn2" On November 16, 1988, that application was denied. (R. at 73.) On December 30, 1988, Plaintiff filed a request for reconsideration of the denial, (R. at 76), and, on February 9, 1989, the claim was again denied. (R. at 78.) On April 12, 1989, Plaintiff filed a Request for Hearing by an Administrative Law Judge, (R. at 81), pursuant to which, a hearing was held before an Administrative Law Judge ("ALJ") on July 25, 1989. (R. at 143.) On February 26, 1990, the ALJ issued his decision denying the Application on the basis that, while Plaintiff had sustained a fracture of his right ankle, he had not been unable to work as a result thereof for twelve continuous months after the fracture, as required by the Regulations. (R. at 140-145.) On April 11, 1990, Plaintiff filed a Request for Review of the ALJ's decision with the Commissioner's Appeals Council, (R. at 146), and, on March 13, 1991, the Request for Review was denied. (R. at 147.)

 On April 15, 1994, Plaintiff filed the instant Application for SSI, alleging that he had been disabled since December 15, 1992 because of alcohol and drug abuse, varicose veins, pins in his ankles, high blood pressure, tuberculosis, cirrhosis of the liver, numbness on both sides of his body, and severe memory loss. (R. at 18.) After the Application was denied initially and again upon reconsideration, Plaintiff requested a hearing, which was held before ALJ Rodney G. Haworth on February 6, 1996. On February 16, 1996, the ALJ issued his decision, finding that Plaintiff was disabled, but only since January 17, 1995, since he had engaged in "substantial gainful employment" until that date. (R. at 18-24.) On March 21, 1996, Plaintiff filed a Request for Review of the ALJ's decision with the Appeals Council, (R. at 6-10), and, on March 28, 1997, the Appeals Council denied the Request for Review, which stands as the final decision of the Commissioner, (R. at 4-5), and which is the subject of the Cross-Motions now before this Court.

 Summary of Relevant Testimony

 At the hearing before the ALJ, Plaintiff testified that he had tuberculosis, a liver condition, varicose veins, problems with his right ankle, and memory problems. (R. at 42-44.) He testified further, however, that his primary problem was abuse of alcohol and cocaine. (R. at 49-50.) When questioned by the ALJ, Plaintiff testified--clearly in the present tense--that he drank as much wine, beer, whiskey, gin and rum as he could get on a daily basis. His testimony was similar with respect to his seemingly then-current use of cocaine. (R. at 45-50.) Later, however, after the ALJ noted a document that indicated that Plaintiff had been participating in an alcoholic and drug treatment program in 1994, (R. at 280-285), he testified that he was supposed to go to the program every day, or as often as possible. (R. at 50-51.) Then, when queried by his attorney as to when he had last drank alcohol or used cocaine, Plaintiff--after first testifying that he could not recall--testified that he thought it had been over a year. He then testified, upon further query, that his earlier testimony concerning his use of alcohol and cocaine related to his past usage. (R. at 56-57.)

 In connection with his use of alcohol and cocaine, Plaintiff testified--again seemingly in the present tense--that he drank from one to three pints of wine, whiskey, gin or rum and/or beer per day. In addition, he would consume from five to twenty bags of cocaine--normally about three bags--in an average day. When queried as to how much he would spend on cocaine in an average day, Plaintiff testified that he would spend about $ 100.00 per day. (R. at 45-48.)

 Plaintiff, who had not worked since December 1992, testified that he had been receiving $ 687.00 per month in disability benefits from the Veterans Administration only since September 1995 and that, prior to that, he had subsisted on $ 154.00 per month in benefits and $ 112.00 per month in food stamps, which was his only income. (R. at 36-37.) Plaintiff testified further that, in order to purchase his daily supply of alcohol and cocaine, his girlfriend--who worked as a home care nurse--would give him from $ 40,00 to $ 50.00 about four times per week. (R. at 48-49.)

 The ALJ's Decision

 In his February 16, 1996 decision, the ALJ--apparently crediting Plaintiff's testimony that he had not consumed drugs or alcohol for about one year prior to the hearing--found that it was reasonable to find him disabled as of January 17, 1995 *fn3" , but not prior thereto. (R. at 19-20.) Plaintiff contends that he should have been found disabled and paid back benefits at least as of April 15, 1994, the date of his Application herein. *fn4" Plaintiff's "Amended Complaint", dated August 21, 1997. The ALJ's reason for not awarding Plaintiff benefits prior to January 17, 1995 was based on his testimony which, according to the ALJ, indicated that he spent approximately $ 3,597.00 per month on alcohol, cocaine and tobacco, although his reported legitimate income was only about $ 800.00 per month. The ALJ surmised then, that the Plaintiff must have obtained more than $ 2,300.00 per month through engaging in illegal activity in order to support his habits, which activity constituted substantial gainful employment. Thus, the ALJ concluded, Plaintiff's ability to engage in such activities prior to January 17, 1995 indicated that he was not disabled prior to that date.

 STANDARD OF REVIEW

 In reviewing the Commissioner's (here the ALJ's) decision, the court may not decide facts anew, reweigh the evidence, or substitute its own judgment for that of the Commissioner. Herron v. Shalala, 19 F.3d 329, 333 (7th Cir. 1994). Rather, the court must accept findings of fact that are supported by "substantial evidence," 42 U.S.C. § 405 (g)(1988), where substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a ...


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