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


5-12-2003

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Precedential or Non-Precedential: Non-Precedential

Docket 02-3623




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Recommended Citation
"Kirk v. Comm Social Security" (2003). 2003 Decisions. Paper 560.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/560


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                                                 NOT PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT


                        No. 02-3623


                      ROBERT KIRK,

                                                 Appellant

                              v.

         COMM ISSIONER OF SOCIAL SECURITY


       On Appeal from the United States District Court
                for the District of New Jersey
                  (D.C. Civ. No. 00-03791)
      Honorable Joseph A. Greenaway, Jr., District Judge


                    Argued April 8, 2003

BEFORE: ALITO, FUENTES, and GREENBERG, Circuit Judges

                     Filed: May 12, 2003


                              Thomas H. Klein (argued)
                              Smith & Klein
                              100 Broad Street
                              Eatontown, NJ 07724

                                   Attorneys for Appellant

                              Christopher J. Christie
                              United States Attorney
                              Peter G. O’Malley
                              Assistant U.S. Attorney
                                             District of New Jersey
                                             970 Broad Street, Suite 700
                                             Newark, NJ 07102

                                             Barbara L. Spivak
                                             Chief Counsel - Region II
                                             Ivelisse Clausell (argued)
                                             Assistant Regional Counsel
                                             Office of the General Counsel
                                             Social Security Administration

                                                 Attorneys for Appellee


                               OPINION OF THE COURT


GREENBERG, Circuit Judge.

        This matter comes on before the court on appeal from an order entered on July

26, 2002, denying appellant Robert Kirk’s appeal from a decision of the Commissioner of

Social Security denying him social security disability benefits. The district court entered

the order without an accompanying opinion.

        The background of this case is as follows. In 1994 Kirk sought disability

benefits. On September 11, 1995, the Social Security Administration advised Kirk that it

had decided that he was disabled under its rules, indicating that it “found that drug

addiction and/or alcoholism [was] a contributory factor material to [his] disability [and

that] if [it] had not considered [his] drug addiction and/or alcoholism, [it] would not have




                                             2
found [him] disabled.” 1 It is, however, clear that the residual effects of a stroke also

contributed to his disability and the Commissioner acknowledges as much. In September

1996 pursuant to section 105 of the Contract with America Advancement Act of 1996,

Pub. L. No. 104-121, Kirk was notified that his benefits would cease as of December 31,

1996, as Congress had prohibited a claimant from receiving benefits where drug or

alcohol addiction was a factor material to the determination of his disability. See 42

U.S.C. § 423(d)(2)(c).

         The law, however, permitted him to seek a redetermination of his disability

without regard for the substance dependency disorder and he did so. See Pub. L. No.

104-121, § 105. In effect, the request for a redetermination is treated as a new application

with the five-part sequential evaluation process followed. The Commissioner denied

Kirk’s claim following which he sought a hearing before an administrative law judge

who, after considering his claim de novo, determined that he was not disabled. He then

unsuccessfully sought review from the Appeals Council following which he instituted the

proceedings which ultimately led to this appeal.

         The district court had jurisdiction pursuant to 42 U.S.C. § 405(g) and we have

jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over the order of

  1
   Following the argument before this court the parties sent to the court certain
submissions regarding the basis for the Social Security Administration’s original
determination that Kirk was disabled as there was some question about this. After our
consideration of these submissions we are satisfied that Kirk’s alcohol dependency was a
factor material to the determination of his disability so that the Contract with the America
Advancement Act of 1996 became implicated in this case.

                                              3
the district court, see Knepp v. Apfel, 204 F.3d 78, 83 (3d Cir. 2000), but review the

decision of the Commissioner to determine whether it is supported by substantial

evidence. See Richardson v. Perales, 402 U.S. 389, 390, 91 S.Ct. 1420, 1422 (1971). Of

course, we exercise plenary review over questions of law.

        After a review of the matter we have concluded that exercising the appropriate

standards of review that we have no basis on which to reverse the order of the district

court. Consequently, the order of July 26, 2002, will be affirmed.




TO THE CLERK:

        Please file the foregoing not precedential opinion.




                                             /s/ Judge Morton I. Greenberg (Sr.)
                                             Circuit Judge

DATED: May 12, 2003




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