                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-30-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2862




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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 07-2862


                                  MARSHA MCGILL,
                                             Appellant

                                           v.

                       COMMISSIONER OF SOCIAL SECURITY


            APPEAL FROM THE UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF NEW JERSEY
                          (D.C. Civil No. 06-cv-02539)
                 District Judge: The Honorable Jose L. Linares


                     Submitted Under Third Circuit LAR 34.1(a)
                                  June 27, 2008


               Before: SLOVITER, BARRY and ROTH, Circuit Judges

                            (Opinion Filed: July 30, 2008)




                                      OPINION




BARRY, Circuit Judge

      Marsha McGill appeals the decision of the District Court affirming the decision of

the Commissioner denying her application for Supplemental Security Income (“SSI”)
benefits. We will affirm.

                                             I.

       Because we write for the parties, we recite only those facts that are relevant to our

analysis.

       McGill applied for SSI benefits claiming that she suffered from depression and

anxiety and could not work. In addition to evidence of depression and anxiety, medical

records showed that McGill had a history of substance abuse, which included the use of

heroin, cocaine, alcohol, and prescription medications. Medical records further showed

that her substance abuse predated the onset of her alleged depression and anxiety. Her

application was denied initially and on reconsideration, and she received a hearing before

an Administrative Law Judge (“ALJ”). The ALJ found that she suffered from three

severe impairments – depression, anxiety, and substance abuse. However, because “[a]n

individual shall not be considered to be disabled...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), the ALJ

proceeded to determine whether McGill would be disabled in the absence of drug or

alcohol addiction (“DAA”). After summarizing the relevant medical evidence, the ALJ

noted that “[v]irtually all of her acute episodes of decompensation and inability to

function have been precipitated by her abuse of drugs,” leading him to conclude that in

the absence of DAA, she would not be disabled. (A20.) The ALJ thus denied her claim.



                                             2
The District Court affirmed, and McGill filed a timely notice of appeal.

       On appeal, McGill claims that the Commissioner bears the burden of proving that

DAA is material to the finding of disability, and that the Commissioner failed to meet her

burden. According to McGill, the Commissioner can only meet her burden if the

materiality determination is based on expert psychiatric opinion evidence.

                                            II.

       The District Court had jurisdiction pursuant to 42 U.S.C. § 405(g), and we have

jurisdiction under 28 U.S.C. § 1291. “We review the ALJ’s application of the law de

novo, and review the ALJ’s factual findings for substantial evidence.” Poulos v. Comm’r

of Soc. Sec., 474 F.3d 88, 91 (3d Cir. 2007) (citation omitted). “Substantial evidence is

‘such relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.’” McCrea v. Comm’r of Soc. Sec., 370 F.3d 357, 359-60 (3d Cir. 2004)

(citation omitted).

                                            III.

       McGill argues that the Commissioner bears the burden of proving that DAA is

material to the finding of disability. She claims that this burden arises from emergency

teletype EM-96200, an internal guideline generated by the Social Security

Administration’s Office of Disability and sent to all hearing offices on August 30, 1996,

in response to questions concerning § 423(d)(2)(C). In relevant part, it provides:

       There will be cases in which the evidence demonstrates multiple
       impairments, especially cases involving multiple mental impairments,

                                             3
       where the [medical or psychological consultant] cannot project what
       limitations would remain if the individuals stopped using drugs/alcohol.
       ...Since a finding that DAA is material will be made only when the evidence
       establishes that the individual would not be disabled if he/she stopped using
       drugs/alcohol, the [disability examiner] will find that DAA is not a
       contributing factor material to the determination of disability.

(EM-96200, response to question 27.) It goes on to explain that “[w]hen it is not possible

to separate the mental restrictions and limitations imposed by DAA and the various other

mental disorders shown by the evidence, a finding of ‘not material’ would be

appropriate.” (Id., response to question 29.)

       The Commissioner responds that it is the claimant who properly bears the burden

of proving materiality, as several courts of appeals have held. See Parra v. Astrue, 481

F.3d 742, 748 (9th Cir. 2007); Doughty v. Apfel, 245 F.3d 1274, 1280 (11th Cir. 2001);

Pettit v. Apfel, 218 F.3d 901, 903 (8th Cir. 2000); Brown v. Apfel, 192 F.3d 492, 498 (5th

Cir. 1999). We need not decide this issue, however, because even accepting McGill’s

contentions that (1) EM-96200 sets forth the standard for the ALJ’s materiality analysis,1

and (2) it places on the Commissioner the burden of proving materiality by requiring the

ALJ to disentangle the effects of DAA from those of the claimant’s other impairments,

we are satisfied that the Commissioner met her burden here.

       The ALJ found that McGill’s mental impairments were severe only when they




   1
      Cf. Parra, 481 F.3d at 749-50 (holding that the teletype is neither binding nor
entitled to deference, and declining to follow it because it “effectively subsidizes
substance abuse in contravention of the statute’s purpose”).

                                                4
coincided with DAA. That finding is adequately supported by the record. The vast

majority of McGill’s hospital visits involved drug overdoses, drug-seeking behavior, or

both. One hospital report noted that she was “well known” to the emergency room due to

her frequent drug overdoses. (A.111.) Another observed that she had a “history of ER

visits seeking prescriptions for Xanax,” a drug on which she repeatedly overdosed.

(A.86.) Once at the hospital, her demeanor – demanding prescription medications, being

uncooperative and occasionally loud and abusive to staff – strongly suggests that

substance abuse, rather than depression or anxiety, was to blame for her behavior and

inability to function.

       In contrast, there is little, if any, evidence of severe depression or anxiety

independent of DAA. In March 2003, at the conclusion of a week-long hospitalization

following a drug overdose, she showed “no evidence of any depression or psychosis.”

(A.102.) A medical evaluation in August 2003 found, when there was “no present

evidence of substance abuse,” that she exhibited a “slightly depressed demeanor” and that

she self-reported feeling only “mildly depressed.” (A.174, 180-81.) In October 2004, she

“was feeling more depress[ed] than ususal,” but there was no evidence of

contemporaneous DAA; tellingly, she received outpatient – rather than the more intensive

inpatient – treatment. (A.268.) Viewed as a whole, “a reasonable mind might accept [the

record evidence] as adequate to support” the ALJ’s findings that McGill’s behavioral and

functional problems were attributable to DAA, and that in the absence of DAA, she



                                              5
would not be disabled. McCrea, 370 F.3d at 359-60. Accordingly, we will not disturb

those findings.

       McGill also argues that any determination that DAA is material to the finding of

disability must be based on expert psychiatric opinion evidence. Because the ALJ’s

decision was based upon his lay interpretation of the medical evidence, she claims, we

must remand. She cites no relevant authority in support of her position,2 and our research

has failed to discover any such requirement in § 423(d)(2)(C) or its implementing

regulations. Moreover, EM-96200, the internal guideline upon which she so heavily

relies, see supra, nowhere suggests that expert opinion evidence is required – not even

when describing what might constitute “useful evidence” in determining the materiality of

DAA. See Doughty, 245 F.3d at 1280 (“We do not find...that the Emergency Teletype

imposes a new requirement upon the ALJ to seek a consultant’s opinion when making a

materiality determination.”). Without some basis to infer that Congress intended to

require such evidence, or that the Commissioner has reasonably interpreted §

423(d)(2)(C) to require it, we decline McGill’s invitation to impose such a requirement.




   2
     McGill cites Walton v. Halter, 243 F.3d 703 (3d Cir. 2001), in which we held that, in
determining the onset date of certain slowly progressive impairments, an ALJ “must call
upon the services of a medical advisor rather than rely on his own lay analysis of the
evidence.” Id. at 709. Walton, however, was interpreting and applying Social Security
Ruling 83-20 (“SSR 83-20”), a “binding” authority requiring the ALJ to “call on the
services of a medical advisor when onset must be inferred.” Id. at 708 (quoting SSR 83-
20). There is no analogous Social Security Ruling requiring expert opinion evidence in
determining materiality under § 423(d)(2)(C). Walton is thus inapposite.

                                            6
                                           IV.

      For the reasons set forth above, we will affirm the decision of the District Court

affirming the decision of the Commissioner.




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