                                                     NOT PRECEDENTIAL
                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 14-3354
                                      _____________

                                 RANDALL L. PINTAL,
                                                 Appellant
                                        v.

                       COMMISSIONER OF SOCIAL SECURITY
                                _______________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                                 (D.C. No. 13-cv-00127)
                       District Judge: Hon. Donetta W. Ambrose
                                   _______________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                  February 12, 2015

           Before: CHAGARES, JORDAN, and VANASKIE, Circuit Judges

                                  (Filed: March 11, 2015)
                                     _______________

                                       OPINION
                                    _______________

JORDAN, Circuit Judge

       Randall Pintal appeals an order of the United States District Court for the Western

District of Pennsylvania affirming the decision of the Commissioner of the Social


       This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
Security Administration (“Commissioner”) finding Pintal “not disabled” under the Social

Security Act and thus ineligible for Disability Insurance Benefits because his alcohol

abuse was a contributing factor material to the disability determination. We will affirm.

I.     Background

       Pintal brought this action for review of the final decision of the Commissioner

denying his application for Disability Insurance Benefits under Title II of the Social

Security Act. 42 U.S.C. § 401-33. In his application for benefits, he alleged that, since

June 16, 2005, he had been disabled due to bipolar disorder, a sleeping disorder, an eating

disorder, Hodgkin’s lymphoma, and depression. An Administrative Law Judge (“ALJ”)

held a hearing at which Pintal was represented by counsel. Pintal appeared at the hearing

and testified on his own behalf. A vocational expert also testified. The ALJ decided that

Pintal’s impairment was sufficiently severe that no jobs existed in significant numbers in

the national economy that Pintal could perform. The ALJ further concluded, however,

that Pintal’s alcohol abuse was a contributing factor material to the determination of

disability because, even though Pintal would still have several severe impairments if he

ceased abusing alcohol, he would be able to perform a limited range of light work.

Because the alcohol abuse was a material contributing factor, the ALJ concluded that

Pintal was not disabled under the Social Security Act. 42 U.S.C. § 423(d)(2)(c).

       Pintal requested review by the Appeals Council, which denied his request for

review and thus made the ALJ’s ruling the final decision of the Commissioner. Having

exhausted all of his administrative remedies, Pintal filed an action in the District Court,

seeking review of the Commissioner’s decision. The parties filed cross-motions for

                                              2
summary judgment and the District Court granted the Commissioner’s motion, ruling that

the disability decision was supported by substantial evidence. Pintal timely appealed.

II.    Discussion1

       “In order to establish a disability under the Social Security Act, a claimant must

demonstrate there is some medically determinable basis for an impairment that prevents

him from engaging in any substantial gainful activity for a statutory twelve-month

period.” Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999) (internal quotation marks

omitted). The Commissioner has developed a five-step sequential evaluation process to

determine if a person is disabled. 20 C.F.R. § 416.920(a)(4). That process requires an

ALJ to consider whether the claimant: (1) is engaged in substantial, gainful work activity;

(2) has severe medical impairments; (3) has an impairment that meets or equals one of

the Social Security Administration’s listed impairments; (4) can return to his past relevant

work; and, if not, (5) can perform other work consistent with his residual functional

capacity. Id. With respect to step three, it is the responsibility of the ALJ to determine

medical equivalence to the listed impairments, as required by the Social Security Act. Id.

§ 416.926(e); Knepp v. Apfel, 204 F.3d 78, 85 (3d Cir. 2000).


       1
          The District Court had jurisdiction over the Commissioner’s final determination
of Pintal’s Social Security claim under 42 U.S.C. §§ 405(g) and 1383(c)(3). We have
jurisdiction pursuant to 28 U.S.C. § 1291. “The role of this Court is identical to that of
the District Court, namely to determine whether there is substantial evidence to support
the Commissioner’s decision.” Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999).
“Substantial evidence is ‘such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.’” Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir.
2005) (citing Reefer v. Barnhart, 326 F.3d 376, 379 (3d Cir. 2003)). In other words, it is
“more than a mere scintilla but may be somewhat less than a preponderance of evidence.”
Id. (internal quotation marks omitted).
                                             3
       Pintal raises three issues on appeal: (1) whether the ALJ erred at step three of the

analysis in failing to secure a state agency psychological and physical assessment, (2)

whether the ALJ erred in concluding that alcohol materially contributed to Pintal’s

claimed disability, and (3) whether the District Court erred in “impermissibly substituting

a more adequate and proper basis for the ALJ’s decision [and] whether the District Court

impermissibly failed to limit review to the four corners of the ALJ’s decision.” 2

(Opening Br. at 3.) None of those arguments prevail.

       A.     State Agency Psychological and Physical Assessment

       Pintal claims that the ALJ erred in step three of her analysis by failing to obtain a

state agency assessment. Specifically, he argues that the 2007 state agency assessment

prepared by state agency consultant Dr. Manella Link, Ph.D., is inadequate because, in

2010, state agency medical consultant Dr. Sharon Becker Tarter, Ph.D., noted that there

was insufficient evidence for the period prior to 2009 in the file. Despite that argument,

the ALJ’s step-three analysis is sound.

       The ALJ is required to consider the issue of medical equivalence – that is, whether

a claimant has an impairment that meets or equals the listed impairments under the Social

Security Act. If a state agency has made the initial medical assessment, an ALJ is

required to consider that assessment as an expert medical opinion. 20 C.F.R.

§ 404.1527(e)(2). To ensure that the state agency properly considers medical equivalence

       2
         Pintal actually identifies five issues for appeal, but his brief contains only three
sections of argument, largely because some of the “issues” he lists in the statement of
issues are the same contention stated differently: that the ALJ erred in concluding that
alcohol abuse materially contributed to the claimed disability. (Opening Br. at 2-3.)

                                               4
in the first instance, it must submit documentation establishing that it has done so,

including, among other possibilities, a psychiatric review technique form. SSR 96-6p

(July 2, 1996).

       Here, as the District Court correctly noted, the record contains an assessment on a

psychiatric review technique form from Dr. Link. Thus, insofar as Pintal argues that

there was no psychiatric review technique form, his claim is contradicted by the record.

Further, Pintal neither cites to any law nor advances any argument as to why Dr. Tarter’s

comment on the evidence in the file for the period prior to 2009 renders the 2007

psychiatric review technique form insufficient. The form serves as a proxy to show that

the state agency consultant has considered the question of medical equivalence, which

Dr. Link clearly did here. As the District Court noted, Pintal does not argue that Dr.

Link’s opinions are incorrect, and he relied upon them below.

       Pintal argues that the ALJ was required to obtain an updated medical opinion

because there was a “huge volume” of new medical evidence that was never submitted to

a state agency, but he is mistaken. (Opening Br. at 35.) “Only where ‘additional medical

evidence is received that in the opinion of the [ALJ] ... may change the State agency

medical ... consultant’s finding that the impairment(s) is not equivalent in severity to any

impairment in the Listing,’ is an update to the report required.” Chandler v. Comm’r of

Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011) (alteration and omission in original)

(emphasis omitted) (quoting SSR 96–6p (July 2, 1996)).3


       3
       Pintal also argues that the ALJ did not consider a state agency medical
assessment at step three. Because he failed to raise that issue or assert any claim related
                                              5
       B. Whether Alcohol Contributed Materially to Pintal’s Claimed Disability

       Pintal argues that the ALJ erred in determining that alcohol contributed to his

claimed disability because she impermissibly ignored medical opinion evidence, failed to

address the lay opinions of two of Pintal’s friends, and reached a conclusion that is

contrary to the “facts.”

       To the extent he suggests that the ALJ was obligated to obtain a medical opinion

that decides the ultimate question, Pintal is wrong. The ultimate legal determination of

disability is reserved for the Commissioner. 20 C.F.R. § 404.1527(d)(1) (“We are

responsible for making the determination or decision about whether you meet the

statutory definition of disability. In so doing, we review all of the medical findings and

other evidence ... . A statement by a medical source that you are ‘disabled’ or ‘unable to

work’ does not mean that we will determine that you are disabled.”); see also Knepp, 204

F.3d at 85 (“Knepp ... argues that only a physician designated by the Commissioner can

decide the question of medical equivalency. This argument misapprehends 20 C.F.R.

§ 404.1526. The ultimate decision concerning the disability of a claimant is reserved for

the Commissioner.” (citations omitted)).

       Pintal also complains that the ALJ failed to consider Dr. Yogesh Maru’s opinion

that it was “difficult to tease out whether [Pintal’s] symptoms are the cause or effect of


to the combination of physical impairments below, however, he has waived it on appeal.
See, e.g., Smith v. Comm’r of Soc. Sec., 631 F.3d 632, 637 (3d Cir. 2010) (“This court has
consistently held that it will not consider issues that are raised for the first time on
appeal.” (quoting Harris v. City of Phila., 35 F.3d 840, 845 (3d Cir. 1994))). In any
event, the record is clear that the ALJ considered Pintal’s combination of medical
impairments in her step three analysis.
                                             6
alcohol.” (Tr. at 315.) This argument, too, is meritless. First, an ALJ is not required to

cite every piece of evidence in the record. See Fargnoli v. Massanari, 247 F.3d 34, 42

(3d Cir. 2001) (stating that there is no requirement for an ALJ to discuss or refer to every

piece of relevant evidence in the record, so long as the reviewing court can discern the

basis of the decision). Second, Dr. Maru’s statement is a treatment note from the second

day of Pintal’s five-day voluntary admission for alcohol detoxification after Pintal had

been drinking “large quantities of alcohol almost on a daily basis” and not taking his

prescription medication. (Tr. at 315, 275.) Under these circumstances, Dr. Maru might

well have been unable to “tease out” the cause and effect of Pintal’s symptoms at that

time. It does not follow, however, that it was impossible to do so later. Indeed, Dr.

Maru’s notes upon Pintal’s discharge state that Pintal had “stabilized” and that his

depression and anxiety had improved in the absence of alcohol. (Tr. at 939-40, 311-313.)

The ALJ’s conclusions are thus consistent with Dr. Maru’s notes. Cf. Sykes v. Apfel, 228

F.3d 259, 266 (3d Cir. 2000) (“When she rejects the treating physician’s opinion, the ALJ

must adequately explain her reasons for doing so.” (emphasis added)). Third, the record

indicates that the ALJ did consider Dr. Maru’s opinion, even if she did not specifically

refer to it: the ALJ discussed Pintal’s hospitalization and cited the exhibit containing Dr.

Maru’s report; the ALJ noted Pintal’s complaints that appeared on Dr. Maru’s discharge

summary report; and the ALJ noted different diagnoses that were issued by the

emergency department provider and reviewed by Dr. Maru.

       Pintal next contends that the ALJ did not follow certain guidelines which state

that, “[w]hen it is not possible to separate the mental restrictions and limitations imposed

                                             7
by [drug and alcohol abuse] and the various other mental disorders, a finding of ‘not

material’ would be appropriate.” (Social Security EM-96200, response to question 29)

(App. Vol. II at 7.) As is noted above, however, the record supports the conclusion that

the ALJ was able to make such a determination based on the totality of the evidence,

including Pintal’s brief period of sobriety.

       Pintal also argues that the ALJ ignored the evidence from other medical providers

and his friends, and that her decision was contrary to their conclusions. A review of the

record, however, reveals that the ALJ in fact did consider the evidence from those

providers. Further, contrary to Pintal’s assertions, the ALJ did consider the lay witness

evidence provided by Pintal’s friends and indeed credited that evidence in her findings.

       Finally, the ALJ’s decision that Pintal’s alcohol abuse is a contributing factor

material to his disability is supported by substantial evidence. The record, including

reports, treatment records, Dr. Maru’s notes, and statements from Pintal’s friends,

supports the conclusion that Pintal would be able to perform some light work if he did not

abuse alcohol. Pintal cites to McGill v. Commissioner of Social Security, arguing that,

unlike the claimant in McGill, he has provided ample evidence of depression and anxiety,

independent of alcohol. 288 F. App’x 50, 53 (3d Cir. 2009). But he misses the point.

The ALJ agreed that, in the absence of substance abuse, Pintal had severe depression and

anxiety, and yet the ALJ concluded that alcohol aggravated those conditions, rendering

Pintal unable to perform any work available in the economy. [Tr. at 95, 99.] The

treatment records and other evidence show that Pintal responded well to treatment and

had more normal mental status examinations while sober. For example, Pintal reported

                                               8
no hallucinations during periods when he stopped drinking; he said that, after completing

alcohol-related treatment, low-dose anxiety medicine helped him; and during his

testimony before the ALJ, Pintal admitted that his increased psychiatric symptoms

coincided with his alcohol problems and his move from Boston to Oil City, Pennsylvania.

The ALJ’s conclusion that alcohol was a material contributing factor in Pintal’s disability

is thus supported by substantial evidence and we are not free to disturb it.

       C.     The District Court’s Reasoning

       Finally, Pintal takes issue with the District Court’s opinion, arguing that the Court

erred in supplementing the ALJ’s reasoning and in not confining review to the “four

corners of the [ALJ’s] decision.” (Opening Br. at 30.) We disagree.

       Pintal’s argument that the District Court, by citing cases, “impermissibly

supplement[ed]” the ALJ’s decision is simply mistaken. (Opening Br. at 34.) He seems

to argue that, because the District Court cited to cases in explaining why it was upholding

the ALJ’s decision, it somehow supplemented the decision. Not surprisingly, he cites

nothing to support the odd proposition that it is error for a district court to cite precedents,

and we reject his contention.

       Further, the District Court did not “impermissibly ... create and bolster a defense

never undertaken by the ALJ.” (Opening Br. at 38.) Pintal relies on Securities and

Exchange Commission v. Chenery Corp., for the proposition that the District Court was

confined to reviewing the four corners of the ALJ’s decision. 332 U.S. 194, 196 (1947)

(court reviewing administrative agency decision must evaluate it based only the grounds

invoked by the agency). While we have said that a district court may not rely on

                                               9
“medical records found in its own independent analysis ... which were not mentioned by

the ALJ,” that is not what happened here. Fargnoli, 247 F.3d at 44 n.7. Pintal has not

pointed to a single piece of evidence relied upon by the District Court that was not also

noted in some way in the ALJ’s decision. Rather, he argues that the District Court

supplied “missing analysis.” (Opening Br. at 39.) The District Court did not, however,

affirm the ALJ for any reason extrinsic to the ALJ’s own decision and thus did not err. In

any event, having conducted our own de novo review of the ALJ’s decision, we conclude

that it is supported by substantial evidence.

III.   Conclusion

       For the forgoing reasons, we will affirm.




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