Bell v. Commissioner of Social Security

dissenting.

*799 Respectfully, I dissent.

In 1996, Congress enacted Section 105 of the Contract with America Advancement Act (Act), including a subsection entitled “Denial of Disability Benefits to Drug Addicts and Alcoholics.” See 42 U.S.C. § 423 (d)(2)(C). This statute and the regulations promulgated thereunder operate to deny social security disability benefits to claimants whose alcoholism or drug addiction is a contributing factor material to the determination of his or her disability. 1 See 20 C.F.R. § 404.1535 .

Here plaintiff-appellant George G. Bell frankly admits, and the disability officer so found, that Bell abuses cocaine, alcohol and marijuana on a daily basis. 2 Under the plain meaning of the Act, Bell is ineligible, by definition, to receive disability benefits, order, perhaps, to go out and purchase more drugs and alcohol.

I am still desperately clinging to the notion that our elected representatives in Congress make the law and that bureaucrats make the regulations. Congress has clearly stated that, regardless of the regulations of the Social Security Administration (SSA), if alcohol or drugs are significant contributing factors to the claimant’s disability,…

MEMORANDUM ***

George G. Bell appeals the district court’s judgment remanding his case to the Social Security Administration. The court ordered a remand in order to allow the Commissioner to supplement the record to provide the information necessary to evaluate medical improvement. 1 We reverse because the Commissioner never demonstrated “that there is good cause for the failure to incorporate” the necessary evidence “into the record in a prior proceeding.” 2 Under 42 U.S.C. § 405 (g), the Commissioner must make such a showing in order to justify a remand.

The district court correctly determined that the record contains no evidence supporting the Administrative Law Judge’s finding of medical improvement. 4 The record contains no written decision that indicates the basis of Bell’s disability in 1989 at all. Because the Commissioner failed to introduce appropriate evidence, and has not shown cause for the failure, the presumption of continuing disability applies, and the district court must reinstate Bell’s benefits.

REVERSED AND REMANDED WITH INSTRUCTIONS TO REMAND WITH INSTRUCTIONS TO REINSTATE BENEFITS.

This disposition is not appropriate for publication and may not be…