Armstrong v. Massanari

* Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-31479
Summary Calendar
TROY ARMSTRONG,
Plaintiff-Appellant,
versus
LARRY G. MASSANARI, ACTING COMMISSIONER
OF SOCIAL SECURITY,
Defendant-Appellee.
--------------------
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 99-CV-1107
--------------------
August 20, 2001
Before JOLLY, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Troy Armstrong appeals the district court’s judgment
affirming the Social Security Commissioner’s decision to deny him
disability benefits. He argues that the case should be remanded
for further administrative proceedings so that he has an
opportunity to meet his burden to show whether alcoholism is a
contributing factor material to his disability. See Brown v.
Apfel, 192 F.3d 492, 498-99 (5th Cir. 1999). Because the record
shows that Armstrong had no notice or knowledge that he had to

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No. 00-31479
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** The Commissioner argues that Armstrong waived this issue
by failing to raise it in the district court, but the issue was
expressly raised by Armstrong in his objections to the magistrate
judge's report and recommendation.
carry the burden of proof on that issue, by introducing evidence
that supports a finding in his favor that he would still be
disabled even if he stopped using alcohol, remand for further
administrative proceedings is appropriate. See Brown, 192 F.3d
at 499.** Further, the Administrative Law Judge's ("ALJ")
finding on this issue is not supported by substantial evidence.
The ALJ stated that Dr. Pushpita Pramanik opined that Armstrong's
organic brain disorder would improve if he stopped drinking, but
Dr. Pramanik's assessment contains no such statement.
Armstrong also argues that the ALJ erred in failing to
explain why she denied Armstrong's request to appoint a medical
advisor to assist in the third step of the disability inquiry.
Inasmuch as Armstrong does not challenge the ALJ's findings at
the third step, this argument is without merit.
Armstrong also challenges the hypothetical posed by the ALJ
to the vocational expert at the fifth step of the disability
inquiry. Because the case must be remanded for further
administrative proceedings that could implicate the inquiry, it
is unnecessary to address this argument.
The judgment of the district court is VACATED and this case
is REMANDED for further administrative proceedings.

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