Robert Kirk v. COMM ISSIONER OF SOCIAL SECURITY On Appeal from the United States District Court for…

NOT PRECEDENTIAL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

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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

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1Following 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.
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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

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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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