Opinion
3:03-cv-90081
March 9, 2004
Michael Depree, Esq., Davenport, Iowa, for Plaintiff's
Gary L. Hayward, Esq., Des Moines, Iowa, for Defendant's
ORDER
Plaintiff, Brenda Adamson-Rambo, filed a Complaint in this Court on July 29, 2003, seeking review of the Commissioner's decision to deny her claim for Social Security benefits under Title II and Title XVI of the Social Security Act, 42 U.S.C. §§ 401 et seq. and 1381 et seq. This Court may review a final decision by the Commissioner. 42 U.S.C. § 405(g). For the reasons set out herein, the decision of the Commissioner is reversed.
BACKGROUND
Plaintiff filed applications for Social Security Disability benefits on June 6, 2001. Tr. at 51-53 298-300. Plaintiff claimed to have become disabled December 31, 1996. Tr. at 51. After the applications were denied, initially and on reconsideration, Plaintiff requested a hearing before an Administrative Law Judge. The hearing was held January 27, 2003, before Administrative Law Judge Thomas M. Donahue (ALT). Tr. at 314-41. The ALJ issued a Notice Of Decision — Unfavorable on April 25, 2003. Tr. at 13-25. After the decision was affirmed by the Appeals Council on June 20, 2003, (Tr. at 7-10), Plaintiff filed a Complaint in this Court on July 29, 2003.
MEDICAL HISTORY
Plaintiff was seen at the University of Iowa Hospitals and Clinics on September 15, 1993. Plaintiff had responded to an advertisement for participation in a trial of a medication for the treatment of panic disorder. Plaintiff reported an onset of generalized anxiety and panic attacks at least ten years before the interview. She stated that although the symptoms had waxed and waned, there had been no clear periods of sustained remission. Symptoms of panic attacks included palpitations, shortness of breath, chest tightness, dizziness, unsteadiness, sweating, hot flashes, and an intense desire to "run away." She said that these symptoms were more likely to occur in enclosed spaces where strangers were present. Plaintiff said she sought treatment in February 1993 from her family physician who prescribed medication which proved to be ineffective. Plaintiff reported that she had drank to excess in the past in an effort to calm herself down, but said that she had no recent difficulties with alcohol. Plaintiff was in college studying English. At the time of the interview, she had three semesters left until graduation. Tr. at 140. William Coryell, M.D. diagnosed panic disorder with mild agoraphobia, atypical bipolar disorder, and bulemia nervosa, in remission. Tr. at 141. When Plaintiff returned on October 13, 1993, she reported that she had experienced ten panic attacks during the week and missed occasional classes. Between attacks, Plaintiff said that she felt noticeably less anxious. Tr. at 139.Plaintiff was hospitalized at the University from April 24 to 28, 1995, after a 2-3 day drinking binge. She reported drinking 4-5 beers a day and a fifth of vodka throughout the binge. Plaintiff agreed to follow up treatment on a voluntary outpatient basis so she was discharged. During the hospitalization, Plaintiff was cooperative, interacted well and had no difficulty sleeping. The discharge diagnoses were alcohol abuse, intermittent, and a history of panic disorder. Tr. at 142. At the time of admission to the hospital Plaintiff's prescribed medications were Ativan and Lasix. Tr. at 144.
Plaintiff was hospitalized from June 12 to July 10, 1996, at Hazelden Mental Health Services (in Minnesota (Tr. at 155)). The initial primary diagnosis was alcohol dependence with physiological dependence. During treatment, Plaintiff was diagnosed with anxiety disorder not otherwise specified with occasional panic attacks. Plaintiff was prescribed Buspar. On discharge, Plaintiff expressed a willingness to follow through with aftercare recommendations. Tr. at 146.
Plaintiff was seen by psychiatrists at the University of Iowa on November 15, 1996. Plaintiff reported that after her stay at Hazeldon, she attended an inpatient Hazeldon program in Florida until October of 1996. About three weeks before being seen at the University, Plaintiff relapsed and drank for about a week, but had no alcohol for two weeks before the visit. Plaintiff reported chronic, low level anxiety. She denied panic attacks. The doctors initiated a trial of Trazodone to help with insomnia and anxiety. On Axis I, the diagnoses were alcohol abuse and generalized anxiety disorder. On Axis II, it was noted that Plaintiff has a history of migraine headaches. Tr. at 155.
Plaintiff was seen at the University on August 11, 1997, with complaints of migraine with associated neurological symptoms. Plaintiff was pregnant and the doctors at the department of neurology told her that her symptoms were not uncommon during pregnancy and would likely improve after the birth of the child. Tr. at 157-58. Plaintiff was hospitalized at the University from January 21 to 27, 1999. Plaintiff, who was 13 or 14 weeks pregnant, sought treatment for suicidal ideation and intoxication. On discharge, Plaintiff said that she would attend an impatient rehabilitation at Hazeldon Alcohol Rehabilitation in Minnesota. Tr. at 159.
Plaintiff was admitted at Hazelden on July 16, 1999, and discharged on August 13, 1999. This was noted to be Plaintiff's fourth treatment at Hazelden. A Beck Depression Inventory indicated a moderate level of depression. A Minnesota Multiphasic Personality Inventory was valid and indicated someone exhibiting behavior of manic or hypomanic episode. The initial primary diagnosis was alcohol dependence with physiological dependence. Tr. at 161. Because Plaintiff was unwilling to follow the recommendations of the staff for extended aftercare, an alternative plan was made based on what Plaintiff was willing to do. Plaintiff's prognosis appeared to be guarded. Plaintiff was instructed to attend 90 AA meetings in 90 days and to find a female sponsor within two weeks of discharge. Tr. at 162.
Plaintiff was seen by David Bekelman, M.D., a resident psychiatrist at the University of Iowa on October 21, 1999. Plaintiff had recently been hospitalized for an alcohol binge and referred to the clinic for continuity of care. After the January hospitalization, Plaintiff had lost her baby after which she went to Hazeldon. Plaintiff had remained sober since July until one week before she was seen by Dr. Beckelman. Plaintiff had been hospitalized for 1 or 2 days at Mercy Hospital after her husband called the police. Plaintiff had been sober since her hospitalization and felt her mood was stable and that she was able to concentrate. She voiced no thoughts of self-harm or suicide. Tr. at 169. Dr. Bekelman's diagnoses, on Axis I were history of bipolar II Disorder, history of panic disorder, Alcohol dependence with recent relapse, history of bulimia nervosa currently without eating disorder symptoms and history of benzodiazepine abuse/dependence. On Axis II, the diagnosis was history of borderline personality disorder. Tr. at 169-170. Plaintiff was instructed to continue with daily AA meetings. Tr. at 170.
Plaintiff was admitted to the hospital at the University of Iowa on November 11, 1999 and discharged on November 19, 1999, for alcohol detoxification and treatment. Although Plaintiff admitted to consuming alcohol, she tended to minimize the amounts and the severity of the problem. Plaintiff made a good effort during treatment, attending groups and activities. During the hospitalization, Plaintiff went to court and obtained custody of her child and a no-contact order against her husband. On discharge, Plaintiff was instructed to resume normal activity and to continue taking Depakote and Paxil. Tr. at 171.
A "Counselor's Discharge Summary" dated February 3, 2000, from the University, written by Alan Zaback, staff counselor, states that Plaintiff was scheduled to participate in an outpatient program after her discharge on November 19, 1999. Plaintiff, however, did not show and had returned to drinking. Tr. at 173. The counselor wrote that in addition to addiction and codependency, Plaintiff is diagnosed with depression. The counselor went on to state that unless Plaintiff took steps to address the primary issue of addiction, medication for depression would "probably be ineffective." "It should also be noted that along with depression there was a distinct impression that Brenda was engaging in self-pity. Until such time that she is willing to take responsibility for her returning to drinking, she will continue to remain stuck." Tr. at 174. It was pointed out that Plaintiff had never been responsible for herself, that in all previous relationships she was dependent on the men in her life. It was recommended that Plaintiff enter a halfway house and learn to be independent. She resisted the recommendation because she did not want to be separated from her child. The counselor noted that her love for her child had not been sufficient to keep her sober. Because she would not enter the halfway house, her parents, who were caring for her child, allowed her to return home. The counselor noted that Plaintiff's mother had a history of panic attacks and was reported to have been addicted to ativan and that Plaintiff's father is an alcoholic. "It is little wonder that Brenda is as troubled as she is." Tr. at 174.
The counselor wrote:
Brenda had a routine staffing on 11/18. At this meeting she was unable to recite the words to Step 1 of the 12 suggested Steps of AA. For someone who has had as much treatment as Brenda this is unconscionable. It conveys a lack of commitment and sincerity about recovery. It implies laziness. It is an indicator that Brenda is at high risk for relapse. If Brenda is to avoid a return to drinking it is suggested that she become actively involved in AA and obtain a sponsor. It is also strongly suggested that she participate in ongoing aftercare counseling to maintain vigilance against relapse triggers. Also, as someone with a dual diagnosis, regardless of what the specific diagnosis might be, it is hoped that Brenda will commit herself to ongoing therapy with a psychiatrist for medication monitoring and to receive therapy to help her develop and practice healthier life skills.
Brenda is a very troubled woman whose life has been unmanageable as a result of addiction, codependency and mental illness. Though she has had intermittent periods of abstinence she has persistently returned to drinking. She has received a significant amount of treatment through chemical dependency programs and through admissions to psych units. While the power of her illnesses is respected there comes a time when Brenda is the one who needs to make the choice about going to any length necessary in order to make healthy changes in her life. At this time Brenda is still doing filings her way (refusing a halfway house). Should Brenda not succeed at this time it is strongly suggested that her next treatment experience result in her entering a halfway house. For now the hope is that Brenda will remain dry and gradually grow into some semblance of recovery. Whether or not this treatment provided Brenda with anything other than an opportunity to remain dry remains to be seen.
Tr. at 174-75.
Plaintiff was hospitalized from September 3 to 8, 2000 at Genesis Medical Center in Davenport, Iowa. Tr. at 176-85. Plaintiff presented with a history of a recent alcoholic binge which flared her underlying bipolar process. She had not been compliant with her medication. It was noted that Plaintiff had a history of blackout spells and withdrawal symptoms in relationship to the alcohol. Tr. at 179. During her hospital stay, Plaintiff was described as a model patient. She was cooperative and her affect and mood improved. Plaintiff did not want to go through alcohol treatment again but she was encouraged to continue with AA meetings and to find a new sponsor. Tr. at 177.
On September 27, 2000, Plaintiffs father took her to the Genesis Emergency Room because she was exhibiting strange behavior. Plaintiff had not been taking her medication and had been binge drinking. On physical examination, the doctor noted alcohol on her breath. Tr. at 188. In the emergency room Plaintiff was conscious, drowsy with unstable gait. Laboratory results showed blood alcohol to be "316." Tr. at 189.
Plaintiff was hospitalized from October 27 to 31, 2000, with an admitting diagnosis of bipolar disorder, acute alcohol intoxication, rule out substance induced mood disorder and generalized anxiety disorder. Under the heading "hospital course," J. Michael Bertroche, D.O. wrote: "The patient is fully cognizant and fully aware of the consequences of her behavior and knows right from wrong and behavior is under her own totally voluntary control." Tr. at 192.
Plaintiff was hospitalized from February 28 to March 5, 2001. Tr. at 202-13. Plaintiff was brought to the emergency room by her mother. Plaintiff reported that the only way she can sleep is if she drinks four glasses of wine, and then only sleeps only three or four hours. "She had several beers this morning to calm herself down for this visit." Plaintiff's had been prescribed Ativan, but had been reluctant to use it for fear that it would affect her alertness. Tr. at 205.
On August 8, 2001, Dr. Bertroche wrote a letter to Disability Determination Services. The Doctor stated that he had been seeing Plaintiff since August of 2000. He said that over the previous six months, Plaintiff had been compliant with her treatment, had not been abusing any alcohol, and was taking her medication consistently. As a result, she had improved. Her behavior had been appropriate, and her affect and mood had been calm. The doctor wrote that Plaintiff had been maintaining social functioning and was able to do her own activities of daily living. Nevertheless, the doctor wrote that Plaintiff had some difficulty with concentration and had some decompensation in her ability in work or work-like settings. He said that maintaining concentration, attention and pace would be difficult for Plaintiff. When Plaintiff is not manic, she can understand instructions, procedures and locations, and can carry out instructions. When she is not manic Plaintiff is able to use good judgment and respond to changes in the workplace. Tr. 219. The doctor concluded his report by stating: "When she is manic, she deteriorates substantially and cannot maintain control of herself and can get very psychotic, impulsive, and intrusive with very poor reality testing and she gets disinhibited to where she cannot control her own cash benefits and cannot do any of the above mentioned activities. She continues in outpatient treatment, she is compliant with treatment and currently stable." Tr. at 220.
On November 8, 2001, Dr. Bertroche completed a mental residual functional capacity questionnaire. Tr. at 234-238. On this form, the doctor was asked to give his opinion of Plaintiff's ability to function in several domains using a scale of none, slight, moderate, marked or extreme. None of the domains were listed as being markedly or extremely limited. Most were listed as slightly limited or no limitations. The following were listed as being moderately limited which, the form states, means that the patient is affected 25 to 50 percent of the time: The ability to relate to other people; the ability to remember work-like procedures; the ability to maintain attention for extended periods of 2 hour segments; the ability to work in coordination with or proximity to others without being unduly distracted by them; the ability to complete a normal workday and work week without interruptions from psychologically based symptoms and perform at a consistent pace without an unreasonable number and length of rest periods; the ability to respond appropriately to changes in a routine work setting; and, the ability to be aware of normal hazards and to take appropriate precautions.
On December 26, 2001, Dr. Bertroche wrote another report for Disability Determination Services. Plaintiff was seeing the doctor and a therapist at Vera French Mental Health Center on a regular basis. Plaintiff had been compliant with her medications and was doing well. Although Plaintiff had not been able to find or sustain a job, she was going to school and was doing well with her grades. The doctor wrote that Plaintiff would have trouble carrying out complicated instructions, directions and procedures. He said Plaintiff would have difficulty maintaining concentration and pace. Tr. at 243. The doctor concluded his report by stating that when Plaintiff becomes manic she gets psychotic, impulsive and intrusive with poor reality testing. During manic episodes Plaintiff gets disinhibited and cannot control her own cash as a result of which her activities of daily living deteriorate. Tr. at 244.
Plaintiff's therapist at Vera French Community Mental Health Center is Paul Elias, Ph.D. Tr. at 260-64, as well as elsewhere in the record. On May 13, 2002, Dr. Elias completed a mental residual functional capacity form. This form was similar but not identical to the one completed earlier by Dr. Bertroche. On this form, the doctor is asked to rate the domains of functioning on a scale of unlimited or very good, good, fair, and poor or none. All but one of the domains were rated as being unlimited or very good, or good (ability to function is limited but satisfactory). One domain, the ability to perform at a consistent pace without an unreasonable number and length of rest periods, was listed as both good and fair (ability to function is seriously limited). Dr. Elias opined that Plaintiff would be absent from work about two days per month because of her impairments or treatment. Tr. at 265-66. On June 20, 2002, Dr. Bertroche filled out the same form. Dr. Bertroche listed all domains but one as being unlimited or very good, or good, except the ability to work in coordination with or proximity to others without being unduly distracted. This was noted to be fair. Tr. at 277-78.
On January 14, 2003, James Darrow, M.D. completed a headache residual functional capacity questionnaire. Tr. at 291-93. Dr. Darrow stated that he treated Plaintiff for headaches with regular check ups and acute illness visits. He said that Plaintiff's migraine headaches occurred with a varying frequency of "0 to few/week." The doctor said that Plaintiff's symptoms included nausea/vomiting, malaise, photosensitivity, visual disturbances and an inability to concentrate. Tr. at 291. Dr. Darrow stated that treatment consisted of adjustments in medication. He said that the prognosis was good with an expectation of being able to control the headaches with medication. Tr. at 292.
On February 3, 2003, Dr. Bertroche wrote to Plaintiff's attorney that Plaintiff's limitations and absenteeism were due to bipolar disorder and that she had not been drinking or using drugs. The doctor wrote: "Patient does suffer from a chronic Bipolar Disorder, which is an Affective Disorder of at least 15-years duration, which has caused limitation on her ability to do work activities and with signs and symptoms currently attenuated by medication. This is a residual disease, which has resulted in her inability to work consistently." Tr. at 294.
ADMINISTRATIVE HEARING
Plaintiff appeared and testified at a hearing before the ALJ on January 27, 2003. Tr. at 314-41. Plaintiff was 40 years old at the time of the hearing. She said that her education included a degree from the University of Iowa. Tr. at 317. Plaintiff said that she saw Dr. Bertoche and Dr. Darrow for medical care. She said that she had been seeing each of them for three years. Tr. at 318.
Plaintiff testified that drinking was no longer a problem. Tr. at 320. She said that although she occasionally has a drink in a social situation, she no longer drinks to excess. Tr. at 321. When asked about the frequency of the headaches, the only answer given by Plaintiff was ". . . they come and go but sometimes they're very severe." She said that "sometimes," the headaches will last two days. Tr. at 233.
Plaintiff testified that her medications included side effects of fatigue and sedation. As a result of these side effects, she arranges her daily schedule to coincide with the medication schedule. Tr. at 323. Plaintiff said that at least four times per week, her medication makes her so tired that she needs to lie down to rest. Tr. at 326.
After Plaintiff testified, the ALJ called Roger Marquardt to testify as a vocational expert. Tr. at 337. The ALJ asked the following hypothetical question:
First one being, age 40, a female. Has a bachelor of Arts Degree plus additional graduate studies and cosmetology. Past relevant work as set forth in Exhibit Number 22E (Tr. at 138). No physical limitations. Would need a low stress job, such as a level 3, with 10 being the most stressful and 1 being the least stressful. Claimant would need to be limited to simple, routine tasks. Should not work at heights or around dangerous equipment. Based on this hypothetical, could the claimant do any of her past relevant work?
Tr. at 338. In response, the vocational expert testified that the hypothetical would allow for Plaintiff's past work as a care-taker or housekeeper as she performed the work. In addition, the vocational expert testified that there would be unskilled work available. Tr. at 338-39. The ALJ's second hypothetical was similar to, if not the same as, the first question with the addition of the following: "Due to drug addiction, alcoholism, chronic pain syndrome, depression, mental impairment or any other reason, the claimant would miss three or more days of work per month." In response, the vocational expert testified that no competitive work would be possible. Tr. at 339.
ADMINISTRATIVE DECISION
In the decision dated April 25, 2003, following the sequential evaluation set out in the regulations, the ALJ found that Plaintiff had not engaged in substantial gainful activity at any time after the alleged onset of disability. At the second and third steps, the ALJ found that Plaintiff has severe impairments but that none of them meet or equal any of those listed in Appendix I, Subpart P, Regulations No. 4. Tr. at 23. At the fourth step, the ALJ found that Plaintiff is not able to do her past relevant work. At the fifth step of the evaluation, the ALJ found that Plaintiff does not have transferable skills. The ALJ found that Plaintiff has been under a disability as defined by the Social Security Act and Regulations. The ALJ went on to find that when Plaintiff does not abuse alcohol she retains the residual functional capacity to perform the type of work identified by the vocational expert at the hearing. The ALJ found that alcohol is a material factor to a finding of disability and, as a result, Plaintiff is not disabled or entitled to the benefits for which she applied. Tr. at 24.
DISCUSSION
The scope of this Court's review is whether the decision of the Secretary in denying disability benefits is supported by substantial evidence on the record as a whole. 42 U.S.C. § 405(g). See Lorenzen v. Chater, 71 F.3d 316, 318 (8th Cir. 1995). Substantial evidence is less than a preponderance, but enough so that a reasonable mind might accept it as adequate to support the conclusion. Pickney v. Chater, 96 F.3d 294, 296 (8th Cir. 1996). We must consider both evidence that supports the Secretary's decision and that which detracts from it, but the denial of benefits shall not be overturned merely because substantialevidence exists in the record to support a contrary decision. Johnson v. Chafer, 87 F.3d 1015, 1017 (8th Cir. 1996) (citations omitted). When evaluating contradictory evidence, if two inconsistent positions are possible and one represents the Secretary's findings, this Court must affirm. Orrick v. Sullivan, 966 F.2d 368, 371 (8th Cir. 1992) (citation omitted).Fenton v. Apfel, 149 F.3d 907, 910-11 (8th Cir. 1998).
In short, a reviewing court should neither consider a claim de novo, nor abdicate its function to carefully analyze the entire record. Wilcutts v. Apfel, 143 F.3d 1134, 136-37 (8th Cir. 1998) citing Brinker v. Weinberger, 522 F.2d 13, 16 (8th Cir. 1975). See also Patrick v. Barnhart, 323 F.3d 592, 595 (8th Cir. 2003).
In Brueggemann v. Barnhart, 348 F.3d 689, (8th Cir. 2003), the central issue was how Social Security regulations dealing with alcohol abuse should be applied. Brueggemann claimed disability because of schizophrenia, depression, anxiety and a bad knee. A treating physician marked a form so as to indicate that Brueggemann's impairments left him with no useful ability to handle stress. A vocational expert testified that such a limitation eliminated the possibility of competitive employment. At the hearing, Brueggemann testified that he had not used alcohol since May of 2000, but that his then-active symptoms included fatigue, lack of concentration, lack of motivation, anxiety, headaches and depression. Like the ALJ in the case at bar, the Brueggemann ALJ followed the sequential evaluation through step four. There, the ALJ wrote that because of the current statutory scheme on the use/abuse of drugs and alcohol, the opinion of the treating physician that Brueggemann had no useful ability to handle stress was entitled to little weight. The ALJ held that Brueggemann failed to prove his disability at either step four or step five because Brueggemann's limitations would not prevent him from performing his past work. The Court wrote: "We locate the ALJ's error at step four, where he discredited the evidence from Brueggemann's treating physician as a matter of law. This legal conclusion to exclude essential evidence left the remainder of the ALJ's five-step evaluation as a decision without the necessary factual foundation and constitutes legal error." Id. at 693.
In the case at bar, the ALJ followed the correct procedure in applying the steps of the sequential evaluation. He committed error, however, by improperly discrediting the opinion of Plaintiff's treating physician, Dr. Bertroche. In his letter of February 3, 2003, the doctor wrote that Plaintiff had not been using alcohol or non-prescribed drugs. Nevertheless, the doctor wrote that Plaintiff's bipolar disorder, although currently attenuated by medication, resulted in the inability to work consistently. A similar opinion regarding Plaintiff's ability to sustain a consistent and regular schedule was expressed by Dr. Ellias and By Dr. Darrow. No physician who treated or examined Plaintiff expressed a contrary opinion. In Brennan-Kenyon v. Barnhart, 252 F. Supp.2d 681, 691 (N.D. Illinois 2003), the Court wrote:
It is established in Social Security law that an ALJ may not play doctor and substitute his own opinion for that of a physician, or make judgments that are not substantiated by objective medical evidence. Rohan v. Chater, 98 F.3d 966, 970-71 (7th Cir. 1996). In other words, ALJs must not succumb to the temptation to play doctor and make their own independent medical findings. Id See also Schmidt v. Sullivan, 914 F.2d 117, 118 (7th Cir. 1990), cert. Denied, 502 U.S. 901, 112 S.Ct. 278, 116 L.Ed.2d 230; Scivally v. Sullivan, 966 F.2d 1070, 1076 (7th Cir. 1992). An ALJ will be reversed in those cases where the ALJ impermissibly played doctor by failing to address relevant evidence. Dixon v. Massanari, 270 F.3d 1171, 1177 (7th Cir. 2001).
Plaintiff made her application June 6, 2001. Her alleged onset of disability is December 31, 1996. Because of the statutory and regulatory limitations on past due benefits, given a fully favorable
decision, Plaintiff can receive benefits only from and after June 1, 2000. See 20 C.F.R. § 404.315. During a significant period of time after the alleged onset of disability, Plaintiff was drinking heavily and received inpatient and outpatient treatment. Plaintiff's last inpatient treatment directly related to alcoholism was from February 28 to March 5, 2001. Thereafter, according to Dr. Betroche, Plaintiff had been compliant with her medication and had not been abusing alcohol. Nevertheless, Plaintiff continued to have some difficulty with attention and concentration, and experienced occasional manic episodes during which she, using Dr. Betroche's words, deteriorates substantially and cannot maintain control of herself and can get very psychotic, impulsive and intrusive with very poor reality testing.
In Pettit v. Apfel, 218 F.3d 901, 903 (8th Cir. 2000), the Court wrote that the key factor in determining whether drug addiction or alcoholism is material to a determination of disability is whether the claimant would still be found disabled if he or she stopped using drugs or alcohol. "The focus of the inquiry is on the impairments remaining if the substance abuse ceased, and whether those impairments are disabling, regardless of their cause. See 20 C.F.R. § 404.1535(b)(1); see also Jackson [v. Apfel, 162 F.3d 533,] at 537-38 [(8th Cir. 1998)]." Id. The Court went on to observe that determining whether a claimant would still be disabled if he or she stopped drinking is simpler when the claimant has actually stopped. Id. In other words, the test is not whether or not the claimant is drinking or using drugs. Rather it is whether or not the claimant would be disabled in the absence of alcohol or drug usage.
In the case at bar, substantial evidence supports the ALJ's finding that Plaintiff has been under a disability as defined in the statute and regulations. Even after Plaintiff stopped consuming alcohol on a regular basis, the treating physicians stated that her inability to work consistently, was due to impairments other than alcoholism. The treating physicians opined that because of mental impairments and migraine headaches, Plaintiff would be required to be absent from work several days each month. The vocational expert testified that such a limitation prevents the possibility of competitive employment. The ALJ's finding that drug abuse or alcoholism is a material factor to a finding of disability is not supported by substantial evidence. As the Court in Brueggemann held, even if the question of materiality remains indeterminate, an award of benefits must follow. Brueggemann at 695. Here, the ALJ found that Plaintiff is disabled; he considered the fact that alcoholism is a concern; substantial evidence supports a finding that Plaintiff's disability remains even in the absence of alcohol use. Plaintiff, therefore, is entitled to a finding of disability from and after her alleged onset of disability. A remand for further administrative proceedings would only delay the receipt of benefits to which she is clearly entitled.
CONCLUSION AND DECISION
It is the holding of this Court that Commissioner's decision is not supported by substantial evidence on the record as a whole. The Court finds that the evidence in this record is transparently one sided against the Commissioner's decision. See Bradley v. Bowen, 660 F. Supp. 276, 279 (W.D. Arkansas 1987). A remand to take additional evidence would only delay the receipt of benefits to which Plaintiff is entitled. This case, therefore, is hereby remanded for the sole purpose of computing and awarding Plaintiff the benefits to which she is entitled.
The judgment to be entered will trigger the running of the time in which to file an application for attorney's fees under 28 U.S.C. § 2412 (d)(1)(B) (Equal Access to Justice Act). See also, McDannel v. Apfel, 78 F. Supp.2d 944 (S.D. Iowa 1999) (discussing, among other things, the relationship between the EAJA and fees under 42 U.S.C. § 406 B), and LR 54.2(b).
N.B. Counsel is reminded that LR 54.2(b), states that an EAJA application "must specifically identify the positions taken by the government in the case that the applicant alleges were not substantially justified."
IT IS SO ORDERED.