Opinion
No. C00-2057.
September 25, 2001
ORDER
This matter comes before the court pursuant to briefs on the merits of this application for disability insurance benefits. The court finds in favor of the defendant and dismisses this action.
PROCEDURAL BACKGROUND
Plaintiff Kathy Hildebrand applied for Title II Social Security benefits and Title XVI supplemental security income benefits on December 20, 1994 alleging an inability to work since January 1, 1994 due to mental problems, including memory loss, depression, panic disorder, drug addiction, and pain from endometriosis. Her application was originally denied and denied again on reconsideration. A hearing before Administrative Law Judge (ALJ) Thomas M. Donahue was held on July 22, 1997. In an opinion dated January 16, 1998, the ALJ denied benefits. On April 22, 2000, the Appeals Council denied Plaintiff's request for review. This action for judicial review was timely filed on June 26, 2000.
FACTUAL BACKGROUND
The plaintiff was born on July 15, 1954. (Tr. 15). She has a bachelor's degree from the University of Iowa in communications and psychology. (Tr. 53). Her past work experience is that of a food service worker, cashier, office worker, shoe salesperson, dietary clerk, counselor, psychologist assistant. (Tr. 150, 188).
On May 17, 1991 the plaintiff was admitted to Mercy Medical Center with severe abdominal pain after a bowel movement. (Tr. 199). She had been told previously that she needed a laparoscopy. She did not do it. She was evaluated by Dr. Wilson who noted significant history of IV drug abuse and Methadone maintenance for the past three years. He considered her to be a candidate for inpatient treatment for drug dependency. After refusing inpatient treatment she was released in stable condition. (Tr. 199, 202). During the same hospital stay, Dr. Valone saw the plaintiff. (Tr. 208). He thought that the plaintiff was receiving too much Methadone and that she would be better off without it. The plaintiff did not appear to be interested in any recommendations made by Dr. Valone. (Tr. 208).
Dr. Valone performed a diagnostic laparoscopy on June 7, 1991. The exam revealed nothing significant. (Tr. 214). The doctor biopsied an area of discoloration to rule out endometriosis. The entire darkened area on the peritoneum was removed. The biopsy revealed focal endometriosis with hemosiderin pigment. (Tr. 216).
Dr. Pangilinan performed a psychiatric evaluation of the plaintiff on July 10, 1992. (Tr. 218-221). The plaintiff claimed that she was unable to work because of a panic disorder and depression. Dr. Pangilinan determined that the plaintiff had a panic disorder with agoraphobia based on her symptoms. She had a history of opiate dependency and other substance abuse. (Tr. 218-221). The doctor noted it was hard to gauge the severity of the plaintiff's illness based on the one hour interview. (Tr. 220).
On August 9, 1992 Dr. Kazmierski performed a psychiatric review of the plaintiff. (Tr. 77-83). The plaintiff was deemed to have depression, panic disorder with agoraphobic history, and endometriosis but the severity of the illnesses was hard for the doctor to gauge. (Tr. 77-83).
In November of 1992, Dr. LaTendresse evaluated the plaintiff for symptoms of acute anxiety and he thought she was doing very well. (Tr. 234). She was on Xanax and reported only needing ½ pill per day on most days. Dr. LaTendresse concluded the clinic note with the following, "Basically I think she has done extremely well." (Tr. 234).
In June of 1993, the plaintiff went to a vocational rehabilitation center and spoke with Mr. Butschi. (Tr. 187-191). Initially she indicated that she wanted to become a counselor. She would have considered extra schooling if necessary but preferred to work without going back to school. (Tr. 190). The plaintiff admitted that she had been through detoxification twice without success and had been on Methadone for a number of years. On September 8, 1993 the plaintiff informed Mr. Butschi that she would not be able to attend a Job Club due to her job caring for an elderly lady. (Tr. 190). She was told to contact a placement specialist on September 10. The plaintiff did not contact the placement specialist and had not contacted Mr. Butschi to inform him of any problems she might be having. (Tr. 190-191). Mr. Butschi indicated that he thought the plaintiff was not very interested in receiving services from the center or in working at all. He closed her file, citing a failure to cooperate. (Tr. 191).
The plaintiff was evaluated at the Black Hawk-Grundy Mental Health Center on December 1, 1993. (Tr. 239). The plaintiff followed through on 2 of the 6 appointments between July of 1992 and March of 1993. It was noted that she was still involved in the Methadone clinic. She appeared at the time of the evaluation to lack insight, was very concrete in her responses, and did not seem ready to take antidepressants for her depression. (Tr. 239).
In the record from Tr. 256-273 are the clinical notes from Dr. Murphy's Methadone treatment of the plaintiff from November 1989 to January 1995. The notes indicate continued and increased dosages of Methadone for the plaintiff. There are instances of drug related interactions and reactions, including the plaintiff's tirade in the doctor's office in an apparent attempt to get more Xanax. The recommendation was always to keep the plaintiff on Methadone maintenance. There are repeated statements in these records encouraging the plaintiff to get a job.
Dr. Murphy evaluated the plaintiff at the Covenant Medical Center on January 27, 1995. He determined that, "this patient is acutely psychotic whether it is secondary to intoxication with a substance or medication, or whether she has had a psychotic break — I cannot be sure." (Tr. 283). Dr. Murphy noted that the plaintiff reported having taken some "vague pills" and that she may have overdosed on Xanax, and that she reported having taken Crystal. (Tr. 256, 282). Dr. Murphy also indicated that the plaintiff's bottle of Xanax was missing approximately 30 pills. After examining the plaintiff in the hospital, Dr. Raju concluded that the plaintiff had never been drug free during her adult life. (Tr. 284).
During the hospital stay in January of 1995, the plaintiff reportedly admitted recent use of marijuana and crack cocaine. (Tr. 284). The plaintiff denied stating these things to the hospital staff. (Tr. 45). Initially the plaintiff stated that she had used marijuana occasionally about 15 years ago. (Tr. 44). Then she testified that she had not used illegal drugs for over 15 years. (Tr. 45). At the end of the hearing, the plaintiff stated that she had used illegal drugs 5 years previously. (Tr.50).
In a one-paragraph letter dated July 18, 1997, Dr. Murphy wrote that the plaintiff had been a patient of his for the past 5 years. (Tr. 323). He noted that she had become progressively less functional mentally. He stated that she had allowed herself to live in very dire circumstances. He thought that she had not been able to function well enough mentally to be able to pursue gainful employment or educational opportunities. (Tr. 323). Dr. Murphy had started her on major tranquilizers with the hopes that she would become more functional but had not yet seen any dramatic response. (Tr. 323). He did not address the degree to which her drug addiction caused her disability.
CONCLUSIONS OF LAW Scope of Review
In order for the court to affirm the Administrative Law Judge's (ALJ) findings of fact, those findings must be supported by substantial evidence appearing in the record as a whole. See Lochner v. Sullivan, 968 F.2d 725, 727 (8th Cir. 1992); Cruse v. Bowen, 867 F.2d 1183, 1184 (8th Cir. 1989). Substantial evidence is more than a mere scintilla. It means relevant evidence a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1997);Cruse, 867 F.2d at 1184; Taylor v. Bowen, 805 F.2d 329, 331 (8th Cir. 1986). The court must take into account evidence which fairly detracts from the ALJ's findings. Cruse, 867 F.2d at 1184; Hall v. Bowen, 830 F.2d 906, 911 (8th Cir. 1987). Substantial evidence requires "something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's findings from being supported by substantial evidence." Cruse, 867 F.2d at 1184 (quoting Consolo v. Federal Maritime Comm'n, 383 U.S. 607, 620 (1966)). The court must consider the weight of the evidence appearing in the record and apply a balancing test to contradictory evidence. Gunnels v. Bowen, 867 F.2d 1121, 1124 (8th Cir. 1989); Gavin v. Heckler, 811 F.2d 1195, 1199 (8th Cir. 1987).
ALJ's Determination of Disability
Determining whether a claimant is disabled is evaluated by a five-step process. See 20 C.F.R. § 404.1520(a)-(f); Bowen v. Yuckert, 482 U.S. 137, 140 (1987).
The five steps are:
(1) If the claimant is engaged in substantial gainful activity, disability benefits are denied.
(2) If the claimant is not engaged in substantial gainful activity, her medical condition is evaluated to determine whether her impairment, or combination of impairments, is medically severe. If the impairment is not severe, benefits are denied.
(3) If the impairment is severe, it is compared with the listed impairments the Secretary acknowledges as precluding substantial gainful activity. If the impairment is equivalent to one of the listed impairments, the claimant is disabled.
(4) If there is no conclusive determination of severe impairment, then the Secretary determines whether the claimant is prevented from performing the work she performed in the past. If the claimant is able to perform her previous work, she is not disabled.
(5) If the claimant cannot do her previous work, the Secretary must determine whether she is able to perform other work in the national economy given her age, education, and work experience.Trenary v. Bowen, 898 F.2d 1361, 1364 n. 3 (8th Cir. 1990) (citing Bowen v. Yuckert, 482 U.S. at 140-42); 20 C.F.R. § 404.1520(a)-(f).
"To establish a disability claim, the claimant bears the initial burden of proof to show that he is unable to perform his past relevant work."Frankl v. Shalala, 47 F.3d 935, 937 (8th Cir. 1995) (citing Reed v. Sullivan, 988 F.2d 812, 815 (8th Cir. 1993)). If the claimant meets this burden, the burden of proof then shifts to the Commissioner to demonstrate that the claimant retains the physical residual functional capacity (RFC) to perform a significant number of other jobs in the national economy that are consistent with the claimant's impairments and vocational factors such as age, education and work experience. Id.
Under the first step of the analysis, the ALJ determined that the plaintiff had not engaged in substantial gainful employment at any time relevant to his decision. At the second step, the ALJ determined the plaintiff had the following impairments: endometriosis and mental problems. At the third step, the ALJ determined that the Plaintiff's impairments were not equivalent to one of the listed impairments. At the fourth step, the ALJ determined the plaintiff had the residual functional capacity (RFC) to perform the physical exertional and non-exertional requirements of work except for more than "medium" work as that term is defined by the regulations.
The ALJ determined that the plaintiff is unable to perform her past relevant work; however, based on this RFC, the ALJ determined that the plaintiff is not disabled and as a result there are jobs that exist in significant numbers in the national economy that the claimant is capable of performing. Therefore, the ALJ denied benefits.
Drug Related Disability
Section 105 of Pub.L. No. 104-121, entitled "Denial of Benefits to Drug Addicts and Alcoholics," provides that "an individual shall not be considered to be disabled for purposes of this title if alcoholism or drug addiction would (but for this subparagraph) be a contributing factor material to the Commissioner's determination that the individual is disabled." Pub.L. No. 104-121 §§ 105(a)(1) and 105(b)(1). The Regulations at 20 C.F.R. § 404.1535 and 416.935 provide that if the ALJ concludes that a claimant is disabled and there is medical evidence of drug addiction or alcoholism, the ALJ must undertake an evaluation of whether the substance addiction is "a contributing material factor to the determination of disability." The "key factor" in determining whether substance addiction is a contributing material factor is whether the ALJ would still find the claimant disabled if the claimant stopped using drugs or alcohol. 20 C.F.R. § 404.1535(b) and 416.935(b).
A two-step analysis is required to make the determination whether the addiction is a contributing material factor. See Rehder v. Apfel, 205 F.3d 1056,1060 (8th Cir. 2000). First, the ALJ should determine which of the claimant's physical and mental limitations would remain if the claimant refrained from drug and alcohol use. Then, the ALJ must determine whether the claimant's remaining limitations would be disabling. If the claimant's remaining limitations would not be disabling, the claimant's alcoholism or drug addiction is a contributing factor material to a determination of disability and benefits will be denied. If the claimant would still be considered disabled due to his or her remaining limitations, the claimant is disabled and entitled to benefits. Id. citing 20 C.F.R. § 404.1535(b)(2), 404.1535(b)(2)(i), 404.1535(b)(2)(ii).
Two identical sets of regulations have been enacted. Section 404.1535 applies only to applications for disability benefits. The regulations for SSI applications are found at 20 C.F.R. § 416.935.
In this case the ALJ properly concluded that the plaintiff's drug abuse "was material because she [was] not disabled independent of these conditions." (Tr. 15). The plaintiff disputed the medical records indicating that she had used drugs before being admitted to the hospital. However she cannot point to a reason why the records contained such a statement. One of the physicians that evaluated the plaintiff concluded that she had not been drug free in her adult life. The records are permeated with persistent evidence of very serious and chronic drug abuse which supports the ALJ's determination that drug abuse was material in the determination of the plaintiff's disability status.
Opinion of Treating Physician
"A treating physician's opinion should not ordinarily be disregarded and is entitled to substantial weight. A treating physician's opinion regarding an applicant's impairment will be granted controlling weight, provided the opinion is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the record." Singh v. Apfel, 222 F.3d 448, 452 (8th Cir. 2000) (citation omitted). The regulations require the ALJ to give reasons for giving weight to or rejecting the statements of a treating physician. See 20 C.F.R. § 404.1527(d)(2). "The ALJ may discount or disregard such an opinion if other medical assessments are supported by superior medical evidence, or if the treating physician has offered inconsistent opinions." Hogan v. Apfel, 239 F.3d 958, 961 (8th Cir. 2001).
The plaintiff does not provide substantial evidence to support the conclusion made by Dr. Murphy that the plaintiff was not able to function mentally. It is clear from the evidence that the plaintiff has had a difficult time finding employment. There is not, however, clear evidence that there is any medical cause for her impairments that would create a disability independent from her drug abuse. There is no other instance pertaining to the treatment of the plaintiff in which a doctor says that the plaintiff's impairments are disabling or that the plaintiff is disabled. The inconsistencies in the record as a whole complicate the interpretation of the evidence and tend to discredit the plaintiff's testimony. There simply is not substantial medical evidence to support a finding that the plaintiff is disabled.
IT IS ORDERED
That this complaint is dismissed.