Opinion
Civil No. 00-1084-HA
August 7, 2001
Tim Wilborn, for Plaintiff.
Michael Mosman United States Attorney, William W. Youngman, Assistant U.S. Attorney Norman M. Barbosa, Special Assistant U.S. Attorney, for Defendant.
OPINION AND ORDER
Plaintiff, Theresa Hogenson (Hogenson), brings this action pursuant to the Social Security Act (the Act), 42 U.S.C. § 405(g), to review a final decision of the Commissioner of the Social Security Administration (Commissioner) denying her request for Supplemental Security Income disability benefits under Title XVI of the Act. For the reasons set forth below, this matter should be remanded for payment of benefits.
PROCEDURAL HISTORY
On February 3, 1998, Hogenson protectively filed an application for benefits alleging that she is disabled as a result of mental retardation and other mental and psychological impairments. After initial denial of Hogenson's claim, hearings were held before Administrative Law Judge (ALJ) Riley J. Atkins on April 28, 1999, and June 23, 1999. The second hearing was held to allow Hogenson to testify as she did not attend the first hearing. On August 30, 1999, the ALJ issued a decision denying benefits and the Appeals Council declined to review Hogenson's administrative appeal.
THE ALJ'S DECISION
At the time of the hearings Hogenson was 35 years old and had brief work experience as a janitor. She completed the ninth grade in special education classes, but is illiterate. Tr. 19. The ALJ found that Hogenson had "mild mental retardation, a substance-induced dysthymic disorder, and polysubstance abuse in partial remission." Tr. 25. The ALJ concluded that Hogenson was under a disability, as defined by the Act, based on Listing Section 12.05B. He also found, however, that in the absence of alcohol use, she would not meet the criteria for this listing and would be able perform a significant number of jobs available in the national economy. Tr. 23-23, Tr. 26. Thus, the ALJ determined that Hogenson was not eligible for benefits because alcohol abuse was material to the determination of her disability. Tr. 27.
STANDARD OF REVIEW
This court must affirm the Commissioner's decision if it is based on proper legal standards and the findings are supported by substantial evidence in the record. Orteza v. Shalala, 50 F.3d 748, 749 (9th Cir. 1995). "Substantial evidence is more than a mere scintilla but less than a preponderance — it is such relevant evidence that a reasonable mind might accept as adequate to support the conclusion." Id. The ALJ determines the credibility of the medical testimony and also resolves ambiguities in the evidence. Drouin v. Sullivan, 966 F.2d 1255, 1258 (9th Cir. 1992). The court must weigh "both the evidence that supports and detracts from the Commissioner's conclusions." Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). However, if the evidence adduced in the administrative record can support more than one rational interpretation, the ALJ's decision must be upheld. Orteza, 50 F.3d at 749. The initial burden of proof rests upon the claimant to establish disability. Howard v. Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the claimant must demonstrate an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected . . . to last for a continuous period of not less than 12 months. . . ." 42 U.S.C. § 423(d)(1)(A).
The Commissioner has established a five-step sequential process for determining whether a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1502, 416.920. First, the Commissioner determines whether a claimant is engaged in "substantial gainful activity." If so, the claimant is not disabled. Yuckert, 482 U.S. at 140; 20 C.F.R. § 404.1520(b), 416.920(b).
In step two the Commissioner determines whether the claimant has a "medically severe impairment or combination of impairments." Yuckert, 482 U.S. at 140-41; see 20 C.F.R. § 404.1520(c), 416.920(c). If not, the claimant is not disabled.
In step three the Commissioner determines whether the impairment meets or equals "one of a number of listed impairments that the Commissioner acknowledges are so severe as to preclude substantial gainful activity." Id.; see 20 C.F.R. § 404.1520(d), 416.920(d). If so, the claimant is conclusively presumed disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.
In step four the Commissioner determines whether the claimant can still perform "past relevant work." 20 C.F.R. § 404.1520(e), 416.920(e). If the claimant can work, he or she is not disabled. If he or she cannot perform past relevant work, the burden shifts to the Commissioner. In step five, the Commissioner must establish that the claimant can perform other work. Yuckert, 482 U.S. at 141-42; see 20 C.F.R. § 404.1520(e) (f), 416.920(e) (f). If the Commissioner meets this burden and proves the claimant is able to perform other work which exists in the national economy, he or she is not disabled. 20 C.F.R. § 404.1566, 416.966.
DISCUSSION
Hogenson argues that the documentary medical evidence and the expert hearing testimony establish that her impairments meet the criteria for Listing Section 12.05 in 20 C.F.R. Pt. 404, Subpt. P, App. 2, even in the absence of alcohol use. The Commissioner argues that the burden of proof in the administrative process was on Hogenson to demonstrate that alcohol use was not material to the finding that she was disabled and that she failed to meet this burden.
Listing § 12.05- Mental Retardation and Autism — provides as follows:
Mental retardation refers to a significantly subaverage general intellectual functioning with deficits in adaptive behavior initially manifested during the developmental period (before age 22). (Note: The scores specified below refer to those obtained on the WAIS, and are used for reference purposes. Scores obtained on other standardized and individually administered tests are acceptable, but the numerical values obtained must indicate a similar level of intellectual functioning. . . .
The required level of severity for this disorder is met when the requirements in A, B, C, or D are satisfied.
A. Mental incapacity evidenced by dependence upon others for personal needs (e.g., toileting, eating, dressing, or bathing) and inability to follow directions, such that the use of standardized measures of intellectual functioning is precluded; OR
B. A valid verbal, performance, or full scale IQ of 59 or less; OR
C. A valid verbal, performance, or full scale IQ of 60 through 70 and a physical or mental impairment imposing additional and significant work-related limitation of function; OR
D. A valid verbal, performance, or full scale IQ of 60 through 70, or in the case of autism, gross deficits of social and communicative skills, with either condition resulting in two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Deficiencies of concentration, persistence or pace resulting in frequent failure to complete tasks in a timely manner (in work settings or elsewhere); or
4. Repeated episodes of deterioration or decompensation in work or work-like settings which cause the individual to withdraw from that situation or to experience exacerbation of signs or symptoms (which may include deterioration of adaptive behaviors).
1. The Medical Evidence and Drug and Alcohol Abuse.
On March 26, 1996, Congress amended the provisions of Title XVI of the Act to provide that "[a]n individual shall not be considered to be disabled for the purposes of this title if alcoholism or drug abuse would (but for this paragraph) be a contributing factor material to the Commissioner's determination that the individual is disabled." 42 U.S.C. § 1382c(a)(3)(J). Where there is medical evidence of drug addiction or alcoholism, the implementing regulations provide that the ALJ must decide whether the claimant would still be disabled if the claimant stopped using drugs or alcohol. If so, the drug or alcohol abuse is not a contributing factor to the disability. If the remaining impairments would not be disabling, however, then the drug or alcohol addiction is a contributing factor material to the finding of disability, and the claimant is not entitled to benefits. 20 C.F.R. § 416.935.
The record indicates that Hogenson began abusing alcohol and drugs during her teenage years. Tr. 217-218, Tr. 236. She was addicted to amphetamines for several years, but quit using drugs in 1997. Id. Her alcohol use continued, however, through at least the time of the second ALJ hearing. Id., Tr. 72. The evidence varies as to the level of Hogenson's ongoing alcohol use. In a psychological evaluation on March 26, 1998, Jim Johnson, Ph.D., reported Hogenson as stating that she got drunk approximately four times a week. Tr. 218. In an intellectual assessment on May 11, 1998, Cheryl S. Brischetto, Ph.D., reported Hogenson stating that she drank a six pack of beer per day. Tr. 236. At her ALJ hearing, Hogenson testified that she drank three or four beers once a week. Tr. 72.
In addition to drug and alcohol dependence, Dr. Johnson diagnosed Hogenson with dysthymic disorder, mild mental retardation, borderline personality disorder, and reading disorder. Tr. 219. He reported that she "clearly appears to be impoverished in intellectual functioning." Tr. 218. He further reported that she did basic household chores under direction and supervision, but that she was unable to travel, handle funds, make change, or buy things for herself. Id. He concluded that "[e]ven with alcohol out of the picture, she shows no potential . . . for vocational rehabilitation." Tr. 219.
Although he was not a Social Security Administration (SSA) consultative examiner, Dr. Johnson completed the Administration's psychiatric review technique form (PRTF) and mental residual functional capacity (MRFC) assessment for Hogenson. Tr. 221-233. On the PRTF he determined that she met the criteria for listing sections 12.04 (affective disorders), 12.05 (mental retardation), and 12.08 (personality disorders). Tr. 221-229. On the MRFC, he found her "markedly limited" in all but two of 20 listed types of mental activity. Tr. 230-233. Dr. Brischetto tested Hogenson's intellectual functioning using the Weschler Adult Intelligence Scale III (WAIS-III), the Wechsler Memory Scale III, and Wide Range Achievement Test (WRAT). Tr. 234. The WAIS-III resulted in a verbal IQ score of 63, a performance IQ score of 60, and a full scale IQ score of 59. Tr. 238. Based on the WRAT, Hogenson's reading and spelling are at the kindergarten level. Tr. 237. Dr. Brischetto diagnosed Hogenson with reading disorder, mathematics disorder, mild mental retardation, and "some antisocial traits." Tr. 240.
At the first ALJ hearing, Gary A. Sacks, Ph.D, testified as a medical expert. He noted that Dr. Johnson diagnosed Hogenson with a personality disorder and an affective disorder, while Dr. Brischetto did not diagnose either. Tr. 47-48. He also noted that it may not be accurate to separately diagnose Hogenson with a reading disorder or mathematics disorder in that they would be part of her mental retardation. Tr. 49. With regard to Listing Section 12.05, Dr. Sacks testified that Hogenson's valid IQ score of 59 may have been a few points higher in the absence of alcohol use, but that such an assumption was conjectural. Tr. 49. He confirmed, however, that her IQ would be below 70 irrespective of her alcohol use. Id. At the second hearing, Larry S. Hart, Ph.D., testified as a medical expert. Dr. Hart stated that it would be very rare that someone with Hogenson's history did not suffer from chronic depression. Tr. 92. He explained that abstinence and proper treatment would mitigate the symptoms, but that such a mood disorder would persist even if drug and alcohol use ceased. Tr. 93-98. He made similar conclusions with regard to her intellectual functioning, opining that her "educational" intelligence would not necessarily improve, but that her "ecological" intelligence (i.e., social functioning) would probably benefit. Tr. 94-98.
2. Burden of Proof
The parties argue at length as to which had the burden of proof in the administrative process on the issue of the materiality of alcohol use. The Commissioner contends that Hogenson had the burden to prove that alcohol use was not material to the finding of disability and that Hogenson failed to meet this burden. Hogenson claims that published Social Security Administration policy required the Commissioner to separate out the mental restrictions and limitations imposed by alcohol and, because the ALJ failed to adequately do so in this case, a finding of "not material" is mandated under this policy.
Hogenson relies partially on the following portion of an Emergency Teletype issued by the SSA on August 30, 1996:
29. Q. The most complicated and difficult determinations of materiality will involve individuals with documented substance use disorders and one or more other mental impairments. In many instances, it will be very difficult to disentangle the restrictions and limitations imposed by the substance use disorder from those resulting from other mental impairment(s). Can any examples be provided for how to handle the materiality determination in these situations, or can any guidance be provided for the type of information that should be used in trying to assess the impact of each impairment?
A. We know of no research upon which to reliably predict the expected improvement in a coexisting mental impairment(s) should drug/alcohol use stop. The most useful evidence that might be obtained in such cases is that relating to a period when the individual was not using drugs/alcohol. Of course, when evaluating this type of evidence consideration must be given to the length of the period of abstinence, how recently it occurred, and whether there may have been any increase in the limitations and restrictions imposed by other mental impairments since the last period of abstinence. When it is not possible to separate the mental restrictions and limitations imposed by DAA and the various other mental disorders shown by the evidence, a finding of "not material" would be appropriate. . . .
Two Ninth Circuit opinions support the Commissioner's general contention that the claimant bears the burden of proving that drug or alcohol use is not a contributing factor material to a disability determination. Ball v. Massanari, 2001 WL 668941 (9th Cir. (Or.)); Sousa v. Callahan, 143 F.3d 1240 (9th Cir. 1998). In light of such precedent, this court is not willing to find that the SSA's Emergency Teletype relied upon by Hogenson is controlling as to which party bears the burden of proof. Neither Ball nor Sousa addressed, however, the issue of how to proceed when there is no reliable way to predict how much a coexisting mental impairment would improve should drug or alcohol use stop. Regardless of which party has the burden of proof, the ALJ is required to conduct the "differentiating" analysis set forth at 20 C.F.R. § 416.935 when the record demonstrates, as in this case, non-substance abuse impairments which are "severe" at step two of the sequential analysis. Ball, 2001 WL 668941, *4. The Emergency Teletype is an admission by the Social Security Administration that in cases where the "differentiating" analysis is beyond the realm of reliable proof, a finding of "not material" is appropriate. As required, the ALJ in this case conducted the "differentiating" analysis. He questioned the witnesses at both hearings as to Hogenson's impairments with and without alcohol use. Based on the testimony of the witnesses and the medical evidence, the ALJ made the necessary findings on this issue. If these findings are supported by substantial evidence they must be upheld by this court. Orteza, 50 F.3d at 749. If not, they are subject to reversal. Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1988).
3. The ALJ's Alcohol Findings
The ALJ in this case determined that, in the absence of alcohol use, Hogenson's mental retardation would not meet the criteria for Listing Section 12.05B because her full scale IQ score of 59 would be higher if she stopped drinking. Tr. 22. He further concluded that she would also not meet the criteria for 12.05C or 12.05D because she would have neither a "severe" impairment other than mental retardation (12.05C), nor functional limitations of listing level severity (12.05D). Id.
The ALJ stated in his decision that the medical record suggests that "the claimant would likely have I.Q. score [sic] in the 60's if she stopped drinking." Tr. 22. The ALJ did not explain the basis for this finding other than to note that Hogenson was reportedly consuming a six pack of beer a day at the time the test was administered. Id. The only other evidence in the record that could be construed as supporting the ALJ's finding is the testimony of Dr. Sacks at the first ALJ hearing and, perhaps, a PRTF completed by a non-examining source, which contains a check mark by the criteria for 12.05D (i.e., I.Q. 60-70 range) and a notation "without drugs and alcohol" in the margin. Tr. 263. Dr. Sacks testified on this issue as follows:
. . . So 12.05 mental retardation, she does have a valid IQ score of 59, which gets us to [12.05B]. At the time she was issued that IQ test, she was still drinking a six pack of beer a day, so I would check [12.05D], . . ., and I am reading tea leaves that without [alcohol] she may have scored a few points higher. But I . . . still believe based on the . . . record that she functions in the mentally retarded range of intellect, in other words, below 70. . . .
Tr. 49. Thus, Dr. Sacks's opinion was, by his own admission, only conjecture. Also, as a non-examining doctor, his opinion by itself does not constitute substantial evidence Lester v. Chater, 81 F.3d 821, 831 (9th Cir. 1996)
Dr. Brischetto completed an extensive report in connection with her intellectual assessment of Hogenson and nowhere indicated that Hogenson was impaired by alcohol when the test was administered or that Hogenson's scores were impacted by ongoing alcohol use. Tr. 234-245. At the second hearing, Dr. Hart testified at length as to whether Hogenson's impairments would improve in the absence of alcohol use. Tr. 90-98. Dr. Hart concluded that, without alcohol use and with proper treatment, Hogenson would benefit with regard to depression and some of her functional limitations; but, he did not address whether her IQ score would increase. Id.
Dr. Johnson's report is of limited probative value on this specific issue because it was completed prior to Dr. Brischetto's IQ testing. Nonetheless, his finding that vocational rehabilitation would be fruitless in Hogenson's case, even if she were not drinking, is consistent with the conclusion that her "impoverished" intellectual functioning would persist in the absence of alcohol use. Moreover, the PRTF he completed indicated that Hogenson's mental retardation meets the criteria for Listing Section 12.05B without any indication that alcohol use exacerbated this particular impairment.
In light of the record as a whole, the ALJ's finding that Hogenson's IQ would increase in the absence of alcohol use is not supported by substantial evidence. Thus, the Commissioner's decision that alcohol use is a material contributing factor to Hogenson's disability is reversed. Where the court reverses the Commissioner's decision, the determination as to whether to remand for further proceedings or to simply award benefits is within the discretion of the court. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989).
Remand for additional proceedings is appropriate where additional proceedings would remedy defects in the ALJ's decision. Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir. 1989). But where no useful purpose would be served by further administrative proceedings and the record establishes the claimant's disability, remand for an award of benefits is appropriate. Harman v. Apfel, 211 F.3d 1172, 1179 (9th Cir. 2000); Ramirez v. Shalala, 8 F.3d 1449, 1455 (9th Cir. 1993). The record establishes that Hogenson's mental retardation meets the criteria for Listing Section 12.05B based on a valid IQ score of 59. The ALJ's determination that it would have been higher in the absence of alcohol use is not supported by substantial evidence. As noted above, the Commissioner's own medical expert indicated that determining the impact of alcohol use on Hogenson's IQ score would be a speculative undertaking. Thus, further administrative proceedings would shed no helpful light on this issue. Moreover, the Commissioner's published policy is that a determination of "not material" is appropriate in cases where it is not possible to reliably separate out the effects of drug or alcohol use. Accordingly, the Secretary's decision is reversed and this matter is remanded for payment of benefits.