Opinion
Civil No. 00-1106-RE
February 14, 2001
Tim Wilborn Portland, Oregon Attorney for Plaintiff.
Kristine Olson United States Attorney, William W. Youngman Assistant United States Attorney, Portland, Oregon. Special Assistant United States Attorney Seattle, Washingto. Attorneys for Defendant.
OPINION AND ORDER
Plaintiff Brian Kenny brings this action pursuant to the Social Security Act (the Act), 42 U.S.C. § 405(g), to obtain judicial review of the Commissioner's final administrative decision denying his application for benefits under Title II of the Act. For the reasons set forth below, the Commissioner's decision is ___.
PROCEDURAL BACKGROUND
Plaintiff filed an application for Supplemental Security Income (SSI) in May 1993, which was allowed initially for drug and alcohol dependence. Tr. 13. Pursuant to Public Law 104-121, plaintiff's benefits were ceased on January 1, 1997. Id.
Plaintiff filed his current application for SSI on July 16, 1997, alleging disability since July 16, 1997 due to drug abuse, alcohol abuse, depression, anxiety, and seizures. Tr. 136-40. His application was denied initially and upon reconsideration. Plaintiff requested a hearing before an administrative law judge (ALJ).
A hearing was held before an ALJ on November 19, 1998. Tr. 33-55. Plaintiff appeared and testified at the hearing, and was represented by counsel. Also testifying was a vocational expert.
On December 15, 1998, the ALJ issued a decision finding that plaintiff is disabled, but would not be disabled if he stopped using alcohol or drugs. Tr. 13-18. The Appeals Council denied plaintiff's request for review on June 21, 2000, making the ALJ's decision a final decision. Tr. 7-8.
STATEMENT OF THE FACTS
A. Introduction.
Plaintiff was 47 years old at the time of the hearing. He has a high school education and past relevant work as a watchman. Tr. 36.
B. Medical Record.
Plaintiff's medical record documents numerous physical problems which are not discussed below because they do not form a basis for his claims in this case.
In October 1996, plaintiff was evaluated by Lyle Christopherson, D.O. Tr. 112-16. Plaintiff admitted to current alcohol use; enrollment in a methadone program; and periodic relapses into heroin use. Id. Dr. Christopherson noted that plaintiff had had very little psychiatric treatment, with most of his treatment being focused on drug and alcohol problems. Tr. 112-13. Plaintiff described his mood as okay, and denied suicidal ideation. Tr. 115. Dr. Christopherson reported that "[t]here is no clear evidence of any clear-cut psychiatric disorder other than his substance abuse"; "no evidence of major mood disorder"; and "no evidence of psychotic processes, either now or in the past." Id. Dr. Christopherson diagnosed polysubstance dependence and antisocial personality disorder, with a current Global Assessment of Functioning (GAF) of 50. Id.
In October 1996, plaintiff first saw Carol E. Blenning, M.D. his treating physician. Tr. 301-02. His chief complaint was that he was worried about his "state of mind." Tr. 301. The medical record indicates that plaintiff saw Dr. Blenning regularly from October 1996 through February 1998, frequently complaining of psychological difficulties, including a mood disorder, depression, anxiety, memory loss, sleep problems, and difficulty concentrating. Tr. 275-309.
In October 1996, plaintiff was seen at Woodland Park Hospital, complaining that he had had a seizure that morning, and that he had started taking amitriptyline the night before. Tr. 207. Plaintiff was told to stop using amitriptyline and begin using Zoloft. Id.
In December 1996, plaintiff was again seen at the Woodland Park Hospital because he had had three seizures that morning. Tr. 209-12. Plaintiff is described as a drinker who drinks approximately two 56-ounce beers a day and an occasional cocaine and IV heroin user. Tr. 209. Records indicate that plaintiff need to undergo diagnostic studies for his recurrent seizures, and that the seizures may "simply be alcohol withdrawal type seizures." Tr. 210. Plaintiff was advised to follow up with his physician, and was referred to the psychiatric unit for referral for possible detox. Id.
In February 1997, plaintiff saw Dr. Blenning again, concerned about seizures. Tr. 292-93. Plaintiff had a computerized tomography (CT) brain scan as ordered by Dr. Blenning, which showed "[d]iffuse atrophy, not consistent with the patient's age." Tr. 304. Dr. Blenning ordered a magnetic resonance imagining (MRI) in March 1997 regarding plaintiff's seizures, although she noted that "I strongly feel this has a connection with his alcohol use." Tr. 291. The MRI showed no evidence of a brain tumor. Tr. 303.
In March 1997, plaintiff reported to Dr. Blenning that he had used heroin and cocaine three days previously, and that his last heavy alcohol intake (in excess of two 40-ounce beers) had been five to six days previously. Tr. 288. Dr. Blenning strongly encouraged plaintiff to pick up his dilantin refill and to continue taking the seizure medication regularly. Tr. 289. Dr. Blenning completed a residual functional capacity assessment form with respect to plaintiff's physical limitations and seizure disorder. Id. The form did not address any of plaintiff's mental impairments.
In March 1997, plaintiff was examined by Frank P. Colistro, Ed.D. upon referral from Disability Determination Services with instructions to determine if plaintiff had any "psychological conditions that constitute a significant impairment of employability." Tr. 213-18. Dr. Colistro's examination consisted of a clinical interview, a consultation with plaintiff's sister, and psychologic testing. Tr. 213.
Plaintiff acknowledged using a variety of drugs since his teens, including alcohol, marijuana, hallucinogenics, cocaine, and heroin, and reported that his last drug use occurred the previous Monday when he ingested heroin. Tr. 214. He also reported that he drinks moderately and smokes marijuana occasionally. Id.
Dr. Colistro notes that the dominant theme of plaintiff's statements is considerable life disruption associated with years of substance abuse, although "[h]e discusses his chemical dependency in a manner suggesting that he does not view it as a significant problem, but rather a lifestyle which he is capable of managing adequately." Tr. 215. Dr. Colistro finds plaintiff to be mildly anxious with an intense affect, and notes that "[i]nsight is notably lacking with regard to his addiction problems." Id. He further notes that plaintiff appears to be "an individual whose psychological problems primarily are characterologic." Id.
Dr. Colistro notes that the pronounced disparity between verbal and performance sections of plaintiff's testing, and among subtests, "is strongly suggestive of organic brain dysfunction of a permanent nature, although it may also be an indication of residual impact from his recent illicit drug use." Tr. 216. He goes on to say that it is "most likely . . . that both of these factors are involved." Id. Dr. Colistro opines that, from an intellectual perspective, plaintiff's testing indicates that he ought to be capable of engaging in simple, repetitive work activity without difficulty. Tr. 216. However, testing also indicates "substantial emotional instability superimposed on character disorder," and "a highly impulsive, emotionally overreactive individual who is so threat sensetive that he perceives hostility and rejection in others even when it is not present. Id. Further, testing indicates a "pronounced predisposition toward emotional overreactivity which renders this individual incapable of handling stress effectively," such that life is a series of crises with no significant periods of emotional stability. Id. He notes that with individuals such as plaintiff, "their use of psychoactive substances often reflects their efforts to palliate their constant state of emotional upheaval," and that "their substance abuse . . . only serve[s] to aggravate the emotional instability which plagues them." Id.
Dr. Colistra diagnosed polysubstance dependence/abuse and mixed personality disorder with dependent and organic features. Tr. 217. He noted the "presence of organic mental disorder characterized by impairment in impulse control, emotional lability, disturbance in mood, and personality changes." Id. He noted that the "overall clinical impression is that of an individual who likely entered adulthood mildly character disordered, and whose persistent use of [drugs] have resulted in permanent brain damage." Id. He went on to state that even at the best of times, plaintiff "remains exquisitely threat sensitive and emotionally overreactive, so much so that his capability to cope with even minor stressors is virtually nonexistence." Id. He noted that it is likely that plaintiff's "years of drug abuse have ravaged him physically as well as psychologically in ways that are irreparable . . . [and the] likelihood of him experiencing any significant improvement in the foreseeable future is, therefore, remote." Id.
Dr. Colistro concluded that plaintiff's "psychological condition has left him a street person living from meal to meal who is barely capable of handling his personal needs, even when he is not under the influence of psychoactive substances" and that his restrictions on daily living are marked, as are his abilities to maintain social functioning, concentration, persistence or pace. Tr. 217-18. He notes that episodes of deterioration or decompensation in work or work-like settings have occurred only once or twice. Tr. 218. Finally, Dr. Colistro concludes that plaintiff's "ongoing drug use materially compromises all aspects of his daily functioning in ways that cannot measurably be differentiated from his underlying impairment." Id.
In February 1998, Jeffrey D. Sher, Psy.D. did a neuropsychological screening to assess for memory impairment at the request of Disability Determination Services. Tr. 310-16. The screening consisted of a clinical interview, mental status examination, and testing. Tr. 310. Dr. Sher's collaborating information included Dr. Colistro's report, and "some recent medical records following an incident in October when Mr. Kenny displayed abnormal mental status and was treated inpatient . . . for a serious staph infection. Id.
Plaintiff told Dr. Sher that he had been clean and sober for the previous five months, with only an occasional beer and a few relapses. Tr. 311. Plaintiff reported that he had been feeling considerable depression since quitting active use of drugs, and that he becomes very anxious and does not perform well when he is being observed. Tr. 310-11. Plaintiff reported that he has not sought or received mental health treatment in the past, but had been in drug treatment programs and was seeing a counselor three times a week as part of his methadone program. Tr. 312.
Dr. Sher noted that plaintiff has essentially no work history. Tr. 311. He also noted that, in contrast to Dr. Colistro's reports of nearly a year before, plaintiff appeared to be able to take care of his basic needs adequately. Tr. 312. Dr. Sher also noted that plainitff's marked improvement in performance subtests as compared to his performance on Dr. Colistro's tests nearly a year before. Tr. 314. Dr. Sher speculated that plaintiff's improved scores might reflect his relatively drug free period of functioning, but noted that "[h]is scores are indicative of some likely minimal brain damage, though his functional capacity intellectually still seems adequate." Id.
Dr. Sher's diagnostic impressions were opioid dependence with physiological dependence, mood disorder NOS, and personality disorder NOS, antisocial traits. Tr. 315. Dr. Sher noted that plaintiff "had never made an adequate vocational adjustment in his life" and that, "[w]hile his situation does not appear to this examiner to be as dire as it appear last year when he was actively using heroin, Mr. Kenney continues to have difficulty functioning adaptively." Id. Dr. Sher did not feel that plaintiff had disabling brain damage despite the anomalies of his brain scan. Id. Dr. Sher concluded that "[i]t appears that his history of opioid dependence, combined with a severe personality disorder with marked antisocial traits, including failure to conform to societal norms, impulsivity, and irresponsibility" were plaintiff's main problems. Id. He noted that plaintiff "also appears to have a mood disorder, which seems to be emerging more prominently as he reduces his substance usage" and that "the disorder appears to be somewhat treatment resistant." Id. Dr. Sher suggested vocational training (although he felt plaintiff's motivation might be a problem) in conjunction with treatment for substance abuse. Id.
C. Plaintiff's Testimony.
Plaintiff testified that his "anxiety and stress at everything that goes on" is what keeps him from getting a job. Tr. 37. He feels like he is being watched, and people are going to find fault with what he does. Tr. 43. He thinks too much about this, and sometimes cannot sleep. Id. Often when riding the MAX train, he has to get off and walk around a bit to relax before he can get back on the train to finish his trip. Tr. 44. He sometimes has difficulty doing his shopping because of the interaction with people that requires, but does better if he always goes to the same store and buys the same thing. Tr. 44-45. He also gets anxious in his own room, and will become too nervous to talk to someone who might come by. Tr. 48. He is able to visit friends a couple times a week, but sometimes goes two or three weeks without seeing anybody. Tr. 50-51. He is unable to complete paperwork on his own. Tr. 49.
He sees a counselor once a month, and is involved in group therapy at the methadone clinic. Tr. 37-38. He last had alcohol ten days previously, and drank two 40-ounce beers that day, so he had been sober approximately 10 days at the time of the hearing. Tr. 40. It had been at least two months since he had done drugs, and the last drug he used was heroin. Tr. 40-41. He testified that in the past year, he had a couple of stretches of about 100 days in which he did not use drugs. Tr. 41. He testified that on the previous day, he had helped a friend move. Tr. 42. On a typical day, he will read, walk about an hour, watch television, and play his guitar. Tr. 42-43.
He testified that he did not believe he could do even an easy job because he would worry so much about getting to the job, getting ready to go, whether he was doing something wrong, or whether somebody was going to say he was doing something wrong. Then, after he begins to worry, it escalates and he cannot concentrate. Tr. 45-46.
He testified that his seizures are pretty well controlled with medication. Tr. 48. When he worked as a watchman, he was to make rounds and monitor some logging equipment that was in the woods. Tr. 46. He was not able to do the job because he would get paranoid and stay inside his trailer instead of checking on the equipment. Id. He would be afraid to go outside, and if somebody came around the equipment, he would be afraid to confront them, which was his job. Id. He sometimes did not leave his trailer for two or three days at a time. Tr. 47. He was not using drugs, but was drinking beer, during the time he worked as a watchman. Tr. 51.
STANDARD OF REVIEW
A. Substantial Evidence.
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. Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)). 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).
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, plaintiff 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).
B. The Sequential Process.
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. In the first step, 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 Secretary 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, she is not disabled. If 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 Secretary meets this burden and proves that the claimant is able to perform other jobs which exist in significant numbers in the national economy, she is not disabled. 20 C.F.R. § 404.1566, 416.966.
C. Drug and/or Alcohol Abuse.
Public Law 104-121, codified at 42 U.S.C. § 423(d)(2)(C), provides that an individual is not considered to be disabled for purposes of the Act if drug addiction or alcoholism would be a contributing factor material to the Commissioner's determination that the individual is disabled. The "key factor . . . in determining whether alcoholism or drug addiction is a contributing factor material to the determination of disability" is whether an individual would still be found disabled if she stopped using alcohol or drugs. 20 C.F.R. § 404.1535(b)(1). "In making this determination, [the Commissioner] will evaluate which of [claimant's] current physical and mental limitations . . . would remain if [she] stopped using drugs or alcohol and then determine whether any or all of [her] remaining limitations would be disabling." 20 C.F.R. § 404.1535(b)(2).
Thus, if there is evidence of drug or alcohol abuse, and the claimant succeeds in proving that she is disabled, the ALJ must determine whether the drug or alcohol abuse is material to the determination of disability. Sousa v. Callahan, 143 F.3d 1240, 1245 (9th Cir. 1998). If the claimant would not be found disabled absent the effects of the drug or alcohol abuse, the ALJ must find the drug or alcohol abuse to be material. Id. The materiality of the drug or alcohol abuse only becomes an issue after the claimant proves that she cannot perform any substantial gainful activity considering all her impairments other than drug or alcohol abuse. Id. Plaintiff has the burden of proving that her drug or alcohol abuse is not material to the finding of disability. Mittlestedt v. Apfel, 204 F.3d 847, 852 (8th Cir. 2000); Brown v. Apfel, 192 F.3d 492, 497-99 (5th Cir. 1999).
THE ALJ'S DECISION
The ALJ found, in relevant part, that:
(1) The medical evidence establishes that plaintiff has substance addiction disorder and alcoholism, impairments that are severe and which meet the listing criteria paragraph 12.09 of the listing of impairments in Appendix 1, Subpart P, Regulations No. 4;
(2) Plaintiff's statements concerning his impairments and their impact on his ability to work are not entirely credible in light of the degree of medical treatment required, discrepancies between the plaintiff's assertions and information contained in the documentary reports, the findings made on examination, and the plaintiff's assertions concerning his ability to work;
(3) Absent ongoing drug and alcohol abuse, plaintiff lacks the residual functional capacity to interact appropriately with co-workers and supervisors, and that in his past work as a watchman, plaintiff was not required to interact with the public, co-workers, or supervisors on a regular basis; and
(4) Absent drug and alcohol abuse, plaintiff's impairments do not prevent him from performing his past relevant work, and the medical evidence established that plaintiff would not be disabled if he stopped using alcohol and drugs.
Tr. 17-18.
PLAINTIFF'S DESIGNATIONS OF ERROR
NOT EXACTLY WHAT ALJ FOUND — CHECK DEFENDANT'S BRIEF WHEN IT COMES IN:
Plaintiff argues that the ALJ erred in finding that:
(1) He does not have an impairment or combination of impairments listed in, or medically equal to, one listed in Appendix 1, Subpart P, Regulations No. 4.; and
(2) He is able to perform his past relevant work.
DISCUSSION
The ALJ concluded that plaintiff has a substance addiction disorder and alcoholism, impairments that are severe and which meet the listing criteria paragraph 12.09 of the listing of impairments in Appendix 1, Subpart P, Regulations No. 4, but that absent drug and alcohol abuse, plaintiff's impairments do not prevent him from performing his past relevant work and the medical evidence established that plaintiff would not be disabled if he stopped using alcohol and drugs. Tr. 17-18.
Plaintiff argues that the ALJ's conclusion was based upon his improper rejection of the assessments of Drs. Colistro, Sher, and Blenning, and plaintiff's testimony.
It is clear from the record in this case that plaintiff's mental problems are intertwined and exacerbated by longstanding drug and alcohol abuse. It is the ALJ's duty to distinguish between substance abuse contributing to the disability and the disability remaining after the claimant stops using drugs or alcohol. The two are not mutually exclusive. Just because substance abuse contributes to a disability does not mean that when the substance abuse ends, the disability will too. Sousa v. Callahan, 143 F.3d 1240, 1245 (9th Cir. 1998).
The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). Once the claimant produces objective medical evidence of an underlying impairment, the ALJ may not reject a claimant's subjective complaints based solely on a lack of objective medical evidence to fully corroborate the alleged severity of symptoms. Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991). The ALJ may, however, disregard self-serving statements made by claimants if it finds them to be incredible on other grounds. Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990).
CONCLUSION
The Commissioner's decision is ___.
IT IS SO ORDERED.