Opinion
Civil No. 02-866 (ADM/AJB)
April 10, 2003
Peggy L. Stevens, Esq., Stevens Associates, Roseville, MN, for Plaintiff.
Lonnie F. Bryan, Esq., Assistant United States Attorney, Minneapolis, MN, for Defendant.
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
This matter is before the undersigned United States District Judge pursuant to Defendant Jo Anne B. Barnhart's ("Defendant") Objections [Docket No. 20] to the January 13, 2003, Report and Recommendation ("RR") of Magistrate Judge Arthur J. Boylan [Docket No. 19]. The RR recommended that Plaintiff's Motion for Summary Judgment [Docket No. 8] be granted, and Defendant's Motion for Summary Judgment [Docket No. 13] be denied. For the reasons set forth below, Defendant's Objections are denied and the RR is adopted.
II. BACKGROUND
The factual background for this matter and the framework for the legal analysis is adequately set forth in the RR and is incorporated by reference for the purposes of Defendant's present objections.
III. DISCUSSION
A district court shall make an independent, de novo evaluation of those portions of the RR to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the Magistrate Judge. See 28 U.S.C. § 636(b)(1)(c); D. Minn. LR 72.1(c)(2). In reviewing a decision of the Commissioner of Social Security, a court is restricted to a determination of whether or not the Commissioner's findings are supported by substantial evidence on the record as a whole. See Gavin v. Heckler, 811 F.2d 1195, 1197-99 (8th Cir. 1987); Wilson v. Sullivan, 886 F.2d 172, 175 (8th Cir. 1989). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. See Richardson v. Perales, 402 U.S. 389, 401 (1971). A court must take into account whatever is in the record that fairly detracts from evidence supporting the Commissioner's finding, but may not reverse merely because substantial evidence would have supported an opposite decision. See Cruse v. Bowen, 867 F.2d 1183, 1184 (8th Cir. 1989); Gaddis v. Chater, 76 F.3d 893, 895 (8th Cir. 1996).
Defendant objects to the RR of Magistrate Judge Boylan. First, Defendant objects to the conclusion that the Administrative Law Judge ("ALJ") improperly found substantial evidence that alcohol use is a material contributing factor in Plaintiff's impairment equaling Listing § 12.04. Second, the Defendant objects to the conclusion Plaintiff is disabled and entitled to Disability Insurance Benefits ("DIB") under the Social Security Act without remand for further administrative proceedings.
A. ALJ Determination that Alcohol Use was a Material Factor
Defendant claims that the ALJ properly found that there is substantial evidence that alcohol use is a material contributing factor in Plaintiff's impairment equaling Listing § 12.04. Def.'s Objections at 6. To establish disability under the Social Security Act, a claimant must establish he is unable to engage in any substantial gainful activity due to the existence of "a medically determinable physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 423(d)(1)(A); Woolf v. Shalala, 3 F.3d 1210, 1212 (8th Cir. 1993). The ALJ agreed that the "claimant does suffer from a severe manic/bipolar syndrome, which essentially equals the level of severity set forth in section 12.04 of the Listing of Impairments." Tr. at 21. After this basic inquiry, if alcoholism or drug addiction is considered to be "a contributing factor to the Commissioner's determination that the individual is disabled," then he is not entitled to DIB. 42 U.S.C. § 423(d)(2)(C); Estes v. Barnhart, 265 F.3d 722, 724-25 (8th Cir. 2002). The ALJ must evaluate which of the Plaintiff's physical and mental impairments will remain if he stopped using alcohol and then determine if the remaining limitations would be disabling. 20 C.F.R. § 404.1535. The ALJ concluded that the "mental impairment is only present and is only manifested at listing levels, due to his recurrent alcohol abuse," and thus denied Plaintiff from receiving DIB. Tr. at 21.
The medical expert testimony provided a clear basis for reversing the ALJ's finding. Dr. Julie Kenfield, M.D., concluded that Plaintiff suffers from Affective Disorder, Listing § 12.04, bipolar number 3, and Chronic Alcoholism, with recent remission. Tr. at 96. She further opined that the mental impairment of bipolar disorder standing alone would equal Listing § 12.04, without alcohol use. Tr. at 96-97.
Barbara Wilson, the vocational expert, testified she believed an individual with Plaintiff's age, education and background, with certain limitations, could perform Plaintiff's past work, which are all jobs that exist in significant numbers in the national economy. Tr. at 98-99. However, she further concluded that if all of Plaintiff's testimony was accepted as true, then considering his age, education and background, that there would be no work available for him. Tr. at 99.
The Defendant also argues that under Listing § 12.04, a claimant must establish that he meets at least two of the following criteria under paragraph B of Listing § 12.04: (1) a marked restriction of his daily living activities, (2) marked difficulties in maintaining social functioning, (3) deficiencies of persistence of concentration or pace resulting in frequent failure to complete tasks in a timely manner, or (4) repeated episodes of deterioration or decompensation in work or work-like settings. Def.'s Objections at 6. The Record as a whole supports the conclusion that Plaintiff meets the B criteria of Listing § 12.04. The hearing testimony from Plaintiff and his girlfriend, Ms. Donna Weickum ("Weickum"), are replete with evidence establishing the meeting of paragraph B criteria. For example, Plaintiff testified that he was fired from jobs because he does not fit in. Tr. at 52. He testified that he sings at work, resents authority and feels abused when supervisors talk to him. Id. Plaintiff further testified that he has problems with concentration and cannot remain on task for longer than ten minutes. Tr. at 79. He noted that he has memory problems, focus problems, and a bad attitude. Tr. at 80-91.
Weickum, Plaintiff's sporadic companion of the last fifteen years, testified that she takes care of Plaintiff and handles all his finances. Tr. at 82, 84-85, 94. She noted that he has irrational spending habits, a short attention span, and difficulty concentrating. Tr. at 86, 79-80. Weickum said she accompanies Plaintiff to doctor appointments and reminds him to take medications. Tr. at 83. She stated that Plaintiff's manic depression has been getting worse, that he is argumentative, and that there is only one couple with whom she and Plaintiff can interact socially. Tr. at 83, 90.
This evidence on the whole does not support the ALJ's decision to deny DIB because his mental illness would not rise to the level of severity required unless exacerbated by alcohol use. The Record amply documents Plaintiff has suffered from bipolar disorder for many years. Tr. at 421. He has been medicated with Lithium for over twenty years, and has attempted many different jobs over the years. Tr. at 368. Although there were periods when he was functioning appropriately and taking his medication, for several months in 1996 he was homeless and living in Chicago. Tr. at 338, 351. When interviewed by a Social Security employee in 1996, the interviewer noted that Plaintiff talked incessantly and rambled on about everything except what he was being asked. Tr. at 178-79. Later in 1996, Christine G. Lewis, R.N., noted that Plaintiff's speech was rapid and tangential and that his mood seemed elevated. Tr. at 403. Plaintiff reported to Dr. Alford S. Karayusuf in 1997 that he did not last at a job because he talked too much and got distracted. Tr. at 368. He also lost a job as a janitor for talking to customers. Tr. at 393-94. The record does not indicate that he ever lost a job due to alcohol use. Furthermore, a 1998 Medical Assessment rated Plaintiff's judgment as poor, as well as his ability to deal with the public, ability to function independently and ability to maintain attention and concentration. Tr. at 446.
Defendant objects to the RR, claiming that the ALJ's determination that the medical expert's opinion was inconsistent with the Record as a whole was supported by substantial evidence. Def.'s Objections at 7. Throughout the Record, there is substantial evidence contrary to the ALJ's conclusion that without the effects of Plaintiff's alcoholism, he did not have impairments of functioning that arose to listing-level severity. There is no evidence that Plaintiff was ever fired from his litany of jobs held due to drinking. While Plaintiff attended an intensive outpatient psychiatric substance use disorder program from January 30, 1998, through March 12, 1998, he maintained sobriety. Tr. at 453-58. Yet, while sober, Plaintiff continued to demonstrate hypomaniac symptoms and interpersonal intrusiveness. Id. At that time, Plaintiff was diagnosed not only with alcohol dependence, in early remission, but with bipolar affective disorder, hypomania, mixed personality disorder, and other personality disorder traits. Id.
Furthermore, Dr. Julie Kenfield's opinion that Plaintiff's alcoholism is not material to the severity of his disorder is not controverted in the record. No other expert opined whether or not Plaintiff's impairments met a listed impairment, with or without alcohol as a contributing factor. The ALJ's decision to deny DIB due to alcohol as a contributing factor is not supported by substantial evidence on the record as a whole.
B. Determination of the Appropriate Remedy
Defendant alternatively argues that a remand to determine the issue of whether or not Plaintiff's alcohol abuse was a material factor contributing to his impairment, rather than an award of benefits, is the appropriate remedy in this case. Def.'s Objections at 10-11. The Court disagrees. A court should enter an immediate finding of disability "only if the record `overwhelmingly supports' such a finding." See Buckner v. Apfel, 213 F.3d 1006, 1011 (8th Cir. 2000) (citing Thompson v. Sullivan, 957 F.2d 611, 614 (8th Cir. 1992)); Fowler v. Bowen, 866 F.2d 249, 253 (8th Cir. 1989); Talbott v. Bowen, 821 F.2d 511, 514 (8th Cir. 1987). When the record demonstrates that the impairment meets or equals a listed impairment, then the claimant can be presumed to be disabled. Id. See Bowen v. Yuckert, 482 U.S. 137, 141 (1987).
After conducting an independent review of the record, the evidence overwhelmingly supports the Magistrate Judge's determination that Plaintiff was entitled to DIB. The Record appropriately reflects the documentation of the disorder over many years. The medical expert testimony by Dr. Julie Kenfield, M.D., is consistent with the Record as a whole.
IV. CONCLUSION
Based upon the foregoing, and all of the files, records, and proceedings herein, IT IS HEREBY ORDERED that:
1. Defendant's Objections [Docket No. 20] are DENIED,
2. The RR [Docket No. 19] is ADOPTED,
3. Plaintiff's Motion for Summary Judgment [Docket No. 8] is GRANTED, and
4. Defendant's Motion for Summary Judgment [Docket No. 13] is DENIED.
LET JUDGMENT BE ENTERED ACCORDINGLY.