Summary: Plaintiff sought judicial review of SSA’s denial of disability benefits. On cross motions for summary judgment, the court found that the ALJ did apply the proper standard of review in that her case was not fully adjudicated prior to the enactment of Public Law 104-121 on March 29, 1996. The court also found that the ALJ’s conclusion that there was insufficient medical evidence to “document limitations based on medical determinable impairments, other than alcoholism, which would have significantly interfered with the claimant’s ability to perform work-related activities prior to September 30, 1995” is supported by substantial evidence.

Case Number: A3-01-30

Docket Number: 14

Date File: 3/22/02

Nature of Suit: 864

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NORTH DAKOTA

SOUTHEASTERN DIVISION

REPORT AND RECOMMENDATION

            Plaintiff Karen Senne (hereinafter “Senne,” “claimant” or “plaintiff”) initiated this action under 42 U.S.C. §405(g) seeking judicial review of the final decision of the Commissioner of Social Security (Commissioner) denying her application for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-431. Before the court are both parties’ motions for summary judgment. (Doc. #’s 9 &11). For the reasons articulated in this memorandum, the court recommends that defendant’s motion be granted and the Commissioner’s final decision be affirmed.

I. Background

            Plaintiff filed an application for disability benefits on May 28, 1998, alleging a mental disability with an onset date of January 1, 1995. Her application was denied initially and on reconsideration. Plaintiff timely requested a hearing before an Administrative Law Judge (ALJ). An administrative hearing was held on March 11, 1999. The ALJ determined that the specific issue to be decided was whether plaintiff was disabled on or prior to September 30, 1995, the date she last met the insured status eligibility requirements. On March 22, 1999 the ALJ issued a decision finding that the plaintiff “did not suffer from a disabling impairment, absent alcoholism, prior to September 30, 1995. It is the further decision of the Administrative Law Judge that the claimant’s alcoholism was a factor material to the determination of disability prior to September 30, 1995, and as such she is not disabled pursuant to Section 223 (d) of the Social Security Act, as amended by Public Law 104-121.” (Tr. 21) The ALJ further found that:

the medical evidence of record does not support the existence of a mental impairment, absent alcoholism, which would have significantly impacted on the claimant’s ability to engage in work- related activities. The claimant’s mental disorder prior to September 30, 1995, described by Dr. Olson as cyclothymia with periods of depression resulted in slight restriction in activities of daily living and slight difficulty maintaining social functioning; it would have seldom resulted in deficiencies of concentration, persistence or pace resulting in failure to complete tasks in a timely manner; and it never resulted in deterioration or decompensation in work or work-like setting.

(Tr. 22)(emphasis original).

            Plaintiff timely requested a review of the ALJ’s decision by the Appeals Council. (Tr. 13). On or about November 15, 2000, the Appeals Council denied the plaintiff’s request for review, affirming the decision of the ALJ as the final decision of the Commissioner. (Tr. 8). On December 12, 2000 the Appeals Council vacated its decision of November 15, 2000 to consider additional evidence. (Tr. 5). The Appeals Council again decided there is no basis for granting the claimant’s request for review, stating it has considered the contentions raised by claimant’s representative, as well as additional evidence identified and that these do not “provide a basis for changing the Administrative Law Judge’s decision.” (Tr. 5). Accordingly, the Appeals Council again denied plaintiff’s request for review and affirmed the ALJ’s decision as the final decision of the Commissioner. (Id.).

II. Discussion

            Upon review of the pleadings and transcript of the record, the court can affirm, modify, or reverse the decision of the Commissioner, with or without remanding the cause for a rehearing. 42 U.S.C. § 405(g). To affirm the Commissioner's decision, the court must find that it is supported by substantial evidence appearing in the record as a whole. See id.; Cruse v. Bowen, 867 F.2d 1183, 1184 (8th Cir. 1989). "Substantial evidence is less than a preponderance, but enough so that a reasonable mind might find it adequate to support the conclusion." Robinson v. Sullivan, 956 F.2d 836, 838 (8th Cir. 1992); Consolidated Edison Co., et al. v. National Labor Relations Bd., et al., 305 U.S. 197, 229 (1938). The review of the record is more than a search for evidence supporting the Commissioner's decision; the court must also take into account matters that detract from the ALJ's findings and apply a balancing test to weigh evidence which is contradictory. Kirby v. Sullivan, 923 F.2d 1323, 1326 (8th Cir. 1991); Sobania v. Secretary of Health & Human Services, 879 F.2d 441, 444 (8th Cir. 1989).

            Under the Social Security Act, an individual is "disabled" if he or she is "unable 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 twelve months . . .." 42 U.S.C. § 1382c(a)(3)(A) (Supp. 1997). The impairment(s) must be so severe that the applicant is "not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 1382c(a)(3)(B) (Supp. 1997).

            Claims of disability are evaluated using a five-step sequential review. See 20 C.F.R. § 416.920(a) (1997). The first step is to determine whether the applicant is engaged in substantial gainful employment. If the applicant is so engaged, there is no disability. If, however, the applicant is not engaged in substantial gainful employment, the second step is to consider whether the applicant has an impairment or combination of impairments that significantly limit his or her ability to perform basic work activities. If there is no limiting effect, the applicant is not disabled. But, if the applicant is significantly limited by his or her impairment(s), the third step is to determine whether the impairments meet or equal a listed impairment. If the impairments do meet or equal a listed impairment, the applicant is disabled. The fourth step is to determine how the impairments affect the applicant's ability to perform past relevant work. The applicant is not disabled if he or she is still able to perform past relevant work. Finally, the fifth step is to determine whether the applicant can perform other work. If the applicant cannot perform other work, the applicant is disabled.

            The applicant bears the burden of proving disability. Clark v. Shalala, 28 F.3d 828, 830 (8th Cir. 1994). "However, if the claimant can demonstrate that []he is unable to do past relevant work, and thereby reaches the fifth step in the process, the burden shifts to the [Commissioner], who must show that substantial gainful activity exists in the national economy which the claimant can perform." Id.

            Plaintiff’s first argument for reversal or remand of the ALJ decision is that he applied the improper legal standard. Plaintiff asserts that because Public Law 104-121 was not enacted until March 29, 1996 it was improper for the ALJ to find plaintiff was not disabled absent the alcoholism, but rather that the alcoholism could have been considered to render her disabled in September 1995. The undersigned disagrees. The ALJ recognized that Section 105 of Public

Law 104-121, enacted on March 29, 1996,

eliminated an individual’s entitlement to disability insurance benefits under Title II of the Act, and/or eligibility for supplemental security income benefits under title XVI of the Act, if drug addiction and/or alcoholism is a contributing factor material to the finding of disability. Drug addiction and/or alcoholism is ‘material’ to the finding of disability if it is established that the claimant is not disabled within the meaning of the Act absent the issue of drug addiction and/or alcoholism. As such, an individual must be disabled within the meaning of the Act due to limitations based on other medically determinable physical and/or mental impairments.

            Case law is clear that the amendments eliminating disability benefits based on alcoholism apply to all cases that are not fully adjudicated prior to its effective date. Adams v. Apfel, 149 F.3d 844, 846 (8^th Cir. 1998). In Adams, the Eighth Circuit adopted the reasoning of the Third Circuit in Torres v. Chater, 125 F.3d 166, 169-71(3d Cir. 1997), finding the amendment precludes “an award of alcoholism-based disability benefits for a claim that was filed, but not yet fully adjudicated, prior to March 29, 1996.” Id. at 846 (citation omitted). Thus, the Eighth Circuit concluded that “it is the date of adjudication, and not the time when the disability exists, that triggers the application of the effective date.” Id. Plaintiff did not file her claim until May 1998. Accordingly, it could not have been fully adjudicated prior to enactment of the amendments addressing alcoholism. Therefore, the ALJ did apply the proper standard for review of plaintiff’s disability claim.

            In accordance with the regulations, the ALJ completed two Psychiatric Review Technique Forms (PRTF), used to rate the degree of functional loss resulting from a mental impairment. Plaintiff asserts that it was error for the ALJ to complete these forms without the assistance of a medical advisor, all the while recognizing that it is not necessary to have a medical advisor complete the form if the necessary information can be gleaned from the record. In this case, the undersigned finds the record is replete with evidence consistent with the ALJ’s findings on the two PRTF forms. The same evidence addresses the real question in this appeal: What role did plaintiff’s alcohol abuse play in her alleged inability to work? Plaintiff argues that the ALJ’s decision finding that plaintiff does not have a severe impairment absent the alcoholism is not supported by substantial evidence. The undersigned again disagrees.

             No one, including the ALJ, disbelieves the plaintiff’s testimony and that of her husband and treating physicians, that she suffers from a mental impairment. The severity of the disorder is in dispute. Plaintiff sought treatment for mood swings and depression as early as 1991. However, while she was seeking the assistance of professionals, she continued to use alcohol to excess, despite her physician’s strong recommendations to cease alcohol use and seek treatment. Thus, there is no question that plaintiff’s continued alcohol use hindered efforts to use drug therapy to alter her mood swings. In March 1995, just 6 months before her last date of eligibility, plaintiff’s treating physician Dr. Olson opined that he “wonder[ed] how we can fully separate the chronic alcoholism from the mood fluctuations.” (Tr. 283). On several occasions plaintiff was advised that any treatment would be ineffective if she continued to imbibe in alcohol, and in fact in August 1994 was told treatment was “doomed to fail if she would not be able to maintain abstinence.” (Tr. 285, 205, 287). Despite her knowledge that her alcohol dependency worsened her mood disorder, plaintiff continued to drink. All means of intervention failed, including several stays in inpatient treatment prior to and contemporaneously with plaintiff’s alleged disability onset date. (Tr. 195-145). During the course of one such treatment plaintiff advised the psychiatrist that she did not feel she should continue to be on Lithium, indicating she could not discern whether her mood swings were the result of the drinking or not. (Tr.203. Later that same month (July 1994) she requested the discontinuation of Lithium following inpatient treatment for alcohol abuse, stating she was “feeling really good, doesn’t feel moody, and doesn’t feel sad or depressed.” (Tr. 202). In addition, the record is replete with instances where plaintiff admits to sporadic, intermittent and inconsistent taking of her medications, and had even discontinued her medications for up to eight months. The inconsistent administration or complete absence of medications compounds the difficulty of deciphering the source of plaintiff’s mood swings. (Tr. 214, 216, 228, 230). Clearly plaintiff’s continued drinking magnified the problems caused by her mental disorder, supporting the ALJ’s conclusion that her alcoholism was a contributing factor material to the determination of disability.

            Plaintiff asserts that the ALJ committed reversible legal error by substituting his medical opinion for that of the treating physician and psychologist. The Commissioner argues the ALJ did no such thing but rather portions of Dr. Ismir’s opinion were rejected for legitimate reasons. For example, plaintiff did not begin seeing Dr. Ismir, a psychologist, until November 1995. (Tr. 335). At that time, Dr. Ismir opined that plaintiff is “truly a neurotic individual who has felt depressed, anxious, tense throughout her life. She has so many neurotic conflicts that they were never resolved and dealt with.” (Tr. 335-36). Dr. Ismir gave no opinion as to plaintiff’s condition prior to the expiration of her insured status. Accordingly, the ALJ concluded that because Dr. Ismir’s report as to symptoms, responses, and work related limitations is non-specific as to time it “cannot be applied to the severity of the claimant’s mental disorder (absent alcoholism), or any limitations from such disorder prior to September 30, 1995.” (Tr. 27). In addition, Dr. Ismir’s treatment notes are inconsistent with his report that plaintiff has remained sober throughout the course of her treatment. So too is the record inconsistent with plaintiff’s and her husband’s testimony regarding her alcohol use and her period of abstinence, who both appeared to significantly minimize the alcohol. (Tr. 29). Accordingly, the ALJ was in the best position to make this credibility determination. Likewise, the ALJ considered at length some of the activities plaintiff was engaging in, the extent of her therapy, and the fact that shortly after the critical date of September 30, 1995 plaintiff’s condition appeared to be somewhat improved. In addition, the ALJ noted that plaintiff’s travels in the months subsequent are contrary to plaintiff’s described inability to function at all times since 1995. The ALJ thus concluded that there is not sufficient medical evidence to “document limitations based on medical determinable impairments, other than alcoholism, which would have significantly interfered with the claimant’s ability to perform work-related activities prior to September 30, 1995.” (Tr. 28). After considering the evidence in the record as a whole, the undersigned finds the ALJ properly evaluated plaintiff’s subjective complaints and that his credibility determination is supported by substantial evidence.

            Plaintiff asserts that any doubt that Dr. Ismir’s opinion supports plaintiff’s disability status as of September 30, 1995 is dispelled by Dr. Olson’s letter dated July 12, 2000. This additional evidence was considered by the Appeals Council, which concluded that it did not provide a basis for changing the ALJ’s decision. The undersigned’s review of the letter reinforces that conclusion. Except for Dr. Olson’s statement of the ultimate conclusion, which is not the province of the physician to make, the letter appears to support the ALJ’s conclusion that alcohol was a contributing and compounding factor to her mental disability and that the “condition has been worsened by the problem of alcohol dependence.” (Tr. 441).

III. Conclusion

            Based on the foregoing, the undersigned recommends a finding that there is substantial evidence to support the ALJ’s conclusion that plaintiff was not disabled prior to September 30, 1995 absent alcoholism.

            Therefore, IT IS RECOMMENDED:

            1.         Plaintiff’s Motion for Summary Judgment be DENIED (Doc. #9 ).

            2.         Defendant’s Motion for Summary Judgment be GRANTED (Doc. #11 ). Judgment should be entered affirming the decision of the Commissioner and dismissing plaintiff’s complaint and cause of action.

            Any party may file an objection to this recommendation on or before March 27, 2002.

______________________________
Karen K. Klein
United States Magistrate Judge