Debra Vester v. JoAnne B. Barnhart ( 2005 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-2140
___________
Debra Vester, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
Jo Anne B. Barnhart, Commissioner, *
Social Security Administration, *
*
Appellee. *
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Submitted: January 10, 2005
Filed: July 27, 2005
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Before SMITH, HEANEY, and COLLOTON, Circuit Judges.
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COLLOTON, Circuit Judge.
Debra Vester applied for supplemental social security income under Title XVI
of the Social Security Act on September 14, 1992, claiming that she was unable to
work due to her physical and mental impairments. After an initial denial, a hearing
was held in 1993, and an adverse decision issued in 1995. In 1996, the Appeals
Council of the Social Security Administration denied her request for review, but when
Vester sought judicial review, the district court remanded the case for further
consideration. In 1997, a second administrative hearing was held, and an
Administrative Law Judge (“ALJ”) once again denied her claim. In 1999, a second
district court decision remanded her claim for further consideration. A third hearing
was held on June 27, 2001, and a third ALJ decision denying her application was
issued on October 25, 2001. On February 6, 2002, the Appeals Council declined to
review the ALJ’s decision, and on March 17, 2004, the district court1 affirmed the
Commissioner’s denial of benefits. Vester now appeals, and we affirm.
I.
An ALJ pursues a familiar five-step inquiry in determining whether a claimant
is disabled. See 20 C.F.R. § 416.920. In order to qualify for benefits, the claimant
must demonstrate that she suffers from a severe impairment, lasting for at least twelve
continuous months, and that the impairment prevents her from performing substantial
gainful work. If such an impairment exists, the ALJ must determine whether the
claimant has demonstrated that she is unable to perform either her past relevant work,
or any other work that exists in significant numbers in the national economy. 20
C.F.R. § 416.945.
In the most recent decision denying Vester’s application for benefits, the ALJ
followed this five-step process and determined that Vester did suffer from a
combination of impairments that was “severe” for purposes of the Social Security
Act. Although he found that Vester’s claims regarding her limitations were not
totally credible, the ALJ concluded that when all of her impairments were considered,
her non-exertional limitations significantly compromised her range of work.
However, in Vester’s case, the ALJ’s duty was complicated by her long history
of drug and alcohol abuse. Under 1996 amendments to the Social Security Act, if
alcohol or drug abuse is a “contributing factor material to the Commissioner’s
1
The Honorable Henry L. Jones, Jr., United States Magistrate Judge for the
Eastern District of Arkansas, presiding by consent of the parties.
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determination” of a disability, the claimant is not entitled to benefits. 42 U.S.C.
§ 423(d)(2)(C). In the determination whether the substance abuse is “material,” the
claimant has the burden of demonstrating that she would still be disabled if she were
to stop using drugs or alcohol. 20 C.F.R. § 416.935(b)(1); Pettit v. Apfel, 218 F.3d
901, 903 (8th Cir. 2000).
In considering Vester’s claimed disability, the ALJ determined that, absent
alcohol abuse, she had the ability to perform light work, except that she was unable
to stand or walk for more than four hours out of an eight-hour work period or more
than one hour without interruption, or to sit for more than six hours out of an eight-
hour period or two hours without interruption. The ALJ also found that, outside of
her problems with alcohol, she had a limited but satisfactory ability to deal with the
public, use judgment, maintain attention and concentration, relate predictably, behave
in an emotionally stable manner, and understand, remember, and carry out detailed
job instructions, but a poor ability to understand, remember, and carry out complex
job instructions. Based on these findings, the ALJ concluded that Vester was not
disabled within the meaning of the Social Security Act.
II.
On appeal, Vester does not take issue with the ALJ’s findings with respect to
her physical ailments, but argues only that the ALJ erred in determining that alcohol
was a contributing factor material to her disability. We review the district court’s
decision to uphold the denial of social security benefits de novo, and consider, as the
district court did, whether the ALJ’s decision is supported by substantial evidence on
the record as a whole. Harris v. Barnhart, 356 F.3d 926, 928 (8th Cir. 2004).
“Substantial evidence” is such evidence that a reasonable person would find adequate
to support the ALJ’s determination. Sultan v. Barnhart, 368 F.3d 857, 862 (8th Cir.
2004). In evaluating whether the ALJ’s decision meets this standard, we consider all
of the evidence that was before the ALJ, but we do not re-weigh the evidence, and we
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defer to the ALJ’s determinations regarding the credibility of witnesses so long as
such determinations are supported by good reasons and substantial evidence.
Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005).
Vester argues that her alcoholism is not a contributing factor material to her
claimed disability. As Vester pointed out to the ALJ and in her argument before this
court, there is evidence to support her assertion that she has suffered, at times, from
mental illness. As early as 1991, she began seeing Penny Wenczel, a Licensed
Certified Social Worker, for therapy to treat recurrent moderate depression. (R. at
173). In 1993, B. Eliot Cole, M.D., diagnosed Vester with bipolar disorder and
major depression, along with a probable personality disorder, placing her “Global
Assessment of Functioning” level at 55 to 60 on a scale of 0 to 100. (R. 181.) The
Commissioner’s doctor, Gene W. Reid, M.D., examined Vester on February 19, 1997,
and diagnosed her with bipolar disorder (although in remission), alcohol dependence,
and personality disorder. (R. 480.) In 1998, Terry Sutterfield, M.D., treated Vester
and echoed the diagnoses of depression and probable personality disorder. (R. 712.)
In addition, at several points between 1992 and 1995, Vester sought therapy from
Joan Shepard, a Licensed Professional Counselor.
At the same time, much of Vester’s medical history suggests that alcohol has
been a substantial barrier to her normal functioning. After showing up intoxicated
for an appointment in 1991, she went through a period of sobriety during which she
was doing “quite well” and had no need for medication. (R. at 171, 165). The
sobriety was short-lived, however; notes from her therapy with Joan Shepard are
replete with references to Vester’s use of alcohol. (R. at 229, 233, 298). The same
doctors who diagnosed her with depression also noted her alcohol dependence (R. at
181, 481, 712), and at her 2001 hearing, Vester testified that she had only been sober
“periodically.” (R. at 584). While Vester testified that her last ten years included a
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streak of sobriety as long as three years (R. at 584), she also sustained two
convictions for driving while intoxicated during that period. (R. at 409-10).2
In urging that we reverse the Commissioner’s findings, Vester points to
elements of the record that she says support her claim that she is disabled independent
of her alcoholism. A 1998 letter from Joan Shepard, the counselor who treated
Vester, asserted that “alcoholism has been Mrs. Vester’s way of self medicating her
underlying problems” and that her need for benefits “is based on the mental health
issues.” (R. at 687). The ALJ did not credit this letter. Noting that Shepard has no
medical degree and did not qualify as a medical source under the regulations, he
nonetheless considered the opinion and Shepard’s clinical notes, but found the notes
to be unsupportive of the letter’s content. As the ALJ noted, Shepard had seen Vester
only sporadically and never for more than a year continuously. Moreover, notes from
another therapist at Shepard’s clinic indicated that Vester “need[ed] to be in treatment
for alcohol depend[ence] before any other treatment,” (R. at 207), a conclusion that
is consistent with the ALJ’s determination that Vester’s alcoholism was a material
factor contributing to her disability.
2
At the administrative hearing, the ALJ asked the medical expert, Dr. Patricia
Griffen, whether, if Vester “stuck with strict sobriety and took the medications as she
is directed, would you expect her condition to substantially improve?” She answered:
I don’t know if I can answer that in terms of whether or not it would
substantially improve. However, in cases where individuals have been
able to remain sobriety, abstinent from alcohol, follows through in
treatment for the depression, there certainly has been a history of
improvement with those individuals. And to what extent that would be
substantial, I don’t know. But certainly the alcohol worsens the
depression and interferes with the individual level of functioning.
(R. 600).
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Vester counters that Shepard’s 1998 letter was co-signed by a psychiatrist, C.G.
Pearce, M.D., and should therefore be credited as a medical opinion. Other than Dr.
Pearce’s signature on the letter, however, Vester points to no medical records or other
evidence indicating his involvement in Vester’s treatment, and we find no reason to
require that the ALJ credit the letter as the opinion of a “treating” psychiatrist. In
addition, some of the ALJ’s reasons for discrediting Shepard – especially the
irregularity of her visits with Vester – also extend to Dr. Pearce, who was employed
by the same clinic as Shepard and would not have seen Vester any more frequently
than Shepard. We believe that the ALJ properly considered the letter and gave good
and adequate reasons for his decision not to give the opinion substantial weight.
Vester’s general attacks on the ALJ’s findings that she was functioning
normally while sober also fail. While it is true that “[d]etermining whether a claimant
would still be disabled if he or she stopped drinking is, of course, simpler if the
claimant actually has stopped,” Pettit, 218 F.3d at 903, in this case Vester had been
sober only five months at the time of her 2001 hearing before the ALJ, and she
admitted that her sobriety was “periodic[].” (R. 584.) Nonetheless, there is some
evidence in the record of her improved condition during other periods of sobriety.
At many such times, notes from Shepard and others indicate that Vester is “doing
well” (R. at 221) and “feeling good” (R. at 209). During one period of sobriety,
Vester was able to attend classes and complete a 90-day community service
assignment.3 In Shepard’s notes regarding that assignment, she remarked on the
3
Vester argues that this history supports her claim that she is unable to function
continuously even while sober, because the assignment took her “five months” to
complete, rather than the assigned 90 days, and because she was “written up” for
being argumentative. However, the only evidence that Vester points to in support of
these problems is her own testimony. (R. at 399-400). Her assertion that it took her
five months to complete the assignment is in conflict with other evidence in the
record, including Shepard’s notes indicating that Vester was sentenced to community
service on January 17, 1997, and that she had definitely completed the service by the
time of her meeting with a judge on May 1, 1997. (R. at 496, 510).
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“respect that [Vester] has gained” at Marshall Nursing Home, and wrote that Vester
had been volunteering five days and attending classes two days each week. (R. at
503-04). In fact, Vester’s performance in the community service program was so
promising that her supervisor sponsored her for a Certified Nurse Assistant class,
which Vester completed. (R. 503, 508, 510).
Notwithstanding the above-described evidence upon which the ALJ rested his
finding that Vester would be not disabled absent her alcoholism, Vester argues that
there must be additional “medical evidence” to support the ALJ’s findings with
respect to Vester’s residual functional capacity. See Lauer v. Apfel, 245 F.3d 700,
704 (8th Cir. 2001). She contends that the opinion of Dr. Reid, the psychiatrist, is
insufficient to support the ALJ’s conclusion, because the doctor merely included
Vester’s alcoholism in his evaluation “without considering what limitations would
remain in the absence of the alcoholism.” (Appellant’s Reply Br. at 6).
We have some doubt whether Vester’s ability to work in the absence of
alcoholism is a “medical question” comparable to the traditional determination of
residual functional capacity. Put simply, if an ALJ is presented with evidence that a
claimant has demonstrated the ability to work during periods of sobriety, it seems
within the ken of the ALJ to make a factual finding that the claimant is able to work
when she is not abusing alcohol. This sort of judgment, based largely on historical
facts, strikes us as different in kind from that required when a claimant presents a set
of medical problems, and the ALJ must make a predictive judgment as to the
claimant’s ability to work in light of a given medical condition.
Assuming for the sake of argument, however, that the ALJ was required to
develop some medical evidence, we believe the record is adequate to support the
ALJ’s decision. Although Dr. Reid did not phrase an opinion precisely in terms of
the statutory framework of the 1996 amendments to the Social Security Act, we
believe that his evaluation does include “some supporting evidence from a
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professional,” Lauer, 245 F.3d at 704, that bolsters the ALJ’s conclusion. When
asked to “describe any limitations” and to “include the medical/clinical findings” that
supported his assessments that Vester was limited in certain functions, Dr. Reid
observed that she was a “severe alcoholic,” that she has “some difficulty with thought
organization – probably from years of alcohol abuse,” that she suffered from “long
term alcoholism with very little sobriety,” and that her alcoholism dependence was
only “In Partial Remission.” (R. at 480-82). He opined that her condition “[m]ay
improve with more time sober and taking mood stabilizing medication.” (R. at 480).
While Dr. Reid noted elsewhere that Vester “also has Bipolar Disorder,” (R. at 482),
he concluded that this condition was “In Remission.” (R. at 480).
We agree with the district court that “[a]lthough Dr. Reid also diagnosed
bipolar disorder, it is clear that he believed [Vester’s] main problem leading to her
functional limitation was her long-term alcoholism.” (Mem. and Order, Mar. 17,
2004, at 4). We believe, therefore, that it was reasonable for the ALJ to conclude that
Dr. Reid’s evaluation provided some medical evidence in support of a conclusion that
Vester’s alcoholism was a material factor contributing to her disability, and that the
record was adequately developed on this point.
After considering all of the evidence under the substantial evidence standard,
we are satisfied that the ALJ case untangled Ms. Vester’s history of alcoholism and
mental illness with sufficient clarity and detail to support the finding that she is not
disabled apart from her alcoholism. In contrast to other cases involving alcohol abuse
that have been remanded to the ALJ for reconsideration, e.g., Brueggemann v.
Barnhart, 348 F.3d 689, 695-96 (8th Cir. 2003); Pettit, 218 F.3d at 903-04, the ALJ
followed the analytical framework prescribed by the regulations, made detailed
factual findings about Vester’s depression and alcoholism, and supported his findings
with references to the record. We conclude that a reasonable person considering the
record as a whole could reach the conclusion adopted by the ALJ.
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* * *
For the reasons detailed above, we conclude that substantial evidence supports
the Commissioner’s finding that Vester is not disabled under the Social Security Act
when she is not abusing drugs or alcohol. We therefore affirm the judgment of the
district court.
HEANEY, Circuit Judge, dissenting.
I respectfully dissent. I agree with the majority that the sole issue in this case
is whether Debra Vester would still be disabled if she were to stop using alcohol. I
part from the majority because, after reviewing the record, I find no medical evidence,
as opposed to mere speculation, that Vester would be able to work if she stopped
using alcohol. I would remand with directions to award Vester supplemental social
security income under Title XVI of the Social Security Act from September 14, 1992.
Debra Vester is 55 years old with a long history of alcohol abuse, drug abuse,
depression, and bipolar disorder. She has been married four times and has two
children. She initially filed her claim for disability benefits in 1992 and was denied
benefits in 1995. The district court reviewing the case remanded for further
consideration, and in 1997, her claim was again denied. In 1999, a second district
court remanded Vester’s claim, concluding that Vester suffered from mental
impairments independent from her alcohol abuse, and instructing the ALJ to consider
whether Vester was disabled in light of those impairments. (R. at 673.) On October
26, 2001, an ALJ concluded that Vester’s medical condition in the absence of
substance abuse, while limiting, did not result in functional limitations so severe that
she was unable to work. This decision was affirmed by the district court on March
17, 2004.
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A claimant is not entitled to benefits if drug or alcohol abuse is a “contributing
material factor” to the disability, 42 U.S.C. § 423(d)(2)(C), but may show that alcohol
abuse is not a material factor to her disability if she would still be disabled if she
stopped using alcohol, 20 C.F.R. § 416.935(b)(1).
Several principles are relevant to this determination. First, while an
impairment which would go away if the claimant discontinued her consumption of
alcohol may not be considered, a permanent impairment, caused by past alcohol
abuse, such as liver disease or cognitive losses, may be considered. Pettit v. Apfel,
218 F.3d 901, 903 (8th Cir. 2000) (“The focus of the inquiry is on the impairments
remaining if the substance abuse ceased, and whether those impairments are
disabling, regardless of their cause.”). Second, the ALJ’s conclusion that alcohol
abuse is material to a claimant’s disability, and that she would not be disabled in the
absence of alcohol abuse, must be supported by some medical evidence. Lauer v.
Apfel, 245 F.3d 700, 704 (8th Cir. 2001) (holding that some medical evidence should
support an ALJ’s finding of residual functional capacity).
The majority suggests that this case does not present the “medical question” of
residual functional capacity because the ALJ’s judgment was based on a common-
sense assessment of Vester’s successful community service experience from which
the ALJ could extrapolate Vester’s ability to work. I disagree. The evaluation of a
mental impairment is often more complicated than the evaluation of a claimed
physical impairment. Andler v. Chater, 100 F.3d 1389, 1393 (8th Cir. 1996).
Evidence of symptom-free periods, which may negate the finding of a physical
disability, do not compel a finding that disability based on a mental disorder has
ceased. Id. Mental illness can be extremely difficult to predict, and remissions are
of “uncertain duration and marked by the impending possibility of relapse.” Id.
Individuals suffering from mental disorders often have their lives structured to
minimize stress and help control their symptoms; they may be more impaired than
their symptoms indicate. Hutsell v. Massanari, 259 F.3d 707, 711 (8th Cir. 2001); 20
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C.F.R. Pt. 404, Subpt. P., App.1, § 12.00(E) (1999). This limited tolerance for stress
is particularly relevant because residual functional capacity is based on the claimant’s
“ability to perform the requisite physical acts day in and day out, in the sometimes
competitive and stressful conditions in which real people work in the real world."
McCoy v. Schweiker, 683 F.2d 1138, 1147 (8th Cir.1982) (en banc). If an assessment
of disability based on mental illness requires some supporting evidence from a
medical professional, it defies logic to conclude that the even more difficult task of
determining a claimant’s hypothetical abilities in the absence of alcohol or substance
abuse should be left to the ALJ.
There is no doubt that Vester suffers from severe mental impairments. Vester
has been diagnosed with depression and bipolar disorders that are at times controlled
with medication. The question remanded to the ALJ was whether Vester would still
be disabled if she stopped using alcohol. Two medical examinations, with Dr. Harris
in October of 1996 and with Dr. Reid in February of 1997, were conducted during
periods when Vester had stopped using alcohol for several months. (R. at 469-74
(Dr. Harris) and 475-82 (Dr. Reid)). Both examiners found that Vester continued to
suffer from depression and bipolar disorder and had a limited ability to demonstrate
the stability, reliability, and social skills needed for employment. In my view, the
ALJ was required to accept the diagnosis of these two experts rather than speculating
that Vester’s mental stability would further improve if she continued to abstain from
using alcohol. See Pettit, 218 F.3d at 903-04.
The majority suggests that the ALJ’s conclusion is sufficiently supported by
Dr. Reid’s 1997 evaluation of Vester. This report, however, fails entirely to
distinguish between permanent impairments or deficits caused by Vester’s long-term
alcohol abuse, and conditions that would in fact improve with continued sobriety. Dr.
Reid observed that Vester’s “difficulty with thought organization” was likely caused
by long-term alcohol abuse, but does not indicate whether this is a permanent or
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temporary condition. (R. at 482.) At the time of Dr. Reid’s evaluation, Vester had
been sober for more than four months. Dr. Reid notes that Vester might show further
improvement with continued sobriety, but provides no detail regarding the degree to
which Vester would remain functionally limited. This evaluation provides little
support for the ALJ’s conclusion that Vester would not be disabled if she
discontinued her use of alcohol. It does establish, unequivocally, that Vester was
disabled at the time of the exam, when she had not been drinking for months.
The difficulty in evaluating this case stems in part from the fact that the
medical reports submitted simply do not address whether Vester would remain
disabled if she stopped using alcohol. The ALJ actually posed this question directly
to Dr. Griffen at the most recent hearing, and she stated that she could not say with
any certainty whether, or how much, Vester’s condition would improve. After
hearing this testimony and reviewing the reports of the examining psychologists
(none of whom offered any prediction regarding the degree to which Vester’s
condition might improve with continued sobriety), the ALJ confidently concluded
that Vester would not be disabled if she stopped using alcohol.
Instead of focusing on the medical evidence in the record, the ALJ relied on
evidence of Vester’s community service assignments to conclude that she was able
to work when not using alcohol. Vester’s successful completion of her short-term
community service assignment, while she was receiving substantial support and
attention from her caseworker, does not constitute substantial evidence that Vester
is not disabled. See Andler, 100 F.3d at 1393 (holding that a short period of actual
work under special conditions is not inconsistent with total disability due to mental
illness). The occasional comments that Vester was “doing well” during a sober
period also fail to provide sufficient support for the ALJ’s decision. Hutsell, 259 F.3d
at 712 (concluding that a report that a patient is “doing well” in the context of a
treatment program has “no necessary relation to a claimant's ability to work”).
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The ALJ’s conclusion is unsupported by medical evidence, and I am unwilling
to concur in the majority’s suggestion that an ALJ is free to speculate regarding the
complex interaction of mental illness and substance abuse. I would therefore remand
with directions to award Vester supplemental social security income under Title XVI
of the Social Security Act from September 14, 1992.
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