John Barrett v. Nancy Berryhill ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-2878
JOHN G. BARRETT,
Plaintiff-Appellant,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Western Division.
No. 16 CV 50257 — Iain D. Johnston, Magistrate Judge.
____________________
ARGUED JULY 5, 2018 — DECIDED AUGUST 14, 2018 —
OPINION ISSUED SEPTEMBER 25, 2018*
____________________
* The court initially resolved this appeal by nonprecedential order.
The order is being reissued as an opinion.
2 No. 17-2878
Before WOOD, Chief Judge, and SCUDDER and ST. EVE, Circuit
Judges.
PER CURIAM. John Barrett applied for disability insurance
benefits and supplemental security income based on limita-
tions from bipolar disorder and alcohol addiction. If an ad-
ministrative law judge (ALJ) had found him disabled, then
Barrett would shoulder the burden of showing that his alco-
holism was not material to his disability. An ALJ found that
he was not disabled, however, even when considering his al-
cohol addiction, and denied him benefits. The district court
agreed, and we affirm.
I
Barrett started drinking alcohol as a teenager, and he be-
gan to drink heavily when he was 19 years old, near the time
his brother committed suicide. At age 27, he was hospitalized
and reported depression and suicidal ideation; at this time, he
was drinking one to two 6-packs per day, four to five days per
week. He stopped working as an assistant manager at
Walgreens in January 2009.
From then on, Barrett’s condition worsened, and initial
treatment proved ineffective. In April 2010, he reported to his
primary care physician, Dr. Paul Reith, that he was having
problems with alcohol and anxiety. Dr. Reith prescribed med-
ications to help Barrett manage his mental health issues. He
went to Rosecrance, a detoxification and rehabilitation facil-
ity, where he was diagnosed with alcohol dependence. Soon
after leaving Rosecrance, he began treatment with Raymond
Garcia, a psychiatrist. Within months, though, Barrett was
anxious and drinking excessively again. Barrett was admitted
to the emergency room in October, intoxicated and depressed,
No. 17-2878 3
and then returned to Rosecrance, where staff diagnosed him
with alcohol dependence, anxiety, and bipolar disorder.
When he left Rosecrance, he relapsed immediately and had to
return for a third round of treatment for the same diagnoses.
He kept drinking excessively through 2011, leading to an-
other hospitalization.
For some time when he was not hospitalized or in rehab
in 2010 and 2011, Barrett worked at his father’s law practice,
summarizing depositions and medical records, and engaging
in “logic-related” activities. His father fired him, however, af-
ter he caught Barrett drinking liquor in the office. He also took
the Law School Admissions Test (LSAT) in 2010, and he re-
ceived a below-average score.
Barrett turned his life around in December 2011 when he
entered the 13-month Men’s Recovery Program at the Las Ve-
gas Rescue Mission, a rehabilitation facility. Barrett’s case
manager said that Barrett had a “profound alcohol problem”
and that obtaining treatment “is absolutely necessary and
should be prioritized.” Barrett attended individual therapy
and group therapy for alcoholics. He also spent up to
eight hours per day in “work therapy.” He started this ther-
apy by watching the security gate and later progressed to
maintaining class attendance records for 100 residents. After
only about a month, his case manager recorded that Barrett
“feels good mentally and physically” and “all in all he is do-
ing well.” While the environment at the Mission was struc-
tured and Barrett had supervision there, Barrett largely func-
tioned independently during his stay. Since leaving the Mis-
sion in January 2013, Barrett has finished law school. In addi-
tion, he remains sober and stable, without the use of medica-
tion.
4 No. 17-2878
Reflecting on Barrett’s alcohol addiction, Dr. Garcia
opined that he had a “primary psychiatric condition with a
secondary substance use disorder,” and that “[u]nresolved
grief and post-traumatic stress over his brother’s suicide
fueled his mood disorder and alcohol abuse.” Dr. Garcia also
concluded that Barrett was disabled and could not work be-
fore completing the program at the Mission.
Barrett applied for disability benefits for the period of Sep-
tember 1, 2009 through January 7, 2013 (the date he left the
Mission), and an ALJ found that he was not disabled. The ALJ
applied the five-step analysis required by 20 C.F.R.
§ 404.1520(a). She said that Barret did not engage in substan-
tial gainful activity during the closed period (step one) and
that his alcohol dependence, bipolar disorder, and posttrau-
matic stress disorder were severe impairments (step two).
Most important for this appeal, the ALJ found at step three
that Barrett’s impairments were not presumptively disabling.
In particular, she found that Barrett did not meet the “Para-
graph C” criteria of listing 12.04. 20 C.F.R. § Pt. 404, Subpt. P,
App. 1 (2015). At the time of the ALJ’s ruling, Paragraph C
was satisfied if, in relevant part, the claimant had “repeated
episodes of decompensation” of extended duration—that is,
in one year, the claimant had the equivalent of three, two-
week increases in symptoms with a loss of adaptive function-
ing. Id. An episode of decompensation can be inferred from
“the need for a more structured psychological support sys-
tem” or from a showing of “1 or more years’ inability to func-
tion outside a highly supportive living arrangement, with an
indication of continued need for such an arrangement.” Id.
Regarding Paragraph C, the ALJ wrote that all of Barrett’s
conditions taken together “posed no more than moderate
No. 17-2878 5
limitations” on his ability to work. Each of his episodes of de-
compensation, she continued, “was predicated by a relapse of
alcohol,” and Barrett was “primarily treated for alcoholism”
when hospitalized. This conclusion is significant because the
Social Security Act bars a claimant from receiving benefits if
his alcoholism is “material” to his disability, i.e., that he
would not be disabled but for his alcohol addiction. 42 U.S.C.
§§ 423(d)(2)(C), 1382c(a)(3)(J); Kangail v. Barnhart, 454 F.3d
627, 628 (7th Cir. 2006). She gave no weight to Dr. Garcia’s
opinion on Barrett’s conditions because she found that his
opinion was inconsistent with the record.
The ALJ then found that, even when considering impair-
ments from his alcoholism in conjunction with the others, Bar-
rett had the residual functional capacity during the closed pe-
riod to perform simple, repetitive, unskilled work in two-
hour increments, with occasional changes to his environment
and occasional decision making. In making her assessment,
she emphasized that Barrett had worked in a small law firm
and while at the Mission.
Finally, based on hearing testimony from a vocational ex-
pert, the ALJ concluded that Barrett could have performed his
past work of a housekeeper (step four) or work as a dish-
washer or janitor (step five), during the alleged closed period
of disability.
The Appeals Council denied review, making the ALJ’s de-
cision the final word of the Commissioner. See Summers v. Ber-
ryhill, 864 F.3d 523, 526 (7th Cir. 2017). A magistrate judge,
presiding by consent, 28 U.S.C. § 636(c), affirmed that deci-
sion, concluding that the ALJ “essentially” found that Bar-
rett’s alcohol use was material to his disability, and that sub-
stantial evidence supported the implicit finding.
6 No. 17-2878
II
On appeal Barrett argues that substantial evidence does
not support the ALJ’s conclusion that his alcoholism was ma-
terial to his disability. See Kangail, 454 F.3d at 628–29. The ALJ,
however, concluded that Barrett was not disabled considering
all his impairments, so any error regarding her materiality
analysis is harmless. In fact, because she determined that Bar-
rett was never disabled even with his alcohol addiction, she
need not even have considered whether his alcoholism was
material to his limitations. See Sizemore v. Berryhill, 878 F.3d
72, 81 (4th Cir. 2017). An ALJ must determine if a claimant’s
drug or alcohol addiction is material to his or her disability
only if the ALJ first finds that the claimant is disabled. Soc.
Sec. Ruling, SSR 13–2p; Titles II & XVI: Evaluating Cases In-
volving Drug Addiction & Alcoholism (DAA), 78 Fed. Reg.
11939, 11941–42 (Feb. 20, 2013). Here, the ALJ determined that
Barrett’s impairments, including his alcoholism, taken to-
gether were at most moderately limiting, and she concluded
that he could have sustained full-time employment. That con-
clusion is supported by substantial evidence: Barrett per-
formed in workplace-like settings tasks such as summarizing
depositions and medical records and maintaining attendance
records of 100 people. He also sat for the LSAT—though the
ALJ emphasized his “above-average” score when it was in
fact below average, the fact that he sat for the test and
achieved the score he did was consistent with someone capa-
ble of working.
Barrett interprets the ALJ’s decision differently and argues
that the ALJ erred when she effectively determined that Bar-
rett’s alcoholism was material before concluding that Barrett
was disabled considering all his impairments. He reads the
No. 17-2878 7
ALJ’s statement that Barrett’s alcohol use “predicated” his ep-
isodes of decompensation as implicit findings both that Bar-
rett satisfied the Paragraph C criteria and that alcoholism was
material to his disability. Even based on his interpretation,
though, he was not prejudiced by the ALJ’s shortcut because,
in assessing materiality, the ALJ accepted that Barrett suffered
episodes of decompensation and assumed he was disabled.
See Parra v. Astrue, 481 F.3d 742, 747 (9th Cir. 2007).
Continuing with his reading, Barrett next disagrees with
the ALJ’s determination that his alcoholism “predicated” his
episodes of decompensation, but he did not carry his burden
of showing that his alcohol addiction was immaterial to his
purported disability. See SSR 13–2p at 11941; Cage v. Comm'r
of Soc. Sec., 692 F.3d 118, 123 (2d Cir. 2012) (citing Parra, 481
F.3d at 748; Brueggemann v. Barnhart, 348 F.3d 693 (8th Cir.
2003); Doughty v. Apfel, 245 F.3d 1274, 1279–80 (11th Cir. 2001);
Brown v. Apfel, 192 F.3d 492, 497–99 (5th Cir.1999)). Barrett re-
lies on Dr. Garcia’s opinion that his alcoholism was a “second-
ary” condition, “fueled” by his “psychiatric” conditions.
Dr. Garcia did not explain the basis for his conclusion, how-
ever, and a treating physician’s unsupported conclusion is not
controlling. See Schaaf v. Astrue, 602 F.3d 869, 875 (7th Cir.
2010). True, bipolar disorder can precipitate substance abuse,
see Kangail, 454 F.3d at 629, but without more than Dr. Gar-
cia’s cursory opinion, which the ALJ reasonably discredited
based on the record including the notes from the Mission, Bar-
rett did not show that to be his case. See Parra, 481 F.3d
at 748–49.
Moreover, even if the ALJ did implicitly conclude that Bar-
rett was disabled when considering his alcoholism, the record
contains substantial evidence that Barrett’s alcoholism was in
8 No. 17-2878
fact material to his disability. Evidence of improvement, in-
cluding positive evaluations during a period of abstinence, is
the “best evidence” that a claimant’s drug or alcohol addic-
tion is material. SSR 13–2p at 11943; Cage, 692 F.3d at 127. Af-
ter a month of maintaining sobriety at the Mission, (before
any notes of therapy appear in the record), Barrett’s case man-
ager recorded that Barrett “fe[lt] good mentally and physi-
cally.” Barrett did not report symptoms of bipolar disorder or
posttraumatic stress disorder. He attended all his classes and
performed “excellent[ly]” in work therapy. Since leaving the
Mission in 2013, Barrett continues to attend group therapy for
alcoholism and he meets quarterly with Dr. Garcia to help
him stay sober and off any mental health medication. He ob-
tained his law degree and is now practicing law. His positive
achievements since 2013 suggests that his alcoholism was ma-
terial during the closed period. As for his episodes of decom-
pensation, he was hospitalized during the closed period for
alcohol intoxication; his primary diagnosis after each of his
three stays at Rosecrance was for alcohol dependence; and the
Mission “prioritized” treatment for his “profound alcohol
problem.” Perhaps Barrett summarized it best himself in his
application for benefits: “I am an alcoholic. My addiction im-
pairs my ability to obtain a job, keep a job, attend work con-
sistently, get to work on time, perform my work appropri-
ately ….” If the ALJ implicitly concluded that alcoholism
“predicated” his episodes of decompensation, she had sub-
stantial evidence for that finding.
Therefore, the judgment of the district court is
AFFIRMED.