Robinson v. Astrue
MEMORANDUM OPINION regarding Complaint 1 filed by Tycer Robinson. Substantial evidence in the record as a whole supports the ALJ's determination that Robinson was not disabled within the meaning of the Social Security Act due to his material su bstance abuse, and the ALJ's decision complies with the relevant law. The Commissioner's denial of Robinsons SSI benefits claim will be affirmed. A separate order will be entered in accordance with this memorandum opinion. Ordered by Senior Judge Lyle E. Strom. (JAB)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MICHAEL J. ASTRUE,
Commissioner of Social
This matter is before the Court for review of the
decision of defendant Commissioner of the Social Security
Administration (Commissioner) denying Supplemental Security
Income (SSI) benefits to plaintiff Tycer Robinson (Robinson)
pursuant to 42 U.S.C. §§ 405(g) and 1383(c).
Upon review, the
Court finds the Commissioner’s decision is supported by
substantial evidence and should be affirmed.
BACKGROUND AND PROCEDURAL HISTORY
Robinson was born on December 4, 1960 (Tr. 71).
completed a GED in 1980 (Tr. 100).
States Marine Corps (Tr. 250).
Robinson served in the United
In addition to his military
service, Robinson has been employed in assembly/manufacturing,
construction, garbage removal, general labor, janitorial, and
kitchen lines of work (Tr. 97-98).
Robinson married Caroline
Wallace in 2005; he has no dependent children (Tr. 72).
Robinson claims he has been disabled since July 23,
2007 (Tr. 32).
He alleges three major impairments:
frost bite on fingers, and back problems (Tr. 64).
Robinson applied for SSI benefits on July 23, 2007 (Tr.
In connection with his application, Robinson stated that he
cooks every day and that he walks or runs once a week for
recreation (Tr. 161-62).
Robinson has trouble sleeping and
candidly stated, “I don’t sleep I use Booze, Sleep Aids” (Tr.
He stated he has anxiety reactions three times a week, but
“medication make things better” (Tr. 164).
On August 27, 2007, Robinson was seen for an initial
substance abuse assessment by Nancy Probst, BA, LADC, at Blue
Valley Health Center as part of his parole, after having been
released from prison six days earlier (Tr. 240).
that he “has had no real steady work program in several years and
. . . it is all due to his substance abuse.
numerous to remember” (Tr. 241).
“numerous DWI’s” (Tr. 242).
He has lost jobs too
Robinson stated that he has
Robinson stated he has “53 different
entries on his [police] record.
He further acknowledges that all
of these were under the influence of alcohol when they occurred”
Ms. Probst’s diagnosis on Axis I was alcohol
dependence, cannabis dependence, and cocaine dependence, with an
Axis V score of 60 (Tr. 246).
On September 11, 2007, Robinson was seen for an initial
mental health assessment by Jerry Oestmann, Ph.D., at Blue Valley
Dr. Oestmann summarized the substance abuse
evaluation by noting that Robinson “completed an RTC program
while in prison and completed all 12 steps” and that “his drug of
choice is alcohol” (Tr. 236).
Dr. Oestmann’s diagnosis on Axis I
was depressive disorder [not otherwise specified], anxiety
disorder [not otherwise specified], alcohol dependence, cannabis
dependence, and cocaine dependence, with a GAF of 50.
Oestmann wrote that Robinson “has had an extensive history of law
violations and substance abuse problems throughout his lifetime.
[Robinson] appears motivated and compliant for treatment and is
wanting to change his life so that he will not go back to prison”
On September 19, 2007, Robinson saw for the first time
D. C. Weldon, M.D., at the Wymore Medical Clinic, regarding blood
in the stool, numbness in the left hip, cramping in the right
flank, lesions, and toenail problems.
Dr. Weldon stated that
Robinson has a history of a mental condition treated with
Dr. Weldon stated that Robinson “appears well.”
Dr. Weldon’s assessment was “1) Hemorrhoids.
3) Mental illness condition not otherwise determined.
4) Smoking” (Tr. 219).
On October 1, 2007, Robinson was evaluated
psychologically by a state agency examiner, Michael C. Renner,
Dr. Renner noted that Robinson stated that “he has
longstanding difficulties with back problems and experiences
severe back pain since he worked at a meat packing plant” (Tr.
Robinson rated that pain at eight out of ten (Tr. 251).
Robinson stated that “he has a long history of alcohol and drug
dependence and abuse and he is currently smoking cigarettes, but
has discontinued the use of alcohol, marijuana, and cocaine” (Tr.
Robinson admitted to “significant aspects of depression”
and “significant anxiety” (Tr. 252).
Dr. Renner’s diagnosis on
Axis I was pain disorder associated with both psychological
factors and general medical condition, depressive disorder, not
otherwise specified, generalized anxiety disorder, nicotine
dependence, in partial remission, alcohol abuse, in full
remission, cannabis abuse, in full remission, and cocaine abuse,
in full remission.
In addition, Dr. Renner diagnosed personality
disorder, not otherwise specified with paranoid avoidant
borderline and antisocial characteristics, and history of ongoing
significant back pain, with a GAF of 50 (Tr. 256).
Dr. Weldon also completed a Medical Report for
Robinson, where he noted a “[t]wenty year history of low back
pain without radiation, 8/10 severity” (Tr. 258).
Robinson reported “outpatient treatment seven years ago . . . for
frostbite of non-dominant left long ring and small fingers” (Tr.
Dr. Weldon’s impression of Robinson was: “1. Depression,
rule out schizoaffective disorder, bipolar, or schizophrenia.
Hypertension, stage 2.
3. Treatment noncompliance.
5. Chronic neck pain.
6. Possible hepatitis b
8. Veralgia paresthetica, left.
9. History of frostbite injury, left hand.
11. Alcohol abuse” (Tr. 260-61).
On October 23, 2007, Robinson had an initial therapy
session at Blue Valley Mental Health Center.
that he has difficulty affording his psychiatric medications
toward the end of each month.
He stated that he was depressed
about not being able to find a job (Tr. 208).
On November 6,
2007, Robinson was seen again and stated that he was experiencing
alcohol cravings and depression due to his lack of success at
finding a job.
Robinson “no showed/no called” for his next two
appointments (Tr. 207).
On October 24, 2007, a state agency reviewing medical
consultant, Christopher Milne, Ph.D., completed a Mental RFC1
RFC (Residual Functional Capacity) is the most a claimant
can do despite physical and mental limitations caused by his
impairments, including any related symptoms. 20 C.F.R.
§ 404.1545(a). “RFC is the individual’s maximum remaining
ability to do sustained work activities in an ordinary work
setting on a regular and continuing basis,” which means “8 hours
a day, for 5 days a week, or an equivalent work schedule.”
S.S.R. 96-8p, 1996 WL 374184, at *2 (Soc. Sec. Admin. July 2,
Assessment of Robinson for his initial disability application
Of the twenty mental activities listed, Robinson was
found to have no limitation in two activities, and he was
evaluated as “not significantly limited” in eleven activities and
“moderately limited” in seven activities (Tr. 186-87).
Dr. Milne stated that Robinson “has a history of drug
and alcohol abuse.
This is in full remission, per Dr. Renner’s
report” (Tr. 188).
Dr. Milne stated that Robinson focused on
“his pain issues” and that he did have a “depressed mood and some
anxiety related to his pain issues” (Id.).
In addition, “His
substance abuse has been a factor with his legal and
Currently, this does not appear to be
His statements concerning his limitations do
not appear to be totally credible. . . . He appears to be capable
of simple, unskilled work at this time” (Id.).
Dr. Milne also completed a Psychiatric Review Technique
for Robinson, stating that an RFC assessment was necessary
because of possible Affective Disorders (12.04), Anxiety-Related
Disorders (12.06), Somatoform Disorders (12.07), Personality
Disorders (12.08), and Substance Abuse Disorders (12.09) (Tr.
Dr. Milne stated that Robinson had depressive disorder
not otherwise specified, but did not meet the diagnostic criteria
for Affective Disorders (12.04) (Tr. 193); had generalized
anxiety disorder, but did not meet the diagnostic criteria for
Anxiety-Related Disorders (12.06) (Tr. 195); had pain disorder,
associated with psychological factors, general medical condition,
but did not meet the diagnostic criteria for Somatoform Disorders
(12.07) (Tr. 196); had personality disorder, not otherwise
specified, but did not meet the diagnostic criteria for
Personality Disorders (12.08) (Tr. 197); and had alcohol abuse,
cannabis abuse, cocaine abuse, all in full remission, but did not
meet the diagnostic criteria for Substance Addiction Disorders
(12.09) (Tr. 198).
Dr. Milne found that Robinson was mildly limited as to
a restriction of activities of daily living, moderately limited
as to difficulties in maintaining social functioning, moderately
limited as to difficulties in maintaining concentration,
persistence, and pace, and had had one or two episodes of
decompensation (Tr. 200).
However, Robinson did not meet any of
the “C” criteria of the listings.
Also on October 24, 2007, Glenn D. Knosp, M.D., a state
agency reviewing physician, completed a Physical Review Other
Than RFC of Robinson.
Dr. Knosp noted that “A recent CE showed
no severe abnormality, no atrophy in extremities, no lesions or
abnormality on hands or fingers, no vascular problems, normal
gait, good range of motion” (Tr. 189).
Dr. Knosp noted that “he
did not complain of any severe physical conditions, or being in
any pain on an evaluation at Blue Valley Mental Health Center on
Dr. Knosp concluded, “There does not appear to
be a severe physical condition at this time” (Id.).
On October 24, 2007, the Commissioner denied Robinson’s
initial SSI benefits claim.
On December 14, 2007, Jerry Reed, M.D., also a state
agency reviewing physician, completed a second Physical RFC
Assessment for Robinson for the reconsideration of his disability
Dr. Reed wrote that “the Other Than RFC of 10/24/07
is affirmed as written” (Tr. 268).
On February 13, 2008, Linda Schmechel, Ph.D., a state
agency reviewing clinician, completed a second Psychiatric Review
Technique for Robinson.
Dr. Schmechel wrote, “I have reviewed
all of the evidence in file and the PRTF/MRFC of 10/24/07 is
affirmed as written” (Tr.269).
On February 15, 2008, Robinson’s
reconsideration claim was also denied (Tr. 54).
On April 11, 2008, Robinson applied for an appellate
hearing with an administrative law judge for his claim (Tr. 85).
In his application, he stated that he was working at a battery
factory for 12 hours a day, two days a week (Tr. 92).
shifts, his “pain is worse” and he takes “six extra pills to help
with the pain.
Unfortunately, I have run out of pills, so to
help with the pain, I sometimes drink alcohol” (Tr. 92).
On June 9, 2008, Robinson was admitted to Bryan LGH
Medical Center in acute renal failure (Tr. 173).
He had been
incarcerated due to driving under the influence and was given a
combination of medications at the jail for combativeness that
caused the renal failure (Tr. 173).
After stabilization, he was
discharged back to the jail (Tr. 173).
Robinson saw Dr. Weldon on September 10, 2008.
Weldon’s notes reflect that Robinson stated that he drinks
“occasional 2 beers, 2 drinks bourbon” (Tr. 167).
assessment was “1) Alcoholism relapse.
Liver disease ? HPV, alcohol, or other.
4) Cramps right hand”
Dr. Weldon’s plan for Robinson was:
abstinence, returning to BVMH.
Noted DWI incarceration 6/08"
Robinson saw Dr. Weldon again on September 12, 2008.
Dr. Weldon noted, “[Follow-up] alcoholism, liver disease,
Feeling better. . . . States one beer today, one
No alcoholism reported parents. . . . Encouraged
alcohol abstinence” (Tr. 167).
Dr. Weldon’s assessment was
“Alcoholism/alcoholic liver disease” (Id.).
A hearing before an administrative law judge (“ALJ”),
Alexander Weir III, took place on October 23, 2008, in Lincoln,
Nebraska, to review Robinson’s SSI benefits claim.
Psychiatrist Walter Lewin, M.D., testified at the
hearing, via telephone, as a medical expert (Tr. 280).
based his testimony on the record before him, repeating many of
the findings of the October 1, 2007 report by Dr. Renner.
Lewin stated that he was in agreement with Dr. Renner (Tr. 281).
Dr. Lewin affirmed that it was his testimony that
during that time when [Robinson]
was not using alcohol or controlled
substances according to their [Dr.
Renner’s and Blue Valley’s]
opinions he basically met the
listing of impairments or came
close to it, and if he didn’t meet
the listings he had marked
limitations in several very
important vocationally relevant
Dr. Lewin also affirmed that Robinson has “a history of
alcoholism and drug abuse,” but that “the most recent reports are
that this is in full remission” and that “these progress notes
give no evidence of recent substance or alcohol abuse” (Tr. 283).
The ALJ then stated that more recent records, which had not been
sent to Dr. Lewin prior to the hearing, indicated that Robinson
had been “arrested for DUI” and a “history of alcohol use” (Tr.
The ALJ stated, “So that sounds to me like he’s still
abusing alcohol” (Id.).
Dr. Lewin replied, “Sounds that way to
me too, sir. . . . That would make the DA&A [drug addiction and
alcoholism] material then” (Id.).
Robinson’s attorney asked Dr.
Lewin several questions along the same lines, ultimately asking,
“And so if [Robinson]’s not -- even if he’s not using he has
these problems?” (Tr. 285).
Dr. Lewin replied, “This is correct”
Robinson testified at the hearing that the last time he
worked was in “February . . . of this year” at the battery
assembly for twelve hours a day, twice a week (Tr. 286-87).
Before that, he worked full time for six to eight months
assembling lawn mowers (Tr. 287) until he went back to prison for
a parole violation (Tr. 295).
Robinson stated that he had held
other jobs as well (Tr. 287).
Robinson testified that he presently drinks alcohol
three times a week and that he has been doing that for over ten
However, he had slowed down a lot “last month” [September
2007] (Tr. 288-89).
Then Robinson testified that he had been
drinking “maybe a 12-pack a day” “every day” for a period of
three years before he slowed down [September 2004 - 2007] (Tr.
However, Robinson also testified that he just got out of
jail in August 2007 (Tr. 290).
Robinson affirmed that he told Dr. Renner “about all
the drinking and drugs” he was taking.
He also affirmed that he
told Dr. Renner that he had stopped drinking when actually, “I
just slowed down” (Tr. 293).
Robinson was “pretty sure” that he
was clean and sober when he saw Dr. Renner in October 2007 (Tr.
However, after a few months of sobriety he started
drinking again (Tr. 297).
Conversely, Robinson testified that he
had used crack and marijuana, maybe two times a month, as
recently as four months before the date of the hearing [June
2007] (Tr. 289).
Robinson testified that his hands cramp up since he had
frostbite and that “my back bothers me” (Tr. 293-94).
Next, vocational expert Steven Kuhn testified that
Robinson had past relevant work as an assembler, construction
cleanup worker, garbage collector, hand packer, and
worker (Tr. 304).
The ALJ posed the following hypothetical to the
vocational expert at the hearing:
I’d like you to assume that each of
the hypothetical persons I describe
has the age, education, work
background of the claimant.
[INAUDIBLE] have some limitations
that I describe. I’ve got a
person, number one, . . . has no
exertional limitations. Has a mild
limitation in grip strength. Could
this person do any of the past
relevant work of this claimant?
Based on the hypothetical, the vocational expert
answered that the person could perform all of the jobs listed as
past relevant work (Id.).
The ALJ posed a second hypothetical to the vocational
expert at the hearing:
Hypothetical person number two has
the same limitations I described
for hypothetical person number one.
In addition to which this person
has a moderate limitation in
dealing with complex tasks and a
moderate limitation in attention
and concentration and a moderate
limitation in dealing with the
general public, coworkers, and
supervisors. . . . Could this
person do the past relevant work of
Based on the hypothetical, the vocational expert
answered that the person could perform all of the jobs listed as
past relevant work (Tr. 306).
Robinson’s attorney also asked a hypothetical question
of the vocational expert,
If you used marked degree of
limitation in the areas of
concentration and attention, . . .
[a]nd also marked level of meeting
what I’ll call the demands of a
normal workweek. . . . And then
also a marked degree of limitation
in dealing with the public. Now,
with that degree of limitation
would he be able to perform his
prior relevant work?
The vocational expert answered, “It is my opinion he
would not be able to perform past relevant work” (Id.).
Robinson’s attorney then asked, “Any other type of work
The vocational expert answered, “No” (Id.).
On January 30, 2009, the ALJ issued an opinion
affirming the denial of Robinson’s SSI benefits claim.
The ALJ evaluated Robinson’s claim under the five-step
See 20 C.F.R. § 416.920(a).
the ALJ also included an evaluation of material drug addiction or
See 20 C.F.R. § 416.935(b)(2).
At step one, the ALJ found that Robinson had not
engaged in substantial gainful activity since August 24, 2007,
the date of his application.
At step two, the ALJ found that Robinson’s impairments,
drug dependence, alcoholism, and mental depression, were severe.
However, the ALJ also found that Robinson did not have any
“medically determinable physical impairments that have lasted or
could reasonably be expected to last for at least 12 continuous
months other than obesity,” and that the obesity did not cause
significant limitations (Tr. 13).
At step three, the ALJ found that Robinson’s “mental
impairments, including his alcoholism and substance use disorder,
meet the criteria of sections 12.04 and 12.09" of the listings
found in 20 C.F.R. pt. 404, subpt. P, app. 1 (Tr. 18).
found that “The ‘paragraph A’ criteria of listing 12.09 is
satisfied because the claimant has a documented history of having
experienced behavioral and disturbance of mood changes associated
with the regular use of alcohol that affect the claimant’s
central nervous system” (Tr. 18).
In addition, the ALJ found
The ‘paragraph A’ criteria of
listing 12.04 is satisfied because
the claimant experiences sleep
retardation, paranoid thinking, and
concentration deficits. The
evidence shows that the claimant’s
mental impairments provide moderate
limitations in his daily living
activities, marked limitations in
his social functioning and marked
limitations in his ability to
maintain concentration, persistence
and pace. There is evidence that
the claimant has experienced some
episodes of decompensation of
extended duration. These appear to
be alcohol and/or drug related.
The ALJ concluded that because Robinson “has
impairments that meet the criteria of listing 12.04 and 12.09 he
is disabled” (Tr. 18).
Next, the ALJ found that “Drug dependence and
alcoholism are material to the determination of the claimant’s
If the claimant were to cease drinking and taking
drugs he would not have a severe impairment and would not be
disabled” (Tr. 18).
In reviewing the record, the ALJ found that
Robinson was not clean and sober when he was seen by Dr. Renner
in October 2007, but rather that Robinson had only cut down on
The ALJ wrote, “On that basis, I reject that
portion of Dr. Renner’s report” (Tr. 19).
In addition, ALJ
rejected “Dr. Milne’s opinion since his opinion was given in
reliance upon Dr. Renner’s report and diagnosis, which I find
less than credible” (Tr. 19).
“Further, neither Dr. Renner nor
Dr. Milne, a non-examining physician, had the benefit of the
entire record before rendering their opinions” (Tr. 19).
addition, “Both were under the impression that the claimant’s
alcohol dependence was in remission when it was not” (Tr. 21).
The ALJ also found that absent substance use, Robinson
would have only mild limitations or, in one area, no limitations
at all in “the four broad functional areas set out in the
disability regulations,” known as the “paragraph B” criteria,
because the evidence shows that his problems in these areas
stemmed from alcohol use (Tr. 21).
With regard to physical ailments, the ALJ found that
“absent alcohol abuse, the claimant has no severe physical
impairment that would preclude his ability to perform basic work
activity” (Tr. 20).
The ALJ discounted Dr. Weldon’s finding that
Robinson had chronic back pain because the finding was based
entirely on Robinson’s subjective complaints, was not supported
by observations of any limitations in movement, and was not
supported by objective medical evidence.
Instead, the ALJ found
“substantial support for Dr. Knosp’s conclusion that the claimant
does not have a severe physical impairment” (Id.).
“[T]he conclusion that, if substance use was stopped the claimant
would not have an impairment or combination of impairments that
significantly limits his ability to perform basic work activity
is supported by the evidence taken as a whole” (Tr. 21).
In his opinion, the ALJ did not explicitly “determine
at step four whether the claimant has the residual functional
capacity to perform the requirements of his past relevant work”
(Tr. 12), but the finding of lack of either mental disability
(given the presence of alcoholism) or physical disability at
least implies the capacity to perform past relevant work.
second hypothetical to the vocational expert supports this
conclusion as well.
The ALJ then had no need to determine at
step five “whether the claimant is able to do any other work
considering his residual functional capacity, age, education, and
work experience” (Id.).
After careful consideration of all
the evidence, the undersigned
Administrative Law Judge concludes
that claimant is under a
disability, but that a substance
use disorder is a contributing
factor material to the
determination of disability.
Accordingly, the claimant has not
been disabled under the Social
Security Act at any time from the
date the application was filed
through the date of this decision.
On November 8, 2010, the Appeals Council declined
Robinson’s request for review; thus, the ALJ’s decision is now
the final decision of the Commissioner.
Robinson timely filed a
complaint with the United States District Court for the District
of Nebraska on January 5, 2011.
Standard of Review
When reviewing an ALJ’s decision, the Court “must
determine ‘whether the ALJ’s decision complies with the relevant
legal requirements and is supported by substantial evidence in
the record as a whole.’”
Martise v. Astrue, 641 F.3d 909, 920
(8th Cir. 2011) (quoting Halverson v. Astrue, 600 F.3d 922, 929
(8th Cir. 2010)).
“Substantial evidence” is:
relevant evidence that a reasonable
mind might accept as adequate to
support a conclusion. Substantial
evidence on the record as a whole,
however, requires a more
scrutinizing analysis. In the
review of an administrative
decision, the substantiality of
evidence must take into account
whatever in the record fairly
detracts from its weight. Thus,
the court must also take into
consideration the weight of the
evidence in the record and apply a
balancing test to evidence which is
Id. at 920-21.
“‘If, after reviewing the record, the court finds it is
possible to draw two inconsistent positions from the evidence and
one of those positions represents the ALJ’s findings, the court
must affirm the ALJ’s decision.’”
Partee v. Astrue, 638 F.3d
860, 863 (8th Cir. 2011) (quoting Goff v. Barnhart, 421 F.3d 785,
789 (8th Cir. 2005)).
The Court may not reverse the ALJ’s
decision “merely because [the Court] would have come to a
Teague v. Astrue, 638 F.3d 611, 614 (8th
Cir. 2011)(citation omitted).
The claimant “bears the burden of
Id. at 615.
Substantial Evidence Exists Supporting the ALJ’s Decision.
Severe Impairment and Substance Abuse.
Robinson states as his first argument, “The ALJ erred
by finding that the plaintiff did not have a severe impairment”
(Plaintiff’s Brief, Filing No. 16, at 5).
However, the ALJ did
find that Robinson had a severe impairment.
As noted above, at
step two, the ALJ found that Robinson’s impairments, drug
dependence, alcoholism, and mental depression, were severe.
addition, at step three, the ALJ concluded that because Robinson
“has impairments that meet the criteria of listing 12.04 and
12.09 he is disabled” (Tr. 18).
Robinson’s real complaint with
the ALJ seems to encompass the ALJ’s analysis of Robinson’s drug
and alcohol use and its effect on his disability claim.
A person will not be considered “disabled” under Title
XVI of the Social Security Act “if alcoholism or drug addiction
would . . . be a contributing factor material to the
Commissioner's determination that the individual is disabled.”
42 U.S.C. § 1382c(a)(3)(J).
The procedure for determining
whether a claimant’s alcoholism or drug use is a contributing
factor is stated in 20 C.F.R. § 416.935.
First, under this
regulation, the Commissioner (or, here, the ALJ) must determine
“whether we would still find you disabled if you stopped using
drugs or alcohol.”
20 CFR § 416.935(b)(1).
To do this, the ALJ
must “evaluate which of your current physical and mental
limitations, upon which we based our current disability
determination, would remain if you stopped using drugs or alcohol
and then determine whether any or all of your remaining
limitations would be disabling.”
20 CFR § 416.935(b)(2).
Then, “If we determine that your remaining limitations
would not be disabling, we will find that your drug addiction or
alcoholism is a contributing factor material to the determination
of disability,” and thus the claimant would not be considered
disabled and would not receive SSI benefits.
The claimant “carries the burden of proving
[his] substance abuse is not a contributing factor material to
the claimed disability.”
Estes v. Barnhart, 275 F.3d 722, 725
(8th Cir. 2002).
The ALJ in this case followed the procedure directed in
20 C.F.R. § 404.1535 to determine whether Robinson’s substance
abuse was a contributing factor material to the determination of
As noted above, the ALJ determined that no
physical limitations, and, at worst, only mild limitations
regarding the paragraph B criteria, would exist absent Robinson’s
Consequently, the ALJ determined Robinson was
not disabled when he was not abusing alcohol.
The Eighth Circuit reviewed a similar case in Vester v.
Barnhart, 416 F.3d 886 (8th Cir. 2005).
There, the SSI claimant
was diagnosed 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
Vester, 416 F.3d at 889.
Like Robinson, Vester went
through a “period of sobriety during which she was doing ‘quite
well . . . .’”
Vester, 416 F.3d at 889.
Vester testified that
her last ten years included a streak of sobriety as long as three
years, [but] she also sustained two convictions for driving while
intoxicated during that period.”
Vester, 416 F.3d at 889.
In affirming the denial of benefits, the Eighth Circuit
noted, “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, 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
Vester, 416 F.3d at 890 (citation omitted).
The Eighth Circuit also took note of Vester’s “improved condition
during other periods of sobriety” when she was able to attend
classes and do volunteer work.
Vester, 416 F.3d at 890.
Like Vester, Robinson, too, was able to function in a
more productive way while sober, by holding down a job for a
matter of months.
As the ALJ notes, Robinson “testified that
while incarcerated, he worked in the kitchen as a kitchen helper.
Further, although not substantial gainful activity, the claimant
testified that he pursued several employment opportunities and
worked at various temporary jobs . . . . Moreover, he admitted
that he lost every job he had due to alcohol abuse” (Tr. 21).
The ALJ noted that Robinson “related that he has been in car
accidents [and] fights, . . . has had numerous DWI’s, and he has
lost numerous jobs due to substance abuse” (Tr. 20).
Vester provides affirmation for the ALJ’s denial of benefits to
Opinions of Dr. Renner, Dr. Milne, and Dr. Lewin.
Robinson questions the ALJ’s rejection of the opinions
of Dr. Renner and Dr. Milne, which was based on the impression
that Robinson was not drinking at the time of Dr. Renner’s
evaluation in October 2007.
The Court finds substantial evidence
in the record to support the ALJ’s conclusion that Robinson had
merely cut down on his drinking at that time.
For example, as noted above, Robinson testified that he
presently drinks alcohol three times a week and that he has been
doing that for over ten years.
However, he had slowed down a lot
“last month” [September 2007] (Tr. 288-89).
testified that he had been drinking “maybe a 12-pack a day”
“every day” for a period of three years before he slowed down
[September 2004 - 2007] (Tr. 289).
Robinson did not indicate how
much he was drinking during this “slow down” period.
He also brought into question his own credibility when
he affirmed that he told Dr. Renner that he had stopped drinking,
when actually, “I just slowed down” (Tr. 293).
testified that he had used crack and marijuana, maybe two times a
month, as recently as four months before the date of the hearing
[June 2007] (Tr. 289).
Robinson also claims that the ALJ did not properly give
credence to the testimony of Dr. Lewin.
that Dr. Lewin had stated that if Robinson were still drinking,
this would be material to the issue of disability.
then states, “In response to additional questioning, Dr. Lewin
testified that even if Plaintiff was not drinking alcohol or
using controlled substances he would still be disabled” (Filing
No. 16, at 8).
However, this denies the fact that Dr. Lewin was
basing his opinion on Dr. Renner’s report, which, again, was
based on Robinson’s alleged sobriety.
Given the substantial
evidence, provided by Robinson himself, that he was not, in fact,
sober, the opinions of the medical staff who were explicitly
relying on that fact are reasonably called into the question by
By his own testimony, Robinson plainly did not meet
“the burden of proving [his] substance abuse is not a
contributing factor material to the claimed disability.”
275 F.3d at 725.
Robinson claims that the ALJ should not have rejected
Dr. Renner’s opinion, to the extent that it lacked objective
findings (Filing No. 16, at 10).
In support of this claim,
Robinson cites Averbach v. Astrue, 731 F.Supp. 2d 977 (C.D. Cal.
2010), where the district court wrote, “The report of a
psychiatrist should not be rejected simply because of the
relative imprecision of the psychiatric methodology or the
absence of substantial documentation, unless there are other
reasons to question the diagnostic technique.”
F.Supp. 2d at 986 (emphasis added).
However, Robinson ignores
the last clause of the quote: here, there were other reasons to
question the diagnostic technique.
The ALJ found that Dr. Renner
drew his conclusions based on a faulty premise, that is, that
Robinson had stopped drinking at the time of the interview.
The medical evidence in the record as a whole
contradicts the opinions of Dr. Renner, Dr. Milne, and Dr. Lewin
that Robinson was disabled even when Robinson was not under the
influence of drugs.
The Court finds that the evidence in the
record as a whole does support the ALJ’s finding that Robinson’s
alcoholism was “a contributing factor material to the
Commissioner's determination that the individual is disabled.”
42 U.S.C.A. § 1382c(a)(3)(J).
Development of the Record.
Robinson claims that the ALJ did not fully develop the
record because the ALJ did not contact any of Robinson’s
examining clinicians for further information.
that the ALJ rejected medical opinions without having “[other]
medical opinions to support the rejection” (Filing No. 16 at 12).
Instead, Robinson claims, “the ALJ chose to ‘play doctor’” (Id.).
The Eighth Circuit addressed this issue in Vester,
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
Vester, 416 F.3d at 891.
The Eighth Circuit concluded, “After
considering all of the evidence under the substantial evidence
standard, we are satisfied that the ALJ . . . 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.”
Vester, 416 F.3d at 891.
The Eighth Circuit noted that 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.”
416 F.3d at 892.
Therefore, “We conclude that a reasonable
person considering the record as a whole could reach the
conclusion adopted by the ALJ.”
Vester, 416 F.3d at 892.
Likewise, here, rather than “playing doctor” on a
medical issue, the ALJ made a finding of fact, largely based on
Robinson’s own testimony and statements to clinicians, that
Robinson is able to work when sober, but loses jobs, drives while
intoxicated, and has significant social limitations when he is
The Court finds that “the ALJ’s decision complies with
the relevant legal requirements and is supported by substantial
evidence in the record as a whole.”
Martise v. Astrue, 641 F.3d
909, 920 (8th Cir. 2011).
Substantial evidence in the record as a whole supports
the ALJ’s determination that Robinson was not disabled within the
meaning of the Social Security Act due to his material substance
abuse, and the ALJ’s decision complies with the relevant law.
The Commissioner’s denial of Robinson’s SSI benefits claim will
A separate order will be entered in accordance with
this memorandum opinion.
DATED this 11th day of October, 2011.
BY THE COURT:
/s/ Lyle E. Strom
LYLE E. STROM, Senior Judge
United States District Court
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