United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-2831
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Christopher C. Kluesner, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the Northern
* District of Iowa.
Michael J. Astrue, Commissioner of *
Social Security, *
*
Appellee. *
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Submitted: April 15, 2010
Filed: June 10, 2010
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Before RILEY, Chief Judge, COLLOTON and BENTON, Circuit Judges.
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BENTON, Circuit Judge.
Christopher Charles Kluesner appeals the judgment of the district court1
upholding the Commissioner of Social Security’s denial of his application for
disability insurance benefits and supplemental security income. Having jurisdiction
under 28 U.S.C. § 1291, this court affirms.
1
The Honorable Jon Stuart Scoles, United States Magistrate Judge for the
Northern District of Iowa, sitting with the consent of the parties pursuant to 28 U.S.C.
§ 636(c).
I.
Kluesner sought benefits, claiming he was unable to work due to schizophrenic
disorder and major depressive disorder. He has not engaged in substantial gainful
activity since July 3, 2003. His medical history begins in May 2004, when he met Jan
Lombardi, a licensed mental health counselor, for an intake interview and assessment
at the Gannon Mental Health Center. He reported suffering for years from depressive
symptoms (poor sleep, fatigue, lack of motivation, passive suicidality), and smoking
marijuana five times a week. He had been using marijuana since he was 15.
Lombardi diagnosed Kluesner with major depressive disorder, dysthymic disorder (a
type of chronic depression), cannabis dependence, and personality disorder with
anti-social personality features. She also gave him a Global Assessment of
Functioning (GAF)–a 0-100 score given by mental-health professionals to
subjectively rate the social, occupational, and psychological function of adults–of 45.
Lombardi recommended that he stop using marijuana.
One month later, Kluesner met with Afshin Shirani, M.D. Dr. Shirani
diagnosed him with cannabis dependence and substance-induced mood disorder, and
gave him a GAF score of 50. He recommended that Kluesner stop using marijuana
and prescribed Fluoxetine (Prozac).
Dr. Shirani met with Kluesner periodically until July 23, 2005. Kluesner
sometimes admitted but sometimes denied using marijuana. In November 2004,
Shirani opined: "It is unlikely that [Kluesner's] symptoms are explained by his
cannabis abuse as he seems to have been low functioning even before he started using
cannabis heavily." Dr. Shirani ultimately diagnosed him with schizophrenia,
aggravated by substance abuse. During their final visit, Dr. Shirani noted that
Kluesner "continues to smoke cannabis frequently; he states once in a while, but his
father states every day." He reminded Kluesner that "cannabis aggravates his
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condition but he seems unable to reduce or terminate his cannabis use. He is not
likely to benefit from substance abuse treatment given his negative symptoms."
In September 2005, Dee E. Wright, Ph. D., reviewed Kluesner's medical records
for a "Psychiatric Review Technique" assessment and a mental "Residual Functional
Capacity" (RFC) assessment. On the Psychiatric Review, she diagnosed Kluesner
with schizophrenia, mood disorder, anti-social personality disorder, and cannabis
dependence. On the mental RFC, she determined that Kluesner faced marked
restriction in the activities of daily living, marked difficulties in maintaining social
functioning, and moderate difficulties in maintaining concentration, persistence, or
pace, and was limited in his ability to carry out detailed instructions, maintain
attention and concentration for extended periods, get along with co-workers, and
respond to changes in the work setting. Dr. Wright concluded that although
Kluesner's medically determinable mental impairments do create severe limitations,
he has a long history of noncompliance with both his medication regimen and
abstinence from marijuana. Specifically, she noted that his use of marijuana
contributes materially to his dysfunction, and if he were to abstain from marijuana and
alcohol, he could return to work, with the limitations outlined in the RFC.
In November 2005, a nurse practitioner at the Gannon Center reviewed
Kluesner’s medications. He denied any current alcohol or marijuana use, and the
nurse practitioner diagnosed him with undifferentiated schizophrenia and cannabis
dependence in remission. In August 2006, Kluesner sought psychiatric care at
Hillcrest Mental Health Center (the Gannon Center’s successor). The progress note
indicated a diagnosis of undifferentiated schizophrenia and cannabis dependence in
remission. The diagnosis remained substantially the same for his November 2006,
July 2007, and August 2007 visits.
Kluesner applied for both disability insurance benefits and SSI in December
2004, which were denied in February 2005. He did not appeal, but filed again for
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both benefits in August 2005, which were denied. Kluesner eventually requested a
hearing, which took place on August 16, 2007. In his decision, the ALJ denied
Kluesner's claims, reasoning that if he refrained from marijuana abuse, he would be
able to perform his past relevant work as a machine set-up operator and a farm laborer.
Because the appeals council denied review, the ALJ's decision is the Commissioner's
final decision.
The district court ruled that the conclusions of the ALJ are supported by
substantial evidence, finding specifically that the ALJ (1) correctly determined that
substance abuse was a contributing factor material to Kluesner's disability, and (2)
properly made a credibility determination regarding Kluesner's subjective claims of
disability. Kluesner appeals, arguing that the ALJ (1) wrongly concluded that drug
abuse was a contributing factor material to his disability, and (2) improperly evaluated
the credibility of his testimony that he had stopped using marijuana.
II.
This court reviews “de novo a district court decision upholding the denial of
social security benefits.” Bowman v. Barnhart, 310 F.3d 1080, 1083 (8th Cir. 2002).
It “will uphold the Commissioner's decision if it is supported by substantial evidence
on the record as a whole.” Finch v. Astrue, 547 F.3d 933, 935 (8th Cir. 2008).
“Substantial evidence is less than a preponderance but is enough that a reasonable
mind would find it adequate to support the conclusion.” Id. (internal quotation marks
omitted). “This standard of review requires us to consider the evidence that supports
the Commissioner's decision as well as the evidence that detracts from it.” Id. “That
we would have come to a different conclusion, however, is not a sufficient basis for
reversal.” Id. “If, after review, we find it possible to draw two inconsistent positions
from the evidence and one of those positions represents the Commissioner's findings,
we must affirm the denial of benefits.” Id.
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In determining whether Kluesner was disabled, the ALJ applied the five-step
sequential evaluation in the social security regulations. See 20 C.F.R. §
404.1520(a)(4)(i)-(v) (disability insurance benefits); 20 C.F.R. § 416.920(a)(4)(i)-(v)
(supplemental security income); Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987);
Robson v. Astrue, 526 F.3d 389, 392 (8th Cir. 2008). The ALJ first determines if the
claimant is engaged in substantial gainful activity. If so, the claimant is not disabled.
Second, the ALJ determines whether the claimant has a severe medical impairment
that has lasted, or is expected to last, at least 12 months. Third, the ALJ considers the
severity of the impairment, specifically whether it meets or equals one of the listed
impairments. If the ALJ finds a severe impairment that meets the duration
requirement, and meets or equals a listed impairment, then the claimant is disabled.
However, the fourth step asks whether the claimant has the residual functional
capacity to do past relevant work. If so, the claimant is not disabled. Fifth, the ALJ
determines whether the claimant can perform other jobs in the economy. If so, the
claimant is not disabled.
The ALJ’s inquiry is complicated by Kluesner’s long history of marijuana
abuse. Congress eliminated alcoholism or drug addiction as a basis for obtaining
social security benefits. Pub. L. No. 104-121, 110 Stat. 852-56 (1996). "An
individual shall not be considered disabled for purposes of this title if alcoholism or
drug addiction would (but for this subparagraph) be a contributing factor material to
the Commissioner's determination that the individual is disabled." 42 U.S.C.
423(d)(2)(C) (disability insurance benefits). See also 42 U.S.C. 1382c(a)(3)(J)
(supplemental security income). The claimant has the burden to prove that alcoholism
or drug addiction is not a contributing factor. Estes v. Barnhart, 275 F.3d 722, 725
(8th Cir. 2002). "If the ALJ is unable to determine whether substance use disorders
are a contributing factor material to the claimant's otherwise-acknowledged disability,
the claimant's burden has been met and an award of benefits must follow."
Brueggemann v. Barnhart, 348 F.3d 689, 693 (8th Cir. 2003). In other words, on the
materiality of his marijuana abuse, a tie would go to Kluesner. See id.
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In the case of alcoholism and drug addiction, an ALJ must first determine if a
claimant's symptoms, regardless of cause, constitute disability. Id. at 694 (citing 20
C.F.R. § 404.1535(a)) (disability insurance benefits). See also 20 C.F.R. § 416.935
(supplemental security income). If the ALJ finds a disability and evidence of
substance abuse, the next step is to determine whether those disabilities would exist
in the absence of the substance abuse. Id. at 694-95. When a claimant is actively
abusing drugs, this inquiry is necessarily hypothetical, and thus more difficult than if
the claimant had stopped. Id.
At the first step of the five-step evaluation, the ALJ determined that Kluesner
had not engaged in substantial gainful activity since his alleged disability onset date.
Next, the ALJ concluded that he had three severe medical impairments that limit his
ability to perform work, “schizophrenic disorder, major depressive disorder, and drug
and alcohol abuse, currently in remission.” The ALJ then determined that Kluesner’s
symptoms, regardless of cause, constituted disability.
At the third step, however, the ALJ found that in the absence of substance
abuse, Kluesner does not have an impairment or combination of impairments that
meet or medically equal any listed impairment. At the fourth step, the ALJ
determined that in the absence of substance abuse, Kluesner would have the residual
functional capacity to perform his past relevant work. Thus, the ALJ concluded that,
in the absence of substance abuse, Kluesner was not disabled within the meaning of
the Social Security Act between July 3, 2003, and August 16, 2007.
Kluesner argues that the ALJ erred in concluding that his marijuana use was a
contributing factor material to a finding of disability. Specifically, he contends that
the ALJ’s finding that his substance abuse was “in remission” at the time of the
hearing is inconsistent with the ALJ’s finding that substance abuse was a contributing
factor material to his disabilities during the relevant period.
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To the contrary, substantial evidence in the record supports the ALJ’s findings.
The record is clear that Kluesner abused marijuana from July 3, 2003 (the beginning
of the relevant period), until at least November 2005. Nearly all the medical evidence
in the record is from this time. Dr. Shirani noted that marijuana abuse aggravates his
schizophrenia and depression. Dr. Wright stated that his use of marijuana contributes
materially to his dysfunction, and if he were to abstain from marijuana and alcohol,
he could return to work, with the limitations outlined in the RFC. Thus, even though
Kluesner’s substance abuse was in remission at the time of the hearing, it was not for
much of the relevant period. See Vester v. Barnhart, 416 F.3d 886, 890 (8th Cir.
2005) (denying benefits to claimant who had been sober for five months at the time
of the hearing, but was not for much of the relevant period). Moreover, the medical
records from the period that he used marijuana are substantial evidence that his
substance abuse was a contributing factor material to his disability.
Similarly, Kluesner asserts that the ALJ’s finding that he was “disabled,”
despite his one-and-a-half years of abstinence from marijuana, is inconsistent with the
ALJ’s finding that substance abuse is a contributing factor material to his disability.
However, the ALJ is required first to consider whether a claimant is disabled,
regardless of cause, before determining whether substance abuse was a contributing
factor. See Brueggemann, 348 F.3d at 693. The ALJ’s initial finding that Kluesner’s
symptoms, regardless of cause, constituted disability does not preclude an ultimate
finding that substance abuse was a contributing factor simply because Kluesner was
not abusing marijuana at the time of the hearing.
Kluesner next contends that Dr. Shirani’s statement, "[i]t is unlikely that [his]
symptoms are explained by his cannabis abuse," warrants a finding that marijuana
abuse was not a contributing factor material to his disability. While this statement
supports Kluesner’s position, the majority of the evidence in the record supports the
Commissioner. “If, after review, we find it possible to draw two inconsistent
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positions from the evidence and one of those positions represents the Commissioner's
findings, we must affirm the denial of benefits.” Finch, 547 F.3d at 935.
Finally, Kluesner argues that the ALJ, by finding that his substance abuse was
a contributing factor material to his disability, implicitly rejected his testimony that
he had stopped using marijuana, without conducting a proper credibility analysis.
This argument is without merit. The ALJ did not reject Kluesner’s testimony that he
had stopped using marijuana; in fact, he found that his substance abuse was “in
remission.”
III.
The judgment of the district court is affirmed.
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