Brown v. Apfel

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 98-30848

CARMEN BROWN,

Plaintiff-Appellant,

v.

KENNETH S. APFEL, COMMISSIONER
OF SOCIAL SECURITY,

Defendant-Appellee.

_______________________________

Appeal from the United States District Court
for the Eastern District of Louisiana
_______________________________
October 7, 1999

Before POLITZ, DeMOSS, and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

Appellant Carmen Brown (“Brown”) appeals the district

court’s ruling that retroactive application of the Contract with

America Advancement Act (“CAAA”), Public Law 104-121, 110 Stat.

847 (1996), does not violate her due process rights. She also

appeals the district court’s holding that substantial evidence

supports the Administrative Law Judge’s (“ALJ”) decision denying

Brown Supplemental Social Security (“SSI”) and Disability

Insurance Benefits (“DIB”). We affirm in part, vacate in part,

and remand.

I. Factual and Procedural Background

Claiming that she was disabled because of lower back pain,
Brown first applied for SSI and DIB in February, 1992. The

Commissioner denied her application in May, 1992; as Brown did

not appeal his decision, it became final.1

Brown reapplied for SSI and DIB in June, 1994. The

Commissioner again denied her application, and he subsequently

refused her request for reconsideration. Brown then sought an

administrative hearing, which she received on July 23, 1996.

At the hearing, Brown testified that she was 41 years old

and had a ninth grade education. She stated that she had only

held two jobs in her life, one as a laundry worker and the other

as a table busser, for a sum total of five years. She stopped

working altogether after suffering two back injuries within a six

week period during the winter of 1989-1990. When asked by the

ALJ if she thought she would eventually get well and return to

work, Brown responded, “I really think my working days are over.”

Brown claimed that her only income was a monthly utility check in

the amount of $95.00, though she had been receiving AFDC benefits

until three months prior to the hearing.

When asked about her medical problems, Brown asserted that

she wore a back brace at night, but had never had a back

operation because x-rays, an MRI and a CT scan of her back

consistently showed no physiological abnormalities. Up until

1
For this reason, res judicata bars Brown’s claim for DIB. See 20 C.F.R.
§ 404.957(c)(1); see also Muse v. Sullivan, 925 F.2d 785, 787 n.1 (5th Cir.
1991). Res judicata does not prove an obstacle to her SSI claim because Brown
cannot receive benefits for any month prior to the one in which she applied
for SSI, which, in this case, is June of 1994. See 20 C.F.R. § 416.335. We
therefore proceed with the analysis as to SSI benefits only.

2
January, 1996, Brown stated that she had been seeing Dr. John

Watermeier (“Dr. Watermeier”) on a monthly basis for shots and

pills to ease her pain. She claimed to be in constant pain and

testified that she could not sit for more than an hour. She also

complained of an inability to sleep more than four or five hours

a night, a problem which she attributed to her back pain.

Brown further revealed that she had just been released from

a three week stay at Kentwood Pike Psychiatric Unit (“Kentwood”).

Brown voluntarily admitted herself because she was feeling

suicidal. Though Brown’s testimony regarding her depression was

sparse, the ALJ permitted her to supplement the record after the

hearing with her medical records from Kentwood.

These records revealed that Brown suffered from major

depression with suicidal ideations, and that she had a history of

drug and alcohol abuse. In a psychiatric evaluation conducted

the day after Brown was admitted to Kentwood, Dr. M. Carmen

Palazzo wrote “[Brown] is extremely depressed . . . . This is not

only fueling but is secondarily being exacerbated by her

substance abuse problem.” This substance abuse problem involved

multiple substances. Brown divulged that she smokes 3 or 4 packs

of cigarettes a day. She also confessed to drinking a six pack

every day and two ½ pints of alcohol on Fridays; she admits that

she has been drinking alcoholic beverages every day since she was

16. Brown additionally conceded that she began using powdered

cocaine in her cigarettes for about a year when she was 36, and

then started using crack cocaine two years later. Prior to her

3
admission to Kentwood, Brown’s use of crack cocaine escalated.

No discussion of Brown’s use of drugs or alcohol occurred

during the hearing, but, on the day of the hearing, Brown signed

a document acknowledging that if the ALJ found that narcotic or

alcohol addiction was at issue, he would make findings as to its

materiality to her disability. Brown further waived her right to

20 days advance notice that the ALJ would be making findings on

this issue.

The ALJ found that Brown’s back impairment did not

independently, or in combination with any other ailment, meet

Medical Listing 105C in 20 C.F.R. part 4, subpart P, appendix I,2

and therefore, did not constitute a disability for purposes of

obtaining benefits. The ALJ further concluded that Brown was not

a credible witness. Nevertheless, the ALJ held that Brown cannot

work in the national economy because of “non-exertional

limitations stemming from her alcoholism.” Because the ALJ found

that alcohol abuse was a contributing factor material to Brown’s

disability, the ALJ held that she was not disabled in accordance

with the CAAA.

The district court affirmed the opinion of the ALJ. In an

opinion dated July 31, 1998, the court found that the retroactive

application of the CAAA was not unconstitutional, and that

substantial evidence supported the remainder of the ALJ’s

2
This section provides for a finding of disability where the claimant
suffers “[p]ain, muscle spasm, and a significant limitation of motion in the
spine” and “[a]ppropriate radicular distribution of significant motor loss
with muscle weakness and sensory and reflex loss.”

4
opinion.

Brown timely filed her appeal.

II. Standard of Review

Our review of the Commissioner’s decisions with respect to a

denial of SSI benefits is limited to ascertaining “whether (1)

the [final] decision is supported by substantial evidence and (2)

[that] proper legal standards were used to evaluate the

evidence.” McQueen v. Apfel, 168 F.3d 152, 157 n.2 (5th Cir.

1999) (first alteration in original) (quoting Martinez v. Chater,

64 F.3d 172, 173 (5th Cir. 1995) (per curiam)). “If the

[Commissioner’s] findings are supported by substantial evidence,

they are conclusive and must be affirmed.” Selders v. Sullivan,

914 F.2d 614, 617 (5th Cir. 1990); see also 42 U.S.C. § 405(g).

Substantial evidence is “‘more than a mere scintilla. It means

such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.’” Richardson v. Perales, 402

U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB,

305 U.S. 197, 229 (1938)). “[W]e may not reweigh the evidence in

the record, nor try the issues de novo, nor substitute our

judgment for that of the [Commissioner], even if the evidence

preponderates against the [Commissioner’s] decision.” Johnson v.

Bowen, 864, F.2d 340, 343 (5th Cir. 1988). “Conflicts in the

evidence are for the [Commissioner] and not the courts to

resolve.” Selders, 914 F.2d at 617. What we strive for is

“[j]udicial review [that is] deferential without being so

obsequious as to be meaningless.” Taylor v. Bowen, 782 F.2d

5
1294, 1298 (5th Cir. 1986).

III. Retroactivity

Brown argues that retroactive application of the CAAA, which

amends 42 U.S.C. § 1382c(a)(3)(J),3 violates her Fifth Amendment

Due Process rights. The Commissioner counters that Brown has no

vested rights in SSI benefits, and therefore, the CAAA may

constitutionally be applied retroactively to her.

The only authority Brown cites in support of her position is

Landgraf v. USI Film Prods., 511 U.S. 244 (1994). She focuses on

the following language: “[R]etroactive statutes raise particular

concerns. The Legislature’s unmatched powers allow it to sweep

away settled expectations suddenly and without individualized

consideration. Its responsivity to political pressures poses a

high risk that it may be tempted to use retroactive legislation

as a means of retribution against unpopular groups or

individuals.” Id. at 266. Alcoholics and drug addicts, Brown

argues, are an unpopular group now targeted by the CAAA.

On closer examination, however, Landgraf seems to provide

little support for Brown’s contention. First, the statute at

issue in Landgraf was one in which the Congressional intent with

respect to retroactivity was unclear; here, it is manifest. See

PL 105-33, § 5525, 111 Stat. 251, 624 (1997) (clarifying that the

CAAA applies to cases pending at the time of its enactment). And

3
The text of the statute at issue states: “An individual shall not be
considered to be disabled for purposes of this subchapter 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.”

6
“where the congressional intent is clear, it governs.” Kaiser

Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827, 837 (1990); see

also Landgraf, 511 U.S. at 280 (“When a case implicates a federal

statute enacted after the events in suit, the court’s first task

is to determine whether Congress has expressly prescribed the

statute’s proper reach. If Congress has done so, of course,

there is no need to resort to judicial default rules.”).

Second, the legislative history in Landgraf revealed that

President Bush had vetoed an earlier version of the statute

because of its retroactivity provisions, and Congress failed to

override the veto. Landgraf, 511 U.S. at 255-56. Here, the

legislative record indicates a clear intent to revoke cash

benefits from drug and alcohol abusers as soon as possible. See

H.R. Rep. No. 104-379, 1st Sess., at 17 (1995) (“[The result of

the current law] is a perverse incentive that affronts working

taxpayers and fails to serve the interest of addicts and

alcoholics, many of whom use their disability checks to purchase

drugs and alcohol[.]”).

Finally, as stated by the Landgraf Court, “[t]he largest

category of cases in which we have applied the presumption

against statutory retroactivity has involved new provisions

affecting contractual or property rights, matters in which

predictability and stability are of prime importance.” Landgraf,

511 U.S. at 271. But “social security benefits[] are not

contractual and may be altered or even eliminated at any time.”

United States R.R. Retirement Bd. v. Fritz, 449 U.S. 166, 174

7
(1980). Brown had no vested property or contract rights in

social security benefits, and thus, whatever deprivation Brown

suffered because of the CAAA, it was not severe enough to be

constitutionally cognizable. Accord Torres v. Chater, 125 F.3d

166 (3d Cir. 1997). We therefore affirm the district court’s

ruling that retroactive application of the CAAA is

constitutional.

IV. Burden of Proof

Having ascertained that applying the CAAA to Brown is

constitutional, we must now confront the mechanics of the

statute’s application. Brown argues that the Commissioner bears

the burden of proving that drug or alcohol abuse is a

contributing factor material to her disability. She asserts that

nothing in the CAAA alters the traditional allocation of the

burden of proof, which shifts to the Commissioner after the

claimant proves that she is unable to perform her past relevant

work. Brown maintains that he has not carried that burden. The

Commissioner did not address the argument.

The question of who bears the burden of proof on this

inquiry is one of first impression in this circuit. An

examination of where the other burdens of proof lie in these

administrative proceedings is helpful in reaching an answer. The

burden of proof in SSI administrative hearings rests

predominantly on the claimant. Specifically, the claimant must

show that she is unable “to engage in any substantial gainful

activity by reason of any medically determinable physical or

8
mental impairment . . . which has lasted or can be expected to

last for a continuous period of not less than 12 months.” 42

U.S.C. § 423(d)(1)(A). Toward that end, the claimant and the ALJ

conduct a five step analysis that asks:

1) whether the claimant is presently engaging in
substantial gainful activity, 2) whether the claimant
has a severe impairment, 3) whether the impairment is
listed, or equivalent to an impairment listed in
appendix I of the regulations, 4) whether the
impairment prevents the claimant from doing past
relevant work, and 5) whether the impairment prevents
the claimant from performing any other substantial
gainful activity.

Leggett v. Chater, 67 F.3d 558, 564 n.2 (5th Cir. 1995); see

also 20 C.F.R. § 416.920(b)-(f). The claimant bears the burden

of proof on the first four parts of the inquiry. Leggett, 67

F.3d at 564. The burden shifts to the Commissioner on the fifth

prong. Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994).

This shifting of the burden of proof to the Commissioner is

neither statutory nor regulatory, but instead, originates from

judicial practices. See generally Walker v. Bowen, 834 F.2d 635,

640 (7th Cir. 1987) (“The shifting of the burden of proof is not

statutory, but is a long-standing judicial gloss on the Social

Security Act.”).

Brown maintains that the CAAA and the regulations

implementing it, see 20 C.F.R. §416.935, create a “sixth step”

during which the Commissioner must show “whether [the claimant]

would still . . . [be] disabled if [the claimant] stopped using

drugs or alcohol.” Id. § 416.935(b)(1). Brown’s construction

derives some credence from the regulations, which mandate

9
consideration of whether drug addiction or alcoholism is a

contributing factor material to the determination of disability

only after the ALJ finds the claimant disabled at step 5.4

Nevertheless, Brown’s argument fails. First, the CAAA

amends 42 U.S.C. § 1382c(a)(3)(J), the definition of disability

for SSI. Unquestionably, proving disability is Brown’s burden,

and any amendment to the definition of disability logically

impacts her burden. Second, the regulations at 20 C.F.R. §

416.920 mandate the five part inquiry. Any addition of a sixth

step would have to amend these regulations, something that the

CAAA did not do.

Third, the Commissioner’s burden arises only from a judicial

construction of the Social Security statute. Any expansion of

this burden ought to have a compelling justification or the clear

intent of Congress undergirding it. Here Brown cites no

authority for her position, nor does any policy justification

seem to support her argument.

Finally, and most pragmatically, Brown is the party best

suited to demonstrate whether she would still be disabled in the

absence of drug or alcohol addiction. We are at a loss to

discern how the Commissioner is supposed to make such a showing,

the key evidence for which will be available most readily to

Brown. We thus hold, for the first time, that Brown bears the

burden of proving that drug or alcohol addiction is not a

4
“If we find that you are disabled . . . [then] we must determine whether
your drug addiction or alcoholism is a contributing factor material to the
determination of disability.” 20 C.F.R. § 416.935(a) (emphasis added).

10
contributing factor material to her disability.

Brown did not carry this burden. The record suggests that

Brown did not know of the change in the law until the day of the

hearing when she signed a document acknowledging that the ALJ

would be making findings about drug and alcohol addiction and

waiving advance notice of that fact. Her attorney stated at the

hearing that he “only became aware of [her hospitalization at

Kentwood] last week.” When the ALJ asked Brown’s attorney what,

in his opinion, was Brown’s major reason for disability, her

attorney responded, “[U]p until last week I thought it was

because of her back and her neck. The diagnostic impression here

is . . . she had depression. What I would like to do if I could

is have a couple of weeks to get these full records for you[.]”

Later in the hearing, her attorney again commented, “This

depression thing is something that is brand new, and I don’t know

much about it. I don’t have the medicals so it’s hard for me to

comment on the extent to which that’s disabling.” Neither

Brown’s attorney nor the ALJ ever raised the issue of chemical

dependency at the hearing. Moreover, while the medical records

from Kentwood clearly reveal that Brown suffers from multiple

chemical addictions, nowhere in these records do any of Brown’s

doctors express an opinion as to what Brown’s condition would be

if she ceased abusing drugs or alcohol. They do suggest,

however, that Brown may have multiple causes for her depression,

including stress about her finances, lack of anti-depressant

medication, chronic back pain, and abuse as a child and adult.

11
Quite simply, not a shred of evidence in the record casts any

light on whether Brown’s disabling depression would subside if

she stopped consuming alcohol and cocaine.

Normally, if Brown failed to carry her burden of proof, she

would lose. Or, if she failed to present evidence sufficient to

allow the ALJ to make a determination supported by substantial

evidence, the ALJ could order a consultative examination pursuant

to 20 C.F.R. § 416.917. But here, Brown had no notice or

knowledge that she had to carry this burden of proof. The waiver

form she signed on the day of the hearing made no mention of

burdens of proof. From her appellate briefs, Brown obviously

thought the burden was on the Commissioner. Moreover, the ALJ

neither mentioned the burden of proof in his opinion, nor ordered

a consultative examination to aid his inquiry.

In short, for the entirely understandable reason that we had

not yet spoken on this question, the ALJ failed to place the

burden of proof on Brown, and Brown failed to carry it. We

therefore vacate the portion of the district court’s opinion that

holds that substantial evidence supports the ALJ’s finding that

alcohol abuse is a contributing factor material to Brown’s

disability, and we remand for further evidentiary gathering. See

Sousa v. Callahan, 143 F.3d 1240, 1245 (9th Cir. 1998) (remanding

because the claimant was not given an opportunity to present

evidence as to whether his disability would have remained if he

stopped smoking marijuana).

How a claimant is to answer the question of whether alcohol

12
or drug abuse is a contributing factor material to his disability

is also a question of first impression in this circuit. We

therefore provide the following guidance on remand.

“Materiality,” for purposes of this inquiry, has a very precise

definition. Specifically, drug or alcohol abuse is material to a

disability if the ALJ would not “find [the claimant] disabled if

[the claimant] stopped using drugs or alcohol.” 20 C.F.R. §

416.935(b)(1). Of course, evidence sufficient to support an ALJ

finding on this issue will be strongly dependent upon the facts

in each case. In this instance, the bare record itself provides

no guidance as to Brown’s prognosis, with respect to depression,

if she ceased her chemical dependency. Though the record

suggests that Brown’s abuse of narcotics both exacerbated and was

itself fueled by her depression, that fact is not sufficient to

imply the inverse: i.e., that cessation of narcotic and alcohol

usage would abate the depression. The record simply contains too

many other possible reasons for Brown’s depression. Therefore,

assuming that Brown is still addicted to drugs and alcohol at the

time of her hearing on remand, she must introduce evidence that

supports a finding in her favor that she would still be disabled

by depression even if she stopped using drugs and alcohol. Of

course, the ALJ has the option of ordering a consultative

examination to guide his determination on remand.

V. Substantial Evidence

Brown raises a number of other arguments. She maintains

13
that the ALJ improperly discounted the testimony of her treating

physician, Dr Watermeier. She complains that the ALJ was biased.

And she insists that her back ailment meets Medical Listing 105C

in 20 C.F.R., part 4, subpart P, appendix I. The Commissioner

counters that the ALJ was entitled to discount the testimony of

Brown’s treating physician, and that the back ailment does not

meet the listing.5

After a thorough review of the record, we affirm the lower

courts with respect to all these arguments. First, “[t]he

treating physician’s opinions are far from conclusive.”

Greenspan, 38 F.3d at 237. For good cause shown, the ALJ may

discount, or even disregard entirely, the opinion of the treating

physician. Id. Here, the ALJ had good cause to disregard Dr.

Watermeier’s opinion: his assessment was unsupported by the

record. Every other doctor Brown consulted and objective medical

test Brown underwent indicated that Brown had no physiological

basis for her back complaint. Therefore, the district court did

not err in finding that substantial evidence supported the ALJ’s

opinion.

Second, Brown’s allegation of bias stems from the

following remark in the ALJ’s opinion: “[Brown’s treating

physician’s] conclusion is not substantiated by the medical

evidence and is given little weight. Apparently he was

5
The Commissioner also argues that we lack the jurisdiction to address
the question of bias because Brown did not raise the issue before the Appeals
Council. This is not true. Brown clearly and unmistakably raised the issue
of bias before the Appeals Council in a letter dated October 29, 1996. We
therefore have jurisdiction to resolve the question of bias.

14
attempting to help the claimant get benefits because of his

relationship with her.” Brown claims that this shows that the

ALJ was basing his decision on irrational factors. We disagree.

“[J]udicial remarks during the course of a trial that are

critical or disapproving of, or even hostile to counsel, the

parties, or their cases, ordinarily do not support a bias or

partiality challenge” unless “they reveal such a high degree of

favoritism or antagonism as to make fair judgment impossible.”

Liteky v. United States, 510 U.S. 540, 555 (1994); see also

Meadows v. SEC, 119 F.3d 1219, 1227 (5th Cir. 1997). The ALJ’s

finding does not amount to bias under this standard. Dr.

Watermeier had seen Brown for seven years on a monthly basis.

That Dr. Watermeier had a professional relationship with Brown is

undisputed. Nothing in the ALJ’s opinion necessitates the

assumption that the ALJ thought the relationship between Brown

and Dr. Watermeier was anything other than professional. We

therefore find that the ALJ was not biased, and that his

conclusion was supported by substantial evidence.

Finally, Brown argues that her back ailment meets Medical

Listing 105C in 20 C.F.R., part 4, subpart p, appendix I. After

reviewing the record, we agree with the district court that

substantial evidence supports the ALJ’s conclusion that her back

ailment does not meet the listing. Only two sources of evidence

support the proposition that Brown has a serious back ailment:

Brown’s testimony about her pain and Dr. Watermeier’s diagnosis.

The ALJ discredited Brown’s testimony of constant pain because

15
she engaged in daily activities like shopping, attending church,

and playing bingo; additionally, she did not appear to be in any

discomfort at the hearing. The ALJ further discounted Brown’s

testimony because every objective medical assessment revealed no

physiological basis for her pain. This was not an abuse of

discretion. See Griego v. Sullivan, 940 F.2d 942, 945 (5th Cir.

1991) (“It was . . . within the discretion of the ALJ to discount

[the claimant’s] complaints of pain based upon the medical

reports combined with her daily activities and her decision to

forgo certain medication.”).

The ALJ’s refusal to credit Dr. Watermeier’s diagnosis was,

for reasons stated above, likewise not an abuse of discretion.

Therefore, no credible evidence suggests that Brown’s back

ailment meets the listing. Finally, Brown’s attorney conceded at

that hearing that he was “not sure we have a 105c on the back.”

Thus, Brown herself knew that her ailment did not meet the

listing. We therefore affirm the district court’s decision on

this point.

VI. Conclusion

We AFFIRM the district court’s conclusion that retroactive

application of the CAAA is constitutional.

We VACATE the part of the district court’s opinion that

finds that substantial evidence supports the ALJ’s conclusion

that alcohol abuse is a contributing factor material to Brown’s

disability. We REMAND with orders to hold another administrative

hearing in which Brown will bear the burden of proving that her

16
disability would remain in the absence of chemical dependency.

And finally, we AFFIRM the district court’s findings that

substantial evidence supported the ALJ’s decision to discount Dr.

Watermeier’s testimony, that the ALJ was not biased, and that

Brown’s back ailment did not meet Medical Listing 105C in 20

C.F.R., part 4, subpart P, appendix I.

PARTIALLY AFFIRMED, PARTIALLY VACATED, and REMANDED.

17