Debra Vester v. Jo Anne B. Barnhart, Commissioner, Social Security Administration

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 Ves-ter’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 w^s affirmed by the district court on March 17, 2004.

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 commonsense 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 *893physical 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 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 temporary condition. (R. at 482.) At the time of Dr. Reid’s evaluation, Ves-ter 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 ivas 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, Ves-ter’s condition would improve. After hear*894ing this testimony and reviewing the reports of the examining psychologists (none of whom offered any prediction regarding the degree to which Yester’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”).

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.