David Rutherford v. Richard S. Schweiker, Secretary of Health and Human Services, Defendant

TIMBERS, Circuit Judge,

dissenting:

I regret that I am unable to concur in Judge Van Graafeiland’s characteristically well written majority opinion. In dealing with one of the most disabling illnesses of our society — chronic alcoholism, I think it is critical that proper legal standards be applied in evaluating the evidence before denying or cutting off Social Security benefits. In my view neither the Secretary nor the ALJ applied proper legal standards here. I therefore respectfully dissent from the majority’s affirmance of the judgment below.

Although the Secretary’s decision ordinarily will be upheld if supported by substantial evidence, application of improper legal standards in evaluating the evidence alone is ground for reversal. See Marcus v. Califano, 615 F.2d 23, 27 (2 Cir. 1979); Northcutt v. Califano, 581 F.2d 164, 167 (8 Cir. 1978). I shall confine my discussion to the legal standards applied by the ALJ. Consequently I find it neither necessary nor appropriate to reach the substantial evidence issue addressed by the majority.

In my view the ALJ failed to apply proper legal standards in two respects: first, he improperly evaluated the evidence concerning appellant’s alcoholism; and second, he failed to analyze sufficiently the interrelationship of the various factors relevant to a determination of appellant’s disability. I shall discuss each of these in order.

*64 I.

APPELLANT’S ALCOHOLISM

All of the exhibits submitted prior to and during the administrative hearing established that appellant is an alcoholic. Furthermore, although there was evidence that at times he had abstained temporarily from drinking, all of the doctors who examined him recognized that he is a chronic alcoholic. This diagnostic consensus apparently persuaded the ALJ that appellant’s “chief limitations are the result of alcohol abuse.” App. at 7. The ALJ then proceeded, however, to apply several inappropriate criteria in determining the relationship of appellant’s alcoholism to his disability claim.

First, the ALJ remarked that “[sjince the [appellant’s] alleged seizures, or black-out spells, are alcohol induced, it is apparent that simple abstinence would remove this disorder.” App. at 6. This simplistic approach to a serious illness has been sharply criticized by courts and represents no more than the ALJ’s nonexpert conclusion. See, e.g., Adams v. Weinberger, 548 F.2d 239, 244 (8 Cir. 1977) (ALJ should have focused on alcohol addiction and voluntary ability to control its use rather than on the inability to abstain from alcohol consumption); Griffis v. Weinberger, 509 F.2d 837 , 838 n.1 (9 Cir. 1975) (“Some alcoholics can stop; more cannot.”). To the extent that the ALJ’s conclusion reflected his own personal predilections about an individual’s ability to abstain from drinking, they were wholly inappropriate.

Second, the only substantive reference in the ALJ’s findings to why appellant’s alcoholism was not a sufficient disability was the following:

“The medical evidence establishes that the claimant’s seizure disorder is a result of alcohol abuse, that the claimant is in an alcohol treatment program, and that the claimant has no significant secondary damage because of alcoholism.” App. at 7. 1

Only the latter two clauses provide any possible indication of the standards the ALJ might have used to evaluate appellant’s alcoholism. I shall discuss each of these in order.

Participation in Alcohol Treatment Program.

Although the ALJ never explained how appellant’s participation in an alcohol treatment program is relevant to the ALJ’s conclusion that appellant was not disabled, it appears that the ALJ viewed this involvement as indicative either of appellant’s ability to control his drinking or of the likelihood that appellant’s drinking problems will diminish with continued treatment.

In my opinion, it is unnecessary to pursue further either construction of the ALJ’s statement. This is so because appellant was required by statute to undergo treatment at an institution recognized by the Secretary as a prerequisite for continued eligibility for Supplemental Security Income (SSI) benefits. See 42 U.S.C. § 1382 (e)(3)(A) (1976). 2 Consequently this fact has no possible legal relevance to the question of whether appellant is disabled. It seems hardly fair or sensible to penalize appellant for participating in an alcohol treatment program in compliance with the statutory requirements.

*65

Significant Secondary Damage.

The ALJ also relied on the apparent absence of evidence that appellant had sustained “significant secondary damage because of alcoholism.” App. at 7. Although such a medical finding in the past has led courts to bar alcoholics from obtaining SSI benefits, chronic addiction and loss of voluntary ability to control the use of alcohol has been recognized increasingly as a basis for disability, regardless of organ damage. See Adams v. Weinberger, supra, 548 F.2d at 243 (“By focusing on ‘the absence of evidence that claimant has significant organ damage that precludes work activity,’ the Administrative Law Judge and Appeals Council applied an improper legal standard .... ”); Griffis v. Weinberger, supra, 509 F.2d at 838 (“The presence or absence of ‘underlying’ physical or mental impairment as accompaniments or products of the disease may be relevant evidence relating to the decision of [whether the claimant is disabled], but absence of them is not controlling.”).

Accordingly, in my view, the ALJ should have gone beyond mere recitation of an absence of significant secondary damage and should have evaluated appellant’s alcoholism according to his voluntary ability to control its use.

II.

INTERRELATIONSHIP OF FACTORS

In addition to evaluating appellant’s alcoholism according to improper legal standards, the ALJ failed to interrelate adequately the various factors that are commonly applied in SSI cases.

Four factors traditionally are considered in determining whether a disability exists: (1) objective medical facts and clinical findings; (2) diagnoses and medical opinions of examining physicians; (3) subjective evidence of pain and disability as described by the claimant and corroborated by others who have observed him; and (4) claimant’s age, educational background, and work history. Underwood v. Ribicoff, 298 F.2d 850, 851 (4 Cir. 1962). These factors must be considered in combination with each other. Id.; see also DePaepe v. Richardson, 464 F.2d 92, 94 (5 Cir. 1972) (“It is obvious that all of these elements of proof must be considered together and in combination with each other, and not just one or two with the others excluded.”); Rodriguez v. Califano, 431 F.Supp. 421, 423 (S.D.N.Y.1977) (“All of these elements of proof must be considered together and in combination with each other.”); Richards v. Mathews, 424 F.Supp. 474, 478 (W.D.N.Y.1977) (the four elements should be considered interrelatedly). It is not sufficient therefore under established law merely to consider each factor in isolation (which the ALJ did here) without analyzing the collective effect of the several variables (which the ALJ did not do here).

As stated above, the ALJ did address separately each of these four factors in his decision. He did review some of the medical findings and diagnostic opinions, mentioned that appellant testified at the hearing about “severe pain from arthritis and severe headaches,” App. at 6, and briefly summarized appellant’s educational and work background. The ALJ made no effort, however, to interrelate these separable items and assess their total impact on the question of appellant’s disability. For example, appellant is a functional illiterate who has worked at primarily unskilled occupations. In addition to his alcoholism, he suffers from arthritis, diabetes, dizziness and frequent headaches. Furthermore, he experiences blackouts, a condition that has been connected to appellant’s alcoholism. The ALJ has left wholly unanswered the critical question of how these facts, when analyzed in combination, affect appellant’s disability. Surely the combined effect of appellant’s age (48 at the time the Social Security Administrator determined that he no longer was sufficiently disabled to warrant continued SSI benefits), illiteracy, and assorted illnesses would more likely lead to a finding of disability than if each item were examined in isolation. See Dillon v. Celebrezze, 345 F.2d 753, 757 (4 Cir. 1965) (criticizing the fragmentation of the claimant’s ailments).

*66 In urging a remand to enable the ALJ to make some effort at analyzing the interrelationship of the four Underwood factors, I am not suggesting that the ALJ did not carefully consider the testimony and exhibits. In his opinion, the ALJ said that he “carefully considered all the testimony given at the hearing and the documents described in the List of Exhibits attached to [his] decision.” App. at 6. There is no reason to question this assertion. See Miles v. Harris, 645 F.2d 122, 124 (2 Cir. 1981).

The point, however, is that it is imperative that an ALJ satisfactorily make clear in his decision that he has applied the appropriate analytical formula in reaching his conclusion. In this case, the ALJ has not adequately demonstrated that he has properly applied the four factor test that is appropriate in SSI cases..

I would vacate the judgment below and remand the case to the district court with instructions to remand the case to the Secretary for reconsideration in light of the correct legal standards outlined above. From the majority’s refusal to do so, I respectfully dissent.

. The ALJ’s discussion of appellant’s alcoholism was especially significant in this case because the ALJ asserted that alcoholism was appellant’s chief limitation. App. at 7. He accordingly gave less weight to appellant’s other medical problems.

. 42 U.S.C. § 1382 (e)(3)(A) in relevant part provides:

“No person who is an aged, blind, or disabled individual solely by reason of disability ... shall be an eligible individual ... if such individual is medically determined to be a drug addict or an alcoholic unless such individual is undergoing any treatment that may be appropriate for his condition as a drug addict or alcoholic ... at an institution or facility approved ... by the Secretary ... and demonstrates that he is complying with the terms, conditions, and requirements of such treatment____” (emphasis added).