Adame v. Apfel , 4 F. App'x 730 ( 2001 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 27 2001
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
JOSE R. ADAME,
Plaintiff-Appellant,
v. No. 00-3151
(D.C. No. 98-CV-4144)
KENNETH S. APFEL, Commissioner (D. Kan.)
of Social Security,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before EBEL, KELLY, and LUCERO , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Claimant Jose Adame appeals from a district court order affirming the
Commissioner’s decision that he was not disabled before the expiration of his
insured status on September 30, 1988, and therefore was not eligible for disability
insurance benefits. We affirm.
I.
Mr. Adame filed his application for social security disability benefits on
April 28, 1995, claiming disability since December 31, 1979, due to
post-traumatic stress disorder (PTSD), depression, and anxiety and panic
disorder. 1 His application was denied initially and on reconsideration. Following
a hearing, the ALJ denied Mr. Adame’s application at step two of the five step
evaluation process, see Reyes v. Bowen, 845 F.2d 242, 243 (10th Cir. 1988),
concluding that he had no impairment except drug addiction prior to September
30, 1988, the date he was last insured for disability benefits. The Appeals
Council denied review. The United States District Court for the District of
Kansas adopted the magistrate judge’s recommendation affirming the ALJ’s
decision. On appeal, Mr. Adame, acting pro se, asserts that the ALJ erred in not
finding him disabled due to PTSD prior to 1988. He claims that the reason there
1
The Veterans’ Administration considers Mr. Adame 100% disabled. At the
time Mr. Adame filed his application for social security disability benefits, he was
receiving, and as far as we know is continuing to receive, benefits from the
Veterans’ Administration for his service-connected disability.
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is no evidence that he was experiencing PTSD symptoms before 1988 was
because he was in denial and because he was self-medicating the symptoms with
alcohol and drugs.
II.
Claimant, Jose Adame, served in Vietnam from 1969 to 1971. Prior to
entering the service, he averred that he had never used alcohol or drugs. He
began abusing both alcohol and drugs while in Vietnam. His drug and alcohol
abuse continued and increased after he was discharged. In April 1987, after being
arrested for possession of marijuana, he entered a Veterans’ Administration
rehabilitation program and, as a result, stopped using heroin, LSD, and other hard
drugs. In his group therapy progress notes, the therapist observed that Mr. Adame
continued to wear his beret, to dwell on the past, and was hostile and bitter about
the war. He stopped attending the group therapy meetings in November 1987, and
his case was closed on January 19, 1988. His participation in the group therapy
during this period was considered good.
It appears from the record that, although Mr. Adame did not return to using
hard drugs, he did continue to abuse alcohol and marijuana until 1993 when he
was hospitalized at the Veterans Administration Medical Center (VAMC) in
Dallas for a surgical repair of a Mallory-Weiss tear caused by his alcohol
consumption. The record indicates that it was during this hospitalization that he
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was first diagnosed as having PTSD. He was treated as an outpatient at the
Dallas VAMC from August 1993 through May 1995. During this period he also
completed a PTSD program at the VAMC in Topeka. The record indicates that he
has remained free of drugs and alcohol. Once he was clean and sober, however,
his PTSD symptoms intensified.
III.
Mr. Adame began excessive use of alcohol and drugs while in Vietnam.
Although his substance addictions have been in remission since 1993, the
symptoms of PTSD and his problems with coping with that disorder became
apparent at that time and have continued. According to the most recent
evaluation in the record, he is considered totally disabled because of his PTSD.
Therefore, the question this case presents is not whether Mr. Adame is totally
disabled and unable to work, but whether the ALJ erred in finding he was not
totally disabled and unable to work prior to September 30, 1988.
This court reviews the Commissioner’s decision “to determine whether the
findings are supported by substantial evidence and whether the [Commissioner]
applied correct legal standards.” Reid v. Chater, 71 F.3d 372, 373 (10th Cir.
1995) (quotation omitted).
Mr. Adame claims he became unable to work on December 31, 1979, due to
drug and alcohol abuse related to his PTSD. The record, including the 1987
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records of his court-mandated hospitalization for drug dependence, contains no
evidence that Mr. Adame was experiencing symptoms of PTSD prior to
September 30, 1988. Although his work history following his return from
Vietnam was sporadic, and he did not remain with any one job for any length of
time, he did work between 1979 and his last job in 1987. The ALJ, however,
found that Mr. Adame had not engaged in any substantial gainful activity since
1979. In denying Mr. Adame’s application the ALJ concluded that he had not
established that he had any medically determinable severe impairment other that
drug and alcohol abuse prior to September 30, 1988.
PTSD is defined as
the development of characteristic symptoms following exposure to an
extreme traumatic stressor involving direct personal experience of an
event that involves actual or threatened death or serious injury, or
other threat to one’s physical integrity; or witnessing an event that
involves death, injury, or a threat to the physical integrity of another
person; or learning about unexpected or violent death, serious harm,
or threat of death or injury experienced by a family member or other
close associate. . . . The person’s response to the event must involve
intense fear, helplessness, or horror . . . .
American Psychiatric Ass’n Diagnostic & Statistical Manual of Mental Disorders
at 424 (4th ed. 1994) (DSM-IV). The DSM-IV does indicate that PTSD can be
subject to a delayed onset. See id. at 425. The DMS-IV states that victims of
PTSD may have an increased risk of substance abuse disorders, but “[i]t is not
known to what extent these disorders precede or follow the onset of Posttraumatic
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Stress Disorder.” Id. at 425. The DMS-IV does not further mention or discuss
substance abuse as symptomatic of or related to PTSD.
“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.” 42 U.S.C. § 423(d)(2)(C). The “key factor . . . in
determining whether drug addiction or alcoholism is a contributing factor material
to the determination of disability is whether we would still find [the claimant]
disabled if [he or she] stopped using drugs or alcohol.” 20 C.F.R.
§ 404.1535(b)(1). The focus of the inquiry, therefore, is on the impairments
remaining if the substance abuse ceased, and whether those impairments are
disabling, regardless of their cause. See id.In this case, the question then becomes whether, if Mr. Adame had stopped
using drugs and alcohol prior to September 30, 1988, his PTSD would have been
disabling. Mr. Adame was in drug rehabilitation from April 1987 to November
1987. His attendance and participation in the group therapy sessions during this
time was considered good, and he reported that he was remaining drug free.
There is no indication, however, that he was not using alcohol during this period.
As the ALJ found, during this period of rehabilitation participation, he did not
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report any symptoms of PTSD nor did the professionals supervising his
rehabilitation program report observing any of these symptoms.
In this light, the ALJ’s finding that there was no substantial evidence to
support Mr. Adame’s claim that he was disabled by PTSD prior to September 30,
1988, cannot be found to be error. This, however, does not end our inquiry. We
must address the question of whether, due to his alcohol and drug abuse and
inability to hold a job, disability from PTSD can be inferred.
In November 1996, one of Mr. Adame’s treating physicians, Dr. Carol
Padilla, described Mr. Adame in a “Medical Assessment of Ability to do
Work-Related Activities (Mental)” evaluation as:
100% service connected for Posttraumatic Stress Disorder which is
based on his experiences as a combat soldier in Vietnam. He
demonstrates all major symptoms of this disorder including more
than one symptom based on persistently reexperiencing the traumatic
event(s), three or more symptoms having to do with numbing of
general responsiveness and all noted DSMIV manifestations of
increased arousal. None of these symptoms are noted before the
combat trauma.
R. Supp. Vol. I at 300. Dr. Padilla indicated that the earliest date Mr. Adame’s
PTSD existed at this severity level was 1970. Id. at 308. This is the only
indication in the record that Mr. Adame may have had PTSD prior to
September 30, 1988. In her decision, the ALJ acknowledged this statement by Dr.
Padilla, but found that there was no evidence in the record to support a finding
that Mr. Adame “had any medically determinable impairment before September
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30, 1988, other than drug dependence.” Id. at 13. In the district court’s
memorandum and order affirming the ALJ, the court recognized the substantial
weight that must be given to the opinion of a treating physician, unless the
opinion “is brief, conclusory, and unsupported by medical evidence.” R. Vol. I,
tab 11 at 9 (quotation omitted). The court, relying on Coleman v. Chater, 58 F.3d
577, 579 (10th Cir. 1995) and Hoffman v. Apfel, 62 F. Supp. 2d 1204, 1207 (D.
Kan. 1999), concluded that Dr. Padilla’s retrospective diagnosis was without
supporting evidence and therefore, insufficient. Id. at 10. We agree. 2
In Flint v. Sullivan, 951 F.2d 264 (10th Cir. 1991), a case factually on
point, the claimant was a Vietnam veteran with a history of drug addiction. In
affirming the ALJ’s denial of benefits because the claimant had not established a
disability prior to the expiration of his insured status, this court rejected the
claimant’s arguments that a finding of disability could be based on his subjective
testimony concerning the onset of PTSD and his sporadic employment history. Id.
at 267. In so doing, we stated that although “retrospective diagnosis and
subjective testimony can be used to diagnose a physical or mental condition, this
2
Even if the court accepted Dr. Padilla’s retrospective diagnosis, the
question is not whether Mr. Adame had PTSD prior to the expiration of his
insured status, but whether he was actually disabled prior to the expiration of his
insured status. See Potter v. Secretary of Health & Human Servs., 905 F.2d 1346,
1348-49 (10th Cir. 1990).
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type of evidence alone cannot justify an award of benefits.” Id. The only
evidence before the ALJ in Flint, was evidence of the claimant’s drug problem
and evidence that, although he had problems holding a job, he was willing to
work and could find employment. This court rejected the claimant’s argument
that the reason his PTSD was not diagnosed until after expiration of his insured
status was “because it existed in a latent state.” The court agreed with the
Appeals Council’s reasoning that “while the onset of the claimant’s impairments
may be traceable to events which occurred during a period of coverage, there is
no evidence to suggest that the claimant experienced disabling effects of these
impairments during the relevant period.” Id. at 267-68 (quotation omitted).
We agree with the district court that Dr. Padilla’s opinion as to Mr. Adame’s
onset date is speculative, conclusory, and without supporting evidence. Mr.
Adame made numerous trips to the VAMC during 1987 while receiving treatment
and attending group therapy sessions for his drug addiction. During this time he
never mentioned PTSD symptoms nor did any of his physicians or care givers
observe or note any PTSD symptoms. The court concluded that, although his drug
addiction and inability to hold a job provided some evidence of PTSD, they were
not “‘specific findings’ sufficient to establish a disability.” R. Vol. I, tab 11 at 10
(quoting Washington v. Shalala, 37 F.3d 1437, 1441 (10th Cir. 1994)). Moreover,
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Mr. Adame himself reported that his inability to meet the requirements of a job
was a result of his drug and alcohol addiction.
The only remaining question is whether there was sufficient ambiguity as to
the onset date of Mr. Adame’s PTSD that the ALJ was required to enlist the
opinion of a medical expert. In Reid, 71 F.3d at 373-74, this court discussed
Social Security Ruling 83-20 which defines the onset date as “the first day an
individual is disabled as defined in the Act and the regulations.” West’s Soc. Sec.
Rep. Serv. Rulings 1983-91, at 49 (1992). “Factors relevant to the determination
are the claimant’s allegation of an onset date, his work history, and the medical
evidence, with medical evidence being the primary element in determining onset
date.” Reid, 71 F.3d at 373. The Reid court recognized that it was sometimes
necessary “to infer the onset date,” and in that event, the ALJ should obtain the
opinion of a medical expert at the hearing. Id. at 374. “However, a medical
advisor need be called only if the medical evidence of onset is ambiguous.” Id.Here, the medical evidence is not ambiguous, it is just nonexistent. Therefore,
considering that a medical expert would be required to review the evidence and
render a retroactive opinion, he or she could do nothing more than infer that
because prior to September 30, 1988, Mr. Adame suffered from drug addiction and
had trouble holding a job, and because in 1993 he exhibited the symptoms of
severe PTSD, he must have had PTSD prior to September 30, 1988. Even if this
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inference could be accepted as true, it still does not answer the question of
whether Mr. Adame’s PTSD was disabling prior to September 30, 1988.
The evidence indicates that Mr. Adame’s only disabling impairment prior to
the expiration of his insured status was his drug addiction. Because, under the
applicable law and the regulations, this is not compensable, 42 U.S.C.
§ 423(d)(2)(C), 20 C.F.R. § 404.1535(b)(1), we conclude that the ALJ’s decision
denying Mr. Adame’s application for benefits was supported by substantial
evidence and in accord with correct legal standards.
The judgment of the United States District Court for the District of Kansas
is AFFIRMED.
Entered for the Court
David M. Ebel
Circuit Judge
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