Kangail, Tina v. Barnhart, Jo Anne B. ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
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No. 05-3674
TINA KANGAIL,
Plaintiff-Appellant,
v.
JO ANNE B. BARNHART,
Commissioner of Social Security,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 C 2217—Charles R. Norgle, Sr., Judge.
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ARGUED JUNE 13, 2006—DECIDED JULY 14, 2006
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Before POSNER, COFFEY, and RIPPLE, Circuit Judges.
POSNER, Circuit Judge. The plaintiff contests the denial of
social security disability benefits that she sought because
she is manic depressive (“bipolar,” in the current jargon)
and disabled by her mental illness from holding gainful
employment. Age 36 at the time of her hearing before the
administrative law judge, she had been diagnosed with
bipolar disorder more than a decade earlier; a psychiatrist
had noted a “severe depressive quality to her life, inter-
rupted by manic episodes of moderate to severe intensity.”
She also has a history of alcohol and drug abuse (cocaine),
2 No. 05-3674
however, and if such abuse is the cause of her disability, she
is barred by statute from obtaining benefits. 42 U.S.C.
§ 423(d)(2)(C); Vester v. Barnhart, 416 F.3d 886, 888 (8th Cir.
2005). The administrative law judge thought this was indeed
the case, noting that when the plaintiff stopped abusing
alcohol and drugs, in March 2000, her condition improved
and she was able to work, at least when she took the
medication prescribed for her mental illness.
When an applicant for disability benefits both has a
potentially disabling illness and is a substance abuser, the
issue for the administrative law judge is whether, were
the applicant not a substance abuser, she would still be
disabled. 20 C.F.R. § 404.1535(b)(1); Brueggmann v. Barnhart,
348 F.3d 689, 694-95 (8th Cir. 2003); Bustamonte v. Massanari,
262 F.3d 949, 955 (9th Cir. 2001); Drapeau v. Massanari,
255 F.3d 1211, 1214 (10th Cir. 2001). If so, she is deemed
disabled “independent of your drug addiction or alcohol-
ism” and is therefore entitled to benefits. 20 C.F.R.
§ 404.1535(b)(2)(ii); see Brueggmann v. Barnhart, supra, 348
F.3d at 694-95. The administrative law judge inferred from
the improvement in the plaintiff’s condition after she got
“clean” that her only problem was substance abuse, but in
so concluding he rejected abundant medical testimony
without giving adequate reasons for doing so; he “played
doctor,” as the cases say. Clifford v. Apfel, 227 F.3d 863, 870
(7th Cir. 2000); Green v. Apfel, 204 F.3d 780, 781 (7th Cir.
2000).
He thought the medical witnesses had contradicted
themselves when they said the plaintiff’s mental illness was
severe yet observed that she was behaving pretty normally
during her office visits. There was no contradiction; bipolar
disorder is episodic. The judge went so far as to attribute
bipolar disorder to substance abuse, although the medical
No. 05-3674 3
literature, while noting a positive correlation between the
two conditions and speculating that alcohol may trigger
bipolar symptoms, does not indicate that the disorder itself
can be so caused. American Psychiatric Association, Diag-
nostic and Statistical Manual of Mental Disorders 187, 354 (4th
ed. 1994); Frederick K. Goodwin & Kay Redfield Jamison,
Manic-Depressive Illness 219-25 (1990); Willem A. Nolen et al.,
“Correlates of 1-Year Prospective Outcome in Bipolar
Disorder: Results from the Stanley Foundation Bipolar
Network,” 161 Am. J. Psychiatry 1452 (2004); Marcia L.
Verduin et al., “Health Service Use Among Persons With
Comorbid Bipolar and Substance Use Disorders,” 56
Psychiatric Services 475-76 (2005).
What is clear is the reverse—that bipolar disorder can
precipitate substance abuse, for example as a means by
which the sufferer tries to alleviate her symptoms. Goodwin
& Jamison, supra, at 219-25; Li-Tzy Wu et al., “Influence of
Comorbid Alcohol and Psychiatric Disorders on Utilization
of Mental Health Services in the National Comorbidity
Survey,” 156 Am. J. Psychiatry 1235 (1999); Edward J.
Khantzian, “The Self-Medication Hypothesis of Addictive
Disorders: Focus on Heroin and Cocaine Dependence,” 142
Am. J. Psychiatry 1259, 1263 (1985). There was medical
testimony that the plaintiff has “a tendency
to indiscriminately use drugs and alcohol” during her
manic phases, which are frequent—about monthly. But the
fact that substance abuse aggravated her mental illness does
not prove that the mental illness itself is not disabling.
Brown v. Apfel, 192 F.3d 492, 499 (5th Cir. 1999); Sousa v.
Callahan, 143 F.3d 1240, 1245 (9th Cir. 1998).
The administrative law judge attached too much weight
to the plaintiff’s job experiences after March 2000, when she
stopped abusing drugs and alcohol. It is true that if she was
4 No. 05-3674
gainfully employed between then and the date of the final
hearing on her application for benefits (February 2003), she
is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(i), (b); Jones v.
Shalala, 21 F.3d 191, 192 (7th Cir. 1994); Fischer-Ross v.
Barnhart, 431 F.3d 729, 731 (10th Cir. 2005). “Gainful
employment,” however, does not include “unsuccessful
work attempts.” 20 C.F.R. § 404.1574(c); Stevenson v. Chater,
105 F.3d 1151, 1155 (7th Cir. 1997); Depover v. Barnhart; 349
F.3d 563, 566 (8th Cir. 2003); Morales v. Apfel, 225 F.3d
310, 319 (3d Cir. 2000). “Where it is established that the
claimant can hold a job for only a short period of time, the
claimant is not capable of substantial gainful activity.”
Gatliff v. Commissioner of Social Security Administration, 172
F.3d 690, 694 (9th Cir. 1999); see also Cole ex rel. Cole v.
Barnhart, 288 F.3d 149, 152-53 (5th Cir. 2002) (per curiam);
Andler v. Chater, 100 F.3d 1389, 1393 (8th Cir. 1996). And
though a job that the applicant held for more than six
months cannot be deemed an “unsuccessful work attempt,”
20 C.F.R. § 404.1574(c)(5); King v. Chater, 72 F.3d 85, 87 (8th
Cir. 1995), neither does it count as substantial gainful
employment unless the applicant earned a specified mini-
mum amount, which, so far as concerns this case, was $700
a month in 2000 and $740 a month in 2001. 20 C.F.R. §
404.1574(b)(3); Reeder v. Apfel, 214 F.3d 984, 989 (8th Cir.
2000); Byington v. Chater, 76 F.3d 246, 249 (9th Cir. 1996).
Only one of the plaintiff’s jobs after March 2000—as a deli
worker and cashier—lasted more than six months, in fact
eight months. Although it started out as a full-time job, it
soon became part time because of her mental condition, and
as a result over the entire eight-month period she earned
only about $9,900. That is very little, but since gainful
employment is presumed if the applicant earned more than
the specified monthly minimum for more than six consecu-
tive months, 20 C.F.R. § 404.1574(b)(2); see Miles v. Barnhart,
No. 05-3674 5
374 F.3d 694, 698 (8th Cir. 2004); Lewis v. Apfel, 236 F.3d 503,
515 (9th Cir. 2001), the administrative law judge was
entitled to count that job as gainful employment, and
likewise the plaintiff’s job that preceded it (as a
telemarketer) because the only reason the plaintiff gave
for leaving it was to get a higher-paying job. The conse-
quence, since an applicant cannot obtain benefits for any
period during which she was gainfully employed and
therefore not disabled, see Fischer-Ross v. Barnhart, supra, 431
F.3d at 731; Frost v. Barnhart, supra, 314 F.3d at 365-66; Jones
v. Shalala, supra, 21 F.3d at 192, is that the onset of the
plaintiff’s claimed disability cannot be dated earlier than
when she lost the cashier job, the job she held for eight
months after quitting the telemarketing job. SSR 83-20,
“Program Policy Statement: Titles II and XVI: Onset of
Disability” (PPS-100), 1983 WL 31249, at *2 (S.S.A. 1983);
Henderson ex rel. Henderson v. Apfel, 179 F.3d 507, 512-13 (7th
Cir. 1999); Armstrong v. Commissioner of Social Security
Administration, 160 F.3d 587, 590 (9th Cir. 1998).
But that leaves the remainder of the three-year period
during which she was not abusing alcohol or drugs. She
held a total of 10 jobs during the three years, and her
testimony, backed up by medical evidence, was that she left
all but the first (the telemarketing job) either because
of “blowing up,” racing thoughts, confrontations with
customers and supervisors, or other manic activity; or
because of insomnia, inability to concentrate, feeling
overwhelmed, or other symptoms of depression; or because
of “disappearing,” confusion, or other symptoms of either
pole.
The administrative law judge thought the plaintiff’s
inability to hold a job unimportant because she could
work when she took her medicine. And it is true that bipolar
disorder is treatable by drugs. But mental illness in general
6 No. 05-3674
and bipolar disorder in particular (in part because it may
require a complex drug regimen to deal with both the manic
and the depressive phases of the disease, Donald M. Hilty
et al., “A Review of Bipolar Disorder Among Adults,” 50
Psychiatric Services 205-08 (1999); Mark Oflson et al.,
“Bipolar Depression in a Low-Income Primary Care Clinic,”
162 Am. J. Psychiatry 2150 (2005)) may prevent the sufferer
from taking her prescribed medicines or otherwise submit-
ting to treatment. American Psychiatric Association, Diag-
nostic and Statistical Manual of Mental Disorders, supra, at 683;
Goodwin & Jamison, supra, at 746-62; Annette Zygmunt,
“Interventions to Improve Medication Adherence in
Schizophrenia,” 159 Am. J. Psychiatry 1653, 1662 (2002);
Stephen Magura et al., “Adherence to Medication Regimens
and Participation in Dual-Focus Self-Help Groups,” 53
Psychiatric Services 310, 313 (2002). The administrative law
judge did not consider this possibility.
In sum, the administrative law judge’s opinion does not
provide a rational basis for the denial of disability benefits
to the plaintiff. The judgment is therefore vacated and the
case returned to the Social Security Administration for
further proceedings consistent with this opinion.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-14-06