James J. Lubinski v. Louis Sullivan, M.D., Secretary of Health and Human Services

BEAM, Circuit Judge.

James J. Lubinski appeals the decision of the district court affirming the final decision of the Secretary of Health and Human Services denying social security disability insurance benefits and supplemental security income (SSI) benefits. We affirm.

I. BACKGROUND

Lubinski is a 49-year-old former truck driver. He completed the tenth grade in school but is now working toward a GED in a state program. He was last insured for disability benefits on September 30, 1985. He applied for disability insurance benefits on November 5, 1987, alleging that the onset of his disability was December 31, 1981. His application for SSI benefits was submitted on January 22, 1988. Lubinski claims that he has a painfully severe and chronic low back condition, high blood pressure controlled by medication and that he suffers from alcoholism.

Both applications were denied initially and upon reconsideration. Lubinski requested a hearing before an administrative law judge (AU) which hearing was conducted on September 9, 1988. The record, however, remained open for additional filings until April 1, 1989.

The AU on May 24, 1989, issued a decision that denied all benefits. The AU found that Lubinski suffered from degenerative disc disease of the lumbar spine, hypertension controlled by medication and alcohol addiction for which he had not lost voluntary control. The AU further determined that Lubinski maintained the residual functional capacity to engage in his past relevant work and, thus, that he was not disabled within the meaning of the Social Security Act. The Appeals Council affirmed and Lubinski appealed to the district court.

The district court referred motions for summary judgment filed by each party to a magistrate judge. The magistrate judge conducted a thorough examination of the administrative record and submitted a well-reasoned report and recommendation to the district court. The magistrate judge disagreed with the AU with regard to Lubin-ski’s ability to return to past relevant work. The magistrate also recognized that the AU had failed to state that he placed the burden of proof on the government insofar as establishing the availability of jobs in the national economy that Lubinski could perform with his limitations. Nonetheless, the magistrate found that the evidence so strongly supported a finding that Lubinski could do light or medium work that he recommended affirmance of the denial of benefits. The district court, upon de novo review, adopted, over the objections of Lu-binski, the recommendations of the magistrate judge. This, of course, resulted in a grant of summary judgment for the Secretary affirming the decision to deny benefits. We agree with this decision.

II. DISCUSSION

Plaintiff was born on December 4, 1941. He is divorced and has six children. His past work as a truck driver required him to travel over a five state area. In a vocational report to Social Security, plaintiff stated that his work involved heaving, lifting and pushing in the delivery of appliances, boilers, large pieces of furniture and, later, one-thousand-pound rolls of paper. The evidence indicated that his past relevant work as a truck driver required him to regularly lift fifty pounds and to occasionally lift one hundred pounds. The AU found, instead, that Lubinski had the capacity to regularly lift twenty-five pounds and occasionally lift fifty pounds. The magistrate judge was correct, therefore, in recommending reversal of the past relevant work conclusion reached by the AU.

The low back problem, by itself, clearly does not, from the evidence, disable Lubin-ski to the extent that he is unable to perform any jobs in the national economy. It is the combination of low back trouble and alcoholism which we must consider. The Secretary has the burden of proving that Lubinski, with his multiple problems, can perform other work, Pope v. Bowen, 886 F.2d 1038, 1040 (8th Cir.1989), and the AU usually must acknowledge this burden, id.

We determine that the findings and conclusions of the magistrate judge and the district court relating to degenerative disc disease and controlled hypertension are more than sufficient for our purposes here. We will, therefore, consider in detail only the evidence of alcohol addiction and its control, if any, by Lubinski.

At the outset, we recognize that the AU failed to acknowledge the Pope burden of proof. Failure to recognize the source of the burden is error unless the evidence is strong enough to support the outcome despite the lapse. Id. We find that the exception applies. The evidence was sufficient.

We agree with the AU, the magistrate judge and the district judge that Lubinski is addicted to alcohol. The total test, however, is not addiction alone. It is addiction coupled with a loss of the ability to voluntarily control the use of the substance. Adams v. Weinberger, 548 F.2d 239, 244 (8th Cir.1977). And, the lack of control, if any, must be considered in the context of the inability to engage in substantial gainful activity. Id. at 243.

The record establishes that Lubinski, at earlier times not particularly relevant to our inquiry, was addicted to alcohol and was out of control in its use. Prior to 1976, he drank at least one quart of brandy each day. This led, among other things, to divorce and unemployment. Lubinski told James F. Kegel, M.D., on March 31, 1975, that he was greatly depressed at the separation from his wife and that she “will not take [me] back if [I do] not quit” drinking. Administrative Record at 160. Even with this onerous consequence at hand, his drinking continued. Later, he recounted that because of his drinking, his two daughters were married without his being invited to the weddings and that they had babies which he did not find out about until many months later. Id. at 129. In 1975, however, he entered a drug dependency program at St. Mary’s Hospital in Minneapolis, id. at 216, and drank nothing for one and one-half years after completing the treatment, id. at 51. He has also totally quit drinking for five or six months at a time on four or five different occasions since that time. Id. at 52. Although he was charged or convicted of driving while being intoxicated (DWI) several times, he stated at the time of the 1988 hearing that he had not had any DWI’s in about ten years. Apparently none of the DWI’s occurred while Lubinski was on the job because he testified that he “never drank on a job,” and the evidence in the record is not to the contrary. Id. at 46-47. He did admit, however, that tardiness and absenteeism resulting from drinking binges resulted in his termination from various work assignments. Id. at 65. Lubinski testified that since 1980 to 1981 he does not “drink during the week,” id. at 48, his drinking being confined to the weekend, id. On the other hand, he did admit that in early 1988, he would stop in bars to see friends during the “happy hour” and they would buy him drinks. Id. at 49. He stated that he quit this after a short period of time because he did not have money to reciprocate. Id. To sum up, Lubinski testified:

Q: [AU] Would you say you have a serious drinking problem now?

A: [Lubinski] No.

Q: How long has it been since you’ve had a serious drinking problem?

A: I’d say when I was getting divorced there and—

Q: When was that?

A: —and after that—

Q: When did you get divorced?

A: ’76. That’s when I got out of treatment.

Id. at 51.

It may be argued that Lubinski tends to minimize his problems with alcohol and that he contradicts himself on how much control he has over the timing and amount of alcohol use. For instance, on February 28, 1989, Lubinski told Sunanda Apte-Ka-kade, M.D., according to a medical report, that he had not had any drinks for the past six months. Id. at 211. Nine days later, Gary L. Fischler, Ph.D., dictated a report in which he stated that Lubinski told him, during a March 2 evaluation, that he drinks two beers a week “just to say hi to someone in a bar.” Id. at 216. However, he also told Dr. Fischler that “he does not drink because he cannot afford to” and he denied to Fischler that he had significantly abused alcohol “in the last several years.” Id. Given the possible variation in the framing of the questions, these answers seem to be generally consistent with his hearing testimony given under oath. In any event, the AU’s conclusions on alcohol addiction and its control are supported by substantial evidence in the record as a whole, as required by our cases.

Finally, Lubinski is critical of the four hypothetical questions propounded to the vocational expert. The burden was on the Secretary to establish, through the vocational expert, that there are jobs in the national economy that Lubinski is capable of performing. It is true that a vocational expert’s response to a hypothetical question provides substantial evidence only where the hypothetical question sets forth with reasonable precision the claimant’s impairments. See Jelinek v. Bowen, 870 F.2d 457, 461 (8th Cir.1989). The hypothetical questions in this case met the Jelinek test. There can be no dispute that the questions assumed physical disabilities and a pattern of alcohol consumption consistent with the hearing record. The questions were, in fact, framed as favorably to Lubinski as was possible from the hearing evidence. See Administrative Record at 72-73. The question remains, was there other evidence in the record as a whole, inconsistent with the hearing record, that should have been included? We think not. If anything, the hypothetical question overstates, in Lubin-ski’s favor, the deleterious effects of his alcohol consumption shown by the record as a whole. We have examined, as we must, the entire record and we find nothing that presents a more damaging picture of Lubinski’s alcohol consumption and control than that information included in the hypothetical questions. While the inquiries might have included things like his heavy drinking prior to 1976, his discontinuance of visits to happy hours because he had no money to buy his rounds of drink and speculation on his optimistic frame of mind when it comes to control of the quantity and timing of alcohol intake, our cases do not and should not require such particularization or theorization, notwithstanding Jel-inek. In any event, the early drinking was included when the ALJ hypothetically directed the vocational expert to take into account “the pattern [of drinking] that [Lu-binski] described [at the hearing] today.” Id. at 72. Obviously the expert had heard Lubinski and was familiar with his abundant testimony with regard to his pre- and post-1976 drinking. Accordingly, we hold that the evidence adduced with regard to alternative employment was sufficient.

III. CONCLUSION

The findings and conclusions of the AU, with the one exception noted, are supported by substantial evidence in the record as a whole. The final order of the district court is, accordingly, correct and we affirm.