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

952 F.2d 214, 1991 U.S. App. LEXIS 30650, 1991 WL 272391
CourtCourt of Appeals for the Eighth Circuit
DecidedDecember 24, 1991
Docket91-1665
StatusPublished
Cited by11 cases

This text of 952 F.2d 214 (James J. Lubinski v. Louis Sullivan, M.D., Secretary of Health and Human Services) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
James J. Lubinski v. Louis Sullivan, M.D., Secretary of Health and Human Services, 952 F.2d 214, 1991 U.S. App. LEXIS 30650, 1991 WL 272391 (8th Cir. 1991).

Opinions

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 [216]*216lift 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?

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Bluebook (online)
952 F.2d 214, 1991 U.S. App. LEXIS 30650, 1991 WL 272391, Counsel Stack Legal Research, https://law.counselstack.com/opinion/james-j-lubinski-v-louis-sullivan-md-secretary-of-health-and-human-ca8-1991.