                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 03-1209
                                  ___________

Stephen E. Brueggemann,                  *
                                         *
             Plaintiff - Appellant,      *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Eastern District of Missouri.
Jo Anne B. Barnhart, Commissioner        *
of Social Security,                      *
                                         *
             Defendant - Appellee.       *
                                    ___________

                            Submitted: September 9, 2003
                               Filed: November 3, 2003
                                ___________

Before SMITH, LAY, and BRIGHT, Circuit Judges.
                            ___________

BRIGHT, Circuit Judge.

       Stephen Brueggemann appeals the district court's affirmance of the Social
Security Commissioner's decision to deny his application for supplemental security
income (SSI) or disability insurance benefits (SSDI). Brueggemann argues that the
district court erred in affirming the Commissioner's improper use of Brueggemann's
substance use disorders to discredit the opinion of his treating physician. That
opinion supports Brueggemann's claim of total disability.

      The central issue on appeal is how Social Security regulations dealing with
alcohol abuse should be applied. As explained below, the Administrative Law Judge
(ALJ) did not follow the correct procedure for considering claims concerning
alcoholism in rejecting Brueggemann's application. The Commissioner argues that
any error was harmless. We disagree, and remand this case for further proceedings.

I.    BACKGROUND

       Brueggemann claimed disability because of schizophrenia, depression, anxiety
disorder, and a bad knee. Brueggemann's claims were denied initially and on
reconsideration. Brueggemann requested and received a hearing before an ALJ who
denied Brueggemann's application. The Social Security Appeals Council denied
review of the ALJ's decision, resulting in a final decision of the Commissioner.
Brueggemann appealed to the district court under 42 U.S.C. § 405(g), consented to
jurisdiction of the magistrate judge, and that court affirmed the Commissioner's
decision. We have jurisdiction over this appeal under 28 U.S.C. § 1291.

      Since the alleged onset date of his disability, Brueggemann suffered steadily
from serious mental illness, including severe depression, anxiety, and paranoid
schizophrenia with visual and auditory hallucinations. These conditions resulted in
Brueggemann's hospitalization on several occasions. Brueggemann also experienced
serious difficulties with alcohol, at times consuming up to sixteen drinks in a day.
The parties do not dispute that Dr. Mohinder Partap, the Veterans Administration
(VA) hospital psychiatrist who had been treating Brueggemann for over a year,
marked on a disability assessment form that Brueggemann's mental impairments left
him no useful ability to handle stress, and that a vocational expert (VE) subsequently
determined that no jobs are available to a person with that limitation. At the time of
the hearing before the ALJ in July, 2000, Brueggemann testified that he had not used
alcohol since May, 2000, but that his then-active symptoms included fatigue, lack of
concentration, lack of motivation, anxiety, headaches, and depression.




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II.   DISCUSSION

       We review the magistrate judge's decision de novo. Bowman v. Barnhart, 310
F.3d 1080, 1083 (8th Cir. 2002). We review the ALJ's factual conclusions to
determine whether substantial evidence on the record as a whole supports his
decision. Hildebrand v. Barnhart, 302 F.3d 836, 838 (8th Cir. 2002). We do not
defer to the ALJ's legal conclusions. See Hutchison ex rel. Hutchison v. Chater, 99
F.3d 286, 288 (8th Cir. 1996); Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006,
1014-15 (9th Cir. 2003); Binion ex rel. Binion v. Chater, 108 F.3d 780, 782 (7th Cir.
1997); Cornelius v. Sullivan, 936 F.2d 1143, 1145-46 (11th Cir. 1991). To the extent
that Brueggemann attacks the ALJ's procedure, rather than the sufficiency of
evidence, he states an allegation of legal error that we review de novo.

      A.     The ALJ's Decision

       The ALJ purported to follow the standard five-step procedure to determine
whether Brueggemann satisfied the Social Security disability standards. Jones v.
Barnhart, 335 F.3d 697, 699 (8th Cir. 2003); 20 C.F.R. § 404.1520. He first
determined that Brueggemann qualified for consideration. The ALJ next decided that
Brueggemann's limitations met the standard for severe impairments at step two. In
step three, the ALJ found that Brueggemann's impairments did not match or equal a
listed disability. In the fourth step, the ALJ considered the medical and subjective
evidence on record, including hospital notes and medical reports from both
Brueggemann's treating physician and a consulting physician appointed by the ALJ.

       The ALJ ruled that “[u]nder the current statutory scheme the use/abuse of drugs
and alcohol and the consequent affects [sic] are not permitted to be used to form a
basis for disability. Thus, little if any weight is given to the opinion of the treating
psychiatrist that the claimant has poor or no ability to deal with stress.” Add. at A-6.
This conclusion led the ALJ to exclude the evidence of disability presented by

                                          -3-
Brueggemann's treating specialist from the hypothetical posed to the VE. Based on
that restricted hypothetical, the VE reported to the ALJ that Brueggemann would be
able to do both his previous job as a restaurant grill operator and other widely
available jobs. The ALJ concluded that Brueggemann had failed to prove his
disability at either step four or step five because Brueggemann's limitations would not
prevent him from performing his past work (step four) or other widely available work
(step five). We locate the ALJ's error at step four, where he discredited the evidence
from Brueggemann's treating physician as a matter of law. This legal conclusion to
exclude essential evidence left the remainder of the ALJ's five-step evaluation as a
decision without the necessary factual foundation and constitutes legal error.

      B.     Procedures for Alcohol-Related Claims

      Since certain 1996 amendments to the Social Security Act, if alcohol or drug
abuse comprises a contributing factor material to the determination of disability, the
claimant's application must be denied. 42 U.S.C. § 423(d)(2)(C); 20 C.F.R §
404.1535.1 The burden of proving that alcoholism was not a contributing factor
material to the disability determination falls on Brueggemann. Estes v. Barnhart, 275
F.3d 722, 725 (8th Cir. 2002), citing Mittlestedt v. Apfel, 204 F.3d 847, 852 (8th Cir.
2000). However, the ALJ retains the responsibility of developing a full and fair
record in the non-adversarial administrative proceeding. Hildebrand, 302 F.3d at 838.

       If the ALJ is unable to determine whether substance use disorders are a
contributing factor material to the claimant's otherwise-acknowledged disability, the
claimant's burden has been met and an award of benefits must follow. See Social
Security Administration Emergency Teletype, No. EM-96-94 at Answer 29 (Aug. 30,

      1
        The relevant statutory provision states, “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).

                                         -4-
1996), quoted in Fastner v. Barnhart, 324 F.3d 981, 986 (8th Cir. 2003); Dru
Stevenson, Should Addicts Get Welfare?: Addiction & SSI/SSDI, 68 Brook. L. Rev.
185, 194 & nn.47-49 (2002). In colloquial terms, on the issue of the materiality of
alcoholism, a tie goes to Brueggemann.

       Undeniably, the ALJ's decision did not reflect the Commissioner's regulations
outlining how to account for substance use disorders in disability determination
proceedings. See 20 C.F.R. § 404.1535; Frank S. Bloch, Bloch on Social Security §
3.39 (2003) (“A finding of disability is, in effect, a 'condition precedent' to applying
the special rule on alcoholism and drug addiction”). The Commissioner concedes in
her brief that the ALJ's procedure did not strictly match her own regulations2 and our
precedents, arguing instead that the error was one of “opinion writing” rather than
law.




      2
          See, e.g., 20 C.F.R. § 404.1535(b):
               (b) Process we will follow when we have medical evidence
               of your drug addiction or alcoholism.
               (1) The key factor we will examine in determining whether
               drug addiction or alcoholism is a contributing factor
               material to the determination of disability is whether we
               would still find you disabled if you stopped using drugs or
               alcohol.
               (2) In making this determination, we will evaluate which of
               your current physical and mental limitations, upon which
               we based our current disability determination, would
               remain if you stopped using drugs or alcohol and then
               determine whether any or all of your remaining limitations
               would be disabling.
(emphasis added). This language plainly requires the existence of a “current
disability determination” before the substance use disorders are even considered.

                                           -5-
       In truth, the ALJ's failure to cite 20 C.F.R. § 404.1535 anywhere in his decision
was not a mere drafting oversight, but accurately reflected his failure to follow the
procedures prescribed there. The Commissioner has duly promulgated regulations
in this area, which the ALJ may not silently disregard.3 See 20 C.F.R. § 404.1535
(mandating procedures for consideration of substance use disorders); 20 C.F.R. §
404.1527 (mandating procedures for evaluating physicians' opinions); 20 C.F.R. §
404.1520a (mandating procedures for evaluating mental illness).

       The plain text of the relevant regulation requires the ALJ first to determine
whether Brueggemann is disabled. 20 C.F.R. § 404.1535(a) (“If we find that you are
disabled and have medical evidence of your drug addiction or alcoholism, we must
determine whether your drug addiction or alcoholism is a contributing factor material
to the determination of disability.” (emphasis added)). The ALJ must reach this
determination initially, as the ALJ did in Fastner v. Barnhart, 324 F.3d 981, 986 (8th
Cir. 2003), using the standard five-step approach described in 20 C.F.R. § 404.1520
without segregating out any effects that might be due to substance use disorders.4


      3
        On this appeal, the Commissioner relies primarily on Jackson v. Apfel, 162
F.3d 533 (8th Cir. 1998), to show how an ALJ ordinarily should consider substance
use disorders, suggesting that the ALJ's decision here basically complied with
Jackson. However, Jackson does not help, as that case did not specifically address
what procedures would be necessary. Jackson held that because the claimant could
not satisfy the more lenient standards in place before 1996, he would not be able to
satisfy the later, more stringent, standards, whatever procedure was applied by the
ALJ. Id. at 537-38. Therefore, the Jackson court did not need to articulate an
appropriate post-1996 procedure, and indeed, did not.
      4
        In Fastner, we affirmed the ALJ's determination that even with the effects of
alcoholism included, the claimant could not show disability. Fastner did not address
what procedure is required when a claimant succeeds in the initial five steps.
However, our holding today reaffirms our conclusion in Fastner that the proper
approach requires the ALJ not to exclude the effects of substance use disorders until
after a preliminary finding of disability has been reached.

                                          -6-
Ball v. Massanari, 254 F.3d 817, 821 (9th Cir. 2001). The ALJ must base this
disability determination on substantial evidence of Brueggemann's medical
limitations without deductions for the assumed effects of substance use disorders.
The inquiry here concerns strictly symptoms, not causes, and the rules for how to
weigh evidence of symptoms remain well established. Substance use disorders are
simply not among the evidentiary factors our precedents and the regulations identify
as probative when an ALJ evaluates a physician's expert opinion in the initial
determination of the claimant's disability. See 20 C.F.R. § 404.1527.

        If the gross total of a claimant's limitations, including the effects of substance
use disorders, suffices to show disability, then the ALJ must next consider which
limitations would remain when the effects of the substance use disorders are absent.
Pettit v. Apfel, 218 F.3d 901, 903 (8th Cir. 2000); 20 C.F.R. § 404.1535(b)(2). We
have previously noted that when the claimant is actively abusing alcohol or drugs,
this determination will necessarily be hypothetical and therefore more difficult than
the same task when the claimant has stopped. Pettit, 218 F.3d at 903. Even though
the task is difficult, the ALJ must develop a full and fair record and support his
conclusion with substantial evidence on this point just as he would on any other.5

      Only after the ALJ has made an initial determination that 1) Brueggemann is
disabled, 2) determined that drug or alcohol use is a concern, and 3) obtained
substantial evidence on the record showing what limitations would remain in the
absence of alcoholism or drug addiction, may he then reach a conclusion on whether
Brueggemann's substance use disorders are a contributing factor material to the
determination of disability. If this process proves indeterminate, an award of benefits
must follow. The alternative procedure adopted by the ALJ in this case remains


      5
       As we discuss in the text, the record reflects that Brueggemann had ceased
drinking by the time of the hearing, and had lengthy periods of sobriety during the
relevant time period.

                                           -7-
inconsistent with the regulations binding on claimants, the ALJs, and this court. The
ALJ's decision reflects legal error.

      C.     Harmless Error or Not

       The Commissioner asserts that any legal error was harmless, because
Brueggemann's alcoholism caused the mental health limitations of which he
complains. Therefore, even if the ALJ had followed the required procedure, the ALJ
would have found alcoholism as a contributing factor material to the determination
of disability. We disagree.

       The nature of the ALJ's abbreviated decision-making on the alcoholism issue
deprives us (and the Commissioner) of a solid record on this point. However, we note
that the evidence suggesting Brueggemann's disability independent of any alcohol
abuse carries multiple indicia of reliability. For example, the report and notes from
Dr. Partap, Brueggemann's treating physician and a specialist in psychiatry, rested on
over a year's worth of frequent interaction with Brueggemann, comported with
evidence from Dr. Shuman (the Commissioner's chosen examiner), and matched
Brueggemann's own testimony describing his symptoms. We remark further that
Brueggemann required in-patient hospitalization on several occasions when the
record indicates his sobriety. For example, in late June, 1999, Brueggemann may
have abstained from alcohol for the previous nine months, yet the VA psychiatrists
admitted him to the hospital to treat his depression and did not discharge
Brueggemann until five days later. One year later, in June of 2000, some evidence
suggests that Brueggemann had maintained his sobriety for the previous three
months, yet again VA doctors treated his hallucinations and homicidal thoughts as
meriting hospitalization. On discharge (after four days of in-patient treatment, during
which one assumes hospital staff did not permit Brueggemann any alcohol), Dr.
Partap assigned a Global Assessment of Functioning (GAF) score of 50 to
Brueggemann. This GAF score reflects serious limitations in the patient's general

                                         -8-
ability to perform basic tasks of daily life, and the record shows that the VE
considered a claimant with a GAF of 50 unable to find any work.

      In light of this evidence, we cannot determine whether the ALJ would have
reached the same decision denying benefits, even if he had followed the proper
procedure by giving due weight to the medical evidence without factoring in
Brueggemann's alcoholism. Therefore, the legal error was not harmless.

III.   CONCLUSION

      We reverse and remand to the district court, which in turn should remand to the
Commissioner for further administrative proceedings and for reconsideration of
Brueggemann's claims in a manner consistent with this opinion. On remand, the ALJ
may reopen the present record and accept any additional evidence deemed
appropriate.
                      ______________________________




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