                          United States Court of Appeals
                              For The Eighth Circuit

                                   ______________

                                     No. 99-2362
                                   ______________


Bob Mittlestedt,                          *
                                          *
      Appellant,                          *
                                          *
      v.                                  *         Appeal from the United States
                                          *         District Court for the
Kenneth S. Apfel,                         *         District of North Dakota
Commissioner of Social Security,          *
                                          *
      Appellee.                           *

                                 _______________

                           Submitted: February 14, 2000

                                   Filed: March 2, 2000
                                 _______________

Before BEAM, J. GIBSON Circuit Judges, and PRATT1, District Judge.

PRATT, District Judge

       Bob Mittlestedt appeals from the judgment of the United States District Court
for the District of North Dakota2 which upheld the final decision of the Commissioner


1.The Hon. Robert W. Pratt, United States District Judge for the Southern District
of Iowa, sitting by designation.

 The Hon. Patrick A. Conmy, United States District Judge for the District of North
2.
Dakota.
that he is no longer entitled to Social Security benefits based on disability because
alcoholism is a contributing factor material to the determination of his disability.

       Mittelstedt filed an application for disability benefits in July, 1984. AR at 28.
After a hearing, an Administrative Law Judge (ALJ) issued a Notice of Decision -
Denial on July 23, 1985. In this decision, the ALJ found that Mittelstedt suffers from
mitral valve prolapse, a history of asthmatic bronchitis and alcoholism. The ALJ found
that Mittelstedt is unable to do his past work, but that he has the residual functional
capacity for light work. Relying on the testimony of a vocational expert, the ALJ found
that Mittelstedt retained transferable skills from his past work and that he was,
therefore, not disabled. In spite of the fact that alcoholism was found to be a severe
impairment, the ALJ wrote: “Claimant’s alcoholism has not prevented him from
working in the past and his drinking is not so chronic as to be disabling. This record
does not show chronic involitional alcoholism which is disabling.”

       On June 16, 1986, the Social Security Administration, apparently on its own
motion, mailed a notice to Mittelstedt which informed him that he had been approved
for benefits. Addendum to Appellant’s Brief.

       Public L. No. 104-121, 110 Stat. 847 (relevant portions codified in scattered
sections of 42 U.S.C.) provides, in part, that benefits are eliminated when disability
is due to alcoholism and/or drug abuse. See Jackson v. Apfel, 162 F.3d 533, 537 (8th
Cir. 1998). Accordingly, Mittelstedt was notified that his benefits would cease January
1, 1997, due to the fact that his disability was based upon a substance addiction
disorder. The form on which Mittelstedt requested reconsideration of the determination
that his benefits would cease, indicates that his benefits were being sent to the Dakota
Center for Independent Living which was his representative payee. AR at 97.

       Mittelstedt appeared with counsel before a second ALJ on March 25, 1997. AR
at 52-95. In his decision of June 23, 1997, the ALJ found that because alcoholism is

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a contributing factor material to a finding of disability, Mittelstedt is no longer entitled
to receive disability insurance benefits. AR at 42.

       Mittelstedt completed a Disability Report (Form SSA-3368) on August 6, 1996,
on which he stated that his disabling conditions were “heart condition and epileptic
seizures.” AR at 106. Mittelstedt suffered two grand mal seizures, one in April, 1993,
and a second in August, 1993. AR at 139. A medical report dated March 16, 1996,
states that he had no seizures since August of 1993, and that he had no problems with
the medication used to control the seizures. AR at 128. A CT scan of Mittelstedt’s
brain on July 26, 1995 demonstrated no abnormalities. AR at 133.

       Mittelstedt was seen for a consultative examination by Ronald D. Tello, M.D.
on October 18, 1996. AR at 144-55. Mittelstedt told Dr. Tello that he received
benefits due to alcoholism. He told Dr. Tello that he is able to walk four blocks after
which he must stop and rest due to shortness of breath and occasional chest pain. AR
at 144. Mittelstedt reported that he had been told by a doctor that he has asthma, and
that the doctor prescribed an Alupent inhaler. Dr. Tello wrote that in 1993, Mittelstedt
saw a cardiologist who told him that he had atypical chest pain and that an
echocardiogram showed mild mitral valve prolapse. Regarding alcohol usage, Dr.
Tello wrote:
              In 1975, he began drinking and he got up to about 12 cans
              of beer a day. He had three DUIs and underwent treatment
              for alcoholism in 1984 at Fort Mead and a repeat treatment
              in 1985 at Grand Forks. He says he still drinks an occasional
              can of beer.

When Dr. Tello asked Mittelstedt why he was disabled at that time, he said it was due
to shortness of breath and back pain which began after an automobile accident3 as well
as a motorcycle accident in which he was involved in 1963. “As far as he can recall,


3.   Pages 160 to 171, which are almost unreadable, appear to be the accident reports.
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he has never had any evaluation of his back as far as x-rays or a CT scan.” AR at 145.
After a physical examination – including an EKG which was normal and did not show
any ischemic changes – Dr. Tello diagnosed: 1) History of alcoholism; 2) Moderate
obstructive ventilatory defect; 3) Chronic low back pain; 4) Mitral valve prolapse; 5)
Seizure disorder; and, 6) Chest pain. AR at 146. Concluding his report, Dr. Tello
wrote:

             Specific questions that the disability analyst wanted answers
             regarding any evidence for end organ damage secondary to
             alcoholism. I could not find any end organ damage
             secondary to the alcoholism; although, a chemistry profile for
             liver enzymes was not obtained and this may be helpful. His
             behavior, appearance, and cooperation during the interview
             and examination were all normal and he was neat and very
             cooperative. I did advise him that he should quit smoking.
             It’s unclear whether he has pure asthma with some
             developing COPD, but I suspect he has both. Currently he
             is not on very good treatment protocol for his asthma;
             although if he does continue to smoke, it would be difficult
             to try and control. It is also unclear whether his shortness of
             breath is due to his lung disease or if he does indeed have
             underlying heart disease. It may be helpful to repeat the
             stress test.

AR at 147.

      There is a letter in the record dated June 25, 1985, from Ron Borgerding,
Resident Living Supervisor II at Grafton State School, which states that Mittelstedt was
working at the school beginning April 16, 1985. The author wrote: “It is very difficult
to evaluate his attendance record due to the fact he is serving time for a recent DWI.
He is allowed out long enough to work but must return after his shift is done.” AR at
178.



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      On January 31, 1969, Mittelstedt was awarded $1,147.50 from worker’s
compensation in the State of Washington as a result of a 10% loss of function of the left
arm below the elbow. AR at 174.

        At the time of the hearing on March 25, 1997, Mittelstedt was 55 years old. AR
at 55. Mittelstedt testified that part of the reason that he began receiving disability was
his problem with alcohol. AR at 58. Mittelstedt said that he carries nitroglycerin for
his heart, but that it has been years since he used any. AR at 63-64. Mittelstedt
testified that there were times when he lost control of his bladder and bowels and soiled
himself, but when asked how many times this happened in a typical month, he did not
answer the question. AR at 65. When he was asked if there was pain associated with
any of his conditions, or if he suffered any pain on a daily basis, Mittelstedt replied in
the negative. AR at 65-66. Mittelstedt testified that he doesn’t have any social life
because all of his old friends are found in bars and that he is unable to drink because
of his medication. AR at 67. Mittlestedt testified that he suffered from depression but
not “until I started having problems with Social Security.” AR at 69. Mittlestedt
described a job he had for six or seven months as a personal care attendant at “Grafton
School,” and said that he lost the job due to losing his driving privileges because of a
drunk driving charge. AR at 70-71. When he was asked by the ALJ how long it had
been since he drank, Mittlestedt responded: “I mean I haven’t had a drink now for
probably 3, 4 weeks.” AR at 76.

        In his decision of June 23, 1997, following the familiar five step sequential
evaluation process, the ALJ found that Mittlestedt’s only severe impairment is
alcoholism. AR at 41. The ALJ held that section 105 of Public Law 104-121 mandates
that, since alcoholism is a contributing factor material to a finding of disability, as of
January 1, 1997, Mittlestedt was no longer entitled to disability insurance benefits
under Title II of the Social Security Act. AR at 42.

                                     DISCUSSION

              “Our review is limited to whether the Commissioner’s
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               denial of benefits is supported by substantial evidence in
               the record as a whole.” Terrell v. Apfel, 147 F.3d 659, 661
               (8th Cir. 1998) (citations omitted). Substantial evidence
               exists if a reasonable mind would find such evidence
               adequate. Id. A reviewing court “may not reverse merely
               because substantial evidence would [also support] an
               opposite decision.” Id. (Internal quotations and citations
               omitted).

Jackson v. Apfel, 162 F.3d 533, 536-37 (8th Cir. 1998). In short, a reviewing court
should neither consider a claim de novo, nor abdicate its function to carefully analyze
the entire record. Willcutts v. Apfel,143 F.3d 1134, 1136 (8th Cir. 1998) quoting
Brinker v. Weinberger, 522 F.2d 13, 16 (8th Cir. 1975).

       In Jackson, 162 F.3d at 537, the Court explained that the Contract with America
Advancement Act of 1996, Pub.L. 104-121, 110 Stat. 847 (relevant portions codified
in scattered sections of 42 U.S.C.), in pertinent part, eliminates benefits for disabilities
due to alcoholism and/or drug abuse. The Commissioner’s regulations, at 20 C.F.R.
§ 404.1535 implement the statute. This regulation states:

              (a) General. 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.

              (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

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             you stopped using drugs or alcohol and then determine
             whether any or all of your remaining limitations would be
             disabling.

             (i) If we determine that your remaining limitations would
             not be disabling, we will find that your drug addiction or
             alcoholism is a contributing factor material to the
             determination of disability.

             (ii) If we determine that your remaining limitations are
             disabling, you are disabled independent of your drug
             addiction or alcoholism and we will find that your drug
             addiction or alcoholism is not a contributing factor material
             to the determination of disability.

        The first question, then, is whether there is medical evidence of alcoholism.
Although the record of this case is somewhat sketchy, we hold that there is sufficient
medical evidence of alcoholism to proceed with the regulatory process. It does not
appear that any of the medical records available to the first ALJ, nor the records
available to the adjudicator who made the award of benefits, were available to the
second ALJ. Nor, is it clear to the Court why Mittlestedt was awarded benefits in the
first place, although the Commissioner points to a diagnostic code which he states
indicates alcoholism was the basis of the award. See AR at 96. The Commissioner’s
argument is supported by the fact that the same form lists the Dakota Center for
Independent Living as the representative payee for Mittelstedt’s benefits. Id.
Furthermore, Mittlestedt was aware that his claim was being reviewed pursuant to the
alcoholism statute. See AR at 97 (form on which Mittlestedt requested reconsideration
of the cessation of his benefits due to alcoholism); AR at 50 (Addendum To Hearing
Notice which stated that the specific issue to be decided at the hearing was whether or
not drug addiction and/or alcoholism is a contributing factor material to the
determination of disability); and, AR at 93 (ALJ makes clear to Mittlestedt’s counsel
that the case was not a cessation case under 20 C.F.R. § 1594, but under the provisions
of Public Law 104).

      Dr. Tello wrote that Mittelstedt began drinking in 1975, that he had undergone
                                          -7-
alcohol treatment in 1984, that he had three DUIs, and that he still drinks an occasional
can of beer. Dr. Tello diagnosed a history of alcoholism. Dr. Tello’s diagnosis is
supported by the evidence from Ron Borgerding, Mittelstedt’s supervisor at Grafton
State School, that Mittelstedt was incarcerated for DWI, and by Mittelstedt’s testimony
that he lost that job due to DWI. The diagnosis of alcoholism is supported by
Mittelstedt’s testimony that he does not socialize because all of his old friends gather
in bars. The diagnosis is further supported by Mittelstedt’s admission to the ALJ that
he is still drinking.

       It is unfortunate that the record does not contain more medical evidence
regarding the reason why Mittelstedt was awarded benefits in the first place.
Nevertheless, for all of the above stated reasons, the Court is satisfied that alcoholism
was at least one of the reasons, if not the primary reason, why Mittelstedt was awarded
disability benefits.

       The next question is whether or not Mittelstedt would be found disabled even if
he ceased using alcohol. The ALJ found, and the record supports, that but for
alcoholism, he has no severe impairments. The Court finds no medical evidence in this
record to refute the ALJ’s finding. Mittelstedt’s seizure disorder, as well as his heart
and respiratory conditions are controlled by medication. “Impairments that are
controllable or amenable to treatment do not support a finding of total disability.”
Hutton v. Apfel, 175 F.3d 651, 655 (8th Cir. 1999). Likewise, the lack of any
medically necessary restrictions in the record supports the ALJ’s finding that
Mittlestedt’s impairments are not severe. Melton v. Apfel, 181 F.3d 939, 941 (8th Cir.
1999) (testimony undermined by, among other reasons, the lack of significant
restrictions placed on his activities by his doctors). The record contains no medical
evidence whatsoever to support Mittlestedt’s testimony regarding side effects of his
medication or other complaints.

      It is Mittlestedt’s burden to establish his severe impairments at step two of the
sequential evaluation. Wilcutts v. Apfel, 143 F.3d at 1137 (burden of proof shifts to the
Commissioner at step five of the sequential evaluation). Furthermore, the Fifth Circuit
                                           -8-
has held that it is the claimant who bears the burden of proving that drug or alcohol
addiction is not a contributing factor material to the disability. Brown v. Apfel, 192
F.3d 492, 498 (5th Cir. 1999). In this case, Mittlestedt, who was represented by
counsel, made no effort whatsoever to provide any medical evidence to support his
claim of disability or in support of his contention that alcoholism is not a contributing
factor material to his disability. He did not even request that the ALJ order additional
consultative examinations of any kind.

       Mittlestedt argues that the ALJ should have evaluated the case pursuant to 20
C.F.R. § 404.1594. That regulation governs the procedures for evaluating a continuing
disability review. Under those circumstances, a claim must be reviewed periodically
to determine if medical improvement has resulted in the claimant’s ability to work
again. Although, under that procedure, it must be determined if there has been any
medical improvement related to the individual’s ability to work, the Social Security
Disability Benefits Reform Act of 1984 (1984 Act), Pub.L. No. 98-460, 98 Stat. 1794
(1984), made it clear that the determination was to be made on a neutral basis without
any initial inference as to the presence or absence of disability being drawn from the
fact that the individual was previously found to be disabled. See Polaski v. Heckler,
751 F.2d 943, 946 (8th Cir. 1984). In this case, the Commissioner reviewed the case
pursuant to a congressional mandate to terminate benefits for those who were receiving
them because of alcoholism or drug addiction.

      For all of the foregoing reasons, the judgment of the District Court is hereby
affirmed.

      A true copy.

          Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT



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