                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 99-3707
                                    ___________

Eliot Brown,                             *
                                         *
               Appellant,                *
                                         *
      v.                                 * Appeal from the United States
                                         * District Court for the
Larry G. Massanari,1 Acting              * Western District of Missouri.
Commissioner of Social Security          *
Administration,                          *      [UNPUBLISHED]
                                         *
               Appellee.                 *
                                    ___________

                            Submitted: March 7, 2001
                                Filed: May 11, 2001
                                    ___________

Before HANSEN, MORRIS SHEPPARD ARNOLD, and BYE, Circuit Judges.
                          ___________

PER CURIAM.

      Eliot Brown applied for disability insurance benefits and supplemental security
income in August and October 1995, alleging he had been disabled since May 1995
due to a head injury in 1987, seizures, anxiety attacks, and severe depression. At a
hearing before an administrative law judge (ALJ), Brown testified that he had


      1
       Larry G. Massanari has been appointed to serve as Acting Commissioner of
Social Security, and is substituted as appellee pursuant to Federal Rule of Appellate
Procedure 43(c)(2).
previously worked as a sacker, fry cook, rate clerk, and sales clerk; he was terminated
from these positions, each of which he held for four months or less.

       Following his head injury at the age of twelve, Brown underwent a series of
hospitalizations, requiring intensive rehabilitation procedures, and treatment for
seizures and psychiatric problems. Between 1987 and 1989, Brown’s diagnoses
included post-traumatic seizures, mood disorder, major depression, passive-aggressive
personality disorder, and conduct disorder. Brown’s medical records document
frequent emergency room visits, hospital admissions, and outpatient treatment between
1994 and 1996. His diagnoses during this period included seizure disorder, alcohol
abuse, alcohol intoxication, malingering false-seizure activity, anxiety disorder,
addiction-personality disorder, alcohol withdrawal, and depression.

       In a July 1997 decision, the ALJ concluded the medical evidence established that
Brown had an organic mental disorder with seizure activity, which met the
requirements of Listing 12.02, see 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.02 (2000),
but only because of his substance addiction disorder. After noting numerous references
in medical records to Brown’s severe alcohol problem and its effects on his seizures,
the ALJ specifically discounted the opinion of neuropsychologist Dale A. Halfaker,
Ph.D., who had concluded that (1) Brown possessed a seizure disorder associated with
his brain injury, a disorder that was exacerbated, but not solely caused, by his alcohol
use; and (2) he additionally suffered from dementia and personality change due to head
trauma, major depressive disorder, alcohol abuse in early partial remission, and a
personality disorder with passive-aggressive features. The ALJ determined that, but
for his substance addiction disorder, Brown retained the residual functional capacity
to perform his past relevant work. In an attached psychiatric review technique form,
the ALJ indicated the record evidence showed that Brown exhibited organic, affective,
personality, and substance-addiction disorders.
       In declining Brown's request for review, the Appeals Council considered
additional medical records, including a September 1997 report by Chi-Wan Lai, M.D.,

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in which Dr. Lai opined that Brown suffered from medically intractable seizures, and
that he did not believe Brown’s type of seizure activity could be due to alcohol alone.
The district court affirmed the denial of benefits.

       Brown appeals, arguing the ALJ erred in finding his alcohol use was material to
his disabling impairment, and in not considering the effect of Brown’s mental
limitations on his residual functional capacity to perform his past relevant work.
Subsequent to filing this appeal, Brown also moved for remand to the Commissioner
on the basis of new material evidence, developed in December 1999, consisting, inter
alia, of a letter written by Lizbeth D. Craven, M.D., stating that Brown suffered from
uncontrolled seizures, with an onset date of October 28, 1987. Dr. Craven opined that
Brown’s seizures, although exacerbated by alcohol, were caused by his closed head
trauma. Brown contends that this new evidence was unavailable until he was granted
Medicaid benefits on September 7, 1999, and that it is material because there is a
reasonable likelihood that it would have changed the Commissioner’s determination.

      When the Appeals Council has considered new and material evidence and has
declined review, we must decide whether the ALJ’s decision is supported by
substantial evidence on the record as a whole, including the new evidence. See
Mackey v. Shalala, 47 F.3d 951, 953 (8th Cir. 1995).

       If an ALJ finds that a claimant is disabled, and the ALJ has medical evidence of
the claimant’s substance addiction, he must determine whether the addiction is a
contributing factor material to the determination of disability. See Rehder v. Apfel, 205
F.3d 1056, 1059-60 (8th Cir. 2000). A “key factor” in determining whether substance
addiction is material is whether the claimant still would be found disabled if he stopped
using the substance. See 20 C.F.R. §§ 404.1535(b)(1), 416.935(b)(1) (2000). To
make this finding, the ALJ first must determine which of the claimant’s limitations
would remain if he refrained from drug or alcohol use, and then he must determine


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whether these remaining limitations would be disabling. See Rehder, 205 F.3d at 1060.



       We conclude that the ALJ failed properly to determine what physical and mental
limitations would remain if Brown were not using alcohol. Although he referred to the
substantial evidence of Brown’s alcohol abuse, the ALJ pointed to no medical opinion
supporting his determination that Brown was capable of performing his past relevant
work as long as his addiction disorder was controlled. See Pettit v. Apfel, 218 F.3d
901, 903-04 (8th Cir. 2000) (ALJ’s factual findings, which failed to examine degree to
which claimant’s depression would exist absent his drinking or to address whether
depression was controllable with medication, were insufficient for review). Record
evidence suggests that Brown’s alcohol abuse may exacerbate--or even trigger--his
seizure disorder, however, the assessments of Drs. Halfaker and Lai suggest that the
disorder exists independently of alcohol abuse. Moreover, the record contains evidence
that Brown had a mental disorder prior to his alcohol abuse, and the ALJ’s own
psychiatric review technique form indicates that Brown had affective and personality
disorders of listing-level severity, yet the ALJ’s decision states only that Brown's
organic mental disorder meets the listing because of his substance addiction disorder.



        Furthermore, Dr. Craven’s statement, developed after the Appeals Council’s
denial of review, arguably relates to Brown’s condition for the relevant period, and
could provide a sufficient basis to determine that Brown still would be found disabled
if he stopped drinking. See Jones v. Callahan, 122 F.3d 1148, 1154 (8th Cir. 1997).

       Accordingly, in light of this new evidence, and our conclusion that the ALJ failed
to determine which of Brown’s limitations would remain if he refrained from alcohol
use, we reverse the judgment of the district court and remand with instructions for the
district court to remand to the Commissioner for further fact-finding.


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A true copy.

      Attest:

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




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