Brown v. Appel

• Decision Date: 07 October 1999
• Docket Number: No. 98-30848,98-30848
• Citation: 192 F.3d 492
• Parties: (5th Cir. 1999) CARMEN BROWN, Plaintiff-Appellant, v. KENNETH S. APFEL, COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee
• Court: U.S. Court of Appeals — Fifth Circuit

Page 492

192 F.3d 492 (5th Cir. 1999)

CARMEN BROWN, Plaintiff-Appellant, v. KENNETH S. APFEL, COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee.

No. 98-30848

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

October 7, 1999

[Copyrighted Material Omitted] Appeal from the United States District Court for the Eastern District of Louisiana.

Before POLITZ, DeMOSS, and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

Appellant Carmen Brown ("Brown") appeals the district court's ruling that retroactive application of the Contract with America Advancement Act ("CAAA"), Public Law 104-121, 110 Stat. 847 (1996), does not violate her due process rights. She also appeals the district court's holding that substantial evidence supports the Administrative Law Judge's ("ALJ") decision denying Brown Supplemental Social Security ("SSI") and Disability Insurance Benefits ("DIB"). We affirm in part, vacate in part, and remand.

I. Factual and Procedural Background

Claiming that she was disabled because of lower back pain, Brown first applied for SSI and DIB in February, 1992. The Commissioner denied her application in May, 1992; as Brown did not appeal his decision, it became final. ¹

Brown reapplied for SSI and DIB in June, 1994. The Commissioner again denied her application, and he subsequently refused her request for reconsideration. Brown then sought an administrative hearing, which she received on July 23, 1996.

At the hearing, Brown testified that she was 41 years old and had a ninth grade education. She stated that she had only held two jobs in her life, one as a laundry worker and the other as a table busser, for a sum total of five years. She stopped working altogether after suffering two back injuries within a six week period during the winter of 1989-1990. When asked by the ALJ if she thought she would eventually get well and return to work, Brown responded, "I really think my working days are over." Brown claimed that her only income was a monthly utility check in the amount of $ 95.00, though she had been receiving AFDC benefits until three months prior to the hearing.

When asked about her medical problems, Brown asserted that she wore a back brace at night, but had never had a back operation because x-rays, an MRI and a CT scan of her back consistently showed no physiological abnormalities. Up until January, 1996, Brown stated that she had been seeing Dr. John Watermeier ("Dr. Watermeier") on a monthly basis for shots and pills to ease her pain. She claimed to be in constant pain and testified that she could not sit for more than an hour. She also complained of an inability to sleep more than four or five hours a night, a problem which she attributed to her back pain.

Brown further revealed that she had just been released from a three week stay at Kentwood Pike Psychiatric Unit ("Kentwood"). Brown voluntarily admitted herself because she was feeling suicidal. Though Brown's testimony regarding her depression was sparse, the ALJ permitted her to supplement the record after the hearing with her medical records from Kentwood.

These records revealed that Brown suffered from major depression with suicidal ideations, and that she had a history of drug and alcohol abuse. In a psychiatric evaluation conducted the day after Brown was admitted to Kentwood, Dr. M. Carmen Palazzo wrote "[Brown] is extremely depressed . . . . This is not only fueling but is secondarily being exacerbated by her substance abuse problem." This substance abuse problem involved multiple substances. Brown divulged that she smokes 3 or 4 packs of cigarettes a day. She also confessed to drinking a six pack every day and two 1/2 pints of alcohol on Fridays; she admits that she has been drinking alcoholic beverages every day since she was 16. Brown additionally conceded that she began using powdered cocaine in her cigarettes for about a year when she was 36, and then started using crack cocaine two years later. Prior to her admission to Kentwood, Brown's use of crack cocaine escalated.

No discussion of Brown's use of drugs or alcohol occurred during the hearing, but, on the day of the hearing, Brown signed a document acknowledging that if the ALJ found that narcotic or alcohol addiction was at issue, he would make findings as to its materiality to her disability. Brown further waived her right to 20 days advance notice that the ALJ would be making findings on this issue.

The ALJ found that Brown's back impairment did not independently, or in combination with any other ailment, meet Medical Listing 105C in 20 C.F.R. part 4, subpart P, appendix I,² and therefore, did not constitute a disability for purposes of obtaining benefits. The ALJ further concluded that Brown was not a credible witness. Nevertheless, the ALJ held that Brown cannot work in the national economy because of "non-exertional limitations stemming from her alcoholism." Because the ALJ found that alcohol abuse was a contributing factor material to Brown's disability, the ALJ held that she was not disabled in accordance with the CAAA

The district court affirmed the opinion of the ALJ. In an opinion dated July 31, 1998, the court found that the retroactive application of the CAAA was not unconstitutional, and that substantial evidence supported the remainder of the ALJ's opinion.

Brown timely filed her appeal.

II. Standard of Review

Our review of the Commissioner's decisions with respect to a denial of SSI benefits is limited to ascertaining "whether (1) the [final] decision is supported by substantial evidence and (2) [that] proper legal standards were used to evaluate the evidence." McQueen v. Apfel, 168 F.3d 152, 157 n.2 (5th Cir. 1999) (first alteration in original) (quoting Martinez v. Chater, 64 F.3d 172, 173 (5th Cir. 1995) (per curiam)). "If the [Commissioner's] findings are supported by substantial evidence, they are conclusive and must be affirmed." Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990); see also 42 U.S.C. 405(g). Substantial evidence is "'more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389, 401, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 83 L. Ed. 126, 59 S. Ct. 206 (1938)). "We may not reweigh the evidence in the record, nortry the issues de novo, nor substitute our judgment for that of the [Commissioner], even if the evidence preponderates against the [Commissioner's] decision." Johnson v. Bowen, 864 F.2d 340, 343 (5th Cir. 1988). "Conflicts in the evidence are for the [Commissioner] and not the courts to resolve." Selders, 914 F.2d at 617. What we strive for is "judicial review [that is] deferential without being so obsequious as to be meaningless." Taylor v. Bowen, 782 F.2d 1294, 1298 (5th Cir. 1986).

III. Retroactivity

Brown argues that retroactive application of the CAAA, which amends 42 U.S.C. 1382c(a)(3)(J), ³ violates her Fifth Amendment Due Process rights. The Commissioner counters that Brown has no vested rights in SSI benefits, and therefore, the CAAA may constitutionally be applied retroactively to her.

The only authority Brown cites in support of her position is Landgraf v. USI Film Prods., 511 U.S. 244, 128 L. Ed. 2d 229, 114 S. Ct. 1483 (1994). She focuses on the following language: "Retroactive statutes raise particular concerns. The Legislature's unmatched powers allow it to sweep away settled expectations suddenly and without individualized consideration. Its responsivity to political pressures poses a high risk that it may be tempted to use retroactive legislation as a means of retribution against unpopular groups or individuals." Id. at 266. Alcoholics and drug addicts, Brown argues, are an unpopular group now targeted by the CAAA.

On closer examination, however, Landgraf seems to provide little support for Brown's contention. First, the statute at issue in Landgraf was one in which the Congressional intent with respect to retroactivity was unclear; here, it is manifest. See PL 105-33, 5525, 111 Stat. 251, 624 (1997) (clarifying that the CAAA applies to cases pending at the time of its enactment). And "where the congressional intent is clear, it governs." Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827, 837, 108 L. Ed. 2d 842, 110 S. Ct. 1570 (1990); see also Landgraf, 511 U.S. at 280 ("When a case implicates a federal statute enacted after the events in suit, the court's first task is to determine whether Congress has expressly prescribed the statute's proper reach. If Congress has done so, of course, there is no need to resort to judicial default rules.").

Second, the legislative history in Landgraf revealed that President Bush had vetoed an earlier version of the statute because of its retroactivity provisions, and Congress failed to override the veto. Landgraf, 511 U.S. at 255-56. Here, the legislative record indicates a clear intent to revoke cash benefits from drug and alcohol abusers as soon as possible. See H.R. Rep. No. 104-379, 1st Sess., at 17 (1995) ("[The result of the current law] is a perverse incentive that affronts working taxpayers and fails to serve the interest of addicts and alcoholics, many of whom use their disability checks to purchase drugs and alcohol[.]").

Finally, as stated by the Landgraf Court, "the largest category of cases in which we have applied the presumption against statutory retroactivity has involved new provisions affecting contractual or property rights, matters in which predictability and stability are of prime importance." Landgraf, 511 U.S. at 271. But "social security benefits[] are not contractual and may be altered or even eliminated at any time." United States R.R. Retirement Bd. v. Fritz, 449 U.S. 166, 174, 66 L. Ed. 2d 368, 101 S. Ct. 453 (1980). Brown had no vested property or contract rights in social security benefits, and thus, whatever deprivation Brown suffered because...