Leonard TYLITZKI, Plaintiff-Appellant, v. Donna E. SHALALA, Secretary of Health and Human Services, Defendant-Appellee

999 F.2d 1411 41 Soc.Sec.Rep.Ser. 599, Unempl.Ins.Rep. (CCH) P 17419A Leonard TYLITZKI, Plaintiff-Appellant, v. Donna E. SHALALA, Secretary of Health and Human Services, * Defendant-Appellee. No. 91-56004. United States Court of Appeals, Ninth Circuit. Argued and Submitted July 8, 1992. Decided July 27, 1993. Thomas Garrett Roche, Robert Hoad, a Professional Law Corp., San Diego, CA, for plaintiff-appellant. Mark Dawson, Asst. U.S. Atty., San Diego, CA, for defendant-appellee. Appeal from the United States District Court for the Southern District of California. Before: FLETCHER, O'SCANNLAIN, and KLEINFELD, Circuit Judges. PER CURIAM: ** 1 We are called upon to decide whether an alcoholic who is able to remain sober for considerable periods of time is entitled to disability benefits. 2 * Tylitzki filed applications for Disability Insurance Benefits and Supplemental Security Income ("benefits") based on alcoholism, nerves, mental problems, and depression. Benefits were denied both initially and, following a hearing, by the administrative law judge ("ALJ"). The decision of the ALJ became the final decision of the Secretary of Health and Human Services ("Secretary") when the Appeals…

We are called upon to decide whether an alcoholic who is able to remain sober for considerable periods of time is entitled to disability benefits.

I

Tylitzki filed applications for Disability Insurance Benefits and Supplemental Security Income (“benefits”) based on alcoholism, nerves, mental problems, and depression. Benefits were denied both initially and, following a hearing, by the administrative law judge (“ALJ”). The decision of the ALJ became the final decision of the Secretary of Health and Human Services (“Secretary”) when the Appeals Council denied review. The district court affirmed the decision. This timely appeal followed. We have jurisdiction under 28 U.S.C. § 1291 .

II

We review the district court’s order upholding the Secretary’s denial of benefits de novo. Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir.1989). We must affirm the Secretary’s decision if it is supported by substantial evidence and is based on proper legal standards. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Clem v. Sullivan, 894 F.2d 328, 330 (9th Cir.1990). In determining whether substantial evidence supports a decision, we…

Dissenting:

Despite the majority’s concessions that “Tylitzki’s alcoholism [is] an ongoing condition,” Maj.Op. at 1413, that “there is substantial evidence indicating that Tylitzki’s condition ha[s] deteriorated from the days when he was able to hold the same job for nearly twenty-seven years,” id. at 1414, that Tylitzki was fired six times by the same employer between 1980 and 1983 for alcohol abuse and “undertook multiple rehabilitation programs during 1978-88,” id. at 1414, and that Tylitz-ki had been out of work for four years living in a halfway house at the time of the benefits hearing, id., the majority upholds the ALJ’s determination that this former truck driver, fifty-seven years of age in 1988 when he filed for disability, can go back to his past relevant work — driving eighteen-wheel tractor trailers.

In my view, it is clear that Tylitzki can’t return to his past relevant work. The substantial evidence in the record viewed as a whole overwhelmingly supports my view. Everyone agrees and the record amply supports the finding that Tylitzki is a “binge” drinker. No one knows what triggers his drinking bouts. Not one scintilla of evidence from anyone suggests he can…