09-4530-cv
     Josephine L. Cage v. Commissioner of Social Security

 1                        UNITED STATES COURT OF APPEALS
 2
 3                            FOR THE SECOND CIRCUIT
 4
 5                                August Term 2011
 6
 7          (Argued: October 24, 2011           Decided: August 17, 2012)
 8
 9                            Docket No. 09-4530-cv
10           -----------------------------------------------------x

11   JOSEPHINE L. CAGE,
12
13                Plaintiff-Appellant,
14
15                           -- v. --
16
17   COMMISSIONER OF SOCIAL SECURITY,
18
19                Defendant-Appellee.
20
21           -----------------------------------------------------x
22
23   B e f o r e :     NEWMAN, WALKER and KATZMANN, Circuit Judges.

24           Appeal from a judgment of the United States District Court

25   for the Western District of New York (Michael A. Telesca, Judge)

26   upholding an administrative decision denying claimant’s

27   application for disability benefits under the Social Security

28   Act.    Claimant challenges the finding, upheld by the district

29   court, that drug addiction or alcoholism was a contributing

30   factor material to the determination that she was disabled and

31   that she therefore was ineligible for benefits.        We AFFIRM the

32   judgment of the district court.

33


                                           1
 1                                 TIMOTHY W. HOOVER (Peter C.
 2                                 Obersheimer, on the brief),
 3                                 Phillips Lytle LLP, Buffalo, NY,
 4                                 for Plaintiff-Appellant.
 5
 6                                 MICHELLE L. CHRIST, Special
 7                                 Assistant U.S. Attorney (Stephen P.
 8                                 Conte, Regional Chief Counsel,
 9                                 Region II, Office of the General
10                                 Counsel Social Security
11                                 Administration, on the brief) for
12                                 William J. Hochul, Jr., U.S.
13                                 Attorney for the Western District
14                                 of New York, for Defendant-
15                                 Appellee.
16
17
18   JOHN M. WALKER, JR., Circuit Judge:

19        Plaintiff-appellant Josephine L. Cage appeals from a

20   judgment of the United States District Court for the Western

21   District of New York (Michael A. Telesca, Judge) upholding a

22   decision by an Administrative Law Judge (“ALJ”) of the Social

23   Security Administration (the “SSA”) denying Cage’s application

24   for Supplemental Security Income (“SSI”) benefits.   Although the

25   ALJ determined that Cage met certain requirements for being

26   “disabled” under the Social Security Act (the “Act”), 42 U.S.C.

27   § 301 et seq., he found Cage ineligible for SSI on the ground

28   that drug addiction or alcoholism (“DAA”) was a contributing

29   factor material to that determination.

30        On appeal, Cage argues that (1) the ALJ improperly imposed

31   upon her the burden of proving that she would be disabled in the

32   absence of DAA, and (2) the record did not support the ALJ’s

33   finding that she would not be disabled absent DAA, in particular

                                     2
 1   because the ALJ lacked a predictive medical or psychological

 2   opinion to that effect.   She therefore asks that the district

 3   court’s decision upholding the ALJ’s ruling be vacated, and that

 4   the case be remanded to the district court with instructions to

 5   vacate the ALJ’s decision and calculate retroactive SSI benefits.

 6        We hold that the ALJ did not err in denying Cage benefits,

 7   because SSI applicants bear the burden of proving that they would

 8   be disabled in the absence of DAA, and substantial evidence

 9   supported the ALJ’s finding that Cage would not be disabled

10   absent DAA.

11                                 BACKGROUND

12   I.   Factual Background

13        Josephine Cage, who was born in 1960, has an extensive

14   medical history.   Over the course of these proceedings, she has

15   offered evidence of numerous health conditions, including bipolar

16   disorder, depression, suicidal ideation, dizziness, blackouts,

17   memory loss and chest pain.    Cage has received periodic primary

18   and emergency medical care for her health problems since at least

19   2001, and with greater frequency beginning in December 2003, when

20   she was admitted to the hospital for a variety of ailments.    She

21   has not worked since November 2003.    Her employment history to

22   that point included work as a retail cashier, hotel maid and home

23   healthcare aide.

24


                                       3
 1        Cage also has a long history of drug and alcohol abuse,

 2   including alcohol abuse on the day she was admitted to the

 3   hospital in December 2003.   Her ongoing medical care has included

 4   treatment for both DAA and her other conditions.   At least one of

 5   Cage’s healthcare providers has opined that Cage’s substance

 6   abuse “made worse” her non-DAA impairments, and Cage has

 7   acknowledged that her drinking was “not helpful” to her mental

 8   health.    There is medical evidence that Cage has attempted

 9   suicide only when under the influence -– although she testified

10   that she has felt suicidal even while sober -- and that on the

11   two occasions she reported hearing voices she had used crack

12   cocaine.   Cage also once explained to a doctor that she felt

13   depressed because she had spent her money on cocaine.

14        Cage applied for SSI benefits on May 12, 2004, claiming that

15   her various health impairments rendered her unable to work.

16   After her application was initially denied, Cage proceeded in May

17   2007 to an ALJ hearing in Rochester, New York, at which she was

18   represented by counsel.

19        In a decision dated August 7, 2007, the ALJ issued his

20   findings and conclusions.    Based on the medical records and

21   Cage’s testimony at the hearing, the ALJ found that Cage suffered

22   from the following severe impairments: polysubstance dependence

23   disorder, personality disorder, schizoaffective disorder and

24   syncope.   In view of those impairments, he determined that Cage


                                       4
 1   met the regulatory requirements for affective disorder,

 2   personality disorder and substance addiction disorder, see 20

 3   C.F.R. pt. 404, subpt. P, app. 1, §§ 12.04, 12.08, 12.09 (2007).

 4   However, the ALJ further determined that in the absence of her

 5   drug and alcohol abuse, Cage would not meet the requirements for

 6   those disorders.   He also concluded, based on the testimony of a

 7   vocational expert, that Cage would be able to work absent DAA.

 8   He therefore found her not disabled within the meaning of the

 9   Act.   The record did not contain any consultive opinion

10   predicting Cage’s health and functionality in the absence of DAA;

11   rather, in making his findings, the ALJ relied on the record as a

12   whole.

13          In June 2008, the SSA Appeals Council denied Cage’s request

14   for review, making the ALJ’s ruling the final decision of the

15   Commissioner of Social Security (the “Commissioner”) on Cage’s

16   May 2004 application.

17          On August 25, 2008, Cage reapplied for SSI benefits.   In

18   December 2009, the same ALJ who had denied her first application

19   found Cage disabled and entitled to benefits as of the date of

20   her reapplication.   In particular, the ALJ concluded that DAA was

21   not a contributing factor material to the second determination of

22   disability because there was no evidence of DAA since the August

23   25, 2008 onset date of Cage’s reapplication.

24


                                       5
 1   II.   Procedural Background

 2         Having received benefits upon her second application, Cage

 3   in this suit seeks retroactive benefits, for the period between

 4   her 2004 and 2008 applications, to which she believes she is

 5   entitled by virtue of her first application.

 6         In August 2008, around the time she reapplied for benefits,

 7   Cage challenged the ALJ’s decision on her initial application in

 8   the district court.   She contended that the ALJ had applied the

 9   wrong legal standards and that his decision was not supported by

10   substantial evidence.   The district court disagreed and granted

11   the Commissioner’s motion for judgment on the pleadings pursuant

12   to 42 U.S.C. § 405(g) and Fed. R. Civ. P. 12(c).   See Cage v.

13   Astrue, No. 08-CV-6364T, 

 (W.D.N.Y. Oct. 5, 2009).

14   Relevant to this appeal, the district court held that (1)

15   “[t]here is substantial evidence in the record that supports the

16   ALJ’s determination that [Cage’s] substance abuse was a key

17   factor contributing to her disability”; (2) Cage “has the burden

18   of proving that absent her drug and alcohol abuse, she would

19   still be disabled”; and (3) Cage “failed to satisfy [that]

20   burden.”   Id., 

, at *4.

21         Cage appealed the district court’s ruling to this Court.     At

22   our request, the parties briefed two issues in particular: (1)

23   whether Cage “had the burden of proof before the [ALJ] with

24   respect to whether her [DAA] was a contributing factor material


                                      6
 1   to the determination of disability”; and (2) whether “the [ALJ]

 2   erred by finding that [Cage’s DAA] was a contributing factor

 3   where there was no medical opinion specifically addressing that

 4   issue.”   See Order Appointing Counsel, Cage v. Comm’r of Soc.

 5   Sec., No. 09-4530-cv (2d Cir. Apr. 23, 2010).

 6                                 DISCUSSION

 7   I.   Standard of Review

 8        When reviewing an appeal from a denial of SSI benefits, “our

 9   focus is not so much on the district court’s ruling as it is on

10   the administrative ruling.”    Rivera v. Sullivan, 

,

11   967 (2d Cir. 1991) (internal quotation marks omitted).   But we do

12   not substitute our judgment for the agency’s, see Veino v.

13   Barnhart, 

, 586 (2d Cir. 2002), or “determine de novo

14   whether [the claimant] is disabled,” Schaal v. Apfel, 

   496, 501 (2d Cir. 1998) (internal quotation marks omitted).

16   Instead, “this Court is limited to determining whether the SSA’s

17   conclusions were supported by substantial evidence in the record

18   and were based on a correct legal standard.”    Lamay v. Comm’r of

19   Soc. Sec., 

, 507 (2d Cir. 2009); see also Moran v.

20   Astrue, 

, 112 (2d Cir. 2009) (“[W]e conduct a plenary

21   review of the administrative record to determine if there is

22   substantial evidence, considering the record as a whole, to

23   support the Commissioner’s decision . . . .”).   “Substantial

24   evidence is ‘more than a mere scintilla.   It means such relevant


                                       7
 1   evidence as a reasonable mind might accept as adequate to support

 2   a conclusion.’”   Halloran v. Barnhart, 

, 31 (2d Cir.

 3   2004) (per curiam) (quoting Richardson v. Perales, 

,

 4   401 (1971)).    In our review, we defer to the Commissioner's

 5   resolution of conflicting evidence.   Clark v. Comm’r of Soc.

 6   Sec., 

, 118 (2d Cir. 1998).

 7   II.   The Burden of Proof on DAA Materiality

 8         Cage first argues that the ALJ erred by requiring that she

 9   prove that she still would be disabled in the absence of her drug

10   and alcohol abuse.   She contends that the burden was on the

11   Commissioner to prove that she would not be disabled absent DAA.

12         An SSI applicant qualifies as “disabled” under the Act if

13   she is unable “to engage in any substantial gainful activity by

14   reason of any medically determinable physical or mental

15   impairment . . . which has lasted or can be expected to last for

16   a continuous period of not less than 12 months.”   42 U.S.C.

17   § 423(d)(1)(A).   This determination is reached through a five-

18   step process:

19         First, the Commissioner considers whether the claimant
20         is currently engaged in substantial gainful activity.
21         Where the claimant is not, the Commissioner next
22         considers whether the claimant has a “severe
23         impairment” that significantly limits her physical or
24         mental ability to do basic work activities. If the
25         claimant suffers such an impairment, the third inquiry
26         is whether, based solely on medical evidence, the
27         claimant has an impairment that is listed [in the so-
28         called “Listings”] in 20 C.F.R. pt. 404, subpt. P, app.
29         1. If the claimant has a listed impairment, the
30         Commissioner will consider the claimant disabled

                                       8
 1        without considering vocational factors such as age,
 2        education, and work experience; the Commissioner
 3        presumes that a claimant who is afflicted with a listed
 4        impairment is unable to perform substantial gainful
 5        activity. Assuming the claimant does not have a listed
 6        impairment, the fourth inquiry is whether, despite the
 7        claimant’s severe impairment, she has the residual
 8        functional capacity to perform her past work. Finally,
 9        if the claimant is unable to perform her past work, the
10        burden then shifts to the Commissioner to determine
11        whether there is other work which the claimant could
12        perform.

13   Tejada v. Apfel, 

, 774 (2d Cir. 1999) (footnote

14   omitted).    As a general matter, “[t]he claimant bears the burden

15   of proving that she suffers from a disability.”     Swainbank v.

16   Astrue, 356 F. App’x 545, 547 (2d Cir. 2009) (summary order); see

17   also 42 U.S.C. §§ 423(d)(5)(A), 1382c(a)(3)(H)(i).     It is only at

18   step five that the burden shifts to the Commissioner.    See Petrie

19   v. Astrue, 412 F. App’x 401, 404 (2d Cir. 2011) (summary order).

20        When there is medical evidence of an applicant’s drug or

21   alcohol abuse, the “disability” inquiry does not end with the

22   five-step analysis.   See 20 C.F.R. § 416.935(a).    In 1996,

23   Congress enacted the Contract with America Advancement Act (the

24   “CAAA”), which amended the Act by providing that “[a]n individual

25   shall not be considered . . . disabled . . . if alcoholism or

26   drug addiction would . . . be a contributing factor material to

27   the Commissioner’s determination that the individual is

28   disabled.”   Pub. L. 104-121, 110 Stat. 847 (codified at 42 U.S.C.

29   § 1382c(a)(3)(J)).    The critical question is “whether [the SSA]

30   would still find [the claimant] disabled if [she] stopped using

                                       9
 1   drugs or alcohol.”   20 C.F.R. § 416.935(b)(1); see also 20 C.F.R.

 2   § 416.935(b)(2)(i) (“If [the Commissioner] determine[s] that [the

 3   claimant’s] remaining limitations would not be disabling, [he]

 4   will find that [the] drug addiction or alcoholism is a

 5   contributing factor material to the determination of

 6   disability.”).

 7        The CAAA does not specify who bears the burden of proof on

 8   DAA materiality, and this is an issue of first impression in our

 9   circuit.   But, with one possible exception, all of the other

10   circuit courts that have considered this question have held that

11   the claimant bears the burden of proving that her DAA is not

12   material to the determination that she is disabled.    See Parra v.

13   Astrue, 

, 748 (9th Cir. 2007); Brueggemann v.

14   Barnhart, 

, 693 (8th Cir. 2003); Doughty v. Apfel,

15   

, 1279-80 (11th Cir. 2001); Brown v. Apfel, 

   492, 497-99 (5th Cir. 1999).   Several district courts in this

17   circuit have endorsed that view.     See Badgley v. Astrue, No.

18   07-CV-399C, 

, at *4 (W.D.N.Y. Mar. 27, 2009); White

19   v. Comm’r, 

, 173 (W.D.N.Y. 2004); Eltayyeb v.

20   Barnhart, No. 02 Civ. 925 (MBM), 

, at *4 & n.3

21   (S.D.N.Y. Dec. 8, 2003).   The lone arguable outlier is the Tenth

22   Circuit, which, in Salazar v. Barnhart, 

 (10th Cir.

23   2006), did not explicitly state that the Commissioner bears the

24   burden of proving DAA materiality, but which Cage believes


                                     10
 1   implied as much by reversing a ruling of DAA materiality that the

 2   court believed was not supported by substantial evidence.    See

 3   id. at 622-26.

 4        For the following reasons, we agree with the weight of the

 5   authority that claimants bear the burden of proving DAA

 6   immateriality:

 7        First, as stated earlier, claimants bear the general burden

 8   of proving that they are disabled for purposes of receiving SSI

 9   benefits.    See Balsamo v. Chater, 

, 80 (2d Cir. 1998).

10   The Commissioner’s burden at step five is a limited exception to

11   this rule.   We agree with our sister circuits that any expansion

12   of the Commissioner’s burden should find strong or explicit

13   justification in statute, regulation or policy, and that no such

14   justification exists here.   See Doughty, 245 F.3d at 1280; Brown,

15   192 F.3d at 498.   Thus, because the CAAA amended the definition

16   of “disabled” to exclude conditions materially caused by DAA,

17   proving DAA immateriality is best understood as part of a

18   claimant’s general burden of proving that she is disabled.    See

19   Doughty, 245 F.3d at 1280.

20        Second, claimants are better positioned than the SSA to

21   offer proof as to the relevance of any DAA to their disability

22   determinations because facts relevant to those determinations

23   ordinarily would be in their possession.   See Parra, 481 F.3d at

24   748; Doughty, 245 F.3d at 1280; Brown, 192 F.3d at 498.     Fairness


                                      11
 1   and practicality therefore counsel in favor of placing this

 2   burden on them.   See Bowen v. Yuckert, 

, 146 n.5

 3   (1987) (“It is not unreasonable to require the claimant, who is

 4   in a better position to provide information about his own medical

 5   condition, to do so.”).

 6        Third, holding claimants to this burden accords with

 7   Congress’s purpose in enacting the CAAA.   As explained by the

 8   Ninth Circuit,

 9        Congress sought through the CAAA to discourage alcohol
10        and drug abuse, or at least not to encourage it with a
11        permanent government subsidy. [Placing the burden of
12        proving DAA materiality on the Commissioner] provides
13        the opposite incentive. An alcoholic claimant who
14        presents inconclusive evidence of materiality has no
15        incentive to stop drinking, because abstinence may
16        resolve his disabling limitations and cause his claim
17        to be rejected or his benefits terminated. His claim
18        would be guaranteed only as long as his substance abuse
19        continues -- a scheme that effectively subsidizes
20        substance abuse in contravention of the statute’s
21        purpose.

22   Parra, 481 F.3d at 749-50 (internal quotation marks, citations

23   and footnotes omitted).

24        Citing to certain CAAA legislative history, Cage counters

25   that Congress opposed the receipt of benefits by “individuals

26   whose sole severe disabling condition is drug addiction or

27   alcoholism,” H.R. Rep. No. 104-379, pt. 2, § 7, at 17 (1995)

28   (emphasis added), whereas she suffers from various mental

29   impairments in addition to DAA.    But legislative history does not

30   have the force of law, see Am. Hosp. Ass’n v. NLRB, 

,


                                       12
 1   616 (1991), and cannot support rewriting the statute, which, as

 2   discussed above, amends the definition of “disabled” and

 3   therefore places the burden of proving DAA immateriality on the

 4   claimant.   And in any case, the sources cited by Cage do not

 5   resolve the question before us.    It is true that the CAAA’s

 6   legislative history supports the intuitive proposition that

 7   “[i]ndividuals with [DAA] who have had another severe disabling

 8   condition . . . can qualify for benefits based on that disabling

 9   condition.”   H.R. Rep. No. 104-379, at 16.    But this does not

10   answer the question of who bears the burden of proof as to the

11   effects of the other condition(s) in the absence of DAA.

12        Finally and as noted earlier, since 1999, when the Fifth

13   Circuit decided Brown, courts overwhelmingly have held claimants

14   to the burden of proving that they would be disabled in the

15   absence of drug or alcohol abuse.      Cage would have us believe

16   that courts have erred in this respect for more than a decade but

17   that neither Congress nor the Commissioner has sought to rectify

18   this error by amending the U.S. Code or the C.F.R., respectively.

19   We are unpersuaded.

20        In arguing that the Commissioner bore the burden of proving

21   DAA materiality in her case, Cage relies principally on an

22   internal SSA document that was never incorporated into the C.F.R.

23   See Questions and Answers Concerning DAA from the 07/02/96

24   Teleconference-Medical Adjudicators, EM-96200 (Aug. 30, 1996)


                                       13
 1   (the “Teletype”).1    The Teletype was issued by the Commissioner

 2   shortly after the CAAA’s enactment to assist ALJs in implementing

 3   the CAAA.   It states in relevant part that:

 4        There will be cases in which the evidence demonstrates
 5        multiple impairments, especially cases involving
 6        multiple mental impairments, where the [medical and/or
 7        psychological consultant] cannot project what
 8        limitations would remain if the individuals stopped
 9        using drugs/alcohol. In such cases, the [consultant]
10        should record his/her findings to that effect. Since a
11        finding that DAA is material will be made only when the
12        evidence establishes that the individual would not be
13        disabled if he/she stopped using drugs/alcohol, the
14        [ALJ] will find that DAA is not a contributing factor
15        material to the determination of disability.

16   Id. (emphasis added).    The Teletype further advises that “[w]hen

17   it is not possible to separate the mental restrictions and

18   limitations imposed by DAA and the various other mental disorders

19   shown by the evidence, a finding of ‘not material’ would be

20   appropriate.”   Id.   Although the Teletype does not speak in terms

21   of burdens, it could be read to endorse a presumption in favor of

22   the applicant -– i.e., that “a tie goes to [the claimant],”

23   Brueggemann, 348 F.3d at 693.    So construed, it would

24   “effectively shift[] the burden to the Commissioner to prove

25   [DAA] materiality.”    Parra, 481 F.3d at 749.

26        But Cage concedes that the Teletype, as an unpromulgated

27   internal agency guideline, does not have the force of law and is

28   entitled to deference only insofar as it has the power to


     1
 1        The Teletype is available at https://secure.ssa.gov/apps10/
 2   public/reference.nsf/links/04292003041931PM.

                                      14
 1   persuade.    See United States v. Mead Corp., 

, 227-29

 2   (2001); Skidmore v. Swift & Co., 

, 140 (1944).     The

 3   same four reasons that support our conclusion that the burden of

 4   proving DAA immateriality rests with the claimant render the

 5   Teletype, as construed by Cage, unpersuasive: (1) claimants bear

 6   the general burden of proving they are “disabled,” the definition

 7   of which excludes disabilities materially caused by DAA; (2)

 8   claimants are better positioned to offer evidence relevant to DAA

 9   materiality; (3) the Teletype’s burden allocation undermines the

10   CAAA’s aims; and (4) neither Congress nor the Commissioner has

11   acted to “correct” the judiciary’s imposition of this burden upon

12   claimants.   Therefore, to the extent Cage’s reading of the

13   Teletype is correct, we decline to defer to it.2   See Parra, 481

14   F.3d at 749 (the Teletype’s “interpretation is unpersuasive

15   because it contradicts the purpose of the [CAAA]”).

16   III. The Sufficiency of the Evidence

17        Cage next argues that, regardless of who bears the burden of

18   proof on DAA materiality, the record did not permit the ALJ’s

19   determination that she would not be disabled absent DAA.


     2
 1        In addition to the Teletype, Cage’s argument relies on an
 2   obsolete instruction by the Commissioner on determining DAA
 3   materiality. See Social Security Administration Hearings,
 4   Appeals and Litigation Law Manual, I-5-4-14A (“HALLEX”) (Nov. 14,
 5   1997), available at http://ssaconnect.com/tfiles/DAA_II.htm.
 6   Assuming arguendo that HALLEX supported Cage’s burden argument,
 7   and forgetting for the moment that it is no longer effective, we
 8   would decline to defer to it for the same reasons we decline to
 9   defer to the Teletype as construed by Cage.

                                      15
 1        In briefing this appeal, Cage originally advocated a bright-

 2   line rule that “an ALJ cannot find that drug or alcohol use is a

 3   contributing factor where there is no medical opinion addressing

 4   the issue,” Appellant Br. at 36 –- a position that the Tenth

 5   Circuit alone has endorsed based on its reading of the Teletype,

 6   see Salazar, 468 F.3d at 624.3   We believe that such a rule,

 7   found nowhere in the U.S. Code or C.F.R., is unsound.   It would

 8   unnecessarily hamper ALJs and impede the efficient disposition of

 9   applications in circumstances that demonstrate DAA materiality in

10   the absence of predictive opinions.   See McGill v. Comm’r of Soc.

11   Sec., 288 F. App’x 50, 53 (3d Cir. 2008) (rejecting the

12   “argu[ment] that any determination that DAA is material to the

13   finding of disability must be based on expert psychiatric opinion

14   evidence”); Doughty, 245 F.3d at 1280-81.

15



     3
 1        In Salazar, the Tenth Circuit read the Teletype as
 2   “instruct[ing]” that a finding of DAA immateriality be made
 3   “where the record is devoid of any medical or psychological
 4   report, opinion, or projection as to the claimant’s remaining
 5   limitations” in the absence of DAA. 468 F.3d at 624. The
 6   relevant portion of the Teletype, however, refers not to cases in
 7   which the record lacks predictive opinions, but in which the
 8   medical or psychological consultants “cannot project what
 9   limitations would remain if the individuals stopped using
10   drugs/alcohol” (emphasis added). See Doughty, 245 F.3d at 1280-
11   81 (rejecting the notion that the “Teletype imposes a new
12   requirement upon the ALJ to seek a consultant’s opinion when
13   making a materiality determination”). But even were we to agree
14   with the Tenth Circuit’s reading of the Teletype, we would
15   decline to defer to this instruction because we find its
16   rationale unpersuasive.

                                      16
 1           In her reply brief, Cage disclaimed the above bright-line

 2   rule and argued only that a predictive medical opinion is

 3   necessary in cases, including hers, in which “‘it is not possible

 4   for an ALJ to separate the limitations imposed by substance abuse

 5   [and] by other non-DAA impairments,’” Appellant Reply Br. at 21.

 6   By arguing that it was “not possible” for the ALJ to find DAA

 7   materiality in her case, Cage in substance is advancing a

 8   sufficiency-of-the-evidence challenge: Was the ALJ’s finding of

 9   DAA materiality supported by substantial evidence,

10   notwithstanding the lack of a consultive opinion predicting her

11   impairments in the absence of drug or alcohol abuse?

12           In proceeding through the five-step sequential analysis, the

13   ALJ made the following pertinent findings: At step three, he

14   determined that Cage was per se disabled under Listings 12.04

15   (affective disorder), 12.08 (personality disorder) and 12.09

16   (substance addiction disorder).    See 20 C.F.R. pt. 404, subpt. P,

17   app. 1 (setting forth the Listings).    Each of those Listings

18   required findings that Cage suffered from two of the four so-

19   called “Paragraph B” symptoms.    The ALJ made such findings,

20   concluding that Cage suffered marked difficulties in social

21   functioning and with regard to concentration, persistence or

22   pace.    The ALJ then found that, in the absence of DAA, Cage would

23   only suffer moderate difficulties in those respects.    With this

24   improvement, Cage would no longer qualify as per se disabled


                                       17
 1   under the Listings, so the ALJ proceeded to steps four and five.

 2   Based on the testimony of a vocational expert, the ALJ found that

 3   Cage’s impairments in the absence of DAA would allow her to work.

 4        Thus, at issue are the ALJ’s findings that Cage’s

 5   difficulties with social functioning, and with concentration,

 6   persistence and pace, would improve from “marked” to “moderate”

 7   in the absence of DAA.   In our plenary review of the

 8   administrative record, we conclude that those findings were

 9   supported by substantial evidence.   Cage concedes that a finding

10   of DAA materiality appropriately could be made based on “medical

11   evidence . . . during periods of sobriety [demonstrating] that

12   the claimant would not otherwise be disabled absent the DAA,”

13   Appellant Br. at 30.   While the record does not reveal any

14   extended periods of sobriety during the relevant period following

15   Cage’s May 2004 application date, it does include, inter alia,

16   positive evaluations of Cage conducted during inpatient

17   admissions when Cage did not have access to drugs or alcohol.

18   Specifically, the record reflects that (1) mental status

19   evaluations, though not ideal in all respects, demonstrated that

20   she “made good eye contact,” was “cooperative,” spoke normally,

21   had coherent or linear thought processes, had average

22   intelligence and knowledge, and was alert; (2) Cage reportedly

23   had the ability to “perform rote tasks,” “follow simple

24   instructions” and “handle her finances”; and (3) Cage was


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 1   evaluated as being able to “interact with others adequately.”

 2   And, as to the effect of Cage’s DAA on her other impairments, the

 3   record included the following evidence: (1) an addiction

 4   therapist’s opinion that Cage’s DAA “made worse” her medical and

 5   emotional issues; (2) Cage’s admission that she had attempted

 6   suicide only when under the influence; (3) Cage’s admission that

 7   her DAA was “not helpful” to her mental health; (4) that Cage had

 8   used crack cocaine the two times she reported hearing voices; and

 9   (5) that Cage told a treating physician that she was depressed

10   because she had spent her money on cocaine.

11        Taken together, this is “relevant evidence [that] a

12   reasonable mind might accept as adequate to support [the]

13   conclusion,” Zabala v. Astrue, 

, 408 (2d Cir. 2010)

14   (internal quotation marks and citation omitted), that Cage’s

15   difficulties with social functioning, and with concentration,

16   persistence and pace, would improve from “marked” to “moderate”

17   in the absence of DAA.   Faced with this substantial evidence, we

18   must uphold these findings and, consequently, the ALJ’s

19   determination that Cage would not be disabled were she to

20   discontinue her drug and alcohol abuse.

21        Finally, Cage argues that the same ALJ’s favorable ruling on

22   her reapplication for benefits supports her appeal here.    But the

23   favorable ruling in 2009 was based on evidence not in the record

24   on the original application, related in part to different


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 1   impairments than those at issue in the original application, and

 2   expressly stated that the ALJ saw no basis for reopening the

 3   original application.   The ALJ’s 2009 ruling therefore does not

 4   bolster Cage’s claim that the 2008 ruling was not supported by

 5   substantial evidence.   Cf. Consolo v. Fed. Maritime Comm’n, 383

 

, 620 (1966) (given the deferential standard of review,

 7   two contrary rulings on the same record may be affirmed as

 8   supported by substantial evidence).

 9                               CONCLUSION

10        For the foregoing reasons, we AFFIRM the judgment of the

11   district court.




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