Scott Delk v. Carolyn Colvin

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1690
SCOTT L. DELK,
Plaintiff – Appellant,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security,
Defendant – Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Rebecca Beach Smith, Chief
District Judge. (2:14-cv-00505-RBS-DEM)
Argued: October 26, 2016 Decided: January 18, 2017
Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.
Affirmed by unpublished opinion. Judge Shedd wrote the opinion,
in which Judge Wilkinson and Judge Niemeyer joined.
ARGUED: David J. Cortes, Richmond, Virginia, for Appellant.
George Maralan Kelley, III, OFFICE OF THE UNITED STATES
ATTORNEY, Norfolk, Virginia, for Appellee. ON BRIEF: John O.
Goss, GOSS AND FENTRESS, PLC, Norfolk, Virginia, for Appellant.
Nora Koch, Acting Regional Chief Counsel, Taryn Jasner,
Supervisory Attorney, Tara A. Czekaj, Assistant Regional
Counsel, SOCIAL SECURITY ADMINISTRATION, Philadelphia,
Pennsylvania; Dana J. Boente, United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
________________
Unpublished opinions are not binding precedent in this circuit.
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SHEDD, Circuit Judge:
A social security administrative law judge denied Scott L.
Delk’s claim for Disability Insurance Benefits and Supplemental
Security Income, finding that he would not be disabled if he
stopped abusing alcohol. After the decision became final, Delk
brought this action seeking judicial review. Presented with
cross-motions for summary judgment, the district court denied
Delk’s motion, granted the Commissioner’s motion, and affirmed
the decision. Delk now appeals. We affirm.
I
The Social Security Act comprises two disability benefits
programs: the Social Security Disability Insurance Program,
which provides benefits to disabled persons who have contributed
to the program while employed, and the Supplemental Security
Income Program, which provides benefits to indigent disabled
persons. “The statutory definitions and the regulations
promulgated by the Secretary for determining disability . . .
governing these two programs are, in all aspects relevant here,
substantively identical.” Craig v. Chater, 76 F.3d 585, 589 n.1
(4th Cir. 1996).
For both types of benefits the Act defines the key term
“disability” as an inability to engage in any substantial
gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in
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death or which has lasted or can be expected to last for a
continuous period of not less than 12 months. See 42 U.S.C. §§
423(d)(1)(A), 1382c(a)(3)(A). In making a disability
determination, an ALJ is required to conduct a five-step
sequential process:
[T]he ALJ asks at step one whether the claimant has
been working; at step two, whether the claimant’s
medical impairments meet the regulations’ severity and
duration requirements; at step three, whether the
medical impairments meet or equal an impairment listed
in the regulations; at step four, whether the claimant
can perform her past work given the limitations caused
by her medical impairments; and at step five, whether
the claimant can perform other work.
Mascio v. Colvin, 780 F.3d 632, 634 (4th Cir. 2015).
“The first four steps create a series of hurdles for
claimants to meet,” id., and claimants bear the burden of proof
at each of these steps, Pearson v. Colvin, 810 F.3d 204, 207
(4th Cir. 2015). The ALJ concluded that Delk met his burden and
successfully cleared these hurdles. Among other things, the ALJ
found that Delk suffers from depression, anxiety, alcohol
dependence, tachycardia, diverticulosis, and status post
colostomy, and that he cannot perform past relevant work. These
findings, among others, moved the analysis to step five.
“At step five, the burden shifts to the Commissioner to
prove, by a preponderance of the evidence, that the claimant can
perform other work that ‘exists in significant numbers in the
national economy,’ considering the claimant’s residual
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functional capacity, age, education, and work experience.”
Mascio, 780 F.3d at 635 (citing regulations). “The Commissioner
typically offers this evidence through the testimony of a
vocational expert responding to a hypothetical that incorporates
the claimant’s limitations.” Id. “If the Commissioner meets her
burden, the ALJ finds the claimant not disabled and denies the
application for benefits.” Id.
Having considered the vocational expert’s testimony and
Delk’s impairments, including alcohol abuse, the ALJ concluded
that the Commissioner failed to meet her step-five burden.
Accordingly, the ALJ found that Delk is disabled under the five-
step inquiry.
This finding, however, did not resolve the matter because
42 U.S.C. §§ 423(d)(2)(C) and 1382c(a)(3)(J) preclude a finding
of disability if alcoholism or drug addiction is a material
contributing factor to the disability finding. See Cage v.
Commissioner, 692 F.3d 118, 123 (2d Cir. 2012) (“When there is
medical evidence of an applicant’s drug or alcohol abuse, the
‘disability’ inquiry does not end with the five-step
analysis.”). The regulations implementing these provisions
“specify that alcoholism or drug addiction is a contributing
factor material . . . if an individual would not be disabled if
he stopped using alcohol or drugs.” Mitchell v. Commissioner,
182 F.3d 272, 274 n.2 (4th Cir. 1999). Therefore, when – as here
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- the ALJ finds both a disability and evidence of substance
abuse after conducting the five-step analysis, he must then
determine whether the disability would exist in the absence of
the substance abuse. Kluesner v. Astrue, 607 F.3d 533, 537 (8th
Cir. 2010). The claimant bears the burden of proof on this
issue. Cage, 692 F.3d at 123; see also Social Security Ruling
13-2p, 2013 Westlaw 621536, at *4 (Feb. 20, 2013) (“When we
apply the steps of the sequential evaluation a second time to
determine whether the claimant would be disabled if he or she
were not using drugs or alcohol, it is our longstanding policy
that the claimant continues to have the burden of proving
disability throughout the . . . materiality analysis.”).
The ALJ considered and discussed the extensive evidence in
the record concerning Delk’s problems with alcohol. Among other
things, the ALJ found that “it is not credible that [Delk] would
be unable to sustain attention and concentration or perform
simple and repetitive tasks in the workplace in the absence of
his substance use.” Administrative Record, at 19. Similarly, the
ALJ found that if Delk stopped his alcohol use, he could
“perform light level work and sustain attention and
concentration to perform simple and repetitive [job] tasks, on a
regular and continuing basis, with no close interaction with the
general public.” Id. at 22. The ALJ further found that if Delk
stopped his alcohol use, there would be a significant number of
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light/unskilled jobs available for him in the national economy.
Consequently, the ALJ held that Delk’s substance use disorder is
a contributing factor material to the determination of
disability that precludes him from being deemed disabled under
the Social Security Act.
II
We review a grant of summary judgment de novo, applying the
same standard as the district court. Vannoy v. Fed. Res. Bk. Of
Richmond, 827 F.3d 296, 300 (4th Cir. 2016). When examining a
social security disability determination, we must uphold the
determination if the ALJ applied correct legal standards and the
ALJ’s factual findings are supported by substantial evidence.
Pearson, 810 F.3d at 207. Substantial evidence is that amount of
evidence which a reasonable mind might accept as adequate to
support a conclusion; it is more than a mere scintilla but may
be less than a preponderance. Id. On substantial evidence
review, we do not reweigh conflicting evidence, make credibility
findings, or substitute our judgment for that of the ALJ.
Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir. 2005). Where
there is conflicting evidence that would allow reasonable minds
to differ, we must defer to the ALJ’s decision. Hancock v.
Astrue, 667 F.3d 470, 472 (4th Cir. 2012).
On appeal, Delk readily acknowledges that he “did have a
severe drinking problem,” Brief of Appellant, at 22, but he
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argues that there is not substantial evidence to support the
ALJ’s finding that his alcohol use is a contributing factor
material to the determination of disability. He also contends
that the ALJ erred by making such a finding without employing a
consultative examiner.
We disagree on both points. In our view, the ALJ thoroughly
developed and properly considered the record, and substantial
(indeed, significant) evidence supports the ALJ’s finding that
Delk’s alcohol abuse is a material factor contributing to his
disability. Further, we agree with the Commissioner that the ALJ
was not obligated – either as a general matter or based on the
facts of this case - to obtain the opinion of a consultative
examiner regarding the interplay between his drinking and his
disability.
We also find no merit to Delk’s argument – premised on our
decision in Mascio - that the ALJ posed a legally insufficient
hypothetical question to the vocational expert because he
omitted the impairments of concentration, persistence, and pace.
We find Mascio distinguishable. Unlike the Mascio ALJ, the ALJ
here, in determining Delk’s residual functional capacity,
properly analyzed the question of Delk’s alleged restrictions as
to concentration, persistence, and pace and found them to be
insufficient in terms of seriousness and not credible without
adding in his alcohol abuse. That finding is supported by
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substantial evidence. Because these limitations did not become
serious without Delk’s alcohol abuse, they were not appropriate
in the hypothetical question involving his actual physical and
mental impairments.
III
Based on the foregoing, we affirm the decision of the
district court.
AFFIRMED
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