Cage v. Comm'r of Soc. Sec., No. 09-4530 (2d Cir. 2012)

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Justia Opinion Summary

Cage, born in 1960, has an extensive medical history. She offered evidence of: bipolar disorder, depression, suicidal ideation, dizziness, blackouts, memory loss and chest pain. She has not worked since November 2003. Before then, she had worked as a retail cashier, hotel maid and home healthcare aide. Cage also has a long history of drug and alcohol abuse. Her ongoing medical care has included treatment for drug addiction and alcoholism and her other conditions. An Administrative Law Judge of the Social Security Administration denied Cage’s application for Supplemental Security Income benefits, finding that although Cage met certain requirements for being “disabled” under the Social Security Act, 42 U.S.C. 301, she was ineligible for SSI because drug addiction or alcoholism was a contributing factor material to that determination. The district court affirmed. The Second Circuit affirmed. The ALJ properly imposed upon Cage the burden of proving that she would be disabled in the absence of drug addiction and alcoholism and the record supported the ALJ’s finding that she would not be disabled absent drug addiction and alcoholism.

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09-4530-cv Josephine L. Cage v. Commissioner of Social Security 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term 2011 (Argued: October 24, 2011 Decided: August 17, 2012) Docket No. 09-4530-cv -----------------------------------------------------x JOSEPHINE L. CAGE, Plaintiff-Appellant, -- v. -COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee. -----------------------------------------------------x B e f o r e : 24 NEWMAN, WALKER and KATZMANN, Circuit Judges. 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. 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. 32 judgment of the district court. Claimant challenges the finding, upheld by the district 33 1 We AFFIRM the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 TIMOTHY W. HOOVER (Peter C. Obersheimer, on the brief), Phillips Lytle LLP, Buffalo, NY, for Plaintiff-Appellant. MICHELLE L. CHRIST, Special Assistant U.S. Attorney (Stephen P. Conte, Regional Chief Counsel, Region II, Office of the General Counsel Social Security Administration, on the brief) for William J. Hochul, Jr., U.S. Attorney for the Western District of New York, for DefendantAppellee. JOHN M. WALKER, JR., Circuit Judge: 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. 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 Although the 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. 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 She therefore asks that the district 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 12 13 BACKGROUND I. Factual Background 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. 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. 21 has not worked since November 2003. 22 that point included work as a retail cashier, hotel maid and home 23 healthcare aide. Cage has received periodic primary 24 3 She Her employment history to 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. 4 treatment for both DAA and her other conditions. 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. 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. 13 depressed because she had spent her money on cocaine. 14 Her ongoing medical care has included At least one of There is medical evidence that Cage has attempted Cage also once explained to a doctor that she felt 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. 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. He also concluded, based on the testimony of a 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. 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. In particular, the ALJ concluded that DAA was 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. 9 wrong legal standards and that his decision was not supported by She contended that the ALJ had applied the 10 substantial evidence. 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). 13 Astrue, No. 08-CV-6364T, 2009 WL 3245643 (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. 21 The district court disagreed and granted See Cage v. Id., 2009 WL 3245643, at *4. Cage appealed the district court s ruling to this Court. 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 At 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. 5 Sec., No. 09-4530-cv (2d Cir. Apr. 23, 2010). See Order Appointing Counsel, Cage v. Comm r of Soc. 6 7 8 9 DISCUSSION I. Standard of Review When reviewing an appeal from a denial of SSI benefits, our focus is not so much on the district court s ruling as it is on 10 the administrative ruling. Rivera v. Sullivan, 923 F.2d 964, 11 967 (2d Cir. 1991) (internal quotation marks omitted). 12 not substitute our judgment for the agency s, see Veino v. 13 Barnhart, 312 F.3d 578, 586 (2d Cir. 2002), or determine de novo 14 whether [the claimant] is disabled, Schaal v. Apfel, 134 F.3d 15 496, 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. 19 Soc. Sec., 562 F.3d 503, 507 (2d Cir. 2009); see also Moran v. 20 Astrue, 569 F.3d 108, 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 . . . . ). 24 evidence is more than a mere scintilla. 7 But we do Lamay v. Comm r of Substantial It means such relevant 1 evidence as a reasonable mind might accept as adequate to support 2 a conclusion. 3 2004) (per curiam) (quoting Richardson v. Perales, 402 U.S. 389, 4 401 (1971)). 5 resolution of conflicting evidence. 6 Sec., 143 F.3d 115, 118 (2d Cir. 1998). 7 II. 8 9 Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. In our review, we defer to the Commissioner's Clark v. Comm r of Soc. The Burden of Proof on DAA Materiality Cage first argues that the ALJ erred by requiring that she prove that she still would be disabled in the absence of her drug 10 and alcohol abuse. 11 Commissioner to prove that she would not be disabled absent DAA. 12 She contends that the burden was on the 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. 17 § 423(d)(1)(A). 18 step process: 19 20 21 22 23 24 25 26 27 28 29 30 42 U.S.C. This determination is reached through a five- First, the Commissioner considers whether the claimant is currently engaged in substantial gainful activity. Where the claimant is not, the Commissioner next considers whether the claimant has a severe impairment that significantly limits her physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment that is listed [in the socalled Listings ] in 20 C.F.R. pt. 404, subpt. P, app. 1. If the claimant has a listed impairment, the Commissioner will consider the claimant disabled 8 1 2 3 4 5 6 7 8 9 10 11 12 without considering vocational factors such as age, education, and work experience; the Commissioner presumes that a claimant who is afflicted with a listed impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant s severe impairment, she has the residual functional capacity to perform her past work. Finally, if the claimant is unable to perform her past work, the burden then shifts to the Commissioner to determine whether there is other work which the claimant could perform. 13 Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1999) (footnote 14 omitted). 15 of proving that she suffers from a disability. 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). 18 step five that the burden shifts to the Commissioner. 19 v. Astrue, 412 F. App x 401, 404 (2d Cir. 2011) (summary order). As a general matter, [t]he claimant bears the burden Swainbank v. It is only at See Petrie 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. 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. 29 § 1382c(a)(3)(J)). 30 would still find [the claimant] disabled if [she] stopped using See 20 C.F.R. § 416.935(a). In 1996, Pub. L. 104-121, 110 Stat. 847 (codified at 42 U.S.C. The critical question is whether [the SSA] 9 1 drugs or alcohol. 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 20 C.F.R. § 416.935(b)(1); see also 20 C.F.R. 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. 13 Astrue, 481 F.3d 742, 748 (9th Cir. 2007); Brueggemann v. 14 Barnhart, 348 F.3d 689, 693 (8th Cir. 2003); Doughty v. Apfel, 15 245 F.3d 1274, 1279-80 (11th Cir. 2001); Brown v. Apfel, 192 F.3d 16 492, 497-99 (5th Cir. 1999). 17 circuit have endorsed that view. 18 07-CV-399C, 2009 WL 899432, at *4 (W.D.N.Y. Mar. 27, 2009); White 19 v. Comm r, 302 F. Supp. 2d 170, 173 (W.D.N.Y. 2004); Eltayyeb v. 20 Barnhart, No. 02 Civ. 925 (MBM), 2003 WL 22888801, at *4 & n.3 21 (S.D.N.Y. Dec. 8, 2003). 22 Circuit, which, in Salazar v. Barnhart, 468 F.3d 615 (10th Cir. 23 2006), did not explicitly state that the Commissioner bears the 24 burden of proving DAA materiality, but which Cage believes See Parra v. Several district courts in this See Badgley v. Astrue, No. The lone arguable outlier is the Tenth 10 1 implied as much by reversing a ruling of DAA materiality that the 2 court believed was not supported by substantial evidence. 3 id. at 622-26. 4 See 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, 142 F.3d 75, 80 (2d Cir. 1998). 10 The Commissioner s burden at step five is a limited exception to 11 this rule. 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. 15 192 F.3d at 498. 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. 19 Doughty, 245 F.3d at 1280. 20 We agree with our sister circuits that any expansion See Doughty, 245 F.3d at 1280; Brown, Thus, because the CAAA amended the definition See 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. 24 748; Doughty, 245 F.3d at 1280; Brown, 192 F.3d at 498. 11 See Parra, 481 F.3d at Fairness 1 and practicality therefore counsel in favor of placing this 2 burden on them. 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 See Bowen v. Yuckert, 482 U.S. 137, 146 n.5 Third, holding claimants to this burden accords with 7 Congress s purpose in enacting the CAAA. 8 Ninth Circuit, 9 10 11 12 13 14 15 16 17 18 19 20 21 As explained by the Congress sought through the CAAA to discourage alcohol and drug abuse, or at least not to encourage it with a permanent government subsidy. [Placing the burden of proving DAA materiality on the Commissioner] provides the opposite incentive. An alcoholic claimant who presents inconclusive evidence of materiality has no incentive to stop drinking, because abstinence may resolve his disabling limitations and cause his claim to be rejected or his benefits terminated. His claim would be guaranteed only as long as his substance abuse continues -- a scheme that effectively subsidizes substance abuse in contravention of the statute s 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. 30 have the force of law, see Am. Hosp. Ass n v. NLRB, 499 U.S. 606, But legislative history does not 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. 5 resolve the question before us. 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. And in any case, the sources cited by Cage do not It is true that the CAAA s 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. 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 Cage would have us believe 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 2 shortly after the CAAA s enactment to assist ALJs in implementing 3 the CAAA. 4 5 6 7 8 9 10 11 12 13 14 15 The Teletype was issued by the Commissioner It states in relevant part that: There will be cases in which the evidence demonstrates multiple impairments, especially cases involving multiple mental impairments, where the [medical and/or psychological consultant] cannot project what limitations would remain if the individuals stopped using drugs/alcohol. In such cases, the [consultant] should record his/her findings to that effect. Since a finding that DAA is material will be made only when the evidence establishes that the individual would not be disabled if he/she stopped using drugs/alcohol, the [ALJ] will find that DAA is not a contributing factor material to the determination of disability. 16 Id. (emphasis added). 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. 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. 24 effectively shift[] the burden to the Commissioner to prove 25 [DAA] materiality. 26 Id. The Teletype further advises that [w]hen Although the Teletype does not speak in terms So construed, it would Parra, 481 F.3d at 749. 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 2 1 The Teletype is available at public/reference.nsf/links/04292003041931PM. 14 1 persuade. See United States v. Mead Corp., 533 U.S. 218, 227-29 2 (2001); Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). 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 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. 13 Teletype is correct, we decline to defer to it.2 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 Therefore, to the extent Cage s reading of the See Parra, 481 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. 1 2 3 4 5 6 7 8 9 2 In addition to the Teletype, Cage s argument relies on an obsolete instruction by the Commissioner on determining DAA materiality. See Social Security Administration Hearings, Appeals and Litigation Law Manual, I-5-4-14A ( HALLEX ) (Nov. 14, 1997), available at Assuming arguendo that HALLEX supported Cage s burden argument, and forgetting for the moment that it is no longer effective, we would decline to defer to it for the same reasons we decline to 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 7 found nowhere in the U.S. Code or C.F.R., is unsound. 8 unnecessarily hamper ALJs and impede the efficient disposition of 9 applications in circumstances that demonstrate DAA materiality in We believe that such a rule, It would 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 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 3 In Salazar, the Tenth Circuit read the Teletype as instruct[ing] that a finding of DAA immateriality be made where the record is devoid of any medical or psychological report, opinion, or projection as to the claimant s remaining limitations in the absence of DAA. 468 F.3d at 624. The relevant portion of the Teletype, however, refers not to cases in which the record lacks predictive opinions, but in which the medical or psychological consultants cannot project what limitations would remain if the individuals stopped using drugs/alcohol (emphasis added). See Doughty, 245 F.3d at 128081 (rejecting the notion that the Teletype imposes a new requirement upon the ALJ to seek a consultant s opinion when making a materiality determination ). But even were we to agree with the Tenth Circuit s reading of the Teletype, we would decline to defer to this instruction because we find its 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). 17 app. 1 (setting forth the Listings). 18 required findings that Cage suffered from two of the four so- 19 called Paragraph B symptoms. 20 concluding that Cage suffered marked difficulties in social 21 functioning and with regard to concentration, persistence or 22 pace. 23 only suffer moderate difficulties in those respects. 24 improvement, Cage would no longer qualify as per se disabled See 20 C.F.R. pt. 404, subpt. P, Each of those Listings The ALJ made such findings, The ALJ then found that, in the absence of DAA, Cage would 17 With this 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. 8 administrative record, we conclude that those findings were 9 supported by substantial evidence. In our plenary review of the 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. 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 While the record does not reveal any 18 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 11 because she had spent her money on cocaine. Taken together, this is relevant evidence [that] a 12 reasonable mind might accept as adequate to support [the] 13 conclusion, Zabala v. Astrue, 595 F.3d 402, 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. 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 Faced with this substantial evidence, we Finally, Cage argues that the same ALJ s favorable ruling on 22 her reapplication for benefits supports her appeal here. 23 favorable ruling in 2009 was based on evidence not in the record 24 on the original application, related in part to different 19 But the 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. 4 bolster Cage s claim that the 2008 ruling was not supported by 5 substantial evidence. 6 U.S. 607, 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). The ALJ s 2009 ruling therefore does not Cf. Consolo v. Fed. Maritime Comm n, 383 9 CONCLUSION 10 For the foregoing reasons, we AFFIRM the judgment of the 11 district court. 20