Josephine L. Cage v. Commissioner of Social Security

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09-4530-cv
Josephine L. Cage v. Commissioner of Social Security
UNITED STATES COURT OF APPEALS 1
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FOR THE SECOND CIRCUIT 3
4
August Term 2011 5
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(Argued: October 24, 2011 Decided: August 17, 2012) 7
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Docket No. 09-4530-cv 9
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JOSEPHINE L. CAGE, 11
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Plaintiff-Appellant, 13
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-- v. -- 15
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COMMISSIONER OF SOCIAL SECURITY, 17
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Defendant-Appellee. 19
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B e f o r e : NEWMAN, WALKER and KATZMANN, Circuit Judges. 23
Appeal from a judgment of the United States District Court 24
for the Western District of New York (Michael A. Telesca, Judge) 25
upholding an administrative decision denying claimant’s 26
application for disability benefits under the Social Security 27
Act. Claimant challenges the finding, upheld by the district 28
court, that drug addiction or alcoholism was a contributing 29
factor material to the determination that she was disabled and 30
that she therefore was ineligible for benefits. We AFFIRM the 31
judgment of the district court. 32
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TIMOTHY W. HOOVER (Peter C. 1
Obersheimer, on the brief), 2
Phillips Lytle LLP, Buffalo, NY, 3
for Plaintiff-Appellant. 4
5
MICHELLE L. CHRIST, Special 6
Assistant U.S. Attorney (Stephen P. 7
Conte, Regional Chief Counsel, 8
Region II, Office of the General 9
Counsel Social Security 10
Administration, on the brief) for 11
William J. Hochul, Jr., U.S. 12
Attorney for the Western District 13
of New York, for Defendant- 14
Appellee. 15
16
17
JOHN M. WALKER, JR., Circuit Judge: 18
Plaintiff-appellant Josephine L. Cage appeals from a 19
judgment of the United States District Court for the Western 20
District of New York (Michael A. Telesca, Judge) upholding a 21
decision by an Administrative Law Judge (“ALJ”) of the Social 22
Security Administration (the “SSA”) denying Cage’s application 23
for Supplemental Security Income (“SSI”) benefits. Although the 24
ALJ determined that Cage met certain requirements for being 25
“disabled” under the Social Security Act (the “Act”), 42 U.S.C. 26
§ 301 et seq., he found Cage ineligible for SSI on the ground 27
that drug addiction or alcoholism (“DAA”) was a contributing 28
factor material to that determination. 29
On appeal, Cage argues that (1) the ALJ improperly imposed 30
upon her the burden of proving that she would be disabled in the 31
absence of DAA, and (2) the record did not support the ALJ’s 32
finding that she would not be disabled absent DAA, in particular 33

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because the ALJ lacked a predictive medical or psychological 1
opinion to that effect. She therefore asks that the district 2
court’s decision upholding the ALJ’s ruling be vacated, and that 3
the case be remanded to the district court with instructions to 4
vacate the ALJ’s decision and calculate retroactive SSI benefits. 5
We hold that the ALJ did not err in denying Cage benefits, 6
because SSI applicants bear the burden of proving that they would 7
be disabled in the absence of DAA, and substantial evidence 8
supported the ALJ’s finding that Cage would not be disabled 9
absent DAA. 10
BACKGROUND 11
I. Factual Background 12
Josephine Cage, who was born in 1960, has an extensive 13
medical history. Over the course of these proceedings, she has 14
offered evidence of numerous health conditions, including bipolar 15
disorder, depression, suicidal ideation, dizziness, blackouts, 16
memory loss and chest pain. Cage has received periodic primary 17
and emergency medical care for her health problems since at least 18
2001, and with greater frequency beginning in December 2003, when 19
she was admitted to the hospital for a variety of ailments. She 20
has not worked since November 2003. Her employment history to 21
that point included work as a retail cashier, hotel maid and home 22
healthcare aide. 23
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4
Cage also has a long history of drug and alcohol abuse, 1
including alcohol abuse on the day she was admitted to the 2
hospital in December 2003. Her ongoing medical care has included 3
treatment for both DAA and her other conditions. At least one of 4
Cage’s healthcare providers has opined that Cage’s substance 5
abuse “made worse” her non-DAA impairments, and Cage has 6
acknowledged that her drinking was “not helpful” to her mental 7
health. There is medical evidence that Cage has attempted 8
suicide only when under the influence -– although she testified 9
that she has felt suicidal even while sober -- and that on the 10
two occasions she reported hearing voices she had used crack 11
cocaine. Cage also once explained to a doctor that she felt 12
depressed because she had spent her money on cocaine. 13
Cage applied for SSI benefits on May 12, 2004, claiming that 14
her various health impairments rendered her unable to work. 15
After her application was initially denied, Cage proceeded in May 16
2007 to an ALJ hearing in Rochester, New York, at which she was 17
represented by counsel. 18
In a decision dated August 7, 2007, the ALJ issued his 19
findings and conclusions. Based on the medical records and 20
Cage’s testimony at the hearing, the ALJ found that Cage suffered 21
from the following severe impairments: polysubstance dependence 22
disorder, personality disorder, schizoaffective disorder and 23
syncope. In view of those impairments, he determined that Cage 24

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met the regulatory requirements for affective disorder, 1
personality disorder and substance addiction disorder, see 20 2
C.F.R. pt. 404, subpt. P, app. 1, §§ 12.04, 12.08, 12.09 (2007). 3
However, the ALJ further determined that in the absence of her 4
drug and alcohol abuse, Cage would not meet the requirements for 5
those disorders. He also concluded, based on the testimony of a 6
vocational expert, that Cage would be able to work absent DAA. 7
He therefore found her not disabled within the meaning of the 8
Act. The record did not contain any consultive opinion 9
predicting Cage’s health and functionality in the absence of DAA; 10
rather, in making his findings, the ALJ relied on the record as a 11
whole. 12
In June 2008, the SSA Appeals Council denied Cage’s request 13
for review, making the ALJ’s ruling the final decision of the 14
Commissioner of Social Security (the “Commissioner”) on Cage’s 15
May 2004 application. 16
On August 25, 2008, Cage reapplied for SSI benefits. In 17
December 2009, the same ALJ who had denied her first application 18
found Cage disabled and entitled to benefits as of the date of 19
her reapplication. In particular, the ALJ concluded that DAA was 20
not a contributing factor material to the second determination of 21
disability because there was no evidence of DAA since the August 22
25, 2008 onset date of Cage’s reapplication. 23
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II. Procedural Background 1
Having received benefits upon her second application, Cage 2
in this suit seeks retroactive benefits, for the period between 3
her 2004 and 2008 applications, to which she believes she is 4
entitled by virtue of her first application. 5
In August 2008, around the time she reapplied for benefits, 6
Cage challenged the ALJ’s decision on her initial application in 7
the district court. She contended that the ALJ had applied the 8
wrong legal standards and that his decision was not supported by 9
substantial evidence. The district court disagreed and granted 10
the Commissioner’s motion for judgment on the pleadings pursuant 11
to 42 U.S.C. § 405(g) and Fed. R. Civ. P. 12(c). See Cage v. 12
Astrue, No. 08-CV-6364T, 2009 WL 3245643 (W.D.N.Y. Oct. 5, 2009). 13
Relevant to this appeal, the district court held that (1) 14
“[t]here is substantial evidence in the record that supports the 15
ALJ’s determination that [Cage’s] substance abuse was a key 16
factor contributing to her disability”; (2) Cage “has the burden 17
of proving that absent her drug and alcohol abuse, she would 18
still be disabled”; and (3) Cage “failed to satisfy [that] 19
burden.” Id., 2009 WL 3245643, at *4. 20
Cage appealed the district court’s ruling to this Court. At 21
our request, the parties briefed two issues in particular: (1) 22
whether Cage “had the burden of proof before the [ALJ] with 23
respect to whether her [DAA] was a contributing factor material 24

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to the determination of disability”; and (2) whether “the [ALJ] 1
erred by finding that [Cage’s DAA] was a contributing factor 2
where there was no medical opinion specifically addressing that 3
issue.” See Order Appointing Counsel, Cage v. Comm’r of Soc. 4
Sec., No. 09-4530-cv (2d Cir. Apr. 23, 2010). 5
DISCUSSION 6
I. Standard of Review 7
When reviewing an appeal from a denial of SSI benefits, “our 8
focus is not so much on the district court’s ruling as it is on 9
the administrative ruling.” Rivera v. Sullivan, 923 F.2d 964, 10
967 (2d Cir. 1991) (internal quotation marks omitted). But we do 11
not substitute our judgment for the agency’s, see Veino v. 12
Barnhart, 312 F.3d 578, 586 (2d Cir. 2002), or “determine de novo 13
whether [the claimant] is disabled,” Schaal v. Apfel, 134 F.3d 14
496, 501 (2d Cir. 1998) (internal quotation marks omitted). 15
Instead, “this Court is limited to determining whether the SSA’s 16
conclusions were supported by substantial evidence in the record 17
and were based on a correct legal standard.” Lamay v. Comm’r of 18
Soc. Sec., 562 F.3d 503, 507 (2d Cir. 2009); see also Moran v. 19
Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (“[W]e conduct a plenary 20
review of the administrative record to determine if there is 21
substantial evidence, considering the record as a whole, to 22
support the Commissioner’s decision . . . .”). “Substantial 23
evidence is ‘more than a mere scintilla. It means such relevant 24

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evidence as a reasonable mind might accept as adequate to support 1
a conclusion.’” Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2
2004) (per curiam) (quoting Richardson v. Perales, 402 U.S. 389, 3
401 (1971)). In our review, we defer to the Commissioner's 4
resolution of conflicting evidence. Clark v. Comm’r of Soc. 5
Sec., 143 F.3d 115, 118 (2d Cir. 1998). 6
II. The Burden of Proof on DAA Materiality 7
Cage first argues that the ALJ erred by requiring that she 8
prove that she still would be disabled in the absence of her drug 9
and alcohol abuse. She contends that the burden was on the 10
Commissioner to prove that she would not be disabled absent DAA. 11
An SSI applicant qualifies as “disabled” under the Act if 12
she is unable “to engage in any substantial gainful activity by 13
reason of any medically determinable physical or mental 14
impairment . . . which has lasted or can be expected to last for 15
a continuous period of not less than 12 months.” 42 U.S.C. 16
§ 423(d)(1)(A). This determination is reached through a five- 17
step process: 18
First, the Commissioner considers whether the claimant 19
is currently engaged in substantial gainful activity. 20
Where the claimant is not, the Commissioner next 21
considers whether the claimant has a “severe 22
impairment” that significantly limits her physical or 23
mental ability to do basic work activities. If the 24
claimant suffers such an impairment, the third inquiry 25
is whether, based solely on medical evidence, the 26
claimant has an impairment that is listed [in the so- 27
called “Listings”] in 20 C.F.R. pt. 404, subpt. P, app. 28
1. If the claimant has a listed impairment, the 29
Commissioner will consider the claimant disabled 30

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without considering vocational factors such as age, 1
education, and work experience; the Commissioner 2
presumes that a claimant who is afflicted with a listed 3
impairment is unable to perform substantial gainful 4
activity. Assuming the claimant does not have a listed 5
impairment, the fourth inquiry is whether, despite the 6
claimant’s severe impairment, she has the residual 7
functional capacity to perform her past work. Finally, 8
if the claimant is unable to perform her past work, the 9
burden then shifts to the Commissioner to determine 10
whether there is other work which the claimant could 11
perform. 12
Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1999) (footnote 13
omitted). As a general matter, “[t]he claimant bears the burden 14
of proving that she suffers from a disability.” Swainbank v. 15
Astrue, 356 F. App’x 545, 547 (2d Cir. 2009) (summary order); see 16
also 42 U.S.C. §§ 423(d)(5)(A), 1382c(a)(3)(H)(i). It is only at 17
step five that the burden shifts to the Commissioner. See Petrie 18
v. Astrue, 412 F. App’x 401, 404 (2d Cir. 2011) (summary order). 19
When there is medical evidence of an applicant’s drug or 20
alcohol abuse, the “disability” inquiry does not end with the 21
five-step analysis. See 20 C.F.R. § 416.935(a). In 1996, 22
Congress enacted the Contract with America Advancement Act (the 23
“CAAA”), which amended the Act by providing that “[a]n individual 24
shall not be considered . . . disabled . . . if alcoholism or 25
drug addiction would . . . be a contributing factor material to 26
the Commissioner’s determination that the individual is 27
disabled.” Pub. L. 104-121, 110 Stat. 847 (codified at 42 U.S.C. 28
§ 1382c(a)(3)(J)). The critical question is “whether [the SSA] 29
would still find [the claimant] disabled if [she] stopped using 30

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drugs or alcohol.” 20 C.F.R. § 416.935(b)(1); see also 20 C.F.R. 1
§ 416.935(b)(2)(i) (“If [the Commissioner] determine[s] that [the 2
claimant’s] remaining limitations would not be disabling, [he] 3
will find that [the] drug addiction or alcoholism is a 4
contributing factor material to the determination of 5
disability.”). 6
The CAAA does not specify who bears the burden of proof on 7
DAA materiality, and this is an issue of first impression in our 8
circuit. But, with one possible exception, all of the other 9
circuit courts that have considered this question have held that 10
the claimant bears the burden of proving that her DAA is not 11
material to the determination that she is disabled. See Parra v. 12
Astrue, 481 F.3d 742, 748 (9th Cir. 2007); Brueggemann v. 13
Barnhart, 348 F.3d 689, 693 (8th Cir. 2003); Doughty v. Apfel, 14
245 F.3d 1274, 1279-80 (11th Cir. 2001); Brown v. Apfel, 192 F.3d 15
492, 497-99 (5th Cir. 1999). Several district courts in this 16
circuit have endorsed that view. See Badgley v. Astrue, No. 17
07-CV-399C, 2009 WL 899432, at *4 (W.D.N.Y. Mar. 27, 2009); White 18
v. Comm’r, 302 F. Supp. 2d 170, 173 (W.D.N.Y. 2004); Eltayyeb v. 19
Barnhart, No. 02 Civ. 925 (MBM), 2003 WL 22888801, at *4 & n.3 20
(S.D.N.Y. Dec. 8, 2003). The lone arguable outlier is the Tenth 21
Circuit, which, in Salazar v. Barnhart, 468 F.3d 615 (10th Cir. 22
2006), did not explicitly state that the Commissioner bears the 23
burden of proving DAA materiality, but which Cage believes 24

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implied as much by reversing a ruling of DAA materiality that the 1
court believed was not supported by substantial evidence. See 2
id. at 622-26. 3
For the following reasons, we agree with the weight of the 4
authority that claimants bear the burden of proving DAA 5
immateriality: 6
First, as stated earlier, claimants bear the general burden 7
of proving that they are disabled for purposes of receiving SSI 8
benefits. See Balsamo v. Chater, 142 F.3d 75, 80 (2d Cir. 1998). 9
The Commissioner’s burden at step five is a limited exception to 10
this rule. We agree with our sister circuits that any expansion 11
of the Commissioner’s burden should find strong or explicit 12
justification in statute, regulation or policy, and that no such 13
justification exists here. See Doughty, 245 F.3d at 1280; Brown, 14
192 F.3d at 498. Thus, because the CAAA amended the definition 15
of “disabled” to exclude conditions materially caused by DAA, 16
proving DAA immateriality is best understood as part of a 17
claimant’s general burden of proving that she is disabled. See 18
Doughty, 245 F.3d at 1280. 19
Second, claimants are better positioned than the SSA to 20
offer proof as to the relevance of any DAA to their disability 21
determinations because facts relevant to those determinations 22
ordinarily would be in their possession. See Parra, 481 F.3d at 23
748; Doughty, 245 F.3d at 1280; Brown, 192 F.3d at 498. Fairness 24

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and practicality therefore counsel in favor of placing this 1
burden on them. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5 2
(1987) (“It is not unreasonable to require the claimant, who is 3
in a better position to provide information about his own medical 4
condition, to do so.”). 5
Third, holding claimants to this burden accords with 6
Congress’s purpose in enacting the CAAA. As explained by the 7
Ninth Circuit, 8
Congress sought through the CAAA to discourage alcohol 9
and drug abuse, or at least not to encourage it with a 10
permanent government subsidy. [Placing the burden of 11
proving DAA materiality on the Commissioner] provides 12
the opposite incentive. An alcoholic claimant who 13
presents inconclusive evidence of materiality has no 14
incentive to stop drinking, because abstinence may 15
resolve his disabling limitations and cause his claim 16
to be rejected or his benefits terminated. His claim 17
would be guaranteed only as long as his substance abuse 18
continues -- a scheme that effectively subsidizes 19
substance abuse in contravention of the statute’s 20
purpose. 21
Parra, 481 F.3d at 749-50 (internal quotation marks, citations 22
and footnotes omitted). 23
Citing to certain CAAA legislative history, Cage counters 24
that Congress opposed the receipt of benefits by “individuals 25
whose sole severe disabling condition is drug addiction or 26
alcoholism,” H.R. Rep. No. 104-379, pt. 2, § 7, at 17 (1995) 27
(emphasis added), whereas she suffers from various mental 28
impairments in addition to DAA. But legislative history does not 29
have the force of law, see Am. Hosp. Ass’n v. NLRB, 499 U.S. 606, 30

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616 (1991), and cannot support rewriting the statute, which, as 1
discussed above, amends the definition of “disabled” and 2
therefore places the burden of proving DAA immateriality on the 3
claimant. And in any case, the sources cited by Cage do not 4
resolve the question before us. It is true that the CAAA’s 5
legislative history supports the intuitive proposition that 6
“[i]ndividuals with [DAA] who have had another severe disabling 7
condition . . . can qualify for benefits based on that disabling 8
condition.” H.R. Rep. No. 104-379, at 16. But this does not 9
answer the question of who bears the burden of proof as to the 10
effects of the other condition(s) in the absence of DAA. 11
Finally and as noted earlier, since 1999, when the Fifth 12
Circuit decided Brown, courts overwhelmingly have held claimants 13
to the burden of proving that they would be disabled in the 14
absence of drug or alcohol abuse. Cage would have us believe 15
that courts have erred in this respect for more than a decade but 16
that neither Congress nor the Commissioner has sought to rectify 17
this error by amending the U.S. Code or the C.F.R., respectively. 18
We are unpersuaded. 19
In arguing that the Commissioner bore the burden of proving 20
DAA materiality in her case, Cage relies principally on an 21
internal SSA document that was never incorporated into the C.F.R. 22
See Questions and Answers Concerning DAA from the 07/02/96 23
Teleconference-Medical Adjudicators, EM-96200 (Aug. 30, 1996) 24

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1 The Teletype is available at https://secure.ssa.gov/apps10/ 1
public/reference.nsf/links/04292003041931PM. 2
14
(the “Teletype”). 1 The Teletype was issued by the Commissioner 1
shortly after the CAAA’s enactment to assist ALJs in implementing 2
the CAAA. It states in relevant part that: 3
There will be cases in which the evidence demonstrates 4
multiple impairments, especially cases involving 5
multiple mental impairments, where the [medical and/or 6
psychological consultant] cannot project what 7
limitations would remain if the individuals stopped 8
using drugs/alcohol. In such cases, the [consultant] 9
should record his/her findings to that effect. Since a 10
finding that DAA is material will be made only when the 11
evidence establishes that the individual would not be 12
disabled if he/she stopped using drugs/alcohol, the 13
[ALJ] will find that DAA is not a contributing factor 14
material to the determination of disability. 15
Id. (emphasis added). The Teletype further advises that “[w]hen 16
it is not possible to separate the mental restrictions and 17
limitations imposed by DAA and the various other mental disorders 18
shown by the evidence, a finding of ‘not material’ would be 19
appropriate.” Id. Although the Teletype does not speak in terms 20
of burdens, it could be read to endorse a presumption in favor of 21
the applicant -– i.e., that “a tie goes to [the claimant],” 22
Brueggemann, 348 F.3d at 693. So construed, it would 23
“effectively shift[] the burden to the Commissioner to prove 24
[DAA] materiality.” Parra, 481 F.3d at 749. 25
But Cage concedes that the Teletype, as an unpromulgated 26
internal agency guideline, does not have the force of law and is 27
entitled to deference only insofar as it has the power to 28

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2 In addition to the Teletype, Cage’s argument relies on an 1
obsolete instruction by the Commissioner on determining DAA 2
materiality. See Social Security Administration Hearings, 3
Appeals and Litigation Law Manual, I-5-4-14A (“HALLEX”) (Nov. 14, 4
1997), available at http://ssaconnect.com/tfiles/DAA_II.htm. 5
Assuming arguendo that HALLEX supported Cage’s burden argument, 6
and forgetting for the moment that it is no longer effective, we 7
would decline to defer to it for the same reasons we decline to 8
defer to the Teletype as construed by Cage. 9
15
persuade. See United States v. Mead Corp., 533 U.S. 218, 227-29 1
(2001); Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). The 2
same four reasons that support our conclusion that the burden of 3
proving DAA immateriality rests with the claimant render the 4
Teletype, as construed by Cage, unpersuasive: (1) claimants bear 5
the general burden of proving they are “disabled,” the definition 6
of which excludes disabilities materially caused by DAA; (2) 7
claimants are better positioned to offer evidence relevant to DAA 8
materiality; (3) the Teletype’s burden allocation undermines the 9
CAAA’s aims; and (4) neither Congress nor the Commissioner has 10
acted to “correct” the judiciary’s imposition of this burden upon 11
claimants. Therefore, to the extent Cage’s reading of the 12
Teletype is correct, we decline to defer to it. 2 See Parra, 481 13
F.3d at 749 (the Teletype’s “interpretation is unpersuasive 14
because it contradicts the purpose of the [CAAA]”). 15
III. The Sufficiency of the Evidence 16
Cage next argues that, regardless of who bears the burden of 17
proof on DAA materiality, the record did not permit the ALJ’s 18
determination that she would not be disabled absent DAA. 19

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3 In Salazar, the Tenth Circuit read the Teletype as 1
“instruct[ing]” that a finding of DAA immateriality be made 2
“where the record is devoid of any medical or psychological 3
report, opinion, or projection as to the claimant’s remaining 4
limitations” in the absence of DAA. 468 F.3d at 624. The 5
relevant portion of the Teletype, however, refers not to cases in 6
which the record lacks predictive opinions, but in which the 7
medical or psychological consultants “cannot project what 8
limitations would remain if the individuals stopped using 9
drugs/alcohol” (emphasis added). See Doughty, 245 F.3d at 1280- 10
81 (rejecting the notion that the “Teletype imposes a new 11
requirement upon the ALJ to seek a consultant’s opinion when 12
making a materiality determination”). But even were we to agree 13
with the Tenth Circuit’s reading of the Teletype, we would 14
decline to defer to this instruction because we find its 15
rationale unpersuasive. 16
16
In briefing this appeal, Cage originally advocated a bright- 1
line rule that “an ALJ cannot find that drug or alcohol use is a 2
contributing factor where there is no medical opinion addressing 3
the issue,” Appellant Br. at 36 –- a position that the Tenth 4
Circuit alone has endorsed based on its reading of the Teletype, 5
see Salazar, 468 F.3d at 624. 3 We believe that such a rule, 6
found nowhere in the U.S. Code or C.F.R., is unsound. It would 7
unnecessarily hamper ALJs and impede the efficient disposition of 8
applications in circumstances that demonstrate DAA materiality in 9
the absence of predictive opinions. See McGill v. Comm’r of Soc. 10
Sec., 288 F. App’x 50, 53 (3d Cir. 2008) (rejecting the 11
“argu[ment] that any determination that DAA is material to the 12
finding of disability must be based on expert psychiatric opinion 13
evidence”); Doughty, 245 F.3d at 1280-81. 14
15

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17
In her reply brief, Cage disclaimed the above bright-line 1
rule and argued only that a predictive medical opinion is 2
necessary in cases, including hers, in which “‘it is not possible 3
for an ALJ to separate the limitations imposed by substance abuse 4
[and] by other non-DAA impairments,’” Appellant Reply Br. at 21. 5
By arguing that it was “not possible” for the ALJ to find DAA 6
materiality in her case, Cage in substance is advancing a 7
sufficiency-of-the-evidence challenge: Was the ALJ’s finding of 8
DAA materiality supported by substantial evidence, 9
notwithstanding the lack of a consultive opinion predicting her 10
impairments in the absence of drug or alcohol abuse? 11
In proceeding through the five-step sequential analysis, the 12
ALJ made the following pertinent findings: At step three, he 13
determined that Cage was per se disabled under Listings 12.04 14
(affective disorder), 12.08 (personality disorder) and 12.09 15
(substance addiction disorder). See 20 C.F.R. pt. 404, subpt. P, 16
app. 1 (setting forth the Listings). Each of those Listings 17
required findings that Cage suffered from two of the four so- 18
called “Paragraph B” symptoms. The ALJ made such findings, 19
concluding that Cage suffered marked difficulties in social 20
functioning and with regard to concentration, persistence or 21
pace. The ALJ then found that, in the absence of DAA, Cage would 22
only suffer moderate difficulties in those respects. With this 23
improvement, Cage would no longer qualify as per se disabled 24

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18
under the Listings, so the ALJ proceeded to steps four and five. 1
Based on the testimony of a vocational expert, the ALJ found that 2
Cage’s impairments in the absence of DAA would allow her to work. 3
Thus, at issue are the ALJ’s findings that Cage’s 4
difficulties with social functioning, and with concentration, 5
persistence and pace, would improve from “marked” to “moderate” 6
in the absence of DAA. In our plenary review of the 7
administrative record, we conclude that those findings were 8
supported by substantial evidence. Cage concedes that a finding 9
of DAA materiality appropriately could be made based on “medical 10
evidence . . . during periods of sobriety [demonstrating] that 11
the claimant would not otherwise be disabled absent the DAA,” 12
Appellant Br. at 30. While the record does not reveal any 13
extended periods of sobriety during the relevant period following 14
Cage’s May 2004 application date, it does include, inter alia, 15
positive evaluations of Cage conducted during inpatient 16
admissions when Cage did not have access to drugs or alcohol. 17
Specifically, the record reflects that (1) mental status 18
evaluations, though not ideal in all respects, demonstrated that 19
she “made good eye contact,” was “cooperative,” spoke normally, 20
had coherent or linear thought processes, had average 21
intelligence and knowledge, and was alert; (2) Cage reportedly 22
had the ability to “perform rote tasks,” “follow simple 23
instructions” and “handle her finances”; and (3) Cage was 24

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19
evaluated as being able to “interact with others adequately.” 1
And, as to the effect of Cage’s DAA on her other impairments, the 2
record included the following evidence: (1) an addiction 3
therapist’s opinion that Cage’s DAA “made worse” her medical and 4
emotional issues; (2) Cage’s admission that she had attempted 5
suicide only when under the influence; (3) Cage’s admission that 6
her DAA was “not helpful” to her mental health; (4) that Cage had 7
used crack cocaine the two times she reported hearing voices; and 8
(5) that Cage told a treating physician that she was depressed 9
because she had spent her money on cocaine. 10
Taken together, this is “relevant evidence [that] a 11
reasonable mind might accept as adequate to support [the] 12
conclusion,” Zabala v. Astrue, 595 F.3d 402, 408 (2d Cir. 2010) 13
(internal quotation marks and citation omitted), that Cage’s 14
difficulties with social functioning, and with concentration, 15
persistence and pace, would improve from “marked” to “moderate” 16
in the absence of DAA. Faced with this substantial evidence, we 17
must uphold these findings and, consequently, the ALJ’s 18
determination that Cage would not be disabled were she to 19
discontinue her drug and alcohol abuse. 20
Finally, Cage argues that the same ALJ’s favorable ruling on 21
her reapplication for benefits supports her appeal here. But the 22
favorable ruling in 2009 was based on evidence not in the record 23
on the original application, related in part to different 24

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20
impairments than those at issue in the original application, and 1
expressly stated that the ALJ saw no basis for reopening the 2
original application. The ALJ’s 2009 ruling therefore does not 3
bolster Cage’s claim that the 2008 ruling was not supported by 4
substantial evidence. Cf. Consolo v. Fed. Maritime Comm’n, 383 5
U.S. 607, 620 (1966) (given the deferential standard of review, 6
two contrary rulings on the same record may be affirmed as 7
supported by substantial evidence). 8
CONCLUSION 9
For the foregoing reasons, we AFFIRM the judgment of the 10
district court. 11

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