Scott Delk v. Carolyn Colvin

Filing

UNPUBLISHED AUTHORED OPINION filed. Originating case number: 2:14-cv-00505-RBS-DEM Copies to all parties and the district court/agency. [1000005325].. [15-1690]

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UNPUBLISHED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Affirmed by unpublished opinion.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.
________________

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Unpublished opinions are not binding precedent in this circuit.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,

persons.

“The

which

provides

statutory

benefits

definitions

to
and

indigent
the

disabled

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”
gainful

as

activity

an
by

inability
reason

to
of

engage
any

in

any

medically

substantial
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).

determination,

an

ALJ

is

In

making

required

to

a

conduct

disability
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

dependence,

Delk

suffers

tachycardia,

from

depression,

diverticulosis,

anxiety,
and

alcohol

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
4

the

claimant’s

residual

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functional

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capacity,

age,

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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 fivestep 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

contributing

if

alcoholism

factor

to

the

or

drug

addiction

disability

is

finding.

a

See

material
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

analysis.”).

The

does

not

regulations

end

with

implementing

the
these

five-step
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

“perform

that
light

if

Delk

level

stopped
work

his

and

alcohol
sustain

use,

he

attention

could
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
7

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
8

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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