                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 99-3311
                                    ___________

Ivan N. Pettit,                      *
                                     *
             Appellant,              *
                                     * Appeal from the United States
      v.                             * District Court for the Eastern
                                     * District of Arkansas.
Kenneth S. Apfel, Commissioner,      *
Social Security Administration,      *
                                     *
             Appellee.               *
                                ___________

                              Submitted: April 12, 2000

                                   Filed: July 18, 2000
                                    ___________

Before BEAM, ROSS, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                           ___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

       Ivan Pettit applied for disability benefits and supplemental security income in
1995 based on depression and alcoholism. The Social Security Administration denied
his application initially and on reconsideration. After a hearing, an administrative law
judge (ALJ) ruled that Mr. Pettit was not disabled within the meaning of the Social
Security Act because his alcoholism was a contributing factor material to the
determination of disability, see 42 U.S.C. § 423(d)(2)(C), § 1382c(a)(3)(J). The
Appeals Council denied Mr. Pettit's request for review. Mr. Pettit sought judicial
review, and the magistrate judge, sitting by consent of the parties, see 28 U.S.C.
§ 636(c)(1), see also Fed. R. Civ. P. 73(a), affirmed.

       Mr. Pettit appeals. We review de novo the district court's judgment upholding
a denial of social security benefits. See Reeder v. Apfel, No. 99-2917, 2000 WL
709501, at *2 (8th Cir. June 2, 2000). When considering whether the ALJ properly
denied social security benefits to a claimant, we determine whether substantial evidence
in the record as a whole supports the ALJ's factual findings, and whether the ALJ's
decision is based on legal error. See Clark v. Chater, 75 F.3d 414, 416 (8th Cir. 1996).
In deciding whether substantial evidence exists, we examine the evidence supporting
and detracting from the decision. See Cox v. Apfel, 160 F.3d 1203, 1206 (8th Cir.
1998). In this case, we vacate the judgment and remand for further proceedings.

                                            I.
       The social security regulations provide a five-step process to determine whether
a claimant is disabled. See 20 C.F.R. § 404.1520, § 416.920; see also Bowen v.
Yuckert, 482 U.S. 137, 140-42 (1987). In our case, the ALJ first determined that
Mr. Pettit had not engaged in substantial gainful activity since August 30, 1994, his
alleged onset date, and next found that he had a "severe impairment within the meaning
of the Social Security regulations." See 20 C.F.R. §§ 404.1520(a)-404.1520(c),
§§ 416.920(a)-416.920(c). The third step requires the ALJ to examine the evidence to
determine whether Mr. Pettit's impairments met or equaled a list of impairments
generally presumed to be severe enough to preclude any gainful work. See 20 C.F.R.
pt. 404, subpt. P, app. 1. The ALJ determined that Mr. Pettit's "long term history of
alcohol abuse and related symptoms" met the criteria for § 12.09 (substance addiction
disorders) in the list of impairments. See 20 C.F.R. pt. 404, subpt. P, app. 1, pt. A,
§ 12.09.




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       Unlike other sections of disorders in the list of impairments, § 12.09 does not
have its own set of requirements. See 20 C.F.R. pt. 404, subpt. P, app. 1, pt. A,
§ 12.00A. To find that Mr. Pettit met the requirements for § 12.09, the ALJ had to find
that Mr. Pettit's substance addiction resulted in at least one of a number of other
specified listings. See 20 C.F.R. pt. 404, subpt. P, app. 1, pt. A, § 12.00A. Here the
ALJ indicated on a standardized psychiatric review technique form that Mr. Pettit met
the requirements for a substance addiction disorder because his depression met the
requirements for § 12.04 (affective disorders), see 20 C.F.R. pt. 404, subpt. P, app. 1,
pt. A, § 12.04. It therefore appears from the record that the ALJ found that Mr. Pettit's
alcohol abuse resulted in disabling depression.

       Although generally a claimant who meets the requirements for one of the
disorders in the list of impairments is considered disabled without further inquiry, see
Yuckert, 482 U.S. at 141, legislation passed in 1996 precludes a claimant from
obtaining disability benefits or supplemental security income if either alcoholism or
drug addiction is a "contributing factor material to the [Social Security
Administration's] determination that the individual is disabled," see 42 U.S.C.
§ 423(d)(2)(C), § 1382c(a)(3)(J). This provision is applicable to all pending cases, see
Jackson v. Apfel, 162 F.3d 533, 537 (8th Cir. 1998), and here the ALJ applied the
provision to deny benefits to Mr. Pettit, based on a finding that his alcoholism was a
contributing factor material to the finding of disability.

                                            II.
       Mr. Pettit contends that substantial evidence does not support the ALJ's finding
that his alcoholism was a material factor in the determination that he was disabled, and
thus argues that he should be awarded benefits based on his depression. A claimant has
the initial burden of showing that alcoholism or drug addiction is not material to the
finding of disability. See Brown v. Apfel, 192 F.3d 492, 497-98 (5th Cir. 1999), cited
with approval in Mittlestedt v. Apfel, 204 F.3d 847, 852 (8th Cir. 2000). The "key

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factor" in determining whether drug addiction or alcoholism is material to a
determination of disability is whether the claimant would still be found disabled if he
or she stopped using drugs or alcohol. See 20 C.F.R. § 404.1535(b)(1); see also
Jackson, 162 F.3d at 537. The focus of the inquiry is on the impairments remaining if
the substance abuse ceased, and whether those impairments are disabling, regardless
of their cause. See 20 C.F.R. § 404.1535(b)(1); see also Jackson, 162 F.3d at 537-38.

       Determining whether a claimant would still be disabled if he or she stopped
drinking is, of course, simpler if the claimant actually has stopped. See Jackson, 162
F.3d at 537. Here Mr. Pettit argues that he virtually stopped drinking in 1994, long
before the ALJ found that his depression met the requirements for § 12.04. At the
hearing before the ALJ, Mr. Pettit testified that when he entered a Veterans
Administration (VA) alcoholism treatment program in 1994, he stopped drinking and
that afterward (in 1996) he had only one "incident" of drinking. His early treatment
records indicate that he stopped drinking when he was admitted to the VA hospital for
detoxification in 1994. Mr. Pettit's 1995 therapy records indicate that in February he
"maintained sobriety," that in May he was continuing treatment "w/5 months sobriety,"
and that in October he had a "depressed affect" but that there was "no drinking."

       If Mr. Pettit's testimony regarding his drinking is accepted, we believe that the
pertinent inquiry is whether his depression rendered him disabled after he entered
treatment in 1994. Cf. Jackson, 162 F.3d at 537-38. Significantly, in concluding that
Mr. Pettit's depression caused two of the functional limitations necessary to meet the
requirements of § 12.04, see 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.04B (functional
limitations), the ALJ relied on Mr. Pettit's statements about limitations that he
experienced well after his entry into treatment. We also note that, according to the
evidence in the record, Mr. Pettit exhibited symptoms of depression long after the time
when he entered treatment for alcoholism and that he was treated for depression with



                                          -4-
medication and therapy. Thus there was evidence that Mr. Pettit stopped drinking and
yet continued to suffer from depression.

       We disagree, however, with Mr. Pettit's contention that we should direct the
Social Security Administration to award benefits to him. Mr. Pettit had the initial
burden of proof, and we do not believe that the record compels the conclusion that
Mr. Pettit refrained from drinking but was nonetheless disabled by depression. We also
believe that two statements that Mr. Pettit made on social security forms in 1996 can
be fairly characterized as ambiguous as to whether he was drinking: When asked to
describe his "pain or other symptoms," Mr. Pettit stated that "[c]onstant depression
causes inability to cope with surrounding[s] & leads to drinking." On a different form
he stated that "[d]ue to anxiety, depression, & other emotional health problems that
lead to drinking [I] cannot maintain a job working in public."

       We nevertheless believe that this case should be remanded because the ALJ's
factual findings are insufficient for our review. Cf. Senne v. Apfel, 198 F.3d 1065,
1067-68 (8th Cir. 1999). We are unable to determine with certainty from the record
why, although the ALJ found that Mr. Pettit met the requirements of § 12.04 for
depression, and despite Mr. Pettit's testimony that, but for one incident, he stopped
drinking in 1994, the ALJ concluded that alcohol abuse was material to the finding of
disability.

       Initially, we note that the ALJ's decision relied, in part, on Mr. Pettit's "long term
history of alcohol abuse and related symptoms." That decision, however, predates our
holding in Jackson, 162 F.3d at 535, 537, that even if long-term alcohol abuse causes
a disability, alcoholism will not be found "material" to the finding of disability if the
disability remains after the claimant stops drinking. With regard to Mr. Pettit's
depression, although it appears from the psychiatric review technique form that the ALJ
found that Mr. Pettit met the requirements for depression throughout the relevant

                                            -5-
period, the ALJ does not mention § 12.04 in his written decision. In fact, the ALJ does
not examine the degree to which Mr. Pettit's depression exists, or would exist, absent
his drinking; nor does the decision address whether (as the Social Security
Administration argues) Mr. Pettit's depression is controllable with medication. The
ALJ's decision thus does not specifically address Mr. Pettit's claim that he suffers from
disabling depression.

      Furthermore, although the ALJ's conclusion that "but for alcohol abuse
[Mr. Pettit] could perform his past relevant work" might indicate a finding that
Mr. Pettit continued to drink during the relevant time period, the ALJ did not expressly
make such a finding. Because Mr. Pettit's testimony that he stopped drinking when he
entered treatment in 1994 is not mentioned in the ALJ's decision, we cannot determine
whether the ALJ actually considered this evidence. Cf. Smith v. Heckler, 735 F.2d
312, 317 (8th Cir. 1984) (ALJ must specifically discuss rejection of claimant's
witnesses' testimony and must make express credibility determinations). We therefore
remand this case for reconsideration and for more specific findings regarding the
above-mentioned issues.

       On remand, as we have said, the ALJ must address more specifically Mr. Pettit's
claim that he is disabled by depression. Mr. Pettit will have the burden of showing that
alcoholism is not material to his disability. He may thus attempt to show that, absent
drinking, his depression meets the requirements of § 12.04, and, if he is unable to do
so, he must establish that, absent drinking, his depression prevents him from performing
his past relevant work. If he does so, the burden then shifts to the Social Security
Administration to show that if Mr. Pettit does not drink, he can perform other jobs
available in the national economy. See Cox, 160 F.3d at 1206.




                                          -6-
                                         III.
      Accordingly, we vacate the judgment of the district court and remand the case
to the district court with instructions to remand the case to the Social Security
Administration for further consideration consistent with this opinion.

      A true copy.

            Attest:

               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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