                             UNPUBLISHED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Affirmed by unpublished opinion.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Unpublished opinions are not binding precedent in this circuit.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

                                            5
- 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

                                           6
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

                                            7
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

                                            8
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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