1 The Honorable Jon Stuart Scoles, Unite d States Magistrate Judge for the Northern District of Iowa, sitting with the consent of the parties pursuant to 28 U.S.C. § 636(c). 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 09-2831

___________ Christopher C. Kluesner, *
* Appellant, * * Appeal from the United States v. * District Court for the Northern * District of Iowa. Michael J. Astrue, Commissioner of * Social Security, *
* Appellee. *

___________ Submitted: April 15, 2010 Filed: June 10, 2010

___________ Before RILEY, Chief Judge, COLLOTON and BENTON, Circuit Judges.

___________ BENTON, Circuit Judge. Christopher Charles Kluesner appeals the judgment of the district court 1 upholding the Commissioner of Social Security’s denial of his application for disability insurance benefits and supplemen tal security income. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.-2- I.

Kluesner sought benefits, claiming he wa s unable to work due to schizophrenic disorder and major depressive disorder. He has not engaged insubstantial gainful activity since July 3, 2003. His medical hi story begins in May 2004, when he met Jan Lombardi, a licensed mental health counselor , for an intake interview and assessment at the Gannon Mental Health Center. He reported suffering for years from depressive symptoms (poor sleep, fatigue, lack of mo tivation, passive suic idality), and smoking marijuana five times a week. He had been using marijuana since he was 15. Lombardi diagnosed Kluesner with major de pressive disorder, dysthymic disorder (a type of chronic depression), cannabis de pendence, and personality disorder with anti-social personality features. She also gave him a Global Assessment of Functioning (GAF)–a 0-100 score give n by mental-health professionals to subjectively rate the social, occupational, and psychological function of adults–of 45. Lombardi recommended that he stop using marijuana.

One month later, Kluesner met with Afshin Shirani, M.D. Dr. Shirani diagnosed him with cannabi s dependence and substance-induced mood disorder, and gave him a GAF score of 50. He recomme nded that Kluesner stop using marijuana and prescribed Fluoxetine (Prozac).

Dr. Shirani met with Kluesner peri odically until July 23, 2005. Kluesner sometimes admitted but sometimes denied using marijuana. In November 2004, Shirani opined: "It is unlikely that [Klu esner's] symptoms are explained by his cannabis abuse as he seems to have been lo w functioning even before he started using cannabis heavily." Dr. Shirani ultimat ely diagnosed him with schizophrenia, aggravated by substance abuse. During th eir final visit, Dr. Shirani noted that Kluesner "continues to smokecannabis frequently; he states once in a while, but his father states every day." He reminded Kluesner that "cannabis aggravates his-3- condition but he seems unable to reduce or terminate his cannabis use. He is not likely to benefit from substance abuse treatment given his negative symptoms."

In September 2005, Dee E. Wright, Ph. D., reviewed Kl uesner's medical records for a "Psychiatric Review Technique" asse ssment and a mental "Residual Functional Capacity" (RFC) assessment. On the Ps ychiatric Review, she diagnosed Kluesner with schizophrenia, mood disorder, anti-so cial personality disorder, and cannabis dependence. On the mental RFC, she determined that Kluesner faced marked restriction in the activities of daily living, marked difficulties in maintaining social functioning, and moderate difficulties in maintaining concentration, persistence, or pace, and was limited in his ability to carry out detailed instructions, maintain attention and concentrati on for extended periods, get along with co-workers, and respond to changes in the work setting. Dr. Wright concluded that although Kluesner's medically determinable mental impairments do create severe limitations, he has a long history of noncompliance with both his medication regimen and abstinence from marijuana. Specifically, she noted that his use of marijuana contributes materially to his dysfunction, a nd if he were to abst ain from marijuana and alcohol, he could return to work, w ith the limitations outlined in the RFC.

In November 2005, a nurse practitio ner at the Gannon Center reviewed Kluesner’s medications. He denied any cu rrent alcohol or marijuana use, and the nurse practitioner diagnosed him with undi fferentiated schizophr enia and cannabis dependence in remission. In August 2006, Kluesner sought psychiatric care at Hillcrest Mental Health Center (the Gannon Center’s successor). The progress note indicated a diagnosis of undifferentiated schizophrenia and cannabis dependence in remission. The diagnosis remained subs tantially the same for his November 2006, July 2007, and August 2007 visits.

Kluesner applied for both disability in surance benefits and SSI in December 2004, which were denied in February 2005. He did not appeal, but filed again for-4- both benefits in August 2005, which were denied. Kluesner eventually requested a hearing, which took place on August 16, 2007. In his decision, the ALJ denied Kluesner's claims, reasoning th at if he refrained from marijuana abuse, he would be able to perform his past relevant work as a machine set-up operato r and a farm laborer. Because the appeals council denied review, the ALJ's decision is the Commissioner's final decision.

The district court ruled that the conclusions of the ALJ are supported by substantial evidence, finding specifically th at the ALJ (1) correctly determined that substance abuse was a contributing factor ma terial to Kluesner's disability, and (2) properly made a credibility determination re garding Kluesner's subjective claims of disability. Kluesner appeals, arguing that the ALJ (1) wrongly concluded that drug abuse was a contributing factor material to his disability, and (2) improperly evaluated the credibility of his testimony that he had stopped using marijuana.

II.

This court reviews “de novo a district court decision upholding the denial of social security benefits.” Bowman v. Barnhart , 310 F.3d 1080, 1083 (8th Cir. 2002). It “will uphold the Commissioner's decision if it is supported by substantial evidence on the record as a whole.” Finch v. Astrue , 547 F.3d 933, 935 (8th Cir. 2008). “Substantial evidence is less than a pre ponderance but is enough that a reasonable mind would find it adequate to support the conclusion.” Id. (internal quotation marks omitted). “This standard of review require s us to consider the evidence that supports the Commissioner's decision as well as the evidence that detracts from it.” Id. “That we would have come to a di fferent conclusion, however, is not a sufficient basis for reversal.” Id. “If, after review, we find it possi ble to draw two inconsistent positions from the evidence and one of those positions represents the Commissioner's findings, we must affirm the denial of benefits.” Id.-5- In determining whether Kluesner was di sabled, the ALJ applied the five-step sequential evaluation in the soci al security regulations. See 20 C.F.R. § 404.1520(a)(4)(i)-(v) (disability insurance be nefits); 20 C.F.R. § 416.920(a)(4)(i)-(v) (supplemental security income); Bowen v. Yuckert , 482 U.S. 137, 140-42 (1987); Robson v. Astrue , 526 F.3d 389, 392 (8th Cir. 2008). Th e ALJ first determines if the claimant is engaged in substantial gainful ac tivity. If so, the claimant is not disabled. Second, the ALJ determines whether the claimant has a severe medical impairment that has lasted, or is expectedto last, at least 12 months. Third, the ALJ considers the severity of the impairment, specifically wh ether it meets or equals one of the listed impairments. If the ALJ finds a severe impairment that meets the duration requirement, and meets or equals a listed impairment, then the claimant is disabled. However, the fourth step asks whether the claimant has the residual functional capacity to do past relevant wo rk. If so, the claimant is notdisabled. Fifth, the ALJ determines whether the claimant can perform other jobs in the economy. If so, the claimant is not disabled.

The ALJ’s inquiry is complicated by Kluesner’s long history of marijuana abuse. Congress eliminated alcoholism or drug addiction as a basis for obtaining social security benefits. Pub. L. No. 104-121, 110 Stat. 852-56 (1996). "An individual shall not be considered disabledfor purposes of this title if alcoholism or drug addiction would (but for this subparagraph) be a contributing factor material to the Commissioner's determination that th e individual is disabled." 42 U.S.C. 423(d)(2)(C) (disability insurance benefits). See also 42 U.S.C. 1382c(a)(3)(J) (supplemental security income). The claima nt has the burden to prove that alcoholism or drug addiction is not a contributing factor. Estes v. Barnhart , 275 F.3d 722, 725 (8th Cir. 2002). "If the ALJ is unable to determine whether substance use disorders are a contributing factor material to the claimant's otherwise-acknowledged disability, the claimant's burden has been met and an award of benefits must follow. " Brueggemann v. Barnhart , 348 F.3d 689, 693 (8th Cir. 2003) . In other words, on the materiality of his marijuana abuse, a tie would go to Kluesner. See id.-6- In the case of alcoholism and drug addicti on, an ALJ must first determine if a claimant's symptoms, regardless of cause, constitute disability. Id. at 694 (citing 20 C.F.R. § 404.1535(a)) (disability insurance benefits). See also 20 C.F.R. § 416.935 (supplemental security income). If th e ALJ finds a disability and evidence of substance abuse, the next step is to de termine whether those disabilities would exist in the absence of the substance abuse. Id. at 694-95. When a claimant is actively abusing drugs, this inquiry is necessarily hypothetical, and thus more difficult than if the claimant had stopped. Id.

At the first step of the five-step evaluation, the ALJ determined that Kluesner had not engaged in substantia l gainful activity since his a lleged disability onset date. Next, the ALJ concluded that he had three severe medical impairments that limit his ability to perform work, “schizophrenic disorder, major depressive disorder, and drug and alcohol abuse, currently in remission.” The ALJ then determined that Kluesner’s symptoms, regardless of cause, constituted disability.

At the third step, however, the ALJ f ound that in the absence of substance abuse, Kluesner does not have an impairment or combination of impairments that meet or medically equal any listed impairment. At the fourth step, the ALJ determined that in the absence of substan ce abuse, Kluesner w ould have the residual functional capacity to perform his past rele vant work. Thus, th e ALJ concluded that, in the absence of substance abuse, Kluesn er was not disabled within the meaning of the Social Security Act between July 3, 2003, and August 16, 2007.

Kluesner argues that the ALJ erred in concluding that his marijuana use was a contributing factor material to a finding of disability. Specifically, he contends that the ALJ’s finding that his substance abuse was “in remission” at the time of the hearing is inconsistent with the ALJ’s fi nding that substance abuse was a contributing factor material to his disabilities during the relevant period.-7- To the contrary, substantial evidence in the record supports the ALJ’s findings. The record is clear that Kl uesner abused marijuana fro m July 3, 2003 (the beginning of the relevant period), until at least Nove mber 2005. Nearly all the medical evidence in the record is from this tim e. Dr. Shirani noted that marijuana abuse aggravates his schizophrenia and depression. Dr. Wright st ated that his use of marijuana contributes materially to his dysfunction, and if he were to abstai n from marijuana and alcohol, he could return to work, with the limitati ons outlined in the RFC. Thus, even though Kluesner’s substance abuse was in remission at the time of the hearing, it was not for much of the relevant period. See Vester v. Barnhart , 416 F.3d 886, 890 (8th Cir. 2005) (denying benefits to claimant who had been sober for five months at the time of the hearing, but was not for much of the relevant period). Moreover, the medical records from the period that he used marijuana are substantial evidence that his substance abuse was a contributing factor material to his disability.

Similarly, Kluesner asserts that the ALJ’s finding that he was “disabled,” despite his one-and-a-half years of abstinence from marijuana, is inconsistent with the ALJ’s finding that substance abuse is a contributing factor material to his disability. However, the ALJ is required first to c onsider whether a claimant is disabled, regardless of cause, before determining wh ether substance abuse was a contributing factor. See Brueggemann , 348 F.3d at 693. The ALJ’s in itial finding that Kluesner’s symptoms, regardless of cause, constituted disability does not preclude an ultimate finding that substance abuse was a contribu ting factor simply because Kluesner was not abusing marijuana at the time of the hearing.

Kluesner next contends that Dr. Shirani’ s statement, "[i]t is unlikely that [his] symptoms are explained by his cannabis abuse," warrants a finding that marijuana abuse was not a contributing factor material to his disability. While this statement supports Kluesner’s position, the majority of the evidence in the record supports the Commissioner. “If, after review, we fi nd it possible to draw two inconsistent-8- positions from the evidence and one of thos e positions represents the Commissioner's findings, we must affirm the denial of benefits.” Finch , 547 F.3d at 935.
Finally, Kluesner argues that the ALJ, by finding that his substance abuse was a contributing factor material to his disability, implicitly rejected his testimony that he had stopped using marijuana, without conducting a proper credibility analysis. This argument is without merit. The ALJ did not reject Kluesner’s testimony that he had stopped using marijuana; in fact, he found that his substance abuse was “in remission.”

III.

The judgment of the district court is affirmed.

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