F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JAN 30 2002
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
RANDALL BELLAMY,
Plaintiff-Appellant,
v. No. 01-5070
(D.C. No. 99-CV-1079-J)
LARRY G. MASSANARI, * Acting (N.D. Okla.)
Commissioner of the Social Security
Administration ,
Defendant-Appellee.
ORDER AND JUDGMENT **
Before LUCERO , PORFILIO , and ANDERSON , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
*
On March 29, 2001, Larry G. Massanari became the Acting Commissioner
of Social Security. In accordance with Rule 43(c)(2) of the Federal Rules of
Appellate Procedure, Mr. Massanari is substituted for William A. Halter as the
appellee in this action.
**
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
Claimant Randall Bellamy appeals from the district court’s order affirming
the decision of the Commissioner of Social Security. In that decision, the
Commissioner determined that claimant was not entitled to disability insurance
benefits and supplemental security income benefits under Titles II and XVI of the
Social Security Act. See 42 U.S.C. §§ 423, 1382. We exercise jurisdiction under
42 U.S.C. § 405(g) and 28 U.S.C. § 1291, and affirm.
Claimant was awarded benefits commencing November 1, 1993, for
disability due to severe alcoholism with secondary mental illness. At the time,
the Commissioner noted that “[b]ut for [claimant’s] substance abuse,” there
would be no “finding of disability in this case” and that claimant’s “alcoholism
and drug [addiction] was a contributing factor material to [the] disability
decision.” Appellant’s App., Vol. 4 at 250. In 1996, Congress amended the
applicable statutory standards. Under the amended provisions, “[a]n individual
shall not be considered to be disabled for purposes of this subchapter if
alcoholism or drug addiction would (but for this subparagraph) be a contributing
factor material to the Commissioner’s determination that the individual is
disabled.” 42 U.S.C. §§ 423(d)(2)(C), 1382c(a)(3)(J). The implementing
regulations specify: “If we find that you are disabled and have medical evidence
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of your drug addiction or alcoholism, we must determine whether your drug
addiction or alcoholism is a contributing factor material to the determination of
disability.” 20 C.F.R. §§ 404.1535(a), 416.935(a). The relevant inquiry became
“whether [the Commissioner] would still find you disabled if you stopped using
drugs or alcohol.” Id. , §§ 404.1535(b)(1), 416.935(b)(1).
Subsequently, claimant was notified that, in accordance with the amended
statutes, his benefits would cease. Claimant alleged that his disability existed
independent of his drug or alcohol addiction. After a hearing held February 6,
1998, an administrative law judge (ALJ) found that excluding the effects of
claimant’s substance abuse, he has the residual functional capacity to perform
a range of medium work and that a significant number of jobs existed in the
national economy which claimant could perform. 1
Accordingly, the ALJ
determined that claimant was not under a disability as defined in the Social
Security Act. Claimant sought review in the district court, which affirmed the
denial of benefits. 2
He now appeals.
1
Limitations found by the ALJ included “only occasional handling with the
right dominant hand; no contact with the public and only occasional contact with
co-workers; and no production quotas, with only repetitive work involving simple
instructions.” Appellant’s App., Vol. 2 at 19, 22.
2
The parties consented to proceed before a magistrate judge in accordance
with 28 U.S.C. § 636(c).
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In this court, claimant essentially challenges the ALJ’s findings of facts.
He asserts that the ALJ erred in finding: (1) that he has only one severe
impairment–anxiety disorder; (2) that his alleged impairments do not meet or
equal listings for schizophrenia, paranoia or other psychotic disorders; and
(3) that he has the residual functional capacity to perform jobs existing in
significant numbers in the national economy, without sufficient consideration of
his alleged agoraphobia or his ratings on the Global Assessment of Functioning
scale. 3 Claimant also asserts error in the ALJ’s evaluation of his credibility.
We review the agency’s decision on the whole record to determine only
whether the factual findings are supported by substantial evidence and the correct
legal standards were applied. Goatcher v. United States Dep’t of Health &
Human Servs. , 52 F.3d 288, 289 (10th Cir. 1995). We may not reweigh the
evidence or substitute our judgment for that of the agency. See Kelley v. Chater ,
62 F.3d 335, 337 (10th Cir. 1995). “Credibility determinations are peculiarly
the province of the finder of fact,” and should not be upset if supported by
substantial evidence. Kepler v. Chater , 68 F.3d 387, 391 (10th Cir. 1995)
(quotation omitted).
3
The Global Assessment of Functioning, or GAF, scale is used by clinicians
to report an individual’s overall level of functioning. See American Psychiatric
Assoc., Diagnostic and Statistical Manual of Mental Disorders 34 (4th ed. 2000).
The scale does not evaluate impairments caused by physical or environmental
factors. See id.
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After carefully reviewing the record, we conclude that, contrary to
claimant’s contentions, there is substantial evidence to support the
Commissioner’s determination that claimant’s drug or alcohol addiction is
a contributing factor material to his disability. For substantially the reasons
stated in the thorough order of the magistrate judge, filed March 26, 2001,
we AFFIRM.
Entered for the Court
Stephen H. Anderson
Circuit Judge
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