                                                                             F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              FEB 27 2003
                            FOR THE TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                   Clerk

    JIMMY YZAGUIRRE,

                Plaintiff - Appellant,

    v.                                                   No. 02-6024
                                                   (D.C. No. CIV-01-444-R)
    JO ANNE B. BARNHART,                              (W.D. Oklahoma)
    Commissioner, Social Security
    Administration,

                Defendant - Appellee.


                             ORDER AND JUDGMENT           *




Before O’BRIEN and PORFILIO , Circuit Judges, and             KANE , ** Senior District
Judge.




         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




*
      This order and judgment is not binding precedent, except under the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.
**
      The Honorable John L. Kane, Senior District Judge, United States District
Court for the District of Colorado, sitting by designation.
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

      Claimant Jimmy Yzaguirre appeals the district court’s affirmance of the

decision by the Commissioner of Social Security denying his application for

disability benefits. Because it appears the administrative law judge (ALJ) used an

incorrect standard to determine claimant’s eligibility for benefits, we reverse and

remand to the district court with directions to further remand the case to the

Commissioner for additional proceedings.

      Claimant filed for disability benefits alleging an inability to work after

April 1, 1996, due to alcoholism and a mental impairment. After a hearing, the

ALJ held that there was “substantial evidence” to find that the claimant was not

disabled, and concluded that claimant retained the ability to return to his former

work. Aplt. App. at 13, 16. The Appeals Council denied review, making the

ALJ’s determination the final decision of the Commissioner. The district court

affirmed, and this appeal followed.

      We review the Commissioner’s decision only to determine whether it is

supported by substantial evidence and whether legal errors occurred. See

Castellano v. Sec’y of Health & Human Servs., 26 F.3d 1027, 1028 (10th Cir.

1994). Substantial evidence is “such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.” Richardson v. Perales, 402


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U.S. 389, 401 (1971) (further quotation omitted). We may not reweigh the

evidence or substitute our judgment for that of the agency. Casias v. Sec’y of

Health & Human Servs., 933 F.2d 799, 800 (10th Cir. 1991).

       Claimant argues that the ALJ erred as a matter of law by using the

“substantial evidence” standard instead of the “preponderance of the evidence”

standard. Aplt. Br. at 19-21. The Commissioner argues that we should not

consider this issue because it was not raised to the district court. In general, we

will not consider an issue raised for the first time on appeal.   See Crow v. Shalala ,

40 F.3d 323, 324 (10th Cir. 1994). We have been willing to consider such an

issue, however, when it involves a question of law, the resolution of which is

beyond reasonable doubt, and the failure to address the issue would result in a

miscarriage of justice.   See Goatcher v. United States Dep’t of Health & Human

Servs. , 52 F.3d 288, 289-90 n.2 (10th Cir. 1995). We believe the question of

whether the ALJ applied the correct standard of proof meets this criteria, and

therefore elect to consider the issue.

       The Social Security Act does not specify what standard of proof the agency

should apply in determining whether a claimant is disabled. The circuits that

have considered this issue have concluded that “the preponderance of the

evidence is the proper standard, as it is the default standard in civil and

administrative proceedings.”      Jones ex rel. Jones v. Chater , 101 F.3d 509, 512


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(7th Cir. 1996); see also Gibson v. Heckler , 762 F.2d 1516, 1518 (11th Cir.

1985); Breeden v. Weinberger , 493 F.2d 1002, 1005-06 (4th Cir. 1974). We agree

that the preponderance of the evidence standard applies to disability

determinations under the Social Security Act.

       Although the Supreme Court has not directly addressed the question, it has

held that the preponderance of the evidence standard applies in other agency

adjudications, including disability proceedings.      See, e.g. , Mullins Coal Co. v.

Dir., Office of Workers’ Comp. Programs         , 484 U.S. 135, 156-61 & n.35 (1987)

(holding that under black lung disability statute which did not specify quantum of

proof, miners must “establish” the facts entitling them to a statutory presumption

by a preponderance of the evidence);     see also Steadman v. SEC , 450 U.S. 91,

98-102 (1981) (holding that standard of proof under Administrative Procedure

Act is “traditional” preponderance standard);       Richardson , 402 U.S. at 409 (noting

similarity in administrative procedure between Social Security Act and APA).

       In contrast, the “substantial evidence” standard is an appellate standard of

review which requires a reviewing court to defer to agency factual findings if they

are supported by substantial evidence.     See 42 U.S.C. § 405(g) (“The findings of

the Commissioner of Social Security as to any fact, if supported by substantial

evidence, shall be conclusive . . . .”). The factual findings to which we defer,

however, must result from a weighing of the evidence to decide whether a


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claimant’s disability has been shown by a preponderance of the evidence.      See

Steadman , 450 U.S. at 98-100 (describing the difference between an evidentiary

weighing process and judicial review). By stating that there was “substantial

evidence” to support his finding that claimant was not disabled, the ALJ

“confused two legal canons designed to serve entirely distinct purposes” and

sought to engraft a standard of appellate review upon the fact finding process.

Charlton v. FTC , 543 F.2d 903, 907 (D.C. Cir. 1976).

      The Commissioner argues that claimant’s challenge should be deemed

waived because claimant cannot show beyond a reasonable doubt that he would

have been found disabled had the correct standard been applied. This argument

misconstrues the exception to the waiver rule, however. It is the resolution of the

purely legal question that must be certain, not the ultimate outcome of the

proceeding. The question of which standard of proof applies is a legal issue that

may be determined with certainty.

      The Commissioner also argues that the ALJ’s reference to substantial

evidence does not mean that he used the wrong standard, and that based on the

medical evidence the ALJ’s statement was harmless error. There is no indication

that the ALJ used a standard other than the one he explicitly articulated, however,

which was legally incorrect. By concluding there was “substantial evidence to

find the claimant is not disabled,” Aplt. App. at 13, the ALJ’s decision may rest


                                          -5-
on less than a preponderance of the evidence, or may even rest on claimant’s

inability to negate the existence of substantial evidence. Further, claimant’s

medical evidence is not so lacking as to permit us to hold that he is not disabled

as a matter of law. We conclude that the ALJ committed legal error and that his

decision cannot stand. Because the decision must be reversed, we do not address

claimant’s second argument that the ALJ failed to assess the mental demands of

his former work.

      The judgment of the United States District Court for the Western District of

Oklahoma is REVERSED, and the case is REMANDED with directions to further

remand the case to the Commissioner for additional proceedings.



                                               Entered for the Court



                                               Terrence L. O’Brien
                                               Circuit Judge




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