                                                                          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      This order and judgment is not binding precedent, except under the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).

                                               -3-
       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.

                                            -4-
      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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