UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ROGER J. COTTON,

Plaintiff-Appellant,

v.

No. 96-2639

KENNETH S. APFEL, COMMISSIONER OF

SOCIAL SECURITY,

Defendant-Appellee.

Appeal from the United States District Court for the

Southern District of West Virginia, at Beckley.

Elizabeth V. Hallanan, Senior District Judge.

(CA-95-912-5)

Submitted: October 14, 1997

Decided: December 15, 1997

Before WILLIAMS and MICHAEL, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

Roger D. Forman, FORMAN & CRANE, L.C., Charleston, West Virginia, for Appellant. James A. Winn, Chief Counsel, Region III, Anne

von Scheven, Assistant Regional Counsel, Office of the General

Counsel, SOCIAL SECURITY ADMINISTRATION, Philadelphia,

Pennsylvania; Rebecca A. Betts, United States Attorney, Carol A.

Casto, Assistant United States Attorney, Charleston, West Virginia,

for Appellees.
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Roger J. Cotton appeals the district court's order upholding the

decision by the Commissioner of Social Security that he is a medically determined alcoholic with limited intellectual functioning and

therefore entitled to disability insurance benefits and supplemental

security income. Cotton concedes that he is an alcoholic, but argues

that his disability should be based on his intellectual functioning and

his alleged back problems. We affirm.

Cotton claimed disability based on back and hip problems and an

injury to his eyes. After his applications were denied initially and on

reconsideration, Cotton requested a hearing before an ALJ, who

issued a decision fully favorable to Cotton. Evidence in the record

reveals that Cotton had habitually drunk between twelve and twentyfour beers a day for sixteen years and a half-gallon of whiskey on

weekends for fourteen years. The medical expert who testified at the

hearing stated that Cotton's IQ fell between 60 and 70. The ALJ concluded that Cotton was a medically determined alcoholic, see 20

C.F.R. § 416.935 (1997). Given Cotton's limited intellectual capacity

and his alcoholism, which was a significant work-related limitation of

function, the ALJ concluded that he was disabled under 20 C.F.R.

Part 404, Subpt. P, App. 1, § 12.05(C) (1993). The ALJ only briefly

mentioned Cotton's arthritis in his back.

The Appeals Council upheld this decision, which became the final

decision of the Commissioner. Cotton then filed a complaint in district court. A magistrate judge recommended upholding the Commissioner's decision. Over Cotton's objections, the district court adopted

the recommendation.

Cotton now appeals. He concedes his alcoholism and borderline

intellectual functioning, but insists that the Commissioner should

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have considered whether he is disabled independent of his alcoholism.

We must uphold the Commissioner's decision if substantial evidence

supports it and the correct law was applied. See 42 U.S.C.A. § 405(g)

(West Supp. 1997); see also Hays v. Sullivan, 907 F.2d 1453, 1456

(4th Cir. 1990).

In Smith v. Chater, 99 F.3d 635 (4th Cir. 1996), we confronted

facts similar to those before us now. In that case, as here, Smith was

determined to be disabled under Listing 12.05(C) because of mental

retardation and alcoholism. The ALJ made "only passing reference to

Smith's alleged back problems." Id. at 636. Smith, like Cotton,

wished to have her disability based not on mental retardation and

alcoholism, but retardation and back problems. We found that,

because substantial evidence supported the determination that Smith

was a medically determined alcoholic, it was unnecessary to "decide

whether the ALJ's failure to base a disability finding on lower back

pain [was] supported by substantial evidence." Id. at 637 n.4.

Under Smith, then, if substantial evidence supports the finding that

Cotton is a medically determined alcoholic of low intellectual functioning, we need not address his claim of a disabling back condition.

He concedes his alcoholism, and psychologists reported that his test

scores on several IQ tests ranged between 69 and 73. The test results

may have been depressed because Cotton was under the influence of

alcohol when the tests were administered; however, the medical

examiner testified that he felt that Cotton's scores met or equaled

those required by Listing 12.05(C). See 20 C.F.R. § 404.1520(d)

(1997). Given his alcoholism, the test scores, and testimony, substantial evidence supports the Commissioner's finding.

We therefore affirm. We dispense with oral argument because the

facts and legal contentions are adequately presented in the materials

before the court and argument would not aid the decisional process.

AFFIRMED

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