* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions 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 desi gnation. 

## F I L E D United States Court of Appeals Tenth Circuit 

### FEB 27 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
JIMMY YZAGUIRRE,

Plaintiff - Appellant,

v. JO ANNE B. BARNHART, Commissioner, Social Security Administration,

Defendant - Appellee. No. 02-6024 (D.C. No. CIV-01-444-R) (W.D. Oklahoma)

ORDER AND JUDGMENT *

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

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral-2-

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 admini strative law judge (ALJ) used an incorrect standard to determine claimant’s eligibil ity 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 impai rment. After a hearing, the ALJ held that there was “substantial evidence” to f ind 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 d enied review, making the ALJ’s determination the final decision of the Commi ssioner. 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 evid ence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales , 402-3-

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 l aw by using the “substantial evidence” standard instead of the “preponderance of the evidence” standard. Aplt. Br. at 19-21. The Commissioner ar gues that we should not consider this issue because it was not raised to th e 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 wi lling 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 & Hum an Servs. , 52 F.3d 288, 289-90 n.2 (10th Cir. 1995). We bel ieve the question of whether the ALJ applied the correct standard of pro of meets this criteria, and therefore elect to consider the issue. The Social Security Act does not specify what stand ard of proof the agency should apply in determining whether a claimant is d isabled. The circuits that have considered this issue have concluded that “the preponderance of the evidence is the proper standard, as it is the defau lt standard in civil and administrative proceedings.” Jones ex rel. Jones v. Chater , 101 F.3d 509, 512-4-

(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 app lies to disability determinations under the Social Security Act. Although the Supreme Court has not directly address ed the question, it has held that the preponderance of the evidence standar d 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 underAdministrative Procedure Act is “traditional” preponderance standard); Richardson , 402 U.S. at 409 (noting similarity in administrative procedure between Soci al 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 factu al findings to which we defer, however, must result from a weighing of the evidenc e to decide whether a-5-

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 entire ly distinct purposes” and sought to engraft a standard of appellate review upon the fa ct finding process. Charlton v. FTC , 543 F.2d 903, 907 (D.C. Cir. 1976). The Commissioner argues that claimant’s challenge s hould be deemed waived because claimant cannot show beyond a reason able doubt that he would have been found disabled had the correct standard b een applied. This argument misconstrues the exception to the waiver rule, howe ver. 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 proo f applies is a legal issue that may be determined with certainty. The Commissioner also argues that the ALJ’s referen ce to substantial evidence does not mean that he used the wrong stand ard, and that based on the medical evidence the ALJ’s statement was harmless e rror. 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 w as “substantial evidence to find the claimant is not disabled,” Aplt. App. at 1 3, the ALJ’s decision may rest-6-

on less than a preponderance of the evidence, or may even rest on claimant’s inability to negate the existence of substantial ev idence. 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 commi tted legal error and that his decision cannot stand. Because the decision must b e reversed, we do not address claimant’s second argument that the ALJ failed to a ssess the mental demands of his former work. The judgment of the United States District Court fo r the Western District of Oklahoma is REVERSED, and the case is REMANDED withdirections to further remand the case to the Commissioner for additional proceedings.

Entered for the Court

Terrence L. O’Brien Circuit Judge