UNPUBLISHED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Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Roger D. Forman, FORMAN & CRANE, L.C., Charleston, West Vir-
ginia, 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Unpublished opinions are not binding precedent in this circuit.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 medi-
cally 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 twenty-
four 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 con-
cluded 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 dis-
trict court. A magistrate judge recommended upholding the Commis-
sioner'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

                    2
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, 

, 1456
(4th Cir. 1990).

In Smith v. Chater, 

(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." 

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." 

Under Smith, then, if substantial evidence supports the finding that
Cotton is a medically determined alcoholic of low intellectual func-
tioning, 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, substan-
tial 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

                    3