Young v. Astrue , 219 F. App'x 840 ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
March 22, 2007
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
JO A N N YO U N G ,
Plaintiff-Appellant,
v. No. 06-6275
(D.C. No. CIV-05-1239-R)
M ICH AEL J. ASTRU E, * (W .D. Okla.)
Commissioner of the Social Security
Administration,
Defendant-Appellee.
OR D ER AND JUDGM ENT **
Before H E N RY, B AL DOC K , and M U RPH Y, Circuit Judges.
Plaintiff Joann Young, proceeding pro se, appeals from the district court’s
judgment affirming the final decision of the Commissioner of Social Security
denying her disability insurance benefits (DIB) under Title II of the Social
*
Pursuant to Fed. R. App. P. 43(c)(2), M ichael J. Astrue is substituted for
Jo Anne B. Barnhart as appellee in this action.
**
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Security Act. W e have jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C.
§ 405(g) and affirm.
I.
In her application for DIB, M s. Young claimed disability due to a blood
disorder (thalassemia), a heart condition (arrhythmia), hypertension, and arthritis.
After her application was denied initially and upon reconsideration, she requested
and received a de novo hearing before an administrative law judge (A LJ).
M s. Young appeared without counsel and offered testimony. A vocational expert
also offered testimony.
In his decision, the A LJ applied the five-step sequential evaluation process
set forth in 20 C.F.R. § 404.1520(a)(4). See generally Williams v. Bowen,
844 F.2d 748, 750-52 (10th Cir. 1988) (explaining steps in detail). At step one,
the ALJ found that M s. Young had not engaged in any substantial gainful activity
since her alleged onset date. At steps two and three, the ALJ found that
M s. Young had a number of impairments, including adjustment disorder with
mixed depression and anxiety, thalassemia, hypertension, hypothyroid, gastric
reflux, mild degenerative disc disease, and mild osteoarthritis. The ALJ found
that, in combination, these impairments w ere severe but not severe enough to
meet or medically equal one of the impairments listed in 20 C.F.R., Part 404,
Subpart P, Appendix 1.
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Finding M s. Young’s subjective complaints not fully credible, the ALJ
determined at step four that she retained the residual functional capacity (RFC) to
“lift up to 20 pounds occasionally and 10 pounds frequently; stand and walk
approximately 6 hours in an 8-hour workday; sit approximately 6 hours in an
8-hour w orkday; and follow directions from a supervisor.” Admin. R. at 16. He
further found that she “should [be] expected to experience some mild to moderate
discomfort and anxiety and some mild difficulty in dealing with the public.” Id.In view of her RFC, the A LJ found that she w as capable of performing her past
relevant work as a telemarketer, data entry worker, and hand packager, and
therefore not disabled at step four of the process. The Appeals Council denied
review, making the ALJ’s decision the Commissioner’s final decision. See Jensen
v. Barnhart, 436 F.3d 1163, 1164 (10th Cir. 2005).
M s. Young then filed a complaint in the district court and demanded a jury
trial. The district judge referred M s. Young’s complaint to a magistrate judge for
a submission of findings and a recommendation pursuant to 28 U.S.C.
§ 636(b)(1)(B) and Fed. R. Civ. P. 72(b). The magistrate judge recommended
that the district court affirm the Commissioner’s decision. After considering
M s. Young’s timely written objections, the district court adopted the magistrate
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judge’s report and recommendation, 1 rejected M s. Young’s demand for a jury
trial, and affirmed the Commissioner’s decision. M s. Young appeals.
II.
M s. Young raises two issues on appeal. Her first issue is: “The SSA Law
Judge and other SSA determination officials did not conduct a true and just
examination of the Plaintiff’s medical records.” Aplt. Br. at 3. She then states
only that agency officials selected medical data from her records to justify that
she does not have severe impairments instead of reviewing her overall medical
condition. Id. Despite the liberal reading we give to the pleadings and other
papers of pro se litigants, see Hall v. Bellmon, 935 F.2d 1106, 1110 & n.3
(10th Cir. 1991), M s. Young’s generalized and conclusory statements w holly fail
to frame or develop any perceived error in the Commissioner’s decision.
Accordingly, she has waived review of any decisional errors in the administrative
process. See M urrell v. Shalala, 43 F.3d 1388, 1390 n.2 (10th Cir. 1994) (holding
that “perfunctory complaints [that] fail to frame and develop an issue [are]
[in]sufficient to invoke appellate review”).
1
Our local rule requires an appellant to include with her opening brief a
copy of a magistrate judge’s report and recommendation when a district court
adopts it. 10th Cir. R. 28.2(A)(1). Because M s. Young did not include a copy of
the magistrate judge’s report and recommendation with her opening brief, the
Commissioner w as required to include it w ith his brief. See 10th Cir. R. 28.2(B)
(“If the appellant’s brief fails to include all the rulings required by (A), the
appellee’s brief must include them.”). Because the Commissioner did not include
a copy of the report and recommendation, we remind him of his obligation to do
so in the future.
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M s. Young’s second issue is that she was denied her right to a jury trial in
the district court. W hether M s. Young was entitled to a jury trial is a question of
law that we review de novo. M ile High Indus. v. Cohen, 222 F.3d 845, 855
(10th Cir. 2000). The statute providing for judicial review of the Commissioner’s
decision, 42 U.S.C. § 405(g), is a waiver of the United States’ sovereign
immunity. See Bowen v. City of New York, 476 U.S. 467, 479 (1986); Huie v.
Bowen, 788 F.2d 698, 705 (11th Cir. 1986). “Since there is no generally
applicable jury trial right that attaches w hen the United States consents to suit,
the accepted principles of sovereign immunity require that a jury trial right be
clearly provided in the legislation creating the cause of action.” Lehman v.
Nakshian, 453 U.S. 156, 162 n.9 (1981).
Section 405(g) does not clearly provide a jury trial right, and another
subsection of § 405 provides that “[n]o findings of fact or decision of the
Commissioner of Social Security shall be reviewed by any person, tribunal, or
governmental agency except as herein provided.” 42 U.S.C. § 405(h). Therefore,
Congress did not clearly provide a jury trial right in the legislation creating a
cause of action for review of a social security benefits decision. Consequently,
the district court properly rejected M s. Young’s demand for a jury trial. See
Ginter v. Sec’y of Dep’t of Health, Educ., & Welfare, 621 F.2d 313, 313-14
(8th Cir. 1980) (per curiam) (holding that district court’s role under § 405(g) “is
limited to review ing the administrative record to determine whether there is
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substantial evidence to support the findings of the [Commissioner]” and that the
court “cannot grant a trial de novo before either the court or a jury”).
III.
The judgment of the district court is AFFIRMED.
Entered for the Court
M ichael R. M urphy
Circuit Judge
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