Brown v. Chater ( 1997 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 29 1997
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
WILLIAM E. BROWN,
Plaintiff-Appellant,
v. No. 97-6095
(D.C. No. 96-CV-719)
JOHN J. CALLAHAN, Acting (W.D. Okla.)
Commissioner, Social Security
Administration,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before KELLY, McKAY, and BRISCOE, Circuit Judges.
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); 10th Cir. R. 34.1.9. 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This order and judgment is not binding precedent, except under the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. 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.
Following a lengthy procedural history which we will not repeat here,
plaintiff William E. Brown appeals the district court’s order affirming the
Commissioner’s latest determination that he is not entitled to disability benefits.
We affirm.
We review the Commissioner’s decision to determine whether his factual
findings are supported by substantial evidence in light of the entire record and to
determine whether he applied the correct legal standards. See Castellano v.
Secretary of Health & Human Servs., 26 F.3d 1027, 1028 (10th Cir. 1994).
Substantial evidence is “such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Id. (quotations omitted). In the course of
our review, we may “neither reweigh the evidence nor substitute our judgment for
that of the agency.” Casias v. Secretary of Health & Human Servs., 933 F.2d 799,
800 (10th Cir. 1991).
Mr. Brown alleged disability due to injuries to his back and left wrist,
resulting back pain, and diabetes. The administrative law judge (ALJ) determined
at step five of the five-step sequential process, see Williams v. Bowen, 844 F.2d
748, 750-52 (10th Cir. 1988), that Mr. Brown was not disabled as he could
perform sedentary work.
On appeal, Mr. Brown argues that the ALJ failed to evaluate fully his
medical records as to the combined impact of his impairments. Mr. Brown
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contends he is disabled at step three due to his back injury. See 20 C.F.R. Pt.
404, Subpt. P, App. 1, § 1.05(C). At step three, the ALJ must determine whether
a claimant’s impairment is equivalent to one of the listed impairments the
Commissioner has determined are “so severe as to preclude substantial gainful
activity.” See Williams, 844 F.2d at 751 (quotation omitted); see also 20 C.F.R.
§ 404.1520(d). Listing 1.05(C) requires that the claimant have a vertebrogenic
disorder which has persisted for at least three months despite prescribed therapy
and is expected to last twelve months. The vertebrogenic disorder will be deemed
disabling upon repeated findings, see 20 C.F.R. Pt. 404, Subpt. P, App. 1, §
1.00B, of “[p]ain, muscle spasm, and significant limitation of motion in the
spine,” as well as “[a]ppropriate radicular distribution of significant motor loss
with muscle weakness and sensory and reflex loss.” Id. § 1.05(C).
The evidence showed that none of Mr. Brown’s treating physicians has
opined that Mr. Brown is disabled. While the physicians acknowledge he
experiences pain, physical findings show neither atrophy of his leg muscles nor
marked limitations of his range of motion. Electromyograms have shown no
abnormalities. One doctor of osteopathy did opine that Mr. Brown was totally
disabled whether or not “orthopedic or neurological evaluation confirms that
opinion.” Appellant’s App. at 268. The ALJ properly rejected this opinion. See
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Castellano, 26 F.3d at 1029. Mr. Brown failed to show that he met the
requirements of § 1.05(C).
Mr. Brown argued to the district court that he could not perform the full
range of sedentary work and, because of that, the ALJ erred in determining he was
not disabled. On appeal, Mr. Brown appears to have accepted the district court’s
correct determination that a claimant need only be able to perform other work
existing in the national economy, not the full range of work in a specified
exertional range in order to be determined not to be disabled. See Williams, 844
F.2d at 751; 20 C.F.R. § 404.1520(f).
Abandoning that issue, Mr. Brown now presents the new argument that the
ALJ did not evaluate all the evidence in determining he could perform sedentary
work. We will not consider arguments not presented to the district court. See
Crow v. Shalala, 40 F.3d 323, 324 (10th Cir. 1994).
The judgment of the United States District Court for the Western District of
Oklahoma is AFFIRMED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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