Kester v. Barnhart

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 22 2003
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
DEBBIE KESTER,
Plaintiff-Appellant,
v. No. 02-7140
(D.C. No. 02-CV-61-S)
JO ANNE B. BARNHART, (E.D. Okla.)
Commissioner, Social Security
Administration,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before KELLY , ANDERSON , and O’BRIEN , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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This order and judgment is not binding precedent, except under the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. 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.
Claimant Debbie K. Kester appeals the denial of her 1999 application for
Social Security disability insurance benefits, alleging disability effective
December 31, 1997. After the application was denied administratively and upon
reconsideration, claimant requested a hearing before an administrative law judge
(ALJ). The ALJ ultimately concluded that claimant was not disabled under the
Social Security Act. Claimant brought suit in federal court and the district court
affirmed the agency’s denial of benefits.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and
42 U.S.C. § 405(g). Our review, however, is limited to evaluating whether the
factual findings are supported by substantial evidence in the record as a whole
and whether the correct legal standards were applied. Castellano v. Sec’y of
Health & Human Servs. , 26 F.3d 1027, 1028 (10th Cir. 1994). We will not
reweigh the evidence. Id.On appeal, claimant brings a number of arguments under the headings of
two issues presented to the district court: 1) the ALJ failed to give controlling
weight to the opinion of claimant ’s treating physician, and 2) the ALJ selectively
abstracted evidence from the record to support his decision. However, a
comparison of the arguments made to the district court and those posited on
appeal indicates that many of the arguments claimant presents to this court are
made for the first time on appeal. Absent unusual circumstances not present here,
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this court will not consider arguments not raised before the district court.
See Crow v. Shalala , 40 F.3d 323, 324 (10th Cir. 1994).
The only arguments preserved for appellate review are claimant ’s
challenges to the ALJ’s rejection of the opinions of her treating physician and
a consulting physician as to her physical limitations. The ALJ discounted the
treating physician’s opinion of claimant ’s physical limitations because that
opinion was not supported with medical evidence in the record. He rejected part
of the consulting physician’s opinion because it was unexplained. Claimant’s
main argument is that the record supports her treating physician’s diagnosis of
fibromyalgia. But the ALJ accepted that diagnosis. See R., Vol. I at 20, 24.
Claimant further argues, without record citations, that her treating physician
relied on her “history, physical examinations and supporting laboratory data”
to reach his conclusions about her physical limitations. Aplt. Br. at 26. She
summarily argues that the medical evidence is not contrary to the treating
physician’s opinion, and that the consulting physician’s opinion is clear.
These arguments lack merit. An ALJ may reject a treating physician’s
opinion if the conclusions therein are not supported with specific findings.
Castellano , 26 F.3d at 1029. Although the form used by both claimant ’s treating
and consulting physicians asked for a specific explanation and references to
medical evidence which would support the opined limitations, neither physician
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provided this information. Further, our independent review of the record
indicates no medical evidence which would support the limitations rejected by
the ALJ. We conclude that the ALJ applied the correct legal standards and
claimant has not demonstrated that any of his findings lack support in the record
as a whole. The district court’s judgment is AFFIRMED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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