Green v. Astrue

FILED
United States Court of Appeals
Tenth Circuit
April 13, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
BETTY L. GREEN,
Plaintiff-Appellant,
v. No. 10-6188
(D.C. No. 5:09-CV-01013-M)
MICHAEL J. ASTRUE, (W.D. Okla.)
Commissioner, Social Security
Administration,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before LUCERO, ANDERSON, and BALDOCK, Circuit Judges.
Betty L. Green appeals pro se from a district court order affirming the
Commissioner’s denial of her application for Social Security Disability Insurance
(SSDI) benefits. Exercising jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C.
§ 405(g), we affirm.
*
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not binding precedent, except under the doctrines of law of the case, res judicata,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 with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Ms. Green filed an application for SSDI benefits on July 28, 1999, claiming
a disability-onset date of July 11, 1990. A short time later she also filed an
application for Supplemental Security Income (SSI) payments, which was given a
protective filing date of July 28, 1999. When the record indicated that her date
last insured for purposes of her SSDI application was September 30, 1983,
Ms. Green moved to dismiss that application. On March 11, 2002, an
Administrative Law Judge (ALJ) issued a favorable decision on her SSI
application, finding that she was disabled as of July 28, 1999, as a result of
musculoskeletal disorders of the neck and upper extremities. Ms. Green
subsequently provided the agency with additional information regarding her
previous earnings, based on which her date last insured was adjusted to March 31,
1991. She filed a new application for SSDI benefits on February 7, 2003. After
her new application was denied initially and on reconsideration, Ms. Green
requested a hearing before an ALJ, who issued an unfavorable ruling. Ms. Green
appealed and the Appeals Council remanded to the ALJ for further consideration.
Following a second hearing, the ALJ issued a decision finding that Ms. Green was
not under a disability on or before March 31, 1991, her date last insured. The
Appeals Council declined review, making the ALJ’s decision denying SSDI
benefits the Commissioner’s final decision.
Ms. Green filed an action in the district court, seeking review of the
Commissioner’s decision. The Commissioner initially moved to dismiss her
-2-
complaint for failure to effect proper service. But after being granted an
extension of time, Ms. Green effected service on the Commissioner and the
district court denied the motion to dismiss. A magistrate judge 1 then ordered
Ms. Green to file her opening brief by April 5, 2010. She filed a pleading titled
Motion for Declaratory Judgment and Injunctive Relief on March 18, 2010.
When she had not filed an opening brief by the April 5 deadline, the magistrate
judge held a telephone conference with the parties on April 29 and explained to
Ms. Green that she could ask for additional time to file her brief. She declined to
seek additional time and indicated instead that she wanted the court to consider
her Motion for Declaratory Judgment and Injunctive Relief to be her opening
brief.
After deeming that motion as Ms. Green’s opening brief, the magistrate
judge issued a report and recommendation (R&R) to affirm the Commissioner’s
denial of SSDI benefits. Noting that Ms. Green failed to raise or develop any
claim of error in the ALJ’s decision, the magistrate judge expressly addressed and
rejected the only contention she made in her opening brief. 2 Ms. Green filed
1
The district court had referred Ms. Green’s case to a magistrate judge for
decisions on preliminary and non-dispositive matters.
2
The magistrate judge construed Ms. Green’s Motion for Declaratory
Judgment and Injunctive Relief as arguing that, by filing a motion to dismiss her
complaint, the Commissioner had impliedly admitted the allegations in her
complaint. The magistrate judge explained in the R&R that the Commissioner’s
motion addressed whether he had been properly served and did not concede any
(continued...)
-3-
objections to the magistrate judge’s report and recommendation. 3 The district
court reviewed the ALJ’s decision de novo; overruled Ms. Green’s objections and
adopted the R&R in its entirety; and affirmed the Commissioner’s decision. The
court entered a separate judgment in favor of the Commissioner on May 28, 2010.
Ms. Green filed timely motions seeking reversal of the court’s judgment. She
also filed a notice of appeal, which this court held to be premature. We abated
the appeal pending the district court’s determination of her post-judgment
motions, which the district court denied on August 23, 2010. Ms. Green then
filed another notice of appeal referencing only the district court’s May 28, 2010
judgment.
“[W]e review the ALJ’s decision only to determine whether the correct
legal standards were applied and whether the factual findings are supported by
substantial evidence in the record.” Madrid v. Barnhart, 447 F.3d 788, 790
(10th Cir. 2006). “Substantial evidence is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Cowan v. Astrue,
552 F.3d 1182, 1185 (10th Cir. 2008) (quotation omitted). We liberally construe
a pro se party’s appellate briefs. de Silva v. Pitts, 481 F.3d 1279, 1283 n.4
2
(...continued)
of Ms. Green’s allegations.
3
In her objections, Ms. Green reiterated the argument she made in her
opening brief. She also asserted that she was unprepared for the April 29
telephonic conference and she objected to affirmance of the ALJ’s decision
without consideration of the Commissioner’s brief and her reply brief.
-4-
(10th Cir. 2007). But we do not “take on the responsibility of serving as the
litigant’s attorney in constructing arguments and searching the record.” Garrett
v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).
“The scope of our review [in this case] is limited to the issues [Ms. Green]
properly preserve[d] in the district court and adequately presents on appeal.”
Berna v. Chater, 101 F.3d 631, 632 (10th Cir. 1996). In her opening appeal brief,
she first asserts that the magistrate judge’s orders and reports and
recommendations, as adopted by the district court, deprived her of due process.
She appears to focus on the reports and recommendations related to the
Commissioner’s motion to dismiss the complaint, but she does not otherwise
elaborate on this contention. We will liberally construe her argument as repeating
the only claim of error that she made in her opening brief in the district court:
that the Commissioner conceded the allegations in her complaint by filing his
motion to dismiss for failure to effect service. This argument is frivolous. While
a court must accept as true the allegations of a complaint when deciding a motion
to dismiss for lack of jurisdiction, see Fed. Deposit Ins. Corp. v. Oaklawn Apts.,
959 F.2d 170, 174 (10th Cir. 1992), a defendant does not, by challenging the
sufficiency of process, forfeit his ability to contest those allegations on the merits.
In her second appeal issue, Ms. Green alleges a conspiracy between the
district court, the Commissioner, and other federal agencies to deprive her of both
SSDI benefits and workers’ compensation payments, in violation of her due
-5-
process and equal protection rights. We need not attempt to decipher the meaning
of this claim because Ms. Green did not preserve it for consideration on appeal by
raising it in the district court. See Berna, 101 F.3d at 632-33.
As the magistrate judge noted in the R&R, Ms. Green did not raise any
claim of error in the ALJ’s decision in her district-court opening brief. “Absent
compelling reasons, we do not consider arguments that were not presented to the
district court.” Crow v. Shalala, 40 F.3d 323, 324 (10th Cir. 1994). Moreover, in
this appeal she again fails to make any discernable argument of error regarding
the ALJ’s decision. We will not “assume the role of advocate” for Ms. Green and
construct appeal arguments for her. Garrett, 425 F.3d at 840. Thus, Ms. Green
has waived all arguments of error in the ALJ’s decision by her failure to preserve
any such contention in the district court or present any such claim in this court.
See Berna, 101 F.3d at 632-33.
The judgment of the district court is AFFIRMED. Ms. Green’s motion to
proceed in forma pauperis on appeal is GRANTED.
Entered for the Court
Bobby R. Baldock
Circuit Judge
-6-