Velasquez v. Social Security Administration

FILED
United States Court of Appeals
Tenth Circuit
December 5, 2008
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
NANCY VELASQUEZ,
Plaintiff-Appellant,
v. No. 08-2091
(D.C. No. 1:07-CV-00010-DJS)
MICHAEL J. ASTRUE, (D. N.M.)
Commissioner of Social Security,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before HOLMES, ANDERSON, and BALDOCK, Circuit Judges.
Claimant Nancy Velasquez appeals pro se from an order of the district
court affirming the Commissioner’s denial of disability insurance benefits. The
district court had previously remanded the case to the agency, and an
Administrative Law Judge (ALJ), after a second hearing, concluded at step five of
the five-step sequential evaluation process, see 20 C.F.R. § 404.1520; Williams v.
*
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not binding precedent, except under the doctrines of law of the case, res judicata,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.
Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988) (explaining the five-step process),
that Ms. Velasquez was not disabled. The Appeals Council denied review, and
then a magistrate judge acting with the consent of the parties affirmed the ALJ’s
decision. Now on appeal, Ms. Velasquez asserts that she cannot find gainful
employment on account of her advancing age and poor health. The Commissioner
counters that because Ms. Velasquez never raised these issues in the district court,
they are waived. The Commissioner further contends that the issues she did argue
in the district court are likewise waived, because they are not now presented on
appeal. We have jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291, and
we agree that Ms. Velasquez has waived her arguments.
Ordinarily, we review the Commissioner’s decision to determine whether
the factual findings are supported by substantial evidence and whether the correct
legal standards were applied. See Grogan v. Barnhart, 399 F.3d 1257, 1261
(10th Cir. 2005). Here, however, Ms. Velasquez has failed to properly preserve
any issues for our review. “The scope of our review . . . is limited to the issues
the claimant properly preserves in the district court and adequately presents on
appeal.” Berna v. Chater, 101 F.3d 631, 632 (10th Cir. 1996). If a claimant fails
to present an issue to the district court, the issue is waived unless compelling
reasons dictate that the waiver be excused. See Crow v. Shalala, 40 F.3d 323,
324 (10th Cir. 1994). Similarly, an issue the claimant fails to present to this court
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is generally deemed abandoned or waived. See Tran v. Trustees of the State
Colls. in Colo., 355 F.3d 1263, 1266 (10th Cir. 2004).
In her brief, Ms. Velasquez asks that we grant her benefits because the
district court failed to consider her chances of finding a job given her age and
health. Because this argument was not presented to the district court, it is
waived. Moreover, even if waiver principles did not preclude our consideration
of this argument, the limited extent of our authority to review the Commissioner’s
decision would. The purpose of an appeal is limited to ensuring that the correct
legal standards were applied and that the factual findings are supported by
substantial evidence. See Andrade v. Sec’y of Health & Human Servs., 985 F.2d
1045, 1047 (10th Cir. 1993). Ms. Velasquez, however, concedes that the district
court made no legal errors. Instead, she simply contends the court incorrectly
decided the facts, apparently by giving too little weight to her age and poor
health. And she quite bluntly asks that we outright approve her benefits
application. But because we neither reweigh the evidence nor retry the case, see
Grogan, 399 F.3d at 1262, we must reject Ms. Velasquez’s appellate contentions.
With regard to the issues Ms. Velasquez did raise in the district court, they,
too, are waived. Ms. Velasquez argued that the ALJ incorrectly assessed her
residual functional capacity, improperly relied on the vocational expert’s
testimony, and wrongfully discredited her subjective complaints of pain. But
there is no trace of these arguments in her appellate materials. Rather,
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Ms. Velasquez has taken it upon herself to file a cursory appellate brief advancing
new challenges to factual determinations that we have no authority to review.
While we appreciate the disadvantage to which some pro se litigants like
Ms. Velasquez may be put, it is not the proper function of the courts to act as a
litigant’s advocate, Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A pro
se litigant’s materials are entitled to a liberal reading, id., and, consequently, “we
make some allowances for the pro se [litigant’s] failure to cite proper legal
authority,” “confusion of various legal theories,” “poor syntax and sentence
construction,” or “unfamiliarity with pleading requirements,” but “the court
cannot 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) (citations, internal quotation
marks, and brackets omitted). Here, affording Ms. Velasquez the liberal reading
to which her appellate materials are entitled, we are compelled to conclude that
she has waived all her arguments.
Accordingly, the judgment of the district court is AFFIRMED.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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