153 F3d 730 Waterdown v. S Apfel

153 F.3d 730

98 CJ C.A.R. 4179

John L. WATERDOWN, Plaintiff-Appellant,
v.
Kenneth S. APFEL, Commissioner, Social Security
Administration, Defendant-Appellee.

No. 97-5214.

United States Court of Appeals, Tenth Circuit.

July 31, 1998.

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.


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1

Before TACHA and McKAY, Circuit Judges, and BROWN,** Senior District Judge.

2

ORDER AND JUDGMENT*

3

BROWN, Sr.DJ.

4

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) and 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

5

Claimant John L. Waterdown appeals from the district court's order affirming the decision of the Commissioner of Social Security denying his application for Supplemental Security Income Benefits under Title XVI of the Social Security Act. Claimant applied for benefits in 1994, alleging disability as of May 4, 1994, as a result of nervousness, shortness of breath, arthritis, and dizziness. Claimant's request for benefits was denied administratively and upon reconsideration.

6

A hearing before an administrative law judge (ALJ) resulted in a decision that claimant was not disabled. Agency regulations establish a five-part test to determine disability under the Social Security Act. See 20 C.F.R. § 416.920; Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir.1988) (discussing five steps in detail). In this case, the ALJ reached step five of the analysis, determining that, while claimant could not return to his past work, he was capable of work available in the national economy. The Appeals Council denied review, and claimant filed suit in federal district court. The magistrate judge's order affirmed the agency's decision to deny claimant benefits.1

7

Our review of the agency's decision is limited to determining whether the decision is supported by substantial evidence in the record as a whole and whether the correct legal standards were applied. See Castellano v. Secretary of Health & Human Servs., 26 F.3d 1027, 1028 (10th Cir.1994). On appeal, claimant contends that 1) the ALJ's residual functional capacity assessment reflects errors in his review of the medical records, lacks evidentiary support, and fails to properly identify evidence in support of his determination that claimant's testimony was not credible, and 2) the ALJ's step five determination that claimant could perform work in the national economy is based on vocational testimony elicited by an incomplete hypothetical question.


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8

After consideration of the arguments presented, and after careful review of the record on appeal, we conclude that the district court correctly decided this case. Therefore, for substantially the same reasons set forth in the magistrate judge's order dated September 17, 1997, the judgment of the United States District Court for the Northern District of Oklahoma is AFFIRMED.

**

Honorable Wesley E. Brown, Senior District Judge, United States District Court for the District of Kansas, sitting by designation

*

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

1

The parties consented to proceed before the magistrate judge pursuant to 28 U.S.C. § 636(c)(1). Accordingly, our jurisdiction over this appeals arises under § 636(c)(3) and 28 U.S.C. § 1291