FILED
United States Court of Appeals
Tenth Circuit
October 22, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
CAROL A. BROADWELL,
Plaintiff-Appellant,
No. 09-5016
v. (D.C. No. 4:07-CV-00610-FHM)
(N.D. Okla.)
MICHAEL J. ASTRUE, Commissioner
of the Social Security Administration,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before O’BRIEN, PORFILIO, and TYMKOVICH, Circuit Judges.
Carol A. Broadwell appeals from a judgment of the district court affirming
the Social Security Commissioner’s denial of her application for disability
benefits under Title II of the Social Security Act. Exercising jurisdiction under
42 U.S.C. § 405(g) and 28 U.S.C. § 1291, we affirm.
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Ms. Broadwell was born in 1953 and has a high school education. Her
prior work experience includes caregiver, housemaid, secretary, and receptionist.
In August 2004, she applied for benefits alleging she became disabled on
March 15, 2003, due to multiple problems, including attention deficit disorder,
degenerative joint disease or osteoarthritis, fibromyalgia, hip and back pain,
major depressive disorder, memory problems, and panic disorder with
agoraphobia. Her application was denied initially and on reconsideration.
Ms. Broadwell then received a de novo hearing before an administrative
law judge (ALJ), at which she and a vocational expert (VE) testified. Thereafter
the ALJ, applying the five-step process that governs review of disability
determinations, Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988),
concluded Ms. Broadwell was not disabled during the relevant time frame. 1
Specifically, at step one he found she had not engaged in substantial gainful
activity since the alleged onset date. At step two he found she had severe
impairments (major depression, opiate and alcohol dependence, and panic
disorder with agoraphobia), but he rejected allegations that her fibromyalgia and
osteoarthritis were severe impairments because a physical examination “resulted
in no confirmation of” these conditions, Aplt. App., Vol. 2 at 15, and because she
1
The relevant time frame is from March 15, 2003, Ms. Broadwell’s alleged
onset date, through December 14, 2006, the date of the Commissioner’s final
decision.
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denied receiving treatment for arthritis or taking medication for it, id. at 15, 17.
At step three he found she did not have an impairment or combination of
impairments that met or medically equaled one of the listed impairments in
20 C.F.R. Part 404, Subpart P, Appendix 1, including those described in Listings
12.04 (Affective Disorders), 12.06 (Anxiety Related Disorders), and 12.09
(Substance Addiction Disorders).
Next the ALJ considered the impact of Ms. Broadwell’s psychological
problems on her ability to engage in work, her hearing testimony about her
concentration and memory issues, and her allegations of pain. The ALJ
acknowledged Ms. Broadwell’s “medically determinable impairments could
reasonably be expected to produce the alleged symptoms,” but found her
“statements concerning the intensity, persistence and limiting effects of these
symptoms . . . not entirely credible.” Aplt. App., Vol. 2 at 17. Thus, the ALJ
found Ms. Broadwell retained the residual functional capacity (RFC) for the full
range of light work with a moderate limitation in her capacity for interacting with
the public.
Proceeding to steps four and five, the ALJ concluded in alternative
determinations that Ms. Broadwell was not disabled because at step four she
retained the RFC to perform her past work as a secretary and at step five she
retained the RFC to perform other jobs available in the regional or national
economy. See id. at 18 (citing Murrell v. Shalala, 43 F.3d 1388 (10th Cir. 1994)
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(recognizing the benefit of alternative determinations in the social security
review process)).
The Appeals Council denied Ms. Broadwell’s request for review, making
the ALJ’s denial of benefits the Commissioner’s final decision. The district
court, with a magistrate judge presiding by consent of the parties, 28 U.S.C.
§ 636(c), affirmed. This appeal followed.
We review the Commissioner’s decision to determine whether
the factual findings are supported by substantial evidence in the
record and whether the correct legal standards were applied.
Substantial evidence is such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion. It requires more
than a scintilla, but less than a preponderance. We consider whether
the ALJ followed the specific rules of law that must be followed in
weighing particular types of evidence in disability cases, but we will
not reweigh the evidence or substitute our judgment for the
Commissioner’s.
Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citations and quotations
omitted).
Ms. Broadwell alleges the ALJ (1) failed to properly weigh the evidence
provided by non-examining, non-treating state experts; (2) ignored documented
medical conditions at steps two and three, which impacted his decision at steps
four and five; (3) propounded an improper hypothetical to the VE; and (4) failed
to perform a proper credibility determination because he rejected medical
evidence of arthritis, misconstrued treatment for pain, ignored evidence of mental
limitations and deterioration, and selectively discussed the evidence of record.
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Although Ms. Broadwell raised the same allegations of error in the district court,
she did not advance all of the arguments in support of them that she now advances
on appeal. Compare Aplt. Opening Br. at 18-41, with Aplt. App., Vol. 1 at 19-27.
When a party advances new grounds on appeal to support a general issue that was
raised in the district court, we do not consider those new grounds to be properly
preserved for our review. See Bancamerica Commercial Corp. v. Mosher Steel of
Kan., Inc., 100 F.3d 792, 798-99 (10th Cir.), amended on other grounds, 103 F.3d
80 (10th Cir. 1996) (observing that this court will not consider a new theory on
appeal, even one “that falls under the same general category as an argument
presented” in the district court) (quotation omitted)); see also Crow v. Shalala,
40 F.3d 323, 324 (10th Cir. 1994) (noting, in social security context, the general
rule that we will not review issues that were not presented to the district court).
To the extent, however, Ms. Broadwell challenges the ALJ’s decision on
the same bases as she did in the district court, her arguments fail. In a thorough
opinion and order the district court accurately summarized the medical evidence
and, using the same standard that governs our review, analyzed and rejected each
of Ms. Broadwell’s challenges to the ALJ’s decision. We cannot improve upon
this disposition. The Commissioner’s conclusion that Ms. Broadwell was not
disabled between March 15, 2003, and December 14, 2006, was the product of a
correct application of the law and supported by substantial record evidence.
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We therefore AFFIRM the judgment of the district court for substantially
the same reasons stated in its December 3, 2008, opinion and order.
Entered for the Court
Terrence L. O’Brien
Circuit Judge
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