UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

LASHONDIA HORN, for LeCharlie J. Markham, a minor,

Plaintiff-Appellant,

v.

JOHN J. CALLAHAN, Acting Commissioner, Social Security Administration,

Defendant-Appellee.

No. 96-5257

(D.C. No. 95-CV-723-M)

(N.D. Okla.)

ORDER AND JUDGMENT*

Before TACHA, MCKAY, and BALDOCK, 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. 34.1.9. The case is therefore ordered submitted without oral argument.

Claimant LaShondia Horn appeals from an order of the magistrate judge, sitting for the district court by consent of the parties pursuant to 28 U.S.C. § 636(c)(1), affirming the denial of supplemental security income (SSI) benefits to her son, LeCharlie Markham. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 636(c)(3) and 28 U.S.C. § 1291.

Ms. Horn applied for SSI benefits in 1993, alleging that LeCharlie, then approximately six months old, was disabled due to achondroplastic dwarfism and asthma. In evaluating LeCharlie's claim, the administrative law judge (ALJ) followed the four-step evaluation process then required by agency regulations. See 20 C.F.R. § 416.924 (1996). 1 He denied benefits at step four of that process, finding that LeCharlie's impairments did not meet or equal any listed impairment and that his impairments were not of comparable severity to those that would disable an adult.

On appeal, first in the district court 2 and now here, Ms. Horn challenges only the ALJ 's conclusion at step three that LeCharlie 's impairments do not meet a listed impairment. 3 More specifically, she contends that he meets listing 100.02, which requires "[ g]rowth impairment, considered to be related to an additional specific medically determinable impairment, and . . . persistence of height below the third percentile." 20 C.F.R. Pt. 404, Subpt . P, App. 1, § 100.02 (1997). She argues that achondroplastic dwarfism is the "additional specific medically determinable impairment" to which LeCharlie 's growth impairment is "related."

"We review the district court's decision de novo and therefore must independently determine whether the [agency's] decision (1) is free of legal error and (2) is supported by substantial evidence." Brown, 120 F.3d at 1135 (further quotation omitted). Having carefully reviewed the record and the briefs in this case, as well as the applicable law, we agree with the magistrate judge that achondroplasia cannot be considered an impairment in addition to LeCharlie's growth impairment within the meaning of § 100.02. Accordingly, we affirm for the reasons given by the magistrate judge. 4

The judgment of the United States District Court for the Northern District of Oklahoma is AFFIRMED.

Entered for the Court

Monroe G. McKay

Circuit Judge