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KENNETH S. APFEL, Commissioner, Social Security Administration,


No. 99-6357

(D.C. No. 98-CV-412-L)

(W.D. Okla.)


Before TACHA, EBEL, and BRISCOE, 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(G). The case is therefore ordered submitted without oral argument.

Plaintiff Louis J. Arnau, II, appeals the district court's judgment affirming the Commissioner's decision to deny his application for disability benefits. He alleges disability since February 28, 1994, due to sleep apnea, attention deficit/hyperactivity disorder (ADHD) and heart palpitations. Following a hearing before an administrative law judge (ALJ), the ALJ determined that although plaintiff could not perform his past work, he retained the residual functional capacity (RFC) to perform a significant number of alternate jobs available in the national economy, and denied benefits at step five of the five-step evaluation process. See Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988) (discussing five steps). The Appeals Council denied review, making the ALJ's decision the final decision of the Commissioner. Based upon the findings and recommendations of the magistrate judge, the district court affirmed.

On appeal, plaintiff contends the ALJ failed (1) to evaluate the effects of his sleep apnea under the criteria of Listing 12.02, see 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.02, which he asserts is required by Listing 3.00(H), see id. at § 3.00(H)(1); and (2) to accord proper weight to the opinion of his treating physician, who opined that plaintiff was disabled because he could not be supervised closely enough to make him a profitable employee.

We review the Commissioner's decision on the whole record to determine only whether the factual findings are supported by substantial evidence and the correct legal standards were applied. See Qualls v. Apfel, 206 F.3d 1368, 1371 (10th Cir. 2000). We may not reweigh the evidence or substitute our judgment for that of the Commissioner. See id. We have carefully reviewed the record on appeal, as well as the briefs submitted by the parties. Applying the standards set out above, we AFFIRM the denial of benefits for substantially the reasons stated in the magistrate judge's findings and recommendations dated November 18, 1998, and the district court's order dated July 20, 1999.

Entered for the Court

Mary Beck Briscoe

Circuit Judge

Click footnote number to return to corresponding location in the text.

*. 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. Plaintiff also contends the ALJ erred in failing to properly consider sleep apnea in combination with his adult ADHD when determining that plaintiff did not meet the requirements of a listed impairment. The Commissioner asserts this issue was not raised before the district court. Plaintiff does not dispute this assertion, nor did he include a copy of his brief to the district court. Thus, we can only assume this issue was not presented to the district court and that it is not entitled to our consideration. See Berna v. Chater, 101 F.3d 631, 632 (10th Cir. 1996) (appellate review "is limited to the issues the claimant properly preserves in the district court and adequately presents on appeal").

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