* This order and judgment is not binding precedent, except under the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.

F I L E D

United States Court of Appeals

Tenth Circuit

NOV 30 1999

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

ROY DWANE SHARPNACK,

Plaintiff-Appellant,

v.

KENNETH S. APFEL, Commissioner,

Social Security Administration,

Defendant-Appellee.

No. 98-7180

(D.C. No. CV-97-516)

(E.D. Okla.)

ORDER AND JUDGMENT *

Before EBEL , LUCERO , and MURPHY , 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.
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Plaintiff Roy Dwane Sharpnack appeals the district court’s affirmance of

the final decision by the Commissioner of Social Security denying his

applications for disability insurance benefits and supplemental security income. 

As the Commissioner’s decision is supported by substantial evidence, we affirm.

Plaintiff filed this second set of applications on December 21, 1994,

alleging an inability to work due to breathing problems, aortic valve replacement,

decreased vision, right hand numbness, and mental retardation. After a hearing,

an administrative law judge (ALJ) found that although plaintiff could not return

to his former work, he retained the ability to perform a significant number of jobs

in the national economy and thus was not disabled. The district court affirmed,

and this appeal followed.

 We review the agency’s decision to determine whether the factual findings

are supported by substantial evidence and whether correct legal standards were

applied. See Hawkins v. Chater, 113 F.3d 1162, 1164 (10th Cir. 1997). 

Substantial evidence is “such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401

(1971) (quotation omitted). We may “neither reweigh the evidence nor substitute

our judgment for that of the agency.” Casias v. Secretary of Health & Human

Servs., 933 F.2d 799, 800 (10th Cir. 1991).
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Plaintiff argues first that the ALJ erred in his step three analysis. Citing

Clifton v. Chater , 79 F.3d 1007, 1009 (10th Cir. 1996), he argues the ALJ should

have considered expressly whether plaintiff’s May 1990 spirometry test results

met the first prong of the pulmonary listing, 20 C.F.R., Part 404, Subpt. P.

App. 1, 3.02(A), and if so, whether the impairment met the 12-month duration

requirement. Although the ALJ’s step three analysis could have been clearer, the

decision contains sufficient findings and an adequate discussion of the evidence

to permit us to review the conclusion that plaintiff’s condition did not meet or

equal the pulmonary listing. See Clifton , 79 F.3d at 1009.

On May 1, 1990, plaintiff underwent a spirometry test that showed severely

restricted pulmonary function. He also showed signs of cardiac insufficiency, and

was diagnosed with congestive heart failure. His physician expressly noted that

the May 1990 abnormal pulmonary function test could not be assessed until the

cardiac component was addressed. See Appellant’s App. at 310. Plaintiff was

diagnosed with aortic stenosis and underwent valve replacement surgery.

In June 1990, plaintiff’s treating physician noted that he no longer showed

signs of congestive heart failure, his lungs were clear, and he could walk a mile

without shortness of breath, cough, or production of sputum. See id. at 307. 

Thereafter, the treating physician’s notes indicated that plaintiff’s respiratory

condition had improved significantly, see id. at 303 (September 1990 - patient
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reports respiratory status good, no cough or sputum, lungs clear); at 300 (March

1991 - occasional episodes of severe shortness of breath that are self-limited and

quite brief, no cough or sputum, spirometry test shows “pulmonary dysfunction is

of a very mild degree”); at 294 (March 1992 - occasional episodes of congestion

with wheezing and coughing, shortness of breath comes and goes, lungs clear,

spirometry test shows moderate obstructive deficit, patient given inhaler); at 288

(July 1993 - x-ray shows lungs are free of infiltrates or masses, no evidence of

active pulmonary disease); at 286 (November 1993 - mild chronic obstructive

pulmonary disease, occasional use of inhaler, x-ray shows no infiltrates or

masses); at 279 (November 1994 - patient uses inhaler on as-needed basis, no

cough or sputum, minimal shortness of breath upon exertion, lungs clear, x-rays

show no infiltrates or masses); at 276 (May 1995 - moderate shortness of breath

on exertion, mild cough, lungs clear, x-ray shows no infiltrates or masses).

Based on this evidence, the ALJ found plaintiff’s condition did not meet or

equal the pulmonary listing. He noted medical evidence documenting a history of

“chronic pulmonary insufficiency,” which is the title of the listing under

consideration, but noted that plaintiff’s subsequent pulmonary function test in

March 1991 showed no significant deficit, and that his August 1991 test showed

only a moderate obstructive deficit. Id. at 16. He noted also that plaintiff’s

physician was treating him for “mild chronic obstructive pulmonary disease,”
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and that plaintiff needed to use his inhaler “only occasionally.” Id. Finally, even

if we assume the May 1990 test demonstrated a pulmonary impairment that met

the listing, the ALJ made the durational analysis which plaintiff claims is missing,

finding after reviewing the entire record, that “there has been no continuous

period of at least 12 months since April 27, 1990, during which the claimant

lacked the residual functional capacity for light work activity, with [clean air

environment and simple task] nonexertional limitations.” Id. at 19. We conclude

the ALJ’s analysis is sufficient under Clifton to permit judicial review, and thus

a remand is not required. 

Plaintiff’s second issue is without merit because it is clear that the

limitations imposed by his shortness of breath and reduced energy were both

considered by the ALJ and presented to the vocational expert. In the decision, the

ALJ expressly found that plaintiff had been “subject to a degree of shortness of

breath and reduced energy,” and explained that “the residual functional capacity

was, accordingly, reduced to accommodate these limitations.” Id. We do not

consider plaintiff’s argument regarding the minimal GED requirements for the

jobs identified by the vocational expert as this argument was not presented to

the district court. See Crow v. Shalala , 40 F.3d 323, 324 (10th Cir. 1994).
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The judgment of the United States District Court for the Eastern District of

Oklahoma is AFFIRMED.

Entered for the Court

Michael R. Murphy

Circuit Judge