* After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 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not binding precedent, except under the doctrines of law of the case, res judicata,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.

FILED

United States Court of Appeals

Tenth Circuit

December 5, 2008

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

NANCY VELASQUEZ,

Plaintiff-Appellant,

v.

MICHAEL J. ASTRUE,

Commissioner of Social Security,

Defendant-Appellee.

No. 08-2091

(D.C. No. 1:07-CV-00010-DJS)

(D. N.M.)

ORDER AND JUDGMENT*

Before HOLMES, ANDERSON, and BALDOCK, Circuit Judges.

Claimant Nancy Velasquez appeals pro se from an order of the district

court affirming the Commissioner’s denial of disability insurance benefits. The

district court had previously remanded the case to the agency, and an

Administrative Law Judge (ALJ), after a second hearing, concluded at step five of

the five-step sequential evaluation process, see 20 C.F.R. § 404.1520; Williams v.
-2-

Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988) (explaining the five-step process),

that Ms. Velasquez was not disabled. The Appeals Council denied review, and

then a magistrate judge acting with the consent of the parties affirmed the ALJ’s

decision. Now on appeal, Ms. Velasquez asserts that she cannot find gainful

employment on account of her advancing age and poor health. The Commissioner

counters that because Ms. Velasquez never raised these issues in the district court,

they are waived. The Commissioner further contends that the issues she did argue

in the district court are likewise waived, because they are not now presented on

appeal. We have jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291, and

we agree that Ms. Velasquez has waived her arguments.

Ordinarily, we review the Commissioner’s decision to determine whether

the factual findings are supported by substantial evidence and whether the correct

legal standards were applied. See Grogan v. Barnhart, 399 F.3d 1257, 1261

(10th Cir. 2005). Here, however, Ms. Velasquez has failed to properly preserve

any issues for our review. “The scope of our review . . . is limited to the issues

the claimant properly preserves in the district court and adequately presents on

appeal.” Berna v. Chater, 101 F.3d 631, 632 (10th Cir. 1996). If a claimant fails

to present an issue to the district court, the issue is waived unless compelling

reasons dictate that the waiver be excused. See Crow v. Shalala, 40 F.3d 323,

324 (10th Cir. 1994). Similarly, an issue the claimant fails to present to this court
-3-

is generally deemed abandoned or waived. See Tran v. Trustees of the State

Colls. in Colo., 355 F.3d 1263, 1266 (10th Cir. 2004).

In her brief, Ms. Velasquez asks that we grant her benefits because the

district court failed to consider her chances of finding a job given her age and

health. Because this argument was not presented to the district court, it is

waived. Moreover, even if waiver principles did not preclude our consideration

of this argument, the limited extent of our authority to review the Commissioner’s

decision would. The purpose of an appeal is limited to ensuring that the correct

legal standards were applied and that the factual findings are supported by

substantial evidence. See Andrade v. Sec’y of Health & Human Servs., 985 F.2d

1045, 1047 (10th Cir. 1993). Ms. Velasquez, however, concedes that the district

court made no legal errors. Instead, she simply contends the court incorrectly

decided the facts, apparently by giving too little weight to her age and poor

health. And she quite bluntly asks that we outright approve her benefits

application. But because we neither reweigh the evidence nor retry the case, see

Grogan, 399 F.3d at 1262, we must reject Ms. Velasquez’s appellate contentions. 

With regard to the issues Ms. Velasquez did raise in the district court, they,

too, are waived. Ms. Velasquez argued that the ALJ incorrectly assessed her

residual functional capacity, improperly relied on the vocational expert’s

testimony, and wrongfully discredited her subjective complaints of pain. But

there is no trace of these arguments in her appellate materials. Rather,
-4-

Ms. Velasquez has taken it upon herself to file a cursory appellate brief advancing

new challenges to factual determinations that we have no authority to review. 

While we appreciate the disadvantage to which some pro se litigants like

Ms. Velasquez may be put, it is not the proper function of the courts to act as a

litigant’s advocate, Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A pro

se litigant’s materials are entitled to a liberal reading, id., and, consequently, “we

make some allowances for the pro se [litigant’s] failure to cite proper legal

authority,” “confusion of various legal theories,” “poor syntax and sentence

construction,” or “unfamiliarity with pleading requirements,” but “the court

cannot take on the responsibility of serving as the litigant’s attorney in

constructing arguments and searching the record,” Garrett v. Selby Connor

Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (citations, internal quotation

marks, and brackets omitted). Here, affording Ms. Velasquez the liberal reading

to which her appellate materials are entitled, we are compelled to conclude that

she has waived all her arguments.

Accordingly, the judgment of the district court is AFFIRMED.

Entered for the Court

Bobby R. Baldock

Circuit Judge