* Pursuant to Fed. R. App. P. 43(c), Kenneth S. Apfel is substituted for

John J. Callahan, former Acting Commissioner of Social Security, as the

defendant in this action.

** This order and judgment is not binding precedent, except under the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

OCT 21 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

CAROLYN McKEE,

Plaintiff-Appellant,

v.

KENNETH S. APFEL, Commissioner,

Social Security Administration, *

Defendant-Appellee.

No. 98-7008

(D.C. No. 96-CV-592-S)

(E.D. Okla.)

ORDER AND JUDGMENT **

Before BRORBY, McKAY, 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
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argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument. 

Claimant Carolyn McKee appeals from the district court’s order adopting

the recommendation of the magistrate judge affirming the Commissioner of Social

Security’s denial of her application for Social Security disability insurance

benefits. Claimant, a forty-five-year-old woman with a high school education and

some college, claims disability from August 1986 due to back, neck, and arm

pain, depression, anxiety, headaches, loss of memory, and a growth on her left

thumb.

Claimant filed an application for benefits on August 15, 1994, which was

denied initially and on reconsideration. Claimant requested and received a

hearing before an administrative law judge (ALJ) on September 7, 1995. After

hearing testimony from claimant and a vocational expert, the ALJ determined that

claimant was unable to return to her past relevant work as a paper press operator

or a production machine operator. The ALJ found at step five of the five-step

evaluation sequence, see Williams v. Bowen , 844 F.2d 748, 750-51 (10th Cir.

1988), that claimant retained the residual functional capacity to perform the full

range of light work except for lifting or carrying more than twenty pounds

occasionally and ten pounds frequently and repetitive reaching with the arms or

bending with the neck. The Appeals Council denied claimant’s request for
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review, and the ALJ’s decision became the final decision of the Commissioner. 

See 20 C.F.R. § 404.981. Claimant appealed the ALJ’s decision, and the district

court affirmed. This appeal followed.

Our review of the Commissioner’s decision is limited to determining

whether the decision is supported by substantial evidence and whether the

Commissioner applied correct legal standards. See Castellano v. Secretary of

Health & Human Servs. , 26 F.3d 1027, 1028 (10th Cir. 1994). “To find that the 

[Commissioner’s] decision is supported by substantial evidence, there must be

sufficient relevant evidence in the record that a reasonable person might deem

adequate to support the ultimate conclusion.” Bernal v. Bowen , 851 F.2d 297,

299 (10th Cir. 1988). We may neither reweigh the evidence nor substitute our

judgment for that of the Commissioner. See id.

On appeal, claimant asserts that the ALJ erred (1) in determining that she

retained the residual functional capacity to perform less than a full range of light

and sedentary work, (2) in failing to give substantial weight to the opinions of her

treating physicians, and (3) in finding that her mental impairments were not

severe. We conclude that the record contains substantial evidence supporting the

ALJ’s denial of benefits in this case, and we affirm the district court’s decision.

Broadly, claimant asserts that the ALJ’s determination that claimant was

capable of a full range of light work except for certain limitations was not
1 We note that this court has repeatedly warned counsel about his misleading

representations to this court that the arguments made on appeal were properly

presented to the district court. See Schofield v. Callahan , No. 96-6365, 1997 WL

334960, at **1 (10th Cir. June 18, 1997) (unpublished order and judgment);

Blackmon v. Chater , No. 96-5194, 1997 WL 85196, at **1 (10th Cir. Feb. 28,

1997) (unpublished order and judgment). After careful comparison of claimant’s

arguments on appeal with counsel’s representations of where these arguments

were presented to the district court, we find, as we have before, that counsel

“blatant[ly] mischaracteriz[es]” the record. Blackmon , 1997 WL 85196 at **1.

We repeat our warning anew, and once again advise counsel that continued

misrepresentations of this kind may result in sanctions.

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supported by substantial evidence. Specifically, claimant argues that the ALJ’s

reliance on the opinion of Dr. Ronald D. Anderson, a chiropractor, that claimant

“would benefit from rehabilitative training for a career that would not require

repetitive movements of her arms or head or lifting of over 20 pounds

repetitively,” R. Vol. II at 209, was incorrect because claimant had not been

rehabilitated. Claimant further argues that the ALJ did not comply with the

requirements of Social Security Ruling 96-9p and did not properly evaluate

claimant’s assertions of disabling pain. Claimant did not raise these arguments to

the magistrate judge. Because our scope of review is limited to those arguments

properly preserved and presented in the district court, these arguments, raised for

the first time in claimant’s objections to the magistrate judge’s findings and

recommendations, are deemed waived. 1

 See Marshall v. Chater , 75 F.3d 1421,

1426 (10th Cir. 1996); see also Crow v. Shalala , 40 F.3d 323, 324 (10th Cir.
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1994) (“Absent compelling reasons, we do not consider arguments that were not

presented to the district court.”).

Next, claimant argues that the ALJ did not give substantial weight to the

opinions of her treating physicians. Social Security regulations define a treating

physician as a

physician . . . who has provided [claimant] with medical treatment or

evaluation and who has or has had an ongoing treatment relationship

with [claimant]. . . . [A]n ongoing treatment relationship [exists]

when the medical evidence establishes that [claimant] see[s] or ha[s]

seen the physician . . . with a frequency consistent with accepted

medical practice for the type of treatment and evaluation required for

[claimant’s] medical condition(s).

20 C.F.R. § 404.1502.

First, claimant argues that the ALJ ignored a December 21, 1987 opinion of

Dr. Reynaldo A. De Los Angeles, a psychiatrist, that claimant was unable to work

due to depression and anxiety. See R. Vol. II at 166. This opinion was set forth

in an attending physician’s statement for purposes of insurance. Dr. De Los

Angeles noted that claimant was emotionally disturbed due to pressure and stress

at work. He recommended that claimant have a “change of environment.” Id. He

also indicated that claimant could begin trial employment in three to six months

from December 1987. See id. Although Dr. De Los Angeles recommended outpatient therapy on a weekly basis, see id., there is no evidence in the record that

he continued to treat claimant after the date of this opinion. Therefore, Dr. De
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Los Angeles cannot be considered a treating physician, and the ALJ did not err in

disregarding his opinion.

Next, claimant asserts that the ALJ did not give sufficient weight to the

opinion of Dr. B. Frank Shaw, a family practitioner. Claimant represents that

medical records indicate that Dr. Shaw treated claimant’s depression “from

December 22, 1987 through at least September 29, 1994.” Appellant’s Br. at 34. 

Claimant, however, misrepresents the record. The only reference in Dr. Shaw’s

records to claimant’s mental impairment is two long-term disability insurance

questionnaires completed sometime in 1988, in which Dr. Shaw opined that

claimant could not return to work at that time. See R. Vol. II at 253-56. 

Although Dr. Shaw’s records indicate that he performed routine examinations and

pap smears for claimant in 1989, 1990, and 1992, there is no indication that Dr.

Shaw was evaluating claimant for depression beyond 1988. Claimant did,

however, continue to receive treatment from other sources for her depression.

Therefore, the ALJ’s disregard of Dr. Shaw’s 1988 opinions as to claimant’s

ability to work was not error.

Lastly, claimant asserts that the ALJ erred in concluding that her mental

impairments were not severe on or before December 31, 1992, the date she was

last insured. Claimant argues that this finding is inconsistent with the opinions of

her “treating physicians,” Dr. De Los Angeles and Dr. Shaw. For the reasons
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discussed above, we conclude that Drs. De Los Angeles and Shaw were not

treating physicians as described by the Social Security regulations, and the ALJ’s

disregard of their opinions in favor of later, more extensive medical evidence of

claimant’s condition was not error.

In summary, we determine that the ALJ’s decision of no disability was

supported by substantial evidence. The judgment of the United States District

Court for the Eastern District of Oklahoma is AFFIRMED.

Entered for the Court

Monroe G. McKay 

Circuit Judge