*This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicataand collateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

UNITED STATES COURT OF APPEALS Filed 6/25/96 TENTH CIRCUIT

_____________________ ROBERT D. HOLDSWORTH, Plaintiff-Appellant,

v. SHIRLEY S. CHATER, Commissioner of Social Security, Defendant-Appellee. No. 96-1008 (D.C. No. 93-Z-2287) (D. Colorado)

_____________________ ORDER AND JUDGMENT *

_____________________ Before BRORBY, EBEL and HENRY , Circuit Judges.

_____________________

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Robert D. Holdsworth appeals the district court's o rder affirming the Secretary of the Department of Health and Human Services' decision to deny his application for social security benefits. We affir m.

On December 2, 1980, Mr. Holdsworth was injured at work when he fell from scaffolding. On April 22, 1991, he filed a Di sability Report with the Department of Health and Human Services alleging he suffered from a T-12 compression fracture, pain in his midback, frontal headaches, blurry vision, chronic cervical sprain and degenerative arthritis as a result of the fall. On April 1, 1993, the Administrative Law Judge issued a deci sion finding "[t]he evidence as a whole clearly shows that the claimant, at all times pertinent to this decision, was capable of performing sedentary work." The app eals council denied Mr. Holdsworth's request for review. On October 26, 19 93, Mr. Holdsworth filed an action in the district court alleging the "conclusi ons and findings of fact of the administrators were not supported by substantial ev idence and are contrary to law." The district court affirmed the Secretary's decision and noted:

This is a case where very clearly in looking at the entire record, the plaintiff has the ability to do sedenta ry work. The ALJ's finding that he is able to do sedentary work is a p roper finding. In fact, there is nothing in the record that's in conf lict with that, and I don't think the words "frequent[] changes of positi on" can be magnified to be in conflict with that, because in t hat same sentence, the doctor indicates that he can do lighter type of work.-3- I have no problem -- I don't know whether the grids should have been applied in this case, but I have no probl em with the fact that they were. I don't think it's error, because it appears that plaintiff's other problems, his pain, headaches, we re controlled with medication and did not limit his ability to do the sedentary work. Again, there is nothing from any doctor in the reco rd that says that there was a limitation.
Mr. Holdsworth raises five issues on appeal: 1) "[ d]id the district court err by finding the Commissioner of Social Security ... Decision was supported by substantial evidence"; 2) "[d]id the Commissioner s atisfy her burden at step five of the evaluation procedure"; 3) "[d]id the Commiss ioner fail to consider all of the evidence in the record"; 4) "[d]id the Administrative Law Judge ... fail to develop the record"; and 5) "[d]id the Appeals Coun cil fulfill its duty of review or violate Mr. Holdsworth's right to procedural due pr ocess?"

Although Mr. Holdsworth raises numerous issues, ourtask is limited to examining the record as a whole to determine whethe r the Secretary's decision is supported by substantial evidence and adheres to ap plicable legal standards. Washington v. Shalala , 37 F.3d 1437, 1439 (10th Cir. 1994).

I We will first address whether the Administrative Law Judge failed to meet his burden at step five of the evaluation process. See generally Williams v.-4-

Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988) (detailing 20 C.F.R. §§ 404.1520 & 416.920's five-step analysis). Having determinedthat Mr. Holdsworth was severely injured and was unable to return to his pr evious line of work, the judge then had to consider Mr. Holdsworth's "residual fun ctional capacity and [his] age, education, and past work experience to see if [he] can do other work." 20 C.F.R. § 404.1520(f). The judge noted Mr. Holdsworth's in ability to perform his prior line of work, his age which classified him as a you nger individual at the relevant time, his ninth grade education and his ability to perform the full range of sedentary work. Under 20 C.F.R. § 404.1567(a): Sedentary work involves lifting no more than 10 pou nds at a time and occasionally lifting or carrying articles like dock et files, ledgers, and small tools. Although a sedentary job is defined a s one which involves sitting, a certain amount of walking and s tanding is often necessary in carrying out job duties. Jobs are sed entary if walking and standing are required occasionally and other se dentary criteria are met. The judge then applied his findings to § "404.1569 of Regulations No. 4 and Rules 201.24, 201.25, or 201.26, Table No. 1 of App endix 2, Subpart P, Regulations No. 4," ("the grids") to conclude that Mr. Holdsworth was not disabled.

Mr. Holdsworth claims application of the grids was inappropriate because the judge failed to consider his non-exertional lim itations which include-5-

restrictions on reaching, stooping, exposure to col d weather, "need to frequently change positions," inability to drive for longer th an an hour, "headaches, depression, sleep disorder, blurred vision, dizzine ss and pain." Mr. Holdsworth is correct that when non-exertional limitations are pr esent, use of the grids is only appropriate as a framework to determine whether a s ufficient number of jobs exist that the claimant can perform. Huston v. Bowen , 838 F.2d 1125, 1131 (10th Cir. 1988). If the claimant's non-exertional limitation s, however, do not affect his ability to perform sedentary work then use of the g rids is appropriate.

In his decision the judge found: Regarding the claimant's own statements, the unders igned was persuaded by the claimant's estimates of what he co uld have performed during the time frame in question and it was his own estimate that he could lift from 10 to 15 pounds. This, in fact, exceeds the requirements for sedentary work. Regar ding his ... use of pain medication, he said that this is somewhat l imited including aspirin and Inderal for pain. He stated that what exacerbates his pain is cold weather but sedentary work is performed pri marily interiorly, unlike what the claimant was used to as a carpenter . Regarding daily activities, he said he spends his days walking his dog, watching television, and going to the union hall. His hobbyis working on lawn mowers. The Administrative Law Judge also considered the me dical evidence and statements of treating and examining physicians . Exhibit 15 provides a good summary of the claimant's history o f injury but this record, while establishing a medically determinable impairment, does not show that the claimant would be incapable of pe rforming sedentary work at the time ... in question.-6-

We have carefully reviewed the record and considere d each of Mr. Holdsworth's complaints. His restrictions regardin g reaching, stooping, exposure to cold weather, need to frequently change position s and inability to drive for longer than an hour do not affect his ability to pe rform a sedentary job. The definition of a sedentary job refers to one where h e would need to sit or stand for regular periods of time and do occasional light lif ting. These requirements do not anticipate that he will be doing any reaching, stoo ping, driving or be exposed to cold weather. Furthermore, his need to frequently change positions should be easy to accommodate. Regarding his other complaint s, the headaches, pain and sleep disorder he testified were controlled by medi cation when he chose to take it. See Dixon v. Heckler , 811 F.2d 506, 508 (10th Cir. 1987) (finding a con dition that can be controlled with medication cannot serve as the basis for a finding of a disability). His complaints of blurred vision were refuted by an ophthalmologist who found "[n]o disability from an ophthalmological viewpoint" and that his vision was 20/20. Although on appeal he alleges de pression as a factor, during his hearing before the Administrative Law Judge his attorney asked him if he had suffered from any emotional or psychological proble ms to which he responded: "No, sir. I don't believe so." After testifying that he had not suffered from any emotional or psychological problems, it is disingen uous for him now to argue he was disabled because of depression.-7-

Like the district court, we also find persuasive th e fact that every doctor who examined Mr. Holdsworth found him to be capable of performing light work. In an attempt to discredit the above testimony befo re the district court, Mr. Holdsworth's counsel argued:

[Counsel]: I'm not -- when I hear that someone is capable of light work, I'm always somewhat puzzled as to what they mean. Whether it means part-time work, work less restrict ive than the patient was doing in the past, or what -- THE COURT: Well, for Social Security appeals purpo ses, it means not lifting heavy weights, not doing the type of things that would bother someone with a bad back as the plainti ff apparently has. [Counsel]: Of course, light work under the departm ent of labor -- that's right, your honor -- means somethin g very specific; but I'm not sure that that's the context. And that that is a true interpretation of what the physician was saying in this case. But in any event, the doctor -- and Dr. Messner has since retired. That's one of the problems with this case . If we want some - - want some specifics as to what he meant by certai n -- by some -- sometimes contradictory restrictions or ambiguous r estrictions, he's not going to be around to clarify the record for us

.
We do not find the doctor's restrictions to be ambi guous or contradictory or preclusive of sedentary work. In the absence of any non-exertional limitations that would have affected Mr. Holdsworth's ability t o perform sedentary work, we find the Commissioner's decision was supported by s ubstantial evidence and in accordance with applicable legal standards.-8- II Mr. Holdsworth also claims the Commissioner failed to consider all of the evidence. In particular Mr. Holdsworth claims the Administrative Law Judge "refused to consider the opinion of treating physic ian Milo L. Messner, M.D." This contention is contradicted by the record. In his decision the judge states: The report from the claimant's treating physician a lso shows that the claimant could return to work in the time frame in question. Milo Mes[s]ner, M.D., stated in April 1982 that the clai mant "will not return to his usual occupation and that rehabilitat ion should be into another type of work with the limitations of not wo rking above the level of his shoulders, not working below the level of his waist, and not to lift greater than 25 pounds 1 foot from his chest." He went on to say "[t]he patient remains on a no-work status f rom his usual job but has been released to a lighter type of work." Dr. Mes[s]ner confirmed similar limitations in an updated letter of December 20, 1982.
The above passages show that the judge did in fact consider and give great weight to Dr. Messner's findings and recommendation s.

Next, Mr. Holdsworth claims the Commissioner failedto fully develop the record. Mr. Holdsworth alleges: "The appeals counc il refused to include the exhibits in the prior file .... The Commissioner f ailed to explain why she did not give credit for Mr. Holdsworth's 1980 earnings .... The ALJ was unable to apply SSR95-1p to the prior claim." He then claims "[t]h ere was an apparent conflict in the record between Dr. Messner's and others' orthop edic assessments." His-9-

contentions lack merit. He does not provide us with any information regarding what information should have been included in the p rior file or why Mr. Holdsworth was prejudiced by this denial or why it was inappropriate. Regarding Mr. Holdsworth's 1980 earnings, we assume this addr esses the argument Mr. Holdsworth made before the district court that his insurance period rendering him able for disability benefits should have lasted unt il 1984 instead of 1983. As we affirm the finding that Mr. Holdsworth was not disabled, whether the period he would have been eligible for disability ended in 19 83 or 1984 is irrelevant. Regarding the apparent conflict in the record Mr. H oldsworth seems to be arguing that the judge should have had him examined by a ne urologist and a psychologist. Neither this issue nor the appropriateness of the S SR-95-1p were raised in the proceedings below and we will therefore not address them for the first time on appeal. See Walker v. Mather (In re Walker) , 959 F.2d 894, 896 (10th Cir. 1992).

III Finally, Mr. Holdsworth contends the appeals counci l failed to fulfill its duty of review and violated claimant's right to pro cedural due process. His entire argument on this point is: Plaintiff requested the post-complaint second Appea ls Council's decision be stricken from the record .... The District Court wrongfully denied this motion [citation omitted]. Whether the Appeals Council received claimant's documents and r efused to-10-

consider them or whether they simply misplaced them , the reviewing tribunal failed to review the complete record befor e making its decision [citations omitted]. This Court also has mandamus jurisdiction to require the Commissioner to rule onclaimant's Request to Reopen.
This brief argument does little to inform us of the alleged errors or of any prejudice Mr. Holdsworth may have suffered as a res ult. Because our standard of review is so narrowly focused in this type of appea l and we have already found the Administrative Law Judge's decision to be suppo rted by substantial evidence and in accordance with the correct legal standards we affirm without addressing the propriety of the Appeals Council's actions.

AFFIRMED

. Entered for the Court WADE BRORBY United States Circuit Judge