UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ JEREMIAH COLLINS, Plaintiff - Appellant,

v. CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant - Appellee. No. 15-6073 (D.C. No. 5:13- CV-00952-L) (W.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before BACHARACH , O’BRIEN , and PHILLIPS , Circuit Judges.

________________ _________________ Jeremiah Collins appeals from the dist rict court’s order affirming the Commissioner’s denial of his applications for a period of disability and disability insurance benefits and supplemental secur ity income. Exercising jurisdiction under 28 U.S.C. § 1291 and 42 U.S. C. § 405(g), we affirm.

* After examining the briefs and appellate record, th is panel has determined unanimously to honor 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 submitted without oral argument. This or der and judgment is not binding precedent, except under the doctrines of la w of the case, res judicata, and collateral estoppel.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 

### January 6, 2016 Elisabeth A. Shumaker Clerk of Court2 Background Mr. Collins was thirty-two years old on hi s alleged disability-onset date of January 1, 2009. He is a high-school grad uate who also has attended 1.5 semesters of college. Although he has ha d numerous short-te rm jobs, he has never worked at substantial-gainful-activity le vels. He sought benefits pr imarily because of mental impairments, as well as back and knee pain and a seizure disorder. The administrative law judge (ALJ) c oncluded that Mr. Collins suffers the severe impairments of “history of seiz ures; history of drug dependency in early partial remission; anxiety; schizophrenia, paranoid type; Major Depressive Disorder; [and] schizoaffective disorder.” Aplt. App ., Vol. I at 23. The ALJ further concluded that Mr. Collins had no impair ment or combination of impairments that met or equaled a listing, and that he retained the residual functional capacity (RFC) “to perform light work . . . excep t he should avoid moderate exposure to hazards due to history of seizures. [He] can understand, remember and ca rry out simple instructions with routine supervision, but should not work with the general public.” Id. at 30. Mr. Collins had no past relevant work , but applying the Medical-Vocational Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2 (commo nly known as “the grids”), the ALJ concluded that in light of his age, education, and work experience, there were jobs in significant numbers in the national economy that he could perform. Accordingly, the ALJ held that Mr. Collins was not disabled. The Appeals Council denied review , making the ALJ’s decision the Commissioner’s final decision. A ma gistrate judge issued a report and3 recommendation (R&R) recommending that the district court affirm the decision. After Mr. Collins objected, th e district court accepted the R&R and affirmed the denial of benefits. Discussion I. Firm Waiver Rule “The scope of our review . . . is limi ted to the issues th e claimant properly preserves in the district court and adequately presents on appeal.” Berna v. Chater , 101 F.3d 631, 632 (10th Cir. 1996). Mr. Collins has waived a ll issues that he did not raise in his objections to the R&R. Martinez v. Barnhart , 444 F.3d 1201, 1208 (10th Cir. 2006). And even for the issu es he did raise in his objections, the government contends that Mr. Collins was not sufficiently specific to preserve his arguments for review. “[A] party’s objections to the magist rate judge’s report and recommendation must be both timely and specific to pres erve an issue for a ppellate review.” Soliz v. Chater , 82 F.3d 373, 375 (10th Cir. 1996) (ellipsis and in ternal quotation marks omitted). “[O]nly an objection that is sufficiently specific to focus the district court's attention on the factual and legal issues that are truly in dispute will advance the policies behind the Magistrate’s Act that led us to adopt a waiver rule in the first instance.” United States v. One Parcel of Real Prop. , 73 F.3d 1057, 1060 (10th Cir. 1996). Mr. Collins’ objections began by “incorpo rat[ing] by referenc e herein, all of the arguments he made in his Brief in Chie f.” Aplt. App., Vol. IV at 955. But we4 disfavor briefing by incorporation, see, e.g. , Gaines–Tabb v. ICI Explosives, USA, Inc. , 160 F.3d 613, 623-24 (10t h Cir. 1998), and such a broad statement is not sufficiently specific to preser ve any arguments for review, see Soliz , 82 F.3d at 375- 76; One Parcel of Real Prop. , 73 F.3d at 1060. Mr. Collins then reiterated certain arguments from one section of his opening brief. Although it is a close call whether th ese objections are suffi ciently specific, we will not deem these argumen ts waived. We addres s them below. In addition, Mr. Collins raised a ne w argument in his objections. Citing Jaramillo v. Colvin , 576 F. App’x 870 (10th Cir. 2014), he argued that the ALJ improperly used non-specific qualifying term s in expressing his RFC and failed to state his mental impairments in terms of work-related func tioning. “Issues raised for the first time in objections to the magistrate judge’s recommendation are deemed waived.” Marshall v. Chater , 75 F.3d 1421, 1426 (10th Cir. 1996). Although Jaramillo was decided after Mr. Collins filed hi s brief in the district court, the authorities it relied on were available when Mr. Collins filed his brief. See Chapo v. Astrue , 682 F.3d 1285 (10th Cir. 2012); SSR 96-8p , 1996 WL 374184 (July 2, 1996); SSR 85-15, 1985 WL 56857 (1985). Therefor e, Mr. Collins could have raised the argument in his opening brief, a nd we consider it waived. We have applied the firm-waiver rule ex cept “when the interests of justice so dictate,” One Parcel of Real Prop. , 73 F.3d at 1060 (internal quotation marks omitted), and when th ere is plain error, see Morales-Fernandez v. INS , 418 F.3d 1116, 1122 (10th Ci r. 2005). But we do not cons ider these exceptions because5 Mr. Collins has not argued for them. See Richison v. Ernest Grp., Inc. , 634 F.3d 1123, 1131 (10th Cir. 2011) (“[T]he failure to argue fo r plain error and its application on appeal . . . surely marks the end of the road” for a waiv ed argument.). II. Arguments P reserved for Appeal Giving Mr. Collins the benefit of the doubt , we conclude that he sufficiently preserved a handful of issues by raising th em in his objections to the R&R. “We review the Commissioner’s decision to de termine whether the factual findings are supported by substantial ev idence in the record and whether the correct legal standards were applied. Substantial ev idence is such rele vant evidence as a reasonable mind might accept as ade quate to support a conclusion.” Wilson v. Astrue , 602 F.3d 1136, 1140 (10th Cir. 2010) (c itation and internal quotation marks omitted). First, Mr. Collins argues that the AL J erred in using the term “moderate exposure to hazards” in the RF C. He asserts that a pers on with a seizure disorder “must avoid all exposure to hazards, not just a mode rate exposure.” Aplt. Br. at 7. This argument ignores the medi cal evidence, relied upon by th e ALJ, that “[t]here is no record of recent treatme nt for seizures and by in ference the seizures are sufficiently controlled on medication. . . . [S ]eizures are expected to be controlled with compliance to treatment.” Aplt. App., Vol. 1 at 31. Due to seizure history, the ALJ included a hazards re striction “[n]onetheless,” id. , out of an abundance of caution. Mr. Collins did not preserve any argument that the ALJ’s decision regarding6 the likelihood of seizures is not supported by substantial evidence. In these circumstances, the use of the term “modera te exposure” is not gr ounds for reversal. Next, still challenging the hazards limitation, Mr. Co llins complains that the RFC does not identify specific hazards. But, in discussing the hazards limitation, the ALJ states that “[t]he cl aimant needs to avoid mode rate exposure to dangerous heights and moving machinery.” Id. This argument therefor e is meritless. Third, Mr. Collins asserts that “routine supervision” is unworkable because, according to his uncle’s test imony, he cannot retain information for more than two weeks. And fourth, he comp lains that the RFC does not contain a restriction on working in extreme heat or cold and makes no provision fo r his being absent or tardy due to mania and depression or for his hall ucinations and parano ia. Both of these arguments appear to question the ALJ’s as sessment of the evidence and urge the court to reweigh the evidence in Mr. Collins ’ favor. It is well settled, however, that we do not reweigh the evidence or substitu te our discretion for the agency’s. See Newbold v. Colvin , 718 F.3d 1257, 1262, 1265 (10th Cir. 2013); Casias v. Sec’y of Health & Human Servs. , 933 F.2d 799, 800 ( 10th Cir. 1991).7 Conclusion The district court’s ju dgment is affirmed.

Entered for the Court
Gregory A. Phillips Circuit Judge