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

John J. Callahan, former Acting Commissioner of Soc ial Security, as the defendant in this action.

** This order and judgment is not binding precedent, e xcept under the doctrines of law of the case, res judicata, and col lateral estoppel.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. 

## F I L E D United States Court of Appeals Tenth Circuit 

### NOV 10 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

ROGER M. THREATT,

Plaintiff-Appellant, v. KENNETH S. APFEL, Commissioner, Social Security Administration, *

Defendant-Appellee. No. 97-6039 (D.C. No. CIV-96-402-C) (W.D. Okla.)

ORDER AND JUDGMENT **

Before KELLY, McKAY, and BRISCOE, Circuit Judges.
After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.1 Claimant also contends on appeal that the ALJ faile d to recognize his

limitation in twisting and rotating, but he did notraise this issue in his objections to the magistrate judge’s report and recommendation . He therefore failed to preserve this issue for appeal. See Soliz v. Chater , 82 F.3d 373, 375-76 (10th Cir. 1996). -2- Claimant Roger Threatt appeals from the district co urt’s order affirming the Commissioner’s decision denying his claim for disab ility insurance benefits at step five of the five-part process for determining disability, see 20 C.F.R. § 404.1520. Through an administrative law judge (A LJ), the Commissioner found that claimant could perform the full range of lightwork limited by the need to avoid repetitive stooping, lifting, or climbing and prolonged sitting or standing. The only issue properly before us on appeal is whether the Commissioner erred in concluding that claimant did not have a significantlimitation in his ability to reach and then compounded the error by failing to p ose a hypothetical question containing such a limitation to the vocational expe rt. 1 We review the Commissioner’s decision to determine whether factua l findings are supported by substantial evidence and whether correct legal stan dards were applied. See Castellano v. Secretary of Health & Human Servs. , 26 F.3d 1027, 1028 (10th Cir. 1994). Claimant contends that two pieces of evidence--a re port by Dr. Bradley, who treated claimant from November 1990 to February1991, and a functional capacity assessment by an occupational health evalu ator--identified his inability-3-

to reach as a significant limitation. He also cont ends that the ALJ erred by relying on the fact that neither Dr. Bradley nor Dr . Rosacker, who had treated claimant from April 1989 to August 1993, identified any limitation in claimant’s ability to reach to counter what he contends is con trary evidence. Dr. Bradley had checked a box on a “physical capaci ties form” indicating that claimant could reach only occasionally. Howev er, on the same form, he also checked boxes indicating that claimant had no restr ictions in using his hands for repetitive movements including grasping, pushing an d pulling, and fine manipulation, and Dr. Bradley released claimant forfull-time work without further limitation or comment regarding claimant’s ability to reach. Moreover, as the ALJ noted, none of Dr. Bradley’s narrative repo rts noted any limitation in claimant’s ability to reach. Based on tests performed in August 1989 (which the ALJ misidentified as being done in August 1991), an occupational health evaluator found claimant’s ability to work limited due to “difficulty with rea ching across to left of midline repetitively or over shoulder height, or below wais t.” Appellant’s App. Vol. II at 197. However, the evaluator concluded that, despit e these and other limitations not relevant here, claimant “should now be able to secure work as a bench repairman or assembler with sedentary to light phys ical demands.” Id. Additionally, an assessment by the same occupationa l health center in November-4-

1991 did not identify any limitations on claimant’s ability to reach and concluded that claimant’s “observed performance places him wi thin the light work level category.” Id. at 190. In his decision, the ALJ found that claimant had “n o limitations in normal reaching,” which he indicated was “within arm’s rea ch.” Id. at 41. This finding is supported by substantial evidence. We reject cl aimant’s contention that the ALJ improperly used the absence of evidence as evid ence when he relied on the fact that in their narrative reports, neither Dr. B radley nor Dr. Rosacker identified any limitation in claimant’s ability to reach. The re was minimal evidence that claimant’s ability to reach was limited, and the fa ct that claimant’s treating physicians never identified any such limitation in their extensive narrative reports covering a four-year period is significant and prob ative. Moreover, to the extent the ALJ’s decision can be read as finding claimant was limited by an inability to do “abnormal” reaching, that limitation was appropr iately considered during questioning of the vocational expert. The vocatio nal expert testified, consistent with the occupational health evaluator’s assessment , that with an ability to reach “within the normal arm’s length span as one sits ata work site,” there were a variety of jobs claimant could perform. See id. at 41, 78.-5-

We conclude that the ALJ’s finding regarding claima nt’s ability to reach and its effect on his ability to work is supported by substantial evidence. The judgment of the district court is AFFIRMED.

Entered for the Court

Mary Beck Briscoe Circuit Judge