* This order and judgment is not binding precedent, except under the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

MAR 18 1999

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

WILLIAM D. LAIL,

Plaintiff-Appellant,

v.

KENNETH S. APFEL, Commissioner,

Social Security Administration,

Defendant-Appellee.

No. 98-7079

(D.C. No. 96-CV-260-B)

(E.D. Okla.)

ORDER AND JUDGMENT *

Before ANDERSON , KELLY , 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

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.
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Plaintiff appeals the district court’s order affirming the Commissioner’s

decision to deny plaintiff disability insurance benefits. Plaintiff applied for

benefits in 1994, alleging he had been disabled since November 1993 due to back,

neck and shoulder injuries he sustained in a work-related accident. After his

application was denied initially and on reconsideration, plaintiff sought and

received a de novo hearing before an administrative law judge (ALJ). In July

1995, the ALJ issued his decision concluding that plaintiff was not disabled. The

ALJ found that plaintiff had a residual functional capacity (RFC) for less than a

full range of light work and, therefore, could not return to his past relevant work,

which had been performed at the medium exertional level. Based on testimony

from a vocational expert (VE), the ALJ further concluded, however, that plaintiff

could perform other jobs that existed in significant numbers in the national

economy. Once the Appeals Council denied plaintiff’s request for review, the

ALJ’s decision became the final decision of the Commissioner.

Plaintiff appealed the Commissioner’s decision to the district court. 

Plaintiff’s former counsel filed a lengthy opening brief, as well as a reply brief,

raising numerous points of error to the magistrate judge. She also filed objections

to the magistrate’s report and recommendation, but the district court rejected the

objections and affirmed the Commissioner’s decision. Plaintiff then retained new

counsel, Paul McTighe, and pursued the present appeal.
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Our review of the Commissioner’s decision is limited to determining

whether the decision is supported by substantial evidence and whether correct

legal standards were applied. See Castellano v. Secretary of Health & Human

Servs. , 26 F.3d 1027, 1028 (10th Cir. 1994). Further, 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).

On appeal, plaintiff challenges the ALJ’s RFC assessment and the ALJ’s

reliance on what plaintiff views as faulty VE testimony in concluding that

plaintiff could perform a significant number of other jobs. Specifically, plaintiff

argues there is nothing in the medical records to support the RFC assessment,

because the records contain no RFC assessment by a treating or examining

physician and the non-examining physician’s RFC assessment differs significantly

from the ALJ’s assessment. Plaintiff also contends that the ALJ failed to

articulate what evidence he relied on in determining plaintiff’s RFC, and he may

have relied on an absence of evidence, which is improper. In the absence of

sufficient evidence to make an RFC assessment, plaintiff argues, the ALJ should

have ordered a consultative examination. Additionally, plaintiff argues the ALJ’s

RFC assessment is flawed because it is not expressed in terms of an eight-hour

workday. Finally, plaintiff argues the ALJ failed to link his assessment of
1 All citations to our local rules refer to the version in effect at the time

appellant’s brief was filed in August 1998. Local Rule 28.2(b) is now set forth at

10th Cir. R. 28.2(C)(2).

-4-

plaintiff’s credibility to specific record evidence and he failed to consider certain

evidence that supported plaintiff’s subjective allegations. Plaintiff challenges the

ALJ’s reliance on the VE’s testimony on the ground that the ALJ posed an

inadequate hypothetical question to the VE, which did not take into account an

eight-hour workday, so the VE’s answer to the question does not support the

ALJ’s determination that plaintiff can do other work in the national economy on

a full time basis.

As required by our local rules, plaintiff’s appellate brief refers us to

specific pages in the district court briefs and objections where, counsel

maintains, the present arguments were raised and preserved in the district court. 

See 10th Cir. R. 28.2 (b). 1 A careful review of the arguments advanced on appeal

and those advanced in the district court, however, reveals that none of the present

arguments were raised and preserved in the district court. Although plaintiff’s

former counsel did challenge both the ALJ’s RFC assessment and the ALJ’s

reliance on the VE’s testimony in the district court, she based those challenges

on completely different grounds than those advanced by current counsel on

appeal.
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As a general rule, we do not review issues that were not presented to the

district court, and counsel has given us no reason to depart from this rule here. 

See Crow v. Shalala , 40 F.3d 323, 324 (10th Cir. 1994). Therefore, we will not

review the issues raised on appeal.

Moreover, counsel’s representation that all the issues raised on appeal were

raised and preserved in the district court is not simply disingenuous, but a blatant

mischaracterization of the record. We have repeatedly admonished counsel about

misrepresenting the issues raised and preserved in the district court and we have

warned him that continued misrepresentations of this kind may result in sanctions. 

See, e.g. , McKee v. Apfel , No. 98-7008, 1998 WL 756808, at **2 n.1 (10th Cir.

Oct. 21, 1998) (unpublished order and judgment); Schofield v. Callahan ,

No. 96-6365, 1997 WL 334960, at **1 (10th Cir. Jun. 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). In light of our

previous warnings, counsel’s conduct here appears to be in bad faith and a

violation of 10th Cir. R. 46.5. We have authority to impose an appropriate

sanction for counsel’s misconduct, which may include monetary sanctions. 

See 10th Cir. R. 46.5.

We therefore order plaintiff’s counsel, Mr. McTighe, to show cause why

monetary sanctions should not be imposed for his misrepresentations of the
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record. Mr. McTighe shall have ten days from the date of this Order and

Judgment to file written objections to the proposed sanction, including any

arguments for mitigation, which objections shall not exceed ten pages. If the

objections are not received by the Clerk of the United States Court of Appeals

for the Tenth Circuit within ten days of the filing of this Order and Judgment,

monetary sanctions shall be imposed. If timely objections are filed, sanctions

will not be imposed until this court has ruled on the objections. Mr. McTighe is

further advised that continued misrepresentations to this court in this or any other

appeal that the arguments raised on appeal were properly presented to the district

court may lead not only to further monetary sanctions, but to the initiation of

disciplinary proceedings under our Plan for Attorney Disciplinary Enforcement

and a referral to the Oklahoma State Bar for possible disciplinary proceedings. 

See Fed. R. App. P. 46(c); 10th Cir. R. 46.5.

The judgment of the United States District Court for the Eastern District

of Oklahoma is AFFIRMED.

Entered for the Court

Stephen H. Anderson

Circuit Judge