* This order and judgment is not binding precedent, e xcept under the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.

** Honorable G. Thomas Van Bebber, Chief Judge, UnitedStates District Court for the District of Kansas, sitting by design ation.

UNITED STATES COURT OF APPEALS Filed 9/27/96 FOR THE TENTH CIRCUIT

KENNETH E. BURKE,

Plaintiff-Appellant,

v. SHIRLEY S. CHATER, Commissioner, Social Security Administration,

Defendant-Appellee. No. 95-5230 (D.C. No. 93-C-789-W) (N.D. Okla.)

ORDER AND JUDGMENT *

Before BRISCOE and MURPHY, Circuit Judges, and VAN BEBBER, ** District Judge.

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 oral1 Although this case was filed after the functions of the Secretary of Health and Human Services, Donna E. Shalala, were transferred to the Commissioner of Social Security, Shirley S. Chater, effective March 31 1995, we continue to refer to the Secretary because she was the appropriate party at the time of the underlying administrative decision. -2- argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. Th e case is therefore ordered submitted without oral argument. Claimant Kenneth E. Burke appeals from the districtcourt’s order affirming the Secretary of Health and Human Service s’ denial of his application for Social Security disability insurance benefits. 1 Claimant, a fifty-four year-old male with a ninth-grade education, has worked in th e past as an oil field driller and truck driver. He alleges disability from April 29, 1985, when he suffered an on-the-job accident in which 7,500 volts of electri city passed through his body, resulting in arthritis, soft tissue injuries, hypertensive vascular disease, ischemia and coronary artery disease, chronic venous insuffi ciency, a history of trans ischemic attacks, and somatoform disorder. Claimant’s first application for disability benefit s, filed on June 17, 1986, was denied on August 6, 1986, and was not appealed. Following a hearing before an administrative law judge, claimant’s second appl ication, filed on March 27, 1990, also was denied. On review, the Appeals Coun cil remanded the case for a supplemental hearing held on February 22, 1993, res ulting in another denial2 By consent of the parties, this matter was decided by the magistrate judge.

See Fed. R. Civ. P. 73(a).

3 Claimant raises several other issues relating to th e ALJ’s decision which were neither raised nor ruled on in the district co urt. Because our scope of review is limited to those issues properly preserved and p resented in the district court, claimant’s additional issues are deemed waived. Se e Crow v. Shalala , 40 F.3d 323, 324 (10th Cir. 1994)(“Absent compelling reason s, we do not consider arguments that were not presented to the district c ourt.”). -3- decision. The magistrate judge affirmed the decisi on of the Secretary. 2 On appeal, claimant contends that the Secretary’s deci sion was not based on substantial evidence, that the ALJ erred in weighin g the opinions of claimant’s treating physicians, and that the ALJ erred in rely ing on the opinion of Dr. E. Joseph Sutton, II, a consulting physician. 3 Our review of the Secretary’s decision is limited t o determining whether it is supported by substantial evidence and whether th e Secretary applied correct legal standards. Castellano v. Secretary of Health & Human Servs. , 26 F.3d 1027, 1028 (10th Cir. 1994). “To find that the Secretary ’s decision is supported by substantial evidence, there must be sufficient rele vant 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). However, we may neither reweigh the evidence nor substitute our judgment fo r that of the Secretary. Id. Applying these standards, and after thorough reviewof the record, we affirm.-4-

An individual is disabled within the meaning of the Social Security Act only if his impairments are so severe that he “is n ot only unable to do his previous work but cannot, considering his age, education, an d work experience, engage in any other kind of substantial gainful work which ex ists in the national economy.” 42 U.S.C. § 423(d)(2)(A). If a claimant meets his burden of proving that he cannot return to his past work, the burden shifts t o the Secretary to show that the claimant can perform other jobs in the national eco nomy. Ray v. Bowen , 865 F.2d 222, 224 (10th Cir. 1989). Here, the administrative law judge denied benefits at step five of the five-step evaluation p rocess applied for determining disability. See Williams v. Bowen , 844 F.2d 748, 750-52 ( 10th Cir. 1988)(discussing the five steps in detail). Findin g that claimant could not return to his past relevant work, the ALJ determined that he retained the residual functional capacity to perform a full range of medi um work limited by his ability to stoop and bend only occasionally. The only developed argument claimant asserts is that the ALJ failed to give sufficient weight to the opinions of his treating p hysicians. It is well settled that substantial weight must be given to the opinion of a treating physician unless good cause is shown to disregard it. Goatcher v. U nited States Dep’t of Health &
Human Servs. , 52 F.3d 288, 289-90 (10th Cir. 1995). “When a tr eating physician’s opinion is inconsistent with other medi cal evidence, the ALJ’s task is-5-

to examine the other physicians’ reports to see if [they] outweigh[] the treating physician’s report, not the other way around.” Id. at 290 (further citation omitted). Claimant argues that the medical opinions given by the physicians treating him immediately subsequent to his accident should b e considered dispositive of his disability. Several of these reports stated th at, for a period of time following his accident, claimant was not able to work. Claim ant appears to argue that these opinions are evidence of disability per se, and the ALJ should have used the later examinations as evidence of whether claimant’s cond ition had improved. The improvement standard, however, applies only in term ination cases. Brown v. Sullivan , 912 F.2d 1194, 1196 (10th Cir. 1990). As the ALJ noted, the majority of the opinions rend ered following claimant’s accident were for the benefit of evaluat ing claimant’s entitlement to workmen’s compensation. Moreover, contrary to clai mant’s assertion, the ALJ’s inquiry centered on whether claimant’s condition ha d worsened since 1986, and because claimant submitted very little evidence ind icating that he sought medical treatment between that time and the expiration of h is insured status on March 31, 1991, the later consultative evaluations were the b est evidence on which to rely. Therefore, the ALJ properly gave more weight to the more recent examinations, and adequately stated his reasons for doing so. Se e Goatcher , 52 F.3d at 290.-6-

Next, claimant argues that the ALJ’s reliance on th e consultative examination of Dr. Sutton does not constitute subst antial evidence because the ALJ did not provide Dr. Sutton with the necessary b ackground information, and because Dr. Sutton’s report was inconsistent with the evaluations of the other consultative physicians, Dr. Jerry D. First and Dr. David M. Heck. Our review of the record shows that Dr. Sutton’s report was prepared based on a thorough examination of claimant and a comprehensive underst anding of claimant’s medical history. See R. Vol. II at 412-16. Moreover, claimant does notrelate any specific, relevant inconsistencies in the consultat ive reports, and our review of the record did not reveal any such inconsistencies. Ac cordingly, we conclude, as did the magistrate judge, that the ALJ’s finding of no disability is supported by substantial evidence and, further, that the ALJ app lied the correct legal standards in reaching his decision. As a collateral matter, we note that in his decisio n, the ALJ determined that there was no good cause for reopening claimant’s Au gust 6, 1986 denial of benefits, and therefore, claimant was precluded fro m claiming disability prior to that date. Claimant argued to the district court, and the magistrate judge agreed, that because the ALJ considered the medical evidenc e submitted in support of the 1986 application, he had effectively reopened the application.-7-

In her brief to this court, the Secretary argues th at the magistrate judge erred in determining that res judicata did not bar the reopening of claimant’s 1986 application. Because the Secretary failed to perfe ct an appeal on this issue, it is not properly before this court. See Massachusetts Mutual Life Ins. Co. v. Ludwig , 426 U.S. 479, 480-81 (1976)(holding that while a nonappealing party may raise any argument in support of a judgment, wi thout a cross-appeal, a nonappealing party may not argue “‘with a view eith er to enlarging his own rights thereunder or of lessening the rights of his advers ary’”)(quoting United States v. American Ry. Express Co. 265 U.S. 425, 435 (1924)). Our decision in this c ase obviates further consideration of either the preservation issue or the de facto opening issue. The judgment of the United States District Court fo r the Northern District of Oklahoma is AFFIRMED.

Entered for the Court

G. Thomas Van Bebber District Judge