* This order and judgment is not binding precedent, except under the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

** Honorable Wesley E. Brown, Senior District Judge, United States District

Court for the District of Kansas, sitting by designation.

F I L E D

United States Court of Appeals

Tenth Circuit

JUL 31 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

JOHN L. WATERDOWN,

Plaintiff-Appellant,

v.

KENNETH S. APFEL, Commissioner,

Social Security Administration,

Defendant-Appellee.

No. 97-5214

(D.C. No. 96-CV-396-W)

(N.D. Okla.)

ORDER AND JUDGMENT*

Before TACHA and McKAY, Circuit Judges, and BROWN,** Senior District

Judge.

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
1 The parties consented to proceed before the magistrate judge pursuant to

28 U.S.C. § 636(c)(1). Accordingly, our jurisdiction over this appeals arises

(continued...)

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argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is

therefore ordered submitted without oral argument.

Claimant John L. Waterdown appeals from the district court’s order

affirming the decision of the Commissioner of Social Security denying his

application for Supplemental Security Income Benefits under Title XVI of the

Social Security Act. Claimant applied for benefits in 1994, alleging disability as

of May 4, 1994, as a result of nervousness, shortness of breath, arthritis, and

dizziness. Claimant’s request for benefits was denied administratively and upon

reconsideration.

A hearing before an administrative law judge (ALJ) resulted in a decision

that claimant was not disabled. Agency regulations establish a five-part test to

determine disability under the Social Security Act. See 20 C.F.R. § 416.920;

Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988) (discussing five steps

in detail). In this case, the ALJ reached step five of the analysis, determining

that, while claimant could not return to his past work, he was capable of work

available in the national economy. The Appeals Council denied review, and

claimant filed suit in federal district court. The magistrate judge’s order affirmed

the agency’s decision to deny claimant benefits.1

 
1

(...continued)

under § 636(c)(3) and 28 U.S.C. § 1291. 

-3-

Our review of the agency’s decision is limited to determining whether the

decision is supported by substantial evidence in the record as a whole and whether

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

Human Servs., 26 F.3d 1027, 1028 (10th Cir. 1994). On appeal, claimant

contends that 1) the ALJ’s residual functional capacity assessment reflects errors

in his review of the medical records, lacks evidentiary support, and fails to

properly identify evidence in support of his determination that claimant’s

testimony was not credible, and 2) the ALJ’s step five determination that claimant

could perform work in the national economy is based on vocational testimony

elicited by an incomplete hypothetical question. 

After consideration of the arguments presented, and after careful review of

the record on appeal, we conclude that the district court correctly decided this

case. Therefore, for substantially the same reasons set forth in the magistrate
-4-

judge’s order dated September 17, 1997, the judgment of the United States

District Court for the Northern District of Oklahoma is AFFIRMED.

Entered for the Court

Wesley E. Brown

Senior District Judge