* This order and judgment is not binding precedent, e xcept under the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 Wesley E. Brown, Senior District Judge, U nited States District Court for the District of Kansas, sitting by design ation. 

## 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 andMcKAY , Circuit Judges, and BROWN, ** Senior 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 The parties consented to proceed before the magistr ate judge pursuant to

28 U.S.C. § 636(c)(1). Accordingly, our jurisdicti on over this appeals arises (continued...) -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 John L. Waterdown appeals from the distric t court’s order affirming the decision of the Commissioner of Socia l Security denying his application for Supplemental Security Income Benefi ts 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, shortne ss of breath, arthritis, and dizziness. Claimant’s request for benefits was den ied 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 fiv e of the analysis, determining that, while claimant could not return to his past w ork, he was capable of work available in the national economy. The Appeals Cou ncil denied review, and claimant filed suit in federal district court. The magistrate judge’s order affirmed the agency’s decision to deny claimant benefits. 11 (...continued)

under § 636(c)(3) and 28 U.S.C. § 1291. -3- Our review of the agency’s decision is limited to d etermining whether the decision is supported by substantial evidence in th e 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 capa city assessment reflects errors in his review of the medical records, lacks evident iary support, and fails to properly identify evidence in support of his determ ination that claimant’s testimony was not credible, and 2) the ALJ’s step f ive 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, andafter careful review of the record on appeal, we conclude that the districtcourt correctly decided this case. Therefore, for substantially the same reason s 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 Oklahom a is AFFIRMED.

Entered for the Court
Wesley E. Brown Senior District Judge