* This order and judgment is not binding precedent, e xcept under the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

### JUN 22 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

LEWIS AARON COOK,

Plaintiff - Appellant, No. 99-5041

v. N.D. Oklahoma SOCIAL SECURITY ADMINISTRATION and UNITED STATES ATTORNEY,

Defendants - Appellees. (D.C. No. CV-98-74-J)

ORDER AND JUDGMENT *

Before ANDERSON , KELLY , and BRISCOE , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.1 Pursuant to 28 U.S.C. § 636(c)(1), the magistrate j udge sat for the district

court by consent of the parties.

2 The ALJ found that Mr. Cook could not perform any w ork which required 1) acute left eye vision, or 2) lifting more than 5 0 pounds occasionally and 25 pounds frequently, or 3) reaching overhead with his left arm. R. Doc. 1, Ex. B at 12. With regard to Mr. Cook’s vision, the ALJ note d an optometrist’s testimony that Mr. Cook had progressive bilateral cataracts w hich could be fixed by surgery. Id. , Ex. B at 7. -2- Claimant Lewis Aaron Cook appeals from an order of the magistrate judge 1 which affirmed the Commissioner of Social Security’ s denial of his application for social security disability benefits. We have j urisdiction under 28 U.S.C. §§ 636(c)(3), 1291 and 42 U.S.C. § 405(g), and we a ffirm. Mr. Cook applied for Supplemental Security Income b enefits, alleging an inability to work beginning July 1, 1995, due to he adaches, pain in the left shoulder, feet swellings, hypertension, and poor ey esight. He appeared pro se before an administrative law judge (ALJ) in Septemb er 1996. The ALJ reviewed the medical evidence, including a report by a consu ltive physician, heard testimony, and obtained an opinion from a vocationa l expert. Following the hearing, the ALJ determined that Mr. Cook has no pa st relevant work, and he denied the claim at step five of the evaluation sequence. See generally Williams
v. Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988). The ALJ f ound that Mr. Cook had a residual functional capacity (RFC) to performmedium work, with specified limitations, 2 and that there were a significant number of jobs i n the national3 Although Mr. Cook also raised issues regarding othe r claimed disabilities

in the district court, he raised only the issue of his vision in his opening brief to us. While he briefly alludes to those other claims of disability in his reply brief, his failure to raise those issues in his initial br ief precludes our consideration of them. See State Farm Fire & Cas. Co. v. Mhoon , 31 F.3d 979, 984 n.7 (10th Cir. 1994). -3- economy that he could perform. R. Doc. 1, Ex. B at12. In reaching this conclusion, the ALJ discounted inconsistent portion s of Mr. Cook’s medical history, and he determined that Mr. Cook’s subjecti ve complaints of disabling limitations and pain were not credible to the exten t alleged. The Appeals Council denied Mr. Cook’s request for review, making the AL J’s decision the final agency decision. Id. , Ex. A. Thereafter, Mr. Cook filed this action in the district court. The magistrate judge affirmed the Commissioner’s de nial of benefits. On appeal, Mr. Cook asserts that neither the ALJ, n or the Appeals Council, nor the magistrate judge considered the evidence wh ich he submitted to prove he was blind. 3 . According to the record, the ALJ received evidence of eye exam results from September 1995 and September 1996. The 1995 e xam showed uncorrected vision of 20/40-2 for the right eye, 20/100 for the left eye, and uncorrected vision with both eyes of 20/40-2. The 1996 exam showed co rrected vision of 20/25 for the right eye, 20/70 for the left eye. In December1996, Mr. Cook obtained another eye exam, which he submitted to the Appeals Council. That exam showed4 In addition to the above evidence which was clearlypresented to the

district court, Mr. Cook has also attached papers t o his appellate brief which document two eye surgeries and three eye exams whic h were performed in 1997. According to these documents, Mr. Cook underwent su rgery in February 1997 for the removal of his left eye cataract and the implan tation of an intraocular lens. Appellant’s Br., Ex. at 17-18. In March 1997, Mr. Cook’s follow-up eye exam showed uncorrected left eye vision of 20/20 and corrected vision for the right eye of 20/30 (decreased to 20/60 when glare factor was considered). Id. , Ex. at 20. At that time, cataract surgery was recommended for the right eye, id. , and in May 1997, Mr. Cook underwent surgery for the removal of his right eye cataract and implantation of an intraocular lens, id. , Ex. at 15-16. A follow-up eye examination in August 1997 showed 20/30 right eye v ision and 20/25 left eye vision. Id. , Ex. at 3. By November 1997, Mr. Cook’s eye exami nation showed “correctable acuity” of 20/20 in both eyes. Id. , Ex. at 13. While information regarding Mr. Cook’s left eye sur gery was briefly alluded to in the district court, it is unclear whe ther any of these documents were actually submitted. See R. Doc. 12 at 3. In any event, the Commissioner c ites to this “new” evidence in its brief, arguing that it s upports his position that Mr. Cook failed to prove an impairment. Appellee’s Br. at 13-14. However, since these documents were apparently not before the district court, we make note of some of the undisputed facts found therein in orderto complete the chronicle, but we have not based our opinion on the documents. Mo reover, even if we were to specifically address these documents, we would stil l find no disability under the Social Security Act. -4- corrected vision of 20/30 for the right eye, 20/200 for the left eye. Appellant’s Br., Ex. at 21. At the time of the December 1996 e xam, Mr. Cook’s treating physician recommended cataract surgery for the left eye. 4 Id. The regulations define statutory blindness as “central visual acuity of 20/200 or less in the better eye with the use of a correcting lens.” 20 CFR § 416.981. Under that definition, there is no evid ence to support Mr. Cook’s claim of statutory blindness. However, pursuant to 20 CFR § 416.985, if a-5-

claimant does not meet the definition for statutoryblindness, the Social Security Administration “will evaluate a visual impairment t he same as we evaluate other impairments in determining disability,” and the cla imant “may still be eligible for benefits if [the Administration] find[s] that [the claimant is] disabled as defined in §§ 416.905 through 416.907.” A person is disabled within the meaning of the Soci al Security Act if he is unable “to engage in any substantial gainful activi ty by reason of any medically determinable physical or mental impairment which ca n be expected to result in death or which has lasted or can be expected to las t for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); see also 20 C.F.R. § 404.1505(a). In this case, Mr. Cook’s objective eye tests demons trate that, with correction, he had excellent vision in one eye at a ll relevant times. Thus, Mr. Cook has presented no evidence that he was visuallydisabled for a continuous 12- month period. Moreover, the ALJ’s limitations to RFC expressly took into account the visual impairment which Mr. Cook experi enced prior to his cataract5 See note 2, supra . Additionally, even though Mr. Cook’s vision did briefly

deteriorate following the ALJ’s decision, the ALJ c annot award benefits based on a possibility that a claimant’s condition may deter iorate to the point of disability in the future. Cf. Sizemore v. Secretary of Health & Human Servs. , 865 F.2d 709, 712 (6th Cir. 1988). -6- surgery. 5 Accordingly, we conclude that the ALJ’s decision was supported by substantial evidence and the correct legal standard s were applied.
AFFIRMED.
ENTERED FOR THE COURT

Stephen H. Anderson Circuit Judge