* This order and judgment is not binding precedent, e xcept under the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

### JUL 14 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

DEWAYNE C. CAMPBELL,

Plaintiff-Appellant,

v. KENNETH S. APFEL, Commissioner of Social Security Administration,

Defendant-Appellee. No. 98-7005 (D.C. No. 97-CV-45-S) (E.D. Okla.)

ORDER AND JUDGMENT *

Before KELLY , BARRETT , and HENRY , Circuit Judges.

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 oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Plaintiff-appellant Dewayne C. Campbell appeals the district court’s affirmance of the decision by the Commissioner of S ocial Security denying plaintiff’s applications for disability insurance b enefits and supplemental security income. Because the Commissioner’s decision is sup ported by substantial evidence and no legal errors occurred, we affirm. Plaintiff applied for social security benefits in J anuary 1993, alleging an inability to work due to heat intolerance, a skin d isorder, hypertension, and mental impairments. After a hearing, an administrative law judge (ALJ) determined that although plaintiff could not perfor m his previous medium to heavy work, he could perform sedentary work with ce rtain environmental restrictions, and thus was not disabled. In January 1996, the district court reversed this decision, finding the ALJ inadequatel y evaluated plaintiff’s mental impairments and the frequency of his dermatological treatments. Upon remand, a different ALJ determined, after a he aring, that plaintiff is not disabled because he can perform his former workas a convenience store clerk. The Appeals Council denied review, making t he ALJ’s decision the final decision of the Commissioner of Social Security. T he district court affirmed, and this appeal followed. We review the Commissioner’s decision to determine whether his factual findings are supported by substantial evidence and whether correct legal standards-3-

were applied. See Hawkins v. Chater , 113 F.3d 1162, 1164 (10th Cir. 1997). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v . Perales , 402 U.S. 389, 401 (1971) (quotations omitted). We may “neither rewei gh the evidence nor substitute our judgment for that of the agency.” Casias v. Se cretary of Health & Human
Servs. , 933 F.2d 799, 800 (10th Cir. 1991). Plaintiff argues the first ALJ’s finding that he wa s limited to sedentary employment collaterally estopped the second ALJ fro m finding he could perform his former work. The principles of res judicata an d collateral estoppel do not apply, however, because the first judgment was not final. Instead, the first ALJ’s decision was reversed on appeal, with no indicationby the district court that it intended to affirm separately a finding that plaint iff is limited to sedentary work. Further, the second ALJ’s decision was based on mor e complete evidence of plaintiff’s condition, including a detailed functio nal evaluation by his treating physician in 1996. The cases cited by plaintiff ex amine a very different situation, addressing the preclusive effect of a final judgmen t on a subsequent application for benefits. See Dennard v. Secretary of Health & Human Servs. , 907 F.2d 598, 598, 600 (6th Cir. 1990); Lively v. Secretary of He alth & Human Servs. , 820 F.2d 1391, 1392 (4th Cir. 1987); Gavin v. Heckler , 811 F.2d 1195, 1197, 1199-1200 (8th Cir. 1987).-4-

Plaintiff argues the ALJ erred in failing to treat his need to wear protective clothing as a limit on his ability to work, allegin g the ALJ merely considered the detrimental effect of such measures on employability as resulting from a hiring practice. This argument is not supported by the re cord, however. Plaintiff’s doctor reported that plaintiff should avoid exposure to sunlight for eight to twelve hours following his PUVA treatm ents. See Appellant’s App. at 270. Although the report suggested this might b y accomplished by wearing protective clothing, goggles or sunglasses, and sunscreen, there is no indication that such measures were necessary inside a building such as a convenience store. Further, the ALJ’s hypothetical questions to the vo cational expert included a restriction on exposure to direct sunlight and elim inated the regular daytime work hours between 8:00 or 9:00 a.m. and 5:00 p.m. See id. at 335-37. The ALJ, therefore, took into account plaintiff’s need to av oid sunlight as a medical requirement affecting his ability to work. Because the vocational expert testified that a significant number of jobs existed even with these restrictions, substantial evidence supports the finding that plaintiff is notdisabled.-5-

The judgment of the United States District Court fo r the Eastern District of Oklahoma is AFFIRMED.

Entered for the Court

James E. Barrett Senior Circuit Judge