* This order and judgment is not binding precedent, e xcept under the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

### OCT 21 2002 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
KARLA R. NIXON,

Plaintiff - Appellant,

v. JO ANNE B. BARNHART, Commissioner of Social Security Administration,

Defendant - Appellee. No. 02-7005 D.C. No. 00-CV-668-W (E. D. Oklahoma)

ORDER AND JUDGMENT *

Before KELLY and BALDOCK , Circuit Judges, and BRORBY , Senior Circuit 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 oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.1 The parties consented to proceed before a magistrat e judge in accordance

with 28 U.S.C. § 636(c). -2- Plaintiff Karla R. Nixon appeals from an order of the magistrate judge affirming the Commissioner’s determination that she is not entitled to Social Security disability benefits. 1 Because the Commissioner’s determination is supported by substantial evidence in the record, we affirm. Ms. Nixon alleges disability as of June 1, 1995 due to neck injury, with pain in the neck and shoulders; headaches; depressi on; and swelling in the hands, wrists, and arms. After a hearing, the administrative law judge (ALJ) determined that Ms. Nixon was not disabled at step four of the five-step sequential process, see Williams v. Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988), because sh e retained the residual functional capacity (RFC) to enable her to perform her past relevant work . The Appeals Council denied review, making the AL J’s decision the Commissioner’s final decision. The magistrate judge affirmed the Commissioner’s decision. We review the Commissioner’s decision to determine whether her factual findings were supported by substantial evidence in light of the entire record and to determine whether she applied the correct legal standards. See Castellano v. Sec’y of Health & Human Servs. , 26 F.3d 1027, 1028 (10th Cir. 1994). “Substantial evidence is such relevant evidence as a reasonable mind might accept-3-

as adequate to support a conclusion.” Id. (quotations omitted). In the course of our review, we may “neither reweigh the evidence no r substitute our judgment for that of the agency.” Casias v. Sec’y of Health & Human Servs. , 933 F.2d 799, 800 (10th Cir. 1991). Ms. Nixon contends the ALJ ignored substantial medi cal evidence establishing limitations that would prevent her fro m performing her past relevant work. First, Ms. Nixon contends that the ALJ ignor ed or did not adequately consider the findings of the state Disability Determination Service. We disagree. The ALJ expressly considered the state agency findi ngs. State agency findings are not binding upon an ALJ, and the record demonstrates the ALJ gave these findings the proper consideration. See Baca v. Dep’t of Health & Human Servs. , 5 F.3d 476, 480 (10th Cir. 1993) (stating that find ings by other agencies are entitled to weight and must be considered, but are not binding on the Commissioner). Next, Ms. Nixon notes that, with respect to her mental impairments, the ALJ concluded on the Psychiatric Review Technique (PRT) form that she “often” had “[d]eficiencies of [c]oncentration, [p]ersisten ce or [p]ace, resulting in [f]ailure to [c]omplete [t]asks in a [t]imely [m]an ner.” App. Vol. II, at 33. Ms. Nixon contends that, in his RFC assessment, the ALJ should have included these nonexertional limitations imposed by Ms. Nixon’s me ntal impairment and that his-4-

RFC is, therefore, deficient and not supported by s ubstantial evidence. We disagree. The ALJ’s RFC assessment included the limitation th at it was impossible for Ms. Nixon to perform tasks requiring understand ing, remembering, or carrying out more than simple instructions. These limitatio ns in the ALJ’s RFC assessment adequately account for Ms. Nixon’s defic iencies in concentration, persistence, and pace. See Howard v. Massanari , 255 F.3d 577, 582 (8th Cir. 2001) (holding that description of claimant as capable of doing simple, repetitive jobs adequately accounted for deficiencies of conce ntration, persistence, or pace). We conclude the ALJ’s assessment of her RFC limitat ions is reasonably consistent with his PRT assessment. Ms. Nixon also contends on appeal that the hypothet ical questions posed to the vocational expert who testified at the hearing do not match the limitations described in the ALJ’s RFC assessment. Contrary to Ms. Nixon’s assertion, this is a new argument that she did not raise or argue b efore the district court. Because our scope of review is limited to those arg uments properly preserved and presented in the district court, this argument is deemed waived. See Crow v. Shalala , 40 F.3d 323, 324 (10th Cir. 1994) (“Absent compel ling reasons, we do not consider arguments that were not presented to the district court.”).-5-

The judgment of the United States District Court fo r the Eastern District of Oklahoma is AFFIRMED.
Entered for the Court
Paul J. Kelly, Jr. Circuit Judge