* This order and judgment is not binding precedent, e xcept under the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

### SEP 29 1999 

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

GARY E. GREGORY,

Plaintiff-Appellant,

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

Defendant-Appellee. No. 99-5000 (D.C. No. 97-CV-1119-M) (N.D. Okla.)

ORDER AND JUDGMENT *

Before TACHA , KELLY , and BRISCOE , 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. SeeFed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.-2-

Plaintiff Gary E. Gregory appeals the district court’s affirmance of the final decision by the Commissioner of Social Security denying plaintiff’s applications for disability insurance benefits and supplemental security income. We affirm. In this third application for benefits, filed in June 1992, plaintiff alleges an inability to work due to epilepsy and injuries to h is back and knee. In 1993, an administrative law judge (ALJ) determined that plai ntiff was not disabled, finding that although he could not perform his former work, he retained the ability to perform a significant number of jobs in the nationa l economy. In 1995, the district court remanded the case to the Commissione r for further proceedings. At a supplemental hearing, plaintiff testified he w as seeking benefits for a closed period between July 1, 1989 and December 6, 1995, when he returned to full-time work. In May 1997, the ALJ first determi ned that plaintiff was barred by res judicata from seeking benefits for the perio d before October 25, 1991, based on the denial of his previous applications. The ALJ then concluded that plaintiff was not disabled between October 25, 1991 and December 6, 1995 because during this period he retained the ability to perform a significant number of light and sedentary jobs in the national economy . The Appeals Council denied review, making this decision the final decision by the Commissioner. The district court affirmed, and this appeal follows.-3-

We review the Commissioner’s decision to determine whether his factual findings are supported by substantial evidence and whether correct legal standards were applied. SeeHawkins 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) (quotation omitted). We may “neither reweig h 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 that the Commissioner’s decision i s not supported by substantial evidence because (1) the finding that h e could perform light work is contradicted by plaintiff’s physicians’ opinions li miting him to sedentary work; and (2) the ALJ’s primary reason for rejecting plai ntiff’s testimony regarding side effects from his medication is contradicted by the record. Neither of these issues was argued to the Appeals Council, however. See R. II at 435-39. We held in James v. Chater , 96 F.3d 1341, 1344 (10th Cir. 1996), that issues not raised to the Appeals Council will be deemed waived and will not be addressed on appeal. We issued this decision in September 1996, almost t en months before plaintiff, represented by his current counsel, appealed the de nial to the Appeals Council. Because plaintiff failed to preserve his issues, th ey are waived, and the Commissioner’s decision must be affirmed.-4-

We note that even if we were to consider plaintiff’ s arguments, they would fail. The ALJ determined that plaintiff could perf orm light work which allowed him to alternate between sitting and standing everyhalf hour. Dr. Peterson’s limitation on plaintiff’s prolonged standing does n ot contradict this finding. Further, although Dr. Milo opined that plaintiff sh ould perform only sedentary work, there is other evidence in the record, includ ing plaintiff’s own testimony, that supports the ALJ’s finding. See, e.g. , R. II at 561-62, 564 (testifying that during period in question he could stand between on e and two hours at a time, and could walk about a mile). Plaintiff testified he suffered such severe sleepin ess from his medication that he could not sit for more than ten minutes without falling asleep, and would even fall asleep standing up. See id. at 556, 565-66. The ALJ rejected plaintiff’s testimony based on his failure to report this side effect to his doctors, and based on his ability to do other activities. Although th e record does contain occasional complaints of sleepiness, these infrequent reports do not support plaintiff’s testimony regarding the severity of his sleepiness. In fact, one of plaintiff’s treating physicians, after noting his complaint of lethargy, opined that plaintiff could “go to school or do any kind of vocational training.” R. II at 495-96. In addition, plaintiff’s activities during the time he was taking Dilantin belie his complaints. In 1991-92, he completed a c ommercial electricity class at-5-

the Central Oklahoma Area Vocational Technical School. See id. at 423. Although he often fished for several hours at a tim e--a sedentary activity--there is no evidence that he had trouble staying awake while fishing. Further, although plaintiff testified he could not have performed his current job before 1995 because of sleepiness, see id. at 565-66, he nonetheless managed to work from December 1995 through September 1996, while still t aking his medication. Thus even if plaintiff’s issues had been preserved, the record contains substantial evidence to support the Commissioner’s decision denying benefits to plaintiff. The judgment of the district court is AFFIRMED.

Entered for the Court

Mary Beck Briscoe Circuit Judge