* After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument. This order and judgment is

not binding precedent, except under the doctrines of law of the case, res judicata,

and collateral estoppel. It may be cited, however, for its persuasive value

consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

1 We liberally construe pro se litigant filings. See Hall v. Bellmon, 935 F.2d

1106, 1110 & n.3 (10th Cir. 1991). 

FILED

United States Court of Appeals

Tenth Circuit

August 28, 2008

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

EDWARD LEE PARKER,

Plaintiff-Appellant,

v.

MICHAEL J. ASTRUE,

Commissioner of Social Security

Administration,

Defendant-Appellee.

No. 08-3064

(D.C. No. 6:07-CV-01088-MLB)

(D. Kan.)

ORDER AND JUDGMENT*

Before HOLMES, PORFILIO, and ANDERSON, Circuit Judges.

Edward Lee Parker, at all times proceeding pro se,1

 appeals from the

district court’s affirmance of the Commissioner’s denial of social security
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disability and supplemental security income benefits. Exercising jurisdiction

under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g), we affirm. 

I.

In the administrative proceedings, Mr. Parker alleged disability beginning

October 30, 2002, due to back, hip, leg, neck, hand, and shoulder pain;

degenerative arthritis of the spine; a history of laminectomy; a rotator cuff tear;

and carpel tunnel syndrome. His insured status ended on December 31, 2004. 

The administrative law judge (ALJ) decided Mr. Parker was not disabled because

he could perform work which exists in significant numbers in the national

economy. The Appeals Council denied Mr. Parker’s request for review, making

the ALJ’s decision the Commissioner’s final decision. See Jensen v. Barnhart,

436 F.3d 1163, 1164 (10th Cir. 2005). 

Mr. Parker then filed a complaint for judicial review in the District Court

of Sedgwick County, Kansas. The Commissioner removed the case to federal

district court, and it was referred to a magistrate judge for findings and a

recommendation. Mr. Parker asserted that he had only been able to work three

months out the last four or five years and the Social Security Administration did

not obtain his back medical records or the bills showing he tried to treat his health

problems and pain. The magistrate judge found that Mr. Parker did not show how

medical records from 1987 and 1988 would be relevant to his disabled status in

2002, because those records referenced Mr. Parker’s back problems leading up to
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surgery in 1988, the consulting doctor noted the surgery, and the ALJ was aware

of the surgery. Based on these findings, the magistrate judge concluded that the

ALJ did not err by failing to obtain additional medical records. The magistrate

judge then recommended that the Commissioner’s denial of benefits be affirmed. 

After considering Mr. Parker’s objections, the district court adopted the

magistrate judge’s report and recommendation. Mr. Parker appealed. 

II.

Mr. Parker first argues that because he filed disability claims in 1987,

2004, and 2008, his date of disability should be 1987. His current applications

for benefits, however, allege disability as of October 30, 2002. Thus, the ALJ,

magistrate judge, and district court correctly considered whether he was disabled

as of that date. Furthermore, Mr. Parker did not argue in the district court that the

ALJ considered the wrong date of disability. Consequently, we need not even

consider this issue. See Crow v. Shalala, 40 F.3d 323, 324 (10th Cir. 1994). 

Next, Mr. Parker argues that he never received a jury trial after this case

was removed from state court to federal court. His entitlement to a jury trial is a

question of law we review de novo. Mile High Indus. v. Cohen, 222 F.3d 845,

855 (10th Cir. 2000). Although 42 U.S.C. § 405(g), which permits judicial

review of the Commissioner’s denial of benefits, waives the United States’

sovereign immunity, see Bowen v. City of N.Y., 476 U.S. 467, 478-79 (1986);

Huie v. Bowen, 788 F.2d 698, 705 (11th Cir. 1986), it does not clearly provide a
-4-

jury trial right. Section 405(h), states that “[n]o findings of fact or decision of the

Commissioner of Social Security shall be reviewed by any person, tribunal, or

governmental agency except as herein provided.” Reading sections 405(g) and

(h) together, Congress did not clearly provide a right to a jury trial when it

established a cause of action for review of a denial of social security benefits. 

Cf. Lehman v. Nakshian, 453 U.S. 156, 162 n.9 (1981) (“Since there is no

generally applicable jury trial right that attaches when the United States consents

to suit, the accepted principles of sovereign immunity require that a jury trial

right be clearly provided in legislation creating the cause of action.”); id. at 168 

(“[A] plaintiff in an action against the United States has a right to trial by jury

only where Congress has affirmatively and unambiguously granted that right by

statute.”). Thus, we conclude that Mr. Parker was not entitled to a jury trial. 

See Ginter v. Sec’y of Dep’t of Health, Educ. & Welfare, 621 F.2d 313, 313-14

(8th Cir. 1980) (per curiam) (deciding district court’s review under § 405(g) does

not include granting claimant’s request for jury trial). 

Lastly, Mr. Parker requests that this case be returned to state court or

remanded to the ALJ. This case was properly removed to federal court. See

42 U.S.C. § 405(g) (providing that action for review of Commissioner’s decision

is to be brought in federal district court). Mr. Parker fails to set forth any reasons

why remand to the ALJ is proper, thereby waiving review of any decisional

errors. Cf. Murrell v. Shalala, 43 F.3d 1388, 1390 n.2 (10th Cir. 1994)
-5-

(“[P]erfunctory complaints [that] fail to frame and develop an issue [are

insufficient] to invoke appellate review.”). 

III.

The judgment of the district court is AFFIRMED. Mr. Parker’s motion for

leave to proceed on appeal without prepayment of costs or fees is GRANTED. 

Entered for the Court

John C. Porfilio

Circuit Judge