* John J. Callahan, Acting Commissioner for the Socia l Security

Administration, is substituted for the former commi ssioner, Shirley S. Chater. See Fed. R. App. P. 43(c).

** This order and judgment is not binding precedent, e xcept under the doctrines of law of the case, res judicata, and col lateral estoppel.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 25 1997 

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

DONALD W. VAN WINKLE,

Plaintiff-Appellant,

v. JOHN J. CALLAHAN, Acting Commissioner, Social Security Administration, *

Defendant-Appellee. No. 97-7007 (D.C. No. 94-CV-541) (E.D. Okla.)

ORDER AND JUDGMENT **

Before BRORBY, LOGAN, 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-2-

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Plaintiff-appellant Donald W. Van Winkle appeals th e district court’s judgment affirming the decision by the Commissionerof Social Security denying his applications for benefits. Because the Commiss ioner’s decision is supported by substantial evidence, we affirm. Plaintiff has been diagnosed with scoliosis of the lumbosacral spine. In February 1990, he injured his cervical spine in a c ar accident. X-rays taken at that time revealed grade 2 degenerative changes in the thoracic spine at T9-T10. After two months of chiropractic treatment, plainti ff was released to return to work with no restrictions. He returned to his job as a pipefitter’s helper until it ended in October 1992. In May 1993, plaintiff appl ied for both disability insurance and supplemental security income benefits , alleging an inability to work after October 15, 1992, due to back pain. After a hearing, an administrative law judge (ALJ) found that although plaintiff cannot re turn to his former work, he is not disabled because he retains the ability to do the full range of light and sedentary work. The Appeals Council denied review, making this the final decision of the Commissioner. The district court a ffirmed, and this appeal followed.-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. 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). On appeal, plaintiff argues that the Commissioner’s finding that plaintiff can perform the full range of light and sedentary w ork is unsupported by substantial evidence because there is no medical ev idence plaintiff can either sit or stand on a prolonged basis. We disagree. In Ap ril 1990, plaintiff was released from treatment to “resume normal activities,” with no restrictions on walking or sitting noted. Appellant’s App. II at 125A. In 19 93, a consultative examination revealed that plaintiff had a good range of motion in his spine and all extremities, had a good ability to walk in terms of strength, sp eed, stability, and safety, had no lower extremity symptoms or muscular weakness, and did not need an assistive device to ambulate. See id. at 126-132. Again, no restrictions on walking or sitting were noted. These medical findings supportthe Commissioner’s-4-

conclusion that plaintiff can perform the standing and sitting requirements of light and sedentary work. Moreover, even accepting plaintiff’s testimony regarding his sitting and standing limitations, the vocational expert identif ied a significant number of light and sedentary jobs which would allow plaintiff to a lternate sitting and standing as needed. See id. at 61-62. The Commissioner’s ultimate conclusion that plaintiff is not disabled, therefore, is supported by substantial evidence. Plaintiff argues also that the ALJ failed to develo p the record because he did not order a current x-ray of plaintiff’s thorac ic vertebrae, in which degeneration had been noted, relying instead on rem ote evidence. We conclude the ALJ adequately developed the record by ordering a consultative examination. The ALJ had no duty to order further testing, as th e 1993 examination did not disclose medical findings suggesting that plaintiff’s disc degeneration had so progressed that a new x-ray would materially impacthis disability determination. See Hawkins , 113 F.3d at 1167, 1169. This is especially true in light of plaintiff’s attorney’s failure to request the ALJ t o order a current x-ray, see id. at 1167-68, and in light of plaintiff’s failure to ide ntify upper back pain as a disabling condition either in his application or du ring the consultative examination, see Appellant’s App. II at 95, 126-27. Moreover, the consultative physician’s findings were not remote, as they were made within twelve months of-5-

plaintiff’s application. See 20 C.F.R. §§ 404.1512(d) and 416.912(d). Plaintif f’s argument regarding who has the burden of proof in aTitle XVI case will not be considered, as it was not raised in the district co urt. See Crow v. Shalala , 40 F.3d 323, 324 (10th Cir. 1994) (holding we do not consid er arguments raised for first time on appeal absent compelling reasons). The judgment of the United States District Court fo r the Eastern District of Oklahoma is AFFIRMED.

Entered for the Court

Wade Brorby Circuit Judge