* This order and judgment is not binding precedent, e xcept under the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

### NOV 15 1999 

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

JAMES L. PATTERSON,

Plaintiff-Appellant,

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

Defendant-Appellee. No. 99-2026 (D.C. No. CIV-97-1289) (D. N.M.)

ORDER AND JUDGMENT *

Before BALDOCK , PORFILIO , and BRORBY , 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(G). The case is therefore ordered submitted without oral argument.-2-

Claimant James Patterson appeals from the district court’s decision affirming the Commissioner’s denial of his applicat ion for Social Security disability insurance benefits. We review the Commi ssioner’s decision to determine whether his factual findings are supporte d by substantial evidence and whether he correctly applied the relevant legal standards. See Castellano v. Secretary of Health & Human Servs. , 26 F.3d 1027, 1028 (10th Cir. 1994). For the following reasons, we affirm the district court ’s decision. Patterson filed his application for benefits in Dec ember 1990, claiming disability due to a ventral hernia in the abdominal area and another possible hernia where a colostomy was removed. His applicat ion was denied on initial review, on reconsideration, and, following a hearin g, on consideration by an administrative law judge. The ALJ found that Patte rson could not do his past work as a machinist, which he performed at the medi um to heavy exertional level, but that he could perform the full range of sedenta ry work. In light of Patterson’s age of forty-nine, which classified him as a “young er individual,” and twelfthgrade education, the ALJ concluded that Rule 201.21 of the Medical-Vocational Guidelines, 20 C.F.R. Part 404, Subpt. P, App. 2 (the “grids”), would direct a finding that Patterson was not disabled. The Appea ls Council denied review, making the ALJ’s decision (dated January 24, 1992) the final decision of the Commissioner.-3-

Patterson then filed an action in the district court challenging the ALJ’s decision. The magistrate judge to whom the matter was referred noted that the ALJ classified Patterson as a “younger individual” because he was forty-nine years old, but failed to consider the fact that he was only three months shy of his fiftieth birthday, at which point he would be consi dered as “closely approaching advanced age.” If Patterson were classified in the older category, because of his lack of transferable skills, he would be presumptively disabled. See Rule 201.14 of the grids. The magistrate judge concluded that Patterson’s age fell within the “borderline situation” in which the age categories should not be applied “mechanically,” see 20 C.F.R. § 404.1563(a), and recommended that the case be remanded: In the instant action, the record reflects that an individualized consideration of Plaintiff’s borderline age was notmade. Instead, the ALJ simply listed Plaintiff’s age as 49. Accor dingly, the matter should be remanded for a determination by the ALJ a s to whether Plaintiff should be considered as a younger person or as a person closely approaching advance[d] age. The [Commissio ner] shall set forth the reasons supporting the characterization o f Plaintiff as either a younger individual or one closely approaching adv anced age. Appellant’s App. Vol. II at 193; see also Daniels v. Apfel , 154 F.3d 1129, 1133-36 (10th Cir. 1998) (discussing Commissioner’s obligations in applying grids in borderline age situations). In an order d ated May 25, 1995, the district court adopted the magistrate judge’s analysis and r ecommendation, explicitly noting the ALJ’s failure to address the borderline age issue, and remanded the-4-

case “for further proceedings consistent with this Order.” Appellant’s App. Vol. II at 195. On receiving the district court’s remand order, the Appeals Council vacated the ALJ’s decision and remanded the case to the ALJ “for further proceedings consistent with the order of the court.” Id. at 196. There is no indication in the record that, following the remand, the ALJ (the sam e one who issued the earlier decision) made any effort to address the borderline age issue that necessitated the remand from the district court. Instead, the ALJ h eld a second hearing, gathered medical and other evidence subsequent to the prior hearing, and issued another decision. This time, without mentioning his earlie r finding that Patterson was limited to sedentary work, the ALJ found that his i mpairments did not prevent him from performing the wide range of light work. Relying on the testimony of a vocational expert that there were light and sedenta ry jobs Patterson could perform despite his impairments, the ALJ concluded that he was not disabled. The Appeals Council denied review, and the district cou rt affirmed. Patterson now challenges the Commissioner’s decision in this court. On appeal, Patterson first contends that the doctri ne of law of the case prohibited the ALJ from finding on remand that he c ould perform light work because the ALJ found in his original decision thathe was limited to sedentary work and that original finding was accepted by the district court in determining-5-

that the case should be remanded. Under the doctri ne of law of the case, “once a court decides an issue, the same issue may not be r elitigated in subsequent proceedings in the same case.” Ute Indian Tribe of the Uintah & Ouray Reservation v. Utah , 114 F.3d 1513, 1520 (10th Cir. 1997). The doctri ne applies to issues both explicitly and implicitly decided. See Guidry v. Sheet Metal Workers Int’l Ass’n, Local No. 9 , 10 F.3d 700, 707 (10th Cir. 1993), modified on other grounds , 39 F.3d 1078 (10th Cir. 1994). “An important cor ollary of the doctrine, known as the ‘mandate rule,’ provides that a district court must comply strictly with the mandate rendered by the reviewing court.” Ute Indian Tribe , 114 F.3d at 1520-21 (quotation omitted). Although prim arily a doctrine applicable between courts of different levels, the doctrine an d the mandate rule apply to judicial review of administrative decisions, and “r equire[] the administrative agency, on remand from a court, to conform its furt her proceedings in the case to the principles set forth in the judicial decision, unless there is a compelling reason to depart.” Wilder v. Apfel , 153 F.3d 799, 803 (7th Cir. 1998); see also Brachtel v. Apfel , 132 F.3d 417, 419-20 (8th Cir. 1997). Apparently recognizing that issues not raised in th e district court are waived on appeal, see Crow v. Shalala , 40 F.3d 323, 324 (10th Cir. 1994), Patterson acknowledges that he did not raise the is sue of law of the case in the district court. He contends, however, that the iss ue should not be considered-6-

waived because he did argue collateral estoppel and “the premise underlying both doctrines is the same.” Appellant’s Br. at 7. He further contends that “[t]he only difference between the doctrines is that collateral estoppel applies if the claimant filed two applications, and the doctrine of law of the case applies where, as here, the claimant has filed only one application.” Id. n.3. While we agree there is some similarity in the principles underlying the tw o doctrines, given the differences between the doctrines, the way Patterso n argued for collateral estoppel in the district court, and the reasons beh ind the waiver rule, we cannot agree that Patterson has preserved his argument reg arding law of the case for appellate review. This is how Patterson presented his collateral esto ppel argument in the district court:

Under the doctrine of collateral estoppel, embodied in 42 U.S.C. § 405(h), once an issue of law or fact has b een decided, revisitation of that issue is precluded. Collatera l estoppel applies if the issue previously decided is identical to the on e presented in the action in question. Once the ALJ made his finding that Mr. Patterson was limited to sedentary work for the time period i n question, he is precluded from changing that finding to a higher ex ertional level without evidence that the claimant’s condition impr oved. This doctrine is also recognized by the Social Secu rity Administration’s regulations, as well as its intern al operating procedures . . . . The ALJ was obligated to consid er whether collateral estoppel applied to Mr. Patterson’s case . This court should remand this case with instructions that the ALJ fin d Mr. Patterson disabled under the grids, because a finding of an RFC [residual functional capacity] for sedentary work requires su ch a finding.2 The district court noted that “collateral estoppel does not apply if the time

periods under review differ,” and concluded the doc trine should not apply here because the ALJ issued his second decision four years after the first and considered additional evidence unavailable at the time of the first decision. See Appellant’s App. Vol. I at 41 (citing Rucker v. Chater , 92 F.3d 492, 495 (7th Cir. 1996)). We also note that Patterson did not argue to the Ap peals Council that the district court’s order limited the ALJ’s ability to readdress Patterson’s residual functional capacity. He argued only that “[i]n his January 14, 1992 decision, the ALJ found an RFC for sedentary work. Now that Mr. Patterson is 50 years of age, Grid Rule 201.14 would direct a finding of disabled.” Id. Vol. II at 158. Patterson has been represented by the same counsel since his request for review of the first ALJ decision. -7- Appellant’s App. Vol. I at 11-12 (citations omitted ). As can be seen, this argument does not mention the district court’s prio r decision, any implicit finding that Patterson was limited to sedentary work, or any restriction on the issues the ALJ could permissibly consider on remand due to the narrow scope of the court’s mandate. Instead, it pertains only to what the ALJ did in his first decision as a limit on what he could do in his second. Patterson ’s argument never focused the district court on the effect of the court’s prior ruling on the ALJ’s subsequent decisionmaking, but instead focused the court’s attention only on the effect of the
ALJ’s prior decision. The basis for the district court’ s rejection of his collateral estoppel argument--the fact that the periods under consideration were different--is generally not a reason excusing application of law of the case, at least absent some compelling reason that is not evident here. 2-8-

Thus, as Patterson has argued them, the two doctrin es are really not very similar. See Tele-Communications, Inc. v. Commissioner , 104 F.3d 1229, 1233 (10th Cir. 1997) (raising theory on appeal merely r elated to one raised in district court not sufficient to preserve issue for review). Moreover, the court issuing a mandate governing further proceedings is in the bes t position to interpret the scope of that mandate, see Steahr v. Apfel , 151 F.3d 1124, 1126 (8th Cir. 1998); Burton v. Johnson , 975 F.2d 690, 693 (10th Cir. 1992), and Patterson ’s argument never gave district court the opportunity to do that. Thus, by considering his argument regarding law of the case raised for the f irst time on appeal, we would not only be “usurping the role of the first-level trial court,” Anschutz Land & Livestock Co. v. Union Pac. R.R. , 820 F.2d 338, 344 n.5 (10th Cir. 1987), but we would also be interpreting the scope of the distric t court’s order in the first instance. Cf. G.J.B. & Assocs., Inc. v. Singleton , 913 F.2d 824, 831 (10th Cir. 1990) (district court “surely knows more about the meaning of its own orders than we do”). For these reasons, we conclude that Patte rson did not adequately present his law-of-the-case argument to the district court, and that he has waived that issue. See Crow , 40 F.3d at 324. Patterson’s second argument on appeal is that the A LJ’s finding that he can perform light work is not supported by substantial evidence. The crux of his argument is that there is no evidence that he can p erform the standing and sitting3 Because we reject this argument, we also reject his related argument that

since he cannot perform light work, the ALJ’s reliance on the vocational expert’s testimony that there were sedentary jobs he could p erform violated the presumptive finding of disability that would be dic tated by application of the grids. -9- requirements of light work. While the evidence is by no means overwhelming in either direction on this point, the ALJ relied on t he opinion of consultative examining physician Dr. Davis, who concluded that “ [s]tanding and walking are not particularly impaired, although he does get som e abdominal pain. By his history, he can walk for about a mile and a half if he wears an abdominal support.” Appellant’s App. Vol. II at 202-03. Thi s opinion is sufficient to support the ALJ’s finding that Patterson can perform the standing and walking requirements of light work. 3
AFFIRMED.

Entered for the Court

Wade Brorby Circuit Judge