### UNITED STATES COURT OF APPEALS Tenth Circuit Byron White United States Courthouse

1823 Stout Street Denver, Colorado 80294 (303) 844-3157 Patrick J. Fisher, Jr. Elisabeth A. Shumaker Clerk Chief Deputy Clerk November 27, 1996

TO: All recipients of the captioned opinion
RE: 96-5057 Berna v. Chater November 26, 1996
Please be advised of the following correction to th e captioned decision: The reference to Judge Lungstrum as Circuit Judge i s incorrect. The correct designation is District Judge. Please make the appropriate correction.

Very truly yours, Patrick Fisher, Clerk

Susan Tidwell Deputy Clerk* Effective March 31, 1995, the functions of the Secr etary of Health

and Human Services in social security cases were tr ansferred to the Commissioner of Social Security. P.L. No. 103-296. Pursuant to Fed. R. Civ. P. 25(d)(1), Shirley S. Chater, Commissioner of Social Security, was substituted for Donna E. Shalala, Secretary of Health and Human Services, as the defendant in this action. Although the caption reflects this substitution, inthe text we continue to refer to the Secretary because she was the appropriate partyat the time of the underlying decision. PUBLISH

UNITED STATES COURT OF APPEALS Filed 11/26/96 TENTH CIRCUIT

KATHLEEN E. BERNA,

Plaintiff-Appellant,

v. SHIRLEY S. CHATER, Commissioner, Social Security Administration, *

Defendant-Appellee. No. 96-5057

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

(D.C. No. CV-94-1003)

Submitted on the briefs: Paul F. McTighe, Jr. and Gayle L. Troutman, Tulsa, Oklahoma, for PlaintiffAppellant.** Honorable John W. Lungstrum, District Judge, UnitedStates District

Court for the District of Kansas, sitting by design ation.

1 After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ reques t for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. Th e case is therefore ordered submitted without oral ar gument.

2 Pursuant to 28 U.S.C. § 636(c)(1), the parties cons ented to proceed before the magistrate judge. Accordingly, our juri sdiction arises under § 636(c)(3) and 28 U.S.C. § 1291. -2- Stephen C. Lewis, United States Attorney, Joseph B. Liken, Acting Chief Counsel, Region IV, Chris Carillo, Lead Attorney, R egion VI, Office of the General Counsel, Social Security Administration, Da llas, Texas, for DefendantAppellee.

Before BALDOCK and BRISCOE, Circuit Judges, and LUN GSTRUM, ** District Judge.
LUNGSTRUM, District Judge.

Plaintiff Kathleen E. Berna appeals 1 from an order of the magistrate judge 2 affirming the decision of the Secretary to deny hersocial security benefits. On the basis of expert vocational testimony identifyin g certain past relevant work plaintiff could perform despite her impairments, th e administrative law judge (ALJ) found her not disabled at step four of the co ntrolling analytical sequence.-3-

See generallyWilliams v. Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988). Plaintiff’s sole argument on appeal is that the ALJ deviated from proper step-four procedure by relying entirely on the expert’s concl usory opinion that she could return to prior work, without specifying on the rec ord the pertinent demands of such work and the factual basis for the conclusion that these demands could be satisfied despite her recognized impairments, as re quired by Henrie v. United States Department of Health & Human Servs. , 13 F.3d 359, 361 (10th Cir. 1993). See also Winfrey v. Chater , 92 F.3d 1017, 1024-26 (10th Cir. 1996). As explained below, special considerations lead us to affirm the magistrate judge’s order without reaching the merits of plaintiff’s co ntention. The rigor of our review in social security matters is captured in the familiar formulation that “[w]e closely examine the record a s a whole to determine whether the Secretary’s decision is supported by su bstantial evidence and adheres to applicable legal standards.” Evans v. Chater , 55 F.3d 530, 531 (10th Cir. 1995). The scope of our review, however, is limite d to the issues the claimant properly preserves in the district court and adequately presents on appeal:

This court has on a number of recent occasions reco gnized that waiver principles developed in other litigation con texts are equally applicable to social security cases. Thus, waiver may result from the disability claimant’s failure to (1) raise issues b efore the magistrate judge, Marshall[ v. Chater , 75 F.3d 1421, 1426 (10th Cir. 1996)], (2) object adequately to the magistrate judge’s rec ommendation, Soliz[ v. Chater , 82 F.3d 373, 375-76 (10th Cir. 1996)], (3) preserve issues in the district court as a general matter, C row v. Shalala , 40-4-

F.3d 323, 324 (10th Cir. 1994), or (4) present issu es properly to this court, Murrell v. Shalala , 43 F.3d 1388, 1389-90 (10th Cir. 1994). James v. Chater , 96 F.3d 1341, 1344 (10th Cir. 1996). In particul ar, if on appeal a claimant challenges only one of two alternative r ationales supporting a disposition, “[t]his choice of litigation strategy necessarily carries with it adverse consequences for [the] appeal as a whole. Since th e unchallenged [rationale] is, by itself, a sufficient basis for the denial of ben efits, [claimant’s] success on appeal is foreclosed--regardless of the merits of [ the] arguments relating to [the challenged alternative].” Murrell , 43 F.3d at 1389-90. In this case, the magistrate judge recounted and up held the Secretary’s determination that plaintiff could return to the pa st relevant work identified by the vocational expert and, thus, was not disabled at st ep four. The magistrate judge did not stop there, however:

The Court also finds that even if Plaintiff could e stablish that she was incapable of performing her past relevant w ork, there is sufficient evidence in the record establishing thateven with Plaintiff’s current impairments, there are a signif icant number of other jobs in the national economy which she is cap able of performing. That is, there is sufficient evidence in the record for the Secretary to carry her burden at step five of the s equential evaluation process. The ALJ described the following hypotheti cal person to the vocational expert: (1) 51 years old, (2) ninth grad e education, (3) medium ability to read, write and use numbers, (4) can perform sedentary or light work, (5) has back problems, ulc ers and a hernia, (6) has chronic pain, and (7) has to change positio n from time to time to relieve pain. R. at 185. The Court finds that this hypothetical adequately describes Plaintiff’s impairments. With respect to this hypothetical person, the vocational expert describe d five different-5-

jobs with approximately 10,000 positions in Oklahom a. R. at 186. This is sufficient to carry the Secretary’s burden at step five. For the foregoing reasons, the Secretary’s decisionis AFFIRMED

. R. I at 16. Plaintiff has offered no challenge to the latter, e qually dispositive rationale for affirming the Secretary’s decision. On the con trary, plaintiff complains only that the ALJ failed to identify the functional dema nds of pertinent (past) work and delegated to the vocational expert the task of matc hing such demands to her impairments, neither of which is improper at step f ive: At step five of the sequential analysis, an ALJ mayrelate the claimant’s impairments to a VE and then ask the VE whether, in his opinion, there are any jobs in the national economy that the claimant can perform. This approach, which requires the VE t o make his own evaluation of the mental and physical demands of va rious jobs and of the claimant’s ability to meet those demands despit e the enumerated limitations, is acceptable at step five because the scope of potential jobs is so broad. Winfrey , 92 F.3d at 1025. Significantly, plaintiff has no t questioned either the evidentiary basis underlying the alternative step-f ive analysis or, more generally, the propriety of the magistrate judge supplying thi s supplemental rationale for the Secretary’s administrative determination. We discern no “compelling reason” to reach step-fiv e issues plaintiff has never raised. See generallyCrow , 40 F.3d at 324. While, unlike prior social security waiver cases, this appeal involves matters first introduced at the district-6-

court level, several considerations attenuate the s ignificance of that distinguishing circumstance. The statute governing judicial review in the social security context indicates that the traditional relationship between trial and appellate court is to be maintained: “The [district] court shall have powerto enter . . . a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security . . . . The judgment of the court shall b e final except that it shall be subject to review in the same manner as a judgment in other civil actions.” 42 U.S.C. § 405(g). Consistent with this understandin g, Marshall , Soliz , and Crow all impose waiver consequences for procedural omiss ions in the district court, illustrating that the administrative origin of a so cial security appeal does not negate the legal effect of interim proceedings cond ucted in district court. Finally, and more specific to this particular case, we note that although the administrative determination stopped short of step five, subsidiary findings necessary for an alternative disposition at that stage were included in the body of the ALJ’s decision, which recited the vocational expert’s opi nion--given in response to a hypothetical inquiry the substance of which has notbeen questioned--“that there were a substantial number of other jobs in the regi onal and national economy which the [claimant] could perform.” R. II at 21. In light of these considerations,-7-

we deem it appropriate to reject plaintiff’s appeal as effectively foreclosed under Murrell , 43 F.3d at 1390. The judgment of the magistrate judge, entered in th e United States District Court for the Northern District of Oklahoma, is AFF IRMED.