* Pursuant to Fed. R. App. P. 43(c), Kenneth S. Apfel is substituted for

John J. Callahan, former Acting Commissioner of Soc ial Security, as the defendant in this action.

** This order and judgment is not binding precedent, e xcept under the doctrines of law of the case, res judicata, and col lateral estoppel.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

### JAN 30 1998 

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

KATHY M. LONG,

Plaintiff-Appellant,

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

Defendant-Appellee. No. 97-5111 (D.C. No. 95-CV-835-W) (N.D. Okla.)

ORDER AND JUDGMENT **

Before BRORBY , BARRETT , 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-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 appeals the district court order affirmin g the denial of plaintiff’s application for supplemental security income benefi ts. In what became the final decision of the Commissioner, the administrative law judge (ALJ) found that plaintiff’s heart condition, back pain, and ankle p roblems prevented her from performing her past relevant work. The ALJ furtherconcluded, however, that plaintiff could perform other work that exists in s ignificant numbers in the national economy, despite her impairments. Plaintiff raises two principle challenges on appeal : (1) the ALJ did not properly evaluate plaintiff’s physical impairments and their impact on her ability to do work; and (2) the hypothetical question the A LJ propounded to the vocational expert (VE) at the hearing did not accur ately reflect plaintiff’s impairments. We review the Commissioner’s decisionto determine whether the correct legal standards were applied and whethe r his “factual findings are supported by substantial evidence in the record vie wed as a whole.” Castellano v. Secretary of Health & Human Servs. , 26 F.3d 1027, 1028 (10th Cir. 1994). “If supported by substantial evidence, the [Commiss ioner’s] findings are conclusive and must be affirmed.” Sisco v. United States Dep’t of Health &
Human Servs. , 10 F.3d 739, 741 (10th Cir. 1993). “In evaluatin g the appeal,-3-

we neither reweigh the evidence nor substitute our judgment for that of the agency.” Casias v. Secretary of Health & Human Servs. , 933 F.2d 799, 800 (10th Cir. 1991). As a preliminary matter, we note that some of the arguments plaintiff makes in support of her first challenge were not ur ged in the district court. Specifically, the arguments that plaintiff advances on appeal in support of her contention that the ALJ erred in assessing the cred ibility of her subjective allegations of pain and other limitations are diffe rent than those she advanced in the district court in support of this proposition. “Absent compelling reasons, we do not consider arguments that were not presented t o the district court.” Crow v. Shalala , 40 F.3d 323, 324 (10th Cir. 1994). The record be fore us presents no compelling reasons to consider plaintiff’s new argu ments. Therefore, in examining whether the ALJ properly evaluated plaint iff’s physical impairments and their impact on her ability to do work, we will not consider the propriety of the ALJ’s credibility assessment; we will consider only whether the ALJ improperly gave more weight to the opinion of Dr. S utton, a consulting physician, than he gave to the opinion of Dr. Ferguson, plaint iff’s treating physician, and whether the record supports the ALJ’s finding that plaintiff can sit for four hours at a time, up to eight hours per day. We turn to the first of plaintiff’s arguments.-4-

Generally, the report of a physician who has treate d a patient should be given greater weight than that of a physician who h as not treated the patient.
See Broadbent v. Harris , 698 F.2d 407, 412 (10th Cir. 1983). Here, the AL J concluded that Dr. Sutton’s March 1994 report was a ctually more favorable to plaintiff than was Dr. Ferguson’s June 1992 repo rt, because “Dr. Sutton’s assessed limitations are more restrictive tha[n] th e limitations of Dr. Ferguson,” Appellant’s App., Vol. II at 29, and Dr. Sutton’s r eport took into account limitations arising from the broken ankle plaintiff suffered in 1993, after Dr. Ferguson’s examination. Indeed, Dr. Ferguson merely stated that plaintiff’s ability to sit, stand, move about, lift, carry, and handle objects was “impaired significantly,” id. at 144, without otherwise quantifying her limitatio ns. As plaintiff’s former counsel acknowledged at the hearing before the ALJ, what Dr. Ferguson considered a “significant” limitation is uncertain and cannot be quantified in any meaningful way. See id. at 246. Dr. Sutton, by contrast, made an assessme nt of plaintiff’s residual functional capacity (RFC) that specifically quantified her ability to do various work-related activities, suchas sit, stand, walk, lift, and carry. He found, for instance, that plaintiff coul d sit for only four hours at one time, for a total of eight hours in an eight-hour d ay; that she could stand for only one hour at a time, for a total of three to four ho urs in a day; and that she could-5-

walk for only thirty minutes at a time, for a total of one to two hours in a day.
See id. at 185, 191. Based upon our review of the record, we conclude th at the ALJ did not err in using Dr. Sutton’s specific limitations as the b asis for his own assessment of plaintiff’s RFC, rather than Dr. Ferguson’s ambiguo us and, arguably, less restrictive assessment of plaintiff’s ability to wo rk. Dr. Sutton’s limitations are supported by his own examination of plaintiff and b y other evidence in the record. Having determined that the ALJ did not err in relyi ng on Dr. Sutton’s assessment of plaintiff’s RFC, we necessarily rejec t plaintiff’s second argument, that the record does not contain support for the AL J’s finding that plaintiff can sit for four hours at a time, for a total of eight hour s per day. We turn, then, to plaintiff’s final challenge to th e ALJ’s decision. Plaintiff argues that the ALJ did not propound a proper hypothetical question to the VE and, therefore, that the VE’s response to the quest ion does not constitute substantial evidence upon which to base a finding o f no disability. A proper hypothetical question need include only the impairm ents that the ALJ permissibly finds are established by the evidence. See Gay v. Sullivan , 986 F.2d 1336, 1341 (10th Cir. 1993). The ALJ based his hypothetical q uestion on the limitations set forth in Dr. Sutton’s report. Because we have already upheld the ALJ’s-6-

determination that Dr. Sutton’s report accurately r eflects plaintiff’s limitations, the ALJ did not err in basing his hypothetical ques tion on those limitations. The judgment of the United States District Court fo r the Northern District of Oklahoma is AFFIRMED.

Entered for the Court

Wade Brorby Circuit Judge