* Effective March 31, 1995, the functions of the Secr etary of Health and

Human Services in social security cases were transf erred to the Commissioner of Social Security. P.L. No. 103-296. Although the C ommissioner was the named defendant in the district court proceeding, in the text we continue to refer to the Secretary because she was the appropriate party at the time of the underlying agency decision.

** This order and judgment is not binding precedent, e xcept under the doctrines of law of the case, res judicata, and col lateral estoppel.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

*** Honorable Robin J. Cauthron, District Judge, UnitedStates District Court for the Western District of Oklahoma, sitting by de signation. 

## F I L E D United States Court of Appeals Tenth Circuit 

### FEB 28 1997 

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

LEONA M. BLACKMON,

Plaintiff-Appellant,

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

Defendant-Appellee. No. 96-5194 (D.C. No. 95-C-512-M) (N.D. Okla.)

ORDER AND JUDGMENT **
Before BRORBY and KELLY, Circuit Judges, and CAUTHR ON, *** District Judge.-2-

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) and 10th Cir. R. 34.1.9. Th e case is therefore ordered submitted without oral argument. Claimant Leona M. Blackmon appeals from the distric t court’s order affirming the decision of the Secretary of Health & Human Services to deny her disability and supplemental income benefits under t he Social Security Act. Claimant applied for benefits in 1993, alleging dis ability as a result of diabetes, high blood pressure, vision problems, dizziness, an d pain in her legs and feet. Her requests for benefits were denied administrativ ely and upon reconsideration. A hearing before an administrative law judge (ALJ) resulted in a decision concluding that claimant was not disabled. Agency regulations establish a five-step sequential analysis to evaluate disability claims. See Williams v.
Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988) (describing five steps in detail). The ALJ in this case determined that claimant retai ned the residual functional capacity (RFC) to perform a wide range of light work, limited by restrictions from operating motor vehicles and being exposed to unpro tected heights, as well as by a need to have regularly scheduled meals. The ALJ determined, at step four, that claimant could return to her past relevant work as a hospital unit clerk.-3-

Alternatively, the ALJ determined, at step five, th at claimant could perform other jobs which exist in significant numbers in the nati onal economy. The Appeals Council denied review, and claimant fil ed suit in federal district court. The parties consented to proceed b efore the magistrate judge, pursuant to 28 U.S.C. § 636(c). The district courtaffirmed the agency’s denial of benefits. Our jurisdiction over this appeal arises from 28 U.S.C. § 1291. Our review of the agency’s decision is limited to deter mining whether the decision is supported by substantial evidence based on the reco rd as a whole and whether the correct legal standards were applied. Castellano v . Secretary of Health & Human
Servs. , 26 F.3d 1027, 1028 (10th Cir. 1994). On appeal, claimant contends that the ALJ failed to properly develop the record and argues that the ALJ should not have reli ed on an opinion from one of claimant’s treating physicians. She also challenge s the ALJ’s RFC determination, specifically calling into question the ALJ’s credib ility determination as to her testimony and arguing that the ALJ improperly relie d on claimant’s daily activities in reaching his decision. Initially, we note that claimant did not challenge the ALJ’s credibility determination before the district court. Although counsel states that the issue was raised below and refers us to a specific page of hi s district court brief as required by this court’s rules, see 10th Cir. R. 28.2(b), nowhere on that page or with in the-4-

brief did counsel squarely address the issue of the ALJ’s credibility determination. The page counsel cites to contains arguments regarding the ALJ’s allegedly improper reliance on claimant’s daily act ivities and household chores as a basis for his RFC determination. Although those arguments include a statement that an opinion from claimant’s treating physician does not “negate her claim of disabling pain,” there is no suggestion that, as co unsel now argues, the ALJ’s credibility determination as to claimant’s testimony was in error because he failed to make specific findings and link those findings t o evidence in the record. Counsel’s representation that this credibility argu ment was raised below is disingenuous at best and at worst, a blatant mischaracterization of the record. This is a step beyond simply arguing issues for the first time on appeal, and we admonish counsel from stretching the truth in this fashion as a justification for his presentation of new arguments. Counsel has given u s no reason to depart from our general rule that we do not review issues not p resented to the district court, and we decline review of any argument regarding the ALJ’s credibility determination. See Crow v. Shalala , 40 F.3d 323, 324 (10th Cir. 1994). We reject counsel’s contention that the ALJ imprope rly relied on claimant’s household chores to reach his RFC determination. Areview of the ALJ’s decision reveals that the ALJ relied on numerous fa ctors in reaching that determination. Further, statements regarding dailyactivities are evidence to be-5-

considered under the Secretary’s regulations. See 20 C.F.R. §§ 404.1529(a); 416.929(a). As to the remaining issues raised and properly pres erved for appellate review, namely claimant’s arguments that the ALJ fa iled to develop the record and erred by relying on the opinion of Dr. Browning , one of claimant’s treating physicians, we conclude that the magistrate judge’s decision is both thorough and correct. Therefore, for substantially the same rea sons as those contained in that decision, dated June 11, 1996, and attached as an e xhibit hereto, we reject claimant’s arguments on these issues. 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