* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

F I L E D

United States Court of Appeals

Tenth Circuit

DEC 30 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

EDDIE JOHNSON,

Plaintiff-Appellant,

v.

KENNETH S. APFEL, Commissioner,

Social Security Administration,

Defendant-Appellee.

No. 98-7051

(D.C. No. 97-CV-350-P)

(E.D. Okla.)

ORDER AND JUDGMENT *

Before PORFILIO , BALDOCK , and HENRY , Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is

therefore ordered submitted without oral argument. 
-2-

Plaintiff Eddie Johnson appeals from an order of the district court affirming

the Commissioner’s determination that he is not entitled to benefits. We affirm.

We review the Commissioner’s decision to determine whether his factual

findings were supported by substantial evidence in light of the entire record and

to determine whether he applied the correct legal standards. See Castellano v.

Secretary of Health & Human Servs., 26 F.3d 1027, 1028 (10th Cir. 1994).

Substantial evidence is “such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion.” Id. (quotations omitted). In the course of

our review, we may “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).

Mr. Johnson alleged disability due to back problems arising from an

on-the-job motor vehicle accident. The administrative law judge (ALJ)

determined that Mr. Johnson was not disabled at step five of the five-step

sequential process, see Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir.

1988), as he retained the residual functional capacity to perform sedentary work.

On appeal, Mr. Johnson argues his medical records were not fully evaluated

to determine whether he met listing § 1.05(C) of 20 C.F.R. Pt. 404, Subpt. P,

App. 1 at step three and the ALJ did not consider all of the evidence in

determining that he had the ability to perform sedentary work. We first note that
1

20 C.F.R. Part 404, Subpt. P, App. 1, 1.05(C) provides for a finding of

disability if the claimant demonstrates a vertebrogenic disorder such as a

herniated nucleus puplosus or spinal stenosis which has persisted for at least three

months in spite of therapy and is expected to last twelve months. The disorder

must be accompanied by both “[p]ain, muscle spasm, and significant limitation of

motion in the spine; and . . . [a]ppropriate radicular distribution of significant

motor loss with muscle weakness and sensory and reflex loss.”

-3-

Mr. Johnson has not included a statement of the issues he raised to the district

court. See 10th Cir. R. 28.2(b) (appellate brief must include statement as to

where each issue appealed was raised and ruled upon below). Nor has

Mr. Johnson included a copy of his opening brief to the district court. See Berna

v. Chater , 101 F.3d 631, 632 (10th Cir. 1996) (appellate review “is limited to the

issues the claimant properly preserves in the district court and adequately presents

on appeal”). However, in the interests of justice, we will consider whether

substantial evidence in the record supports the Commissioner’s determination. 

At step three, Mr. Johnson attempted to show he met the requirements of

listing § 1.05(C). 1 The record does not contain evidence demonstrating the

presence of a vertebrogenic disorder of the magnitude required or significant

motor loss.

At step five, the ALJ determined that Mr. Johnson could perform sedentary

work. The record shows that his treating physicians felt that Mr. Johnson could

return to work, although he would be restricted to a sedentary type job. In 1992,
-4-

two physicians opined that Mr. Johnson would be able to return to work with

restricted lifting abilities. In 1994, his physician opined that he could work in a

sedentary position. 

Further, the ALJ properly gave less than full credibility to Mr. Johnson’s

subjective complaints. The record shows Mr. Johnson did not seek medical

treatment between 1993 and 1995, aside from one visit unrelated to his current

allegation of disability. See Kepler v. Chater , 68 F.3d 387, 391 (10th Cir.1995)

(factors to be considered by ALJ in assessing credibility include extensiveness of

medical and nonmedical attempts to obtain relief and frequency of medical

contacts). We discern no error in the ALJ’s consideration of plaintiff’s evidence

and, accordingly, we defer to the ALJ’s credibility assessments.

The vocational expert stated that Mr. Johnson could perform sedentary

work under the hypothetical set forth by the ALJ. As the ALJ found that

Mr. Johnson’s testimony on the extent of his limitations was neither completely

credible nor supported by substantial evidence, he was not required to include all

his complaints in his hypothetical questions. See Evans v. Chater , 55 F.3d 530,

532 (10th Cir. 1995) (ALJ’s hypothetical questions to vocational expert “must

include all (and only) those impairments borne out by the evidentiary record”).
-5-

Substantial evidence supports the ALJ’s determination. The judgment of

the United States District Court for the Eastern District of Oklahoma is

AFFIRMED.

Entered for the Court

Robert H. Henry

Circuit Judge