* This order and judgment is not binding precedent, e xcept under the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

### 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, 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.-2-

Plaintiff Eddie Johnson appeals from an order of the district court affirm ing the Commissioner’s determination that he is not ent itled 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 s tandards. 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 no r 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 administrat ive 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 capac ity to perform sedentary work. On appeal, Mr. Johnson argues his medical records w ere 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 sede ntary work. We first note that1 20 C.F.R. Part 404, Subpt. P, App. 1, 1.05(C) provi des for a finding of

disability if the claimant demonstrates a vertebrog enic disorder such as a herniated nucleus puplosus or spinal stenosis whichhas 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 radicu lar distribution of significant motor loss with muscle weakness and sensory and ref lex loss.”

-3- Mr. Johnson has not included a statement of the iss ues 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 uponbelow). 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 rev iew “is limited to the issues the claimant properly preserves in the distr ict 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 metthe requirements of listing § 1.05(C). 1 The record does not contain evidence demonstratin g the presence of a vertebrogenic disorder of the magnitu de required or significant motor loss. At step five, the ALJ determined that Mr. Johnson c ould perform sedentary work. The record shows that his treating physician s 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 abl e to return to work with restricted lifting abilities. In 1994, his physici an opined that he could work in a sedentary position. Further, the ALJ properly gave less than full credi bility to Mr. Johnson’s subjective complaints. The record shows Mr. Johnso n did not seek medical treatment between 1993 and 1995, aside from one vis it 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 credi bility include extensiveness of medical and nonmedical attempts to obtain relief an d frequency of medical contacts). We discern no error in the ALJ’s consid eration of plaintiff’s evidence and, accordingly, we defer to the ALJ’s credibilityassessments. The vocational expert stated that Mr. Johnson could pe rform 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 determinati on. The judgment of the United States District Court for the Eastern Di strict of Oklahoma is AFFIRMED.

Entered for the Court
Robert H. Henry Circuit Judge