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

                                                                          NOV 15 1999
                     UNITED STATES COURT OF APPEALS

                            FOR THE TENTH CIRCUIT                     PATRICK FISHER
                                                                               Clerk


    JAMES L. PATTERSON,

                Plaintiff-Appellant,

    v.                                                   No. 99-2026
                                                    (D.C. No. CIV-97-1289)
    KENNETH S. APFEL, Commissioner                         (D. N.M.)
    of Social Security,

                Defendant-Appellee.




                            ORDER AND JUDGMENT            *




Before BALDOCK , PORFILIO , and BRORBY , 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); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.



*
      This order and judgment is not binding precedent, except under the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.
       Claimant James Patterson appeals from the district court’s decision

affirming the Commissioner’s denial of his application for Social Security

disability insurance benefits. We review the Commissioner’s decision to

determine whether his factual findings are supported by substantial evidence and

whether he correctly applied the relevant legal standards.   See Castellano v.

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

the following reasons, we affirm the district court’s decision.

       Patterson filed his application for benefits in December 1990, claiming

disability due to a ventral hernia in the abdominal area and another possible

hernia where a colostomy was removed. His application was denied on initial

review, on reconsideration, and, following a hearing, on consideration by an

administrative law judge. The ALJ found that Patterson could not do his past

work as a machinist, which he performed at the medium to heavy exertional level,

but that he could perform the full range of sedentary work. In light of Patterson’s

age of forty-nine, which classified him as a “younger individual,” and twelfth-

grade education, the ALJ concluded that Rule 201.21 of the Medical-Vocational

Guidelines, 20 C.F.R. Part 404, Subpt. P, App. 2 (the “grids”), would direct a

finding that Patterson was not disabled. The Appeals Council denied review,

making the ALJ’s decision (dated January 24, 1992) the final decision of the

Commissioner.


                                            -2-
       Patterson then filed an action in the district court challenging the ALJ’s

decision. The magistrate judge to whom the matter was referred noted that the

ALJ classified Patterson as a “younger individual” because he was forty-nine

years old, but failed to consider the fact that he was only three months shy of his

fiftieth birthday, at which point he would be considered as “closely approaching

advanced age.” If Patterson were classified in the older category, because of his

lack of transferable skills, he would be presumptively disabled.   See Rule 201.14

of the grids. The magistrate judge concluded that Patterson’s age fell within the

“borderline situation” in which the age categories should not be applied

“mechanically,” see 20 C.F.R. § 404.1563(a), and recommended that the case be

remanded:

       In the instant action, the record reflects that an individualized
       consideration of Plaintiff’s borderline age was not made. Instead,
       the ALJ simply listed Plaintiff’s age as 49. Accordingly, the matter
       should be remanded for a determination by the ALJ as to whether
       Plaintiff should be considered as a younger person or as a person
       closely approaching advance[d] age. The [Commissioner] shall set
       forth the reasons supporting the characterization of Plaintiff as either
       a younger individual or one closely approaching advanced age.

Appellant’s App. Vol. II at 193;   see also Daniels v. Apfel , 154 F.3d 1129,

1133-36 (10th Cir. 1998) (discussing Commissioner’s obligations in applying

grids in borderline age situations). In an order dated May 25, 1995, the district

court adopted the magistrate judge’s analysis and recommendation, explicitly

noting the ALJ’s failure to address the borderline age issue, and remanded the

                                            -3-
case “for further proceedings consistent with this Order.” Appellant’s App.

Vol. II at 195.

       On receiving the district court’s remand order, the Appeals Council vacated

the ALJ’s decision and remanded the case to the ALJ “for further proceedings

consistent with the order of the court.”   Id. at 196. There is no indication in the

record that, following the remand, the ALJ (the same one who issued the earlier

decision) made any effort to address the borderline age issue that necessitated the

remand from the district court. Instead, the ALJ held a second hearing, gathered

medical and other evidence subsequent to the prior hearing, and issued another

decision. This time, without mentioning his earlier finding that Patterson was

limited to sedentary work, the ALJ found that his impairments did not prevent

him from performing the wide range of light work. Relying on the testimony of a

vocational expert that there were light and sedentary jobs Patterson could perform

despite his impairments, the ALJ concluded that he was not disabled. The

Appeals Council denied review, and the district court affirmed. Patterson now

challenges the Commissioner’s decision in this court.

       On appeal, Patterson first contends that the doctrine of law of the case

prohibited the ALJ from finding on remand that he could perform light work

because the ALJ found in his original decision that he was limited to sedentary

work and that original finding was accepted by the district court in determining


                                           -4-
that the case should be remanded. Under the doctrine of law of the case, “once a

court decides an issue, the same issue may not be relitigated in subsequent

proceedings in the same case.”     Ute Indian Tribe of the Uintah & Ouray

Reservation v. Utah , 114 F.3d 1513, 1520 (10th Cir. 1997). The doctrine applies

to issues both explicitly and implicitly decided.    See Guidry v. Sheet Metal

Workers Int’l Ass’n, Local No. 9    , 10 F.3d 700, 707 (10th Cir. 1993),   modified on

other grounds , 39 F.3d 1078 (10th Cir. 1994). “An important corollary of the

doctrine, known as the ‘mandate rule,’ provides that a district court must comply

strictly with the mandate rendered by the reviewing court.”      Ute Indian Tribe , 114

F.3d at 1520-21 (quotation omitted). Although primarily a doctrine applicable

between courts of different levels, the doctrine and the mandate rule apply to

judicial review of administrative decisions, and “require[] the administrative

agency, on remand from a court, to conform its further proceedings in the case to

the principles set forth in the judicial decision, unless there is a compelling reason

to depart.” Wilder v. Apfel , 153 F.3d 799, 803 (7th Cir. 1998);     see also Brachtel

v. Apfel , 132 F.3d 417, 419-20 (8th Cir. 1997).

       Apparently recognizing that issues not raised in the district court are

waived on appeal, see Crow v. Shalala , 40 F.3d 323, 324 (10th Cir. 1994),

Patterson acknowledges that he did not raise the issue of law of the case in the

district court. He contends, however, that the issue should not be considered


                                             -5-
waived because he did argue collateral estoppel and “the premise underlying both

doctrines is the same.” Appellant’s Br. at 7. He further contends that “[t]he only

difference between the doctrines is that collateral estoppel applies if the claimant

filed two applications, and the doctrine of law of the case applies where, as here,

the claimant has filed only one application.”     Id. n.3. While we agree there is

some similarity in the principles underlying the two doctrines, given the

differences between the doctrines, the way Patterson argued for collateral

estoppel in the district court, and the reasons behind the waiver rule, we cannot

agree that Patterson has preserved his argument regarding law of the case for

appellate review.

       This is how Patterson presented his collateral estoppel argument in the

district court:

              Under the doctrine of collateral estoppel, embodied in 42
       U.S.C. § 405(h), once an issue of law or fact has been decided,
       revisitation of that issue is precluded. Collateral estoppel applies if
       the issue previously decided is identical to the one presented in the
       action in question. Once the ALJ made his finding that Mr. Patterson
       was limited to sedentary work for the time period in question, he is
       precluded from changing that finding to a higher exertional level
       without evidence that the claimant’s condition improved.

              This doctrine is also recognized by the Social Security
       Administration’s regulations, as well as its internal operating
       procedures . . . . The ALJ was obligated to consider whether
       collateral estoppel applied to Mr. Patterson’s case. This court should
       remand this case with instructions that the ALJ find Mr. Patterson
       disabled under the grids, because a finding of an RFC [residual
       functional capacity] for sedentary work requires such a finding.

                                            -6-
Appellant’s App. Vol. I at 11-12 (citations omitted). As can be seen, this

argument does not mention the district court’s prior decision, any implicit finding

that Patterson was limited to sedentary work, or any restriction on the issues the

ALJ could permissibly consider on remand due to the narrow scope of the court’s

mandate. Instead, it pertains only to what the ALJ did in his first decision as a

limit on what he could do in his second. Patterson’s argument never focused the

district court on the effect of   the court’s prior ruling on the ALJ’s subsequent

decisionmaking, but instead focused the court’s attention only on the effect of      the

ALJ’s prior decision. The basis for the district court’s rejection of his collateral

estoppel argument--the fact that the periods under consideration were different--is

generally not a reason excusing application of law of the case, at least absent

some compelling reason that is not evident here.    2




2
      The district court noted that “collateral estoppel does not apply if the time
periods under review differ,” and concluded the doctrine should not apply here
because the ALJ issued his second decision four years after the first and
considered additional evidence unavailable at the time of the first decision.   See
Appellant’s App. Vol. I at 41 (citing   Rucker v. Chater , 92 F.3d 492, 495 (7th Cir.
1996)).

       We also note that Patterson did not argue to the Appeals Council that the
district court’s order limited the ALJ’s ability to readdress Patterson’s residual
functional capacity. He argued only that “[i]n his January 14, 1992 decision, the
ALJ found an RFC for sedentary work. Now that Mr. Patterson is 50 years of
age, Grid Rule 201.14 would direct a finding of disabled.”     Id. Vol. II at 158.
Patterson has been represented by the same counsel since his request for review of
the first ALJ decision.

                                            -7-
       Thus, as Patterson has argued them, the two doctrines are really not very

similar. See Tele-Communications, Inc. v. Commissioner            , 104 F.3d 1229, 1233

(10th Cir. 1997) (raising theory on appeal merely related to one raised in district

court not sufficient to preserve issue for review). Moreover, the court issuing a

mandate governing further proceedings is in the best position to interpret the

scope of that mandate, see Steahr v. Apfel , 151 F.3d 1124, 1126 (8th Cir. 1998);

Burton v. Johnson , 975 F.2d 690, 693 (10th Cir. 1992), and Patterson’s argument

never gave district court the opportunity to do that. Thus, by considering his

argument regarding law of the case raised for the first time on appeal, we would

not only be “usurping the role of the first-level trial court,”     Anschutz Land &

Livestock Co. v. Union Pac. R.R.      , 820 F.2d 338, 344 n.5 (10th Cir. 1987), but we

would also be interpreting the scope of the district court’s order in the first

instance. Cf. G.J.B. & Assocs., Inc. v. Singleton      , 913 F.2d 824, 831 (10th Cir.

1990) (district court “surely knows more about the meaning of its own orders than

we do”). For these reasons, we conclude that Patterson did not adequately present

his law-of-the-case argument to the district court, and that he has waived that

issue. See Crow , 40 F.3d at 324.

       Patterson’s second argument on appeal is that the ALJ’s finding that he can

perform light work is not supported by substantial evidence. The crux of his

argument is that there is no evidence that he can perform the standing and sitting


                                              -8-
requirements of light work. While the evidence is by no means overwhelming in

either direction on this point, the ALJ relied on the opinion of consultative

examining physician Dr. Davis, who concluded that “[s]tanding and walking are

not particularly impaired, although he does get some abdominal pain. By his

history, he can walk for about a mile and a half if he wears an abdominal

support.” Appellant’s App. Vol. II at 202-03. This opinion is sufficient to

support the ALJ’s finding that Patterson can perform the standing and walking

requirements of light work.   3



      AFFIRMED.



                                                     Entered for the Court



                                                     Wade Brorby
                                                     Circuit Judge




3
       Because we reject this argument, we also reject his related argument that
since he cannot perform light work, the ALJ’s reliance on the vocational expert’s
testimony that there were sedentary jobs he could perform violated the
presumptive finding of disability that would be dictated by application of the
grids.

                                         -9-
