                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                          July 24, 2007
                             FO R TH E TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                          Clerk of Court



    ER NESTO A . TR UJILLO ,

                Plaintiff-Appellant,

    v.                                                    No. 06-2294
                                                   (D.C. No. CIV-05-1347 DJS)
    M ICH AEL J. ASTRU E,                                   (D . N.M .)
    Commissioner, Social Security
    Administration,

                Defendant-Appellee.



                             OR D ER AND JUDGM ENT *


Before TA CH A, Chief Judge, M U RPH Y and HO LM ES, Circuit Judges.




         Plaintiff Ernesto A. Trujillo appeals from a district court order affirming

the Social Security Commissioner’s decision to deny his applications for social

security disability benefits and supplemental security income payments under




*
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Titles II and XVI of the Social Security Act. Exercising our jurisdiction under

42 U.S.C. § 405(g) and 28 U.S.C. § 1291, we AFFIRM .

                                          I.

      M r. Trujillo had been working as a school custodian for eight years when,

in mid-2001, he stopped working because of what he described as “severe muscle

spasms and lower back pain that cause[d] [his] leg to go numb.” 1 Aplt. App. at

68. In June 2002, he filed applications for disability benefits and supplemental

security income payments alleging a disability onset date of August 15, 2001.

The Commissioner denied his applications initially and on reconsideration, and

M r. Trujillo obtained a de novo hearing before an administrative law judge

(“ALJ”), which took place on January 19, 2005. After the hearing, at the request

of M r. Trujillo’s attorney, the ALJ sent M r. Trujillo for a consultative

psychological examination, which revealed that M r. Trujillo suffers from

dysthymic disorder, a form of depression, and unspecified cognitive disorders

resulting in mild to moderate limitations in various areas of mental functioning.

Nonetheless, the ALJ denied M r. Trujillo’s applications because he concluded

that despite M r. Trujillo’s back pain and cognitive limitations, he is not disabled

within the meaning of the Social Security Act.




1
       M r. Trujillo also claimed on his disability application that he suffers from
disabling migraine headaches. The Commissioner rejected this claim, however,
and M r. Trujillo does not challenge that particular ruling on appeal.

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      M ore specifically, the ALJ found that although M r. Trujillo suffers from a

combination of impairments that are severe, none of them meet or medically equal

an impairment contained in the regulatory listings. W ith respect to M r. Trujillo’s

allegations of back pain, the ALJ concluded that the objective medical evidence

simply did not support the type of back pain that he described.

      [M r. Trujillo’s] level of subjective complaints and functional
      limitations are extremely inconsistent with the objective medical
      evidence and the opinions of his treating sources and are not fully
      credited. The medical evidence of record fully supports that
      M r. Trujillo is physically capable of at least “medium” level work.

Id. at 19. The ALJ was particularly influenced by a series of medical records

from M r. Trujillo’s treating physician, Dr. Carlos J. Esparza, dating from 2001 to

2004. Those records reflect that Dr. Esparza consistently recommended a

conservative course of treatment for M r. Trujillo’s back pain and repeatedly urged

him to more faithfully adhere to an exercise regimen. The ALJ also noted that on

several occasions after the alleged onset of M r. Trujillo’s disability, Dr. Esparza

released him to work, with limitations, and the ALJ also pointed out that X-rays

and CT scans of M r. Trujillo’s spine were consistently normal.

      W ith respect to M r. Trujillo’s cognitive abilities, the ALJ found, based on

the consultative psychological examination mentioned above, that M r. Trujillo is

moderately limited in his ability: (a) to perform detailed or complex tasks; (b) to

work without supervision; (c) to interact with supervisors, co-workers, and the

public; and (d) to adapt in the workplace. But he noted that despite these

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limitations, M r. Trujillo appears to engage in a wide range of independent

activities. The ALJ also pointed out that M r. Trujillo hardly mentioned any

limitations in his cognitive functioning during the administrative hearing. Based

on this evidence, the A LJ found that M r. Trujillo’s vocational prospects are

limited to jobs that do not require extensive interaction with others, and that

detailed and complex work tasks are likely beyond his capabilities. His ultimate

conclusion was that M r. Trujillo suffers from “‘moderate’ limitations in

concentration, persistence and pace,” and he therefore included within his residual

functional capacity (“RFC”) assessment a restriction to “occupations which

involve simple repetitive work tasks.” Id. at 20.

      At step four of the sequential evaluation process, see 20 C.F.R.

§§ 404.1520(a)(4)(iv); 416.920(a)(4)(iv), the A LJ determined that M r. Trujillo’s

RFC permitted him to return to his past work as a custodian.

      The evidence establishes that he could return to this occupation as
      previously performed. In addition, he has the ability to do this job as
      it is generally performed in the national economy. The exertional
      demands fall within his physical residual functional capacity and
      such work is simple in nature and does not require extensive
      interaction with the public, co-workers, or supervisors.

Aplt. App. at 20. In accordance with these findings, the ALJ concluded that

M r. Trujillo is not disabled within the meaning of the Social Security Act.

      M r. Trujillo appealed the ALJ’s decision to the Appeals Council, which

denied his request for review. Thus, the ALJ’s decision constitutes the final



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decision of the Commissioner for purposes of appellate review. Branum v.

Barnhart, 385 F.3d 1268, 1270 (10th Cir. 2004).

                                          II.

      M r. Trujillo appealed the ALJ’s decision to the district court, arguing that

the ALJ erred in failing to consult a vocational expert about how his cognitive

limitations would affect his ability to perform his past relevant work. M ore

specifically, he argued that the ALJ’s finding that M r. Trujillo can perform simple

repetitive work tasks despite his limitations in concentration, persistence, and

pace was not adequate to support his conclusion that M r. Trujillo retains the

ability to perform his past duties as a custodian. The district court rejected this

argument, and, on August 9, 2006, issued an order affirming the C ommissioner’s

decision.

      The court held that the A LJ was not required to consult a vocational expert

because he made a proper determination at step four of the sequential evaluation

process that M r. Trujillo could perform his past relevant work. Cf. Glenn v.

Shalala, 21 F.3d 983, 988 (10th Cir. 1994) (holding that ALJ w as not obligated to

consult a vocational expert about other jobs claimant could perform after

determining that claimant could perform her past relevant work). The court’s

determination was bolstered by M r. Trujillo’s failure to identify any cognitive

impairments in describing why he quit his custodian job. Rather, he claimed that

he quit because of the problems with his back. And even if M r. Trujillo had

                                          -5-
included his cognitive limitations among the reasons for leaving his custodian

job, the court concluded that the A LJ had adequately accounted for those

limitations in formulating an RFC that required no more than simple, repetitive

work tasks. See H oward v. Massanari, 255 F.3d 577, 582 (8th Cir. 2001)

(holding that description of claimant as capable of doing simple, repetitive jobs

adequately accounted for deficiencies in concentration, persistence, and pace).

Accordingly, the district court concluded that the ALJ’s determination of

non-disability at step four was supported by substantial evidence. This appeal

followed.

                                          III.

      W e must first address the Commissioner’s contention that the majority of

M r. Trujillo’s appellate arguments have been waived (i.e., forfeited). As a

general rule, this court will not consider an issue raised for the first time on

appeal. See W olfe v. Barnhart, 446 F.3d 1096, 1103 (10th Cir. 2006) (declining

to address argument raised for first time on appeal); Crow v. Shalala, 40 F.3d

323, 324 (10th Cir. 1994) (same). Nor will we consider a new theory on appeal,

even if it falls under the same general category as an argument raised below.

Bancamerica Commercial Corp. v. M osher Steel of Kan., Inc., 100 F.3d 792,

798-99 (10th Cir.), amended on other grounds, 103 F.3d 80 (10th Cir. 1996).

W hile w e have recognized exceptions to this general rule, the exceptions are rare

and generally limited to cases involving questions of jurisdiction, sovereign

                                          -6-
immunity, or questions of law that we felt had to be addressed to prevent a

miscarriage of justice. See Hicks v. Gates Rubber Co., 928 F.2d 966, 970

(10th Cir. 1991); see also Lyons v. Jefferson Bank & Trust, 994 F.2d 716, 721

(10th Cir. 1993) (observing that we “hear issues for the first time on appeal only

in the most unusual circumstances”). The decision to take up questions for the

first time on appeal is left primarily to this court’s discretion, based on the facts

of individual cases. Singleton v. Wulff, 428 U.S. 106, 121 (1976).

      After carefully review ing M r. Trujillo’s district court brief, we agree with

the Commissioner that most of his appellate arguments were not raised below, and

we see no reason to invoke an exception to our general waiver rule in this case.

W e thus conclude that M r. Trujillo waived his arguments concerning: (a) his

sub-standard I.Q. tests; (b) the consulting psychologist’s alleged determination

that he can work only in a closely-supervised environment; and (c) the physical

demands of his past job as a custodian.

      W e limit our discussion to those issues properly preserved for appellate

review, keeping in mind the limited scope of that review in a social security case.

W e determine only whether the ALJ applied the correct legal standards and

whether his factual findings are supported by substantial evidence. Salazar v.

Barnhart, 468 F.3d 615, 621 (10th Cir. 2006). Our review is based on the record

taken as a whole. A ccordingly, “w e will meticulously examine the record in

order to determine if the evidence supporting the agency’s decision is substantial,


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but we neither reweigh the evidence nor substitute our discretion for that of the

Commissioner.” Id. (quotations omitted).

      The only issue that M r. Trujillo properly preserved for our review concerns

the ALJ’s decision to make a disability determination without the assistance of a

vocational expert. M r. Trujillo argues that in limiting his vocational prospects to

jobs with minimal social demands, it was incumbent on the ALJ to find out

whether his past job as a custodian provided such an accommodation. The district

court addressed this argument at length and concluded that the ALJ was not

obligated to resort to vocational expert testimony in light of his other findings.

W e agree w ith the district court’s well-reasoned analysis of this issue, which w e

summarized above, and we affirm its decision for substantially the same reasons

articulated in its memorandum opinion dated August 9, 2006. W e also conclude

that M r. Trujillo waived all of his arguments not specifically addressed in this

decision by failing to raise them in the district court. The judgment of the district

court is therefore AFFIRM ED.


                                                     Entered for the Court



                                                     Jerome A. Holmes
                                                     Circuit Judge




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