                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          OCT 10 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk


    JUSTIN HERWIG,

                Plaintiff-Appellant,

    v.                                                   No. 00-5219
                                                     (D.C. No. 99-C-682-J)
    LARRY G. MASSANARI, * Acting                         (N.D. Okla.)
    Commissioner of Social Security
    Administration,

                Defendant-Appellee.


                            ORDER AND JUDGMENT           **




Before HENRY , PORFILIO , and MURPHY , 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




*
      On March 29, 2001, Larry G. Massanari became the Acting Commissioner
of Social Security. In accordance with Rule 43(c)(2) of the Federal Rules of
Appellate Procedure, Mr. Massanari is substituted for Kenneth S. Apfel as the
appellee in this action.
**
      This order and judgment is not binding precedent, except under the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.
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

       Claimant Justin Herwig appeals the decision of the Commissioner of the

Social Security Administration, made through an administrative law judge (ALJ),

to deny his second claim for disability insurance benefits. Based on the testimony

of a vocational expert, the ALJ determined at step five of the sequential

evaluation process that there exist occupations in the regional or national

economy in significant numbers which claimant can perform regardless of his

impairments. On appeal, we review the record to determine whether the decision

of the ALJ is supported by substantial evidence and to verify that the law was

correctly applied.   Kepler v. Chater , 68 F.3d 387, 388 (10th Cir. 1995). Applying

this standard, we affirm.

       Claimant filed an application for disability insurance benefits in July 1992.

That application was denied initially and, on October 27, 1992, was denied upon

reconsideration. Claimant did not seek judicial review. Claimant’s insured status

expired on December 31, 1996, meaning that claimant must establish disability

between October 28, 1992 and December 31, 1996 in order to prevail.

       Claimant, who was injured in a work-related accident, alleged disability

due to back and neck pain. He underwent a lumbar spinal fusion in May 1992 and

had neck surgery in December 1994. The instrumentation from the back surgery


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was removed in July 1995. Claimant argues that the ALJ erred in setting an

artificially high standard for the award of benefits, an argument which basically

takes issue with the reasons advanced by the ALJ for his decision. Claimant also

contends that his impairments were not considered in combination.

      The ALJ discounted claimant’s reports of disabling pain because of “the

objective findings, or lack thereof.” R. Vol. I, ALJ dec. at 4. Claimant points to

numerous examples in the medical records to support his claim of disabling pain.

We, however, are not empowered to reweigh the evidence or to substitute our

judgment for that of the ALJ.   Barnett v. Apfel , 231 F.3d 687, 689 (10th Cir.

2000). As noted above, our task is only to review the record to ensure that the

decision of the ALJ is supported by substantial evidence and that the law has been

properly applied.   Id. After such review, we are satisfied that substantial

objective medical evidence exists to support the ALJ’s determination that

claimant can do the full range of light work subject to no more than occasional

stooping or bending and no work around unprotected heights.

      Bearing in mind that the relevant time-frame here is between October 28,

1992 and December 31, 1996, the record includes the following medical evidence.

An opinion in November 1992 from claimant’s treating physician stated that

claimant could do light work.   See R. Vol. II, at 397. A lumbar myelogram

performed in June 1995 revealed “no evidence of a protruding disc or compromise


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to the spinal canal or nerve roots. There is a wedge compression fracture at L1

of undetermined age but [this is] probably an older injury.”        Id. at 298.

In September 1995, claimant’s treating physician, noting that claimant had been

offered a supervisory job with a railroad, agreed with claimant that he could

probably do that job and released him from his care.     1
                                                              See id. at 309. In January

1996, Dr. LeRoy Young, D.O., stated that “this person’s period of temporary total

disability has long since ended and he may return to employment. He is in no

further need of medical care or vocational rehabilitation.”        Id. at 342. The only

evidence of a change in claimant’s condition during 1996 are X-rays from January

1996 which show a “compression deformity of L1 by approximately 20%

compared with previous films.”      Id. at 426. There is no evidence, however, that

this change resulted in claimant’s inability to perform light work.

       Indeed, comments made by claimant to a vocational evaluator only three

weeks before these abovementioned X-rays were taken indicates that claimant was

not disabled. At that time, claimant reported that he could lift and carry up to

twenty pounds, could sit for forty-five minutes, stand for thirty minutes, and

walk one mile. In the same interview, claimant also stated that he did not want

to participate in any work training programs because he was working as


1
       Claimant explains in his brief that he did not take this job when he
learned that he would be required to substitute for absent employees, sometimes
at a greater exertional level than he felt he was able to perform.

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a self-employed taxidermist and stated that “he has been able to stay busy with his

business.” Id. at 333. Taxidermy is rated as medium work. United States Dep’t

of Labor, Dictionary of Occupational Titles, 199.261-010. While this statement

was made a year before the expiration of claimant’s insured status, there is no

medical evidence in the record, other than the X-rays referred to above, to

substantiate a change in claimant’s condition during 1996, and certainly not one

so severe as to render claimant unable to do light work.

      Claimant’s other points of error include the ALJ’s reliance on his demeanor

at the hearing, his alleged misinterpretation of the discrepancy between what

claimant had reported to the vocational evaluator in December 1995 about his

physical abilities and his testimony at the hearing, and his alleged error regarding

claimant’s use of pain medication. None of these issues, however, negates the

presence of substantial evidence in the record supporting the ALJ’s determination.

      With regard to claimant’s demeanor, the ALJ cited claimant’s lack of

discomfort at the hearing as evidence supporting his decision of non-disability.

It is true that, where uncontroverted evidence corroborates the presence of

genuine pain, an ALJ cannot reject that evidence on the basis of demeanor alone.

Teter v. Heckler , 775 F.2d 1104, 1106 (10th Cir. 1985). Here, however,

claimant’s evidence of disability can hardly be described as uncontroverted. The

ALJ’s partial reliance on claimant’s demeanor during the hearing did not render


                                         -5-
his decision unsupported by substantial evidence. Instead, the demeanor evidence

was a cumulative, or collateral matter and was not relied on conclusively to

establish claimant’s ability to work.

      The same is true for the ALJ’s reliance on claimant’s “lack of medication

for severe pain” as evidence of his non-disability. R. Vol. I, ALJ dec. at 4.

While the evidence shows that claimant takes Lortab for pain management,

Baclofen, a muscle relaxant, and, at the time of the hearing but not before the

expiration of his insured status, was receiving lumbar epidural steroid injections,

R. Vol. II, at 390, 396, the ALJ, again, did not rely on the supposed lack of

medication alone to support his decision. Even though the ALJ’s comment in his

decision regarding claimant’s lack of pain medication was incorrect, we note that,

in his hypothetical to the vocational expert, the ALJ included the fact that

claimant took medication for the relief of his symptoms. R. Vol. I, at 56. The

misstatement in the written decision regarding pain medication does not render

the ALJ’s ultimate decision unsupported by substantial evidence.

      As mentioned above, the ALJ discounted claimant’s credibility because of

a discrepancy between his testimony at the hearing and what he had previously

reported to an employment evaluator regarding his physical capabilities. The

Commissioner correctly notes that there is nothing in the record to account for

the seemingly drastic decline in claimant’s physical abilities between the dates


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of the two statements. Further, it is the province of the ALJ, not this court, to

resolve ambiguities in the record.     Tillery v. Schweiker , 713 F.2d 601, 603

(10th Cir. 1983).

       Claimant finally argues that the ALJ failed to evaluate his impairments in

combination. Because claimant did not raise this issue to the district court, he has

waived it for purposes of appeal.    Crow v. Shalala , 40 F.3d 323, 324 (10th Cir.

1994). Claimant’s submission of a summary of the medical evidence to the

district court without accompanying argument is insufficient to raise the issue.

See Rademacher v. Colo. Ass’n of Soil Conservation Dists. Med. Benefits Plan        ,

11 F.3d 1567, 1571 (10th Cir. 1993).      Nonetheless, we have reviewed this issue

and, even if we were to consider it, we would find it without merit.

       The judgment of the United States District Court for the Northern District

of Oklahoma is AFFIRMED.


                                                       Entered for the Court



                                                       Michael R. Murphy
                                                       Circuit Judge




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