                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           APR 9 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    MELVIN S. ALPHA,

                Plaintiff-Appellant,

    v.                                                   No. 98-7081
                                                    (D.C. No. 97-CV-29-B)
    KENNETH S. APFEL, Commissioner,                      (E.D. Okla.)
    Social Security Administration,

                Defendant-Appellee.




                            ORDER AND JUDGMENT            *




Before BRORBY , EBEL , and LUCERO , 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(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      This order and judgment is not binding precedent, except under the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.
      Plaintiff appeals from a district court order affirming the Commissioner’s

decision to deny social security benefits.

             The rigor of our review in social security matters is captured in
      the familiar formulation that we closely examine the record as a
      whole to determine whether the [Commissioner’s] decision is
      supported by substantial evidence and adheres to applicable legal
      standards. The scope of our review, however, is limited to the issues
      the claimant properly preserves in the district court and adequately
      presents on appeal[.]

Berna v. Chater , 101 F.3d 631, 632 (10th Cir. 1996) (citations and quotations

omitted). As explained below, most of plaintiff’s appellate argument is outside

the proper scope of our review, and the remainder is meritless. Accordingly, we

affirm.

      The Commissioner found plaintiff had the residual functional capacity

(RFC) to perform past relevant work as a truck driver and, consequently, denied

benefits at step four of the controlling sequential analysis. Plaintiff challenged

this decision in district court on the grounds that (1) the Commissioner did not

evaluate the medical evidence properly, particularly the findings of his treating

physicians; (2) plaintiff lacks the RFC for substantial gainful activity; and (3) the

medical-vocational guidelines (grids) direct a finding of disability. On appeal,

plaintiff’s new counsel has retained only the third issue, and interjected two new

arguments: (1) the denial of a prior application (in 1991) at step five precluded

the Commissioner from denying disability at step four on the present claim (in


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1996); and (2) the Commissioner failed to identify and match the demands of

plaintiff’s past relevant work with his impairments, as required at step four by

Social Security Ruling (SSR) 82-62 and such decisions as           Henrie v. United States

Department of Health & Human Services             , 13 F.3d 359 (10th Cir. 1993), and

Winfrey v. Chater , 92 F.3d 1017 (10th Cir. 1996).

       The belated presentation of the latter two arguments implicates our general

rules barring appellate review of issues not raised and preserved in district court.

See Crow v. Shalala , 40 F.3d 323, 324 (10th Cir. 1994) (recognizing general

waiver of issues not raised in district court);      see also Soliz v. Chater , 82 F.3d 373,

375-76 (10th Cir. 1996) (recognizing waiver of issues not preserved by objection

to magistrate judge’s recommendation). Plaintiff contends these matters are

nevertheless properly within the scope of our review because they are merely

different articulations of arguments advanced in district court or, if they are new

issues, they involve “question[s] of law” whose favorable resolution “is beyond

reasonable doubt” and, thus, warrant consideration to avoid a “miscarriage of

justice” under Goatcher v. United States Department of Health & Human

Services , 52 F.3d 288, 289 n.2 (10th Cir. 1995). The alternate-articulation point

is simply belied by the record. Neither plaintiff’s first application, nor SSR 82-62

and its associated case law, are even mentioned in plaintiff’s district court brief

and objection to the magistrate judge’s recommendation.


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       Plaintiff’s reliance on the miscarriage of justice exception discussed in

Goatcher is also insupportable. First, the argument for administrative res judicata

invokes a legal principle, but its applicability depends on the factual context.

See, e.g. , Rucker v. Chater , 92 F.3d 492, 494-95 (7th Cir. 1996) and cases

discussed therein. Here that context--involving a second RFC finding made

nearly five years after the first and based on additional medical evidence and

work history developed in the interim--weighs heavily          against , not indubitably

for, application of preclusion principles. Indeed, this court has followed         Rucker

to reject an argument for res judicata in just this type of situation.       See Wilson v.

Chater , No. 96-6358, 1997 WL 218486 at **2 (10th Cir. May 1, 1997) (holding

that “[b]ecause medical conditions and impairments can change, findings as to a

claimant’s residual functional capacity during one period ‘[are] not conclusive

evidence of [his] residual functional capacity at a later date’”) (quoting       Rucker ,

92 F.3d at 495).

       Second, as for SSR 82-62 and       Henrie and Winfrey , which require a

comparison of the claimant’s determined impairments with the pertinent demands

of his past relevant work--that was done here.        See Appendix Vol. II at 22-23.

While this case did not involve many particularized exertional and nonexertional

impairments and, consequently, the comparison process was fairly broad-brushed,

that does not indicate error, let alone a miscarriage of justice.


                                              -4-
      Finally, plaintiff has throughout the proceedings consistently maintained

that he should be found disabled under the grids. However, the Commissioner’s

denial of benefits at step four, which has not been shown to be in error, obviates

consideration of this contention. “A proper finding of . . . nondisability (at steps

two, four, or five) is conclusive and, thus, cannot be overturned by consideration

of a subsequent step.”   Murrell v. Shalala , 43 F.3d 1388, 1389 (10th Cir. 1994).

      Accordingly, the judgment of the United States District Court for the

Eastern District of Oklahoma is AFFIRMED.



                                                     Entered for the Court



                                                     Wade Brorby
                                                     Circuit Judge




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