                                                                            F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                             JUN 1 2000
                            FOR THE TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                    Clerk

    ELLA L. NASH,

                Plaintiff-Appellant,

    v.                                                    No. 99-7109
                                                    (D.C. No. 98-CV-561-BU)
    KENNETH S. APFEL, Commissioner                         (E.D. Okla.)
    of Social Security Administration,

                Defendant-Appellee.


                             ORDER AND JUDGMENT            *




Before BRORBY , ANDERSON , 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

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

         Plaintiff-appellant Ella L. Nash appeals from the district court’s order

affirming the decision of the Commissioner of Social Security which found


*
      This order and judgment is not binding precedent, except under the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.
her ineligible for disability insurance benefits and supplemental security income

benefits. We affirm after “closely examin[ing] the record as a whole to determine

whether the [Commissioner’s] decision is supported by substantial evidence and

adheres to applicable legal standards.”     Evans v. Chater , 55 F.3d 530, 531

(10th Cir. 1995).

       Ms. Nash claims disability since December 23, 1993, due to morbid

obesity, back pain, numbness and pain in her legs and feet, varicose veins,

swollen feet, and edema. In denying Ms. Nash’s application for benefits, the

administrative law judge (ALJ) followed the established five-step evaluation

process. See 20 C.F.R. § 404.1520 (disability insurance); 20 C.F.R. § 416.920

(supplemental security income);     Williams v. Bowen , 844 F.2d 748, 750-51

(10th Cir. 1988) (generally describing the five-step analysis). The ALJ found that

Ms. Nash (1) was not performing substantial gainful activity, (2) had severe

impairments, (3) did not, however, have a listed impairment, and (4) was unable

to perform her past relevant work as a grill cook.    At step five, the ALJ found that

Ms. Nash had the residual functional capacity (RFC) to perform a full range of

sedentary work. Application of the Medical-Vocational Guidelines, 20 C.F.R.

pt. 404, Subpt. P, App. 2, rule 201.18 (the grids), directed a finding of not

disabled.




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       The district court affirmed the denial of benefits. On appeal, Ms. Nash

argues that the ALJ conducted an improper evaluation of her impairment under

the listing for obesity, 20 C.F.R. pt. 404, subpt. P, app. 1, § 9.09. She also

asserts that ALJ’s analysis of her RFC was conclusory and legally insufficient.

Before turning to the arguments made by Ms. Nash, however, we address the

Commissioner’s contention that we must limit our consideration of Ms. Nash’s

argument concerning the obesity listing.


                     Threshold Issues Raised by Commissioner

       The Commissioner proposes two restraints on our evaluation of this appeal.

First, he asserts that Ms. Nash waived her claims under two subsections of the

obesity listing, § 9.09A and B, by mentioning only one subsection, § 9.09D, at the

Appeals Council level.     See Appellee’s Br. at 6-9. In    James v. Chater , 96 F.3d

1341, 1343 (10th Cir. 1996), we stated that “issues not brought to the attention of

the Appeals Council on administrative review may, given sufficient notice to the

claimant, be deemed waived on subsequent judicial review.” The application of

the waiver doctrine is discretionary.    See Sussman v. Patterson , 108 F.3d 1206,

1210 (10th Cir. 1997). We note that the Supreme Court has granted certiorari

on the issue of whether a federal court may impose an issue exhaustion

requirement upon social security claimants barring issues that were not

specifically raised by the claimant during the administrative process.      See Sims v.

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Apfel , 162 F.3d 1160 (5th Cir. 1998),   cert. granted , 68 U.S.L.W. 3345 (U.S.

Nov. 29, 1999) (No. 98-9537). Under these circumstances,        we exercise our

discretion to consider Ms. Nash’s additional arguments under the obesity listing.

       The Commissioner’s next contention is that we may not grant benefits to

Ms. Nash under listing 9.09, the obesity listing, no matter how we resolve her

issues on appeal.   See Appellee’s Br. at 14-16. As the Commissioner points out,

the listing has been deleted and replaced with more restrictive guidance “about

the evaluation of claims for benefits involving obesity to the prefaces of [revised]

musculoskeletal, respiratory, and cardiovascular body system listings.”       Revised

Medical Criteria for Determination of Disability, Endocrine System and Related

Criteria , 64 Fed. Reg. 46122, 46123 (1999). The change became effective on

October 25, 1999, see id. at 46122, while the present case was on appeal in this

court. The Revised Medical Criteria      state that the deletion is to have “only

a prospective effect,”   id. at 46126, without affecting individuals previously

found disabled under the listing,   see id. The Commissioner argues that “[t]aken

together,” these statements mean that pending claims, even claims on judicial

review, should be “evaluated in accordance with the revised Listing regulations.”

Appellee’s Br. at 16. We disagree with this interpretation and position.




                                            -4-
       “Retroactivity is not favored in the law.”     Bowen v. Georgetown Univ.

Hosp. , 488 U.S. 204, 208 (1988).    1
                                         A rule changing the law is retroactively

applied only if Congress expressly authorized retroactive rulemaking and the

agency clearly intended the rule to have retroactive effect.     See id. The

Commissioner has not satisfied this standard. In particular, he has not shown

an intention to apply the 1999 deletion retroactively to a claimant who was

erroneously denied benefits under the earlier listing, even though a claimant

who was granted benefits may continue to receive them. Without a more

specific statement of intent, we will not conclude that the agency intended this

perverse result.   2




                              Issues Raised by Ms. Nash

       Ms. Nash argues that the ALJ failed to adhere to applicable legal standards

in determining that her impairment did not meet or equal the listing for obesity in

effect at the time of the hearing. The listing, § 9.09, required a claimant to meet

1
        A common definition of the term “retroactive” is that it extends a statute
or ruling “in scope or effect to matters that have occurred in the past.” Black’s
Law Dictionary 1318 (7th ed. 1999).
2
       The Commissioner suggests that we give deference to the position taken in
his appellate brief. Like the Supreme Court, we “decline[] to give deference to an
agency counsel’s interpretation of a statute where the agency itself has articulated
no position on the question, on the ground that ‘Congress has delegated to the
administrative official and not to appellate counsel the responsibility for
elaborating and enforcing statutory commands.’”    Bowen , 488 U.S. at 212
(quoting Investment Co. Inst. v. Camp , 401 U.S. 617, 628 (1971)).

                                              -5-
certain weight and height standards and also one of five additional requirements.   3



It is not disputed that the combination of Ms. Nash’s height and weight satisfies

the initial standard. The question is whether she meets any other specifications of

the listing. Ms. Nash argues that, properly evaluated, she showed the history of

pain and limitation required by § 9.09A; hypertension required by § 9.09B; and

chronic venous insufficiency required by § 9.09D.

      A review of the medical evidence of record shows that Ms. Nash did not

demonstrate any of these required conditions. The record contains “no findings

on medically acceptable imaging techniques of arthritis in the affected joint or

lumbosacral spine,” a requirement of § 9.09A. Similarly, a review of the many

blood pressure readings in the record shows that Ms. Nash’s diastolic blood


3
      The additional requirements are:

      A. History of pain and limitation of motion in any weight-bearing joint or
      spine (on physical examination) associated with x-ray evidence of arthritis
      in a weight-bearing joint, or spine;

      B. Hypertension with diastolic blood pressure persistently in excess of 100
      mm. Hg;

      C. History of congestive heart failure manifested by past evidence of
      vascular congestion such as hepatomegaly, peripheral or pulmonary edema;

      D. Chronic venous insufficiency with superficial varicosities in a lower
      extremity with pain on weight-bearing and persistent edema; or

      E. Respiratory disease with total forced vital capacity equal to or less than
      the value specified in Table III-A or III-B or III-C.

                                           -6-
pressure was not persistently in excess of the 100 reading, and, in fact, only one

reading reached that figure. Therefore, the record provides no indication that

Ms. Nash could have satisfied § 9.09B. Moreover, despite the consultative

examiner’s comment that she had “minimal varicose veins on left lower leg on

lateral knee,” Appellant’s App., Vol. 2 at 137, there is no evidence of chronic

venous insufficiency or persistent edema. The ALJ’s decision reflects adequate

consideration of the evidence relevant to § 9.09D.

      Contrary to Ms. Nash’s contentions, there was no need for the ALJ’s

decision to analyze her condition under either § 9.09A or B or provide a more

extensive discussion under § 9.09D. The ALJ is “required to discuss the evidence

and explain why he found that appellant was not disabled at step three.”   Clifton

v. Chater , 79 F.3d 1007, 1009 (10th Cir. 1996). He need not, however, discuss

every piece of evidence.   See id. at 1009-10. The ALJ performed a proper step

three analysis and his determination that Ms. Nash did not have a listed

impairment is supported by substantial evidence.

      Finally, Ms. Nash challenges the ALJ’s determination that she had the

RFC to perform the full range of sedentary work as conclusory and without

factual support. The ALJ’s RFC determination, however, flows from the medical

evidence in the record as well as from his assessment of Ms. Nash’s impairments.

The ALJ noted that a non-examining physician opined that Ms. Nash’s “ability to


                                           -7-
do work-related activities is unimpaired as to sitting, standing, moving about,

lifting, carrying, handling objects, hearing, speaking and traveling.” Appellant’s

App., Vol. 2 at 138. The ALJ also listed Ms. Nash’s daily activities, which

included part-time work in a restaurant, washing clothes, very light housework,

and driving to and from work, the store, and the laundromat.

      This is not a case in which the ALJ relied on “the absence of evidence”

to make his RFC determination.   See Thompson v. Sullivan , 987 F.2d 1482, 1491

(10th Cir. 1993). Ample evidence supports the assessment of Ms. Nash’s RFC.

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

of Oklahoma is AFFIRMED.



                                                    Entered for the Court



                                                    Michael R. Murphy
                                                    Circuit Judge




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