                    UNITED STATES COURT OF APPEALS

                           FOR THE TENTH CIRCUIT



 LOUIS J. ARNAU, II,

              Plaintiff-Appellant,

 v.                                                      No. 99-6357

 KENNETH S. APFEL, Commissioner,
 Social Security Administration,

              Defendant-Appellee.


                                      ORDER
                               Filed August 11, 2000


Before TACHA , EBEL , and BRISCOE , Circuit Judges.



      This matter is before the court on petition of appellant Louis J. Arnau for

rehearing of this court’s order and judgment filed June 20, 2000. Appellant

correctly contends the order and judgment erroneously states that he did not file

his district court brief on appeal. Accordingly, the hearing panel has revised the

order and judgment to correct this inaccuracy.

      The members of the hearing panel have considered appellant’s arguments

on the merits of this court’s disposition of his appeal, and conclude that the
original disposition was correct because appellant did assert a legal issue on

appeal not presented to the district court.

       Appellant argued before the district court that the ALJ erred by not

including his sleep apnea in her evaluation of whether he met the requirements of

Listing § 12.02 with respect to his attention deficit/hyperactivity disorder

(ADHD), and asserted that his ADHD would have been considered severe enough

to meet this ADHD listing if the ALJ had factored in the cognitive problems

caused by his sleep apnea. He did not argue before the district court that ALJ

failed to consider whether the combined effects of the two asserted impairments,

ADHD and sleep apnea, create a medically severe impairment in combination.

Nor did he cite to the regulation or decisions which obligate an ALJ to consider

impairments in combination.      See Hargis v. Sullivan , 945 F.2d 1482, 1491 (10th

Cir. 1991) (holding that an ALJ “must consider the combined effects of

impairments that may not be severe individually, but which in combination may

constitute a severe medical disability”);   see also 20 C.F.R. § 404.1523.

       On appeal, appellant added to the argument raised below by also claiming

that the ALJ failed to consider how his asserted lack of “cognitive vigilance”

caused by his sleep apnea “worked in combination with [his] ADHD to make both

conditions more disabling together than they would ordinarily be separately.”

Appellant’s Br. at 22. This “in combination with” argument is new and legally


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distinct from his argument before the district court because resolving the legal

issue of whether appellant met the ADHD listing, as argued below, does not

resolve the separate issue of whether his impairments, while not severe

individually, were disabling when considered in combination, as argued on

appeal.

      Therefore, the petition for rehearing is GRANTED in part to modify

footnote one of the order and judgment, and is DENIED in all other respects. A

copy of the corrected order and judgment is attached.

                                               Entered for the Court
                                               PATRICK FISHER, Clerk of Court

                                               By:
                                                     Keith Nelson
                                                     Deputy Clerk




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                                                                            F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                             AUG 11 2000
                            FOR THE TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                 Clerk

    LOUIS J. ARNAU, II,

                Plaintiff-Appellant,

    v.                                                     No. 99-6357
                                                     (D.C. No. 98-CV-412-L)
    KENNETH S. APFEL, Commissioner,                        (W.D. Okla.)
    Social Security Administration,

                Defendant-Appellee.


                             ORDER AND JUDGMENT            *




Before TACHA , EBEL , and BRISCOE , 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 Louis J. Arnau, II, appeals the district court’s judgment affirming

the Commissioner’s decision to deny his application for disability benefits.


*
      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.
He alleges disability since February 28, 1994, due to sleep apnea, attention

deficit/hyperactivity disorder (ADHD) and heart palpitations. Following

a hearing before an administrative law judge (ALJ), the ALJ determined that

although plaintiff could not perform his past work, he retained the residual

functional capacity (RFC) to perform a significant number of alternate jobs

available in the national economy, and denied benefits at step five of the five-step

evaluation process.    See Williams v. Bowen , 844 F.2d 748, 750-52 (10th Cir.

1988) (discussing five steps). The Appeals Council denied review, making the

ALJ’s decision the final decision of the Commissioner. Based upon the findings

and recommendations of the magistrate judge, the district court affirmed.

       On appeal, plaintiff contends the ALJ failed (1) to evaluate the effects

of his sleep apnea under the criteria of Listing 12.02,   see 20 C.F.R. Pt. 404,

Subpt. P, App. 1, § 12.02, which he asserts is required by Listing 3.00(H),    see id .

at § 3.00(H) 1; and (2) to accord proper weight to the opinion of his treating

physician, who opined that plaintiff was disabled because he could not be

supervised closely enough to make him a profitable employee.


1
       Plaintiff also contends the ALJ erred in failing to properly consider sleep
apnea in combination with his adult ADHD when determining that plaintiff did
not meet the requirements of a listed impairment. The Commissioner asserts this
issue was not raised before the district court. We agree.   See Berna v. Chater ,
101 F.3d 631, 632 (10th Cir. 1996) (appellate review “is limited to the issues the
claimant properly preserves in the district court and adequately presents on
appeal”).

                                             -2-
       We review the Commissioner’s decision on the whole record to determine

only whether the factual findings are supported by substantial evidence and the

correct legal standards were applied.   See Qualls v. Apfel , 206 F.3d 1368, 1371

(10th Cir. 2000). We may not reweigh the evidence or substitute our judgment

for that of the Commissioner.    See id . We have carefully reviewed the record on

appeal, as well as the briefs submitted by the parties. Applying the standards set

out above, we AFFIRM the denial of benefits for substantially the reasons stated

in the magistrate judge’s findings and recommendations dated November 18,

1998, and the district court’s order dated July 20, 1999.



                                                     Entered for the Court



                                                     Mary Beck Briscoe
                                                     Circuit Judge




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