                                                                        FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                    April 13, 2011
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                     Clerk of Court
                            FOR THE TENTH CIRCUIT


    BETTY L. GREEN,

                Plaintiff-Appellant,

    v.                                                    No. 10-6188
                                                  (D.C. No. 5:09-CV-01013-M)
    MICHAEL J. ASTRUE,                                   (W.D. Okla.)
    Commissioner, Social Security
    Administration,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before LUCERO, ANDERSON, and BALDOCK, Circuit Judges.



         Betty L. Green appeals pro se from a district court order affirming the

Commissioner’s denial of her application for Social Security Disability Insurance

(SSDI) benefits. Exercising jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C.

§ 405(g), we affirm.



*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
      Ms. Green filed an application for SSDI benefits on July 28, 1999, claiming

a disability-onset date of July 11, 1990. A short time later she also filed an

application for Supplemental Security Income (SSI) payments, which was given a

protective filing date of July 28, 1999. When the record indicated that her date

last insured for purposes of her SSDI application was September 30, 1983,

Ms. Green moved to dismiss that application. On March 11, 2002, an

Administrative Law Judge (ALJ) issued a favorable decision on her SSI

application, finding that she was disabled as of July 28, 1999, as a result of

musculoskeletal disorders of the neck and upper extremities. Ms. Green

subsequently provided the agency with additional information regarding her

previous earnings, based on which her date last insured was adjusted to March 31,

1991. She filed a new application for SSDI benefits on February 7, 2003. After

her new application was denied initially and on reconsideration, Ms. Green

requested a hearing before an ALJ, who issued an unfavorable ruling. Ms. Green

appealed and the Appeals Council remanded to the ALJ for further consideration.

Following a second hearing, the ALJ issued a decision finding that Ms. Green was

not under a disability on or before March 31, 1991, her date last insured. The

Appeals Council declined review, making the ALJ’s decision denying SSDI

benefits the Commissioner’s final decision.

      Ms. Green filed an action in the district court, seeking review of the

Commissioner’s decision. The Commissioner initially moved to dismiss her

                                          -2-
complaint for failure to effect proper service. But after being granted an

extension of time, Ms. Green effected service on the Commissioner and the

district court denied the motion to dismiss. A magistrate judge 1 then ordered

Ms. Green to file her opening brief by April 5, 2010. She filed a pleading titled

Motion for Declaratory Judgment and Injunctive Relief on March 18, 2010.

When she had not filed an opening brief by the April 5 deadline, the magistrate

judge held a telephone conference with the parties on April 29 and explained to

Ms. Green that she could ask for additional time to file her brief. She declined to

seek additional time and indicated instead that she wanted the court to consider

her Motion for Declaratory Judgment and Injunctive Relief to be her opening

brief.

         After deeming that motion as Ms. Green’s opening brief, the magistrate

judge issued a report and recommendation (R&R) to affirm the Commissioner’s

denial of SSDI benefits. Noting that Ms. Green failed to raise or develop any

claim of error in the ALJ’s decision, the magistrate judge expressly addressed and

rejected the only contention she made in her opening brief. 2 Ms. Green filed

1
      The district court had referred Ms. Green’s case to a magistrate judge for
decisions on preliminary and non-dispositive matters.
2
      The magistrate judge construed Ms. Green’s Motion for Declaratory
Judgment and Injunctive Relief as arguing that, by filing a motion to dismiss her
complaint, the Commissioner had impliedly admitted the allegations in her
complaint. The magistrate judge explained in the R&R that the Commissioner’s
motion addressed whether he had been properly served and did not concede any
                                                                      (continued...)

                                         -3-
objections to the magistrate judge’s report and recommendation. 3 The district

court reviewed the ALJ’s decision de novo; overruled Ms. Green’s objections and

adopted the R&R in its entirety; and affirmed the Commissioner’s decision. The

court entered a separate judgment in favor of the Commissioner on May 28, 2010.

Ms. Green filed timely motions seeking reversal of the court’s judgment. She

also filed a notice of appeal, which this court held to be premature. We abated

the appeal pending the district court’s determination of her post-judgment

motions, which the district court denied on August 23, 2010. Ms. Green then

filed another notice of appeal referencing only the district court’s May 28, 2010

judgment.

      “[W]e review the ALJ’s decision only to determine whether the correct

legal standards were applied and whether the factual findings are supported by

substantial evidence in the record.” Madrid v. Barnhart, 447 F.3d 788, 790

(10th Cir. 2006). “Substantial evidence is such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” Cowan v. Astrue,

552 F.3d 1182, 1185 (10th Cir. 2008) (quotation omitted). We liberally construe

a pro se party’s appellate briefs. de Silva v. Pitts, 481 F.3d 1279, 1283 n.4

2
 (...continued)
of Ms. Green’s allegations.
3
      In her objections, Ms. Green reiterated the argument she made in her
opening brief. She also asserted that she was unprepared for the April 29
telephonic conference and she objected to affirmance of the ALJ’s decision
without consideration of the Commissioner’s brief and her reply brief.

                                        -4-
(10th Cir. 2007). But we do not “take on the responsibility of serving as the

litigant’s attorney in constructing arguments and searching the record.” Garrett

v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).

      “The scope of our review [in this case] is limited to the issues [Ms. Green]

properly preserve[d] in the district court and adequately presents on appeal.”

Berna v. Chater, 101 F.3d 631, 632 (10th Cir. 1996). In her opening appeal brief,

she first asserts that the magistrate judge’s orders and reports and

recommendations, as adopted by the district court, deprived her of due process.

She appears to focus on the reports and recommendations related to the

Commissioner’s motion to dismiss the complaint, but she does not otherwise

elaborate on this contention. We will liberally construe her argument as repeating

the only claim of error that she made in her opening brief in the district court:

that the Commissioner conceded the allegations in her complaint by filing his

motion to dismiss for failure to effect service. This argument is frivolous. While

a court must accept as true the allegations of a complaint when deciding a motion

to dismiss for lack of jurisdiction, see Fed. Deposit Ins. Corp. v. Oaklawn Apts.,

959 F.2d 170, 174 (10th Cir. 1992), a defendant does not, by challenging the

sufficiency of process, forfeit his ability to contest those allegations on the merits.

      In her second appeal issue, Ms. Green alleges a conspiracy between the

district court, the Commissioner, and other federal agencies to deprive her of both

SSDI benefits and workers’ compensation payments, in violation of her due

                                          -5-
process and equal protection rights. We need not attempt to decipher the meaning

of this claim because Ms. Green did not preserve it for consideration on appeal by

raising it in the district court. See Berna, 101 F.3d at 632-33.

      As the magistrate judge noted in the R&R, Ms. Green did not raise any

claim of error in the ALJ’s decision in her district-court opening brief. “Absent

compelling reasons, we do not consider arguments that were not presented to the

district court.” Crow v. Shalala, 40 F.3d 323, 324 (10th Cir. 1994). Moreover, in

this appeal she again fails to make any discernable argument of error regarding

the ALJ’s decision. We will not “assume the role of advocate” for Ms. Green and

construct appeal arguments for her. Garrett, 425 F.3d at 840. Thus, Ms. Green

has waived all arguments of error in the ALJ’s decision by her failure to preserve

any such contention in the district court or present any such claim in this court.

See Berna, 101 F.3d at 632-33.

      The judgment of the district court is AFFIRMED. Ms. Green’s motion to

proceed in forma pauperis on appeal is GRANTED.


                                                     Entered for the Court



                                                     Bobby R. Baldock
                                                     Circuit Judge




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