                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                             FOR THE TENTH CIRCUIT                             May 2, 2016
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
THOMAS J. GALLEGOS,

      Plaintiff - Appellant,

v.                                                          No. 15-3216
                                                  (D.C. No. 6:14-CV-01147-DDC)
CAROLYN W. COLVIN, Acting                                    (D. Kan.)
Commissioner of Social Security,

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BRISCOE, LUCERO, and PHILLIPS, Circuit Judges.
                   _________________________________

      Thomas J. Gallegos appeals from an order of the district court affirming the

Commissioner’s decision denying his application for disability insurance benefits.

Because the agency applied the correct legal standards and its factual findings are

supported by substantial evidence, we affirm.




      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor 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
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 This order and judgment is not binding precedent,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.
                                     Background

      Upon the agency’s initial denial of his application, Mr. Gallegos requested a

hearing before an administrative law judge (ALJ). Mr. Gallegos alleged disability at

age 32, following fourteen years in the Army. During his first tour of duty in Iraq in

2003, which lasted six months, he injured his back and suffered a traumatic brain

injury as a result of a rocket launcher explosion. Although Mr. Gallegos did not

suffer any physical injuries during his second tour of duty, which was approximately

sixteen months, he said that he experienced stress from “the overall effect of being in

a combat zone and just remembering from what happened from the previous time.”

Aplt. App., Vol. 1 at 52. In February 2011, approximately two years after he

returned from his second tour of duty, he left the military. Mr. Gallegos filed for

benefits alleging the onset of disability in January 2011.1 At the time of his

administrative hearing, he was in his third semester at Butler Community College,

where he was taking four courses, three days a week.

      According to Mr. Gallegos, he suffers greatly from back pain, which radiates

down both legs and renders his feet numb. He also has degenerative joint disease in

his right knee. He takes Lortab for pain.

      His mental health issues arose shortly after he returned from his second tour of

duty in Iraq. Although Mr. Gallegos received a promotion, he did not like his office

job and missed being the member of a rocket launcher team. In his mind, he “was


      1
       Mr. Gallegos initially claimed that he became disabled in March 2010, but at
the administrative hearing he amended his alleged onset date to January 2011.
                                            2
just pretty much downgraded to nothing.” Id. at 62. As a consequence, he developed

anger issues, which made it difficult for him to be around other people and often

caused him to go to a “getaway room,” to avoid “going off on something or

somebody.” Id. at 63. He told the ALJ that he had received individual therapy in the

past, and was currently taking Cymbalta, attending weekly group therapy sessions,

and meeting once a month with a psychologist.

      Following the hearing, the ALJ issued a decision denying benefits. She

determined that Mr. Gallegos has the following severe impairments: “degenerative

disc disease, degenerative joint disease of the right knee, obesity, organic brain

syndrome, and post-traumatic stress disorder,” and the non-severe impairments of

“obstructive sleep apnea,” id. at 29, and “Dandy-Walker syndrome, a congenital

malformation of the brain, involving enlargement of the fourth ventricle,” id. at 30.

At step three, she concluded that these impairments or combinations do not “meet[]

or medically equal[] the severity of one of the listed impairments.” Id. After

considering the entire record, the ALJ found that Mr. Gallegos retains the residual

functional capacity (RFC) to perform sedentary work, with several limitations.

      Based on the testimony of a vocational expert, the ALJ found that although

Mr. Gallegos could not perform any of his past relevant work, there were several jobs

in significant numbers in the national economy that he could perform and he was

therefore not disabled. The Appeals Council denied review. The district court

affirmed the Commissioner’s decision and Mr. Gallegos now appeals.



                                           3
                                   Standard of Review

       “We review the district court’s decision de novo and independently determine

whether the ALJ’s decision is free from legal error and supported by substantial

evidence.” Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005). “At the

third step, we [will] consider the medical severity of your impairment(s). If you have

an impairment(s) that meets or equals one of our listings in appendix I of this subpart

and meets the duration requirement, we will find that you are disabled.” 20 C.F.R.

§ 404.1520(a)(4)(iii). See also Fischer-Ross, 731 F.3d at 731 (“Step three asks

whether any medically severe impairment, alone or in combination with other

impairments, is equivalent to any of a number of listed impairments so severe as to

preclude substantial gainful employment.” (internal quotation marks omitted)).

       Mr. Gallegos argues that the ALJ should have found him per se disabled at

step three of the five-step sequential evaluation process because: (1) he met the

criteria of Listing 1.04 (disorders of the spine); (2) he met the criteria of Listing

12.06 (anxiety related disorders); and (3) his impairments were medically equivalent

to Listing 12.06.2

                                       Listing 1.04

       At step three, Mr. Gallegos was required to demonstrate that his impairments

met the criteria listed in 20 C.F.R. Part 404, Subpt. P, App. I, § 104 (disorders of the

       2
        Mr. Gallegos states that his first issue on appeal is whether the ALJ’s
decision is supported by substantial evidence. He puts a finer point on the issue in
his summary of arguments and the arguments themselves in framing the issue as
whether the ALJ’s findings that his impairments did not meet or equal a listing are
supported by substantial evidence. See Aplt. Opening Br. at 3-4, 6.
                                             4
spine). We have examined Mr. Gallegos’ district court brief and find no argument

concerning whether he met or equaled Listing 1.04. Therefore, the issue is waived.

See Berna v. Chater, 101 F.3d 631, 632-33 (10th Cir. 1996) (holding that a social

security claimant waives any issues not raised in district court).

                                      Listing 12.06

      To meet Listing 12.06 for anxiety related disorders, the claimant must

establish that he meets the criteria of subsections A and B, or A and C. 20 C.F.R.

404, Subpt. P, App. I, § 12.06. Mr. Gallegos asserts that he met the criteria of A.5

because his anxiety involves recurrent and intrusive recollections of his combat

experiences in Iraq, which in turn cause marked distress. See id. at A.5. Assuming

without deciding that Mr. Gallegos met subsection A.5, the ALJ’s decision that he

did not meet the criteria of either subsections B or C is supported by substantial

evidence.

      To meet the paragraph B criteria, the applicant must demonstrate that his

anxiety related disorder “[r]esult[ed] in at least two of the following: 1. Marked

restriction of activities of daily living; or 2. Marked difficulties in maintaining social

functioning; or 3. Marked difficulties in maintaining concentration, persistence, or

pace; or 4. Repeated episodes of decompensation, each of extended duration.” Id. at

B.1-4. To meet the paragraph C criteria, the applicant must demonstrate a “complete

inability to function independently outside the area of [his own] home.” Id. at C.

      With regard to paragraph B, the ALJ concluded that Mr. Gallegos had only

mild limitation in activities of daily living, moderate limitations in social functioning

                                            5
and concentration, persistence or pace, and no episodes of decompensation of

extended duration, which are defined as “three episodes within 1 year, or an average

of once every 4 months, each lasting for at least 2 weeks.” Id. § 12.00C.4. And the

ALJ found that Mr. Gallegos did not meet the C criteria because there was no

evidence of a complete inability to function outside his home.

       According to Mr. Gallegos, the ALJ should have given controlling weight to

an opinion from his treating psychologist, Robert A. Johnson, which he argues

established that he met the paragraph B criteria. We need not address whether the

ALJ should have given controlling weight to Dr. Johnson’s opinion, because it does

not establish the presence of at least two of the B criteria.3

       Dr. Johnson’s opinion found only moderate limitations in activities of daily

living and maintaining social functioning. Although he found that Mr. Gallegos

“[o]ften” experienced deficiencies in concentration, persistence or pace that delayed

his timely completion of tasks, he did not find any marked limitations in this

category. See Aplt. App., Vol. VII at 1909. Dr. Johnson did check the box

“Repeated” concerning episodes of deterioration or decompensation. That term,

however, was defined in the form as “Episodes of Deterioration or Decompensation

in Work or Work-like Settings Which Cause the Individual to Withdraw from that

Situation or to Exacerbation of Signs and Symptoms (which may include


       3
        The ALJ gave Dr. Johnson’s medical source opinion “little weight,” because
his “assessment is not supported by [Mr. Gallegos’] treatment records, which show
only mild cognitive deficits, and overall average intellectual functioning, and which
document no instances of sustained decompensation.” Aplt. App., Vol. I at 36.
                                             6
Deterioration of Adaptive Behaviors).” Id. As explained above, the term “repeated

episodes of decompensation, each of extended duration” has specific definition in

determining whether a claimant meets the requirements of Listing 12.06B. In

addition to the fact that Dr. Johnson’s opinion does not meet the criteria,

Mr. Gallegos has failed to identify any other evidence that meets the definition.

       In sum, even if Dr. Johnson’s opinion regarding concentration, persistence or

pace could be interpreted as a “marked” limitation, his report fails to establish the

presence of any other B criteria. And because Mr. Gallegos does not argue that he

met the paragraph C criteria, we do not address the issue.

       Mr. Gallegos’ further apparent argument is that a single GAF4 score was

sufficiently low to meet the requirements of Listing 12.06. He cites to a June 2001

evaluation, when he received a score of 50, which is indicative of “serious

impairment in social, occupational, or school functioning.” Am. Psychiatric Ass’n,

Diagnostic and Statistical Manual of Mental Disorders 34 (Text Revision 4th ed.

2000). His five other GAF scores, however, ranged from 60 to 68, which indicated

only moderate to mild difficulties. See id. He cites no authority that single GAF

score is sufficient to meet the criteria of a listing, but more to the point, this one-time

score is at odds with the medical evidence, including the opinion of his own




       4
         The GAF is a subjective determination using a scale of 1 to 100 of “the
clinician’s judgment of the individual’s overall level of functioning.” Am.
Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 32 (Text
Revision 4th ed. 2000).
                                             7
psychologist, who found no marked limitations in any of the paragraph B criteria.

See Aplt. App., Vol. VII at 1909.

      Last, Mr. Gallegos argues that the ALJ should have afforded more weight to

the statements by his mother-in-law, Maria Girone, and had the ALJ done so, the

statements would have established that he met Listing 12.06. We disagree.

      As a preliminary matter, the regulations provide that whether a claimant meets

a listing must be established by medical evidence. See 20 C.F.R. 404, Subpt. P, App.

I, § 12.00B. Ms. Girone is not a medical source. And even if Ms. Girone’s

observations were entitled to more than the “little weight” attributed to them by the

ALJ, Aplt. App., Vol. I at 36, they did nothing to establish that Mr. Gallegos met the

paragraph B criteria. For the most part, Ms. Girone wrote about her son-in-law’s

activities of daily living, which she observed sporadically. In this regard, she stated

that Mr. Gallegos could perform some light household chores, do laundry, prepare

light meals, drive, go shopping, watch television, read sports stories, spend time with

other people, and get along with authority figures. She did, however, describe some

limitations regarding his ability to dress and bathe himself, perform yard work, and

play sports. According to Ms. Girone, it was difficult for him to pay bills and he was

anxious and withdrawn in social situations.

      The regulations provide that “[w]here we use ‘marked’ as a standard for

measuring the degree of limitation, it means more than moderate but less than

extreme.” Id. § 12.00C. Although a marked limitation may arise “even when only

one [activity or function] is impaired, . . . the degree of limitation [must be] such as

                                           8
to interfere seriously with [the claimant’s] ability to function independently,

appropriately, effectively, and on a sustained basis.” Id. Ms. Girone’s comments, at

best, support the medical evidence that Mr. Gallegos had only mild or moderate

symptoms in regard to the paragraph B criteria.

                                 Medical Equivalency

      Mr. Gallegos attacks the ALJ for “fail[ing] to make a thorough [medical]

equivalency determination.” Aplt. Opening Br. at 17. In particular, he argues that if

the ALJ had done so, she would have been compelled to conclude that Mr. Gallegos’

disorder of the spine was medically equivalent to Listing 1.04, because there were

other findings related to this listing that were at least of equal medical significance to

the required criteria. See 20 C.F.R. § 404.1526(b)(1). But as we explained

previously, Mr. Gallegos failed to raise in the district court whether he met or

equaled Listing 1.04. Thus, the issue is waived. See Berna, 101 F.3d at 632-33.

      Mr. Gallegos’ argument that his impairments are medically equal to Listing

12.06 is without merit. Although it is the Commissioner’s decision that is under

review, we find the district court’s comments about Mr. Gallegos’ argument on this

issue informative:

              [Mr. Gallegos’] brief does not identify which listing-level condition
      he believes his impairments equaled. Nor is it possible for the Court to
      identify such listings based on the arguments or facts [Mr. Gallegos] asserts
      to support his appeal. [His] brief simply lists his many medical conditions
      and asserts that, surely—given such a long list of conditions—the Court can
      find a reversible error somewhere in the ALJ’s medical equivalency
      analysis. But it is not the Court’s job to scour the record to develop [Mr.
      Gallegos’] argument for him.


                                            9
Aplt. App., Vol. VII at 2032. Nonetheless, the court determined that Mr. Gallegos

had mustered enough of an argument (barely) for it to consider whether his

impairments were medically equal to Listing 12.06.

      On appeal, Mr. Gallegos has provided the identical laundry-list of

impairments—albeit with record citations—that he listed in the district court. But his

argument still suffers from the same deficiency—he fails to explain how any of the

impairments on the list, such as disc disease, obesity, and sleep apnea have anything

to do with Listing 12.06. And as to those impairments that are arguably relevant,

such as depression or post-traumatic stress disorder, Mr. Gallegos does not explain

how they are of equal medical significance to the required criteria. The failure to

adequately present the issue on appeal forecloses review. See Berna, 101 F.3d at

632. See also Murrell v. Shalala, 43 F.3d 1388, 1389 n.2 (10th Cir. 1994)

(recognizing that undeveloped arguments are insufficient to invoke appellate review).

      In any event, the ALJ’s equivalency analysis was more than adequate. See

Aplt. App., Vol. I at 30-32. The fact is that although Mr. Gallegos suffers from

several impairments, there is no evidence that any of these impairments, alone or in

combination, medically equaled any of the paragraph B criteria of Listing 12.06.

      The judgment of the district court is affirmed.

                                               Entered for the Court



                                               Mary Beck Briscoe
                                               Circuit Judge


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