                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          OCT 22 2004
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    NANCY A. VOGEL,

                Plaintiff-Appellant,

    v.                                                   No. 04-7030
                                                   (D.C. No. 03-CV-157-W)
    JO ANNE B. BARNHART,                                 (E.D. Okla.)
    Commissioner, Social Security
    Administration,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before LUCERO , McKAY , and PORFILIO , 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.




*
      This order and judgment is not binding precedent, except under the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.
      In 2001, Nancy A. Vogel applied for disability benefits, alleging that she

was unable to work as a result of pins in her right ankle, a rod in her right knee,

and a broken back. The Commissioner of the Social Security Administration

found that Vogel suffers from impairments in her leg and her back but that she is

not disabled because she retains sufficient residual functional capacity to perform

certain jobs within the national economy. The district court 1 upheld this decision.

Vogel appeals, contending that the Commissioner’s decision was erroneous

because (1) the administrative law judge (ALJ) failed to acknowledge her

shoulder impairment and failed to include this impairment in his hypothetical

question to the vocational expert and (2) the ALJ considered improper factors in

evaluating her credibility.

      “We review the district court’s decision de novo,” see Briggs ex rel. Briggs

v. Massanari, 248 F.3d 1235, 1237 (10th Cir. 2001), and examine the underlying

denial of benefits to determine “whether the factual findings are supported by

substantial evidence in the record as a whole and whether the correct legal

standards were applied,” Howard v. Barnhart, 379 F.3d 945, 947 (10th Cir. 2004).

Having reviewed the briefs, the record, and the applicable law pursuant to these

standards, we conclude that the Commissioner did not err and that the district



1
      The parties consented to proceed before a magistrate judge.      See 28 U.S.C.
§ 636(c).

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court properly upheld the denial of benefits. We therefore AFFIRM the

challenged decision for the reasons stated by the district court in its Order of

January 20, 2004.



                                                     Entered for the Court



                                                     Monroe G. McKay
                                                     Circuit Judge




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