                                                                          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

    CHRISTOPHER A. COSPER,

                Plaintiff-Appellant,

    v.                                                    No. 99-5178
                                                   (D.C. No. 98-CV-525-Mc)
    KENNETH S. APFEL, Commissioner,                      (N.D. Okla.)
    Social Security Administration,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before TACHA , PORFILIO , and EBEL , 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      This order and judgment is not binding precedent, except under the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.
       Plaintiff applied for disability insurance and supplemental security income

benefits under the Social Security Act. The Commissioner denied benefits

initially and upon reconsideration. Thereafter, plaintiff requested a hearing

before an administrative law judge (ALJ), who found that plaintiff was not

disabled at step five of the sequential analysis.      See Williams v. Bowen , 844 F.2d

748, 750-52 (10th Cir. 1988) (detailing five-step analysis). The Appeals Council

denied review, thus making the ALJ’s decision the final decision of the

Commissioner.

       Plaintiff sought judicial review, and the district court affirmed the ALJ’s

decision based on this court’s decision in     James v. Chater , 96 F.3d 1341, 1344

(10th Cir. 1996). Plaintiff now appeals the district court’s affirmance of the

Commissioner’s denial of his application for benefits. In light of the Supreme

Court’s recent decision in    Sims v. Apfel , 120 S. Ct. 2080, 2083-85, 2086 (2000),

we do not base our affirmance on administrative waiver, but, instead, we affirm

the Commissioner’s denial of benefits on the merits.

       On appeal, we review the record to determine if it contains substantial

evidence to support the Commissioner’s decision and if the correct legal standards

were applied. See Kepler v. Chater , 68 F.3d 387, 388 (10th Cir. 1995).

“Substantial evidence is adequate relevant evidence that a reasonable mind might

accept to support a conclusion.”      Id. at 388-89.


                                              -2-
      Plaintiff argues that the record does not contain substantial evidence to

support the ALJ’s finding that plaintiff retained the residual functional capacity to

perform the unskilled jobs listed by the vocational expert. He maintains that this

is so because the record does not contain substantial evidence to support the

ALJ’s finding that plaintiff had a limited education, and all the jobs listed by the

vocational education are qualified by the Dictionary of Occupational Titles as

requiring a limited, as opposed to marginal, education.

      The record shows that plaintiff attended school through the ninth grade.

The agency’s regulations state that an individual with a seventh to eleventh

grade education is generally presumed to have a limited education. 20 C.F.R.

§ 404.1564(b)(3). There is nothing in the record that indicates this presumption

should not apply. In fact, the record shows that plaintiff filled out several

applications in connection with his claim for benefits in a manner consistent with

having a limited education. In addition, the record contains substantial evidence

of education obtained through past work experience.     See id. § 404.1564(a)

(stating that past work experience, as well as daily activities and hobbies, may

show that an applicant has intellectual abilities despite lack of formal schooling).

Plaintiff stated that, in his past work, he was required to “writ[e], complete

reports, or perform similar duties,” as well as perform supervisory duties.

Appellant’s App., Vol. II at 70.


                                          -3-
      In sum, the record contains substantial evidence in support of the ALJ’s

finding that plaintiff had a limited education and retained the residual functional

capacity to perform the sedentary, unskilled jobs listed by the vocational expert.

AFFIRMED.



                                                    Entered for the Court



                                                    David M. Ebel
                                                    Circuit Judge




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