                                                                           F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            DEC 28 2000
                            FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                 Clerk

    KATHLEEN J. VILLAGRANA,

                Plaintiff-Appellant,

    v.                                                    No. 00-4027
                                                      (D.C. No. 97-CV-223)
    KENNETH S. APFEL, Commissioner,                         (D. Utah)
    Social Security Administration,

                Defendant-Appellee.


                             ORDER AND JUDGMENT            *




Before BRORBY , KELLY , and LUCERO , Circuit Judges.



         Claimant Kathleen J. Villagrana appeals the district court ’s affirmance of

the decision of the Commissioner of Social Security denying her application for

supplemental security income based on claims of disability. 1 Her application was

denied administratively and upon reconsideration. Following a hearing, the

*
      This order and judgment is not binding precedent, except under the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.
1
      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.
administrative law judge (ALJ) determined that claimant was not disabled.

The Appeals Council denied review, making the ALJ’s decision to deny benefits

a final decision of the agency for purposes of further appeal.    See Williams v.

Bowen , 844 F.2d 748, 749 (10th Cir. 1988). Our jurisdiction over this appeal

arises under 28 U.S.C. § 1291.

       Agency regulations establish a five-step sequential analysis to evaluate

disability claims.   See Williams , 844 F.2d at 750-52 (describing five steps in

detail). Here, the ALJ reached step four of the analysis, determining that, despite

severe impairments and both mental and physical limitations, claimant could still

perform her past relevant work as a maid. We review the agency’s decision under

a deferential standard, determining only whether the decision is supported by

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

standards were applied.     Castellano v. Sec’y of Health & Human Servs.   , 26 F.3d

1027, 1028 (10th Cir. 1994). Further, we will not review issues or arguments that

were not preserved in the    district court . See Crow v. Shalala , 40 F.3d 323, 324

(10th Cir. 1994).

       On appeal, claimant argues three issues: 1) that she met a listing under

step three of the applicable analysis due to her mental impairments; 2) that the

ALJ improperly evaluated the credibility of claimant’s testimony at the hearing;




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and 3) that the ALJ’s hypothetical question posed to a vocational expert (VE) was error.

       The first issue claimant argues here was not presented to the     district court .

Therefore, we decline to consider it.    See id. Similarly, we decline to address

claimant’s arguments about the ALJ’s credibility assessment. Claimant did argue

before the district court that the ALJ improperly evaluated her credibility, but

only on the grounds that the ALJ “fail[ed] to articulate any basis for discounting

her testimony.” Appellee’s Suppl. App. at 3.      2
                                                      The arguments put forward on

appeal in support of claimant’s second issue were not presented to the        district

court. See Bancamerica Commercial Corp. v. Mosher Steel of Kan., Inc.            ,

100 F.3d 792, 798-99 (10th Cir.) (stating appellate court will not consider new

theory that falls under same category as one argued before the trial court),

op. amended on other grounds      , 103 F.3d 80 (10th Cir. 1996) . Finally, we decline


2
        We note that claimant’s counsel has failed to follow this court’s rules and
has misrepresented the record in this case. This court requires that, “[f]or each
issue raised on appeal,” litigants are to “cite the precise reference in the record
where the issue was raised and ruled on.” 10th Cir. R. 28.2(C)(2). Counsel failed
to provide this court with a copy of claimant’s brief before the        district court and
therefore could not cite to a record reference demonstrating that the issues
presented on appeal were preserved below. Appellee provided a copy of
claimant’s brief in its supplemental appendix, allowing us to review the brief to
determine whether the issues were raised before the        district court . Despite
counsel’s statement in his opening brief that the issues argued on appeal were
raised in claimant’s memorandum brief before the         district court , see Appellant’s
Br. at 5, our review of that brief demonstrates otherwise, as noted above. Counsel
is admonished to follow this court’s rules in the future and absent compelling
reasons, avoid presenting issues not argued below.        See Smith v. Rogers
Galvanizing Co. , 128 F.3d 1380, 1386 (10th Cir. 1997).

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to consider most of claimant’s third argument because it consists mainly of vague

and conclusory statements.   See Murrell v. Shalala , 43 F.3d 1388, 1389 n.2

(10th Cir. 1994) (stating perfunctory complaints which fail to frame and develop

an issue are insufficient to invoke appellate review).

      As part of the third issue, claimant argues that the ALJ’s hypothetical to the

VE was based on conclusions that are not supported by the record. She contends

that when her legal representative introduced other factors into the hypothetical,

the VE opined that claimant could not perform her past relevant work or, indeed,

any work in the national economy. This argument misstates the record and lacks

merit. The transcript of the hearing before the ALJ demonstrates that claimant’s

representative queried the VE, adding several other factors to the ALJ’s

hypothetical and eliciting the VE’s opinion whether claimant could still work if

those factors applied. As to all but one of these added factors the VE maintained

his opinion that claimant could perform her past relevant work as a maid. Only

when the representative added a requirement that claimant be able to lie down for

two to three hours during each work day did the VE opine that claimant could not

work. The ALJ properly rejected this factor based on his credibility assessment

and the medical record.




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The judgment of the District Court is AFFIRMED.

                                         Entered for the Court



                                         Carlos F. Lucero
                                         Circuit Judge




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