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

                             FOR THE TENTH CIRCUIT                          January 6, 2016
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
JEREMIAH COLLINS,

      Plaintiff - Appellant,

v.                                                         No. 15-6073
                                                    (D.C. No. 5:13-CV-00952-L)
CAROLYN W. COLVIN, Acting                                  (W.D. Okla.)
Commissioner of the Social Security
Administration,

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BACHARACH, O’BRIEN, and PHILLIPS, Circuit Judges.
                 _________________________________

      Jeremiah Collins appeals from the district court’s order affirming the

Commissioner’s denial of his applications for a period of disability and disability

insurance benefits and supplemental security income. 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 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 This order and judgment is not binding precedent,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

      Mr. Collins was thirty-two years old on his alleged disability-onset date of

January 1, 2009. He is a high-school graduate who also has attended 1.5 semesters of

college. Although he has had numerous short-term jobs, he has never worked at

substantial-gainful-activity levels. He sought benefits primarily because of mental

impairments, as well as back and knee pain and a seizure disorder.

      The administrative law judge (ALJ) concluded that Mr. Collins suffers the

severe impairments of “history of seizures; history of drug dependency in early

partial remission; anxiety; schizophrenia, paranoid type; Major Depressive Disorder;

[and] schizoaffective disorder.” Aplt. App., Vol. I at 23. The ALJ further concluded

that Mr. Collins had no impairment or combination of impairments that met or

equaled a listing, and that he retained the residual functional capacity (RFC) “to

perform light work . . . except he should avoid moderate exposure to hazards due to

history of seizures. [He] can understand, remember and carry out simple instructions

with routine supervision, but should not work with the general public.” Id. at 30.

Mr. Collins had no past relevant work, but applying the Medical-Vocational

Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2 (commonly known as “the

grids”), the ALJ concluded that in light of his age, education, and work experience,

there were jobs in significant numbers in the national economy that he could perform.

Accordingly, the ALJ held that Mr. Collins was not disabled.

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

Commissioner’s final decision. A magistrate judge issued a report and

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recommendation (R&R) recommending that the district court affirm the decision.

After Mr. Collins objected, the district court accepted the R&R and affirmed the

denial of benefits.

                                        Discussion

I.       Firm Waiver Rule

         “The scope of our review . . . is limited to the issues the claimant properly

preserves in the district court and adequately presents on appeal.” Berna v. Chater,

101 F.3d 631, 632 (10th Cir. 1996). Mr. Collins has waived all issues that he did not

raise in his objections to the R&R. Martinez v. Barnhart, 444 F.3d 1201, 1208

(10th Cir. 2006). And even for the issues he did raise in his objections, the

government contends that Mr. Collins was not sufficiently specific to preserve his

arguments for review.

         “[A] party’s objections to the magistrate judge’s report and recommendation

must be both timely and specific to preserve an issue for appellate review.” Soliz v.

Chater, 82 F.3d 373, 375 (10th Cir. 1996) (ellipsis and internal quotation marks

omitted). “[O]nly an objection that is sufficiently specific to focus the district court's

attention on the factual and legal issues that are truly in dispute will advance the

policies behind the Magistrate’s Act that led us to adopt a waiver rule in the first

instance.” United States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir.

1996).

         Mr. Collins’ objections began by “incorporat[ing] by reference herein, all of

the arguments he made in his Brief in Chief.” Aplt. App., Vol. IV at 955. But we

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disfavor briefing by incorporation, see, e.g., Gaines–Tabb v. ICI Explosives, USA,

Inc., 160 F.3d 613, 623-24 (10th Cir. 1998), and such a broad statement is not

sufficiently specific to preserve any arguments for review, see Soliz, 82 F.3d at 375-

76; One Parcel of Real Prop., 73 F.3d at 1060.

      Mr. Collins then reiterated certain arguments from one section of his opening

brief. Although it is a close call whether these objections are sufficiently specific, we

will not deem these arguments waived. We address them below.

      In addition, Mr. Collins raised a new argument in his objections. Citing

Jaramillo v. Colvin, 576 F. App’x 870 (10th Cir. 2014), he argued that the ALJ

improperly used non-specific qualifying terms in expressing his RFC and failed to

state his mental impairments in terms of work-related functioning. “Issues raised for

the first time in objections to the magistrate judge’s recommendation are deemed

waived.” Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996). Although

Jaramillo was decided after Mr. Collins filed his brief in the district court, the

authorities it relied on were available when Mr. Collins filed his brief. See Chapo v.

Astrue, 682 F.3d 1285 (10th Cir. 2012); SSR 96-8p, 1996 WL 374184 (July 2, 1996);

SSR 85-15, 1985 WL 56857 (1985). Therefore, Mr. Collins could have raised the

argument in his opening brief, and we consider it waived.

      We have applied the firm-waiver rule except “when the interests of justice so

dictate,” One Parcel of Real Prop., 73 F.3d at 1060 (internal quotation marks

omitted), and when there is plain error, see Morales-Fernandez v. INS, 418 F.3d

1116, 1122 (10th Cir. 2005). But we do not consider these exceptions because

                                            4
Mr. Collins has not argued for them. See Richison v. Ernest Grp., Inc., 634 F.3d

1123, 1131 (10th Cir. 2011) (“[T]he failure to argue for plain error and its application

on appeal . . . surely marks the end of the road” for a waived argument.).

II.   Arguments Preserved for Appeal

      Giving Mr. Collins the benefit of the doubt, we conclude that he sufficiently

preserved a handful of issues by raising them in his objections to the R&R. “We

review the Commissioner’s decision to determine whether the factual findings are

supported by substantial evidence in the record and whether the correct legal

standards were applied. Substantial evidence is such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.” Wilson v.

Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010) (citation and internal quotation marks

omitted).

      First, Mr. Collins argues that the ALJ erred in using the term “moderate

exposure to hazards” in the RFC. He asserts that a person with a seizure disorder

“must avoid all exposure to hazards, not just a moderate exposure.” Aplt. Br. at 7.

This argument ignores the medical evidence, relied upon by the ALJ, that “[t]here is

no record of recent treatment for seizures and by inference the seizures are

sufficiently controlled on medication. . . . [S]eizures are expected to be controlled

with compliance to treatment.” Aplt. App., Vol. 1 at 31. Due to seizure history, the

ALJ included a hazards restriction “[n]onetheless,” id., out of an abundance of

caution. Mr. Collins did not preserve any argument that the ALJ’s decision regarding



                                            5
the likelihood of seizures is not supported by substantial evidence. In these

circumstances, the use of the term “moderate exposure” is not grounds for reversal.

      Next, still challenging the hazards limitation, Mr. Collins complains that the

RFC does not identify specific hazards. But, in discussing the hazards limitation, the

ALJ states that “[t]he claimant needs to avoid moderate exposure to dangerous

heights and moving machinery.” Id. This argument therefore is meritless.

      Third, Mr. Collins asserts that “routine supervision” is unworkable because,

according to his uncle’s testimony, he cannot retain information for more than two

weeks. And fourth, he complains that the RFC does not contain a restriction on

working in extreme heat or cold and makes no provision for his being absent or tardy

due to mania and depression or for his hallucinations and paranoia. Both of these

arguments appear to question the ALJ’s assessment of the evidence and urge the

court to reweigh the evidence in Mr. Collins’ favor. It is well settled, however, that

we do not reweigh the evidence or substitute our discretion for the agency’s.

See Newbold v. Colvin, 718 F.3d 1257, 1262, 1265 (10th Cir. 2013); Casias v. Sec’y

of Health & Human Servs., 933 F.2d 799, 800 (10th Cir. 1991).




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                               Conclusion

The district court’s judgment is affirmed.


                                     Entered for the Court


                                     Gregory A. Phillips
                                     Circuit Judge




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