                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           JAN 30 1998
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    KATHY M. LONG,

                Plaintiff-Appellant,

    v.                                                   No. 97-5111
                                                   (D.C. No. 95-CV-835-W)
    KENNETH S. APFEL, Commissioner,                      (N.D. Okla.)
    Social Security Administration, *

                Defendant-Appellee.




                            ORDER AND JUDGMENT **



Before BRORBY, BARRETT, and BRISCOE, 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




*
      Pursuant to Fed. R. App. P. 43(c), Kenneth S. Apfel is substituted for
John J. Callahan, former Acting Commissioner of Social Security, as the
defendant in this action.
**
      This order and judgment is not binding precedent, except under the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.
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

      Plaintiff appeals the district court order affirming the denial of plaintiff’s

application for supplemental security income benefits. In what became the final

decision of the Commissioner, the administrative law judge (ALJ) found that

plaintiff’s heart condition, back pain, and ankle problems prevented her from

performing her past relevant work. The ALJ further concluded, however, that

plaintiff could perform other work that exists in significant numbers in the

national economy, despite her impairments.

      Plaintiff raises two principle challenges on appeal: (1) the ALJ did not

properly evaluate plaintiff’s physical impairments and their impact on her ability

to do work; and (2) the hypothetical question the ALJ propounded to the

vocational expert (VE) at the hearing did not accurately reflect plaintiff’s

impairments. We review the Commissioner’s decision to determine whether

the correct legal standards were applied and whether his “factual findings are

supported by substantial evidence in the record viewed as a whole.” Castellano

v. Secretary of Health & Human Servs., 26 F.3d 1027, 1028 (10th Cir. 1994).

“If supported by substantial evidence, the [Commissioner’s] findings are

conclusive and must be affirmed.” Sisco v. United States Dep’t of Health &

Human Servs., 10 F.3d 739, 741 (10th Cir. 1993). “In evaluating the appeal,


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we neither reweigh the evidence nor substitute our judgment for that of the

agency.” Casias v. Secretary of Health & Human Servs., 933 F.2d 799, 800

(10th Cir. 1991).

      As a preliminary matter, we note that some of the arguments plaintiff

makes in support of her first challenge were not urged in the district court.

Specifically, the arguments that plaintiff advances on appeal in support of her

contention that the ALJ erred in assessing the credibility of her subjective

allegations of pain and other limitations are different than those she advanced in

the district court in support of this proposition. “Absent compelling reasons, we

do not consider arguments that were not presented to the district court.” Crow v.

Shalala, 40 F.3d 323, 324 (10th Cir. 1994). The record before us presents no

compelling reasons to consider plaintiff’s new arguments. Therefore, in

examining whether the ALJ properly evaluated plaintiff’s physical impairments

and their impact on her ability to do work, we will not consider the propriety of

the ALJ’s credibility assessment; we will consider only whether the ALJ

improperly gave more weight to the opinion of Dr. Sutton, a consulting physician,

than he gave to the opinion of Dr. Ferguson, plaintiff’s treating physician, and

whether the record supports the ALJ’s finding that plaintiff can sit for four hours

at a time, up to eight hours per day. We turn to the first of plaintiff’s arguments.




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      Generally, the report of a physician who has treated a patient should be

given greater weight than that of a physician who has not treated the patient.

See Broadbent v. Harris, 698 F.2d 407, 412 (10th Cir. 1983). Here, the ALJ

concluded that Dr. Sutton’s March 1994 report was actually more favorable

to plaintiff than was Dr. Ferguson’s June 1992 report, because “Dr. Sutton’s

assessed limitations are more restrictive tha[n] the limitations of Dr. Ferguson,”

Appellant’s App., Vol. II at 29, and Dr. Sutton’s report took into account

limitations arising from the broken ankle plaintiff suffered in 1993, after

Dr. Ferguson’s examination.

      Indeed, Dr. Ferguson merely stated that plaintiff’s ability to sit, stand,

move about, lift, carry, and handle objects was “impaired significantly,” id.

at 144, without otherwise quantifying her limitations. As plaintiff’s former

counsel acknowledged at the hearing before the ALJ, what Dr. Ferguson

considered a “significant” limitation is uncertain and cannot be quantified in

any meaningful way. See id. at 246. Dr. Sutton, by contrast, made an assessment

of plaintiff’s residual functional capacity (RFC) that specifically quantified her

ability to do various work-related activities, such as sit, stand, walk, lift, and

carry. He found, for instance, that plaintiff could sit for only four hours at one

time, for a total of eight hours in an eight-hour day; that she could stand for only

one hour at a time, for a total of three to four hours in a day; and that she could


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walk for only thirty minutes at a time, for a total of one to two hours in a day.

See id. at 185, 191.

      Based upon our review of the record, we conclude that the ALJ did not err

in using Dr. Sutton’s specific limitations as the basis for his own assessment of

plaintiff’s RFC, rather than Dr. Ferguson’s ambiguous and, arguably, less

restrictive assessment of plaintiff’s ability to work. Dr. Sutton’s limitations are

supported by his own examination of plaintiff and by other evidence in the record.

      Having determined that the ALJ did not err in relying on Dr. Sutton’s

assessment of plaintiff’s RFC, we necessarily reject plaintiff’s second argument,

that the record does not contain support for the ALJ’s finding that plaintiff can sit

for four hours at a time, for a total of eight hours per day.

      We turn, then, to plaintiff’s final challenge to the ALJ’s decision. Plaintiff

argues that the ALJ did not propound a proper hypothetical question to the VE

and, therefore, that the VE’s response to the question does not constitute

substantial evidence upon which to base a finding of no disability. A proper

hypothetical question need include only the impairments that the ALJ permissibly

finds are established by the evidence. See Gay v. Sullivan, 986 F.2d 1336, 1341

(10th Cir. 1993). The ALJ based his hypothetical question on the limitations

set forth in Dr. Sutton’s report. Because we have already upheld the ALJ’s




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determination that Dr. Sutton’s report accurately reflects plaintiff’s limitations,

the ALJ did not err in basing his hypothetical question on those limitations.

      The judgment of the United States District Court for the Northern District

of Oklahoma is AFFIRMED.



                                                     Entered for the Court



                                                     Wade Brorby
                                                     Circuit Judge




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