                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           SEP 25 1997
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    DONALD W. VAN WINKLE,

                Plaintiff-Appellant,

    v.                                                   No. 97-7007
                                                     (D.C. No. 94-CV-541)
    JOHN J. CALLAHAN, Acting                             (E.D. Okla.)
    Commissioner, Social Security
    Administration, *

                Defendant-Appellee.




                             ORDER AND JUDGMENT **



Before BRORBY, LOGAN, and HENRY, 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




*
      John J. Callahan, Acting Commissioner for the Social Security
Administration, is substituted for the former commissioner, Shirley S. Chater.
See Fed. R. App. P. 43(c).
**
      This order and judgment is not binding precedent, except under the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-appellant Donald W. Van Winkle appeals the district court’s

judgment affirming the decision by the Commissioner of Social Security denying

his applications for benefits. Because the Commissioner’s decision is supported

by substantial evidence, we affirm.

      Plaintiff has been diagnosed with scoliosis of the lumbosacral spine. In

February 1990, he injured his cervical spine in a car accident. X-rays taken at

that time revealed grade 2 degenerative changes in the thoracic spine at T9-T10.

After two months of chiropractic treatment, plaintiff was released to return to

work with no restrictions. He returned to his job as a pipefitter’s helper until it

ended in October 1992. In May 1993, plaintiff applied for both disability

insurance and supplemental security income benefits, alleging an inability to work

after October 15, 1992, due to back pain. After a hearing, an administrative law

judge (ALJ) found that although plaintiff cannot return to his former work, he is

not disabled because he retains the ability to do the full range of light and

sedentary work. The Appeals Council denied review, making this the final

decision of the Commissioner. The district court affirmed, and this appeal

followed.




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      We review the Commissioner’s decision to determine whether his factual

findings are supported by substantial evidence and whether correct legal standards

were applied. See Hawkins v. Chater, 113 F.3d 1162, 1164 (10th Cir. 1997).

Substantial evidence is “such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401

(1971) (quotations omitted). We may “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).

      On appeal, plaintiff argues that the Commissioner’s finding that plaintiff

can perform the full range of light and sedentary work is unsupported by

substantial evidence because there is no medical evidence plaintiff can either sit

or stand on a prolonged basis. We disagree. In April 1990, plaintiff was released

from treatment to “resume normal activities,” with no restrictions on walking or

sitting noted. Appellant’s App. II at 125A. In 1993, a consultative examination

revealed that plaintiff had a good range of motion in his spine and all extremities,

had a good ability to walk in terms of strength, speed, stability, and safety, had no

lower extremity symptoms or muscular weakness, and did not need an assistive

device to ambulate. See id. at 126-132. Again, no restrictions on walking or

sitting were noted. These medical findings support the Commissioner’s




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conclusion that plaintiff can perform the standing and sitting requirements of light

and sedentary work.

      Moreover, even accepting plaintiff’s testimony regarding his sitting and

standing limitations, the vocational expert identified a significant number of light

and sedentary jobs which would allow plaintiff to alternate sitting and standing as

needed. See id. at 61-62. The Commissioner’s ultimate conclusion that plaintiff

is not disabled, therefore, is supported by substantial evidence.

      Plaintiff argues also that the ALJ failed to develop the record because he

did not order a current x-ray of plaintiff’s thoracic vertebrae, in which

degeneration had been noted, relying instead on remote evidence. We conclude

the ALJ adequately developed the record by ordering a consultative examination.

The ALJ had no duty to order further testing, as the 1993 examination did not

disclose medical findings suggesting that plaintiff’s disc degeneration had so

progressed that a new x-ray would materially impact his disability determination.

See Hawkins, 113 F.3d at 1167, 1169. This is especially true in light of

plaintiff’s attorney’s failure to request the ALJ to order a current x-ray, see id. at

1167-68, and in light of plaintiff’s failure to identify upper back pain as a

disabling condition either in his application or during the consultative

examination, see Appellant’s App. II at 95, 126-27. Moreover, the consultative

physician’s findings were not remote, as they were made within twelve months of


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plaintiff’s application. See 20 C.F.R. §§ 404.1512(d) and 416.912(d). Plaintiff’s

argument regarding who has the burden of proof in a Title XVI case will not be

considered, as it was not raised in the district court. See Crow v. Shalala, 40 F.3d

323, 324 (10th Cir. 1994) (holding we do not consider arguments raised for first

time on appeal absent compelling reasons).

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

Oklahoma is AFFIRMED.



                                                    Entered for the Court



                                                    Wade Brorby
                                                    Circuit Judge




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