                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           AUG 31 2004
                            FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk


    HENRY G. ALDERETE,

                Plaintiff-Appellant,

    v.                                                  No. 03-2256
                                                 (D.C. No. CIV-01-1409-JHG)
    JO ANNE B. BARNHART,                                  (D. N.M.)
    Commissioner, Social Security
    Administration,

                Defendant-Appellee.


                             ORDER AND JUDGMENT           *




Before KELLY , Circuit Judge, BRORBY , Senior Circuit Judge, and        BRISCOE ,
Circuit Judge.


         Henry G. Alderete appeals a decision of the district court upholding the

Social Security Commissioner’s denial of his application for supplemental




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
security income (SSI).   1
                             The Commissioner has established a five-step sequential

evaluation process for determining whether a claimant is disabled. 20 C.F.R.

§ 416.920; Williams v. Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988).

Mr. Alderete applied for SSI alleging disability due to a back problem, psoriasis,

headaches, insomnia, and depression. The agency denied Mr. Alderete’s

application initially and on reconsideration. Mr. Alderete then received a de novo

hearing before an administrative law judge (ALJ). Ultimately, the ALJ denied

benefits at step five of the sequential analysis. In so doing, he found that

Mr. Alderete, who, at the time of his disability hearing, was forty-one years old

with a “limited” tenth grade education and no acquired work skills, retained the

residual functional capacity to perform simple, unskilled work across all

exertional levels, and that, under the medical-vocational guidelines (the “grids”),

he was not disabled.     See 20 C.F.R. Pt. 404, Subpt. P, App. 2, Rule 203.25. The

Appeals Council denied Mr. Alderete’s request for review, making the ALJ’s

decision the final decision of the Commissioner. The district court affirmed, and

this appeal followed.

      Our jurisdiction arises under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g). We

review the Commissioner’s decision to determine whether the Commissioner’s



1
      The parties consented to proceed before a magistrate judge pursuant to
28 U.S.C. § 636(c)(1).

                                            -2-
factual findings are supported by substantial evidence in the record, and whether

the correct legal standards were applied.      Doyal v. Barnhart , 331 F.3d 758, 760

(10th Cir. 2003). We may neither “reweigh the evidence nor substitute our

judgment for the [Commissioner’s].”         Glass v. Shalala , 43 F.3d 1392, 1395 (10th

Cir. 1994). Moreover, “[t]he scope of our review . . . is limited to the issues the

claimant properly preserves in the district court.” Berna v. Chater, 101 F.3d 631,

632 (10th Cir. 1996); see also Crow v. Shalala, 40 F.3d 323, 324 (10th Cir. 1994)

(noting general rule that we do not review issues that were not presented to the

district court). Applying these standards, we affirm.

       Mr. Alderete raises three narrow issues on appeal. To provide context, we

begin by reviewing the ALJ’s findings at steps two and three of the sequential

analysis. See Williams , 844 F.2d at 750-52. At step two, the ALJ found

Mr. Alderete’s back problem, psoriasis, and headaches did not constitute “severe”

impairments, and that Mr. Alderete did not suffer from any severe physical or

exertional impairments. (Mr. Alderete does not challenge this finding on appeal.)

The ALJ further found, however, that Mr. Alderete suffered from three

nonexertional impairments that were severe: depression, drug abuse, and

insomnia secondary to drug abuse. Pursuant to the Contract with America

Advancement Act of 1996, Pub. L. No. 104-121, 110 Stat. 847, a claimant is

precluded from receiving benefits if “alcoholism or drug addiction would . . . be a


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contributing factor material to the Commissioner’s determination that [the

claimant] is disabled.” 42 U.S.C. § 1382c(a)(3)(J). “[T]he key factor the

Commissioner must examine in determining whether drugs or alcohol are a

contributing factor to the claim is whether the Commissioner would still find the

claimant disabled if he . . . stopped using drugs or alcohol.”       Drapeau v.

Massanari , 255 F.3d 1211, 1214 (10th Cir. 2001);        see also 20 C.F.R. § 416.935

(detailing materiality determination).

       At step three of the sequential analysis, the ALJ found that Mr. Alderete

met Listing 12.09, which addresses substance addiction disorders.           See 20 C.F.R.

Pt. 404, Subpt. P., App. 1, Pt. A, § 12.09. Unlike other mental disorder listings,

12.09 does not consist of a statement describing the disorder together with a list

of necessary medical findings and a list of necessary functional limitations.

Instead, it “is structured as a reference listing; . . . it . . . only serve[s] to indicate

which of the other listed mental or physical impairments must be used to evaluate

the behavioral or physical changes      resulting from regular use of addictive

substances.” Id. § 12.00(A) (emphasis added). The required level of severity for

a substance addiction disorder is met when, as a result of substance abuse, the

requirements in one or more of Listings 12.02, 12.04, 12.06, 12.08, 11.14, 5.05,

5.04, 5.08, 11.02, or 11.03 are satisfied.    Id. § 12.09. Accordingly, the ALJ

looked at Listing 12.04 for affective disorders to evaluate Mr. Alderete’s


                                             -4-
depression.   2
                  See 20 C.F.R. Pt. 404, Subpt. P., App. 1, Pt. A, § 12.04. The ALJ

determined that Mr. Alderete did not meet the requirements of Listing 12.04

except as a result of his drug abuse. Therefore, while the ALJ found that Mr.

Alderete met Listing 12.09, he further found that Mr. Alderete’s drug abuse was

material to this finding and that Mr. Alderete would not be disabled at step three

if he stopped using drugs. The first issue Mr. Alderete raises on appeal

challenges this conclusion. Mr. Alderete’s position is “that even when [he] was

not using alcohol or drugs, his mental impairment was disabling.” Aplt. Opening

Br. at 11. But because it appears that Mr. Alderete never stopped abusing drugs,

we cannot agree with his position. Nor do we find merit in his argument that the

court’s materiality finding was contrary to law because it “failed to apply–indeed

failed to mention–the most recent authority from this Court:     McGoffin v.

Barnhart , 288 F.3d 1248 (10th Cir. 2002).” Aplt. Opening Br. at 9. In     McGoffin ,

we observed in dicta that “‘[w]hen it is not possible to separate the mental

restrictions and limitations imposed by [drug and alcohol use] and the various

other mental disorders shown by the evidence, a finding of ‘not material’ would

be appropriate.’” 288 F.3d      at 1253 (quoting Social Security Administration



2
       Insomnia is not itself a mental disorder, although it may be a symptom of a
disorder, such as depressive syndrome.    See 20 C.F.R. Pt. 404, Subpt. P., App. 1,
Pt. A, § 12.04A(1)(c) (identifying sleep disturbance as a characteristic of
depressive syndrome).

                                            -5-
Emergency Teletype , response to question 29 (Aug. 30, 1996),     available at

http://www.ssas.com/daa-q&a.htm     ) (alteration in original)). In this case, the ALJ

did not find it impossible to separate Mr. Alderete’s depression imposed by drug

abuse from “various other mental disorders;” indeed, the evidence does not

demonstrate that Mr. Alderete suffered from various other mental disorders. Our

careful review of the record, in light of the deferential standard we are subject to,

leads us to conclude that there is substantial evidence to support the ALJ’s

materiality finding, and that the ALJ applied the correct legal standards. The

district court therefore properly affirmed on this point.

      The second issue Mr. Alderete raises on appeal is that the district court

committed reversible error by affirming the ALJ’s decision “discounting and

rejecting” the opinions of treating physicians Rexroad, Roston, and Rosen. Aplt.

Opening Br. at 18. Mr. Alderete complains that the ALJ did not state why he

declined to afford Dr. Rexroad’s undated report any weight. But because

Mr. Alderete raises this issue for the first time on appeal, we decline to consider

it. See Berna, 101 F.3d at 632-33. In so holding, we note that while Mr. Alderete

cited the undated report in the district court, he did not object to what weight, if

any, the ALJ afforded it. Instead, Mr. Alderete’s district court arguments, with

regard to Dr. Rexroad, focused on an August 31, 2000, evaluation. The

August 31, 2000, evaluation (and a narrative form of the same date) were actually


                                          -6-
completed by Dr. Roston.      See Aplt. App., Vol. II at 156. Thus, even though we

deem Mr. Alderete’s appellate argument regarding Dr. Rexroad’s undated report

waived, Mr. Alderete’s argument about the August 31, 2000, evaluation, even

though mis-attributed, was preserved.

       The August 31, 2000, evaluation, that was actually completed by Dr.

Roston, states: “Henry Alderete suffers from an agitated depression and is

incapacitated by his disease. He would greatly benefit from G.A. / S.S.I.. His

disability will continue for an indefinite time.”      Id. The ALJ gave Dr. Roston’s

evaluation “no significant weight because it is brief, conclusory, and unsupported

by medical evidence,” and because it “contradicts the Narrative Form of that same

date indicating that [Mr. Alderete] was feeling much better” and “sleeping ‘like a

baby.’” Id. at 17. Mr. Alderete takes issue with the ALJ’s refusal to accord Dr.

Roston’s August 31, 2000, evaluation significant weight, but there was no error in

the ALJ’s assessment. A treating source opinion is to be given controlling weight

only if it is “well-supported by medically acceptable clinical and laboratory

diagnostic techniques and is not inconsistent with the other substantial evidence

in [the] record.” 20 C.F.R. § 416.927(d)(2);        see also Watkins v. Barnhart , 350

F.3d 1297, 1300 (10th Cir. 2003) (outlining framework for ALJ’s controlling

weight determination). Dr. Roston’s opinion does not meet this standard.




                                              -7-
Further, the ALJ adequately explained why he gave Dr. Roston’s opinion the

weight he did. See 20 C.F.R. § 416.927(d)(2).

       Mr. Alderete also asserts that the ALJ erred by discounting Dr. Rosen’s

February 2001 letter. It states: “This letter is to certify that you . . . are currently

under my care . . . . You are being treated for depression and insomnia, and it has

affected your ability to work.” Aplt. App., Vol. II at 271. The ALJ gave the

letter “no significant weight,” because Dr. Rosen “did not list any specific

functional limitations.”   Id. at 17. Mr. Alderete, while conceding that Dr. Rosen

did not list specific limitations, argues that several of Dr. Rosen’s treatment notes

contain information to support Dr. Rosen’s conclusion that Mr. Alderete cannot

work. We are not persuaded. Dr. Rosen’s treatment notes reflect Mr. Alderete’s

symptoms and diagnoses, but they do not provide any specific limitations that link

Mr. Alderete’s depression and insomnia secondary to drug abuse to the conclusion

that he cannot work. Moreover, the ALJ’s explanation for according Dr. Rosen’s

opinion no significant weight is satisfactory.       See 20 C.F.R. § 416.927(d)(2).

       After considering the pertinent factors, the ALJ gave “good reasons in [the]

notice of determination or decision” for the weight he ultimately assigned to the

opinions of Doctors Roston and Rosen,       id. , and the district court did not err by

affirming the ALJ’s decision to discount their opinions.        See also Bernal v.

Bowen , 851 F.2d 297, 301 (10th Cir. 1988)         (explaining that claimant’s diagnosis


                                             -8-
of major depression “does not automatically mean that he is disabled”);

Castellano v. Sec’y of Health & Human Servs.        , 26 F.3d 1027, 1029 (10th Cir.

1994) (observing that treating physician’s opinion that claimant is totally disabled

is not dispositive because that ultimate conclusion is reserved to the

Commissioner under 20 C.F.R. § 416.927(e)).

       The third issue Mr. Alderete raises on appeal is that the district court

committed reversible error in affirming the ALJ’s use of the grids, because that

use was contrary to the evidence and contrary to law. Specifically, Mr. Alderete

contends that the grids should not have been applied because he suffers from a

“mental impairment” that affects his “functioning.” Aplt. Opening Br. at 25.

Generally speaking, the grids may not be used conclusively if the claimant has

nonexertional impairments that limit the ability to do the full range of work

within a strength classification.      Thompson v. Sullivan , 987 F.2d 1482, 1488 (10th

Cir. 1993). But “[t]he mere presence of a nonexertional impairment does not

preclude reliance on the grids.”       Id. The nonexertional impairment must interfere

with the claimant’s ability to work.      Id. In this case, the ALJ found, in essence,

that absent drug use, Mr. Alderete’s remaining impairments, if any, would not

affect his ability to work. Mr. Alderete does not offer record evidence to the

contrary, and the district court did not err in upholding the ALJ’s application of

the grids. See Eggleston v. Bowen , 851 F.2d 1244, 1247 (10th Cir. 1988) (stating


                                              -9-
that presence of a nonexertional impairment does not preclude use of the grids if

nonexertional impairment does not further limit claimant’s ability to perform

work).

       Finally, Mr. Alderete contends that the ALJ acted in contravention of

Social Security Ruling 85-15, 1985 WL 56857 (1985), by concluding that

Mr. Alderete could perform simple, unskilled work across all exertional levels.

This is a new theory that Mr. Alderete failed to raise in the district court, and we

decline to consider it.   See Okland Oil Co. v. Conoco Inc., 144 F.3d 1308, 1314

n.4 (10th Cir. 1998) (“We have consistently rejected the argument that raising a

related theory below is sufficient to preserve an issue for appeal.”);

Tele-Communications, Inc. v. Comm’r     , 104 F.3d 1229, 1233 (10th Cir. 1997)

(observing that “an issue must be presented to, considered and decided by the

[district] court before it can be raised on appeal” (quotation and brackets

omitted)).

       The judgment of the district court is AFFIRMED.

                                                     Entered for the Court



                                                     Mary Beck Briscoe
                                                     Circuit Judge




                                          -10-
