                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                December 30, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                            FOR THE TENTH CIRCUIT


    TIMOTHY W. OSBORN,

                Plaintiff-Appellant,

    v.                                                   No. 09-1553
                                               (D.C. No. 1:08-CV-01755-KLM)
    MICHAEL J. ASTRUE,                                    (D. Colo.)
    Commissioner of Social Security,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before KELLY and BALDOCK, Circuit Judges, and BRORBY, Senior
Circuit Judge.


         Timothy W. Osborn appeals the district court’s order affirming the

Commissioner’s decision to terminate his Social Security disability benefits as of

June 1, 2000, due to medical improvement and to deny a new application for

benefits alleging disability as of August 8, 2002. 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 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. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
                                         I.

      Along with other impairments, Mr. Osborn suffers from low back pain

dating back to an accident that occurred during his military service. An

administrative law judge (ALJ) found that he met or equaled the requirements of

then-applicable Listing 1.05. The ALJ declared him disabled and entitled to

disability benefits as of January 23, 1990. Upon review in April 1995, his

benefits were continued. But in another review in 2000, a state disability hearing

officer found that Mr. Osborn no longer met or equaled a listing, that he had

experienced medical improvement related to his ability to work, and that he had

the residual functional capacity (RFC) to perform a full range of light work.

Thus, by decision dated December 1, 2000, the hearing officer discontinued his

benefits as of June 1, 2000.

      After some intermediate proceedings, on August 7, 2002, the ALJ issued a

decision that found Mr. Osborn’s disability ceased as of June 1, 2000. While this

decision was under review, in 2004 Mr. Osborn filed a new application for

benefits, alleging disability since August 8, 2002. Eventually the 2002 ALJ

decision was remanded by the district court for further proceedings.

      On remand, the ALJ addressed both the termination-of-benefits decision

and the new application in a decision dated December 14, 2005. Once again, he

concluded that Mr. Osborn’s disability terminated as of June 1, 2000. Regarding

the new application, he also concluded that Mr. Osborn was not disabled between

                                         -2-
his alleged onset date and his date last insured, September 30, 2005. On review,

however, the Appeals Council remanded for further proceedings, directing that a

new ALJ further consider a disability award by the Veterans Administration and

other record evidence.

      This extended history underlies the decision under review in this appeal:

the new ALJ’s March 25, 2008, determination that Mr. Osborn had medically

improved and was no longer entitled to benefits as of June 1, 2000, and that he

also was not disabled between August 8, 2002, and September 30, 2005. The

Appeals Council denied review, making the ALJ’s decision the final agency

determination. The district court affirmed the Commissioner’s decision.

Mr. Osborn now appeals to this court.

                                        II.

      Employing a de novo standard of review, “we independently determine

whether the ALJ’s decision is free from legal error and supported by substantial

evidence.” Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (quotation

omitted). Substantial evidence “means such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” Richardson v. Perales,

402 U.S. 389, 401 (1971) (quotation omitted). “It requires more than a scintilla,

but less than a preponderance.” Wall, 561 F.3d at 1052 (quotation omitted).

“Although we will not reweigh the evidence or retry the case, we meticulously

examine the record as a whole, including anything that may undercut or detract

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from the ALJ’s findings in order to determine if the substantiality test has been

met.” Id. (quotation omitted).

      We have identified seven arguments in Mr. Osborn’s opening brief. 1 The

first two arguments allege a lack of subject-matter jurisdiction in the agency and

the federal courts. The third argument is that the district court omitted step five

of the eight-step sequential evaluation process set forth under 20 C.F.R.

§ 404.1594(f)(1)-(8), and that as a result Mr. Osborn was denied due process.

The fourth argument is that the ALJ’s medical-improvement decision was not

supported by substantial evidence because he did not adequately consider

contemporaneous medical records and reports. For his fifth argument,

Mr. Osborn asserts that the ALJ did not explain what part of the vocational expert

(VE) testimony he accepted. The sixth argument is that the ALJ did not develop

the record as to the demands of Mr. Osborn’s past relevant work. And finally,

Mr. Osborn complains that the ALJ inadequately evaluated the required factors

when he discounted Mr. Osborn’s claims of disabling pain.

                                 Waived Arguments

      The government suggests that Mr. Osborn has waived the majority of his

arguments because he failed to present them to the district court and/or failed to

adequately brief them on appeal. See Chambers v. Barnhart, 389 F.3d 1139, 1142


1
      Arguments not presented in the opening brief are waived. See Anderson v.
U.S. Dep’t of Labor, 422 F.3d 1155, 1174 (10th Cir. 2005).

                                         -4-
(10th Cir. 2004) (“The scope of our review . . . is limited to the issues the

claimant properly preserves in the district court and adequately presents on

appeal.” (quotation and alteration omitted)); see also Wall, 561 F.3d at 1065,

1066 (declining to consider issues that were not supported with any “developed

argumentation” on appeal and that were not raised adequately before the district

court (quotation omitted)). We agree that Mr. Osborn’s fifth and sixth arguments

are waived because he failed to present them before the district court. Further,

the due-process component of his third argument and his seventh argument are

waived for failure to adequately present them in his opening brief. For the

reasons discussed below, however, we decline to apply waiver principles to the

remaining arguments.

                                Nonwaived Arguments

      The first and second arguments at least nominally invoke subject-matter

jurisdiction, which cannot be waived. 2 See Ins. Corp. of Ir., Ltd. v. Compagnie

des Bauxites de Guinee, 456 U.S. 694, 702 (1982); Anderson v. U.S. Dep’t of

Labor, 422 F.3d 1155, 1175 (10th Cir. 2005). The first argument is rooted in

certain proceedings between the December 1, 2000, state hearing officer decision

and the 2002 ALJ decision.



2
       Inexplicably, Mr. Osborn contradicts both his first and his second
arguments by affirmatively stating in the jurisdictional section of his opening
brief that the district court and this court have subject-matter jurisdiction.

                                          -5-
      After Mr. Osborn requested review of the December 1 decision, the ALJ

issued a brief order vacating that decision on the ground that the agency had not

given Mr. Osborn an adequate opportunity to attend a consultive examination.

But the ALJ apparently overlooked that Mr. Osborn had been examined by

Dr. Shebowich on October 27, 2000. Therefore, the December 1 decision was not

based on any failure to attend an examination. In light of these circumstances,

instead of issuing a new decision, the state hearing officer concluded in an

informal order that the matter properly remained before the ALJ. The ALJ then

proceeded to hold a hearing and to issue the 2002 decision.

      Mr. Osborn argues that the ALJ’s vacatur of the state agency’s December 1

decision stripped subject-matter jurisdiction from all subsequent proceedings,

leaving the ALJ (and the courts) unable to undertake review until after the hearing

officer promulgated a new formal decision. But Mr. Osborn does not cite any

authority to support his conclusion that this issue is jurisdictional with regard to

the agency proceedings, and we are not convinced that it is. It is not

jurisdictional with regard to the court proceedings. See Mathews v. Eldridge,

424 U.S. 319, 328 (1976) (indicating that the only nonwaivable jurisdictional

elements for Social Security review are “that a claim for benefits shall have been

presented to the [Commissioner]” and “some decision by the [Commissioner]”).

      The second argument is that the district court’s vacatur of the 2002 ALJ

decision stripped subject-matter jurisdiction from all subsequent proceedings.

                                          -6-
Because of the vacatur, Mr. Osborn submits, “there was, and is now no order in

effect, and the last ALJ Decision, as well as the District Courts’ Decision

affirming same are illegal, and in violation [of] law and they must be vacated as a

matter of law based on lack of subject matter jurisdiction.” Aplt. Opening Br. at

11. After the district court’s vacatur, however, the agency duly promulgated new

decisions, and Mr. Osborn duly availed himself of his opportunities to have those

decisions reviewed. There is no lack of subject-matter jurisdiction. See Mathews,

424 U.S. at 329 (“[Section] 405(g) requires only that there be a ‘final decision’ by

the [Commissioner] with respect to the claim of entitlement to benefits.”).

      The sequential-evaluation portion of the third argument could not have

been raised earlier because it challenges the structure of the court’s analysis (by

arguing that the district court improperly omitted step five of the appropriate

eight-factor test). But this issue is easily resolved. Any error in omitting step

five is immaterial, first because it appears that the omitted step does not apply in

the circumstances of this case, and second because “we independently determine

whether the ALJ’s decision is free from legal error and supported by substantial

evidence,” Wall, 561 F.3d at 1052 (quotation omitted).

      The only remaining issue is Mr. Osborn’s fourth argument, in which he

contends that the ALJ’s finding of medical improvement is not supported by

substantial evidence because the ALJ did not adequately consider

contemporaneous opinions and medical records (specifically, the reports and

                                          -7-
opinions of Dr. Barklow, Dr. Miller, and Dr. Shebowich and the results of a July

2000 MRI). This argument concerns only the termination-of-benefits decision,

not the denial of the new application covering the period from August 8, 2002, to

September 30, 2005.

      With regard to termination-of-benefits issues, the 2008 decision adopted, in

large part, the factual findings and legal conclusions of the 2005 decision. The

2005 decision discussed the opinions of Dr. Miller and Dr. Shebowich and also

acknowledged Mr. Osborn’s complaints to Dr. Barklow. The ALJ specifically

noted that the July 2000 MRI results showed some increase in the size of the

L5-S1 disc protrusion and that Dr. Miller documented exacerbation of problems

and setbacks. But the ALJ also identified positive medical findings and

ultimately concluded that the records showed improvement over time. Covering

some of the same ground, the 2008 decision reiterated that the medical records

supported a finding of medical improvement and gave great weight to the

testimony of the impartial medical expert.

      There is substantial evidence to support the ALJ’s decision that Mr. Osborn

medically improved. “Medical improvement is any decrease in the medical

severity of [the claimant’s] impairment(s) which was present at the time of the

most recent favorable medical decision that [the claimant was] disabled or

continued to be disabled.” 20 C.F.R. § 404.1594(b)(1). As the ALJ noted, “in

1995, the claimant had trace to absent deep tendon reflexes, decreased sensation,

                                        -8-
unsteady tandem gait, decreased range of motion of the cervical spine, decreased

grip strength and diminished calf musculature.” Aplt. App. at 91. In contrast,

Dr. Shebowich’s October 2000 examination showed

      a full range of motion [of his neck] without discomfort . . .
      tenderness at the L5-S1 junction in the midline[, but] no significant
      tenderness elsewhere in the midline, no paraspinal muscle
      tenderness, and no muscle spasm. . . . no SI joint tenderness . . . [no]
      pain with rotation of his trunk. Straight leg raising was negative in
      the supine and the sitting position. . . . a full range of motion in his
      shoulders, elbows, wrists and hands without evidence of arthritis or
      any discomfort . . . a full range of motion in his hips . . . full flexion
      and extension of both knees . . . no pain through a full range of
      motion [of his lower extremities].

Admin. R., Vol. I at 334. Further, the impartial medical expert testified that

Mr. Osborn had experienced medical improvement, and his testimony rebutted

Dr. Miller’s opinion.

      While there also is evidence in the record supporting Mr. Osborn’s

position, this is not a case in which the record evidence overwhelmingly

contradicts the ALJ’s opinion or in which the ALJ neglected to discuss material

evidence that favors the claimant. Instead, Mr. Osborn essentially asks this court

to reweigh the evidence. That we cannot do. See Wall, 561 F.3d at 1069 (where

substantial evidence supports the decision, “we may not reweigh the evidence or

try the issues de novo in order to advance a different view” (quotation omitted));

Oldham v. Astrue, 509 F.3d 1254, 1257-58 (10th Cir. 2007) (“Although the

evidence may also have supported contrary findings, we may not displace the


                                          -9-
agency’s choice between two fairly conflicting views, even though the court

would justifiably have made a different choice had the matter been before it de

novo.” (quotation and alteration omitted)).

                                       III.

      Mr. Osborn’s Motion for Remand is DENIED. The judgment of the district

court is AFFIRMED.


                                                   Entered for the Court



                                                   Paul J. Kelly, Jr.
                                                   Circuit Judge




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