                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          JUL 10 2003
                            FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    SERRAFIN JOE HERRERA,

                Plaintiff-Appellant,

    v.                                                 No. 01-1446
                                                   (D.C. No. 98-S-2456)
    JO ANNE B. BARNHART, *                              (D. Colo.)
    Commissioner of Social Security,

                Defendant-Appellee.


                            ORDER AND JUDGMENT         **




Before O’BRIEN and PORFILIO , Circuit Judges, and       KANE , *** Senior
District Judge.




*
      On November 9, 2001, Jo Anne B. Barnhart became the Commissioner of
Social Security. In accordance with Rule 43(c)(2) of the Federal Rules of
Appellate Procedure, Ms. Barnhart is substituted for Larry G. Massanari as the
appellee 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      This order and judgment is not binding precedent, except under the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.
***
      The Honorable John L. Kane, Senior District Judge, United States District
Court for the District of Colorado, sitting by designation.
      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.

      Plaintiff-appellant Serrafin Joe Herrera appeals from an order of the district

court affirming the Commissioner’s decision denying his application for Social

Security disability and Supplemental Security Income benefits (SSI).

Appellant applied for these benefits with protected filing dates, respectively, of

February 17, 1995, and April 20, 1995. He alleged disability based on pain in his

upper extremities, his shoulder, and his back, cramping of his joints in both arms,

and swelling of his hands and fingers. The agency denied his applications

initially and on reconsideration.

      On September 17, 1996, appellant received a de novo hearing before an

administrative law judge (ALJ). The ALJ determined that appellant’s residual

functional capacity (RFC) was limited by his inability to do work around heights

or dangerous machinery and to perform tasks requiring fine hearing acuity or

extensive background noise. The ALJ further found that, while appellant has no

limitations on his ability to sit, stand, or walk, he should only occasionally bend

and stoop, should perform no above-the-shoulder activity, can lift and carry no




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more than ten pounds frequently and twenty pounds occasionally, and should not

use his upper extremities for repetitive grasping, handling, and fingering.

      The ALJ determined that appellant could not return to his past relevant

work as a sheet metal polisher and buffer. At the time of the ALJ’s decision, the

claimant was fifty-two years old, had a limited education, and did not have

transferable work skills. The ALJ determined, however, that there were a

significant number of other jobs which he could perform in the national or

regional economy. Applying the Medical-Vocational Guidelines, 20 C.F.R.

pt. 404, Subpt. P, App. 2, rule 202.11 (the grids) as a framework, the ALJ

concluded that appellant was not disabled within the meaning of the Social

Security Act. The Appeals Council considered additional evidence submitted

by appellant and denied review, making the ALJ’s decision the Commissioner’s

final decision.

      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. Andrade v. Sec’y of Health & Human

Servs., 985 F.2d 1045, 1047 (10th Cir. 1993). Substantial evidence is “such

relevant evidence as a reasonable mind might accept as adequate to support

a conclusion.” Fowler v. Bowen, 876 F.2d 1451, 1453 (10th Cir. 1989)

(quotations omitted).


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      The Commissioner follows a five-step sequential evaluation process

to determine whether a claimant is disabled. Williams v. Bowen, 844 F.2d 748,

750-52 (10th Cir. 1988). The claimant bears the burden of establishing

a prima facie case of disability at steps one through four. See id. at 751 & n.2.

If the claimant successfully meets this burden, the burden of proof shifts to the

Commissioner at step five to show that the claimant retains sufficient RFC to

perform work in the national economy, given his age, education and work

experience. See id.

      Appellant raises two issues on appeal. He contends that the Commissioner

failed to meet her burden at step five of the sequential analysis, because the ALJ’s

hypothetical question to the VE did not relate with precision all of his

impairments. He also argues that the Commissioner violated the treating

physician rule or otherwise failed to make a proper assessment of his pain.

      At the outset, we are faced with a jurisdictional question involving the

timeliness of appellant’s notice of appeal. The district court entered final

judgment in this case on July 11, 2001. The sixty-day deadline for filing a timely

notice of appeal expired on Monday, September 10, 2001. Fed. R. App. P.

4(a)(1)(B), 26(a)(3). Appellant filed his notice of appeal eight days later, on

September 18, 2001. Appellant subsequently requested an extension of time to

file the notice, by a motion filed within the thirty-day period provided in


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Fed. R. App. P. 4(a)(5). The district court granted the motion on October 4, 2001.

The district court’s approval of appellant’s timely motion to extend related back

to validate his prior notice of appeal.   Hinton v. City of Elwood, Kan. , 997 F.2d

774, 778 (10th Cir. 1993). We conclude that the notice of appeal was timely and

that we have jurisdiction.

       Before the district court, appellant argued that the VE hypothetical was

deficient because it did not include any limitations regarding hearing limitations

or pain. Aplt. App., Vol. II at 393-95;    see also id. at 415-17. In his brief in this

court, he seeks to expand his argument to include omitted limitations on walking

over uneven surfaces; on stooping, squatting, twisting or climbing; on the need to

sit and stand alternatively because of back pain; on the ability to cope with

occurrence of dizziness, black-outs and blurred vision; on cold intolerance; and

on grip strength. Aplt. Opening Br. at 19-21. We will confine ourselves to those

issues presented to and ruled upon by the district court.    Crow v. Shalala , 40 F.3d

323, 324 (10th Cir. 1994).

       A hypothetical question to the VE “must reflect with precision all of [the

claimant’s] impairments, but [it] need only reflect impairments and limitations

that are borne out by the evidentiary record.”     Decker v. Chater , 86 F.3d 953, 955

(10th Cir. 1996). The ALJ’s hypothetical question did include a hearing

limitation. The ALJ asked the VE to assume that appellant should avoid


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“environments with excessive background noise.” Aplt. App., Vol. I at 72.

Appellant complains that this limitation is inconsistent with the ALJ’s RFC

finding that he cannot perform tasks requiring “fine hearing acuity or extensive

background noise.”    Id. at 21. Basically, he complains that the VE hypothetical

should have included a limitation on fine hearing acuity in addition to the

background noise restriction.

      We reject this argument. A hearing impairment leading to inability to

tolerate excessive background noise implies a concomitant lack of fine hearing

acuity. Appellant’s attempt to draw a distinction between the two conditions is

unsupported by any cogent argument. As the district court noted, the VE was

present for the hearing, at which appellant’s hearing restrictions were discussed in

some detail. Id. at 68. This being the case, the effect of a slight and technical

omission or ambiguity in the hypothetical question, if any, was minimal.      See Diaz

v. Sec’y of Health & Human Servs.    , 898 F.2d 774, 777 (10th Cir. 1990).

      Appellant also complains that the ALJ did not mention his back and hand

pain in the VE hypothetical. In his decision, the ALJ assessed the effect of

appellant’s pain on his RFC. He found appellant’s testimony about pain not fully

credible, and determined that appellant has “no limitations on his ability to sit,

stand, or walk.” Aplt. App., Vol. I at 21. The ALJ’s hypothetical question

reflected this lack of limitation, and was consistent with his RFC determination.


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The ALJ also incorporated into both his RFC determination and his VE

hypothetical limitations on appellant’s ability to perform above the shoulder

activity, and to use his upper extremities to perform repetitive grasping, handling,

and fingering. We conclude that the VE hypothetical adequately reflected the

ALJ’s conclusions concerning the effect of pain on appellant’s ability to work.

The ALJ was required to include only those impairments borne out by the

evidentiary record.   Decker , 86 F.3d at 955.

       Appellant next argues that the ALJ breached the “treating physician rule”

by failing to give controlling weight to the opinions of Dr. Parks and Dr. Seidl.

Dr. Parks described the impairment of appellant’s upper extremities, opining that

it was “not likely [appellant] could return to physical labor in a competitive

environment” and that he could no longer work as a sheet metal worker. Aplt.

App., Vol. I at 246. He noted that appellant “has increased pain with increased

effort along with chronic flexor tendon inflammation, aggravated with sustained

gripping, grasping, twisting, turning, lifting, and carrying.”   Id. We perceive no

inconsistency between Dr. Parks’ opinions and the ALJ’s conclusions concerning

appellant’s RFC. Like Dr. Parks, the ALJ concluded that appellant could not

return to his past work as a sheet metal worker or perform other forms of

“physical labor” more strenuous than light and sedentary work. The ALJ also

concluded that appellant was restricted from performing repetitive grasping,


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handling, or fingering, a conclusion not inconsistent with Dr. Parks’ opinion that

sustained performance of such activities caused appellant pain.

       Dr. Seidl opined in a medical source statement that appellant could only sit,

stand, and walk for two hours each in an eight-hour work day, and could not work

at a competitive pace for eight hours a day, five days a week.     Id. at 383. He

described appellant’s pain as “frequently debilitating” and stated appellant could

use a screwdriver, but not a wrench.     Id. at 385. In a medical re-examination

report submitted to the Colorado Department of Human Services, Dr. Seidl

diagnosed appellant with major depression in addition to his other ailments, and

certified that appellant would be unable to work at any job for a period of twelve

or more months due to a disabling physical or mental impairment.         Id. at 382.

       Dr. Seidl’s medical source statement and medical re-examination report

were not available at the time of the ALJ’s decision. They were submitted to the

Appeals Council, and thereby became part of the record for our review.         O’Dell v.

Shalala , 44 F.3d 855, 859 (10th Cir. 1994). There is a limit to our use of this

after-acquired medical evidence, however. The new evidence is only relevant to

the extent it relates to the time period on or before the date of the ALJ’s decision,

November 25, 1996. 20 C.F.R. §§ 404.970(b); 416.1470(b).

       The record does not show that Dr. Seidl saw appellant or became his

treating physician prior to December 1996. Dr. Seidl’s medical source statement


                                            -8-
and re-examination report purport to detail appellant’s work limitations as they

existed in the fall of 1997, nearly a year after the ALJ’s decision. In reaching his

conclusion in the medical source statement that appellant was disabled, Dr. Seidl

relied on “new studies,” Aplt. App., Vol. I at 383, apparently including nerve

conduction studies performed on June 3, 1997.     Id. at 376.

       Appellant argues, however, that in reaching his opinion, Dr. Seidl also

relied on a 1997 MRI test that showed “stable” findings from a prior August 6,

1996, CT scan. Id. at 340. While this factor ties Dr. Seidl’s opinion back to

evidence received during the relevant period, the “stable” finding is problematic

for appellant. The ALJ had the August 6, 1996, CT scan results in front of him

when he made his decision, and he discounted them in light of the other evidence

concerning the severity of the alleged back impairment. New evidence does not

require a change in the ALJ’s decision if that decision remains supported by

substantial evidence.   O’Dell , 44 F.3d at 859. To the extent Dr. Seidl relied on

CT scan results that had already been discounted by the ALJ, the Appeals Council

could easily have found that Dr. Seidl’s opinion was not sufficiently supported

and consistent with other medical evidence to be entitled to controlling weight.

See 20 C.F.R. §§ 404.1527(d)(2) (treating physician rule); 416.927(d)(2) (same).




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      Finally, appellant includes several free-standing arguments about the ALJ’s

evaluation of his pain. These arguments were not presented in his district court

briefs. We therefore decline to consider them.

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

Colorado is AFFIRMED.

      Judge Kane dissents.


                                                   Entered for the Court



                                                   Terrence L. O’Brien
                                                   Circuit Judge




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