                                                           FILED
                                               United States Court of Appeals
                UNITED STATES COURT OF APPEALS         Tenth Circuit

                       FOR THE TENTH CIRCUIT                        August 2, 2018
                     _________________________________
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court
LEE OTERO,

       Plaintiff-Appellant,

v.                                                 No. 17-4172
                                           (D.C. No. 2:16-CV-00274-DN)
COMMISSIONER, SSA,                                   (D. Utah)

       Defendant-Appellee.
                   _________________________________

                        ORDER AND JUDGMENT *
                     _________________________________

Before BACHARACH, PHILLIPS, and McHUGH, Circuit Judges.
               _________________________________

      This appeal involves a procedural challenge to the Social Security

Administration’s denial of disability benefits. We reject the procedural

challenge and affirm. 1


*
      This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But our order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
1
      Mr. Otero is pro se and requests oral argument, stating that this is the
only way that he can adequately express his points. We are sympathetic
with Mr. Otero’s difficulty but are constrained to deny the request. Oral
argument is designed to flesh out the arguments presented in the briefs, not
to create a forum for new arguments. For the arguments presented in the
briefs, oral argument would not materially aid our consideration. Thus, we
have decided the appeal based on the briefs. See Fed. R. App. P. 34(a)(2);
10th Cir. R. 34.1(G).
     Plaintiff Mr. Lee Otero alleged that he was disabled, and the

administrative law judge conducted an in-person hearing. The judge later

found that Mr. Otero was not disabled, and the Appeals Council denied

review. Mr. Otero brought a federal suit to challenge the administrative

law judge’s finding. In that suit, a federal magistrate judge recommended

that we affirm and pointed out to Mr. Otero that a failure to object within

fourteen days could constitute a waiver of further review. Mr. Otero did

not object, and the district court adopted the magistrate judge’s

recommendation.

     On appeal, Mr. Otero contends that the proceedings were unfair

because he had expected a telephonic hearing and received an in-person

hearing instead. We reject this contention: Mr. Otero waived this

contention by failing to object to the magistrate judge’s recommendation,

and the procedures did not result in prejudice to Mr. Otero.

     The failure to object proved fatal because we have adopted a firm-

waiver rule, declining to entertain appellate arguments when the aggrieved

party fails to timely object to the magistrate judge’s recommendation.

Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010). An exception

exists, allowing us to consider the appellate argument when appropriate in

the interests of justice. Id. But Mr. Otero has not invoked this exception or

provided a reason to apply it.



                                         2
      Even if Mr. Otero had not waived his appellate argument, we would

reject the procedural challenge. For this challenge, Mr. Otero had a burden

to show prejudice. Mays v. Colvin, 739 F.3d 569, 573 (10th Cir. 2014). He

failed to satisfy this burden. He states only that he expected a telephonic

hearing and instead received an in-person hearing. Typically, an in-person

hearing would provide a greater opportunity for Mr. Otero’s participation

than a telephonic hearing. Thus, it appears that the opportunity for an in-

person hearing benefited Mr. Otero.

      Mr. Otero asserts that he needed “a real courtroom with human

beings in it.” Appellant’s Opening Br. at 2. Our record does not reflect the

layout of the administrative law judge’s hearing room, but we have no

reason to believe that the layout interfered with Mr. Otero’s opportunity to

present evidence or argument.

      At the hearing, the administrative law judge offered to answer

questions and to postpone the hearing for Mr. Otero to obtain an attorney,

explaining that attorneys would take the case on a contingency fee

(avoiding any expense to Mr. Otero). In addition, Mr. Otero participated

fully in the hearing. Thus, even if Mr. Otero had not waived his appellate

argument, it would have failed on the merits based on the absence of

prejudice.




                                         3
Affirmed.

            Entered for the Court



            Robert E. Bacharach
            Circuit Judge




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