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

                            FOR THE TENTH CIRCUIT                         May 20, 2013

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
KALEB F. PORTER,

             Plaintiff-Appellant,

v.                                                          No. 12-5178
                                                  (D.C. No. 4:11-CV-00404-FHM)
CAROLYN W. COLVIN, Acting                                   (N.D. Okla.)
Commissioner, Social Security
Administration,

             Defendant-Appellee.


                            ORDER AND JUDGMENT*


Before LUCERO, ANDERSON, and BALDOCK, Circuit Judges.



      Kaleb F. Porter (Claimant) appeals the district court’s affirmance of the

Commissioner’s decision to deny his application for supplemental security income

benefits based on childhood disability. Exercising jurisdiction under 42 U.S.C.

§ 405(g) and 28 U.S.C. § 1291, 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
       Claimant filed for benefits on October 20, 2003, claiming disability since

September 1999 due to removal of his spleen, pancreas problems, and a learning

disability. An administrative law judge (ALJ) found that Claimant was not disabled

and denied benefits, and the Appeals Council denied review, but the district court

remanded for further proceedings. A hearing before a different ALJ was held in

2008, and that ALJ also found that Claimant was not disabled and denied benefits.

The Appeals Council denied review, making the 2008 ALJ decision the final decision

for judicial review. The district court affirmed, and this appeal followed.

       In childhood disability cases, the Commissioner applies a three-step sequential

evaluation process. See 20 C.F.R. § 416.924(a). The first step is whether the

claimant is engaging in substantial gainful activity; the second step is whether the

claimant has a medically determinable severe impairment or combination of

impairments; and the third step is whether the claimant has an impairment or

combination of impairments that meets or medically equals the criteria of a listing or

that functionally equals a listing. See id. § 416.924(a)-(d). The ALJ determined that

Claimant was not engaging in substantial gainful activity. He assessed Claimant with

a severe combination of the following impairments: status post pancreatectomy,

status post splenectomy, status post right humerus fracture, a learning disorder, and

borderline intellectual functioning. Finally, the ALJ determined that Claimant does

not have an impairment or combination of impairments that meets or medically

equals a listing or that functionally equals a listing.


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      “We review the district court’s decision de novo and therefore must

independently determine whether the agency’s decision (1) is free from legal error

and (2) is supported by substantial evidence.” Briggs ex rel. Briggs v. Massanari,

248 F.3d 1235, 1237 (10th Cir. 2001) (internal quotation marks omitted).

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

adequate to support a conclusion.” Barnett v. Apfel, 231 F.3d 687, 689 (10th Cir.

2000) (internal quotation marks omitted). “We may neither reweigh the evidence nor

substitute our judgment for that of the agency.” Id. (internal quotation marks

omitted).

                         Meets or Medically Equals a Listing

      Claimant first argues that the ALJ erred in determining that his severe

combination of impairments does not meet or medically equal a listing. He focuses

on Listing 112.05 (mental retardation) and Listing 112.02 (organic mental disorders).

      Listing 112.05 is “[c]haracterized by significantly subaverage general

intellectual functioning with deficits in adaptive functioning.” 20 C.F.R. Pt. 404,

Subpt. P, App. 1, Pt. B, § 112.05. Claimant relies on Listing 112.05D, which has two

components: “[a] valid verbal, performance, or full scale IQ of 60 through 70 and a

physical or other mental impairment imposing an additional and significant limitation

of function.” Id. § 112.05D. Claimant points to his February 13, 2003, assessment

of a 69 performance IQ score and argues that the ALJ should have accepted this

score. But even assuming that Claimant’s 69 score would satisfy the first component


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of the listing, the basis of the ALJ’s decision was that Claimant did not satisfy both

components. That determination is supported by substantial evidence. As the ALJ

recognized, there are seven Childhood Disability Evaluation Forms in the file, and

“none of these medical experts felt the severity of the claimant’s impairments met or

equaled a listed impairment.” Admin. R. at 474. The ALJ also relied on the hearing

testimony of a medical expert, who opined that Claimant’s impairments did not meet

or medically equal a listed impairment. Although Claimant highlights the evidence

supporting his position, we cannot “reweigh the evidence []or substitute our

judgment for that of the agency.” Barnett, 231 F.3d at 689 (internal quotation marks

omitted).

      Claimant also asserts that he meets or medically equals subsections B2b and

B2d of Listing 112.02. Listing 112.02 requires a claimant to show medical evidence

to “demonstrate or support the presence of an organic factor judged to be

etiologically related to the abnormal mental state and associated deficit or loss of

specific cognitive abilities, or affective changes, or loss of previously acquired

functional abilities.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, Pt. B, § 112.02. The

listing is met when a claimant satisfies both subsection A, which requires a claimant

to show “[m]edically documented persistence of at least one” of a list of conditions

or symptoms, and subsection B, which requires a claimant to show “[m]arked

impairment[s]” or “[m]arked difficulties” in at least two of four specified areas. Id.

§ 112.02A, B.


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      Claimant alleges that he satisfies the requirement of showing an “organic

factor” because he suffered a traumatic brain injury (TBI) in a motor vehicle accident

at age three and again in a bicycle accident several years later. But Claimant’s record

citations do not support a medical diagnosis of or treatment for a TBI. The bulk of

the citations relate to the motor vehicle accident, and contrary to Claimant’s

allegations, those records show normal results for a CT scan of the head. See Admin.

R. at 279, 286, 303. Further, the discharge summary does not reflect a TBI

diagnosis. See id. at 287. Claimant’s other two citations refer to a psychologist’s

reports, in which the psychologist recited a TBI as a part of the medical history that

was told to him. See id. at 419, 519. This is not medical evidence that Claimant

actually suffered a TBI.

      Beyond failing to demonstrate an “organic factor,” Claimant fails to satisfy

Listing 112.02 for another reason: his opening brief makes no attempt to identify

which item(s) in subsection A he believes that he has satisfied. Instead, the opening

brief focuses on subsections B2b and B2d. His attempts to remedy this omission in

his reply brief come too late because arguments made for the first time in a reply

brief are waived. See Reedy v. Werholtz, 660 F.3d 1270, 1274 (10th Cir. 2011).

      Claimant also has waived his remaining arguments about whether he meets or

equals a listing. His conclusory statement that he meets Listings 112.05D, E, and F

because he meets Listing 112.02B2d does not adequately brief the issue. See

Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012) (“We will consider


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and discuss only those . . . contentions that have been adequately briefed for our

review.”); see also Reedy, 660 F.3d at 1274 (“[W]e expect attorneys appearing before

this court to state the issues on appeal expressly and clearly, with theories adequately

identified and supported with proper argument.”). As for his assertion that he is

entitled to a closed period of benefits, Claimant acknowledges that the district court

considered the argument waived because it was “too poorly developed to be

considered.” Aplt. Opening Br. at 22. We do not consider arguments that were not

preserved in the district court. See Berna v. Chater, 101 F.3d 631, 632 (10th Cir.

1996) (“The scope of our review . . . is limited to the issues the claimant properly

preserves in the district court and adequately presents on appeal.”).

                            Functionally Equals a Listing

      Focusing on two points, Claimant next argues that the ALJ erred in concluding

that his severe combination of impairments does not functionally equal a listing.

First, Claimant states that the most recent evaluator did not use a childhood disability

mental assessment form, but the ALJ did not contact the evaluator for more

information. Second, he asserts that the ALJ “interfered with Claimant’s due process

rights by applying the wrong standard of proof.” Aplt. Opening Br. at 24.

      To the extent that the use of the adult mental assessment form was error,

Claimant has failed to show how the error impacted the ALJ’s analysis. He states

that the form “does not contain all the information needed to make a decision,” id. at

23, but he provides no explanation of differences in the adult and child forms that


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would undermine the ALJ’s decision. Moreover, the record contained a written

narrative from the evaluator, as well as seven Childhood Disability Evaluation Forms

and expert testimony, all of which provided the ALJ with information.

      Claimant also fails to explain the basis of his contention that the ALJ applied

the wrong standard of proof, and our review reveals nothing to show that the ALJ

erred in identifying or applying the relevant legal standards. The ALJ correctly noted

the three-step process set forth in § 416.924, and he applied each step. With regard

to functional equivalence, he identified and analyzed each of the six domains set

forth in 20 C.F.R. § 416.926a(b)(1).

                                 Credibility Evaluation

      Claimant’s final arguments involve the ALJ’s determination that the testimony

of Claimant’s mother was not entirely credible. He complains that the ALJ did not

analyze the proper credibility factors and did not link his credibility finding to the

evidence. He also asserts that the ALJ’s credibility determination is not supported by

substantial evidence.

      “‘Credibility determinations are peculiarly the province of the finder of fact,

and we will not upset such determinations when supported by substantial evidence.’”

Hackett v. Barnhart, 395 F.3d 1168, 1173 (10th Cir. 2005) (quoting Kepler v. Chater,

68 F.3d 387, 391 (10th Cir. 1995)). “However, ‘findings as to credibility should be

closely and affirmatively linked to substantial evidence and not just a conclusion in

the guise of findings.’” Id. (quoting Kepler, 68 F.3d at 391 (brackets omitted)).


                                          -7-
      The ALJ sufficiently linked his evaluation of Ms. Porter’s credibility to

substantial record evidence. He offered several reasons for his assessment,

identifying various pieces of record evidence indicating that Claimant’s symptoms

were not as severe as reported by Ms. Porter, including a medical report that she

“seemed to be ‘stretching complaints a little.’” Admin. R. at 476 (quoting Exhibit

17F). “Contrary to plaintiff’s view, our opinion in Kepler does not require a

formalistic factor-by-factor recitation of the evidence. So long as the ALJ sets forth

the specific evidence he relies on in evaluating the claimant’s credibility, the dictates

of Kepler are satisfied.” Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000).

      The judgment of the district court is affirmed.

                                                Entered for the Court


                                                Bobby R. Baldock
                                                Circuit Judge




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