                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                     October 20, 2008
                     UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                       Clerk of Court
                            FOR THE TENTH CIRCUIT


    NIKKA J. CALLICOATT,

                Plaintiff-Appellant,

    v.                                                    No. 07-7096
                                                (D.C. No. 6:06-CV-00254-KEW)
    MICHAEL J. ASTRUE, Commissioner                       (E.D. Okla.)
    of the Social Security Administration,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before BRISCOE, PORFILIO, and BALDOCK, Circuit Judges.



         Appellant Nikka Callicoatt appeals from an order of the magistrate judge 1

affirming the Commissioner’s decision to deny her third application for social

security disability and supplemental security income benefits, arguing that the




*
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
1
       The magistrate judge entered judgment in this case by consent of the
parties. See 28 U.S.C. § 636(c).
administrative law judge (ALJ) improperly failed to consider her obesity in

combination with her other impairments. We affirm.

                                           I.

      Appellant was born in January 1963, making her forty-five years old now.

Aplt. App., Vol. II at 344. She has a high school education. Id. at 346. Her past

work included light and medium work as a convenience store cashier and house

cleaner. Id. at 365-66. She filed her third application for disability benefits in

January 2004, asserting a disability beginning on December 4, 2000, due to

“rheumatoid arthritis, diabetes, depression, reflux disease, and hypothyroidism.”

Id. at 18-19. An April 2004 summary of her application shows that she was 5’3”

tall and weighed 230 pounds, but this report also shows that she did not claim

obesity as one of the “illnesses, injuries or conditions that limit[ed her] ability to

work.” Id. at 95.

      After a hearing, the ALJ found at step two that appellant had severe

impairments of “diabetes mellitus, diabetic neuropathy, degenerative disc disease

of the lumbar spine, and degenerative joint disease of the bilateral hips[.]” Id.

at 26 (finding 3). He decided that her other claimed impairments, “rheumatoid

arthritis, hypothyroidism, reflux disease, and depression,” were not severe. Id.

at 20-21. He concluded at step three that her impairments did not meet or equal

any listings because “[n]o treating or examining physician has mentioned findings

equivalent in severity to the criteria of any listed impairment.” Id. at 21. He

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found at step four that appellant could perform a full range of sedentary work, but

that this precluded her return to her past relevant work. Id. at 25. At step five, he

relied conclusively on Rule 201.28 of the Medical-Vocational Guidelines,

20 C.F.R. Pt. 404, Subpt. P, App. 2, for the conclusion that there were other jobs

that appellant could do. See Aplt. App., Vol. II at 25-26. The ALJ did not

mention appellant’s weight in his decision. See id. at 18-27.

                                          II.

      This court “reviews the ALJ’s decision to determine whether the factual

findings are supported by substantial evidence in the record and whether the

correct legal standards were applied.” Salazar v. Barnhart, 468 F.3d 615, 621

(10th Cir. 2006). “The scope of our review, however, is limited to the issues the

claimant properly preserves in the district court and adequately presents on

appeal[.]” Berna v. Chater, 101 F.3d 631, 632 (10th Cir. 1996).

      Appellant challenges the ALJ’s decision in only one respect: she argues

that he committed reversible legal error by failing to consider her obesity in

combination with her other impairments, citing Social Security Ruling 02-01p,

2000 WL 628049, and the corresponding regulation at 20 C.F.R. Pt. 404,

Subpt. P, App. 1, § 1.00Q. Although she never specified obesity as one of the

conditions limiting her ability to work, she contends that under the ruling, the

regulation, and this court’s decisions in Grogan v. Barnhart, 399 F.3d 1257

(10th Cir. 2005), and Salazar, 468 F.3d 615, the ALJ had a duty to consider that

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condition because its presence was evident from references to her height and

weight in the medical record.

      There are, indeed, references to appellant’s high weight in the medical

records. We believe, however, that even if an ALJ has an affirmative legal duty

to consider a claimant’s obesity when it was not asserted by the claimant—a point

we need not and do not decide—the error was harmless in this case. See Hamlin

v. Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004) (stating that the ALJ’s decision

is reviewed “to determine whether the factual findings are supported by

substantial evidence in the record and whether the correct legal standards were

applied” and defining substantial evidence as “such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion”). Appellant

points to no evidence in the medical record (or in her hearing testimony for that

matter), showing that her obesity exacerbated her other impairments. Without

some evidence that her obesity was relevant to her other alleged impairments

during the relevant time frame, the ALJ was not required to consider the

claimant’s obesity.

      Moreover, the Commissioner argued that “[a]n ALJ is not obligated to

investigate a claim not presented at the time of application for benefits and not

offered at the hearing as a basis for disability.” Aplee. Br. at 13. Appellant

replied that she was “not arguing that the ALJ committed legal error by not

further developing the record to investigate the effects of Callicoatt’s obesity.”

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Aplt. Reply Br. at 3. We think this is a critical admission. We find no real

distinction between “investigating” her obesity and “developing” the record as to

her obesity as a matter of law. Any asserted difference is merely semantical.

Indeed, appellant’s admission makes moot and removes the issue of the

development of her obesity claim from our consideration.

      The judgment of the district court is AFFIRMED.


                                                    Entered for the Court



                                                    John C. Porfilio
                                                    Circuit Judge




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