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Allman v. Colvin

United States Court of Appeals, Tenth Circuit

February 23, 2016

MICHAEL ALLMAN, Plaintiff - Appellant,
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant - Appellee

Appeal from the United States District Court for the Eastern District of Oklahoma. (D.C. No. 6:13-CV-00495-FHS-KEW).

Submitted on the briefs:[*]

Miles L. Mitzner, Mitzner Law Firm, PLLC, Edmond, Oklahoma, for Plaintiff-Appellant.

Mark F. Green, United States Attorney; Cheryl R. Triplett, Assistant United States Attorney, Muskogee, Oklahoma; Michael McGaughran, Regional Chief Counsel, Region VI; Christopher John Carillo, Special Assistant United States Attorney, Social Security Administration, Dallas, Texas, for Defendant-Appellee.

Before BACHARACH, O'BRIEN, and PHILLIPS, Circuit Judges.


PHILLIPS, Circuit Judge.

Michael Allman applied for Social Security disability benefits, claiming he could not work due to spina bifida, a shunt in his brain, chronic back pain, headaches, depression, and anxiety. An administrative law judge (ALJ) concluded that Mr. Allman's residual functional capacity (RFC) permitted him to perform a number of jobs that exist in significant numbers in the national economy, defeating his disability claim. At step two of the applicable five-step sequential evaluation,[1] the ALJ determined that Mr. Allman's headaches were not a " severe impairment" within the meaning of the Social Security Act and its corresponding regulations. See Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009). Nevertheless, the ALJ discussed and considered Mr. Allman's headaches in assessing his RFC to work. In crafting the RFC, the ALJ also gave " little weight" to the opinion of treating physician Erica Sun, D.O. Appellant's App. vol. I at 51.

After the ALJ denied his claim, the Appeals Council denied review and the district court affirmed after adopting the magistrate judge's report and recommendation and overruling Mr. Allman's objections. The district court concluded that Mr. Allman had failed to demonstrate that his headaches qualified as a severe impairment and that the ALJ had provided sufficient bases for not assigning more weight to Dr. Sun's opinion. On appeal, Mr. Allman challenges, among other things, the district court's findings regarding the ALJ's determinations at steps two and four. Exercising jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g), we affirm.


Initially, we note that Mr. Allman properly preserved for review only two of the arguments he presents on appeal. Specifically, Mr. Allman's objections to the magistrate judge's recommendations do not include the following general arguments made in his opening brief before us: (1) that the vocational expert's testimony conflicts with the Dictionary of Occupational Titles, and (2) that the ALJ used the term " stable" to indicate that Mr. Allman's impairments were not severe.

" The scope of our review . . . 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). We have adopted a firm-waiver rule providing that the " failure to make timely objection[s]" to a magistrate judge's recommendations " waives appellate review of both factual and legal questions." Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010) (quoting Wirsching v. Colorado, 360 F.3d 1191, 1197 (10th Cir. 2004)). " There are two exceptions when the firm waiver rule does not apply: 'when (1) a pro se litigant has not been informed of the time period for objecting and the consequences of failing to object, or when (2) the interests of justice require review.'" Duffield v. Jackson, 545 F.3d 1234, 1237 (10th Cir. 2008) (quoting Morales-Fernandez v. INS, 418 F.3d 1116, 1119 (10th Cir. 2005) (internal quotation marks omitted)). Here, neither exception applies because Mr. Allman has counsel and he does not justify how the interests of justice compel review. Because Mr. Allman has not adequately presented these arguments to the district court, they are waived.

Additionally, Mr. Allman failed to argue before the district court that the ALJ's findings under Listing 12.05(C), 20 C.F.R. Pt. 404, Subpt. P, App. 1, and his mental-RFC findings were unsupported by substantial evidence. See Appellant's Opening Br. at 10-18 (nesting this argument within his first argument that the ALJ did not properly consider his headaches). If a claimant fails to present an issue to the district court, the issue is forfeited unless compelling reasons dictate that the forfeiture be excused. See Crow v. Shalala, 40 F.3d 323, 324 (10th Cir. 1994) (" Absent compelling reasons, we do not consider arguments that were not presented to the district court." ). Here, Mr. Allman offers no justification at all, much less any compelling reason, for his failure to preserve this issue. Accordingly, Mr. Allman forfeits this argument.


Regarding the issues he did raise in the district court, Mr. Allman argues that the ALJ erred in not finding that his headaches were a severe impairment at step two and that the ALJ failed to sufficiently consider his headaches in combination with his other severe impairments at step four. He also contends that the ALJ erred in according little weight to Dr. Sun's questionnaire at step four. We review whether substantial evidence supports the factual ...

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