McGowan v. Apfel, (10th Cir. 1999)

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UNITED

STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

SAMUEL L. MCGOWAN,

Plaintiff-Appellant,

v.

KENNETH S. APFEL, Commissioner

of Social Security Administration,

Defendant-Appellee.

No.
name="1">98-7120

(D.C. No. 97-CV-87-S)

(E.D. Okla.)

ORDER AND JUDGMENT
name="txt*">(*)

Before BALDOCK, BARRETT, and

HENRY, Circuit Judges.

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.

Appellant Samuel McGowan appeals the district court's affirmance of the

final decision of the Commissioner of Social Security denying appellant's

application for supplemental security income (SSI) benefits. We affirm.

On August 22, 1991, appellant filed an application for SSI benefits,

alleging an inability to work due to kidney stone disease and Boerhives Syndrome

(ruptured esophagus). After a hearing, appellant was found not disabled because

he could perform a significant number of light and sedentary jobs in the national

economy. The Appeals Council remanded the case for further consideration of

appellant's possible mental impairment and certain other evidence. At a second

hearing, appellant testified that he was addicted to painkillers and that he

supported his $30 to $60 a day habit by stealing and selling goods. The

administrative law judge (ALJ) concluded that appellant was engaged in

substantial gainful activity and therefore was not disabled. The Appeals Council

denied review, making the decision final, and the district court affirmed.

On appeal, appellant argues that because he only testified to one year of

supporting his drug habit through theft, the ALJ erred in concluding that appellant

engaged in substantial gainful activity throughout the period for which he was

seeking benefits. Because appellant did not raise this argument to either the

magistrate judge or the Appeals Council, we will not consider it on appeal. See

Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (holding argument raised

for the first time in objections to magistrate judge's findings and recommendation

is deemed waived); James v. Chater, 96 F.3d 1341, 1344 (10th Cir. 1996)

(holding issue not raised to the Appeals Council is deemed waived).

Even if we were to consider the argument, however, it would fail, because

appellant's report of his illegal activities to consulting psychologist Green did not

contain any such temporal limit, see Appellant's App. II at 399, and because the

rules state simply that a claimant who is performing substantial gainful activity,

as defined, is considered not disabled without requiring that the activity have

been performed during the entire pendency of the claim. See 20 C.F.R. § 416.920(a) ("If you are doing substantial gainful activity, we will determine

that you are not disabled.") & (b) ("If you are [performing] substantial gainful

activity, we will find that you are not disabled regardless of your medical

condition or your . . . work experience.").

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

of Oklahoma is AFFIRMED.

Entered for the Court

Robert H. Henry

Circuit Judge

FOOTNOTES

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*. 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.

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