throbber
DAVID VITITOE,
`
`FILED
`United States Court of Appeals
`Tenth Circuit
`UNITED STATES COURT OF APPEALS
`
`
`November 29, 2013
`FOR THE TENTH CIRCUIT
`
`Elisabeth A. Shumaker
`Clerk of Court
`
`
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`
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`
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`
`
`No. 12-1484
`(D.C. No. 1:11-CV-02996-LTB)
`(D. Colo.)
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`
`
`Plaintiff-Appellant,
`
`
`v.
`
`CAROLYN W. COLVIN, Acting
`Commissioner of Social Security,
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`
`
`Defendant-Appellee.
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`
`
`ORDER AND JUDGMENT*
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`
`
`
`
`
`
`Before LUCERO, Circuit Judge, BRORBY, Senior Circuit Judge, and
`BACHARACH, Circuit Judge.
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`
`
`David Vititoe appeals from the district court’s judgment affirming the
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`Commissioner of Social Security’s decision to deny his application for disability
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`insurance benefits. Exercising jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C.
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`§ 1291, we affirm.
`
`
`*
`After examining the briefs and appellate record, this panel has determined
`unanimously that oral argument would not materially assist the determination of this
`appeal. See Fed. R. App. P. 34(a)(2); 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.
`
`
`
`

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`
`
`I.
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`
`
`BACKGROUND
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`A. Medical evidence
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`Mr. Vititoe was born in June 1971. He applied for disability insurance
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`benefits in December 2007, and his date last insured (DLI) was June 30, 2008. He
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`based his disability claim on memory loss due to injuries sustained on October 26,
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`2007, when his motorcycle collided with a large truck. He suffered multiple facial
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`and cranial fractures and a traumatic brain injury. He was in a coma for nearly a
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`month, had a number of surgeries, and received in- and out-patient rehabilitative
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`therapy at Spalding Rehabilitation Hospital.
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`On January 7, 2008, after his time at Spalding ended, Mr. Vititoe saw a
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`rehabilitation physician, Dr. David Mulica, who opined that “he has limited insight
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`into his deficits” and “is probably more impaired than he appears today.” Tr. at 355.1
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`Mr. Vititoe was emotionally labile but could recall recent presidents back to Gerald
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`Ford, knew that Dick Cheney was then Vice President, correctly performed single
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`calculations and explained similarities for two objects, and was able to recall one out
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`of three objects at three minutes. Physically, Mr. Vititoe’s cranial nerves were intact;
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`his strength, bulk, and tone were normal; his reflexes were symmetric; his
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`finger-to-nose and heel-to-shin tests were normal; he could perform tandem walking;
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`
`1
`We cite to the agency transcript page number for all citations to the agency’s
`record because the parties do so. However, we cite to our record page number when
`referring to documents not part of the agency record, such as documents filed only in
`the district court.
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`and his gait was grossly normal. Dr. Mulica increased Mr. Vititoe’s trazodone (an
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`antidepressant), continued him on Aracept (for memory), and recommended speech
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`therapy from Ellen Minick. He asked Mr. Vititoe to follow up with him in April.
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`Mr. Vititoe saw Ms. Minick for speech therapy several times between
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`January 8 and February 19, 2008. In the progress note from the last visit, Ms. Minick
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`stated that Mr. Vititoe “exhibited excellent planning, self-monitoring and
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`self-correction. He was able to stay on task even with numerous distracters. He was
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`able to complete the task accurately and timely.” Id. at 345.
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`Mr. Vititoe saw Dr. Mulica again on April 21, 2008, complaining about anger
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`and temper problems and some ankle pain, but he stated that he “seems to be getting
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`better.” Id. at 484. Dr. Mulica suggested anger management and prescribed Celexa
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`for depression. Mr. Vititoe followed up by telephone on May 21, 2008, stating that
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`he was “less emotionally labile on Celexa” and that his leg buckled under him. Id.
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`at 769. Mr. Vititoe next saw Dr. Mulica on June 12, 2008, complaining of left ankle
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`pain and left thigh numbness. Dr. Mulica noted that Mr. Vititoe scored “moderate on
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`dep[ression] screen” and increased the dosage of Celexa. Id. at 764. Dr. Mulica’s
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`telephone follow-up with Mr. Vititoe on July 10, 2008, showed he was doing well on
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`the increased dosage. Dr. Mulica next saw Mr. Vititoe on August 13, 2008, when
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`Mr. Vititoe complained that his “depression hits harder at times,” he was
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`“experiencing word finding issues,” and he “[n]eeds to make lists.” Id. at 761.
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`Dr. Vititoe thought these complaints were “not surprising” but “consistent with [the]
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`

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`
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`original injury.” Id. He increased the Celexa and asked Mr. Vititoe to call him in a
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`week. Mr. Vititoe’s next contact with Dr. Mulica was by telephone on December 29,
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`2008, when he said he was “[s]till having problems with memory and cognition.” Id.
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`at 732. Dr. Mulica “[e]ncouraged” Mr. Vititoe to “contact speech[]” and prescribed
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`Amantadine for memory and cognition. Id.
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`Dr. Mulica did not hear from or see Mr. Vititoe again until an office visit on
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`March 24, 2010. Mr. Vititoe stated he had been in prison for much of the preceding
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`year due to a parole violation and was “now developing increased anger.” Id. at 714.
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`Dr. Mulica prescribed Ativan for anxiety and asked Mr. Vititoe to follow up by
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`phone in three weeks. During that follow-up, on April 14, 2010, Dr. Mulica
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`increased the dosage of Ativan. Id. at 712.
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`On April 22, 2010, Dr. Mulica completed a Functional Capacity Questionnaire
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`(FCQ) reflecting his opinion that, due to the brain injury and impaired cognition,
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`Mr. Vititoe had severe physical and mental limitations and would miss more than
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`four days of work each month. Those limitations included rarely lifting no more than
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`ten pounds; standing/walking two hours and sitting four hours per eight-hour
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`workday; marked restrictions in maintaining concentration, persistence, and pace;
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`and repeated episodes of decompensation within a twelve-month period, each of at
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`least two weeks’ duration. Id. at 679-80.
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`Mr. Vititoe was also examined, at the Commissioner’s request, by Brett
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`Valette, Ph.D., and Dr. Laura Moran, M.D. Dr. Valette performed a psychological
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`
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`examination on April 21, 2008, administering tests on which Mr. Vititoe performed
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`in the average range for most memory functions but above average in visual
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`immediate memory. He had a full-scale IQ of 98 and a GAF (Global Assessment of
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`Functioning) score of 70-75.2 Dr. Valette diagnosed him with a nonspecific cognitive
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`disorder and stated that although Mr. Vititoe’s memory function may have been
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`higher before his accident, it was still in the average range.
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`Dr. Moran performed a physical examination of Mr. Vititoe on May 19, 2008.
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`Mr. Vititoe exhibited an inability to walk on his toes, decreased right hip strength,
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`and numbness of his right anterior thigh. Dr. Moran noted that although Mr. Vititoe
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`complained of some ankle and lower back pain, the examination findings of those
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`areas were normal. She stated that she would not limit his physical activities.3
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`B.
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`The agency’s decision
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`After Mr. Vititoe’s disability application was denied initially and on review,
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`an Administrative Law Judge (ALJ) held a hearing at which Mr. Vititoe was
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`2
`A GAF score of 61-70 indicates: “Some mild symptoms (e.g., depressed mood
`and mild insomnia), OR some difficulty in social, occupational, or school functioning
`(e.g., occasional truancy, or theft within the household), but generally functioning
`pretty well, has some meaningful interpersonal relationships.” Am. Psychiatric Ass’n
`Diagnostic & Statistical Manual of Mental Disorders 34 (Text Revision 4th ed.
`2000). A GAF score of 71-80 indicates: “If symptoms are present, they are transient
`and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after
`family argument); no more than slight impairment in social, occupational, or school
`functioning (e.g., temporarily falling behind in schoolwork).” Id.
`3
`We will discuss any additional relevant medical evidence in connection with
`our analysis of the issues raised in this appeal.
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`
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`represented by counsel. Mr. Vititoe, his wife, and a vocational expert (VE) testified.
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`Among other things, Mr. Vititoe stated that he forgets things like appointments and
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`what he’s read; has no sense of smell; gets shooting pain in his leg, back, and
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`shoulder when he sits or stands too long; has poor impulse control; cannot manage
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`his personal finances; and can sit for only ten or fifteen minutes before having to lie
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`down for an hour or an hour-and-a-half. He also said that his medicines make him
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`irritable and sap his energy, his right leg is numb and buckles if he does not support
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`himself, and he cannot look up without getting dizzy. He further noted that shoe
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`inserts Dr. Mulica had given him for right knee pain had caused more problems, and
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`that he had two surgeries for an airway scar caused by a breathing tube used during
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`the month following his accident.
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`In a decision dated September 20, 2010, the ALJ denied benefits. The ALJ
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`found that Mr. Vititoe had two severe impairments—“status-post multiple skull and
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`facial fractures requiring two repair surgeries/craniotomies and resulting in mild
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`cognitive disorder, and mild degenerative lumbar disc disease,” id. at 23—but neither
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`impairment met or medically equaled one of the impairments listed in 20 C.F.R.
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`Part 404, Subpart P, Appendix 1 (the Listings). The ALJ next found that Mr. Vititoe
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`had the residual functional capacity (RFC) to perform light work with a variety of
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`limitations, including that he not be required (1) “to sit for more than 45 minutes at
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`one time without the opportunity to stand,” (2) “to do more than the lower-end of
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`detailed instructions,” or (3) “to have more than superficial interaction with the
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`public.” Tr. at 25. In reaching that RFC, the ALJ rejected the more severe
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`limitations expressed in Dr. Mulica’s FCQ. Based on that RFC and the VE’s
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`testimony, the ALJ found that Mr. Vititoe could not have returned to his past relevant
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`work through his DLI. The ALJ next found that Mr. Vititoe could not perform the
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`full range of light work due to the noted limitations, and therefore the
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`Medical-Vocational rules (the Grids) could not be used to direct a finding that he was
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`not disabled. The ALJ then determined, based on the VE’s testimony, that
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`Mr. Vititoe could have performed other work prior to his DLI that existed in
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`significant numbers in the national economy, such as photocopy machine operator
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`and office helper. Accordingly, the ALJ found Mr. Vititoe not disabled at step five
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`of the sequential process set forth in 20 C.F.R. § 404.1520(a)(4).
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`
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`Through counsel, Mr. Vititoe appealed to the Appeals Council and supplied
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`additional evidence for the Council’s consideration. Only one piece of that evidence
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`is germane to the issues properly before us in this appeal—a letter dated
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`November 11, 2010, from Mr. Vititoe’s chiropractor, Paula Santistevan, stating that
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`Mr. Vititoe had a variety of physical and mental issues that precluded him from
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`working. In considering this letter, the Council pointed out that the ALJ had decided
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`the case through Mr. Vititoe’s DLI, June 30, 2008, but Ms. Santistevan’s letter
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`concerned a later period of time. Therefore, the Council concluded it did not affect
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`the disability determination and did not make it part of the administrative record.
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`C.
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`The district court’s decision
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`Mr. Vititoe filed a pro se complaint in the district court seeking review of the
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`Commissioner’s decision. In addition to his substantive arguments, he asked (albeit
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`in his reply brief) for a remand under sentence six of 42 U.S.C. § 405(g) for
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`consideration of medical reports from Dr. Alan Weintraub, M.D., and James Berry,
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`Ph.D., that he had attached to his opening brief.4 Both reports contained extensive
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`examination findings, and both sources stated that Mr. Vititoe was incapable of
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`working, primarily due to his cognitive limitations. The district court affirmed the
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`ALJ’s decision and denied the remand request because the reports were completed in
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`2012 by medical sources who had not treated Mr. Vititoe prior to his DLI. The court
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`concluded that the reports did not relate to the relevant time period and therefore
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`were not material to whether Mr. Vititoe was disabled prior to his DLI. This appeal
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`followed.
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`II. DISCUSSION
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`
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`“We review the district court’s decision de novo and independently determine
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`whether the ALJ’s decision is free from legal error and supported by substantial
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`evidence.” Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005).
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`“Substantial evidence is such relevant evidence as a reasonable mind might accept as
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`4
`In relevant part, sentence six of § 405(g) provides that a court “may at any
`time order additional evidence to be taken before the Commissioner of Social
`Security, but only upon a showing that there is new evidence which is material and
`that there is good cause for the failure to incorporate such evidence in a prior
`proceeding.”
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`adequate to support a conclusion.” Barnett v. Apfel, 231 F.3d 687, 689 (10th Cir.
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`2000) (internal quotation marks omitted). We cannot “reweigh the evidence” or
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`“substitute our judgment for that of the agency.” Id. (internal quotation marks
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`omitted). Because Mr. Vititoe is pro se, we afford his filings a liberal construction,
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`but we do not act as his advocate. See Yang v. Archuleta, 525 F.3d 925, 927 n.1
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`(10th Cir. 2008).
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`
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`An important requirement in this case is that Mr. Vititoe had to show he was
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`disabled on or before his DLI—June 30, 2008. See 20 C.F.R. § 404.131(b) (“To
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`establish a period of disability, you must have disability insured status in the quarter
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`in which you become disabled or in a later quarter in which you are disabled.”);
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`Potter v. Sec’y of Health & Human Servs., 905 F.2d 1346, 1348-49 (10th Cir. 1990)
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`(stating that “the relevant analysis is whether the claimant was actually disabled prior
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`to the expiration of [his] insured status”). As relevant here, disability means
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`“inability to engage in any substantial gainful activity by reason of any medically
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`determinable physical or mental impairment which can be expected to result in death
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`or which has lasted or can be expected to last for a continuous period of not less than
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`12 months.” 42 U.S.C. § 423(d)(1)(A). The statute’s twelve-month “duration
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`requirement applies to the claimant’s inability to engage in any substantial gainful
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`activity, and not just his underlying impairment.” Lax v. Astrue, 489 F.3d 1080, 1084
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`(10th Cir. 2007). Thus, in Mr. Vititoe’s case, he had to show that on or before
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`June 30, 2008, he was unable to engage in any substantial gainful activity for a
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`continuous twelve-month period, not simply that he had sustained a brain injury on or
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`before that date which may have led to such an inability that began after that date.
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`
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`Mr. Vititoe first argues that the ALJ did not properly evaluate the opinions of
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`two treating sources, Dr. Mulica and Dr. Mark Matthews, M.D. This argument is not
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`well developed, but as to Dr. Mulica, we read it as taking issue with the ALJ’s
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`rejection of the opinion expressed in the FCQ Dr. Mulica completed on April 22,
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`2010. If accurate, the limitations in that opinion would render Mr. Vititoe disabled
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`under the Social Security Act. But the ALJ rejected that opinion because it was
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`inconsistent with Dr. Mulica’s treatment records from January through April 2008,
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`which showed that Mr. Vititoe did not report any significant cognitive deficits, and
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`from March 2010, which showed that Mr. Vititoe complained only of increased anger
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`and provided no physical or mental limitations. The ALJ also found that there were
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`no significant mental status findings in Dr. Mulica’s treatment records to support
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`such serious functional limitations, and the FCQ was authored long after
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`Mr. Vititoe’s DLI. Accordingly, the ALJ found that the opinion was entitled to no
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`weight with regard to whether Mr. Vititoe was disabled on or before his DLI.
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`
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`We see no error. Under 20 C.F.R. § 404.1527(c), a number of factors bear on
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`an ALJ’s consideration of how much weight to afford the opinion of a treating
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`physician such as Dr. Mulica. We have set forth those factors as
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`(1) the length of the treatment relationship and the frequency of
`examination; (2) the nature and extent of the treatment relationship,
`including the treatment provided and the kind of examination or testing
`performed; (3) the degree to which the physician’s opinion is supported
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`by relevant evidence; (4) consistency between the opinion and the
`record as a whole; (5) whether or not the physician is a specialist in the
`area upon which an opinion is rendered; and (6) other factors brought to
`the ALJ’s attention which tend to support or contradict the opinion.
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`Watkins v. Barnhart, 350 F.3d 1297, 1301 (10th Cir. 2003) (quotation omitted). An
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`ALJ need not expressly apply each of the factors in his decision, but must only give
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`“good reasons in his decision for the weight he gave to the treating sources’
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`opinions.” Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007). The ALJ did
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`precisely that here, and our review of the record indicates that the stated reasons are
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`supported by substantial evidence.
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`As we understand it, Mr. Vititoe’s argument regarding Dr. Matthews, who was
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`his primary care physician since 2003, concerns Dr. Matthews’s opinion that
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`although Mr. Vititoe had made a near-complete physical recovery, “[h]e has
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`significant memory problems with trouble finding words and ideas[,] has poor
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`insight, is often impulsive, and is emotionally labile,” which makes him “prone to
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`outbursts of anger and prone to depression.” Tr. at 941. The opinion was expressed
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`in a letter dated April 27, 2009. Although the ALJ did not address this opinion in his
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`decision, the district court determined, and we agree, that the opinion provides little
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`meaningful analysis of Mr. Vititoe’s mental functional abilities and does not require
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`remand. First, Mr. Vititoe has not shown, nor do we see, how the ALJ’s failure to
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`address this opinion was harmful. See Shinseki v. Sanders, 556 U.S. 396, 409 (2009)
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`(“[T]he burden of showing that an error is harmful normally falls upon the party
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`attacking the agency’s determination.”). The opinion is dated after Mr. Vititoe’s
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`DLI, is conclusory, and provides no insight into the severity of the mental limitations
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`or how they might affect Mr. Vititoe’s ability to work. It therefore does not conflict
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`with the ALJ’s RFC finding. Second, the opinion is unsupported by any of
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`Dr. Matthews’s treatment records, most of which concern matters of physical health
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`and none of which reflect any examination findings concerning Mr. Vititoe’s mental
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`abilities or emotional propensities. Third, the opinion is contrary to other substantial
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`record evidence predating Mr. Vititoe’s DLI that indicates that his mental
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`impairments were not, at that time, disabling. The ALJ discussed and properly relied
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`on that evidence, including the reports of Ms. Minnick, Dr. Valette, and Dr. Moran.
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`Therefore, Dr. Matthews’s opinion is controverted and not significantly probative,
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`and the ALJ was not required to discuss it. See Clifton v. Chater, 79 F.3d 1007,
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`1009-10 (10th Cir. 1996) (stating that “an ALJ is not required to discuss every piece
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`of evidence” but must discuss only the evidence supporting the decision and “the
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`uncontroverted evidence he chooses not to rely upon, as well as significantly
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`probative evidence he rejects”); see also Howard v. Barnhart, 379 F.3d 945, 947
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`(10th Cir. 2004) (“When the ALJ does not need to reject or weigh evidence
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`unfavorably in order to determine a claimant’s RFC, the need for express analysis is
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`weakened.”).
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`Mr. Vititoe also argues that the Appeals Council erred in determining that
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`Ms. Santistevan’s November 11, 2010, opinion was not related to his condition prior
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`to his DLI and therefore did not affect the disability determination. We see no error.
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`The opinion does not purport to be retrospective to the period before Mr. Vititoe’s
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`DLI, nor do we see how it could be so construed; although Mr. Vititoe states that he
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`had been a patient of Ms. Santistevan’s since 2001, she did not begin treating him for
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`his post-accident injuries until May 2010, nearly two years after his DLI. The
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`allegation that Mr. Vititoe could not afford to see Ms. Santistevan post-accident until
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`he obtained third-party financial assistance does not alter that fact.
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`
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`As he did in the district court, Mr. Vititoe attaches the reports from
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`Dr. Weintraub and Dr. Berry to his opening appellate brief and, in his reply brief,
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`asks for a sentence-six remand. And as with Ms. Santistevan, Mr. Vititoe states that
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`he was unable to obtain these additional reports earlier due to lack of funds.
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`Although we sympathize with Mr. Vititoe’s situation, the fact remains that the
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`Weintraub and Berry reports do not provide any evidence of Mr. Vititoe’s functional
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`abilities prior to his DLI and therefore would not alter the Commissioner’s decision.
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`Accordingly, remand is not warranted. See Hargis v. Sullivan, 945 F.2d 1482, 1493
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`(10th Cir. 1991) (stating that sentence-six remand is appropriate if proffered evidence
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`relates to relevant time period and would have changed the disability determination).
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`We reach the same conclusion regarding two other letters attached to the opening
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`brief, one from Dr. Trudi Wilson, M.D., describing Mr. Vititoe’s airway surgeries
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`between September 2008 and December 2011, and one from Dr. Matthews that is
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`materially identical to his April 27, 2009, letter discussed above.
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`Mr. Vititoe also argues that at step five, the ALJ was required to cite examples
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`and numbers of jobs in Mr. Vititoe’s region, not just national numbers, because
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`Mr. Vititoe’s need to alternate sitting and standing limits his ability to perform the
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`full range of sedentary work.5 In support of his argument, Mr. Vititoe first relies on
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`language suggesting a regional approach in Social Security Ruling 96-9p, 1996 WL
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`374185, at *5 (July 2, 1996). But SSR 96-9p applies in cases where the claimant is
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`limited to less than the full range of sedentary work and the disability determination
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`is not directed by the Grids. Here the ALJ found that Mr. Vititoe retains the capacity
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`to perform less than the full range of light work, so SSR 96-9p is not applicable.
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`Further, any implied challenge to the ALJ’s light-work finding fails because it
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`necessarily rests on the severe limitations in Dr. Mulica’s FCQ, which the ALJ
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`properly rejected. Accordingly, Mr. Vititoe’s related argument—that he is disabled
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`under Grid Rule 201.00(h)(1) due to his ability to perform less than the full range of
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`sedentary work—also fails.6
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`Mr. Vititoe further relies on two other Social Security Rulings concerning the
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`use of the Grids that are not similarly limited to cases involving less than the full
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`range of sedentary work. Those rulings contain the identical statement that when, as
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`5
`Contrary to the Commissioner’s argument, Mr. Vititoe presented this issue in
`the district court, see R. Vol. II at 1059-60, and therefore it is not waived despite the
`fact that the district court did not address it.
`6
`Mr. Vititoe also presented this issue to the district court, see R. Vol. II at 1060,
`contrary to the Commissioner’s argument.
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`here, a VE is used because the Grids do not direct a disability finding, “the
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`determination or decision will include (1) citations of examples of occupations/jobs
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`the person can do functionally and vocationally and (2) a statement of the incidence
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`of such work in the region in which the individual resides or in several regions of the
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`country.” SSR 83-14, 1983 WL 31254, at *6 (1983); SSR 83-12, 1983 WL 31253,
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`at *5 (1983) (emphasis added). But “‘work which exists in the national economy’” is
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`defined by statute as “work which exists in significant numbers either in the region
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`where [the claimant] lives or in several regions of the country.” 42 U.S.C.
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`§ 423(d)(2)(A). Hence, stating that there are a number of jobs available in the
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`national economy is, by definition, stating the incidence of jobs “in the region in
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`which the individual resides or in several regions of the country.” Hence, we see no
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`error in identifying the incidence of jobs in the national economy.
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`Mr. Vititoe also argues that the ALJ failed to include in his hypothetical to the
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`VE his need to lie down for several hours after taking pain medications, the fact that
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`his pain is severe enough to frequently interfere with the attention and concentration
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`necessary to perform even simple work, and the fact that his medications interfere
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`with his cognitive abilities.7 But the evidence supporting the existence and severity
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`of these limitations (primarily Mr. Vititoe’s testimony about his limitations at the
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`time of the hearing in 2010) does not concern or relate back to the period before his
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`7
`The Commissioner is again mistaken that these arguments are waived on
`appeal for failure to present them to the district court. Mr. Vititoe presented them to
`the district court, see R. Vol. II at 1061, but the court did not rule on them.
`
`- 15 -
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`

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`DLI. Accordingly, it was not error for the ALJ to exclude these limitations from his
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`hypotheticals to the VE.
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`Mr. Vititoe also argues that it was “impossible” for him to “have been able
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`bodied and not disabled” during the month he was in a coma, his rehabilitation at
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`Spalding, and through the several weeks after his release from Spalding, when his
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`mother provided round-the-clock care. This argument reflects a misunderstanding of
`
`the requirement that both an impairment and the inability to perform substantial
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`gainful activity must last for twelve months. See Lax, 489 F.3d at 1084.
`
`Mr. Vititoe raises several other issues, but we conclude that they are waived
`
`for failure to present them to the district court and the absence of compelling reasons
`
`to consider them. See Crow v. Shalala, 40 F.3d 323, 324 (10th Cir. 1994). Those
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`issues are (1) the ALJ erred in not filling out the Psychiatric Review Technique;
`
`(2) the ALJ failed to include an adequate sit/stand limitation in his hypothetical to the
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`VE; (3) the opinions of the consulting examiners, Drs. Valette and Moran, are not
`
`substantial evidence supporting the ALJ’s decision because they only examined
`
`Mr. Vititoe once, the Commissioner paid them for their services, and they lack
`
`qualifications; and (4) Mr. Vititoe meets Listing 12.02. Even if we were to consider
`
`these issues, we would find them unpersuasive for substantially the reasons stated in
`
`the Commissioner’s brief.
`
`- 16 -
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`

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`III. CONCLUSION
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`
`
`The judgment of the district court is affirmed.
`
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`Entered for the Court
`
`Wade Brorby
`Senior Circuit Judge
`
`- 17 -

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