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

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    This document is an order from the United States Court of Appeals for the Tenth Circuit regarding Samuel McGowan's appeal of the denial of his application for supplemental security income benefits. The court affirmed the district court's ruling, finding that McGowan had engaged in substantial gainful activity by supporting his drug habit through theft for over a year, and thus was not disabled as defined by the regulations. The court also determined that McGowan had waived his argument that the theft activity was only for one year by not raising it previously to the magistrate judge or Appeals Council.

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

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    This document is an order from the United States Court of Appeals for the Tenth Circuit regarding Samuel McGowan's appeal of the denial of his application for supplemental security income benefits. The court affirmed the district court's ruling, finding that McGowan had engaged in substantial gainful activity by supporting his drug habit through theft for over a year, and thus was not disabled as defined by the regulations. The court also determined that McGowan had waived his argument that the theft activity was only for one year by not raising it previously to the magistrate judge or Appeals Council.

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    Filed: 1999-03-05 Precedential Status: Non-Precedential Docket: 98-7120

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    This document is an order from the United States Court of Appeals for the Tenth Circuit regarding Samuel McGowan's appeal of the denial of his application for supplemental security income benefits. The court affirmed the district court's ruling, finding that McGowan had engaged in substantial gainful activity by supporting his drug habit through theft for over a year, and thus was not disabled as defined by the regulations. The court also determined that McGowan had waived his argument that the theft activity was only for one year by not raising it previously to the magistrate judge or Appeals Council.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    10 views3 pages

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

    Uploaded by

    Scribd Government Docs
    This document is an order from the United States Court of Appeals for the Tenth Circuit regarding Samuel McGowan's appeal of the denial of his application for supplemental security income benefits. The court affirmed the district court's ruling, finding that McGowan had engaged in substantial gainful activity by supporting his drug habit through theft for over a year, and thus was not disabled as defined by the regulations. The court also determined that McGowan had waived his argument that the theft activity was only for one year by not raising it previously to the magistrate judge or Appeals Council.

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    F I L E D

    UNITED STATES COURT OF APPEALS


    FOR THE TENTH CIRCUIT

    United States Court of Appeals


    Tenth Circuit

    MAR 5 1999

    PATRICK FISHER
    Clerk

    SAMUEL L. MCGOWAN,
    Plaintiff-Appellant,
    v.
    KENNETH S. APFEL, Commissioner
    of Social Security Administration,

    No. 98-7120
    (D.C. No. 97-CV-87-S)
    (E.D. Okla.)

    Defendant-Appellee.

    ORDER AND JUDGMENT

    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.

    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.

    Appellant Samuel McGowan appeals the district courts affirmance of the


    final decision of the Commissioner of Social Security denying appellants
    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
    appellants 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
    -2-

    for the first time in objections to magistrate judges 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
    appellants report of his illegal activities to consulting psychologist Green did not
    contain any such temporal limit,

    see Appellants 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

    -3-

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