F I L E D
United States Court of Appeals
UNITED STATES COURT OF APPEALS
MAY 20 1999
FOR THE TENTH CIRCUIT
RUTH A. HOLLIDAY,
v. No. 98-2204
(D.C. No. C.V.-97-569-LH)
DEPARTMENT OF HEALTH AND (D. N.M.)
HUMAN SERVICES, Secretary,
Department of Health and Human
Services of the United States,
ORDER AND JUDGMENT *
Before PORFILIO , McKAY , and LUCERO , Circuit Judges.
Plaintiff applied for disability insurance benefits and supplemental security
income benefits on November 4, 1994, alleging disability since June 19, 1991,
resulting from back and shoulder pain. After her application was denied initially
and on reconsideration, plaintiff requested a hearing before an administrative law
This order and judgment is not binding precedent, except under the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.
judge (ALJ). The ALJ decided that plaintiff was not disabled and denied the
application for benefits. The Appeals Council denied review. Plaintiff appealed
the ALJ's decision, and the district court affirmed the Commissioner's denial of
plaintiff's application for benefits.
Plaintiff now appeals the district court's affirmance of the Commissioner's
denial of her application for benefits. 1
"We review the record as a whole to
determine whether the [Commissioner's] decision is supported by substantial
evidence" and whether he applied the correct legal standards. James v. Chater ,
96 F.3d 1341
, 1342 (10th Cir. 1996). We affirm.
In her brief on appeal, plaintiff alleges the following points of error:
(1) the ALJ incorrectly determined that plaintiff's past work as a part-time
substitute teacher constituted substantial gainful activity, thus the work could not
be considered past relevant work, and, therefore, the conclusion that plaintiff
could perform her past relevant work as a substitute teacher was error; (2) the
ALJ did not make the required findings as to the demands of the work and
plaintiff's ability to meet those demands despite her impairments; (3) the ALJ
improperly exaggerated plaintiff's daily activities in his analysis; and (4) the ALJ
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.
[End Page 2]
improperly evaluated and discounted plaintiff's allegations of pain. In his
opposition to the magistrate judge's proposed findings and recommended
disposition, plaintiff only specifically objected to the finding that plaintiff's
past work as a part-time substitute teacher was substantial gainful activity and,
as such, qualified as past relevant work. Plaintiff made no other specific
objection to the magistrate's findings and recommendation, and, consequently,
the only issue preserved for this appeal is whether the ALJ was correct in finding
that the part-time substitute teacher work was substantial gainful activity. See
Soliz v. Chater, 82 F.3d 373
, 375-76 (10th Cir. 1996). In the last sentence of
plaintiff's opposition to the magistrate's report, she stated that she also reiterated
the arguments advanced in her brief before the district court. This very general
reference to previous allegations was insufficient to preserve the arguments not
specifically addressed in her opposition to the magistrate's report. See United
States v. 2121 E. 30th St. , 73 F.3d 1057
, 1060 (10th Cir. 1996) ( requiring
specificity in objection to magistrate's report and recommendation "because only
an objection that is sufficiently specific to focus the district court's attention on
the factual and legal issues that are truly in dispute will advance the policies
behind the Magistrate's Act that led us to adopt a waiver rule in the first
instance"). Finally, the interests of justice do not, in this case, keep us from
applying the procedural bar of waiver. See id. at 1060-61.
[End Page 3]
Plaintiff argues that the ALJ's characterization of her part-time substitute
teacher work as substantial gainful activity was error. As a result, she argues, the
ALJ's characterization of the substitute teacher experience as past relevant work
was also error. See James , 96 F.3d at 1343 (recognizing that work must be
substantial gainful activity to be considered past relevant work). Plaintiff
contends, therefore, that the ALJ erred in his ultimate finding that plaintiff could
return to her past relevant work of substitute teaching.
Past relevant work is work that occurred within the past fifteen years, was
of sufficient duration to enable the worker to learn the job, and was substantial
gainful activity. 20 C.F.R. §§ 404.1565(a); 416.965(a). Substantial gainful
activity is defined in the regulations as "work that (a) [i]nvolves doing significant
and productive physical or mental duties; and (b) [i]s done . . . for pay or profit."
Id. at §§ 404.1510; 416.910. The regulations also provide average income
guidelines to assist in the determination of whether work was substantial gainful
activity. For work performed between 1979 and 1990, the time period during
which plaintiff worked as a substitute teacher, if the employee's earnings
averaged more than $300 a month, that is an indicator that the work was
substantial gainful activity. See id. at §§ 404.1574(b)(2)(vi); 416.974(b)(2)(vi).
It is clear that "work may be substantial even if it is done on a part-time basis."
See id. at §§ 404.1572(a); 416.972(a).
[End Page 4]
The record in this case shows that plaintiff worked three days a week as
a substitute teacher from 1981 to 1984, earning $5.00 an hour. Plaintiff
acknowledges that "in 1984 such earnings, even though part time, constituted
[substantial gainful activity]." Appellant's Br. at 7. She maintains, however, that
her "ability to work from 1980 to 1984 and earn $480 a month does not now
constitute substantial gainful activity." 2
Id. Plaintiff misses the point. Whether
her work as a substitute teacher currently qualifies as substantial gainful activity
is relevant to determine whether the job can be considered past relevant work.
Past relevant work necessarily implies that the work was done in the past, and is
not necessarily being done now. The earnings guidelines are relevant to the
particular time frame in which the job was performed. That is precisely why the
guidelines give different monetary values to different time periods. Plaintiff
performed the work between 1979 and 1990, and the average earning figure for
that time frame is the amount relevant in determining whether the job qualified as
past relevant work. The ALJ correctly determined that plaintiff's part-time work
as a substitute teacher earning $480 a month was substantial gainful activity and,
therefore, could be considered past relevant work. AFFIRMED.
The guidelines provide that if earnings averaged more that $500 a month
for calendar years after 1989, the employee engaged in substantial gainful
activity. See 20 C.F.R. §§ 404.1574(b)(2)(vii); 416.974(b)(2)(vii).
[End Page 5]
Entered for the Court
Carlos F. Lucero