Gore v. Apfel ( 2000 )


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  •                                                                           F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    MAY 16 2000
    FOR THE TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    ANNIE L. GORE,
    Plaintiff-Appellant,
    v.                                                    No. 99-7076
    (D.C. No. 98-CV-429-S)
    KENNETH S. APFEL, Commissioner,                       (E.D. Okla.)
    Social Security Administration,
    Defendant-Appellee.
    ORDER AND JUDGMENT            *
    Before BALDOCK , BRISCOE , and LUCERO , 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    This order and judgment is not binding precedent, except under the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.
    Claimant Annie L. Gore appeals from the      district court ’s affirmance of the
    Social Security Administration’s denial of benefits. Claimant applied for
    supplemental security income benefits in 1995; that application was denied both
    initially and upon reconsideration. After a hearing, an administrative law judge
    (ALJ) issued a decision concluding that claimant was not disabled under the
    Social Security Act and denying benefits. The Appeals Council denied review.
    Claimant brought suit in federal court. The magistrate judge recommended
    that the agency’s denial of benefits be affirmed. After considering claimant’s
    objections, the district court adopted the magistrate judge’s recommendation.
    This appeal followed. On appeal, claimant argues that the agency failed to
    properly develop the record with regard to her respiratory impairment, and that
    the ALJ improperly substituted his own opinion for medical evidence in
    evaluating claimant’s alleged mental impairment.
    We have jurisdiction over this appeal by virtue of 
    42 U.S.C. § 405
    (g). Our
    review is limited to determining whether the agency’s findings are supported by
    substantial evidence and whether the correct legal standards were applied.      See
    Hawkins v. Chater , 
    113 F.3d 1162
    , 1164 (10th Cir. 1997). In light of these
    standards, and after a thorough review of the record on appeal, we affirm.
    In order to determine whether a claimant is under a disability, the agency
    applies a five-step process.   See 
    20 C.F.R. § 416.920
    ; Williams v. Bowen , 844
    -2-
    F.2d 748, 750-52 (10th Cir. 1988) (discussing steps in detail). If a claimant is
    determined to be disabled or not disabled at any step, the evaluation process ends
    there. See 
    20 C.F.R. § 416.920
    (a). Here, the ALJ ended his evaluation at step
    four, concluding that, while claimant had severe impairments--namely borderline
    intellectual functioning, mild to moderate chronic obstructive pulmonary disease,
    and status post healed left leg gunshot wound, those impairments did not preclude
    her from return to her past relevant work as a poultry eviscerator.    See
    Appellant’s App., Vol. II at 16-17.
    At step four, claimant has the burden to demonstrate that her impairments
    preclude her from performing her past relevant work.        See Henrie v. United States
    Dep’t of Health & Human Servs.,      
    13 F.3d 359
    , 360 (10th Cir. 1993). Claimant
    challenges the ALJ’s decision in connection with her respiratory impairment
    because the administrative record contains pulmonary spirometry test results for a
    person other than claimant. While she contends that such testing is required
    under agency regulations, she does not contend that the consultative physician did
    not perform the tests or that his opinion that her chronic obstructive pulmonary
    disease was only mild to moderate, contained in a report in the record, does not
    reflect her own test results.   See Hawkins v. Chater , 
    113 F.3d at 1169
    .
    Additionally, she makes no showing that this impairment limits her residual
    functional capacity. She argues that her past work occurred in a refrigerated
    -3-
    factory which, she asserts, aggravates her respiratory condition, but she did not
    raise this argument to the agency. Indeed, there is no evidence on the record that
    claimant considered her respiratory condition to limit her in any way, despite
    ample opportunity to report and discuss such limitations. Because claimant bears
    the burden at step four, her failure to make any showing that this impairment
    limits her residual functional capacity is fatal to her challenges.
    Claimant also argues that the ALJ erred when he failed to acknowledge that
    she had an affective disorder as a mental impairment, despite the diagnosis of the
    consultative psychiatrist that she had bipolar affective disorder, and his opinion
    that she had deficiencies in concentration and episodes of deterioration. The ALJ
    properly rejected the bipolar affective disorder diagnosis because the consulting
    psychiatrist failed to identify any diagnostic criteria that claimant met which
    would support such a conclusion. A similar lack of evidence supports his
    statement that claimant had suffered frequent episodes of deterioration. The ALJ
    did credit the consulting psychiatrist’s conclusion that claimant had deficiencies
    in concentration, although he concluded that she could still perform simple, one
    or two step tasks based on her daily activities.
    We conclude that claimant’s challenges to the agency’s decision lack merit,
    that substantial evidence supports the agency’s denial of benefits, and that the
    -4-
    correct legal standards were applied. Accordingly, the judgment of the district
    court is AFFIRMED.
    Entered for the Court
    Mary Beck Briscoe
    Circuit Judge
    -5-
    

Document Info

Docket Number: 99-7076

Filed Date: 5/16/2000

Precedential Status: Non-Precedential

Modified Date: 4/18/2021