F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 30 1997
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
CAROL ANN TIERNEY,
Plaintiff-Appellant,
v. No. 96-5240
(D.C. No. 95-CV-896-J)
SHIRLEY CHATER, Commissioner, (N.D. Okla.)
Social Security Administration,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before BRORBY, BARRETT, and LUCERO, Circuit Judges.
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); 10th Cir. R. 34.1.9. 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This order and judgment is not binding precedent, except under the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.
Plaintiff filed a claim for social security disability benefits on October 5,
1993, alleging that she became disabled on October 1, 1969, due to blindness,
conjunctivitis in both eyes, hypoglycemia, epilepsy, nerve problems, back
problems, irritated colon, depression, dysmenorrhea, thyroid problems, and
bilateral carpal tunnel syndrome. The administrative law judge (ALJ) determined
that plaintiff’s insured status expired on December 31, 1978, see Admin. R. at 18,
and that before that date she met the insured status requirements only for Rule IV,
statutory blindness. See id. at 18, 20 (finding 1); see also 20 C.F.R. §§ 404.130,
404.1581; 20 C.F.R. Pt. 404, Subpt. P, App. 1, §§ 2.00A7, 2.02, 2.03A & B.
Upon consideration of the medical evidence and expert testimony, the ALJ
determined that plaintiff was not blind within the meaning of 20 C.F.R. Pt. 404,
Subpt. P, App. 1, §§ 2.02 or 2.03A or B, for the requisite period, and denied her
benefits. The Appeals Council denied review, making the ALJ’s decision the
final decision of the Secretary. The magistrate judge 1 affirmed. Plaintiff appeals.
We have jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291, and affirm.
On appeal, plaintiff contends the ALJ: (1) failed to fully develop the
record; (2) ignored medical expert testimony; (3) failed to consider plaintiff’s
1
The parties consented to proceed before the magistrate judge for final
disposition. See 28 U.S.C. § 636(c).
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treating physician’s diagnosis; and (4) applied improper legal standards in his
analysis of the applicable listings criteria.
We review the Secretary's decision to determine whether it is supported by
substantial evidence and whether the correct legal standards were applied. See
Miller v. Chater, 99 F.3d 972, 975-76 (10th Cir. 1996). Substantial evidence is
“such relevant evidence as a reasonable mind might accept as adequate to support
a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quotation and
citation omitted). “Evidence is not substantial if it is overwhelmed by other
evidence in the record or constitutes mere conclusion.” Musgrave v. Sullivan,
966 F.2d 1371, 1374 (10th Cir. 1992). We may not reweigh the evidence or
substitute our judgment for that of the Secretary. See Kelley v. Chater, 62 F.3d
335, 337 (10th Cir. 1995).
Plaintiff does not dispute that her insured status expired on December 31,
1978. As a result, she is not entitled to disability benefits unless she can prove
that she met the requirements for statutory blindness beginning before
December 31, 1978, and continuing without interruption up to sometime within
the year before the month in which she filed her claim for benefits, October 1993.
See 20 C.F.R. §§ 404.315(a)(3), 404.320(b)(3).
Plaintiff first contends that the ALJ erred in not further developing the
record regarding the nonorganic, i.e., psychological, component of her vision
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impairment, and that he should have received testimony from a psychiatrist.
Because plaintiff did not raise this argument in the district court, however, it is
waived. See Crow v. Shalala, 40 F.3d 323, 324 (10th Cir. 1994).
Plaintiff next argues that the ALJ gave insufficient weight to the February
1971 opinion of her treating ophthalmologist, Dr. Thomas E. Acer, that the field
of vision in her better eye, her left eye, subtended an angle no greater than five
degrees. Plaintiff also contends that the ALJ disregarded the expert testimony of
ophthalmologist Dr. Robert P. Hughes, to the effect that if the five-degree
limitation of her left eye were believed, plaintiff would meet the listing for
statutory blindness because she was legally blind in her right eye before
December 31, 1978.
The ALJ properly rejected Dr. Acer’s February 1971 diagnosis because the
formal visual field test on which it was based was not in the record, and because
his diagnosis of a five-degree constriction of the visual field was inconsistent
with both his own later findings and also with other medical evidence that
plaintiff has a 180-degree field of vision in her left eye. See Castellano v.
Secretary of Health & Human Servs., 26 F.3d 1027, 1029 (10th Cir. 1994) (noting
that ALJ “will give controlling weight to [treating physician’s] opinion if it is
well supported by clinical and laboratory diagnostic techniques and if it is not
inconsistent with other substantial evidence in the record”); Eggleston v. Bowen,
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851 F.2d 1244, 1246-47 (10th Cir. 1988) (holding ALJ may reject treating
physician’s opinion if specific, legitimate reasons are given). Dr. Hughes’
testimony did not cure either of these defects. In fact, Dr. Hughes’ clarification
that the statute requires a particular type of visual field test to be done indicates
that without the actual visual field test Dr. Acer performed, it cannot be
determined that it satisfied the statute’s requirements. See Admin. R. at 319-20.
Finally, plaintiff argues that the ALJ applied improper legal standards in
his analysis of the applicable listings criteria. We disagree. The ALJ evaluated
and weighed conflicting medical evidence, and his conclusion that plaintiff is not
blind within the meaning of 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 2.02 or
§ 2.03A or B is supported by substantial evidence. In particular, the ALJ noted
that plaintiff reported in 1993 that she could drive a car during daylight hours--an
activity “inconsistent with ‘statutory blindness.’” Admin. R. at 20; see also id.
at 66.
The judgment of the United States District Court for the Northern District
of Oklahoma is AFFIRMED.
Entered for the Court
James E. Barrett
Senior Circuit Judge
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