F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
SEP 5 2002
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
RAE BROWN,
Plaintiff-Appellant,
v. No. 01-5220
(D.C. No. 00-CV-912-M)
JO ANNE B. BARNHART, (N.D. Okla.)
Commissioner, Social Security
Administration,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before HENRY , ANDERSON , and HARTZ , 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)(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This order and judgment is not binding precedent, except under the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. 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 Rae Brown appeals from an order of the district court affirming
the Commissioner’s determination that she is not entitled to Social Security
disability benefits. Because the Commissioner’s determination is supported by
substantial evidence in the record, we affirm.
I.
We review the Commissioner’s decision to determine whether her factual
findings were supported by substantial evidence in light of the entire record and
to determine whether she applied the correct legal standards. See Castellano v.
Sec’y of Health & Human Servs., 26 F.3d 1027, 1028 (10th Cir. 1994).
“Substantial evidence is such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Id. (quotations omitted). In the course of
our review, we may “neither reweigh the evidence nor substitute our judgment for
that of the agency.” Casias v. Sec’y of Health & Human Servs., 933 F.2d 799,
800 (10th Cir. 1991).
II.
Ms. Brown alleged disability as of October 28, 1994, 1 due to emphysema,
heart disease, hypertension, muscle spasms in the back, blocked arteries, and
1
Ms. Brown’s insured status expired December 31, 1995 , thus she must
show she was totally disabled prior to that date. See Henrie v. United States
Dep’t of Health & Human Servs. , 13 F.3d 359, 360 (10th Cir. 1993).
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umbilical hernia. She stated that her primary problem was extreme fatigue. The
administrative law judge (ALJ) determined that Ms. Brown was not disabled at
step four of the five-step sequential process, see Williams v. Bowen, 844 F.2d
748, 750-52 (10th Cir. 1988), as she could return to her past relevant work .
III.
A. Medical Evidence of Residual Functional Ability
On appeal, Ms. Brown first argues that t he ALJ’s assessment of her
residual functional ability is not supported by substantial evidence. To support
this argument, Ms. Brown submits her analysis of two medical studies regarding
the measurement of energy expenditures as expressed in METs. Ms. Brown
compares the METs required for various activities as set forth in the articles with
her estimate of the maximum METs she can expend based on the results of her
treadmill tests. She concludes that the work the ALJ determined she can perform
requires greater METs than she can expend.
We decline to use this analysis to determine whether Ms. Brown is
disabled. The determination of disability rests on medical opinions. Medical
opinions are “statements from physicians and psychologists or other acceptable
medical sources that reflect judgments about the nature and severity of your
impairment(s), including your symptoms, diagnosis and prognosis, what you
can still do despite impairment(s), and your physical or mental restrictions.”
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20 C.F.R. § 404.1527(a)(2). Acceptable medical sources are defined at
§ 404.1513(a). Medical journal articles are not included as acceptable medical
sources. We cannot give persuasive authority to an attorney’s extrapolation of
a medical article to his client’s condition. See , e.g., Soc. Sec. Rul. 96-5p,
1996 WL 374183, at *4 (clarifying that medical source statements must be
submitted by acceptable medical sources and are to be based on the medical
sources’ personal knowledge of the claimant). While medical literature can be
cited and relied on to support a claimant’s position, it cannot be the only
evidence showing disability.
The record shows that none of Ms. Brown’s treating physicians has
considered her disabled or unable to perform substantial gainful activity.
Admittedly, her treadmill tests had to be ended prematurely due to her dyspnea
and leg fatigue. However, she experienced no chest pain during the test and the
results were still determined to not be significant. See App. Vol. II at 129-30;
Vol. III at 140, 150. While Ms. Brown is overweight and her smoking
contributes to her cardiac and lung problems, these impairments cannot be
considered disabling. Ms. Brown notes that none of her treating physicians has
stated that she is able to work. However, Ms. Brown bears the burden of proving
disability through step four; the Commissioner need not show she is able to work
until step five. See Ray v. Bowen , 865 F.2d 222, 224 (10th Cir. 19 89).
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B. Credibility and Weight Loss
Ms. Brown next argues that the ALJ did not properly evaluate her
credibility. She maintains that the ALJ cannot use her failure to lose weight as
a basis to judge her credibility without considering whether weight loss would
restore her ability to work, was prescribed, or was refused without justifiable
excuse, citing Thompson v. Sullivan , 987 F.2d 1482, 1490 (10th Cir. 1993) .
While Ms. Brown correctly cites to Thompson , the ALJ did not erroneously
consider her weight. The ALJ, in addition to noting her physician’s comments
that she appeared to be uninterested in changing her behavior regarding her diet
and smoking, also considered
claimant’s own description of her activities and life style, the degree
of medical treatment required, discrepancies between the claimant’s
assertions and information contained in the documentary reports, the
claimant’s demeanor at hearing, the reports of the treating and
examining practitioners, the medical history, the findings made on
examination, and the claimant’s assertions concerning her ability to
work.
App. Vol. II at 19.
The ALJ adequately supported his credibility determination as he
then discussed each item he identified. Further, the record supports the ALJ’s
findings.
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IV.
Substantial evidence in the record supports the ALJ’s determination
that Ms. Brown could return to her prior work as a sewing machine operator or
a cashier. Therefore, the judgment of the United States District Court for the
Northern District of Oklahoma is AFFIRMED.
Entered for the Court
Robert H. Henry
Circuit Judge
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