Williams v. Barnhart

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
April 27, 2006
FOR THE TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court

SUSAN P. WILLIAMS,

Plaintiff-Appellant,
No. 05-1298
v. (D.C. No. 04-CV-2056-EWN)
(D. Colo.)
JO ANNE B. BARNHART,
Commissioner, Social Security
Administration,

Defendant-Appellee.

ORDER AND JUDGMENT *

Before KELLY, BRISCOE, and LUCERO, Circuit Judges.

Plaintiff Susan P. Williams, proceeding pro se, appeals the district court’s

order upholding the Commissioner’s denial of her application for social security

disability benefits. She also appeals the district court’s orders denying her

*
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not binding precedent, except under the doctrines of law of the case, res judicata,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.
 post-judgment motions. We exercise jurisdiction under 28 U.S.C. § 1291 and

affirm.

Background

Ms. Williams alleges disability since February 14, 2000, due to spinal

arthritis, degenerative disc disease, fibromyalgia, hypoglycemia, carpal tunnel

syndrome, peripheral neuropathy, headaches, temporomandibular joint syndrome,

and tinnitus. R. Vol. II, at 135. An administrative law judge (ALJ) held a hearing

at which Ms. Williams appeared pro se and testified. A vocational expert also

testified as to the exertional and nonexertional requirements of Ms. Williams’ past

jobs as a paralegal, legal secretary, and secretary. The ALJ determined that Ms.

Williams retained the residual functional capacity (RFC) to perform her past work

as a secretary and a legal secretary. Accordingly, he denied benefits at step four of

the five-part sequential evaluation process. See Fischer-Ross v. Barnhart, 431

F.3d 729, 731 (10th Cir. 2005) (describing five steps).

The Appeals Council denied her request for review, making the ALJ’s

decision issued on July 22, 2002, the final decision of the Commissioner. See

Jensen v. Barnhart, 436 F.3d 1163, 1164 (10th Cir. 2005). The district court

issued an exhaustive order addressing each of Ms. Williams’ thirty claims, 1 and

1
We recognize that Ms. Williams maintains that the district court improperly
recast her four issues as thirty separate claims, but she has not demonstrated that
the district court erred in doing so.

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affirmed the Commissioner’s decision. Ms. Williams then sought reconsideration,

relying on the new evidence provided in a March 23, 2005 report by Georgeanne

Bley, Ph.D. After the district court denied that motion, Ms. Williams again

sought reconsideration, which the district court also denied. Ms. Williams

appeals.

Legal Framework

We review the Commissioner’s decision to ascertain whether it is supported

by substantial evidence in the record and to evaluate whether she applied the

correct legal standards. Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir.

2005). “Substantial evidence is more than a mere scintilla and is such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.”

Id. We do not reweigh the evidence or retry the case, but we “meticulously

examine the record as a whole, including anything that may undercut or detract

from the ALJ’s findings in order to determine if the substantiality test has been

met.” Id. at 1262.

In this context, “disability” requires both an “inability to engage in any

substantial gainful activity” and “a physical or mental impairment, which provides

reason for the inability.” Barnhart v. Walton, 535 U.S. 212, 217 (2002) (internal

quotation marks omitted). The impairment must be a “‘medically determinable

physical or mental impairment which can be expected to result in death or which has

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lasted or can be expected to last for a continuous period of not less than 12

months. . . .’” Fischer-Ross, 431 F.3d at 731 (quoting 42 U.S.C. § 423(d)(1)(A)).

On appeal, Ms. Williams argues (1) substantial evidence does not support the

ALJ’s decision, (2) the ALJ failed to develop the record, (3) the ALJ failed to

explain the evidence he omitted from his decision, (4) the ALJ failed to follow the

prescribed procedure to determine her RFC, and (5) the district court failed to

consider new evidence obtained and submitted after the ALJ’s decision. 2

Substantial Evidence

We do not repeat here the contents of the medical records because the district

court thoroughly reviewed them in its order. Moreover, Ms. Williams’ appellate

arguments can be addressed without reciting all of the medical evidence.

Ms. Williams asserts that the results of her medical tests do not support the

ALJ’s determination that she is not disabled within the meaning of the Social

Security Act. She maintains that the ALJ erred in relying on the various physicians’

reports of those tests, rather than conducting an independent review of the meanings

and significance of medical terminology. See, e.g., R. Vol. I, Doc. 25, at 11

(“Clearly, the ALJ selected documents containing laboratory findings that

2
Ms. Williams requested this court to accommodate her asserted difficulties
with written and verbal communications by accepting her district court briefs as
her appellate brief. By an order dated September 26, 2005, this court granted the
request in part. Accordingly, we have considered those portions of Ms. Williams’
district court briefs she incorporated by reference in her appellate briefs.

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constituted substantial evidence, he just did not develop them, that is, examine them

in detail for meaning, look up the terms if he needs to, and carefully think through

the results.”).

Just as an ALJ cannot substitute his own medical opinion for that of a treating

physician, Hamlin v. Barnhart, 365 F.3d 1208, 1221 (10th Cir. 2004), we conclude

that the ALJ is not required to accept a claimant’s lay opinion on the meaning or

significance of medical tests. 3 We turn to Ms. Williams’ argument that substantial

evidence does not support the ALJ’s decision.

Ms. Williams claims that the ALJ failed to appreciate the changes in her

C-spine MRI as shown by a comparison of her 1999 and November 14, 2000 films.

She further contends that the ALJ and the district court failed to recognize the

significance of MRIs administered on April 6, 2001 and December 24, 2001. She

maintains that these reports and the physicians’ reports discussing them show that

her back condition was worsening.

That Ms. Williams had back problems substantiated by medical evidence is

3
The district court also noted that Ms. Williams sought to rely on her own
“medical opinion of why her disc disease is disabling.” R. Vol. I, Doc. 37, at 21;
see also id. at 23 (rejecting Ms. Williams’ attempt “to argue that her own medical
opinions of the meaning of this MRI are more persuasive than Dr. Jatana’s
opinions of this MRI”); id. at 24 (holding ALJ properly relied on treating
physician’s well-supported opinion, especially when the contradictory evidence
“is Plaintiff’s own ‘medical’ opinions about her condition”). Ms. Williams has
not argued on appeal that the district court erred in holding that her medical
opinions cannot trump those of her physicians.

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undisputed. However, none of the reports or records demonstrates that these

problems were disabling. This is not to say that a claimant must provide a

physician’s opinion of disability. Indeed, such an opinion would not be binding on

the Commissioner. Castellano v. Sec’y of Health & Human Servs., 26 F.3d 1027,

1029 (10th Cir. 1994). Rather, to prove disability, a claimant “must furnish medical

and other evidence of the existence of [a] disability.” Branum v. Barnhart, 385 F.3d

1268, 1271 (10th Cir. 2004).

Furthermore, the ALJ’s decision not to repeat in his decision all of the

language in the medical test reports does not direct a conclusion that his decision is

unsupported by substantial evidence. To the contrary, the ALJ’s decision

demonstrates that he appropriately considered these reports. By arguing that the

ALJ should have viewed the evidence differently, Ms. Williams asks this court “to

reweigh the evidence; this we cannot do.” Hamilton v. Sec’y of Health & Human

Servs., 961 F.2d 1495, 1498 (10th Cir. 1992).

Ms. Williams also contends that the ALJ incorrectly evaluated her complaints

of pain. The ALJ correctly recognized that he was required to evaluate

Ms. Williams’ pain because she had fulfilled her burden to “prove by objective

medical evidence the existence of a pain-producing impairment that could

reasonably be expected to produce the alleged disabling pain.” Thompson v.

Sullivan, 987 F.2d 1482, 1488 (10th Cir. 1993) (citations omitted). The ALJ

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discounted her pain allegations, however, based on his finding that she was not fully

credible.

“Credibility determinations are peculiarly the province of the finder of fact,

and we will not upset such determinations when supported by substantial evidence.”

Hackett v. Barnhart, 395 F. 3d 1168, 1173 (10th Cir. 2005) (quoting Kepler v.

Chater, 68 F.3d 387, 391 (10th Cir. 1995)). The ALJ’s credibility findings “should

be closely and affirmatively linked to substantial evidence and not just a conclusion

in the guise of findings.” Id. (quotation omitted).

The ALJ discounted Ms. Williams’ pain allegations for the following reasons:

(1) her daily activities were not consistent with disabling pain, (2) her use of

pain-relieving medication did not support her claim of disabling pain, (3) she

stopped working because she was terminated, not because she was disabled, (4) she

looked for work despite her claim that she was disabled, (5) her condition

apparently had not deteriorated since she stopped working, (6) her description of her

symptoms and limitations appearing throughout the record was “generally . . . so

varied, specious, and inconsistent that it is unpersuasive,” R. Vol. II, at 27, (7) she

failed to follow recommended medical advice on several occasions, and (8) her

physicians suggested that she may be exaggerating her symptoms. These credibility

findings are closely and affirmatively linked to substantial evidence.

We have meticulously reviewed the record in this case, including

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Ms. Williams’ briefs filed in the district court. We have reviewed de novo the

district court’s thorough order. See Fischer-Ross, 431 F.3d at 731. For

substantially the reasons stated in the district court’s order and memorandum of

decision, we conclude that substantial evidence in the record as a whole supports the

ALJ’s ruling.

Failure to Develop the Record

Ms. Williams next alleges that the ALJ failed in his duty to develop the

record because he did not order a consultative evaluation on her neurological

impairments or her upper-extremity limitations. She alleges that the record contains

sufficient references to these impairments to trigger the ALJ’s duty.

In a social security disability case, the claimant bears the burden to prove her

disability. Hawkins v. Chater, 113 F.3d 1162, 1164 (10th Cir. 1997). Disability

hearings are nonadversarial, however, and the ALJ has a duty “to ensure that an

adequate record is developed during the disability hearing consistent with the issues

raised.” Id. (quotation omitted). “This duty is especially strong in the case of an

unrepresented claimant.” Carter v. Chater, 73 F.3d 1019, 1021 (10th Cir. 1996).

“Ordinarily, the claimant must in some fashion raise the issue sought to be

developed which, on its face, must be substantial. Specifically, the claimant has the

burden to make sure there is, in the record, evidence sufficient to suggest a

reasonable possibility that a severe impairment exists.” Hawkins, 113 F.3d at 1167

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(citations omitted). If she does so, then the ALJ’s duty to order a consultative

examination arises. Id. “Isolated and unsupported comments by the claimant are

insufficient, by themselves, to raise the suspicion of the existence of a nonexertional

impairment.” Id.

Ms. Williams argues that the evidence was sufficient to require a consultative

examination relating to her neurological impairments. For objective medical

evidence of these impairments, she relies on reports by Dr. Redosh. But Dr. Redosh

did not diagnose any neurological impairments. Rather, discussing an MRI

performed to rule out multiple sclerosis, he suggested that an explanation for a

“focus of abnormal signal would be an old injury, such as a shear injury of the

gray-white matter junction,” or “a small old infarct or injury.” R. Vol. II, at 318.

Similarly, Dr. Redosh did not diagnose Ms. Williams with cerebellar syndrome;

instead, he ordered tests to confirm or refute his initial impression that she “most

likely” had this condition. Id. at 355. The record contains no other reference to

cerebellar syndrome, indicating that the testing did not confirm Dr. Redosh’s initial

impression. Therefore, the record does not support Ms. Williams’ claim that the

record contains diagnoses of brain damage, nor do these brief, isolated references

establish that she had a severe neurological impairment.

Ms. Williams also argues that her complaints of throat constriction should

have alerted the ALJ that she had a brain injury. But no physician stated that a

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brain injury caused Ms. Williams’ throat constriction. To the contrary,

Dr. Woodward stated that he “did not find any evidence of neurological dysfunction

to account for [her throat symptoms].” Id. at 423. Nor did Dr. Redosh link

Ms. Williams’ symptoms of throat constriction to any neurological impairment; he

described it as “globus hystericus.” Id. at 346. Ms. Williams’ own statements of

her throat problems and her forgetfulness and difficulty in concentrating were also

insufficient to alert the ALJ to develop the record as to her alleged neurological

impairment.

Ms. Williams next contends that the ALJ was required to develop the record

on her claim of upper-extremity restrictions. She testified that she experienced

weakness, numbness, and tingling in both arms. Id. at 76-77. She had used special

arm rests at her past jobs. Id. at 92-93. She maintains that the permanent

restrictions on using her hands and arms Dr. Fry identified in 1993, id. at 232,

triggered the ALJ’s duty to develop the record. However, Ms. Williams continued

to work as a legal secretary and paralegal for over six years after the permanent

restrictions were imposed. Therefore, Dr. Fry’s 1993 report was insufficient “to

suggest a reasonable possibility that a severe impairment exist[ed].” Hawkins,

113 F.3d at 1167.

The objective medical evidence in the record is insufficient to indicate the

presence of a severe neurological or upper-extremity impairment. Consequently, the

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ALJ was not required to develop the record. Cf. Carter, 73 F.3d at 1021-22

(holding physician’s diagnosis of depression required further development even

though claimant’s application did not mention depression).

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 Failure to Explain Evidence Omitted from ALJ’s Decision

Ms. Williams contends that the ALJ failed to consider relevant evidence and

failed to explain the evidence he omitted from his decision. She asserts that he

failed to consider evidence relating to her cervical spine, neurological impairments,

and permanent upper-extremity restrictions. In addition, she complains that the ALJ

interrupted her at the hearing, thus preventing her from presenting her evidence.

“[W]hile [the ALJ] is not required to discuss every piece of evidence in the

record, he ‘must discuss the uncontroverted evidence he chooses not to rely on, as

well as significantly probative evidence he rejects.’” Threet v. Barnhart, 353 F.3d

1185, 1190 (10th Cir. 2003) (quoting Clifton v. Chater, 79 F.3d 1007, 1010

(10th Cir. 1996)).

Contrary to Ms. Williams’ contentions, the ALJ’s discussion of the medical

evidence is legally sufficient. It demonstrates a meaningful analysis of the full

medical record and Ms. Williams’ testimony. In the decision, the ALJ recognized

Ms. Williams’ medically determinable conditions, particularly her history of spinal

problems. In addition, the ALJ discussed the reports by Drs. Redosh, Donaldson,

Hedberg, Wright, O’Brien, Woodward, Jatana, and Wieder. He further

acknowledged Ms. Williams’ complaints to various physicians. To the extent

Ms. Williams argues that the ALJ should have independently interpreted the

diagnostic tests instead of relying on the doctors’ reports of those tests, we decline

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to impose such a requirement. Moreover, the ALJ was not required to discuss every

piece of evidence. Further, as discussed above, the ALJ was not required to accept

Ms. Williams’ lay opinion on the meaning or significance of the medical tests.

Finally, the ALJ did not need to weigh conflicting medical evidence or to reject any

“significantly probative evidence,” Clifton, 79 F.3d at 1010. Accordingly, we find

no reversible error in the ALJ’s analysis.

We also find no merit to Ms. Williams’ claim that the ALJ interrupted her

during the hearing, thus preventing her from explaining her condition relating to her

pain, physical therapy, and the effect on her injuries of working at a computer. See

R. Vol. I, Doc. 25, at 32. The hearing transcript reveals that the ALJ did ask

clarifying questions, but he did not restrict Ms. Williams’ testimony. Any

interruptions by the ALJ did not deprive Ms. Williams of a “fundamentally fair”

hearing. Richardson v. Perales, 402 U.S. 389, 401 (1971).

Procedure to Determine RFC

Next, Ms. Williams argues that the ALJ did not follow the applicable legal

standards to determine her RFC. The ALJ must complete the following three phases

of the step four analysis:

In the first phase, the ALJ must evaluate a claimant’s physical and
mental residual functional capacity (RFC), and in the second phase, he
must determine the physical and mental demands of the claimant’s past
relevant work. In the final phase, the ALJ determines whether the
claimant has the ability to meet the job demands found in phase two
despite the mental and/or physical limitations found in phase one. At

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 each of these phases, the ALJ must make specific findings.

Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003) (quoting Winfrey v. Chater,

92 F.3d 1017, 1023 (10th Cir. 1996)).

At phase one, the ALJ found that Ms. Williams retained the physical RFC to

perform less than a full range of light work based, in part, on his determination that

she had no upper-extremity restrictions. For the second phase, he incorporated the

vocational expert’s testimony about the demands of Ms. Williams’ past work. This

was sufficient to satisfy the requirement that the ALJ make specific findings. See

Doyal, 331 F.3d at 761 (stating nothing improper in the ALJ’s quoting the

vocational expert’s testimony to support his own findings at phases two and three).

At phase three, the ALJ concluded that Ms. Williams could perform her past jobs as

a legal secretary and secretary based on his determination of her RFC.

Ms. Williams challenges the ALJ’s phase-one determination, taking issue with

his finding that she has no upper-extremity restrictions. She maintains that the ALJ

failed to consider her neck constriction, numbness, tremors, weakness, tingling,

restricted range of motion, and neurological impairments. She relies on Dr. Fry’s

1993 permanent restrictions on using her hands and arms. In addition, she asserts

her pain precludes her from doing her past relevant work.

We decline to disturb the ALJ’s RFC determination. The ALJ properly

concluded that the permanent restrictions identified by Dr. Fry in 1993 did not

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prevent Ms. Williams from doing her past work as a legal secretary and secretary.

As noted above, she continued to work as a legal secretary and paralegal for six

more years, despite those restrictions. This approach was reasonable, particularly

because there is no objective medical evidence that her upper-extremity condition

deteriorated since 1993. The ALJ also indicated that the other alleged impairments

that Ms. Williams asserts prevents her from doing her past work were not supported

by the medical evidence or by her daily activities. He also rejected her claims of

disabling pain because he found her testimony on this point not fully credible.

These findings are supported by substantial evidence.

Ms. Williams also contends that the ALJ erred in applying the “grid,”

20 C.F.R. Part 404, Subpt. P, App. 2, but his decision makes clear that he did not.

Therefore, we conclude that the ALJ’s determination that Ms. Williams retained the

RFC to perform her past work as a legal secretary and secretary is supported by

substantial evidence in the record.

New Evidence

Ms. Williams asserts that new evidence, obtained and submitted after the

ALJ’s July 2002 decision, requires a remand to the agency. She relies primarily on

a report by Georgeanne Bley, Ph.D., dated March 23, 2005, which describes

Ms. Williams’ psychological limitations. She has also submitted a September 9,

2003 report by Dr. Hammerberg finding “a right long thoracic neuropathy,” and an

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April 17, 2003 MRI by Dr. Solsberg. Attachs. to plaintiff’s motion to correct

omissions. 4

Sentence six of 42 U.S.C. § 405(g) authorizes a district court to remand to the

agency when “new and material evidence comes to light, and there is good cause for

failing to incorporate such evidence in the earlier proceeding.” Nguyen v. Shalala,

43 F.3d 1400, 1403 (10th Cir. 1994). A remand is not appropriate in this case

because the new evidence does not demonstrate that the findings relate back to the

period on or before the date of the ALJ’s decision. Cf. Chambers v. Barnhart,

389 F.3d 1139, 1142 (10th Cir. 2004) (holding that Appeals Council must consider

evidence submitted with a request for review if it is “(a) new, (b) material, and

(c) related to the period on or before the date of the ALJ’s decision”) (quotation

omitted). Moreover, Ms. Williams has not shown good cause for failing to present

this evidence to the Commissioner. Accordingly, the district court did not abuse its

discretion in denying Ms. Williams’ Rule 59(e) motion to alter or amend the

judgment to remand to the agency. See Loughridge v. Chiles Power Supply Co., 431

F.3d 1268, 1275 (10th Cir. 2005) (reviewing Rule 59(e) ruling for abuse of

discretion). 5

4
Ms. Williams has abandoned her claim that a remand is warranted based on
her June 2003 back surgery in Australia.
5
Ms. Williams apparently has filed a new application for benefits based on
the medical evidence obtained after the ALJ’s decision. Under these
(continued...)

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 Pending Motions

Ms. Williams’ motions to proceed on appeal in forma pauperis, and to correct

omissions in the record are granted. Her motion to remand to the district court for

further proceedings is denied. The judgment of the district court is AFFIRMED.

Entered for the Court

Mary Beck Briscoe
Circuit Judge

5
(...continued)
circumstances, a new application was the proper procedure for Ms. Williams to
claim entitlement to benefits based on a deterioration in her condition. See, e.g.,
Jones v. Callahan, 122 F.3d 1148, 1154 (8th Cir. 1997) (“Additional evidence
showing a deterioration in a claimant’s condition significantly after the date of
the Commissioner’s final decision is not a material basis for remand, although it
may be grounds for a new application of benefits.”).

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