Fagan v. Barnhart

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
July 3, 2007
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court

R HO N D A J. FA G A N ,

Plaintiff-Appellant,

v. No. 06-6261
(D.C. No. CIV-05-174-F)
M ICH AEL J. ASTRU E, * (W .D. Okla.)
Commissioner, Social Security
Administration,

Defendant-Appellee.

OR D ER AND JUDGM ENT **

Before M cCO NNELL, PO RFILIO, and BALDOCK , Circuit Judges.

Rhonda J. Fagan appeals the district court’s order affirming the

Commissioner’s denial of her application for social security disability insurance

*
Pursuant to Fed. R. App. P. 43(c)(2), M ichael J. Astrue is substituted for
Jo Anne B. Barnhart as appellee in this appeal.
**
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
benefits (DIB) under Title II of the Social Security Act. W e have jurisdiction

under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291. W e affirm.

I.

M s. Fagan applied for DIB in fall 2002, alleging an inability to work since

December 20, 2001, due to obesity, polycystic ovarian syndrome (PCOS), and

confusion. The agency denied her application initially and on reconsideration.

M s. Fagan then received a de novo hearing before an administrative law

judge (A LJ), at which, accompanied by counsel, both she and a vocational expert

(V E) testified. The ALJ denied M s. Fagan benefits at step five of the applicable

five-step sequential evaluation process. See Williams v. Bowen, 844 F.2d 748,

750-52 (10th Cir. 1988). At step one, the ALJ concluded M s. Fagan had not

engaged in substantial gainful activity during the time frame relevant to this

case. 1 At steps two and three, the ALJ determined M s. Fagan suffered from

severe impairments (obesity, hyperalimentation, and PCOS), but concluded that

they did not meet or equal, singly or in combination, any impairment described in

the listing of impairments. The ALJ also found that although M s. Fagan

experiences some pain and discomfort, her allegations of disabling pain were not

supported by credible facts and findings, and her allegations regarding her

1
The relevant time frame is from December 20, 2001, M s. Fagan’s alleged
onset date, through August 27, 2004, the date of the Commissioner’s final
decision.

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functional limitations were not totally credible. At step four, the ALJ found

M s. Fagan retained the residual functional capacity (RFC) to perform light work

(limited by her ability to only occasionally perform all postural activities), but

concluded that she could not return to her past relevant work because that work

required exertion beyond her RFC. And, at step five, after considering her RFC,

age, education, work experience, the M edical-Vocational Guidelines, 20 C.F.R.

pt. 404, Subpt. P, App. 2, Rule 201.29, and the testimony of the VE, the ALJ

denied benefits, concluding that M s. Fagan could perform other work that exists

in significant numbers in the national economy.

The Appeals Council denied M s. Fagan’s request for review, making the

ALJ’s decision the Commissioner’s final decision. See Jensen v. Barnhart,

436 F.3d 1163, 1164 (10th Cir. 2006). M s. Fagan then filed a complaint for

judicial review in federal district court, and the case was referred to a magistrate

judge. The magistrate judge recommended the district court affirm the denial of

benefits, and the district court adopted the recommendation. M s. Fagan appeals.

II.

M s. Fagan asserts that (A) the ALJ failed to properly consider her obesity

in combination with her other impairments, and (B) substantial evidence does not

support the A LJ’s conclusion that she retained the R FC to perform light work

(limited by her ability to only occasionally perform all postural activities). “W e

review the [C]ommissioner’s decision only to determine whether substantial

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evidence supports that decision and whether the applicable legal standards were

applied correctly.” Shepherd v. Apfel, 184 F.3d 1196, 1199 (10th Cir. 1999).

A.

M s. Fagan’s first argument is premised on Social Security Ruling (SSR)

02-01p, 2000 W L 628049. 2 SSR 02-01p states that obesity is a medically

determinable impairment that an ALJ must consider in evaluating disability, that

the combined effects of obesity and other impairments can be greater than the

effects of each single impairment considered individually, and that obesity must

be considered when assessing RFC. Id. at *1, *5-6, *7. It is M s. Fagan’s position

that the ALJ erroneously failed to consider her obesity in combination with her

other impairments, asserting that her “impairments . . . might be expected to be

aggravated by the effects of [her] massive obesity.” Aplt. Opening Br. at 18.

Although the ALJ did not reference SSR 02-01p or explicitly examine the

impact of M s. Fagan’s obesity on each of her (non-severe) impairments, we have

reviewed the record and do not believe these omissions require a remand under

the facts of this case. The ALJ discussed the evidence and why he found

M s. Fagan not disabled at step three, see Clifton v. Chater, 79 F.3d 1007, 1009

2
Social security rulings do not carry the force of law ; however, they are
generally entitled to deference because they constitute the Social Security
Administration’s interpretations of its own regulations and the statute that it
administers. Walker v. Sec’y of Health & Human Servs., 943 F.2d 1257, 1259-60
(10th Cir. 1991).

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(10th Cir. 1996), 3 and, the claimant— upon whom the burden rests at step

three— has failed to do more than suggest that the ALJ should have speculated

about the impact her obesity may have on her other impairments, see, e.g., Aplt.

Opening Br. at 21. SSR 02-01p, however, specifically prohibits adjudicators from

engaging in such speculation:

[W ]e will not make assumptions about the severity or functional
effects of obesity combined with other impairments. Obesity in
combination with another impairment may or may not increase the
severity or functional limitations of the other impairment. We will
evaluate each case based on the information in the case record.

3
In particular, the ALJ discussed M s. Fagan’s arm pain consistent with
neuropathy or paresthesia; her back pain, “which is aggravated by her weight”;
her diagnoses of PCOS, severe obstructive sleep apnea, and “degenerative
narrowing of the lumbosacral junction with grade I forward displacement of L5
with respect to S1.” Aplt. App., Vol. II at 48. He also observed that M s. Fagan,
who stands five feet two inches, weighed three hundred thirty-six pounds in
September 2002, and that the only functional limitation imposed by a treating
physician was Dr. Clapp’s recommendation she “limit repetitive motion for her
arm pain.” Id.; see also id., Vol. II at 168, 173. After concluding that her severe
impairments did not meet or equal, singly or in combination, any impairment
described in the listing of impairments, the ALJ explained his determination,
stating:
The claimant has had complaints of back pain and [has been]
diagnosed with some degenerative narrowing. On examination there
[are] no neurological deficits, she has no extreme limitation of
motion, there is no report of her having extreme difficulty
ambulating and [she] does not use an assistive device. Her main
problem is obesity. The pain in the upper right extremity has been
conservatively treated with ice and Ibuprofen. She does not have
evidence of [an] inability to perform fine and gross movements
effectively.
Id., Vol. II at 48. See 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 1.00(B)(2)(b)(1)
(“Inability to ambulate effectively means an extreme limitation of the ability to
walk.”).

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2000 W L 628049, at *6. Further, in assessing M s. Fagan’s RFC the ALJ imposed

postural limitations and limited her to light and sedentary work, Aplt. A pp.,

Vol. II at 52, consistent with the review ing state agency’s physician’s assessment,

which assessment was apparently predicated on M s. Fagan’s “obesity (BM I

62.9),” her history of PCOS, and her treating physicians’ records reflecting pelvic

pain, id., Vol. II at 156.

W e also reject M s. Fagan’s contention, intertwined in her argument

concerning SSR 02-01p, that the ALJ erroneously failed to order a consultative

physical exam. An ALJ “has broad latitude in ordering a consultative

examination.” Diaz v. Sec’y of Health & H um an Servs., 898 F.2d 774, 778

(10th Cir. 1990). Generally, only where “there is a direct conflict in the medical

evidence requiring resolution or where the medical evidence in the record is

inconclusive, [is] a consultative exam . . . required for proper resolution of a

disability claim.” Hawkins v. Chater, 113 F.3d 1162, 1166 (10th Cir. 1997)

(citations omitted). In this case, M s. Fagan fails to identify a direct conflict in

the medical evidence (nor have we found one), and despite her mention of x-rays

(presumably those taken of her back on June 16, 2004, Aplt. App., Vol. II at 167),

“and other evidence,” Aplt. Opening Br. at 22, she sheds no light on why the

medical evidence was inconclusive such that the ALJ should have ordered a

consultative exam. See Hawkins, 113 F.3d at 1168 (“The duty to develop the

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record is limited to fully and fairly developing the record as to material issues.”

(quotations and brackets omitted)).

Similarly, M s. Fagan’s criticism of the ALJ’s assessment of her ability to

ambulate, which is also intertwined in her argument regarding SSR 02-01p, lacks

merit. On this point, she apparently argues that but for the A LJ’s

misapprehension of the evidence, she may have been able to meet a listing at step

three because she “is unable to ‘sustain a reasonable walking pace over a

sufficient distance to be able to carry out activities of daily living.’” A plt.

Opening Br. at 23 (quoting 20 C.F.R. Pt. 404, Subpt. P, App. 1

§ 1.00(B)(2)(b)(2)). The primary evidence in support of this proposition is

M s. Fagan’s administrative hearing testimony that the ALJ found to be not totally

credible. Cf. Diaz, 898 F.2d at 777 (noting that uncorroborated subjective

evidence is not sufficient to establish disability). The only objective evidence

supporting her claim is treating physician Clapp’s examination of her right calf on

April 24, 2004, upon her report of “unbearable” pain “if she tries to walk or

stand.” A plt. App., Vol. II at 172. Based on his exam, he diagnosed her with

“M uscle strain/Achilles tendinitis,” for which he prescribed anti-inflammatories,

ice and/or heat, limited activity, and losing weight. Id., Vol. II at 171, 172.

No further difficulty with ambulation is reported in any subsequent medical

records, nor is there any indication such difficulty was expected to last at least

tw elve months. See 20 C.F.R. § 404.1509.

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 B.

M s. Fagan’s second argument on appeal, like her first, contains several

interw oven sub-arguments. W e address each in turn.

She first claims that the ALJ erroneously “disregard[ed]” her diagnosis of

abdominal hernia, thereby failing to explain why it “could not be associated with

[her] complaints of pain” and why it did not limit her ability to perform light

work. Aplt. Opening Br. at 29. The ALJ, however, specifically noted that the

record contained a 2002 “opinion that she had a ventral wall hernia,” Aplt. App,

Vol. II at 48, he just did not find any resulting restrictions or limitations. As far

as we can tell, no resulting restrictions or limitations are contained in the medical

record and M s. Fagan does not direct our attention to any. 4 Under the

circumstances then, we are unpersuaded by M s. Fagan’s argument. See H oward

v. Barnhart, 379 F.3d 945, 948 (10th Cir. 2004) (“W e disagree with claimant’s

implicit argument that the agency, not the claimant, has the burden to provide

evidence of claimant’s functional limitations.”); Bernal v. Bowen, 851 F.2d 297,

301 (10th Cir. 1988) (stating that a diagnosis does not “automatically mean” that

a claimant “is disabled”).

4
The medical record contains only two other references to a hernia, see Aplt.
App., Vol. II at 144 (recommending “CT” “looking for herniation”); id., Vol. II at
176 (stating that “umbilical hernia was noted at last visit,” but treatment notes
from that visit are not part of the medical record).

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 She next claims that the ALJ neglected his “duty to discuss” her diagnosis

of sleep apnea and explain his “disregard” of that diagnosis. Aplt. Opening Br.

at 29-30. W e disagree. See Bernal, 851 F.2d at 301. The ALJ specifically

observed that M s. Fagan’s July 2003 sleep study revealed sleep apnea and that

arrangements were made for home trial of a nasal CPA P, Aplt. App., Vol. II at 47,

“therapy [that] was well tolerated,” id., Vol. II at 164. Her medical records from

after July 2003 do not show that she sought any additional treatment for sleep

apnea and there is no indication it thereafter caused any resulting restrictions or

limitations. Her contrary suggestion is unsupported by the record, and as such,

the ALJ’s brief discussion of sleep apnea was not erroneous. See Howard,

379 F.3d at 948.

M s. Fagan also contends that the A LJ failed to develop the record

concerning her “possible mental impairment,” asserting in conclusory fashion that

the ALJ erroneously failed to hold the record open or obtain mental health

treatment notes, order a consultative mental examination, or re-contact treating

physician Clapp to clarify why he prescribed her the antidepressant Effexor.

Aplt. Opening Br. at 30. 5 As she states, treating physician Clapp did note on

5
W e note that the ALJ asked counsel whether the record needed to be held
open. Counsel responded: “Judge, I’m going to make a request, possibly at the
end of the case, that you may want to leave it open, but I’ll leave that as your
decision.” A plt. App., Vol. II at 181. The Judge replied, “O kay, then we’ll
(continued...)

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several occasions her flat affect and depressed mood, for which he prescribed

Effexor. And, she testified at her administrative hearing on August 24, 2004, that

she had begun seeing a counselor one or two weeks earlier, but she acknowledged

that there were not “any records” from her treatment, and she had not “even

got[ten] all the paperw ork filled out, it’s so new.” Aplt. A pp., Vol. II at 191.

Further, she is silent regarding what evidence would have been submitted if the

record had been held open and there is no indication she or her counsel ever tried

to obtain or submit the mental health treatment notes she claims the ALJ should

have obtained, thereby casting considerable doubt on the relevance of the

evidence and existence of any prejudice she may have suffered from the A LJ’s

not obtaining it. See Hawkins, 113 F.3d at 1169 (citing Shannon v. Chater,

54 F.3d 484, 488 (8th Cir. 1995)); see also id. at 1164 (“It is beyond dispute

that the burden to prove disability . . . is on the claimant.”); 20 C.F.R.

§ 404.1512(a) (“[Y]ou must bring to our attention everything that shows that you

are . . . disabled.”). W e therefore conclude that the ALJ did not commit

reversible error by failing to hold the record open or obtain M s. Fagan’s

unidentified mental health treatment notes. W e likewise reject her contentions

that the ALJ should have ordered a consultative mental examination and

5
(...continued)
wait.” Id. At the close of the hearing, counsel did not ask the ALJ to hold the
record open.

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re-contacted Dr. Clapp. As previously noted, an ALJ “has broad latitude in

ordering a consultative examination,” Diaz, 898 F.2d at 778, and M s. Fagan fails

to identify a direct conflict in the medical evidence or explain why the medical

evidence was inconclusive such that the ALJ should have ordered a consultative

exam. See Hawkins, 113 F.3d at 1166. Similarly, she fails to identify a conflict,

ambiguity, or absence of pertinent information in a report from Dr. Clapp, such

that the ALJ should have re-contacted him. See Robinson v. Barnhart, 366 F.3d

1078, 1084 (10th Cir. 2004); White v. Barnhart, 287 F.3d 903, 908 (10th Cir.

2001) (stating “it is the inadequacy of the evidence the ALJ receives from the

claimant’s treating physician that triggers the duty” (quotations and brackets

omitted)).

Finally, in a related argument, M s. Fagan asserts that the ALJ erred by not

obtaining “the report from her neurological evaluations,” because her neurologic

impairments allegedly caused her arm pain and recurrent headaches. Aplt.

Opening Br. 30-31. Again, there is no indication either M s. Fagan or her counsel

ever tried to obtain or submit the report she claims the ALJ should have obtained.

See Hawkins, 113 F.3d at 1169 (citing Shannon, 54 F.3d at 488); id. at 1164;

20 C.F.R. § 404.1512(a). Indeed, it is unclear whether “the report” even existed

at the time of the hearing. See Aplt. App., Vol. II at 173-74, 171, 170. W e

therefore reject this allegation of error.

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 III.

The record contains substantial evidence to support the C ommissioner’s

finding of nondisability and the correct legal standards were applied. The

judgm ent of the district court is AFFIRMED.

Entered for the Court

Bobby R. Baldock
Circuit Judge

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