* Effective March 31, 1995, the functions of the Secretary of Health and

Human Services in social security cases were transferred to the Commissioner of

Social Security. P.L. No. 103-296. Pursuant to Fed. R. App. P. 43(c), Shirley S.

Chater, Commissioner of Social Security, is substituted for Donna E. Shalala,

Secretary of Health and Human Services, as the defendant in this action. 

Although we have substituted the Commissioner for the Secretary in the caption,

in the text we continue to refer to the Secretary because she was the appropriate

party at the time of the underlying decision. 

** This order and judgment is not binding precedent, except under the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. 

UNITED STATES COURT OF APPEALS

Filed 9/17/96

FOR THE TENTH CIRCUIT

JERILYN BURGESS,

Plaintiff-Appellant,

v.

SHIRLEY S. CHATER,

Commissioner, Social Security

Administration,*

Defendant-Appellee.

No. 96-7018

(D.C. No. CV-94-534-B)

(E.D. Okla.)

ORDER AND JUDGMENT**

Before BRORBY, BARRETT, and EBEL, Circuit Judges.
1 See Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988)(explaining

the five-step sequential process).

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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) and 10th Cir. R. 34.1.9. The case is

therefore ordered submitted without oral argument.

Plaintiff Jerilyn Burgess appeals from an order of the district court

affirming the decision of the Secretary to award her benefits for a closed period

of time--December 29, 1988 through July 31, 1990. Ms. Burgess asserts that she

has not regained the ability to work and her benefits should continue. We affirm.

"We review the Secretary's decision to determine whether her factual

findings are supported by substantial evidence in the record viewed as a whole

and whether she applied the correct legal standards. Substantial evidence is such

relevant evidence as a reasonable mind might accept as adequate to support a

conclusion." Castellano v. Secretary of Health & Human Servs., 26 F.3d 1027,

1028 (10th Cir. 1994)(citations and quotation omitted).

The administrative law judge determined at step five

1

 that as of July 31,

1990, Ms. Burgess had regained the ability to perform the full range of sedentary

work. Ms. Burgess argues this determination was incorrect because the

administrative law judge did not correctly evaluate her mental impairments which
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are the result of her use of narcotic pain relievers. In particular, Ms. Burgess

argues the administrative law judge incorrectly interpreted the medical assessment

form filled out by the consulting psychologist, Dr. Gordon. Ms. Burgess cites to

Cruse v. United States Department of Health & Human Services, 49 F.3d 614

(10th Cir. 1995) to support her argument. Ms. Burgess raises no argument as to

the administrative law judge’s determination that her physical impairments have

resolved sufficiently to permit her to perform sedentary work.

Ms. Burgess originally claimed disability only due to back problems and

resulting pain. On appeal, the district court remanded the case finding that the

record was not sufficiently developed to determine whether Ms. Burgess had the

physical ability to engage in substantial gainful activity during the relevant time

period. On remand, the administrative law judge, stating that he was unsure what

additional information the district court desired, ordered both an orthopedic and a

mental consultation.

Physically, Ms. Burgess was noted to have been enrolled at a junior college

taking computer sciences and accounting since January 1990. She takes two

classes a semester with three to four hours of homework a week per class. She

handles the time in the classroom well as long as she can stand up when she needs

to. She has a grade point average of 3.14. She also works in the bursar’s office

doing accounting and data entry for four hours a day as part of a work-study
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program. She drives seventeen miles each way to school every day. She does not

do heavy housework and does no yard work. Ms. Burgess stated that she felt she

could work in the bursar’s office eight hours a day if she could stand when she

needed to. She likes to take an afternoon nap when she can to rest her legs.

Dr. Gordon noted that her chief complaint was of pain resulting from her

back problems. Dr. Gordon noted that Ms. Burgess did show depression and

anxiety features. He concluded she had a moderate dysthymic disorder and could

be addicted to the narcotic analgesics she takes. He determined that while she

might have chronic pain syndrome, it was not severe. He concluded that Ms.

Burgess was capable of performing sedentary work and “must be considered to be

a viable member of our work force.” Appellant’s App. Vol. II at 306.

As part of his evaluation, Dr. Gordon filled out the “Medical Assessment of

Ability to do Work-Related Activities (Mental)” form. He rated Ms. Burgess in

most areas as “fair.” The form defines the word “fair” to mean that the

individual’s ability to function is seriously limited, but not precluded.

In Cruse, we held that, according to the form’s definition, a marking of

“fair” on the medical assessment form was evidence of disability. 49 F.3d at 618. 

Ms. Burgess urges us to apply that holding without consideration of the rest of the

record. This we will not do. As noted supra, p.2, we review the record as a

whole (as does the administrative law judge in making his original determination). 
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In Cruse, we not only reviewed the rating on the medical assessment form, but

also examined the doctors’ written notes which clearly supported a finding of a

severe mental impairment. 49 F.3d at 616, 618-19.

The administrative law judge is required to “evaluate every medical

opinion” he receives. 20 C.F.R. § 404.1527(d). Further, the administrative law

judge may reject a professional’s opinion, if the professional’s conclusions are

not supported by that professional’s own records. Cf. Castellano, 26 F.3d at

1029.

Here, no evidence supports Dr. Gordon’s ratings on the medical assessment

form. Dr. Gordon concluded that Ms. Burgess is capable of working. Indeed,

Ms. Burgess even agreed that she could work if her need to stand could be

accommodated. Ms. Burgess’ current ability to hold a part-time job while going

to school and maintaining an excellent grade point average belies any attempt to

claim that any mental dysfunction she may have affects her to the point of

disability.

We caution counsel against attempting to apply case holdings without first

examining whether the facts underlying his client’s claims support application of

the holding. At no time prior to the psychiatric consultation had Ms. Burgess

claimed any mental impairment. Indeed, at the hearing on remand, counsel stated

that this was “solely an orthopedic case.” Appellant’s App. Vol. II at 179. Only
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after Cruse was decided (and on appeal to the district court), did counsel advance

the argument that Ms. Burgess was disabled due to a mental impairment. We

have not, nor will we, elevate the blanket use of a case holding over the proper

examination and consideration of the record as a whole.

The judgment of the United States District Court for the Eastern District of

Oklahoma is AFFIRMED.

Entered for the Court

Wade Brorby

Circuit Judge