* Pursuant to Fed. R. App. P. 43(c), Kenneth S. Apfel is substituted for

John J. Callahan, former Acting Commissioner of Social Security, as the

defendant in this action.

** This order and judgment is not binding precedent, except under the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

F I L E D

United States Court of Appeals

Tenth Circuit

SEP 18 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

TERESA D. WELLS,

Plaintiff-Appellant,

v.

KENNETH S. APFEL, Commissioner,

Social Security Administration, *

Defendant-Appellee.

No. 98-7016

(D.C. No. 96-CV-648-S)

(E.D. Okla.)

ORDER AND JUDGMENT **

Before BRORBY, McKAY, and BRISCOE , Circuit Judges.

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
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argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument. 

Plaintiff Teresa D. Wells appeals from the denial of supplemental security

income benefits. She argues that the administrative law judge (ALJ) erred in

finding that she does not suffer from chronic fatigue that interferes with her

ability to perform the full range of sedentary work, and inappropriately shifted the

burden back to her at step five to establish that she could not perform sedentary

work. We have jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g), and

affirm. 

Plaintiff was born on October 23, 1963, and was diagnosed with adult onset

diabetes in May 1992. She requires insulin and has been prescribed exercise and

a specific diet to help manage her disease. She alleges that she has been disabled

since October 7, 1993. She has a seventh grade education, and has worked in the

snack bar at a Walmart store and at a Dairy Queen. 

The ALJ denied plaintiff’s claim at step five of the evaluation sequence. 

See generally Williams v. Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988). He

concluded at step three that plaintiff did not meet any of the listings, and decided

at step four that plaintiff could not return to her past type of work. He then

determined that plaintiff nevertheless retains the residual functional capacity

(RFC) to perform the full range of sedentary work unlimited by any significant
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nonexertional impairments. He noted in particular that one of plaintiff’s

physicians was of the opinion that she was not disabled “‘unless lack of common

sense is an indication for a grant of disability.’” Appellant’s App., Vol. II at 22

(quoting March 18, 1993 letter of Robert H. Hazelwood, M.D., Appellant’s App.,

Vol. II at 155). Based on vocational testimony and the medical-vocational

guidelines, the ALJ concluded that plaintiff is not disabled. The Appeals Council

considered additional medical evidence but denied review, making the ALJ’s

decision the Commissioner’s final decision.

Plaintiff then brought this suit. The magistrate judge found no error and

recommended that the Commissioner’s decision be affirmed. The district court

summarily adopted the magistrate judge’s recommendation.

We review the Commissioner’s decision on the whole record to determine

only whether the factual findings are supported by substantial evidence and the

correct legal standards were applied. See Goatcher v. United States Dep’t of

Health & Human Servs. , 52 F.3d 288, 289 (10th Cir. 1995). We may not reweigh

the evidence or substitute our judgment for that of the agency. See Kelley v.

Chater , 62 F.3d 335, 337 (10th Cir. 1995). Substantial evidence is “more than a

mere scintilla. It means 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 omitted).
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Under these standards, we find no error in the ALJ’s factual findings or

legal analysis. Plaintiff maintains that her alleged chronic fatigue is caused by

blood sugar readings over 200. Although the medical evidence is not completely

one-sided, substantial evidence shows that plaintiff has high blood sugar only

periodically in the evening, and her diabetes is otherwise well controlled. See,

e.g. , Appellant’s App., Vol. II at 181-83, 187, 200. Because there is substantial

evidence showing that plaintiff’s blood sugar is not persistently high, the ALJ’s

finding that plaintiff does not suffer significant fatigue is also supported by

substantial evidence. This is not a case in which the ALJ relied on “the absence

of evidence” to reach his decision. See Thompson v. Sullivan , 987 F.2d 1482,

1491 (10th Cir. 1993). He did not improperly shift the burden at step five back to

plaintiff. Rather, plaintiff had the burden at all steps of the sequential evaluation

process to provide objective medical evidence that her blood sugar is persistently

high. See 42 U.S.C. § 423(d)(5); 20 C.F.R. §§ 416.908, 416.912, 416.928. 

The judgment of the district court is AFFIRMED.

Entered for the Court

Mary Beck Briscoe 

Circuit Judge