* 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. Proc. 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** This order and judgment is not binding precedent, except under the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 8/23/96

FOR THE TENTH CIRCUIT

MARILYN DICKERSON,

Plaintiff-Appellant,

v.

SHIRLEY S. CHATER,

Commissioner, Social Security

Administration,*

Defendant-Appellee.

No. 95-5277

(D.C. No. 94-C-332-J)

(N.D. Okla.)

ORDER AND JUDGMENT**

Before ANDERSON, LOGAN, and MURPHY, Circuit Judges.
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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.

Marilyn Dickerson appeals from an order of the district court affirming the

Secretary’s decision denying her application for social security disability benefits. 

Ms. Dickerson filed for disability benefits on December 28, 1988. After an initial

denial, hearing before an administrative law judge (ALJ), and denial of review by

the Appeals Council, Ms. Dickerson sought review in the district court. The

district court remanded to the Secretary, at her request, to consider additional

vocational expert testimony and to more thoroughly assess Ms. Dickerson’s

residual functional capacity. The administrative law judge held a second

administrative hearing on September 21, 1992, after which he again denied Ms.

Dickerson benefits. The Appeals Council again denied review, and

Ms. Dickerson filed suit in district court. The district court affirmed the

Secretary’s decision, and Ms. Dickerson appealed to this court.

We review the Secretary’s decision to determine whether the factual

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

and whether the correct legal standards were applied. Andrade v. Secretary of
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Health & Human Servs., 985 F.2d 1045, 1047 (10th Cir. 1993). Substantial

evidence is “such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” Fowler v. Bowen, 876 F.2d 1451, 1453 (10th

Cir. 1989)(quotation omitted). The Secretary has established a five-step

evaluation process pursuant to the Social Security Act for determining whether a

claimant is disabled within the meaning of the Act. See Williams v. Bowen, 844

F.2d 748, 750-52 (10th Cir. 1988)(discussing five-step disability test). When the

analysis reaches step five, the Secretary bears the burden of showing that a

claimant retains the capacity to perform other work and that such work exists in

the national economy. Id. at 751.

Here, the ALJ found that Ms. Dickerson could not perform her past relevant

work as a nurses’s aide, receptionist, cook, VISTA volunteer, and teacher’s aide. 

Reaching step five, he found, however, that she retained the residual functional

capacity to perform the full range of sedentary work, except for occasional lifting

of more than fifteen pounds; standing or walking for more than one hour in an

eight-hour workday or for more than fifteen minutes without interruption;

climbing, stooping, kneeling, balancing, crouching and crawling; working at

unprotected heights, working around moving machinery, and working in

environments containing temperature extremes. He then applied the MedicalVocational Guidelines, 20 C.F.R. § 404, Subpt. P, App. 2, Rules 201.28 and
1

(continued...)

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201.29 (the grids) as a framework, considered testimony from a vocational expert,

and concluded that Ms. Dickerson was not disabled.

Ms. Dickerson contends that the ALJ’s decision is not supported by

substantial evidence because he improperly rejected the opinions of her treating

physician, and a consulting physician, that she is disabled. She challenges his

finding at step three that her impairments did not meet or equal a listed

impairment, and contends that he improperly evaluated her complaints of pain.

The medical evidence shows that Ms. Dickerson suffers from chronic

neuritis of the right leg with peroneal nerve palsy, status post femur condyle

fracture and multiple fractures of her right lower leg secondary to an automobile

accident, and severe lower back pain with chronic lumbosacral disease. She

contends that her condition “substantially equals” the criteria for one or more of

sections 1.05(C), 1.11, and 11.14 in the Listing of Impairments, 20 C.F.R. § 404,

subpt. P, App. 1. 

A claimant who seeks to show that his impairment is “equivalent” to a

listed impairment must present medical findings equal to all the criteria for that

impairment. Sullivan v. Zebley, 493 U.S. 521, 531 (1990). The ALJ considered

Ms. Dickerson’s claim that her condition meets or equals the criteria for Listing

1.05(C),1

 and determined that it did not. We have reviewed the record carefully
1

(...continued)

Listing 1.05C states as follows: 

C. Other vertebrogenic disorders (e.g. herniated nucleus puplosus,

spinal stenosis) with the following persisting for at least 3 months

despite prescribed therapy and expected to last 12 months. With both

1 and 2:

1. Pain, muscle spasm, and significant limitation of motion in the

spine; and 

2. Appropriate radicular distribution of significant motor loss with

muscle weakness and sensory and reflex loss.

2 Listing 1.11 states as follows:

Fracture of the femur, tibia, tarsal bone of pelvis with solid union not

evident on X-ray and not clinically solid, when such determination is

feasible, and return to full weight-bearing status did not occur or is

not expected to occur within 12 months of onset.

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concerning Ms. Dickerson’s allegations of vertebrogenic disorders, and have

determined that the ALJ’s conclusion, based on the medical evidence, that she

does not meet the listing, is supported by substantial evidence.

Nor does Ms. Dickerson’s condition satisfy Listing 1.11.2 Although she did

suffer a fracture of her tibia and femur, and there is evidence that she was unable

to return to full weight-bearing status, she did have a solid union of her fractures. 

X-rays taken on August 10, 1989 indicate that a solid union had occurred as of

that date. See Appellant’s Supp. App., Vol. 1 at 322. Therefore, she fails to meet

all relevant criteria for this listing.
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Ms. Dickerson also claims that her condition meets or equals Listing 11.14.

She has failed to show that she raised this issue in the district court. We do not

consider issues raised for the first time on appeal. See Crow v. Shalala, 40 F.3d

323, 324 (10th Cir. 1994).

Ms. Dickerson next contends that the ALJ improperly ignored her

physicians’ opinions that she is disabled. Dr. Muckula, her treating physician,

opined on June 18, 1991 that she was “completely and totally disabled within the

scope of the Social Security [guidelines],” Appellant’s Supp. App., Vol. 2 at 658,

and again on April 15, 1992, that it was his medical opinion that Ms. Dickerson

“is totally and permanently disabled” within those guidelines, id. at 661. Dr.

Cooper, a consulting physician, stated in an examination report dated March 5,

1989, that in his opinion, Ms. Dickerson was “temporarily totally disabled and she

should perhaps be examined at a later date to get more definitive information

concerning any permanent treatment.” Id. at 666. 

The Secretary asserts in her brief that the ALJ was free to disregard Dr.

Muckula’s opinion, because he was not her treating physician. It is clear,

however, that Dr. Muckula did treat Ms. Dickerson; in fact, the ALJ himself

described Dr. Muckula as her treating physician. Id. at 409. Since Dr. Muckula

was Ms. Dickerson’s treating physician, the ALJ was required to give great

weight to his opinion concerning her disability, and to supply a specific,
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legitimate reason if he chose to reject it. Washington v. Shalala, 37 F.3d 1437,

1440 (10th Cir. 1994).

The ALJ rejected Dr. Muckula’s opinion for several reasons. First, he

believed that the medical evidence did not support Dr. Muckula’s conclusion that

Ms. Dickerson met the criteria for sections 1.03A and B and 1.05(C) in the

Listing of Impairments, 20 C.F.R. § 404, subpt. P, App. 1. We have already

concluded that the ALJ’s conclusion that she did not meet Listing 1.05(C) is

supported by substantial evidence. Having reviewed the entire record, we

conclude that the same also is true with regard to Listings 1.03A and B. Thus,

Dr. Muckula’s conclusion that Ms. Dickerson is disabled because she meets these

listings is not supported by the medical evidence.

The ALJ also rejected Dr. Muckula’s opinion concerning Ms. Dickerson’s

back problems as inconsistent with subsequent x-rays and with Dr. Dandridge’s

evaluation of the severity of her complaints. Dr. Dandridge, the ALJ noted, is a

board-certified orthopedic surgeon, while Dr. Muckula is a family practitioner. 

See 20 C.F.R. § 404.1527(d)(5) (greater weight given to specialist’s opinion in

area of his or her specialty). The ALJ permissibly rejected Dr. Muckula’s

opinion. 

Dr. Cooper merely stated that Ms. Dickerson should be considered

temporarily totally disabled. He did not state that she was permanently disabled,
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and did not explain the basis of his opinion of disability. The ALJ could properly

reject consultant Dr. Cooper’s statement in reaching his ultimate conclusion that

Ms. Dickerson is not disabled. See 20 C.F.R. § 404.1527(e)(2) (ultimate

responsibility for determining disability reserved to Secretary).

Finally, Ms. Dickerson complains that the ALJ improperly evaluated her

complaints of pain. We have reviewed the reasons stated in his decision for

finding Ms. Dickerson’s allegations of pain not credible. The ALJ properly

evaluated Ms. Dickerson’s allegations of pain using the criteria set forth in Luna

v. Bowen, 834 F.2d 161, 165-66 (10th Cir. 1987), and found them not credible. 

He took her nonexertional impairments, including pain, into consideration in

assessing her residual functional capacity and in formulating hypothetical

questions to the vocational expert. The ALJ’s decision is supported by substantial

evidence.

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

of Oklahoma is AFFIRMED.

Entered for the Court

Stephen H. Anderson

Circuit Judge