* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** The Honorable J. Thomas Marten, District Judge, Uni ted States District Court for the District of Kansas, sitting by design ation. 

## F I L E D United States Court of Appeals Tenth Circuit 

### SEP 15 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

WILLIAM B. EDEN,

Plaintiff-Appellant,

v. JO ANNE B. BARNHART, Commissioner, Social Security Administration,

Defendant-Appellee. No. 04-7019 (D.C. No. 03-CV-177-WH) (E.D. Okla.)

ORDER AND JUDGMENT *

Before ANDERSON and BALDOCK , Circuit Judges, and MARTEN , ** District Judge.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision 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.-2-

Plaintiff William B. Eden appeals the district court’s affirmance of the decision of the Commissioner of the Social SecurityAdministration denying his applications for disability insurance and supplemen tal security income (SSI) benefits. Mr. Eden argues (1) the administrative l aw judge (ALJ) erred by failing to find that he suffers from a severe psychological impairment, and (2) the ALJ failed to properly evaluate his treating physicians ’ opinions. We have jurisdiction to review this appeal under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g), and we affirm. In his applications for disability insurance and SS I benefits, Mr. Eden claimed disability as of May 15, 1998, due to chron ic low back pain with numbness in his left foot, neck and shoulder pain, inability to raise his arm above his head or to hold his arms above chest level verylong, weakness in his hands causing him to drop things, and depression with a p rior suicide attempt. The claims were denied initially and on reconsideration . After holding a de novo hearing, the ALJ denied benefits. For several reas ons, the Appeals Council remanded for further proceedings. A new ALJ held asecond hearing, and subsequently decided that Mr. Eden was not entitled to benefits. In doing so, the ALJ determined at step two of the five-step seq uential test for evaluating disability that Mr. Eden did not have a severe impa irment caused by either substance abuse or depression and at step four thathe can perform his past-3-

relevant work as a dispatcher. See 29 C.F.R. §§ 404.1520, 416.920 (setting forth five-step test). The Appeals Council denied Mr. Eden’s request for r eview, making the ALJ’s decision the final decision of the Commission er. Thereafter, Mr. Eden sought judicial review in the district court, asserting the same claims that he asserts on appeal. The magistrate judge issued fin dings and a recommendation to affirm the denial of benefits, which the district c ourt adopted. Mr. Eden appealed. Like the district court, “[w]e review the Commissio ner’s decision to determine whether the factual findings are supporte d by substantial evidence in the record and whether the correct legal standards were applied.” Watkins v. Barnhart , 350 F.3d 1297, 1299 (10th Cir. 2003). “Substanti al evidence is such relevant evidence as a reasonable mind might acceptas adequate to support a conclusion.” Doyal v. Barnhart , 331 F.3d 758, 760 (10th Cir. 2003) (quotations omitted). We will not reweigh the evidence or subs titute our judgment for that of the Commissioner. Decker v. Chater , 86 F.3d 953, 954 (10th Cir. 1996).
I. Mr. Eden argues the ALJ erred in failing to find th at he suffers from a severe psychological impairment. He further conten ds that in considering whether he suffers from such an impairment, the ALJ erroneously rejected-4-

substantial medical evidence showing that he is lim ited in his ability to do work-related activities due to an impairment. At step two, the claimant must prove that he has a medically severe impairment or combination of impairments that signi ficantly limits his ability to do basic work activities. 20 C.F.R. §§ 404.1521(a) , 416.921(a). “Basic work activities are ‘abilities and aptitudes necessary to do most jobs.’” Langley v. Barnhart , 373 F.3d 1116, 1123 (10th Cir. 2004) (quoting 20 C.F.R. § 404.1521(b)); see also 20 C.F.R. § 416.921(b). Basic work activities inc lude “[u]nderstanding, carrying out, and remembering simple instructions;” “[u]se of judgment;” “[r]esponding appropriately to supervisi on, co-workers and usual work situations;” and “[d]ealing with changes in a routine work setting.” 20 C.F.R. §§ 404.1521(b)(3)-(6), 416.921(b)(3)-(6). “The step two severity determination is based on me dical factors alone . . . .” Williamson v. Barnhart , 350 F.3d 1097, 1100 (10th Cir. 2003). Although step two requires only a “de minimis” show ing of impairment, a “claimant must show more than the mere presence of a condition or ailment.” Hinkle v. Apfel , 132 F.3d 1349, 1352 (10th Cir. 1997). To meet hi s burden, he must furnish medical and other evidence to support his claim. See Bowen v. Yuckert , 482 U.S. 137, 146 & n.5 (1987).1 On one occasion only the counselor noted marked dep ression. -5- There is evidence in the record that Mr. Eden abuse s alcohol and has depression and anxiety, for which he has received s ome treatment. Specifically, the record reflects that in 1997, Dr. Dennis, an in ternal medicine specialist, recommended that Mr. Eden see a psychiatrist and ab stain from alcohol use. Dr. Dennis noted that Mr. Eden had been on several medications for depression and stated that he had been treating Mr. Eden for d epression and anxiety. Dr. Dennis did not indicate that Mr. Eden could notwork, and indeed Mr. Eden was working full time in 1997. In 2000, after the Appeals Council remand, Mr. Eden sought mental health treatment at Mental Health Services of Southern Okl ahoma upon his attorney’s referral. Mr. Eden’s counselor recognized that Mr. Eden has slight depression 1 and alcohol abuse problems, but discontinued treatm ent after six months, because Mr. Eden was not compliant with his treatment plan, failed to attend counseling sessions, actually attended only four sessions and eventually failed to contact his counselor for more than ninety days. The counselorspeculated that Mr. Eden may have been using counseling to help with his disabil ity case. Fourteen months later, in 2002, Mr. Eden began ment al health treatment again at Mental Health Services of Southern Oklahom a. The progress notes from his counselors confirm that he has mild depression and anxiety and problems with2 This Statement indicated Mr. Eden would have moderate difficulty

remembering locations and work-like procedures, und erstanding and remembering very short and simple or detailed instructions, car rying out very short and simple instructions, sustaining an ordinary routine without special supervision, making (continued...) -6- alcohol abuse. Nothing in the notes suggested he c ould not work. Rather, they indicate that any impairments to his mental functio ns were slight. Mr. Eden points out that he was found to have a Glo bal Assessment of Functioning (GAF) score of 50. The GAF is used by clinicians to report an individual’s overall level of functioning. See American Psychiatric Association, Diagnostic & Statistical Manual of Mental Disorders 32 (Text Revision 4th ed. 2000). A score of 41-50 indicates “[s]erious sympt oms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) O R any serious impairment in social, occupational or school functioning (e.g., n o friends, unable to keep a job).” Id. at 34 (bolding omitted). As the ALJ noted, nothin g explains Mr. Eden’s score. No one who rated Mr. Eden’s GAF indicated that he could not work. Because a score of 50 may not relate to Mr. Eden’s ability to work, the score, standing alone, without further explanation, does not establish an impairment severely interfering with an ability to perform basic work activities. Mr. Eden challenges the ALJ’s decision to reject th e Medical Source Statement-Mental form of June 6, 2002 signed by Dr. Zielinski and one of his mental health counselors. 2 Mr. Eden believes Dr. Zielinski’s signature shows his2 (...continued)

simple work-related decisions, asking simple questi ons or requesting assistance, maintaining socially appropriate behavior and adher ing to basic standards of neatness and cleanliness, responding appropriately to changes in the work setting, being aware of normal hazards and taking appropriat e precautions, traveling in unfamiliar places or using public transportation, a nd setting realistic goals or making plans independently of others. The Statemen t also indicated he would have marked difficulty carrying out detailed instru ctions, maintaining attention and concentration for extended periods, performing activities within a schedule, maintaining regular attendance, being punctual with in customary tolerances, working in coordination with or proximity to others without being distracted by them, completing a normal workday and workweek with out interruptions from psychologically based symptoms and performing at a consistent pace without an unreasonable number and length of rest periods, int eracting appropriately with the general public, accepting instructions and respondi ng appropriately to criticism from supervisors, and getting along with coworkers or peers without distracting them or exhibiting behavioral extremes. -7- agreement with the report. As the ALJ stated, it d oes not appear from the record that Dr. Zielinski ever conducted any sessions withMr. Eden or examined him. Also, Mr. Eden cannot and does not refute the ALJ’s finding that no explanations or progress reports support the limits set forth onthe form. The reports indicate that Mr. Eden’s appearance and clothing were always neat, clean and appropriate; he was calm, attentive and cooperative; he interact ed with the counseling staff and his group therapy peers; he had no problems with intellectual functioning, thought content, orientation and short term memory; and he had only slight or occasional problems with remote memory, judgment an d insight. In other words, these reports show that Mr. Eden has “abilities and aptitudes necessary to do most jobs,” including “[u]nderstanding, carrying out, an d remembering simple3 Mr. Eden testified that he attempted suicide due to pain on December 23,

2001 and never returned to work. -8- instructions;” “[u]s[ing] judgment;” “[r]esponding appropriately to supervision, co-workers and usual work situations;” and “[d]eali ng with changes in a routine work setting.” 20 C.F.R. §§ 404.1521(b), 416.921(b ). Mr. Eden’s work history is also consistent with the medical evidence and inconsistent with his claimed inability to work. H e worked during much of the time he alleged he had a severe psychological impai rment limiting his ability to perform basic work activities. See Orrick v. Sullivan , 966 F.2d 368, 370 (8th Cir. 1992) (per curiam) (deciding that ability to work d espite impairment suggests claimant is not disabled); Dixon v. Sullivan , 905 F.2d 237, 238 (8th Cir. 1990) (holding that because claimant worked with his impa irments, he could not claim they are disabling). Specifically, Mr. Eden worked through August of 1998, eight months in 1999, and six months in 2001. 3
The record as a whole does not show that Mr. Eden’s inability to work was caused by psychological factors. See Williamson , 350 F.3d at 1100; cf. Coleman v. Chater , 58 F.3d 577, 580 (10th Cir. 1995) (recognizing th at merely because there is psychological overlay to pain does not mea n claimant has mental impairment preventing him from working). Because M r. Eden failed to show that any psychological impairment significantly limited his ability to engage in basic-9-

work activities, there is substantial evidence to s upport the ALJ’s decision that any psychological factors are not severe under step two. Mr. Eden argues that the ALJ should have ordered a consultative examination if he questioned the severity of Mr. Ed en’s depression and found the record inconclusive. “[W]here the medical evidence in the record is inconclusive, . . . a consultative examination is o ften required for proper resolution of a disability claim.” Hawkins v. Chater , 113 F.3d 1162, 1166 (10th Cir. 1997). But “the ALJ should ordinarily b e entitled to rely on the claimant’s counsel to structure and present claiman t’s case in a way that the claimant’s claims are adequately explored” and “may ordinarily require counsel to identify the issue or issues requiring further development.” Id. at 1167. In this case, counsel was familiar with the record submitte d to the ALJ and did not ask for further development of the record. Because Mr. Eden did not “make sure there [was], in the record, evidence sufficient to suggest a reasonable possibility that a severe impairment exists,” the ALJ had no re sponsibility to order a consulting examination. Id.
II. Mr. Eden next argues the ALJ erred in failing to fu lly consider his treating physicians’ opinions and erroneously rejected them without finding conflicting evidence. Specifically, Mr. Eden contends that the ALJ (1) failed to discuss-10-

Dr. Dennis’ medical report, which documented Mr. Ed en’s depression as far back as 1997, and (2) summarily dismissed each of his ps ychological evaluations, including those of Dr. Zielinski, as not credible. We reject this argument. The ALJ discussed Dr. Den nis’ treatment of Mr. Eden on page four of his decision. And the ALJ thoroughly discussed the psychological evaluations on pages six through eight of his decision. Dr. Zielinski’s opinions set forth in the Medical S ource Statement-Mental form do not deserve controlling weight because he d id not actually treat Mr. Eden, a fact Mr. Eden does not dispute. See Doyal , 331 F.3d at 763-64. The opinions of the counselor, who also signed and prob ably completed the Statement, were not entitled to controlling weight because the y were not well supported or consistent with the other substantial evidence in the record. See McGoffin v. Barnhart , 288 F.3d 1248, 1252 (10th Cir. 2002). Even if the treating sources’ opinions are not enti tled to controlling weight, they “‘are still entitled to deference and must be weighed using all of the factors provided in 20 C.F.R. §[§] 404.1527 and 416.927.’” Watkins , 350 F.3d at 1300 (quoting Social Security Ruling 96-2p, 1996 WL 3741 88, at *4). The factors are (1) the length of the treatment relationship and th e frequency of examination; (2) the nature and extent of the treat ment relationship, including the treatment provided and the kind of ex amination or testing performed; (3) the degree to which the phys ician’s opinion is supported by relevant evidence; (4) consistency between the opinion and the record as a whole; (5) whether or not the p hysician is a-11-

specialist in the area upon which an opinion is ren dered; and (6) other factors brought to the ALJ’s attention wh ich tend to support or contradict the opinion. Id. at 1301 (quotation omitted). The ALJ recognized the timing of Mr. Eden’s treatme nt for psychological impairments, his attempt to bolster his disability claims by seeking mental health treatment, his reluctance to comply with treatment, his denial of substance addiction while continuing to drink alcohol, the la ck of evidence to support the conclusory opinions expressed in the Statement, andthe inconsistency between the opinions expressed in the Statement and the pro gress notes. Under the circumstances, we conclude the ALJ gave specific an d legitimate reasons for giving no weight to the opinions expressed in the Statement. See id. The judgment of the district court is AFFIRMED.

Entered for the Court

Bobby R. Baldock Circuit Judge