* This order and judgment is not binding precedent, e xcept under the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

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

### MAY 30 1997 

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

CAROL ANN TIERNEY,

Plaintiff-Appellant,

v. SHIRLEY CHATER, Commissioner, Social Security Administration,

Defendant-Appellee. No. 96-5240 (D.C. No. 95-CV-896-J) (N.D. Okla.)

ORDER AND JUDGMENT *

Before BRORBY, BARRETT, and LUCERO, Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.1 The parties consented to proceed before the magistr ate judge for final

disposition. See 28 U.S.C. § 636(c). -2- Plaintiff filed a claim for social security disabil ity benefits on October 5, 1993, alleging that she became disabled on October 1, 1969, due to blindness, conjunctivitis in both eyes, hypoglycemia, epilepsy , nerve problems, back problems, irritated colon, depression, dysmenorrhea , thyroid problems, and bilateral carpal tunnel syndrome. The administrati ve law judge (ALJ) determined that plaintiff’s insured status expired on December31, 1978, see Admin. R. at 18, and that before that date she met the insured statu s requirements only for Rule IV, statutory blindness. See id. at 18, 20 (finding 1); see also 20 C.F.R. §§ 404.130, 404.1581; 20 C.F.R. Pt. 404, Subpt. P, App. 1, §§ 2 .00A7, 2.02, 2.03A & B. Upon consideration of the medical evidence and expe rt testimony, the ALJ determined that plaintiff was not blind within the meaning of 20 C.F.R. Pt. 404, Subpt. P, App. 1, §§ 2.02 or 2.03A or B, for the re quisite period, and denied her benefits. The Appeals Council denied review, makin g the ALJ’s decision the final decision of the Secretary. The magistrate ju dge 1 affirmed. Plaintiff appeals. We have jurisdiction under 42 U.S.C. § 405(g) and 2 8 U.S.C. § 1291, and affirm. On appeal, plaintiff contends the ALJ: (1) failed to fully develop the record; (2) ignored medical expert testimony; (3) f ailed to consider plaintiff’s-3-

treating physician’s diagnosis; and (4) applied imp roper legal standards in his analysis of the applicable listings criteria. We review the Secretary's decision to determine whe ther it is supported by substantial evidence and whether the correct legal standards were applied. See Miller v. Chater , 99 F.3d 972, 975-76 (10th Cir. 1996). Substantia l evidence is “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 and citation omitted). “Evidence is not substantial if it is overwhelmed by other evidence in the record or constitutes mere conclusi on.” Musgrave v. Sullivan , 966 F.2d 1371, 1374 (10th Cir. 1992). We may not r eweigh the evidence or substitute our judgment for that of the Secretary. SeeKelley v. Chater , 62 F.3d 335, 337 (10th Cir. 1995). Plaintiff does not dispute that her insured status expired on December 31, 1978. As a result, she is not entitled to disabili ty benefits unless she can prove that she met the requirements for statutory blindne ss beginning before December 31, 1978, and continuing without interrupt ion up to sometime within the year before the month in which she filed her cl aim for benefits, October 1993. See20 C.F.R. §§ 404.315(a)(3), 404.320(b)(3). Plaintiff first contends that the ALJ erred in not further developing the record regarding the nonorganic, i.e., psychologica l, component of her vision-4-

impairment, and that he should have received testim ony from a psychiatrist. Because plaintiff did not raise this argument in th e district court, however, it is waived. See Crow v. Shalala , 40 F.3d 323, 324 (10th Cir. 1994). Plaintiff next argues that the ALJ gave insufficient weight to the February 1971 opinion of her treating ophthalmologist, Dr. T homas E. Acer, that the field of vision in her better eye, her left eye, subtende d an angle no greater than five degrees. Plaintiff also contends that the ALJ disr egarded the expert testimony of ophthalmologist Dr. Robert P. Hughes, to the effectthat if the five-degree limitation of her left eye were believed, plaintiff would meet the listing for statutory blindness because she was legally blind i n her right eye before December 31, 1978. The ALJ properly rejected Dr. Acer’s February 1971 diagnosis because the formal visual field test on which it was based was not in the record, and because his diagnosis of a five-degree constriction of the visual field was inconsistent with both his own later findings and also with othe r medical evidence that plaintiff has a 180-degree field of vision in her l eft eye. See Castellano v. Secretary of Health & Human Servs. , 26 F.3d 1027, 1029 (10th Cir. 1994) (noting that ALJ “will give controlling weight to [treatingphysician’s] opinion if it is well supported by clinical and laboratory diagnosti c techniques and if it is not inconsistent with other substantial evidence in the record”); Eggleston v. Bowen ,-5-

851 F.2d 1244, 1246-47 (10th Cir. 1988) (holding AL J may reject treating physician’s opinion if specific, legitimate reasons are given). Dr. Hughes’ testimony did not cure either of these defects. Infact, Dr. Hughes’ clarification that the statute requires a particular type of visu al field test to be done indicates that without the actual visual field test Dr. Acer performed, it cannot be determined that it satisfied the statute’s requirem ents. SeeAdmin. R. at 319-20. Finally, plaintiff argues that the ALJ applied impr oper legal standards in his analysis of the applicable listings criteria. We disagree. The ALJ evaluated and weighed conflicting medical evidence, and his c onclusion that plaintiff is not blind within the meaning of 20 C.F.R. Pt. 404, Subp t. P, App. 1, § 2.02 or § 2.03A or B is supported by substantial evidence. In particular, the ALJ noted that plaintiff reported in 1993 that she could driv e a car during daylight hours--an activity “inconsistent with ‘statutory blindness.’” Admin. R. at 20; see also id. at 66. The judgment of the United States District Court fo r the Northern District of Oklahoma is AFFIRMED.

Entered for the Court James E. Barrett Senior Circuit Judge