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

Shirley S. Chater, former Commissioner of Social Security, as the defendant in

this action. Although Mr. Apfel, the current Commissioner of Social Security, is

the proper defendant in this action, in the text we refer to the Secretary of Health

and Human Services because she was the appropriate party at the time of the

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** This order and judgment is not binding precedent, except under the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

F I L E D

United States Court of Appeals

Tenth Circuit

APR 30 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

PAT E. DURRETT,

Plaintiff-Appellant,

v.

KENNETH S. APFEL, Commissioner,

Social Security Administration,*

Defendant-Appellee.

No. 97-6212

(D.C. No. 95-CV-613)

(W.D. Okla.)

ORDER AND JUDGMENT**

Before ANDERSON, McKAY, and LUCERO, Circuit Judges.
1 Claimant sought court review of the agency’s first final decision in this

case in 1991. In the district court, the Secretary apparently requested a remand

for the purpose of evaluating claimant’s mental impairments, and the court

complied. The decision from which claimant now appeals is the Secretary’s

denial of benefits upon remand.

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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.

Claimant Pat E. Durrett appeals from the district court’s order affirming the

decision of the Secretary of Health and Human Services to deny her application

for social security disability benefits. We have jurisdiction under 42 U.S.C.

§ 405(g) and 28 U.S.C. § 1291, and we affirm.

Claimant filed her application for disability benefits in early 1989, claiming

disability as of May 23, 1988, as a result of cancer of the larynx and related

complications, including the surgical removal of her larynx (including vocal

cords) on October 27, 1988. In what became the Secretary’s final agency

decision,1 an administrative law judge (ALJ) concluded at step five of the

sequential evaluation process, see 20 C.F.R. § 404.1520; Williams v. Bowen, 844

F.2d 748, 750-52 (10th Cir. 1988), that claimant could still perform a limited

range of light work and, therefore, was not disabled. Our job on appeal is to

“closely examine the record as a whole to determine whether the Secretary’s
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decision is supported by substantial evidence and adheres to applicable legal

standards.” Evans v. Chater, 55 F.3d 530, 531 (10th Cir. 1995).

A person is disabled within the meaning of the Social Security Act if she is

unable “to engage in any substantial gainful activity by reason of any medically

determinable physical or mental impairment which can be expected to result in

death or which has lasted or can be expected to last for a continuous period of not

less than 12 months.” 42 U.S.C. § 423(d)(1)(A); see also 20 C.F.R. §

404.1505(a). The burden to prove disability in a social security case is on the

claimant. See Hill v. Sullivan, 924 F.2d 972, 974 (10th Cir. 1991). In this case,

because claimant’s insured status expired December 31, 1988, she must show that,

as of that date, she had a disability that had lasted or was expected to last at least

twelve months. See Henrie v. United States Dep’t of Health & Human Servs., 13

F.3d 359, 360 (10th Cir. 1993); 20 C.F.R. §§ 404.320(b)(2), 404.1509.

The Secretary has established a five step sequential process for evaluating

disability claims. See Williams, 844 F.2d at 750. On appeal, claimant challenges

the ALJ’s determinations at steps three and five of that process. She argues first

that the ALJ erred at step three in concluding that she did not meet the listing for

disability due to an organic loss of speech. See 20 C.F.R. Pt. 404, Subpt. P, App.

1, § 2.09. At step five, she contends that the ALJ (1) improperly discounted her

allegations of incontinence, shoulder pain, fatigue, and inability to withstand
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stress, (2) improperly found she had transferrable skills of greeting and

communicating with the public, and (3) improperly considered her mental

impairment.

Step three involves a determination as to whether claimant’s impairment “is

equivalent to one of a number of listed impairments that the Secretary

acknowledges are so severe as to preclude substantial gainful activity.” Williams,

844 F.2d at 751 (quotation omitted). The determination of medical equivalency is

based solely on medical evidence. See 20 C.F.R. § 404.1526(b). The Secretary

“compare[s] the symptoms, signs, and laboratory findings about [a claimant’s]

impairment(s), as shown in the medical evidence [associated with the claim], with

the medical criteria shown with the listed impairment.” Id. at § 404.1526(a). 

Claimant has the burden of establishing disability at step three. See Nielson v.

Sullivan, 992 F.2d 1118, 1120 (10th Cir. 1993).

Claimant contends that the ALJ erred in concluding that she did not meet

§ 2.09 of the listings. Listing 2.09 requires an “[o]rganic loss of speech due to

any cause with [an] inability to produce by any means speech which can be heard,

understood, and sustained.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 2.09. The

introductory section related to this listing acknowledges that a laryngectomy

“results in loss of voice production by normal means,” but further explains that

“[i]n evaluating organic loss of speech (see 2.09), ability to produce speech by
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any means includes the use of mechanical or electronic devices.” Id. at

§ 2.00.B.3. Social Security Ruling 82-57 also elaborates as to how loss of speech

is to be evaluated:

To speak effectively, an individual must be able to produce speech

that can be heard, understood, and sustained well enough to permit

useful communication in social and vocational settings. These

criteria are applicable to the production of speech whether by natural

function of the voice mechanism or by the use of a prosthetic device.

Three attributes of speech pertinent to the evaluation of speech

proficiency are: (1) audibility--the ability to speak at a level

sufficient to be heard; (2)intelligibility--the ability to articulate and

to link the phonetic units of speech with sufficient accuracy to be

understood; and (3) functional efficiency--the ability to produce and

sustain a serviceably fast rate of speech output over a useful period

of time. When at least one of these attributes is missing, overall

speech function is not considered effective.

1982 WL 31382, at *1.

The medical evidence presented by claimant in support of her claim reveals

that her laryngectomy on October 27, 1988, clearly resulted in the loss of her

ability to produce speech by normal means. It indicates, however, that within

weeks of her surgery, she was using a Cooper-Rand electrolarynx to produce

speech, see Appellant’s App. at 138, 139, 147, and there is no suggestion in the

medical evidence that the speech so produced could not be heard, understood or

sustained. Just five weeks after the surgery, on December 1, 1988, claimant’s

speech therapist reported that claimant was making “good progress” with her

“Cooper-Rand speech” and characterized her as “95% intelligible.” Appellant’s
2

It is unclear from the record precisely how long claimant’s speech therapy

continued. Claimant testified at her first administrative hearing that she stopped

going in March of 1989, see Appellant’s App. at 38-39, and the record includes

progress notes from the speech therapist only through that period, see id. at

147-51. But Dr. Hook’s office notes on May 30, 1989, indicate that he saw

claimant that day and that she had been “sent over by Sp. Therapist.” Id. at 178.

3 The record indicates that Dr. Carl Hook, claimant’s otolaryngologist and

surgeon, saw her very frequently in the six months following the surgery. Dr.

James Colvert, her internist, also saw her regularly. In addition, she was

hospitalized on two occasions, and the admitting physicians did not indicate any

difficulty in communication.

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App. at 147. The medical records reflect that claimant continued with speech

therapy through at least March of 1989,2 working primarily on her esophageal

speech, and, although the therapist recorded observations concerning claimant’s

limited ability to sustain esophageal speech, see id. at 151, there is no such

notation with regard to claimant’s Cooper-Rand speech. The therapist’s notes

indicate continuing improvement over the course of the therapy, and indeed the

final notation reiterates “[r]ehab. potential continues to be excellent.” Id.

We further note that none of the doctors who saw claimant after her

surgery3 made any reference in their notes to any difficulty in communicating with

her. On the contrary, her otolaryngologist, Dr. Carl Hook, noted on April 6,

1996, claimant’s “improving speech,” id. at 176, and one of the psychiatrists who

performed an evaluation upon remand specifically noted that “[i]t was not

difficult to hear [claimant].” Id. at 254. Finally, the medical expert who testified

at claimant’s second administrative hearing opined, after reviewing and accurately
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summarizing her medical records, that claimant did not meet listing 2.09. 

Accordingly, we conclude that there is substantial evidence to support the ALJ’s

step three determination.

We also reject claimant’s contention that the ALJ was obligated in this case

to order a consultative examination to assess speech proficiency. Social Security

Ruling 82-57 does not require “a refined assessment of speech proficiency” in

every case where there is an organic loss of speech, but instead simply sets forth

what should be included if such an assessment is “necessary.” 1982 WL 31382,

at *1-*2. In connection with consultative examinations, we have explained that 

the ALJ should ordinarily be entitled to rely on the claimant’s

counsel to structure and present claimant’s case in a way that the

claimant’s claims are adequately explored. Thus, in a counseled

case, the ALJ may ordinarily require counsel to identify the issue or

issues requiring further development. In the absence of such a

request by counsel, we will not impose a duty on the ALJ to order a

consultative examination unless the need for one is clearly

established in the record.

Hawkins v. Chater, 113 F.3d 1162, 1167-68 (10th Cir. 1997) (citation omitted). 

Here, as set forth above, there was nothing in the medical evidence to suggest

that, with her electrolarynx, plaintiff was unable to produce speech that could be

heard, understood and sustained. Furthermore, claimant testified at both her first

and second hearing, producing over thirty-six pages of testimony, and there is no

indication in the transcripts of those hearings that anyone present had any
4

In her brief, claimant cites to the large number of “INAUDIBLE” notations

in the transcripts as a conclusive demonstration that claimant cannot produce

speech that can be heard, understood, and sustained. We agree with the district

court that “these ‘inaudible’ references are merely evidence of the inability of a

transcriptionist to understand parts of Plaintiff’s testimony from a tape

recording.” Appellant’s App. at 348. There is no indication that those present at

the hearing were unable to hear or understand claimant’s testimony.

5 There is one point with respect to claimant’s alleged shoulder pain that is

not covered in the magistrate judge’s report, and that is claimant’s challenge to

the ALJ’s characterization of her shoulder pain as “secondary to the creation of

[her] stoma.” Appellant’s App. at 201. We note that elsewhere in the opinion,

the ALJ specifically noted that claimant had (in addition to her laryngectomy) a

“modified right neck dissection,” id., which was described by the medical expert

at the hearing as the “removal of a large amount of tissues and muscles from the

right side of the neck,” id. at 230. We do not think the disputed characterization

can be said to reflect a significant misunderstanding concerning claimant’s

complaint of shoulder pain.

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difficulty hearing or understanding her.4

 We cannot say, on this record, that the

ALJ was obliged to order a consultative examination on the issue of speech

efficacy.

Claimant also challenges the ALJ’s determination at step-five that she

retains the capacity to perform a variety of light jobs that exist in the national

economy. We have carefully reviewed each of claimant’s arguments, and

conclude that they are without merit for substantially the reasons given in the

report and recommendation of the magistrate judge.5 We note that in her brief,

claimant raises two issues that the magistrate judge does not address in what
6 Claimant argues that (1) the ALJ failed to consider the combined impact of

her impairments, and (2) the ALJ made the “unsupported assumption” that her

transferable skills include greeting and communicating with the public. 

7 The Commissioner asserts in his brief that claimant did not raise the first of

these issues in district court. 

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appears to be an otherwise comprehensive report.6

 Thus, in the absence of any

indication from claimant to the contrary, see generally 10th Cir. R. 28.2.(b)

(requirement that brief include a statement as to where each issue appealed was

raised and ruled upon below), we can only assume these issues were not raised in

the district court7 and thus are not entitled to our consideration, see Crow v.

Shalala, 40 F.3d 323, 324 (10th Cir. 1994).

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

Oklahoma is AFFIRMED.

Entered for the Court

Stephen H. Anderson

Circuit Judge