* Effective March 31, 1995, the functions of the Secr etary of Health and

Human Services in social security cases were transf erred to the Commissioner of Social Security. P.L. No. 103-296. In the text, h owever, we continue to refer to the Secretary because she was the appropriate partyat the time of the underlying administrative decision. 

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

### MAY 1 1997 

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

MICHAEL D. WILSON,

Plaintiff-Appellant,

v. SHIRLEY CHATER, Commissioner, Social Security Administration * ,

Defendant-Appellee. No. 96-6358 (D.C. No. CIV-94-1174-L) (W.D. Okla.)

ORDER AND JUDGMENT

Before BRORBY, BARRETT, and LUCERO, Circuit Judges.

Claimant Michael D. Wilson appeals from the distric t court’s order upholding the Secretary’s denial of supplemental se curity income benefits (SSI).1 This case is unanimously ordered submitted without oral argument pursuant

to the applicable rules. This order and judgment i s not binding precedent, except under the doctrines of law of the case, res judicat a, and collateral estoppel. The court generally disfavors the citation of orders an d judgments; nevertheless, an order and judgment may be cited under the terms andconditions of 10th Cir. R. 36.3.

2 Neither of these issues was presented to the Appeal s Council. Nonetheless, we do not apply a waiver rule in this case because, at the time Mr. Wilson (continued...) -2- We exercise our jurisdiction, see 42 U.S.C. § 405(g); 28 U.S.C. § 1291, and affirm. 1 Mr. Wilson’s request for benefits was denied initia lly and on reconsideration. Following a de novo hearing, Admi nistrative Law Judge (ALJ) Kallsnick determined, at step five of the applicabl e sequential analysis, 20 C.F.R. § 404.1520; see also Williams v. Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988) (setting out five-step sequential analysis), that M r. Wilson, a former mail handler, retains the ability to perform work existing in the national economy and thus is not disabled within the meaning of the Social Secur ity Act. The Appeals Council denied review, making the ALJ’s determination the f inal decision of the Secretary. The district court affirmed. On appeal, Mr. Wilson contends that (A) the ALJ fai led to give proper consideration to a mental impairment alleged in a p rior application for benefits, and (B) the determination of residual functional capacity was not supported by substantial evidence. 2 We review the Secretary’s decision to insure thatthere is2 (...continued)

appealed to the Appeals Council, he did not have no tice of James v. Chater , 96 F.3d 1341, 1343-44 (10th Cir. 1996) (holding “issue s not brought to the attention of the appeals council on administrative review may , given sufficient notice to the claimant, be deemed waived on subsequent judicial r eview”). -3- substantial evidence to support her factual finding s and that she correctly applied the law. See Bean v. Chater , 77 F.3d 1210, 1213 (10th Cir. 1995). 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). When the analysis reaches step five of the evaluation process, the burden is on the Secretary to show that the claimant retains the residual functional capacity to do othe r work existing in the national economy. Miller v. Chater , 99 F.3d 972, 975 (10th Cir. 1996).

A. CONSIDERATION OF MENTAL IMPAIRMENT Inquiry as to existence of potential mental impairm ent must be made in context. Mr. Wilson has not worked since he incurr ed an on-the-job injury to his back and shoulder on October 9, 1986. This appeal concerns his second application for benefits. In the first applicatio n, filed in 1986, he claimed that he was disabled due to a back condition, an ulcerated esophagus, and mental depression. On July 25, 1988, ALJ Hargrave denied the first application, determining that Mr. Wilson retained the ability to perform the duties of a mail-4-

handler. Regarding mental impairment, ALJ Hargrave found that: (1) Mr. Wilson had suffered from severe depression, but the depres sion was not of disabling severity for a continuous period of twelve months; and (2) Mr. Wilson had a passive-aggressive personality disorder, but could engage in a substantial gainful activity that did not require frequent interaction with supervisors. The denial of benefits was upheld on appeal. In his current application, filed in 1991, Mr. Wils on alleges physical, not mental, impairments. He claims that he has been di sabled since April 1, 1991, from his worsening back condition (aggravated by arthritis and a herniated disk), an ulcerated esophagus, peptic ulcers, and bronchia l problems. The medical records submitted in support of the request containno mention of a mental impairment. At the hearing before ALJ Kallsnick, held September28, 1993, Mr. Wilson testified that pain from his back condition was the primary reason he could not work, R. Vol. II at 92. He spoke generally about h is other claimed physical impairments, id. at 92-95. In response to his attorney’s question, he stated that there were no other problems that kept him from working. Id. at 96. It was ALJ Kallsnick who raised the issue of a mental impairme nt. Noting the past treatment for depression and “some other problems,” the ALJ a sked Mr. Wilson if he had3 Section 405(h) provides: The findings and decision of [the Secretary] after a hearing shall be binding upon all individuals who were part ies to such hearing. No findings of fact or decision of [the S ecretary] shall be reviewed by any person, tribunal, or governmental a gency except as herein provided.

4 Although Mr. Wilson argues that the doctrine of res judicata should be applied, his argument is actually based on the clos ely related doctrine of collateral estoppel. Res judicata applies “when there is a fi nal judgment on the merits which precludes the parties . . . from relitigating the issues that were decided or issues that could have been raised in the earlier a ction.” Frandsen v. Westinghouse Corp. , 46 F.3d 975, 978 (10th Cir. 1995). In this case, the doctrine of res judicata establishes that Mr. Wilson was notdisabled from 1986 to 1988. See Lyle v. Secretary of Health & Human Servs. , 700 F.2d 566, 568 (9th Cir. 1983) (holding that the final decision of the Secre tary had res judicata effect as of (continued...) -5- been treated recently for mental problems. R. Vol. II at 105-06. Mr. Wilson stated that his last such treatment was in 1987. I d. at 106. In the denial determination issued November 15, 199 3, ALJ Kallsnick found that the medical evidence did not show a ment al impairment that affected Mr. Wilson’s residual functional capacity. His ult imate conclusion was that Mr. Wilson could no longer perform his past relevant wo rk, but that he could perform work up to the medium level, except for physical li mitations on lifting, bending, stooping, and crawling. Relying on 42 U.S.C. § 405(h), 3 Mr. Wilson now argues that ALJ Hargrave’s previous finding of a passive-aggressive disorder was binding upon ALJ Kallsnick. 4 Under the doctrine of collateral estoppel, embodi ed in § 405(h),4 (...continued)

the date of the decision) -6- once an issue of fact or law necessary to a determi nation has been decided, that decision may preclude relitigation of the issue in a different cause of action. See Allen v. McCurry , 449 U.S. 90, 94 (1980). Collateral estoppel appl ies only if the issue previously decided is identical to the one pr esented in the action in question.
See Frandsen v. Westinghouse Corp. , 46 F.3d 975, 978 (10th Cir. 1995). Recurring applications for disability benefits gene rally deal with different periods of time. Because medical conditions and impairments can change, findings as to a claimant’s residual functional cap acity during one period “[are] not conclusive evidence of [his] residual functiona l capacity at a later date.” Rucker v. Chater , 92 F.3d 492, 495 (7th Cir. 1996). Passage of tim e may destroy the identity of issues essential to the operation o f collateral estoppel. The record before ALJ Kallsnick included the recordbefore ALJ Hargrave, plus additional evidence, including Mr. Wilson’s te stimony that he had not sought treatment for a mental impairment since 1987 and th at he was not alleging a mental impairment that prevented him from working. As a consequence, the issues at the two hearings were not identical. Acc ordingly, collateral estoppel5 We have reviewed the cases cited by Mr. Wilson as s upport for his

collateral estoppel argument, and we find them read ily distinguishable. See Dennard v. Secretary of Health & Human Servs. , 907 F.2d 598, 600 (6th Cir. 1990) (holding that collateral estoppel precluded i nconsistent findings about the exertional level of the claimant’s former job); Liv ely v. Secretary of Health & Human Servs. , 820 F.2d 1391, 1392 (4th Cir. 1987) (observing th at claimant filed his second application just two weeks after the ALJ ’s denial of his first application and that it was “utterly inconceivable” that his condition had significantly improved in that period of time); Gav in v. Heckler , 811 F.2d 1195, 1200 (8th Cir. 1987) (holding that collateral estop pel precluded the ALJ’s reevaluation of the evidence presented at the earli er hearing). Mr. Wilson’s applications were five years apart and a change in his physical and mental condition may be anticipated, although a change in the exertional requirements of his former job may not be. ALJ Kallsnick did not r eevaluate evidence from the first hearing; he examined the record as it existed after the second hearing. See Warren v. Bowen , 804 F.2d 1120, 1121 (9th Cir. 1986), amended on d enial of reh’g , 817 F.2d 63 (9th Cir. 1987) (Secretary is “not co ntesting the existence of [claimant’s already established] disability in 1978 ; what [s]he is contesting is [claimant’s] disability when she reapplied for SSI in 1981."). -7- does not apply. The determination that Mr. Wilson did not have a mental impairment as of November 15, 1993 is supported by substantial evidence. 5 In related argument, Mr. Wilson contends that the e vidence of mental impairment submitted with the first application forbenefits requires the Secretary to follow the procedure for evaluating a mental imp airment outlined in 20 C.F.R. § 416.920a. In Hill v. Sullivan , 924 F.2d 972, 975 (10th Cir. 1991) (concerning 20 C.F.R. § 404.1520a, the disability counterpart t o § 416.920a), we held that this particular procedure, including the completion of t he standard mental impairment assessment form, see 20 C.F.R. § 416.920a(d), must be followed wheneverthe record contains evidence of a mental impairment that “allegedly prevented-8-

claimant from working.” That holding has no place here: the claimant specifically denied that a mental impairment kept h im from working. It follows that ALJ Kallsnick was not required to follow that procedure.

B. DETERMINATION OF RESIDUAL FUNCTIONAL CAPACITY Mr. Wilson asserts that ALJ Kallsnick’s determinati on of his residual functional capacity is not supported by substantial evidence for two reasons: (1) the report of Dr. Sutton, who evaluated his re sidual functional capacity at the request of the ALJ, is legally defective because itis based on an incomplete evaluation of his medical history; and (2) the ALJ did not properly explain his reasons for accepting the evaluation of Dr. Sutton, a consulting physician, rather than the assessments of other consulting or treatin g physicians. Neither contention justifies setting aside the ALJ’s determ ination. Dr. Sutton personally examined Mr. Wilson on July 2 1, 1993, then provided a report on his residual functional capacity. Dr. Sutton’s overall impression was that Mr. Wilson did not demonstrate objective evide nce of disability, although he probably did have valid back problems and “would no t therefore be able to function at the same level as a normal person.” R. Vol. II at 505. Dr. Sutton outlined restrictions on lifting, carrying, bending , crawling, and reaching.-9-

The regulation concerning a consultative examinatio n conducted at the Secretary’s expense states that the physician condu cting the examination will be provided with “any necessary background informationabout your condition.” 20 C.F.R. § 416.917. Dr. Sutton’s report did not s tate that he had reviewed Mr. Wilson’s prior medical records. However, the lack of an explicit reference to medical history, standing alone, does not render th e report legally insufficient. Mr. Wilson objects to ALJ Kallsnick’s giving contro lling weight to Dr. Sutton’s report, rather than the reports of treatin g physicians. “[T]he treating physician rule governs the weight to be accorded th e medical opinion of the physician who treated the claimant . . . , includin g opinions of other physicians,” Reid v. Chater , 71 F.3d 372, 374 (10th Cir. 1995) (quotation omitted). Generally, the opinion of a treating physician must be given s ubstantial weight, and may be disregarded only if the Secretary gives specific an d legitimate reasons for doing
so. See Byron v. Heckler , 742 F.2d 1232, 1235 (10th Cir. 1984). The rule d oes not dictate that a consulting physician’s report be given little or no weight if the report is the only medical evidence on the relevantissue. See Reid , 71 F.3d at
374.-10-

Mr. Wilson’s treating physicians did not express anopinion on Mr. Wilson’s residual functional capacity. Dr. Sutton’ s report constituted the only evidence on this issue. Accordingly, the ALJ prope rly relied on the report.
AFFIRMED.

Entered for the Court

Carlos F. Lucero Circuit Judge