* This order and judgment is not binding precedent, e xcept under the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

### FEB 18 1999 

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

LINDA FAYE STEADMAN,

Plaintiff-Appellant,

v. KENNETH S. APFEL, Commissioner of Social Security Administration,

Defendant-Appellee. No. 98-5067 (D.C. No. 96-CV-269-EA) (N.D. Okla.)

ORDER AND JUDGMENT *

Before TACHA , BARRETT , and MURPHY , Circuit Judges.

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 appeals the district court’s decision aff irming the Commissioner’s denial of plaintiff’s application for supplemental security income benefits. Plaintiff filed for benefits in September 1992, all eging she had been disabled since February of that year due to chest pain and h eadaches accompanied by numbness in her face and arm and blurred vision. A fter plaintiff’s application was denied initially and on reconsideration, she re quested and received a de novo hearing before an administrative law judge (ALJ). Plaintiff appeared at the September 21, 1993 hearing with her non-attorney re presentative. In response to the ALJ’s questions, plaintiff testified that she w as unable to work due to pain in her back, arms, and legs; she stated that without t his pain, she would be able to work. In response to her representative’s question s, plaintiff also acknowledged that she had suffered from periodic outbreaks of bo ils on her body for years. At a supplemental hearing on January 4, 1994, plaintiff again told the ALJ that she was unable to work only because of pain in her back, ar ms, and legs. In response to questions from her representative, plaintiff also s aid she had constant pain in her hands and she continued to suffer from outbreaks of boils. The ALJ issued a lengthy written decision on Octobe r 14, 1994. Based on April 1993 x-rays showing minimal arthritic process es in plaintiff’s right knee and degenerative joint disease of her thoracic and lumbar spine, the ALJ concluded that plaintiff had severe impairments at step two of the sequential-3-

process. See 20 C.F.R. § 416.920 (describing steps). Despite h er limitations, the ALJ concluded that plaintiff retained the residual functional capacity (RFC) for a full range of sedentary work. While this RFC precl uded plaintiff from returning to her past relevant work as a nurse’s aide or mote l maid, the ALJ concluded that plaintiff could perform other work in the national economy pursuant to the medical-vocational guidelines. Therefore, the ALJ denied plaintiff’s application for benefits at step five of the sequential analysis. See id. Plaintiff petitioned for review of the ALJ’s decisi on before the Appeals Council and submitted additional medical records de scribing her treatment between December 1994 and November 1995. The Appea ls Council concluded that the new records did not provide a basis to alt er the ALJ’s decision. On February 6, 1996, the Appeals Council denied plaint iff’s petition for review and the ALJ’s decision became the final decision of the Commissioner. Thereafter, plaintiff appealed the Commissioner’s decision to the district court, which affirmed the denial of benefits. This appeal follo wed. Plaintiff raises three challenges to the Commission er’s decision on appeal. First, she contends that the ALJ failed to make a p roper credibility assessment. Second, she argues that the ALJ failed to develop the record by obtaining copies of hospital records that were brought to his attent ion during the proceedings.-4-

Finally, she maintains that the ALJ incorrectly shi fted the burden of proof to her at step five of the sequential analysis. We review the Commissioner’s decision to determine whether the correct legal standards were applied and whether the findin gs are supported by substantial evidence in the record viewed as a whole. See Castellano v. Secretary of Health & Human Servs. , 26 F.3d 1027, 1028 (10th Cir. 1994). “If support ed by substantial evidence, the [Commissioner’s] findings are conclusive and must be affirmed.” Sisco v. United States Dep’t of Health & Human Servs. , 10 F.3d 739, 741 (10th Cir. 1993). “In evaluating the appeal, w e neither reweigh the evidence nor substitute our judgment for that of the agency. ” Casias v. Secretary of Health & Human Servs. , 933 F.2d 799, 800 (10th Cir. 1991). We turn first to plaintiff’s challenge to the ALJ’s credibility assessment. Under the familiar framework set forth in Luna v. B owen , 834 F.2d 161, 163 (10th Cir. 1987), an ALJ assessing a claimant’s all egations of disabling pain must first determine whether there is objective medical evidence of a pain-producing impairment. If the first step is met, the ALJ mustthen determine whether there is a nexus between the pain producing impairment and the claimant’s subjective allegations of pain. See id. If the ALJ finds the necessary nexus, the ALJ mus t then consider all the evidence–both objective and s ubjective–and determine the credibility of the claimant’s allegations of disabling pain. See id. In making the-5-

required credibility assessment, the ALJ must link the conclusion to the evidence.
See Kepler v. Chater , 68 F.3d 387, 391 (10th Cir. 1995). While “credib ility determinations are peculiarly the province of the f inder of fact, and we will not upset such determinations when supported by substantial evidence[,] . . . [f]indings as to credibility should be closely and affirmatively linked to substantial evidence and not just a conclusion in the guise of findings.” Id. (quotations and citations omitted). Plaintiff contends that the ALJ’s credibility determination was not sufficiently linked to substantial evidence in the record. While the ALJ’s decision might have been organized more clearly on this issue, we think a close reading of his decision shows that he disbelieved p laintiff’s allegations of disabling pain based on a variety of factors. Firs t, he noted that plaintiff originally filed for benefits based on her chest pa ins and headache syndromes, but the medical records did not show many complaints of these problems after plaintiff filed her application. Instead, not long after she filed her application, plaintiff began to complain of a new set of problem s, involving musculoskeletal pain in her back, arms, and legs. The ALJ noted th at while x-rays showed some mild arthritic or degenerative changes in her back and knees, the medical adviser stated that these changes would not be expected to limit plaintiff’s ability to perform all work.-6-

The ALJ also discussed the contradiction between pl aintiff’s alleged functional restrictions and the findings of Dr. Coo per during his thorough examination of plaintiff in December 1992. Additio nally, he noted that the medical records showed that plaintiff often sought treatment for ailments other than back, leg, or arm pain, and that she went for long periods without seeking any treatment at all. The ALJ also found that plai ntiff failed to follow doctor recommendations that she lose weight and exercise t o lessen the load on her musculoskeletal and cardiovascular systems, and he determined that she suffered no side effects from the medications she was taking for her pain. Based upon our review, we conclude that the ALJ pro vided a sufficient link between the evidence and his determination that pla intiff’s allegations of disabling pain were not credible. Moreover, we con clude that his credibility assessment is supported by substantial evidence in the record. Plaintiff next challenges the ALJ’s decision on the ground that he failed to obtain records from her brief hospitalization in late September 1993. After the September 1993 hearing, the ALJ reopened the recordto submit written interrogatories to Dr. Andelman, a medical adviser. The ALJ gave plaintiff’s representative an opportunity to submit his own int errogatories or to request a supplemental hearing at which he could cross-examin e Dr. Andelman. In an October 28, 1993 letter to the ALJ, plaintiff’s rep resentative requested a-7-

supplemental hearing and noted that plaintiff had b een hospitalized since the last hearing. Accordingly, the ALJ scheduled a suppleme ntal hearing for January 4,
1994. At the beginning of the supplemental hearing, the A LJ asked plaintiff’s representative whether there were any additional do cuments that he wanted to have made part of the record, and he said there wer e not. Thereafter, the ALJ questioned the plaintiff at some length, and elicit ed from her information concerning her recent hospitalization. She testifi ed that she had awoken one morning with pain in her chest and arm and had gone to the hospital, where she was placed on a heart monitor and kept overnight. Plaintiff’s representative did not ask plaintiff any other questions about the hos pitalization, nor did he submit any records from this visit, though he subsequentlysupplemented the record with numerous other medical records. Plaintiff now clai ms that because the ALJ knew about the hospitalization, he should have obtained the records when plaintiff’s representative failed to submit them. “It is beyond dispute that the burden to prove disability in a social security case is on the claimant.” Hawkins v. Chater , 113 F.3d 1162, 1164 (10th Cir. 1997). Nonetheless, because a social security disability hearing is a nonadversarial proceeding, the ALJ bears responsibi lity for ensuring that “an adequate record is developed during the disability hearing consistent with the-8-

issues raised.” Henrie v. United States Dep’t of Health & Human Servs. , 13 F.3d 359, 360-61 (10th Cir. 1993). Generally, “[a]n ALJ has the duty to develop the record by obtaining pertinent, available medical re cords which come to his attention during the course of the hearing.” Carter v. Chater , 73 F.3d 1019, 1022 (10th Cir. 1996). The degree of effort required bythe ALJ to develop the record, however, varies from case to case. Cf. Battles v. Shalala , 36 F.3d 43, 45 (8th Cir. 1994) (noting that whether ALJ has adequately devel oped record must be determined on case by case basis); Lashley v. Secretary of Health & Human
Servs. , 708 F.2d 1048, 1052 (6th Cir. 1983) (same). Here, although plaintiff originally complained of d isabling chest pain in her application for benefits, she did not mention chestpain as part of her disabling condition at either the September 1993 or the January 1994 hearing before the ALJ. Plaintiff’s treatment records did not reflectany complaints of chest pain after December 1991, and when Dr. Cooper examined h er in December 1992, she did not mention any problem with chest pains until specifically asked about it, at which point she indicated that they did not bother her anymore. The record shows that plaintiff’s representative wa s advised in writing that he needed to gather and submit medical evidence to the ALJ. In addition, the ALJ specifically asked plaintiff’s representative at bo th the September 1993 and the January 1994 hearings if there were any other docum ents he desired to have made-9-

part of the record. Plaintiff’s representative nev er indicated that he wanted to submit any information concerning plaintiff’s hospi talization, beyond her testimony, nor did he ask the ALJ’s assistance in o btaining the hospital records. Plaintiff’s representative did, however, submit num erous other medical records to the ALJ after the supplemental hearing. Thus, the ALJ could reasonably assume that plaintiff’s representative purposely chose notto submit the hospital records, perhaps because they were of only minor importance. See Shannon v. Chater , 54 F.3d 484, 488 (8th Cir. 1995) (concluding that plai ntiff’s failure to submit medical records of recent treatment suggested that the alleged treatments had only minor importance). Moreover, plaintiff has never provided the missing hospital records to the Appeals Council, the district court, or this court, to establish that the record before the ALJ was not adequately developed. Nor h as she indicated how the ALJ’s review of these missing records would have af fected his decision to deny benefits. See Hawkins , 113 F.3d at 1169 (concluding that when the missin g evidence was in existence at the time of the admini strative hearing, it may it may be appropriate to “require[] the claimant to prove prejudice by establishing that the missing evidence would have been important in r esolving the claim before finding reversible error”) (citing Shannon , 54 F.3d at 488). Under the circumstances, we conclude that the ALJ did not com mit reversible error when he-10-

failed to obtain records from plaintiff’s overnightstay at the hospital in late September 1993. Plaintiff’s final challenge to the ALJ’s decision i s rather unclear. While the caption in her appellate brief and the first fe w sentences thereunder suggest that she thinks the ALJ did not correctly put the b urden of proof on the Commissioner at step five of the sequential analysi s, plaintiff does not tie this proposition to the facts in any manner. Instead, s he makes the following two disjointed statements. First, she states: “The AL J’s failure to obtain hospital records related to Ms. Steadman’s chest pain cannotaffirmatively support a conclusion that her chest pain was not significant. ” Appellant’s Br. at 20. Then, she states: “The ALJ’s failure to properly conside r Ms. Steadman’s nonexertional impairments created an underlying flaw which tainte d the remainder of his analysis, in that he failed to obtain vocational te stimony concerning the impact of these alleged impairments on Ms. Steadman’s ability to work.” Id. at 20-21. Plaintiff does not explain what nonexertional limit ations the ALJ allegedly failed to properly consider. We have previously concluded the ALJ did not commitreversible error by failing to obtain the hospital records relating to plaintiff’s September 1993 episode of chest pain. Moreover, these hospital re cords were not the only evidence concerning plaintiff’s chest pain in the r ecord, and the ALJ was able to-11-

assess the effects of chest pain on plaintiff’s abi lity to work from the other evidence. To the extent plaintiff contends that he r chest pains constitute a nonexertional limitation and that the ALJ failed to properly consider it, we reject this contention based upon our review of the record

. The judgment of the United States District Court fo r the Northern District of Oklahoma is AFFIRMED.

Entered for the Court

Michael R. Murphy Circuit Judge