* This order and judgment is not binding precedent, e xcept under the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

### DEC 17 2003 

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

DEBORAH CAINGLIT,

Plaintiff-Appellant,

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

Defendant-Appellee. No. 03-7004 (D.C. No. 01-CV-506-S) (E.D. Okla.)

ORDER AND JUDGMENT *

Before HARTZ , BALDOCK , and McCONNELL , 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-

Claimant Deborah Cainglit appeals the district court’s order affirming the decision of the Commissioner of Social Securityto deny her application for disability and supplemental security income ben efits. Because the Commissioner’s decision is supported by substantial evidence and no legal errors occurred, we affirm. Ms. Cainglit applied for benefits in 1998, alleging an inability to work since August 4, 1997, due to breathing problems, ba ck and leg pain, and other impairments that she characterized as “female probl ems.” Aplt. App. at 74. Following a hearing before an administrative law ju dge (ALJ), the ALJ determined that Ms. Cainglit was not disabled at st ep four of the five-step sequential evaluation process, see Williams v. Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988), because she had the residual func tional capacity (RFC) to return to her past relevant work as a “house (residence) s upervisor.” Aplt. App. at 33. The ALJ also determined, in the alternative at step five, that she had the RFC to perform other work of a sedentary nature. Id

. We review the Commissioner’s decision to determine only whether it is supported by substantial evidence and whether legal errors occurred. See Castellano v. Sec’y of Health & Human Servs. , 26 F.3d 1027, 1028 (10th Cir. 1994). “Substantial evidence is such relevant evid ence as a reasonable mind might accept as adequate to support a conclusion.” Id . (internal quotation marks-3-

omitted). This court may “neither reweigh the evid ence nor substitute our judgment for that of the agency.” Casias v. Sec’y of Health & Human Servs. , 933 F.2d 799, 800 (10th Cir. 1991).
I. Step Two Analysis of Depression

. On appeal Ms. Cainglit first contends that the ALJ failed in his step two analysis when he concluded that her depression was not a “severe” impairment. At step two the ALJ must determine whether the clai mant has a medically severe impairment or combination of impairments. 20 C.F.R . §§ 404.1520(c), 416.920(c). An impairment is considered “not sever e” if it does not significantly limit a claimant’s physical and mental ability to d o basic work activities. 20 C.F.R. §§ 404.1521(a), 416.921(a). Basic work a ctivities are “abilities and aptitudes necessary to do most jobs,” and include the ability to understand, remember, and carry out simple instructions; to use judgment; to respond appropriately to supervisors, co-workers, and usual work situations; and to deal with changes in a routine work setting. 20 C.F.R. §§ 404.1521(b)(3)-(6), 416.921(b)(3)-(6). Ms. Cainglit contends that the ALJ ignored her test imony that she felt she was disabled in part due to her depression and igno red medical records indicating that she has been diagnosed with major depression. The determination at step two is based on medical factors alone. Williams , 844 F.2d at 750. Claimants “must-4-

show more than the mere presence of a condition or ailment.” Hinkle v. Apfel , 132 F.3d 1349, 1352 (10th Cir. 1997). The claimant bears the burden at step two to present evidence that she has a medically severe impairment or combination of imp airments, and, to meet that burden, must furnish medical and other evidence in support of her claim. See
Bowen v. Yuckert , 482 U.S. 137, 146 & n.5 (1987). The ALJ discusse d at length the evidence in the record relating to Ms. Cainglit ’s depression, and ultimately concluded that the evidence did not establish that her depression had a significant effect on her ability to work. Aplt. App. at 28-29 . The ALJ’s finding is supported by substantial evidence. There is evidence in the record that Ms. Cainglit h as a history of depression and anxiety, for which she received treatment at Me ntal Health Services of Southern Oklahoma (MHSSO). Aplt. App. at 169, 176, 211, 212-26, 231. As the ALJ concluded, however, this evidence does not demo nstrate that this impairment significantly limits Ms. Cainglit’s physical or mental ability to do basic work activities. The counselors at MHSSO reported that her depression did not impair her intellectual functioning, noting specifically n o impairment of her level of consciousness, attention span, abstract thinking, c alculation ability, or intelligence. Id . at 213-15. The counselors noted either no impairment or only slight or occasional impairment of Ms. Cainglit’s ability to manage her daily-5-

living activities or to make reasonable life decisions. Id . The counselors noted no impairment of her memory or her stream of thought, and reported that she did not suffer from any phobias, depersonalizations, ho micidal ideation, delusions, or ideas of reference or of influence, and suffered fr om only slight or occasional compulsions, obsessions or suicidal ideations, exce pt that one of these reports stated that her obsessions were marked or repeated. Id . She was not markedly or repeatedly domineering, submissive, provocative, su spicious, overly compliant, or uncooperative with her counselors. Id . The counselors described her predominant affect or mood as slight or marked fearor anxiety and slight or marked depression. Id . There were some reports of marked or repeated pr oblems with posture, facial expression, bodily movements, and loud speech, and one of these reports noted she was markedly or repeatedly unkempt. But in Ms. Cainglit’s MHSSO’s case management plan, it was reported that she had a good work history and was able to live independently. Id . at 218. The counselors’ evaluations thus are consistent with th e ALJ’s determination that Ms. Cainglit’s depression did not interfere with he r ability to understand, remember, and carry out simple instructions; to use judgment; to respond appropriately to supervisors, co-workers, and usual work situations; and to deal with changes in a routine work setting.-6-

There is one unsigned document in the MHSSO records stating, in relevant part, that Ms. Cainglit is in a depressed mood all the time, has no motivation or energy, struggles with suicidal thoughts, has impai red judgment, places herself in dangerous situations, and has very poor coping skil ls. Aplt. App. at 221. Unlike the other more detailed MHSSO examination reports, this document does not indicate the severity of these symptoms, or the deg ree of restriction caused by these symptoms. This document also states that Ms. Cainglit has demonstrated the ability to work and meet role expectations in the past. We conclude, therefore, that this document, standing alone, is i nsufficient evidence to require a conclusion that Ms. Cainglit’s depression significantly interferes with her ability to perform basic work activities. A state agency medical consultant, Dr. Stephen Mill er, characterized Ms. Cainglit’s mental impairments of affective diso rder (depression) and substance addiction as “[n]ot [s]evere.” Id . at 199. Dr. Miller found that Ms. Cainglit did have depression characterized by appetite disturbance, sleep disturbance, and decreased energy, but that her dep ression caused only slight restrictions in her daily living activities or soci al functioning and seldom caused difficulties in her concentration, persistence, or pace, and that she only once or twice had episodes of deterioration or decompensati on in work or work-like-7-

settings. Id . at 202, 206. All these findings indicate that a mental impairment is
not severe. See 20 C.F.R. §§ 404.1520a(d)(1), 416.920a(d)(1). The ALJ ordered a consultative mental examination, which was performed by Dr. Gerald Ball. Aplt. App. at 195-97. He also diagnosed Ms. Cainglit with major depression of moderate severity and amphetamine withdrawal, id . at 197, and noted that she cried during the examination, id . at 196. He also reported, however, that she was oriented as to time, place, and person, that there was no evidence of any thought disorder, id . at 195, that her short-term memory and mental control were intact and her long-term memorywas adequate, that she could read and follow written directions, that she could fill out job applications, and that she would be able to manage any benefits without assistance, id. at 197. This evidence is consistent with the ALJ’s determin ation that Ms. Cainglit’s depression would not significantly interfere with h er ability to do basic work activities. Ms. Cainglit notes that Dr. Ball reported claimant’ s Global Assessment of Functioning (GAF) score as 45, id . at 197, and that the counselors at MHSSO reported her GAF score as 39, id . at 217, and argues that these scores demonstrate that her depression is a severe impairment. The GA F scale is used by clinicians to report an individual’s overall level of functioning. See American Psychiatric Assoc., Diagnostic and Statistical Manual of Mental Disorders 32 (Text Revision-8-

4th ed. 2000). A GAF score of 41-50 indicates “[s] erious symptoms . . . OR any serious impairment in social, occupational, or school functioning,” while a GAF score of 31-40 indicates “[s]ome impairment i n reality testing or communication . . . OR major impairment in several areas, such as work, school, family relations, judgment, thinking or mood.” Id . at 34. A GAF score of 39-45 thus may indicate problems that do not necessarily relate to one’s ability to work. See id . In this case neither Dr. Ball nor the MHSSO coun selors stated that Ms. Cainglit’s depression would interfere with her ability to work. Aplt. App. at 196-97, 212-26. Rather, they noted problems with h er family and social relationships. Id . at 216. In the absence of any evidence indicatin g that Dr. Ball or the MHSSO assigned these GAF scores because theyperceived an impairment in Ms. Cainglit’s ability to work, the scores, stan ding alone, do not establish an impairment seriously interfering with Ms. Cainglit’ s ability to perform basic work activities. Cf. Howard v. Comm’r of Soc. Sec. , 276 F.3d 235, 241 (6th Cir. 2002). In sum, the ALJ’s determination that Ms. Cainglit’s depression did not significantly limit her physical and mental abilityto do basic work activities, and therefore that her depression was not a “severe ” mental impairment at step two, is supported by substantial evidence.-9-

II. Weight Given to Treating Physician; Development of the Record

. Ms. Cainglit’s next two arguments are related. Fir st, she contends that the ALJ failed to consider properly the report of her treating physician, Dr. Woods, and, second, that in considering Dr. Woods’ records , the ALJ failed to develop the record fully. Dr. Woods’ records consist of tw o pages of treatment notes from March, April and May of 1999, Aplt. App. at 211, 23 0, a two-page analysis of Ms. Cainglit’s RFC in September 1999, id . at 228-29, and a one-paragraph letter dated May 21, 1999, from Dr. Woods, stating her opi nion that Ms. Cainglit was totally and permanently disabled, id . at 231. An ALJ is required to give controlling weight to a treating physician’s opinion only if “it is well supported by clinical and laboratory diagnostic techniques and if it is not inconsistent with othersubstantial evidence in the record.” Castellano , 26 F.3d at 1029; 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2); 20 C.F.R. §§ 404.1527(e)(1), 416.927 (e)(1). When an ALJ decides that a treating source’s opinion is not ent itled to controlling weight, he must determine the weight it should be given aft er considering (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 specialist in the area upon which an opinion is ren dered; and-10-

(6) other factors brought to the ALJ’s attention wh ich tend to support or contradict the opinion. Drapeau v. Massanari, 255 F.3d 1211, 1213 (10th Cir. 2001). Ms. Cainglit acknowledges that the ALJ did not expl icitly reject Dr. Woods’ opinion. Appellant’s Br. at 14. Rather , the ALJ properly set forth specific, legitimate explanations for disregarding certain limited aspects of Dr. Woods’ RFC assessment and correctly observed th at Dr. Woods’ opinion that Ms. Cainglit was disabled was not supported by clin ical and laboratory diagnostic techniques. Dr. Woods’ RFC assessment of Ms. Caing lit’s exertional abilities is consistent with the ALJ’s assessment of her exertio nal abilities, and is not inconsistent with the ALJ’s determination that Ms. Cainglit had the physical strength to perform sedentary work. Compare Aplt. App. at 28, with id . at 228-29; see also 20 C.F.R. §§ 404.1567(a), 416.967(a) (describing e xertional requirements of sedentary work). There were only s light differences in the two RFC assessments, for which the ALJ provided specifi c and legitimate explanations that are supported by the record. Forexample, Dr. Woods found that Ms. Cainglit had a non-exertional limitation of nee ding to avoid exposure to dust, fumes, and humidity. Id . at 229. The ALJ differed from Dr. Woods merely i n his determination that Ms. Cainglit needed only to be restricted from excessive exposure to these irritants, and supported this con clusion with the evidence that Ms. Cainglit continued to smoke and that Dr. Woods’ treatment notes do not-11-

reflect any acute breathing difficulties and did no t suggest further evaluation, such as a pulmonary function study. Id . at 27-28. In discussing Dr. Woods’ treatment of Ms. Cainglit, the ALJ noted that Dr. Woods had prescribed a medication for her that would not likely be prescribed for persons with a respiratory disease. Id . at 27. Ms. Cainglit asserts that the ALJ was impermissibly substituting his lay opinion for medical opinion. See Sisco v. United States Dep’t of Health & Human Servs. , 10 F.3d 739, 744 (10th Cir. 1993) (holding ALJ erred in rejecting un rebutted medical diagnosis of chronic fatigue syndrome based on lack of conclusiv e laboratory tests when there were no such “dipstick” tests available for chronic fatigue syndrome). We disagree. The ALJ was evaluating Dr. Woods’ opinio n based upon a variety of factors, and was not rejecting or discounting Dr. W oods’ opinion based upon this single observation. See Aplt. App. at 27-28. The ALJ did disagree with Dr. Woods’ conclusion that Ms. Cainglit is totally disabled. The ALJ did not err in doing so. An opinion by a treating physician that a claimant is “disabled” or “unable to work” has no special significance because it is not a medical opinion. 20 C.F.R. §§ 404.1527(e)(1); 416.927(e)(1). These determinations are legal conc lusions that are “reserved to the Commissioner.” Id. See also Castellano , 26 F.3d at 1029 (holding that “responsibility for determining the ultimate issue of disability is reserved to the-12-

[Commissioner]”). As the ALJ noted, Dr. Woods’ dis ability opinion was not supported by specific findings or any objective cli nical or laboratory diagnostic findings, and Dr. Woods’ treatment notes do not sup port the severity of impairments she described in her disability opinion letter. See Aplt. App.
at 27-28. In a related argument, Ms. Cainglit contends that the ALJ failed to develop the record in two instances; first, when he noted the incongruity between Dr. Woods’ statement that she had treated Ms. Caing lit since August 1998 and the absence of any treatment notes from Dr. Woods p rior to March 1999, and second, when he noted that Dr. Woods had never orde red any pulmonary function tests to assess the severity of Ms. Cainglit’s breathing problems. Ms. Cainglit contends that the ALJ should have made an attempt t o obtain either the missing records or an explanation for their absence and sho uld have ordered pulmonary function tests. As noted above, the burden to prove disability in asocial security case is on the claimant, and to meet this burden, the claimantmust furnish medical and other evidence of the existence of the disability. Yuckert , 482 U.S. at 146. A social security disability hearing is nonadversarial, howe ver, and the ALJ bears responsibility for ensuring that “an adequate recor d is developed during the disability hearing consistent with the issues raised.” Henrie v. United States-13-

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 re cord by obtaining pertinent, available medical records which come to his attenti on during the course of the hearing.” Carter v. Chater , 73 F.3d 1019, 1022 (10th Cir. 1996). Where the medical evidence in the record is inconclusive, “a consultative examination is often required for proper resolution of a disability claim.” Hawkins v. Chater , 113 F.3d 1162, 1166 (10th Cir. 1997); see also 20 C.F.R. §§ 404.1512(f), 416.912(f). Nevertheless, “[t]he ALJ should ordinarily be entit led 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” and “mayordinarily require counsel to identify the issue or issues requiring further development.” Hawkins , 113 F.3d at 1167. Ms. Cainglit’s counsel was familiar with the record submitted to the ALJ. Counsel did not indicate or suggest to the AL J that any medical records from Dr. Woods were missing, nor ask for the ALJ’s assistance in obtaining any such records. On appeal, counsel has failed to ide ntify the evidence that she claims the ALJ should have obtained. Given Ms. Cai nglit’s failure to provide the as-yet-unidentified records herself, to ask the Com missioner for assistance, or to show the relevance of any records she claims the AL J should have obtained,-14-

we conclude she has not demonstrated the ALJ violat ed his duty to develop the record. Nor was the ALJ required to order a pulmonary funct ion test. The ALJ did order two consulting examinations. Neither the tre atment records nor the consulting examination relating to Ms. Cainglit’s b reathing problems indicate that further examinations were needed. The consulting p hysician stated that although Ms. Cainglit reported having asthma and breathing d ifficulties, he did not see that demonstrated in his examination. Aplt. App. at 189 . He reported that Ms. Cainglit’s chest and lungs were clear, that he heard no wheezes and no chest rales in her lungs whatsoever, that she had good br eath sounds bilaterally, and that after he put her through all the exams, she was not short of breath. Id

. at 188-89. We conclude there was an adequate record by which the ALJ could decide this case. He had before him not only Dr. Woods’ r ecords but also the records of Ms. Cainglit’s other physicians, as well as those o f the consulting physicians. Further, we conclude the ALJ gave proper weight to Dr. Woods’ opinions. See Castellano, 26 F.3d at 1029.-15-

The judgment of the district court is AFFIRMED.

Entered for the Court

Harris L Hartz Circuit Judge