* This order and judgment is not binding precedent, e xcept under the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 10 1999 

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

CONNIE H. DUNCAN,

Plaintiff-Appellant,

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

Defendant-Appellee. No. 98-7089 (D.C. No. CV-97-305-S) (E.D. Okla.)

ORDER AND JUDGMENT *

Before BALDOCK , BARRETT , and HENRY , 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.1 Even though claimant listed left eye blindness as a n impairment to be

considered in her applications for benefits, she to ld the ALJ at the hearing that it was her right eye, not the left, the problem had ex isted since childhood, the problem was corrected with glasses, and the problemonly had been listed on the applications at the suggestion of the social securi ty employee helping her with her applications. -2- Claimant Connie H. Duncan appeals from the districtcourt’s order adopting the recommendation of the magistrate judge affirmin g the Commissioner of Social Security’s denial of her applications for Social Se curity disability insurance and supplemental security income benefits. Claimant, aforty-five-year-old woman with a high school education and two years of nursi ng school, claimed disability from April 7, 1990, due to degenerative disc diseas e and uncorrected left eye blindness. 1 Claimant filed applications for benefits in Septemb er 1992, which were denied initially and on reconsideration. She reque sted and received a hearing before an administrative law judge (ALJ). After he aring testimony from claimant and a vocational expert, the ALJ determined that cl aimant was unable to return to her past relevant work as a registered nurse. The ALJ found at step five of the five-step evaluation sequence, see Williams v. Bowen , 844 F.2d 748, 750-51 (10th Cir. 1988), that claimant retained the residual fun ctional capacity to perform the full range of light work except for lifting or carrying more than twenty pounds occasionally and ten pounds frequently; being able to stand or sit for prolonged-3-

periods without shifting position; and begin able t o engage in more than occasional stooping, crouching, and bending. The Appeals Council denied claimant’s request for review, and the ALJ’s decisi on became the final decision of the Commissioner. See 20 C.F.R. §§ 404.981, 416.1481. Claimant appealedthe ALJ’s decision, and the district court upheld the A LJ’s decision. This appeal followed. Our review of the Commissioner’s decision is limite d to determining whether the decision is supported by substantial ev idence and whether the Commissioner applied correct legal standards. See Castellano v. Secretary of Health & Human Servs. , 26 F.3d 1027, 1028 (10th Cir. 1994). “To find th at the [Commissioner’s] decision is supported by substanti al evidence, there must be sufficient relevant evidence in the record that a r easonable person might deem adequate to support the ultimate conclusion.” Bernal v. Bowen , 851 F.2d 297, 299 (10th Cir. 1988). We may neither reweigh the e vidence nor substitute our judgment for that of the Commissioner. See id. On appeal, claimant asserts that the ALJ erred (1) in assessing her residual functional capacity and credibility; (2) in failing to develop the record as to her mental impairments; and (3) in failing to ask the v ocational expert a proper hypothetical question. We conclude that the record contains substantial evidence-4-

supporting the ALJ’s denial of benefits in this cas e, and we affirm the district court’s decision. In September 1988, claimant fell from a sidewalk, l anding on her buttocks. Two months later, she was hospitalized by Dr. Rick L. Robbins complaining of lower back pain radiating down her left hip and leg . X-rays taken at that time revealed a possible herniation of the disc at L4-L5 with no other abnormalities. Her CT scan showed no sign of a ruptured disc. Cla imant was treated with traction, a 1200-calorie diet, and medication. She was released four days later much improved. Claimant was subsequently hospitalized by Dr. Robbi ns in April 1990, with acute lumbar strain resulting from an automobile ac cident in March 1990. She was again treated with traction and medication. A CT of her lumbar spine taken at that time showed “a distinct possibility of recu rrent left perimedian disc herniation.” Appellant’s App. Vol. II at 232. At the time of her discharge, she expressed a desire to be treated with conservative therapy instead of surgery, and Dr. Robbins ordered medication, hot packs, no drivi ng, no lifting over twenty pounds, and no working until released to do so. Th e record does not indicate that Dr. Robbins continued to treat claimant following h er discharge from the hospital. In October 1992, claimant was examined by Dr. Mark Wellington of the Oklahoma Department of Human Services for the purpo se of evaluating her level-5-

of disability due to back pain. Dr. Wellington dia gnosed claimant with lumbar degenerative disc disease. He recommended an MRI and a rheumatoid evaluation. Dr. Wellington noted that claimant was not taking h er anti-inflammatory medications. In June 1994, Dr. B. Don Schumpert of Heavener Medi cal Services opined in a short letter that claimant was precluded from “work requiring lifting, bending and things of this nature.” Id. at 243. Although Dr. Schumpert’s letter stated th at claimant was a patient on June 15, 1994, his opinio n as to claimant’s limitations was not supported by any medical or clinical eviden ce. On June 22, 1994, claimant was seen by Dr. Robert C . Williams at Holt Krock Clinic, who diagnosed claimant with low back pain “probably secondary to lumbar disc disease.” Id. at 246. Dr. Williams prescribed Xanax for rest, L odine for back pain, and referred her to neurosurgery. O n November 17, 1994, Dr. Williams opined in a short letter that claimant’s “ chronic low back pain with history of lumbar disc disease” rendered her unable to work or seek employment at that time. Id. at 255. On April 24, 1995, Dr. Williams wrote a s econd twosentence letter which stated that he had treated cl aimant for “low back pain with probable lumbar disc disease, anxiety, and chronic joint pain, which may be mild arthritis,” and included a recent diagnosis of hypertension. Id. at 256. On August 4, 1995, Dr. Williams opined that claimant’s condit ion had not changed over the2 “An ALJ has the duty to develop the record by obtai ning 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). Here, couns el for claimant did not indicate during the hearing th at any additional medical records were available. Moreover, claimant does no t argue on appeal that the ALJ failed in his duty to develop the record as to available medical records. See Crow v. Shalala , 40 F.3d 323, 324 (10th Cir. 1994). -6- past year, and he did not expect it to do so. See id. at 263. The record contains no medical or clinical evidence supporting Dr. Williams’ conclusions. 2 On referral from Dr. Williams, claimant was examine d by Dr. Timothy R. Best, who also diagnosed chronic back pain secondary to lumbar disc disease. Dr. Best opined that claimant’s excess weight was exace rbating her back pain and recommended a weight loss. He also recommended that she receive steroid injections and a referral to a pain clinic. On Oct ober 11, 1995, Dr. Williams indicated that he referred claimant to the Holt Kro ck Clinic Neurosurgery. The record, however, does not indicate the outcome, if any, of that referral. Claimant broadly asserts that the ALJ’s determinati on that claimant was capable of a full range of light work except for ce rtain limitations was not supported by substantial evidence. More specifical ly, she argues that the ALJ erred in finding her assertions of pain incredible, in disregarding the opinions of her treating physicians, and in assessing the medic al evidence. In analyzing evidence of allegedly disabling pain,-7-

[w]e must consider (1) whether Claimant establisheda painproducing impairment by objective medical evidence; (2) if so, whether there is a “loose nexus” between the provenimpairment and the Claimant’s subjective allegations of pain; and (3) if so, whether considering all the evidence, both objective and su bjective, Claimant’s pain is in fact disabling. Musgrave v. Sullivan , 966 F.2d 1371, 1375-76 (10th Cir. 1992). Here, the ALJ determined that although claimant established a pai n-producing impairment linked to her subjective allegations of pain, she failed t o establish that her pain was disabling. The ALJ found her claims of pain to be credible only to the extent that they were consistent with her ability to do light w ork with limitations. The ALJ found that claimant, the single parent of two young children, drives, does her own housework and shopping, and visits and helps her el derly mother daily. The ALJ noted that claimant did not use a cane or other aid e for walking, chose conservative treatment rather than surgical interve ntion for her back problem, and although she complained that certain of her medicat ions make her drowsy, she did not allege that the side effects outweigh the benefits. See Luna v. Bowen , 834 F.2d 161, 165-66 (10th Cir. 1987) (listing factors to be considered by ALJ in evaluating claimant’s subjective complaints of pain ). Because credibility determinations are better made by the fact finder, we will not interfere with the ALJ’s credibility determination unless such determination is without substantial evidentiary support. See Diaz v. Secretary of Health & Human Servs. , 898 F.2d 774, 777 (10th Cir. 1990). Here, contrary to-8-

claimant’s assertions, the ALJ adequately articulat ed his reasons for his credibility determination, and linked his conclusion to the evidence. Cf. Kepler v. Chater , 68 F.3d 387, 391 (10th Cir. 1995) (ALJ’s credibil ity findings should be linked to evidence and not just a conclusion). We therefore conclude that claimant has not presented any grounds for overturn ing the ALJ’s credibility determination. Next, claimant asserts that the ALJ erred in failin g to follow the November 17, 1994 letter opinion of Dr. Williams th at claimant was not able to work or seek employment. In considering Dr. Williams’ opinion, the ALJ opined that this conclusory statement was not entitled to great weight and consideration unless there was an absence of conflict in the evid ence and all the evidence supported this conclusion. The ALJ then concluded that without objective medical or laboratory data supporting this conclusi on, Dr. Williams’ opinion need not be given probative weight. We agree. An ALJ is required to give substantial weight to a treating physician’s opinion as long as “‘it is well supported by clinic al and laboratory diagnostic techniques and if it is not inconsistent with othersubstantial evidence in the record.’” Bean v. Chater , 77 F.3d 1210, 1214 (10th Cir. 1995) (quoting Castellano , 26 F.3d at 1029). While other examining physicia ns concurred with Dr. Williams’ diagnosis, no other physician opined that claimant was permanently-9-

disabled. We acknowledge that the record indicates that Dr. Williams saw claimant several times over a two-month period and was treating claimant for her back pain. It appears that his treatment, however, was in response to claimant’s recitation of her history of back injury and her co mplaints of back pain. There is no supporting medical or laboratory data in the rec ord upon which Dr. Williams could have based his opinion that claimant was unab le to work. Therefore, because Dr. Williams’ judgment that claimant was un able to work was conclusory and unsupported, the ALJ did not err in rejecting this opinion. See Bean , 77 F.3d
at 1214. Claimant further alleges that the ALJ erred in fail ing to develop the record as to claimant’s alleged mental impairment. Specif ically, she alleges that the ALJ should have ordered a consultative psychiatric exam ination based on the record evidence that she suffered from anxiety. In her ap plications, claimant did not claim disability due to a mental impairment. The r ecord, however, indicates that Dr. Williams prescribed Xanax for anxiety. When qu estioned by the ALJ, claimant testified that, although she had attacks o f anxiety about once a week,3 The record contains evidence of claimant receiving treatment for anxiety on

two occasions. On May 2, 1992, she was treated in a hospital emergency room for an accelerated heart rate. She related that th ese symptoms started during an argument with her husband when he threatened to kill her if she left him. See Appellant’s App. Vol. II at 234. In March 1995, itappears that claimant had an attack of heart palpitations while being injected w ith Xylocaine with Epinephrine by her dentist. Although Dr. Williams noted a hist ory of palpitations, he diagnosed a probable sensitivity to the Epinephrine. See id. at 259. -10- they were controlled by the Xanax. 3 She did not indicate that these bouts of anxiety were at all limiting. The Commissioner has a great deal of latitude in de ciding whether to order consultative examinations. See Diaz , 898 F.2d at 778. When a claimant is represented by counsel at the hearing, the burden o rdinarily is on counsel to present issues in need of further exploration. See Hawkins. v. Chater , 113 F.3d 1162, 1167 (10th Cir. 1997). “In the absence of su ch a request by counsel, we will not impose a duty on the ALJ to order a consul tative examination unless the need for one is clearly established in the record.” Id. at 1168. The ALJ’s duty to develop the record is limited to those issues that are material. See Baca v. Department of Health & Human Servs. , 5 F.3d 476, 479-80 (10th Cir. 1993). Here, the ALJ found that claimant had never been re ferred for mental health treatment nor had she sought treatment on he r own; her anxiety had never restricted her activities or social interactions; a nd her anxiety had never affected4 Counsel has recently been sanctioned by this court for this kind of

misrepresentation. See Lail v. Apfel , No. 98-7079 (10th Cir. April 13, 1999). Because the briefs in this case were filed prior to this court’s sanction order, we take this occasion only to remind counsel that misr epresentation of the record on appeal will not be tolerated. -11- her work or working environment. The ALJ then conc luded that her anxiety was mild and would have no adverse affect on her ability to work. Because the ALJ’s conclusion that claimant’s anxiety was not a material issue in her disability determination was supportedby the evidence in the record, we discern no error in the ALJ’s failure to develop the issue further or order a consultative examination. Despite counsel’s representation to this court to the contrary, 4 claimant’s final contention of error, that the ALJ’s hypotheti cal question to the vocational expert was incomplete and inaccurate, was not adequ ately raised or argued to the district court. Therefore, we will not address the issue on appeal. See Crow v. Shalala , 40 F.3d 323, 324 (10th Cir. 1994) (holding that g enerally issues not preserved in the district court are waived on appea l).-12-

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

Entered for the Court

James E. Barrett Senior Circuit Judge