F I L E D
United States Court of Appeals
UNITED STATES COURT OF APPEALS
JUN 19 1997
FOR THE TENTH CIRCUIT
RONALD J. SHIELDS,
v. No. 96-6356
(D.C. No. CIV-95-1591-A)
JOHN J. CALLAHAN, Acting (W.D. Okla.)
Commissioner, Social Security
ORDER AND JUDGMENT **
Before EBEL, HENRY, and MURPHY, Circuit Judges.
Pursuant to Fed. R. App. P. 43(c), John J. Callahan, Acting Commissioner
of Social Security, is substituted for Shirley S. Chater, former Commissioner of
Social Security, as the defendant in this action.
This order and judgment is not binding precedent, except under the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.
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 Ronald Shields appeals from the district court's order affirming
the decision of the Commissioner of Social Security denying him disability
benefits. We have jurisdiction pursuant to 42 U.S.C. § 405(g) and we affirm.
Claimant is an insulin-dependent diabetic. He filed his application for
disability benefits on February 1, 1993, alleging disability as of December 4,
1992, due to complications of diabetes and a mental impairment. At his hearing
before an Administrative Law Judge (ALJ) on July 12, 1994, claimant, who was
represented by counsel, complained of fatigue, weakness, an inability to sleep,
lower extremity pain and cramping, memory loss, blurry vision, hearing loss, sour
stomach, depression, and fainting spells. See II Appellant's App. at 256, 258-59,
260, 261-64, 265, 276-277. Claimant testified that he could sit for only 30
minutes at a time and for a total of only two hours in an eight-hour day, that he
could stand for only 10 to 15 minutes at a time and for a total of only 30 minutes
in an eight-hour day, that he would be "lucky to walk a block," and that he could
lift "[f]ive or ten pounds at the most." See id. at 258-59.
[End Page 2]
Following the hearing, the ALJ determined that claimant was precluded
from returning to his past work (categorized as medium and semi-skilled), but
found that he retained the residual functional capacity (RFC)
to perform the physical exertion and nonexertional requirements of
work except for the inability to engage in the exertional demands of
medium, heavy, and very heavy work; the need to alternatively sit
and either stand or walk every 30 minutes; the inability to lift and
carry more than 10 pounds; the inability to walk more than one
block at a time; [and] the need to engage in an occupation involving
only simple one and two-step instructions.
Id. at 17. The ALJ further found that "[t]he claimant's [RFC] for the full range of
sedentary work [was] reduced by limitations on sitting, standing, walking, lifting,
and carrying and the need to engage in an occupation involving only simple one
and two step instructions." Id. At the hearing, the ALJ received testimony from a
vocational expert (VE) that, notwithstanding claimant's limitations, 1 there were a
significant number of sedentary unskilled jobs in the national economy that he
could perform. On the basis of this testimony, the ALJ found claimant not
disabled at step five of the sequential evaluation process, see Williams v. Bowen,
844 F.2d 748
, 750-52 (10th Cir. 1988) (discussing five steps in detail). 1
In questioning the vocational expert, the ALJ included in his series of
hypotheticals all the limitations set forth in his RFC determination, as well as the
inability to stand for more than 15 minutes at a time and 30 minutes total in an
eight-hour day, very poor memory, poor judgment, "often" "deficiencies of
concentration, persistence, or pace," one or two past "episodes of deterioration"
in mental capacity, depression, anxiety, and an adjustment disorder with mixed
emotional features. See II Appellant's App. at 268, 271-72.
[End Page 3]
A. Issues Not Properly Preserved
Claimant claims to raise two issues on appeal, but actually raises four.
Furthermore, our review of the record reveals that two of the four issues have not
been properly preserved for appellate review. Claimant's representations to the
contrary in his brief appear disingenuous at best. Claimant's contention that the
ALJ's credibility determination is not explicitly and adequately linked to
substantial evidence was not included in claimant's objections to the magistrate's
report and recommendation. See Soliz v. Chater, 82 F.3d 373
, 375-76 (10th Cir.
1996) (issues waived if not specifically raised in objections to magistrate's report
and recommendation). Claimant's contention that the Appeals Council failed to
satisfy some sort of "an expanded duty" to "see that the record was more fully
developed," imposed upon it by the new evidence presented to it, Appellant's Br.
at 22, was raised for the first time in claimant's objections to the magistrate's
report and recommendation. See Marshall v. Chater, 75 F.3d 1421
, 1426 (10th
Cir. 1996) ("Issues raised for the first time in objections to the magistrate judge's
recommendation are deemed waived."). We find no reason on this record to lift
the bar to appellate review.
[End Page 4]
B. Issues on Appeal
The issues which have been preserved for review both revolve around the
absence in the record of a medical assessment of claimant's physical RFC. 2
Claimant contends (1) that the ALJ failed in his duty to develop the record by his
failure to order a consultative examination on the issue of RFC, and (2) that the
Commissioner's step five determination is not supported by substantial evidence
without it. We disagree on both counts. In this case, the ALJ accepted all of the
functional limitations to which claimant testified, except his purported inability to
sit more than two hours total in an eight-hour day and any limitations as a result
of his claimed episodic blurry vision, hearing loss, and fainting spells. Without
exception, plaintiff presented no objective medical evidence to support these
limitations, and thus consultative examinations to explore those issues were not
required. See Hawkins v. Chater,
, No. 96-5110, 1997 WL 249150,
at *4 (10th Cir. May 13, 1997); Diaz v. Secretary of Health & Human Servs., 898 F.2d 774
, 778 (10th Cir. 1990).
The record includes a Mental Residual Functional Capacity Assessment, as
well as the appropriate Psychiatric Review Technique (PRT) forms and the report
of a consultative mental status examination conducted in March of 1993. The
ALJ included all of the impairments and limitations identified in those documents
in the required PRT attached to his opinion and in his series of hypotheticals to
[End Page 5]
Our conclusion that consultative examinations were not required in this
case is further buttressed by the fact that claimant's attorney never requested such
examinations or indicated in any way (except with respect to claimant's visual
acuity) that further development of the record might be in order. Even with
respect to claimant's visual acuity, counsel asked only for an opportunity to
"check into" the situation himself, noting claimant's reference at the hearing to
having had a recent eye test. See II Appellant's App. at 277-78. Notwithstanding
the fact that the ALJ agreed to leave the record open for a week, there is no eye
test in the record, nor any communication from counsel as to the results of his
investigation and/or the need for further development of the record. This court
has recently indicated that "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, 1997 WL 249150, at *5 (citation omitted).
As for claimant's contention that the step five determination of
nondisability is not supported by substantial evidence, again we disagree. "It is
beyond dispute that the burden to prove disability in a social security case is on
the claimant." Id. at *1. This means that a claimant has to furnish evidence not
only about his or her medical impairment, but (if material to the disability
[End Page 6]
determination, as it is here) the impairment's "effect on [his or her] ability to
work on a sustained basis." 20 C.F.R. § 404.1512(a) (1996). Claimant is correct
that, once he demonstrated that he could not perform his past work, the burden
was on the Commissioner to prove that he retained the RFC to do other work that
exists in the national economy. See Thompson v. Sullivan, 987 F.2d 1482
(10th Cir. 1993). This burden is satisfied if the Commissioner's decision is
supported by substantial evidence. See id.
Here, the ALJ's RFC determination was based on a consultative mental
status examination, a mental RFC assessment incorporated into the required PRT
form, claimant's own testimony, and a medical record that "failed to reflect the
existence of diabetes of sufficient severity to preclude the claimant from engaging
in work activity within the parameters of [the ALJ's RFC determination]," II
Appellant's App. at 16. As indicated above, the ALJ did not accept all of the
limitations to which claimant testified. He considered them, however, and
discounted their significance because of the lack of objective corroborative
evidence in the record, which was his prerogative. See Diaz, 898 F.2d at 777.
We cannot say his decision is unsupported by substantial evidence.
[End Page 7]
The judgment of the United States District Court for the Western District of
Oklahoma is AFFIRMED.
Entered for the Court
Robert H. Henry
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