                                                                            F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            April 7, 2006
                            FOR THE TENTH CIRCUIT                        Elisabeth A. Shumaker
                                                                            Clerk of Court

    DONNA L. MILLER,

                Plaintiff-Appellant,

    v.                                                    No. 05-6248
                                                    (D.C. No. CIV-04-906-L)
    JO ANNE B. BARNHART,                                  (W.D. Okla.)
    Commissioner of Social Security
    Administration,

                Defendant-Appellee.


                            ORDER AND JUDGMENT *


Before LUCERO, EBEL, and MURPHY, Circuit Judges.



         Donna L. Miller appeals from an order affirming the Commissioner’s

decision that she is not entitled to social security disability insurance benefits.




*
       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); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
We have jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291, and we affirm.

                                   Background

      The lengthy history of Ms. Miller’s disability claim begins with her October

24, 1996 application, in which she alleged disability since July 1, 1993. Ms.

Miller, whose insured status expired September 30, 1995, listed her disabling

condition as “nervous breakdown (1988-89).” Aplt. App. at 60. Accordingly,

the evidence relevant to her claim pertains to her mental impairment after the

alleged onset date and before the expiration of her insured status. See Henrie v.

U.S. Dep’t of Health & Human Serv., 13 F.3d 359, 360 (10th Cir. 1993).

      Ms. Miller’s medical records indicate that she was hospitalized from

February 7 to March 15, 1989, for a single episode of major depression with

psychotic features, apparently precipitated by marital and family-related stressors.

She was discharged in improved condition with instructions to continue her

psychiatric care and take her medication. Ms. Miller did not return to her

previous job as a dishwasher in a restaurant, but she worked from July to

September 1990 in a nursing home and, in 1993, was a self-employed cattle

salesperson. From her 1989 discharge to her 1996 disability application,




                                        -2-
Ms. Miller received medical care for various physical problems, but was not seen

again by a mental-health provider. 1

      In her social security case, an Administrative Law Judge (ALJ) held a

hearing on May 7, 1998. A psychiatrist testified that the lack of “anything

ongoing, recent” made an evaluation difficult and that she could determine

whether Ms. Miller met a listing more objectively if the Commissioner ordered

psychological testing. Aplt. App. at 215-16. On August 24, 1998, a psychologist

evaluated Ms. Miller at the request of the Commissioner. The psychologist’s

report shows a diagnosis of recurrent major depression, with possible psychotic

features; chronic pain syndrome; and anxiety disorder, primarily represented by

social phobia. The psychologist also completed a mental residual functional

capacity (RFC) assessment form, noting several moderate and marked limitations

in her ability to perform work-related activities. Neither the report nor the RFC

assessment indicated a continuity between the 1989 psychotic break and

Ms. Miller’s condition on the date of the evaluation.

      Shortly afterwards, the ALJ denied Ms. Miller’s application for benefits.

Relying heavily on the psychologist’s report of the consultative examination, the


1
      On appeal, Ms. Miller emphasizes the record of an emergency room visit
for abdominal pain in June 1996 contains a “diagnostic impression of “chest pain,
poss[ible] anxiety.” Aplt. App. at 133. This notation does not constitute a
linkage between her episode of depression in 1989 and her later claim of
a continuing mental problem.

                                        -3-
ALJ found that Ms. Miller had a severe depressive and anxiety disorder, but that

she had the RFC to perform the physical and mental demands of her past relevant

work as a dishwasher. The Commissioner, however, had not provided the report

to Ms. Miller. Upon judicial review, the district court reversed the denial of

benefits, holding that Ms. Miller’s due process rights were violated by the

Commissioner’s failure to give her notice of the post-hearing report or a

meaningful opportunity to rebut this evidence.

      A second ALJ then held a hearing on remand. Douglas Brady, a clinical

consultative psychologist, testified that a fair inference from the medical record

was that Ms. Miller needed intensive treatment in 1997. He also commented on

the lack of records of psychological or psychiatric treatment during the time

period relevant to her claim. Ms. Miller testified about her condition from 1997

through the date of the hearing.

      In a decision dated July 26, 2002, the second ALJ found that Ms. Miller

“had a mental difficulty that did significantly restrict her ability to do basic work

activities,” that she had the RFC for jobs with low to moderate stress, and that her

past relevant work as a dishwasher was within this RFC. Id. at 269. Based on his

findings, the ALJ concluded at step two of the sequential evaluation process that




                                          -4-
Ms. Miller had a significant impairment, but denied benefits at step four because

she could perform her past relevant work. 2

      Ms. Miller appealed the denial and, in 2003, the Appeals Council

determined that the second ALJ’s decision was unsupported and insufficient.

It therefore remanded the case, with specific directions to the ALJ to develop

the record on remand by: (1) updating the record with reports from health care

providers; (2) preparing a “new, longitudinal” RFC determination; (3) holding a

supplemental hearing, with testimony from a vocational expert; (4) reconsidering

claimant’s testimony; and (5) taking action necessary to complete the

administrative record before issuing a new decision. Id. at 309.


2
      Step one [of the process] requires a claimant to establish she is not
      engaged in substantial gainful activity. Step two requires the
      claimant to establish she has a medically severe impairment or
      combination of impairments. Step three asks whether any medically
      severe impairment, alone or in combination with other impairments,
      is equivalent to any of a number of listed impairments so severe as to
      preclude substantial gainful employment. If listed, the impairment is
      conclusively presumed disabling. If unlisted, the claimant must
      establish at step four that her impairment prevents her from
      performing work she has previously performed. If the claimant is not
      considered disabled at step three, but has satisfied her burden of
      establishing a prima facie case of disability under steps one, two, and
      four, the burden shifts to the Commissioner to show the claimant has
      the residual functional capacity (RFC) to perform other work in the
      national economy in view of her age, education, and work
      experience.

Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005) (internal quotation
marks and citations omitted).

                                        -5-
      A third ALJ was assigned to the case. He opened a hearing, informing

claimant he was not bound by any prior decision in the case. The transcript shows

that both the ALJ and Ms. Miller’s attorney were focused on extending

Ms. Miller’s period of insurance eligibility and exploring the feasibility of

Supplemental Security Income benefits. Concerning the medical records, the ALJ

noted that the record didn’t “have a lot of medical evidence up until the date last

insured” and inquired if there would “be substantial medical evidence . . . from

‘89 up to ‘94.” Aplt. App. at 497-98. Ms. Miller’s attorney responded that there

was “a gap from – ‘89 forward. . . . That’s basically when her medical drops off

the chart.” Id. at 497. He also stated that his client “understands the problems.

That’s where we’re stuck. We go around in this case, around and around.” Id.

at 498. The attorney did not suggest that any additional evidence would be

appropriate. A vocational expert was present, but after holding the discussion

with Ms. Miller’s attorney, the ALJ closed the hearing without calling for

vocational testimony.

      The ALJ continued the proceedings for sixty days. No additional evidence

relevant to Ms. Miller’s mental condition was produced after the hearing.

Ms. Miller’s attorney submitted a letter to the ALJ which stated: “Quite frankly,

I have nothing further to offer on this claim and have so explained this to the

claimant. As you can see, she is also at her end and simply requests that a


                                         -6-
decision from your office be issued.” Id. at 335. The ALJ then issued the

decision which is the subject of this appeal.

      In making his decision, the third ALJ reviewed essentially the same record

available to the second ALJ. At step two of the evaluation process, the ALJ

acknowledged that the record indicated that Ms. Miller had a severe mental

impairment in 1989 and also at the time of her 1998 examination. He concluded,

however, that there was no evidence concerning an impairment in 1995. On

November 26, 2003, the ALJ denied Ms. Miller’s application on the ground that

she was not significantly limited in her ability to perform basic work-related

activities at the relevant time and therefore not severely impaired.

      On administrative appeal, the Appeals Council found that “the

Administrative Law Judge complied with the remand order” and declined to

assume jurisdiction. Id. at 235. The district court affirmed the Commissioner’s

decision and this appeal followed.

                                 Legal Discussion

Compliance with remand order

      Ms. Miller’s primary argument on appeal is that the ALJ’s actions were

inconsistent with the Appeals Council remand order. Ms. Miller does not assert

that the ALJ’s de novo sequential evaluation caused surprise, confusion, or

prejudice. And she does not describe evidence that she would have presented if


                                         -7-
she had been given formal, explicit notice that the ALJ could revisit the earlier

step-two determination. Instead, she attempts to make a legal argument by

claiming that (1) in light of prior proceedings, the ALJ was precluded from

making a step-two determination that she did not have a severe impairment; and

(2) in accordance with the remand order, the ALJ should have obtained additional

testimony from medical and vocational experts and conducted an analysis of the

previous testimony from medical experts.

      Social Security regulations provide that, in the event the Appeals Council

orders a remand, the ALJ “shall take any action that is ordered by the Appeals

Council and may take any additional action that is not inconsistent with the

Appeals Council’s remand order.” 20 C.F.R. § 404.977(b). Preclusion principles,

however, do not “bind the ALJ to his earlier decision. To hold otherwise would

discourage administrative law judges from reviewing the record on remand,

checking initial findings of fact, and making corrections, if appropriate.”

Campbell v. Bowen, 822 F.2d 1518, 1522 (10th Cir. 1987). This court has

“decline[d] to constrain the ALJ in a manner not mandated by the regulations.”

Id. See also Hamlin v. Barnhart, 365 F.3d 1208, 1224 (10th Cir. 2004) (stating

that “[i]t was certainly within the ALJ’s province, upon reexamining [claimant’s]

record [after Appeals Council remand], to revise his RFC category”); Houston v.

Sullivan, 895 F.2d 1012, 1015 (5th Cir. 1989) (“Once the case was remanded to


                                         -8-
the ALJ to gather more information about the extent of [claimant’s] disability, the

ALJ was free to reevaluate the facts.”). 3

      Ms. Miller was advised of this rule at her hearing, when the ALJ announced

that he was not bound by a prior decision. She was also warned that the ALJ

considered the medical evidence lacking. Rather than making an effort to

produce additional evidence or suggest a cure for the obvious gap in the record,

Ms. Miller’s attorney simply conceded that the absence of evidence was

problematic. On the facts of this case, the ALJ’s change in the step two

determination, standing alone, cannot constitute error.

      Ms. Miller also argues that the order denying benefits should be reversed

because the ALJ’s actions were inconsistent with the Appeals Council remand

order. Specifically, she asserts that the ALJ disregarded instructions to obtain

additional testimony from medical and vocational experts. The order, however,

did not address the second ALJ’s step-two findings. In context, the instructions


3
       Claimant’s cited authority does not detract from the rule this court
established in Campbell. The cases relied upon by Ms. Miller generally involve a
remand from a court, not an administration agency. They discuss and apply the
law of the case doctrine, which requires the administrative agency on remand to
conform its further proceedings to the judicial decision. Brachtel v. Apfel,
132 F.3d 417, 420 (8th Cir. 1997); Ruiz v. Apfel, 24 F. Supp. 2d 1045, 1050
(C.D. Cal. 1998); Richardson v. Apfel, 9 F. Supp. 2d 666, 673 (N.D. Tex. 1998);
Geracitano v. Callahan, 979 F. Supp. 952, 957 (W.D.N.Y. 1997). See also
Schonewolf v. Callahan, 972 F. Supp. 277, 289 (D.N.J. 1997) (noting the ALJ’s
failure to follow the Appeals Council remand order, but independently reviewing
the adequacy of the ALJ’s findings).

                                             -9-
were designed to correct “errors of law affect[ing] the ALJ’s residual functional

capacity findings,” made at step four. Aplt. App. at 307. In response to

Ms. Miller’s final administrative appeal, the Appeals Council found that the third

ALJ complied with its remand order. Under these circumstances, it is appropriate

to examine the Commissioner’s final decision under our usual standards, rather

than focusing on conformance with the particular terms of the remand order.

Cf. 42 U.S.C. § 405(g) (stating that this court is limited to review of the

Commissioner’s final decision); 20 C.F.R. § 404.955(a) (stating that when the

Appeals Council grants a claimant’s request for review, the ALJ’s decision does

not become final).

Substantial evidence and conformity with legal standards

      This court reviews the Commissioner’s decision to determine whether the

factual findings are supported by substantial evidence in the record and whether

the correct legal standards were applied. Watkins v. Barnhart, 350 F.3d 1297,

1299 (10th Cir. 2003). “Substantial evidence is such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.” Doyal v.

Barnhart, 331 F.3d 758, 760 (10th Cir. 2003) (quotation omitted). The court does

not reweigh the evidence or substitute its judgment for that of the Commissioner.

Decker v. Chater, 86 F.3d 953, 954 (10th Cir. 1996).




                                         -10-
      Ms. Miller challenges the Commissioner’s determination that she did not

have a severe impairment at the relevant time. At step two, the claimant must

prove that she has a medically severe impairment or combination of impairments

that significantly limits her ability to do basic work activities. 20 C.F.R.

§§ 404.1520(a)(4)(ii), 404.1521(a). “The step two severity determination is based

on medical factors alone. . . .” Williamson v. Barnhart, 350 F.3d 1097, 1100

(10th Cir. 2003). Although step two requires only a “de minimis” showing of

impairment, a “claimant must show more than the mere presence of a condition or

ailment.” Hinkle v. Apfel, 132 F.3d 1349, 1352 (10th Cir. 1997) (citations

omitted). To meet this burden, a claimant must furnish medical and other

evidence to support her claim that the impairment prevents her from engaging in

substantial gainful activity. Bowen v. Yuckert, 482 U.S. 137, 145-46 & n.5

(1987).

      Ms. Miller asserts that she carried her burden or, alternatively, she could

have done so if the ALJ had developed the record with the testimony of an

additional medical expert. The record contains no evidence that Ms. Miller was

significantly impaired at the time her insured status expired. Thus we are brought

to the question of whether the third ALJ’s failure to obtain retrospective medical

testimony opinion amounts to a breach of his duty to develop the record.




                                         -11-
      The Commissioner “has broad latitude in ordering consultative

examinations,” but “where there is a direct conflict in the medical evidence

requiring resolution or 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) (citations

omitted). A “retrospective medical assessment of a patient may be probative

when based upon clinically acceptable diagnostic techniques.” Perez v. Chater,

77 F.3d 41, 48 (2d Cir. 1996) (concerning a treating physician’s retrospective

assessment).

      The record before the ALJ, however, does not indicate that this exercise

would have revealed “any useful information or that the physicians were willing

to undertake such assessments.” Id. Though Ms. Miller argues that she was

entitled to the testimony of a medical expert, she does not explain how a

diagnosis undertaken ten years after the alleged onset date would have yielded

any probative evidence. Further, she conceded that she had nothing further to

offer and that the time had come to seek a decision. Cf. Hawkins, 113 F.3d

at 1167-68 (stating that, in the absence of a request from counsel, this court does

not ordinarily “impose a duty on the ALJ to order a consultative examination

unless the need for one is clearly established in the record”).




                                         -12-
      The ALJ already had Ms. Miller’s complete medical history, testimony

from the two previous hearings, and the 1998 evaluation. Contrary to her

contention, the ALJ adequately evaluated and discussed the record, including the

1998 evaluation. Once he decided that the record did not demonstrate a severe

impairment, the ALJ acted within the “broad latitude” afforded the agency in

declining to obtain further medical testimony. See Hawkins, 113 F.3d at 1166.

For similar reasons, the ALJ was not required to take the testimony of a

vocational expert before making his step two determination.

      According Ms. Miller’s social security claim careful consideration at every

administrative and judicial level has led to unfortunate delay. We now conclude,

however, that the Commissioner’s final decision followed appropriate legal

standards and was supported by substantial evidence. AFFIRMED.


                                                   Entered for the Court



                                                   Michael R. Murphy
                                                   Circuit Judge




                                        -13-
