                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                         May 23, 2006
                            FO R TH E TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                         Clerk of Court



    STEPH EN LY LES,

                Plaintiff-Appellant,

    v.                                                    No. 04-7074
                                                    (D.C. No. 03-CV-418-W )
    JO A NN E B. BA RN HA RT,                             (E.D. Okla.)
    Commissioner, Social Security
    Administration,

                Defendant-Appellee.



                             OR D ER AND JUDGM ENT *


Before PO RFILIO, B AL DOC K , and EBEL, Circuit Judges.




         Plaintiff Stephen Lyles appeals the district court’s order upholding the

Commissioner’s denial of his application for social security disability and




*
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
supplemental security income benefits. W e exercise jurisdiction under 28 U.S.C.

§ 1291 and affirm.

                                    Background

      M r. Lyles claims disability since October 15, 1998, due to injuries

sustained in a motor vehicle accident, including a fractured hip with sequelae, a

splenectomy, hypertension, obesity, and depression. An administrative law judge

(ALJ) held a hearing at which M r. Lyles was represented by counsel. In addition

to M r. Lyles’ testimony, the A LJ received testimony from a vocational expert

about the jobs that could be performed by someone with M r. Lyles’ abilities and

limitations. The ALJ applied the five-part sequential evaluation process. See

Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005) (describing five

steps). He determined at step two that M r. Lyles did not have a severe mental

impairment, and at step five that he retained the residual functional capacity

(RFC) to perform a wide range of light-level exertional jobs that existed in the

local and national economies.

      The Appeals Council denied review, thus making the ALJ’s decision the

final decision of the Commissioner. See Jensen v. Barnhart, 436 F.3d 1163, 1164

(10th Cir. 2006). The district court affirmed the Commissioner’s decision.

                                 Legal Framework

      W e review the Commissioner’s decision to ascertain whether it is supported

by substantial evidence in the record and to evaluate whether she applied the

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correct legal standards. Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir.

2005). “Substantial evidence is more than a mere scintilla and is such relevant

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

Id. W e do not reweigh the evidence or retry the case, but we “meticulously

examine the record as a whole, including anything that may undercut or detract

from the ALJ’s findings in order to determine if the substantiality test has been

met.” Id. at 1262.

      In this context, “disability” requires both an “inability to engage in any

substantial gainful activity” and “a physical or mental impairment, which

provides reason for the inability.” Barnhart v. Walton, 535 U.S. 212, 217 (2002)

(internal quotation marks omitted). The impairment must be a “‘medically

determinable physical or mental impairment which can be expected to result in

death or which has lasted or can be expected to last for a continuous period of not

less than 12 months. . . .’” Fischer-Ross, 431 F.3d at 731 (quoting 42 U.S.C.

§ 423(d)(1)(A)).

      On appeal, M r. Lyles asserts that the ALJ erred by failing to recognize his

severe mental impairments and failed to develop the record on this point. He also

contends that the ALJ failed to include all of his physical limitations in his RFC,

because the RFC assessment did not properly consider his left elbow condition or

his limited ability to stand or walk.




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                                 M ental Impairm ents

      According to M r. Lyles, the ALJ erred in finding at step two that he did not

have a severe mental impairment. He maintains that the evidence of his mental

impairment was sufficient to satisfy the step-two “de minimis” showing, see

Grogan, 399 F.3d at 1263, and to trigger the ALJ’s duty to develop the record.

      The ALJ has a duty “to ensure that an adequate record is developed during

the disability hearing consistent with the issues raised” in the nonadversarial

setting of a disability hearing. Hawkins v. Chater, 113 F.3d 1162, 1164 (10th Cir.

1997) (quotation omitted). Even so, the burden is on the claimant to prove his

disability. Id. “Ordinarily, the claimant must in some fashion raise the issue

sought to be developed which, on its face, must be substantial. Specifically, the

claimant has the burden to make sure there is, in the record, evidence sufficient to

suggest a reasonable possibility that a severe impairment exists.” Id. at 1167

(citations omitted). If he does so, then the ALJ’s duty to order a consultative

examination arises. Id. “Isolated and unsupported comments by the claimant are

insufficient, by themselves, to raise the suspicion of the existence of a

nonexertional impairment.” Id.

      At the beginning of the hearing, M r. Lyles’ attorney requested more

psychological testing for M r. Lyles. The ALJ decided to go ahead with the

testimony because it would help him decide whether further testing was indicated

and, if so, what kind of testing was required. During the hearing, the ALJ invited

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M r. Lyles and his counsel to obtain and submit additional psychological

documentation. The ALJ then ordered that the record be held open to permit the

receipt of these records, and M r. Lyles later provided them. Nevertheless,

M r. Lyles argues that the ALJ should have ordered further psychological testing.

       The record evidence of M r. Lyles’ mental impairment consists of (1) two

brief m entions of depression in October 1998 and November 2000, which we

conclude are too remote in time and too brief to warrant consideration,

(2) a mental status exam performed by Larry Vaught, Ph.D., on M ay 24, 2001,

(3) a psychiatric review technique (PRT) form prepared by Janice Smith, Ph.D.,

on June 15, 2001, and (4) a mental RFC form prepared by R. Coffey, a licensed

counselor, on February 6, 2003.

       Dr. Vaught diagnosed M r. Lyles with “Depressive Disorder, NOS,” and

“Social A nxiety (provisional).” R. at 285. He found that M r. Lyles had mild

difficulty in sustained concentration and persistence, and poor ability to perform

calculations. He noted that M r. Lyles reported that his social anxiety did not

prevent him from working. He concluded that M r. Lyles’ functioning was normal

in the areas of short-term memory, abstraction, and judgment for hypothetical

situations. 1



1
      M r. Lyles asserts that Dr. Vaught’s opinion is not complete and therefore is
not persuasive. Because he does not explain why, we decline to consider this
argument. See Eateries, Inc. v. J.R. Simplot Co., 346 F.3d 1225, 1232 (10th Cir.
2003) (holding unsupported appellate argument insufficient to invoke appellate
review).

                                         -5-
      Dr. Smith likewise opined that M r. Lyles suffered from “Depressive

Disorder NOS,” id. at 290, and “Social Anxiety (Provisional),” id. at 292. She

found no more than “mild” functional limitations, id. at 297, and concluded that

M r. Lyles’ mental impairment was “nonsevere,” id. at 301.

      W e next consider the mental RFC assessment prepared by M r. Coffey.

Although he stated that M r. Lyles had mild, moderate, or marked limitations in all

areas of functioning, the ALJ properly discounted or disregarded this opinion for

two reasons: first, M r. Coffey’s opinions were not accompanied by a rationale or

diagnosis, and second, he was not an “acceptable medical source,” see 20 C.F.R.

§§ 404.1513(a); 416.913(a) (listing types of medical sources who can provide

evidence of medically determinable impairments). In addition, M r. Coffey’s

opinion differed from those of Drs. Vaught and Smith.

      M r. Lyles testified about his mental impairment. He stated that he took

medication that improved his mood swings, although he continued to have

nightmares every two or three months. In addition, he became nervous in crowds

and around strangers. Even so, he was able to go shopping and attend church.

      W e conclude that the A LJ’s determination at step two that M r. Lyles’

mental impairment was not severe is supported by substantial evidence in the

record as a whole. Neither of the “acceptable medical sources,” Drs. Vaught and

Smith, indicated that M r. Lyles had a severe mental impairment, and the ALJ

properly discounted M r. Coffey’s opinion. Cf. Branum v. Barnhart, 385 F.3d

                                         -6-
1268, 1272 (10th Cir. 2004) (noting consultative psychological exam required

where only other records did not come from an acceptable medical source).

      W e also determine that the evidence of M r. Lyles’ mental impairment was

insufficient to trigger the ALJ’s duty to develop the record further than he did

when he received the additional psychological evidence following the hearing,

because the evidence before the ALJ did not “suggest a reasonable possibility that

a severe impairment exist[ed].” Hawkins, 113 F.3d at 1167 (citations omitted).

                                    Physical RFC

      M r. Lyles next argues that the ALJ erred by not including all of his

physical limitations in his RFC determination. Specifically, he maintains that the

ALJ failed to consider the limitations imposed by his left elbow, and that the RFC

for light work requiring an ability to stand or walk for six hours in an eight-hour

day disregarded his treating physician’s opinion that he could not “be on his feet

all the time.” R. at 245.

      The record establishes, as the ALJ recognized, that M r. Lyles sustained a

ligamentous injury to his left elbow in the 1998 car accident. This injury caused

degenerative changes with stiffness and limitation of motion, as diagnosed by

Drs. A llard, Taylor, and Elliott. But no medical expert indicated that this

condition was disabling. To prove disability, a claimant “must furnish medical

and other evidence of the existence of [a] disability.” Branum, 385 F.3d at 1271;




                                         -7-
see also Kelley v. Chater, 62 F.3d 335, 338 (10th Cir. 1995) (reviewing medical

evidence, noting that no physician had stated claimant was disabled).

      M oreover, although M r. Lyles testified that his left elbow condition

prevented him from lifting a fifty-pound bag of cattle feed, the ALJ’s RFC

assessment required him to lift and carry up to twenty pounds occasionally, and

ten pounds frequently. Further, M r. Lyles testified that he could lift twenty

pounds for one-third of a work day and that he could lift the fifty-pound bag of

cattle feed with his right arm. Accordingly, we conclude that although M r. Lyles

had degenerative changes in his left elbow that caused stiffness and limited

the range of motion, he failed to meet his burden to show that this condition

was disabling.

      Finally, we address M r. Lyles’ challenge to the ALJ’s determination that he

could “sit, stand or walk up to 6 hours in an 8 hour work day.” R. at 23. W e first

reject M r. Lyles’ interpretation that the ALJ left two hours of the work day

unaccounted for. Rather, we conclude that the ALJ determined that M r. Lyles

could stand or walk for six hours, with normal breaks; the remaining work time

would be spent sitting. This is the schedule indicated by Dr. Rutter’s physical

RFC assessment, which the ALJ gave “great weight” because it was consistent

with the medical evidence of record. Id. at 18.

      M r. Lyles argues that the ALJ disregarded the opinion of his treating

physician, Dr. Allard. In his report of April 1999, Dr. Allard stated,

                                         -8-
      it would be a great idea for [M r. Lyles] to be able to go back to
      school and learn a trade that would not require him to be on his feet
      all the time. He has no particular restrictions . . . but I think it would
      be impossible for him to be on his feet 8 hours a day, 40 hours a
      week, doing any type of manual labor for any length of time.

R. at 245. Contrary to M r. Lyles’ assertion, the ALJ considered Dr. Allard’s later

opinion, made in October 1999, that M r. Lyles had no particular restrictions.

Id. at 16. That opinion concurs with Dr. Rutter’s February 2003 physical RFC

assessment which, in turn, is consistent with Dr. Feigel’s June 2001 physical RFC

assessment. M oreover, the ALJ “is not required to discuss every piece of

evidence in the record” as long as he “discuss[es] the uncontroverted evidence he

chooses not to rely on, as well as significantly probative evidence he rejects.’”

Threet v. Barnhart, 353 F.3d 1185, 1190 (10th Cir. 2003) (quoting Clifton v.

Chater, 79 F.3d 1007, 1010 (10th Cir. 1996)). W e conclude that the A LJ’s

decision complies with this rule.

      The judgment of the district court is AFFIRMED.


                                                      Entered for the Court



                                                      Bobby R. Baldock
                                                      Circuit Judge




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