                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUN 21 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    JANNETT S. ALLEN,

                Plaintiff-Appellant,

    v.                                                  No. 99-3249
                                                 (D.C. No. 98-CV-4087-SAC)
    KENNETH S. APFEL, Commissioner                        (D. Kan.)
    of Social Security Administration,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before TACHA , EBEL , and BRISCOE , Circuit Judges.




         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      This order and judgment is not binding precedent, except under the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.
       Plaintiff Jannett S. Allen appeals from the denial of social security

disability benefits. We have jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C.

§ 405(g). We review the Commissioner’s decision on the whole record to

determine only whether the factual findings are supported by substantial evidence

and the correct legal standards were applied.         See Qualls v. Apfel , 206 F.3d 1368,

1371 (10th Cir. 2000). We may not reweigh the evidence or substitute our

judgment for that of the Commissioner.          See id .

       The facts and a detailed description of the entire administrative record are

well stated in the district court’s opinion,     see Allen v. Apfel , 54 F. Supp. 2d 1056

(D. Kan. 1999), and we need not restate them here in detail. Suffice it to say that

plaintiff, who was born in 1951, filed a claim for disability benefits on June 27,

1995, alleging that she has been disabled since May 30, 1995, due to heel spurs

and “broken” vertebras, which she claimed prevented her from walking or

standing more than fours hours at a time. Her claim was denied initially and

upon reconsideration.

       After a hearing before an administrative law judge (ALJ), the ALJ

determined that plaintiff could not return to her past relevant work as a

groundskeeper, waitress, or construction worker, but that she retained the residual

functional capacity (RFC) to perform work which permitted her to alternate

between sitting and standing at will, and which did not require her to lift two to


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three pounds more than frequently or to ever lift more than ten pounds. Based on

the testimony of a vocational expert (VE), the ALJ determined that plaintiff had

the RFC to perform the jobs of cashier, information clerk, food tabulator and

security monitor, and that these jobs existed in significant numbers in the local

and national economies. The ALJ therefore determined that plaintiff was not

disabled and denied benefits at step five of the evaluation sequence.   See Williams

v. Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988). The Appeals Council affirmed

the ALJ’s decision, making it the Commissioner’s final decision. Plaintiff then

filed suit in district court, which affirmed the Commissioner’s determination.

See Allen , 54 F. Supp. 2d at 1056.

       On appeal, plaintiff claims that the ALJ (1) did not correctly assess her

RFC; (2) failed to evaluate properly her complaints of disabling pain; (3) made

credibility findings which are not supported by substantial evidence; and

(4) posed a hypothetical question to the VE that did not include all of her

impairments.


                                   I. RFC Assessment

       Plaintiff first challenges the ALJ’s RFC assessment on the ground that

the ALJ ignored plaintiff’s testimony that she needed to alternate sitting and

standing and to lie down and elevate her feet due to fatigue, pain and swelling.

See Appellant’s Br. at 14. In fact, the ALJ’s RFC determination did find that,

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because of her heel and back pain, plaintiff needed to alternate between sitting

and standing at will.   See Appellant’s App. at 18 and 240.     2
                                                                    With respect to her

claimed need to elevate her feet, plaintiff did not report this asserted limitation to

any physician, nor does the record contain any medical treatment for this alleged

condition. Plaintiff did not include this limitation in her original disability report,

nor does this asserted limitation appear consistent with her daily living activities

report. The ALJ’s RFC determination flows from his assessment of plaintiff’s

impairments, the medical evidence in the record, and plaintiff’s daily living

activity report. We find the RFC determination is supported by substantial

evidence in the record.


                                   II. Pain Evaluation

       Plaintiff next contends that the ALJ failed to follow the dictates of      Luna v.

Bowen , 834 F.2d 161, 163-66 (10th Cir. 1987) and improperly discounted her

complaints of disabling pain. To qualify as disabling, pain must be severe enough

to preclude any substantially gainful employment.         See Brown v. Bowen , 801 F.2d

361, 362-63 (10th Cir. 1986). In evaluating a claim of disabling pain, the ALJ


2
       Plaintiff argues for the first time in her response brief that the ALJ’s
hypothetical to the VE was flawed because it asked the VE to assume that
plaintiff had to avoid prolonged sitting and standing, whereas the ALJ’s RFC
assessment states that plaintiff needs to alternate between sitting and standing
at will. This court does not ordinarily review issues raised for the first time in
a reply brief. See Stump v. Gates , 211 F.3d 527, 533 (10th Cir. 2000).

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must consider (1) whether the medical evidence establishes a pain producing

impairment; (2) if so, whether there is at least a loose nexus between the

impairment and the claimant’s subjective complaints of pain; and (3) if so,

whether considering all of the evidence, both objective and subjective, the

claimant’s pain is disabling.     See Luna , 834 F.2d at 163. Once it is determined

that a claimant has an impairment capable of producing pain, the ALJ must then

consider her subjective complaints of pain and decide whether they are credible.

See Kepler v. Chater , 68 F.3d 387, 391 (10th Cir. 1995).

       In this case, plaintiff has shown objective medical evidence of a “pain

producing impairment,” and a loose nexus between the impairment and her pain.

However, the objective evidence does not establish disabling pain. Accordingly,

the ALJ had to evaluate plaintiff’s subjective pain testimony and the other

pertinent evidence before him. At the hearing, plaintiff testified that her pain is

so intense that she can only walk five feet, sit for twenty-two seconds and stand in

one place for twenty seconds.       See Appellant’s App. at 226. The ALJ found that

plaintiff’s “statements as to her pain and limitations are not consistent with the

evidence of record which would appear to document a far greater physical and

mental capacity than she . . . testified to.”     Id. at 17. In reaching his conclusion,

the ALJ considered and discussed plaintiff’s medical history, including the lack of

objective medical evidence, the lack of any ongoing medical treatment for her


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pain, and the lack of medication for severe pain; her July 1995 daily living

activity report, in which she reported cooking all of her own meals and doing two

hours of daily housecleaning without assistance; and her continued participation

in a cosmetology class since January 1994.

       Contrary to plaintiff’s assertion, the ALJ did not ignore    Luna and discount

her pain allegations based solely on a lack of supporting objective medical

evidence. The ALJ was entitled to consider that claimant had not sought medical

treatment for pain since June 1995, at which time she complained of foot pain

after four hours of standing, rather than twenty seconds as she claimed at the

administrative hearing. “[T]he extensiveness of the attempts [medical or

nonmedical] to obtain relief [and] the frequency of medical contacts” are relevant

factors in evaluating the plaintiff’s subjective pain complaints.    Kepler , 68 F.3d

at 391 (quotation omitted).

       Plaintiff contends the ALJ erred in not discussing the side effects of the

pain medication she was prescribed after her heel spur surgery, which she

testified made her nauseated. The only indication in the record that she discussed

side effects from pain medication with her doctors is a January 1995 treatment

note stating that a full tablet of Dolobid was too strong a dosage for plaintiff,

and recommending that she take only half a tablet.       See Appellant’s App. at 138.

Subsequent medical notes indicate that plaintiff’s foot problems had improved,


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that she was “doing nicely,” and was “not taking any more of the Dolobid.”             Id.

at 137. We conclude the ALJ’s implicit rejection of her testimony was proper.

See Qualls , 206 F.3d at 1372 (holding that     Kepler does not require a formalistic

factor-by-factor recitation of the evidence).


                             III. Credibility Determination

       Plaintiff also contends that, in assessing the credibility of her complaints of

disabling pain, as well as her complaints of fatigue, depression and related

memory and concentration problems, the ALJ’s credibility findings are not

supported by substantial evidence in the record.        See Kepler , 68 F.3d at 391.

Plaintiff first argues the ALJ erred by considering her attendance at cosmetology

school and her efforts to find work. However, the ALJ relied on numerous factors

in making his credibility determination, and the fact that claimant was able to

attend cosmetology school and was looking for work were not the only factors he

took into consideration in assessing her credibility.      See Gay v. Sullivan , 986 F.2d

1336, 1339 (10th Cir. 1993) (while not conclusive, such activities as school

attendance may be considered, along with medical testimony, in determining the

right of a claimant to disability benefits).

       Plaintiff also contends the ALJ erred in considering as a factor in his

credibility determination the fact that she has not been told by any doctor “that

her medical conditions would prevent her from engaging in work activity.”

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Appellant’s App. at 17. She claims the ALJ erroneously shifted the step five

burden of proof by relying on the absence of evidence. This is not, however,

a situation in which the absence of evidence is made to serve as substantial

evidence to meet the Commissioner’s burden at step five,     cf. Thompson v.

Sullivan , 987 F.2d 1482, 1491 (10th Cir. 1993), but rather one in which the

relevant medical evidence in the record simply does not support plaintiff’s claim

of disabling pain.   See Talley v. Sullivan , 908 F.2d 585, 587 (10th Cir. 1990)

(medical records must be consistent with nonmedical testimony as to severity

of pain).

       Relying on our decisions in   Weakley v. Heckler , 795 F.2d 64, 66 (10th Cir.

1986) and Teter v. Heckler , 775 F.2d 1104, 1107 (10th Cir. 1985), plaintiff also

argues that the ALJ erroneously considered her failure to take pain medication in

the absence of evidence that plaintiff had been prescribed pain medication and

that it would have restored her ability to work if she had taken it. Plaintiff’s

reliance on these decisions is misplaced, because both involved the circumstances

under which an ALJ may deny benefits because a claimant has refused to follow

prescribed treatment. Here, the ALJ did not deny plaintiff benefits on the ground

she failed to follow prescribed treatment, but rather, “the ALJ properly considered

what attempts plaintiff made to relieve [her] pain--including whether [she] took

pain medication--in an effort to evaluate the veracity of plaintiff’s contention that


                                           -8-
[her] pain was so severe as to be disabling.”     Qualls , 206 F.3d at 1372 (citing

Hargis v. Sullivan , 945 F.2d 1482, 1489 (10th Cir. 1991) and        Luna , 834 F.2d

at 165-66).

       Plaintiff further argues that the ALJ erred in considering whether her

lack of medical treatment for her pain and chronic fatigue problems is due to

insufficient funds. The only evidence in the record concerning plaintiff’s ability

to pay for medical treatment is a notation in the treatment notes relating to her

June 1996 medical evaluation for a stiff neck stating that plaintiff could not

afford to have a thyroid scan. The record contains no evidence plaintiff sought

medical treatment for her claimed disabling pain or for her claimed sleep and

chronic fatigue problems, but was refused for an inability to pay.       See Murphy v.

Sullivan , 953 F.2d 383, 386-87 (8th Cir. 1992) (holding failure to seek low-cost

medical treatment and lack of evidence claimant had been denied medical care

because of financial condition supported determination that claimant’s financial

hardship was not severe enough to justify failure to seek medical treatment).

       Plaintiff contends the ALJ erred in considering that she had not sought

recent medical treatment for her claimed fatigue and depression because a person

suffering from a mental impairment, particularly depression, may not recognize

the need for treatment. Plaintiff relies upon     Nguyen v. Chater , 100 F.3d 1462,

1465 (9th Cir. 1996), which noted that claimants with mental health concerns


                                            -9-
often do not seek help at the first sign of a problem. In the instant case, however,

unlike Nguyen , the ALJ did consider plaintiff’s complaints of disabling fatigue

and depression, which were not consistent with the treatment record nor with

a consulting psychologist’s contemporaneous assessment of plaintiff’s condition.

The plaintiff underwent a consultative psychological examination, and was

diagnosed with mild depression, most likely of long-standing duration, but the

consulting psychologist concluded that plaintiff was not significantly depressed

and was capable of being retrained and placed in a job. The ALJ found that

plaintiff’s depression was mild and did not impose any degree of functional

limitations on plaintiff’s daily activities, social functioning, task mastering, or

work abilities. We conclude the ALJ’s assessment of plaintiff’s depression and

fatigue is closely and affirmatively linked to substantial evidence.   See Winfrey v.

Chater , 92 F.3d 1017, 1020 (10th Cir. 1996).

       In the remainder of plaintiff’s claims, she essentially disagrees with the

weight the ALJ gave to the relevant factors. We, however, may not reweigh the

evidence on appeal. “Credibility determinations are peculiarly the province of

the finder of fact, and we will not upset such determinations when supported by

substantial evidence.”    Diaz v. Secretary of Health & Human Servs.   , 898 F.2d

774, 777 (10th Cir. 1990). In evaluating the credibility of plaintiff’s allegations

of disabling pain, fatigue and depression, the ALJ considered the kinds of factors


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found to be appropriate in    Luna and Hargis , and he recited what specific evidence

he relied on in considering those factors, as required by       Kepler . The ALJ applied

the correct legal standards in evaluating plaintiff’s subjective allegations and his

determination on this matter is supported by substantial evidence in the record.


                                     IV. Hypothetical

       Finally, plaintiff contends the ALJ’s hypothetical question to the VE was

flawed because he failed to include the fact that she is blind in her left eye.    3



Plaintiff has had reduced vision in her left eye since she was five or six years old,

and is able to see only shapes and forms with that eye.         See Appellant’s App.

at 211-12. She retains 20/20 vision in her right eye, however.           Id. at 212. With

this vision problem, plaintiff was able to work as a groundskeeper, which

included computer work preparing inventory and material safety data sheets,

and as a waitress and construction worker. There is no evidence that her reduced

vision in one eye interfered with her ability to work. Nor did plaintiff claim her

vision impairment as a contributing cause of disability when she applied for



3
        In the “Summary of the Argument” portion of her brief, plaintiff mentions
that the ALJ’s hypothetical was flawed because it did not include her claimed
bending and stooping restrictions or her claimed need to lie down and elevate
her feet. See Opening Br. at 11. Plaintiff did not, however, argue either of these
issues in her arguments relating to the ALJ’s hypothetical.        See id . at 30-32.
An issue listed, but not argued in the brief on appeal, is waived.       See Abercrombie
v. City of Catoosa , 896 F.2d 1228, 1231 (10th Cir. 1990).

                                             -11-
benefits. The ALJ found that plaintiff’s vision impairment in the left eye did not

qualify as a disabling condition because plaintiff’s vision in the right eye has been

preserved. Id. at 15. His assessment that plaintiff’s blindness in one eye would

have a minimal effect on her ability to work is supported by evidence that she

worked for many years despite her condition.         See Auer v. Secretary of Health &

Human Servs. , 830 F.2d 594, 596 (6th Cir. 1987) (“[claimant’s] blindness in one

eye has little effect on the disability determination given his past work history”).

      The vocational expert testified she had reviewed the medical exhibits in the

file and had heard plaintiff’s testimony at the hearing. Moreover, plaintiff’s

testimony about her reduced left eye vision and her unimpaired right eye vision

immediately preceded the ALJ’s hypothetical question posed to the VE.         See

Appellant’s App. at 239-40. Thus, although the ALJ did not expressly include

this limitation in his hypothetical, we conclude that “[t]he fact the vocational

expert was present and heard testimony concerning [plaintiff’s vision impairment

in one eye] suggests that the effect of the error, if any, in the administrative law

judge’s (ALJ) hypothetical, was minimal.”          Diaz , 898 F.2d at 777.

      We have carefully reviewed the entire record, the parties’ arguments, and

the relevant law. For substantially the same reasons as set forth in the district

court’s opinion dated June 17, 1999,   see Allen , 54 F. Supp. 2d 1056, we conclude

that the Commissioner’s decision is supported by substantial evidence on the


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whole record and comports with the relevant legal standards. The judgment of the

United States District Court for the District of Kansas is AFFIRMED.



                                                  Entered for the Court



                                                  David M. Ebel
                                                  Circuit Judge




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