                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          DEC 17 2003
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    DEBORAH CAINGLIT,

                Plaintiff-Appellant,

    v.                                                    No. 03-7004
                                                    (D.C. No. 01-CV-506-S)
    JO ANNE B. BARNHART,                                  (E.D. Okla.)
    Commissioner of Social Security,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before HARTZ , BALDOCK , and McCONNELL , 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      This order and judgment is not binding precedent, except under the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.
      Claimant Deborah Cainglit appeals the district court’s order affirming

the decision of the Commissioner of Social Security to deny her application

for disability and supplemental security income benefits. Because the

Commissioner’s decision is supported by substantial evidence and no legal

errors occurred, we affirm.

      Ms. Cainglit applied for benefits in 1998, alleging an inability to work

since August 4, 1997, due to breathing problems, back and leg pain, and other

impairments that she characterized as “female problems.” Aplt. App. at 74.

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

determined that Ms. Cainglit was not disabled at step four of the five-step

sequential evaluation process,   see Williams v. Bowen , 844 F.2d 748, 750-52

(10th Cir. 1988), because she had the residual functional capacity (RFC) to return

to her past relevant work as a “house (residence) supervisor.” Aplt. App. at 33.

The ALJ also determined, in the alternative at step five, that she had the RFC to

perform other work of a sedentary nature.     Id.

      We review the Commissioner’s decision to determine only whether it is

supported by substantial evidence and whether legal errors occurred.       See

Castellano v. Sec’y of Health & Human Servs.        , 26 F.3d 1027, 1028 (10th Cir.

1994). “Substantial evidence is such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.”       Id. (internal quotation marks


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omitted). This court may “neither reweigh the evidence nor substitute our

judgment for that of the agency.”    Casias v. Sec’y of Health & Human Servs.   ,

933 F.2d 799, 800 (10th Cir. 1991).


I. Step Two Analysis of Depression       .

      On appeal Ms. Cainglit first contends that the ALJ failed in his step two

analysis when he concluded that her depression was not a “severe” impairment.

At step two the ALJ must determine whether the claimant has a medically severe

impairment or combination of impairments. 20 C.F.R. §§ 404.1520(c),

416.920(c). An impairment is considered “not severe” if it does not significantly

limit a claimant’s physical and mental ability to do basic work activities.

20 C.F.R. §§ 404.1521(a), 416.921(a). Basic work activities are “abilities and

aptitudes necessary to do most jobs,” and include the ability to understand,

remember, and carry out simple instructions; to use judgment; to respond

appropriately to supervisors, co-workers, and usual work situations; and to deal

with changes in a routine work setting. 20 C.F.R. §§ 404.1521(b)(3)-(6),

416.921(b)(3)-(6).

      Ms. Cainglit contends that the ALJ ignored her testimony that she felt she

was disabled in part due to her depression and ignored medical records indicating

that she has been diagnosed with major depression. The determination at step two

is based on medical factors alone.    Williams , 844 F.2d at 750. Claimants “must

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show more than the mere presence of a condition or ailment.”       Hinkle v. Apfel ,

132 F.3d 1349, 1352 (10th Cir. 1997).

       The claimant bears the burden at step two to present evidence that she has

a medically severe impairment or combination of impairments, and, to meet that

burden, must furnish medical and other evidence in support of her claim.       See

Bowen v. Yuckert , 482 U.S. 137, 146 & n.5 (1987). The ALJ discussed at length

the evidence in the record relating to Ms. Cainglit’s depression, and ultimately

concluded that the evidence did not establish that her depression had a significant

effect on her ability to work. Aplt. App. at 28-29. The ALJ’s finding is

supported by substantial evidence.

       There is evidence in the record that Ms. Cainglit has a history of depression

and anxiety, for which she received treatment at Mental Health Services of

Southern Oklahoma (MHSSO). Aplt. App. at 169, 176, 211, 212-26, 231. As the

ALJ concluded, however, this evidence does not demonstrate that this impairment

significantly limits Ms. Cainglit’s physical or mental ability to do basic work

activities. The counselors at MHSSO reported that her depression did not impair

her intellectual functioning, noting specifically no impairment of her level of

consciousness, attention span, abstract thinking, calculation ability, or

intelligence.   Id. at 213-15. The counselors noted either no impairment or only

slight or occasional impairment of Ms. Cainglit’s ability to manage her daily


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living activities or to make reasonable life decisions.    Id. The counselors noted

no impairment of her memory or her stream of thought, and reported that she did

not suffer from any phobias, depersonalizations, homicidal ideation, delusions, or

ideas of reference or of influence, and suffered from only slight or occasional

compulsions, obsessions or suicidal ideations, except that one of these reports

stated that her obsessions were marked or repeated.       Id. She was not markedly or

repeatedly domineering, submissive, provocative, suspicious, overly compliant, or

uncooperative with her counselors.       Id. The counselors described her

predominant affect or mood as slight or marked fear or anxiety and slight or

marked depression.     Id. There were some reports of marked or repeated problems

with posture, facial expression, bodily movements, and loud speech, and one of

these reports noted she was markedly or repeatedly unkempt. But in

Ms. Cainglit’s MHSSO’s case management plan, it was reported that she had a

good work history and was able to live independently.       Id. at 218. The

counselors’ evaluations thus are consistent with the ALJ’s determination that

Ms. Cainglit’s depression did not interfere with her ability to understand,

remember, and carry out simple instructions; to use judgment; to respond

appropriately to supervisors, co-workers, and usual work situations; and to deal

with changes in a routine work setting.




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       There is one unsigned document in the MHSSO records stating, in relevant

part, that Ms. Cainglit is in a depressed mood all the time, has no motivation or

energy, struggles with suicidal thoughts, has impaired judgment, places herself in

dangerous situations, and has very poor coping skills. Aplt. App. at 221. Unlike

the other more detailed MHSSO examination reports, this document does not

indicate the severity of these symptoms, or the degree of restriction caused by

these symptoms. This document also states that Ms. Cainglit has demonstrated

the ability to work and meet role expectations in the past. We conclude,

therefore, that this document, standing alone, is insufficient evidence to require a

conclusion that Ms. Cainglit’s depression significantly interferes with her ability

to perform basic work activities.

       A state agency medical consultant, Dr. Stephen Miller, characterized

Ms. Cainglit’s mental impairments of affective disorder (depression) and

substance addiction as “[n]ot [s]evere.”   Id. at 199. Dr. Miller found that

Ms. Cainglit did have depression characterized by appetite disturbance, sleep

disturbance, and decreased energy, but that her depression caused only slight

restrictions in her daily living activities or social functioning and seldom caused

difficulties in her concentration, persistence, or pace, and that she only once or

twice had episodes of deterioration or decompensation in work or work-like




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settings. Id. at 202, 206. All these findings indicate that a mental impairment is

not severe. See 20 C.F.R. §§ 404.1520a(d)(1), 416.920a(d)(1).

       The ALJ ordered a consultative mental examination, which was performed

by Dr. Gerald Ball. Aplt. App. at 195-97. He also diagnosed Ms. Cainglit with

major depression of moderate severity and amphetamine withdrawal,              id. at 197,

and noted that she cried during the examination,          id. at 196. He also reported,

however, that she was oriented as to time, place, and person, that there was no

evidence of any thought disorder,     id. at 195, that her short-term memory and

mental control were intact and her long-term memory was adequate, that she

could read and follow written directions, that she could fill out job applications,

and that she would be able to manage any benefits without assistance,           id. at 197.

This evidence is consistent with the ALJ’s determination that Ms. Cainglit’s

depression would not significantly interfere with her ability to do basic work

activities.

       Ms. Cainglit notes that Dr. Ball reported claimant’s Global Assessment of

Functioning (GAF) score as 45,      id. at 197, and that the counselors at MHSSO

reported her GAF score as 39,     id. at 217, and argues that these scores demonstrate

that her depression is a severe impairment. The GAF scale is used by clinicians

to report an individual’s overall level of functioning.        See American Psychiatric

Assoc., Diagnostic and Statistical Manual of Mental Disorders 32 (Text Revision


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4th ed. 2000). A GAF score of 41-50 indicates “[s]erious symptoms . . . OR

any serious impairment in social, occupational, or school functioning,” while

a GAF score of 31-40 indicates “[s]ome impairment in reality testing or

communication . . . OR major impairment in several areas, such as work, school,

family relations, judgment, thinking or mood.”    Id. at 34. A GAF score of 39-45

thus may indicate problems that do not necessarily relate to one’s ability to work.

See id . In this case neither Dr. Ball nor the MHSSO counselors stated that

Ms. Cainglit’s depression would interfere with her ability to work. Aplt. App. at

196-97, 212-26. Rather, they noted problems with her family and social

relationships.   Id. at 216. In the absence of any evidence indicating that Dr. Ball

or the MHSSO assigned these GAF scores because they perceived an impairment

in Ms. Cainglit’s ability to work, the scores, standing alone, do not establish an

impairment seriously interfering with Ms. Cainglit’s ability to perform basic work

activities. Cf. Howard v. Comm’r of Soc. Sec.    , 276 F.3d 235, 241 (6th Cir. 2002).

       In sum, the ALJ’s determination that Ms. Cainglit’s depression did not

significantly limit her physical and mental ability to do basic work activities,

and therefore that her depression was not a “severe” mental impairment at

step two, is supported by substantial evidence.




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II. Weight Given to Treating Physician; Development of the Record             .

      Ms. Cainglit’s next two arguments are related. First, she contends that the

ALJ failed to consider properly the report of her treating physician, Dr. Woods,

and, second, that in considering Dr. Woods’ records, the ALJ failed to develop

the record fully. Dr. Woods’ records consist of two pages of treatment notes from

March, April and May of 1999, Aplt. App. at 211, 230, a two-page analysis of

Ms. Cainglit’s RFC in September 1999,      id. at 228-29, and a one-paragraph letter

dated May 21, 1999, from Dr. Woods, stating her opinion that Ms. Cainglit was

totally and permanently disabled,   id. at 231.

      An ALJ is required to give controlling weight to a treating physician’s

opinion only if “it is well supported by clinical and laboratory diagnostic

techniques and if it is not inconsistent with other substantial evidence in the

record.” Castellano , 26 F.3d at 1029; 20 C.F.R. §§ 404.1527(d)(2),

416.927(d)(2); 20 C.F.R. §§ 404.1527(e)(1), 416.927(e)(1). When an ALJ

decides that a treating source’s opinion is not entitled to controlling weight,

he must determine the weight it should be given after considering

      (1) the length of the treatment relationship and the frequency of
      examination; (2) the nature and extent of the treatment relationship,
      including the treatment provided and the kind of examination or
      testing performed; (3) the degree to which the physician’s opinion is
      supported by relevant evidence; (4) consistency between the opinion
      and the record as a whole; (5) whether or not the physician is a
      specialist in the area upon which an opinion is rendered; and


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      (6) other factors brought to the ALJ’s attention which tend to support
      or contradict the opinion.

Drapeau v. Massanari, 255 F.3d 1211, 1213 (10th Cir. 2001).

      Ms. Cainglit acknowledges that the ALJ did not explicitly reject

Dr. Woods’ opinion. Appellant’s Br. at 14. Rather, the ALJ properly set forth

specific, legitimate explanations for disregarding certain limited aspects of

Dr. Woods’ RFC assessment and correctly observed that Dr. Woods’ opinion that

Ms. Cainglit was disabled was not supported by clinical and laboratory diagnostic

techniques. Dr. Woods’ RFC assessment of Ms. Cainglit’s exertional abilities is

consistent with the ALJ’s assessment of her exertional abilities, and is not

inconsistent with the ALJ’s determination that Ms. Cainglit had the physical

strength to perform sedentary work.     Compare Aplt. App. at 28, with id . at

228-29; see also 20 C.F.R. §§ 404.1567(a), 416.967(a) (describing exertional

requirements of sedentary work). There were only slight differences in the two

RFC assessments, for which the ALJ provided specific and legitimate

explanations that are supported by the record. For example, Dr. Woods found that

Ms. Cainglit had a non-exertional limitation of needing to avoid exposure to dust,

fumes, and humidity.    Id. at 229. The ALJ differed from Dr. Woods merely in his

determination that Ms. Cainglit needed only to be restricted from    excessive

exposure to these irritants, and supported this conclusion with the evidence that

Ms. Cainglit continued to smoke and that Dr. Woods’ treatment notes do not

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reflect any acute breathing difficulties and did not suggest further evaluation,

such as a pulmonary function study.       Id. at 27-28.

       In discussing Dr. Woods’ treatment of Ms. Cainglit, the ALJ noted that

Dr. Woods had prescribed a medication for her that would not likely be prescribed

for persons with a respiratory disease.     Id. at 27. Ms. Cainglit asserts that the

ALJ was impermissibly substituting his lay opinion for medical opinion.

See Sisco v. United States Dep’t of Health & Human Servs.       , 10 F.3d 739, 744

(10th Cir. 1993) (holding ALJ erred in rejecting unrebutted medical diagnosis of

chronic fatigue syndrome based on lack of conclusive laboratory tests when there

were no such “dipstick” tests available for chronic fatigue syndrome). We

disagree. The ALJ was evaluating Dr. Woods’ opinion based upon a variety of

factors, and was not rejecting or discounting Dr. Woods’ opinion based upon this

single observation.   See Aplt. App. at 27-28.

       The ALJ did disagree with Dr. Woods’ conclusion that Ms. Cainglit is

totally disabled. The ALJ did not err in doing so. An opinion by a treating

physician that a claimant is “disabled” or “unable to work” has no special

significance because it is not a medical opinion. 20 C.F.R. §§ 404.1527(e)(1);

416.927(e)(1). These determinations are legal conclusions that are “reserved to

the Commissioner.”     Id. See also Castellano , 26 F.3d at 1029 (holding that

“responsibility for determining the ultimate issue of disability is reserved to the


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[Commissioner]”). As the ALJ noted, Dr. Woods’ disability opinion was not

supported by specific findings or any objective clinical or laboratory diagnostic

findings, and Dr. Woods’ treatment notes do not support the severity of

impairments she described in her disability opinion letter.        See Aplt. App.

at 27-28.

       In a related argument, Ms. Cainglit contends that the ALJ failed to develop

the record in two instances; first, when he noted the incongruity between

Dr. Woods’ statement that she had treated Ms. Cainglit since August 1998 and

the absence of any treatment notes from Dr. Woods prior to March 1999, and

second, when he noted that Dr. Woods had never ordered any pulmonary function

tests to assess the severity of Ms. Cainglit’s breathing problems. Ms. Cainglit

contends that the ALJ should have made an attempt to obtain either the missing

records or an explanation for their absence and should have ordered pulmonary

function tests.

       As noted above, the burden to prove disability in a social security case is on

the claimant, and to meet this burden, the claimant must furnish medical and other

evidence of the existence of the disability.      Yuckert , 482 U.S. at 146. A social

security disability hearing is nonadversarial, however, and the ALJ bears

responsibility for ensuring that “an adequate record is developed during the

disability hearing consistent with the issues raised.”        Henrie v. United States


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Dep’t of Health & Human Servs. , 13 F.3d 359, 360-61 (10th Cir. 1993).

Generally, “[a]n ALJ has the duty to develop the record by obtaining pertinent,

available medical records which come to his attention during the course of the

hearing.” Carter v. Chater , 73 F.3d 1019, 1022 (10th Cir. 1996). 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);      see also 20 C.F.R. §§ 404.1512(f),

416.912(f).

       Nevertheless, “[t]he ALJ should ordinarily be entitled to rely on the

claimant’s counsel to structure and present claimant’s case in a way that the

claimant’s claims are adequately explored” and “may ordinarily require counsel

to identify the issue or issues requiring further development.”      Hawkins , 113 F.3d

at 1167. Ms. Cainglit’s counsel was familiar with the record submitted to the

ALJ. Counsel did not indicate or suggest to the ALJ that any medical records

from Dr. Woods were missing, nor ask for the ALJ’s assistance in obtaining any

such records. On appeal, counsel has failed to identify the evidence that she

claims the ALJ should have obtained. Given Ms. Cainglit’s failure to provide the

as-yet-unidentified records herself, to ask the Commissioner for assistance, or to

show the relevance of any records she claims the ALJ should have obtained,




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we conclude she has not demonstrated the ALJ violated his duty to develop

the record.

       Nor was the ALJ required to order a pulmonary function test. The ALJ did

order two consulting examinations. Neither the treatment records nor the

consulting examination relating to Ms. Cainglit’s breathing problems indicate that

further examinations were needed. The consulting physician stated that although

Ms. Cainglit reported having asthma and breathing difficulties, he did not see that

demonstrated in his examination. Aplt. App. at 189. He reported that

Ms. Cainglit’s chest and lungs were clear, that he heard no wheezes and no chest

rales in her lungs whatsoever, that she had good breath sounds bilaterally, and

that after he put her through all the exams, she was not short of breath.   Id.

at 188-89.

       We conclude there was an adequate record by which the ALJ could decide

this case. He had before him not only Dr. Woods’ records but also the records of

Ms. Cainglit’s other physicians, as well as those of the consulting physicians.

Further, we conclude the ALJ gave proper weight to Dr. Woods’ opinions.           See

Castellano, 26 F.3d at 1029.




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The judgment of the district court is AFFIRMED.


                                          Entered for the Court



                                          Harris L Hartz
                                          Circuit Judge




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