                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAY 16 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    ANNIE L. GORE,

                Plaintiff-Appellant,

    v.                                                    No. 99-7076
                                                    (D.C. No. 98-CV-429-S)
    KENNETH S. APFEL, Commissioner,                       (E.D. Okla.)
    Social Security Administration,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before BALDOCK , BRISCOE , and LUCERO , 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      This order and judgment is not binding precedent, except under the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 Annie L. Gore appeals from the      district court ’s affirmance of the

Social Security Administration’s denial of benefits. Claimant applied for

supplemental security income benefits in 1995; that application was denied both

initially and upon reconsideration. After a hearing, an administrative law judge

(ALJ) issued a decision concluding that claimant was not disabled under the

Social Security Act and denying benefits. The Appeals Council denied review.

       Claimant brought suit in federal court. The magistrate judge recommended

that the agency’s denial of benefits be affirmed. After considering claimant’s

objections, the district court adopted the magistrate judge’s recommendation.

This appeal followed. On appeal, claimant argues that the agency failed to

properly develop the record with regard to her respiratory impairment, and that

the ALJ improperly substituted his own opinion for medical evidence in

evaluating claimant’s alleged mental impairment.

       We have jurisdiction over this appeal by virtue of 42 U.S.C. § 405(g). Our

review is limited to determining whether the agency’s findings are supported by

substantial evidence and whether the correct legal standards were applied.      See

Hawkins v. Chater , 113 F.3d 1162, 1164 (10th Cir. 1997). In light of these

standards, and after a thorough review of the record on appeal, we affirm.

       In order to determine whether a claimant is under a disability, the agency

applies a five-step process.   See 20 C.F.R. § 416.920; Williams v. Bowen , 844


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F.2d 748, 750-52 (10th Cir. 1988) (discussing steps in detail). If a claimant is

determined to be disabled or not disabled at any step, the evaluation process ends

there. See 20 C.F.R. § 416.920(a). Here, the ALJ ended his evaluation at step

four, concluding that, while claimant had severe impairments--namely borderline

intellectual functioning, mild to moderate chronic obstructive pulmonary disease,

and status post healed left leg gunshot wound, those impairments did not preclude

her from return to her past relevant work as a poultry eviscerator.    See

Appellant’s App., Vol. II at 16-17.

       At step four, claimant has the burden to demonstrate that her impairments

preclude her from performing her past relevant work.        See Henrie v. United States

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

challenges the ALJ’s decision in connection with her respiratory impairment

because the administrative record contains pulmonary spirometry test results for a

person other than claimant. While she contends that such testing is required

under agency regulations, she does not contend that the consultative physician did

not perform the tests or that his opinion that her chronic obstructive pulmonary

disease was only mild to moderate, contained in a report in the record, does not

reflect her own test results.   See Hawkins v. Chater , 113 F.3d at 1169.

Additionally, she makes no showing that this impairment limits her residual

functional capacity. She argues that her past work occurred in a refrigerated


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factory which, she asserts, aggravates her respiratory condition, but she did not

raise this argument to the agency. Indeed, there is no evidence on the record that

claimant considered her respiratory condition to limit her in any way, despite

ample opportunity to report and discuss such limitations. Because claimant bears

the burden at step four, her failure to make any showing that this impairment

limits her residual functional capacity is fatal to her challenges.

      Claimant also argues that the ALJ erred when he failed to acknowledge that

she had an affective disorder as a mental impairment, despite the diagnosis of the

consultative psychiatrist that she had bipolar affective disorder, and his opinion

that she had deficiencies in concentration and episodes of deterioration. The ALJ

properly rejected the bipolar affective disorder diagnosis because the consulting

psychiatrist failed to identify any diagnostic criteria that claimant met which

would support such a conclusion. A similar lack of evidence supports his

statement that claimant had suffered frequent episodes of deterioration. The ALJ

did credit the consulting psychiatrist’s conclusion that claimant had deficiencies

in concentration, although he concluded that she could still perform simple, one

or two step tasks based on her daily activities.

      We conclude that claimant’s challenges to the agency’s decision lack merit,

that substantial evidence supports the agency’s denial of benefits, and that the




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correct legal standards were applied. Accordingly, the judgment of the district

court is AFFIRMED.



                                                   Entered for the Court



                                                   Mary Beck Briscoe
                                                   Circuit Judge




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