                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          OCT 11 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    JUDY K. CORBER,

                Plaintiff-Appellant,

    v.                                                   No. 00-3390
                                                  (D.C. No. 99-CV-4097-DES)
    LARRY G. MASSANARI, * Acting                           (D. Kan.)
    Commissioner of the Social Security
    Administration ,

                Defendant-Appellee.


                            ORDER AND JUDGMENT           **




Before TACHA , Chief Judge, BALDOCK , Circuit Judge, and BRORBY ,
Senior Circuit Judge.



         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




*
      On March 29, 2001, Larry G. Massanari became the Acting Commissioner
of Social Security. In accordance with Rule 43(c)(2) of the Federal Rules of
Appellate Procedure, Mr. Massanari is substituted for Kenneth S. Apfel as the
appellee in this action.
**
      This order and judgment is not binding precedent, except under the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.
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

       Claimant Judy K. Corber appeals from a memorandum and order of the

district court affirming the Commissioner’s denial of her applications for

supplemental security income benefits and for disability benefits under the Social

Security Act. We affirm.

       Mrs. Corber filed her applications alleging disability beginning

February 15, 1995, due to depression, high blood pressure, and back and leg pain.

An administrative law judge (ALJ) determined she had several severe

impairments, as that term is defined in the regulations, but that those impairments,

whether considered singly or in combination, did not rise to the level of a listed,

or a conclusively disabling impairment. After reviewing the evidence and

medical record, the ALJ then found that Mrs. Corber did not meet her burden of

demonstrating she was unable to perform her past relevant work, namely, that of a

retail sales clerk. Therefore, the ALJ concluded that Mrs. Corber was not

disabled under step four of the Commission’s five-step sequential process for

determining disability.   See Williams v. Bowen, 844 F.2d 748, 750-51 (10th Cir.

1988) (setting out process).

       Mrs. Corber sought review by the Appeals Council on September 2, 1998.

Subsequently, Mrs. Corber’s attorney submitted additional evidence to the


                                         -2-
Appeals Council, which included a letter from Dr. P. L. Duniven dated August 14,

1997, reporting findings made from an M.R.I. performed on Mrs. Corber. While

dated prior to the date of the ALJ’s decision (August 24, 1998), the M.R.I. report

was not before the ALJ at the time of his decision.

      The Appeals Council denied Mrs. Corber’s request for review on July 28,

1999, and she sought further review from the United States District Court for the

District of Kansas, alleging several errors at the administrative level. After an

independent review of the entire record, the district court affirmed the ALJ’s

decision, finding it was supported by substantial evidence. This appeal followed.

      We review the Commissioner’s decision to determine whether his factual

findings are supported by substantial evidence in light of the entire record, and to

determine whether he applied the correct legal standards.   Hargis v. Sullivan, 945

F.2d 1482, 1486 (10th Cir. 1991). “Substantial evidence is such relevant

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

Id. (citation omitted). “Evidence is insubstantial if it is overwhelmingly

contradicted by other evidence.”    O’Dell v. Shalala, 44 F.3d 855, 858 (10th Cir.

1994) (citation omitted).




                                           -3-
                                     New Evidence

      In her summary of issues on appeal, Mrs. Corber makes passing reference

to an argument that the district court acted improperly as a “trier of fact by

evaluating the evidence.” Aplt. Br. at 13. Later, in the context of the analysis of

evaluating allegations of pain, she clarifies this argument by alleging the district

court made a “serious error” when it “evaluated,” and “weighed the evidentiary

value” of the M.R.I. report performed by Dr. Duniven, which, she claims, was not

considered by the Appeals Council.     Id. at 16. However, as noted by the district

court, the record is clear that the Appeals Council did consider the M.R.I. in its

denial of review dated June 2, 1999, in which the Council makes particular

reference to Dr. Duniven’s report. This circuit has held that when the Appeals

Council denies review, the ALJ’s decision becomes the Commission’s final

decision that is reviewed for substantial evidence. The record to be considered on

review, however, includes all of the evidence before the Appeals Council,

including new evidence that was not before the ALJ.     See O’Dell, 44 F.3d at 858-

59. Consequently, consideration of new evidence for a determination of whether

the record is supported by “substantial evidence” under the overall framework of

evaluating pain prescribed by   Luna v. Bowen , 834 F.2d 161 (10th Cir. 1987), is

entirely proper by a reviewing court. Therefore, we hold that the district court




                                          -4-
did not err when it specifically considered the M.R.I. report as a part of the record.


                                   Impairment Listing

       In his decision, the ALJ found that Mrs. Corber established she was not

currently engaged in substantial gainful activity (step 1 of the five-part sequential

evaluation process for determining disability), and that she had several

impairments which could be potentially disabling (step 2). Specifically, the ALJ

found Mrs. Corber “has major depression, single episode; dysthymic disorder;

anxiety disorder; borderline intellectual functioning; hypertension, with no

evidence of organ damage; and chronic low back pain and right hip and leg pain,

etiology unknown.” Aplt. App. (Soc. Sec. Record) at 32. However, the ALJ also

found that these impairments, whether considered individually or in combination,

did not rise to the level of a Listed Impairment in the regulations, which would

conclusively establish a disability.    Id.

       On appeal, Mrs. Corber disputes the ALJ’s conclusion that she did not meet

Listing 12.04 (Affective Disorder) and Listing 12.06 (Anxiety Related Disorders).

She cites Clifton v. Chater , 79 F.3d 1007 (10th Cir. 1996), to initially argue that

the ALJ’s conclusion was not sufficiently explained, and that the evidence was

not directly associated with his finding that the impairments did not meet the

severity requirements for the regulation’s listings. In   Clifton, a panel of this court

reversed the district court and remanded the case for additional proceedings when

                                              -5-
the ALJ made “such a bare conclusion” that it was effectively “beyond

meaningful judicial review.”      Clifton, 79 F.3d at 1009. However, as we explained

then, our decision was based on the fact that “the ALJ did not discuss the

evidence or his reasons for determining that appellant was not disabled at step

three, or even identify the relevant Listing or Listings; he merely stated a

summary conclusion that appellant’s impairments did not meet or equal any Listed

Impairment.” Id. This is not the case before us now. Here, the ALJ went to great

lengths to identify the relevant listings, discuss the evidence (including objective

medical reports that discounted the severity of Mrs. Corber’s impairments) and

follow the appropriate procedure for documenting the Psychiatric Review

Technique Form ratings. These findings are far from the type of summary

conclusion we rejected in      Clifton, and, therefore, are not beyond any meaningful

judicial review.

       Mrs. Corber alternatively argues the ALJ’s conclusion at step three is

not supported by substantial evidence. Both Listing 12.04 and 12.06 require

a finding of severity which is spelled out in detail in the social security

regulations.   1
                   See 20 C.F.R. Pt. 404, Subpt. P., App. 1, §§ 12.04, 12.06. After

determining that Mrs. Corber met the requirements under the first part of each


1
       The ALJ also analyzed Mrs. Corber’s condition under § 12.05, however, the
ALJ’s decision regarding that section was not argued before the district court and
is not disputed in this appeal.

                                             -6-
section, namely, the presence of evidence of depression, dysthymic disorder, and

anxiety disorder, the ALJ made findings that these impairments resulted in no

restrictions on her activities of daily living and only slight difficulties in her

maintaining social functioning. Additionally, the ALJ found that she seldom had

deficiencies of concentration, persistence or pace resulting in failure to complete

tasks in a timely manner and that she never had episodes of deterioration or

decompensation in work or work-like settings. All of these findings were well

below the level of severity necessary for a finding of disabled under the

regulations,   2
                   and we agree with the district court that the ALJ’s conclusion that

Mrs. Corber, although perhaps not symptom-free, is not so severely impaired that

her difficulties rise to a listing level. We have also conducted a thorough review

of the medical record, as we must in these cases, and we hold the ALJ’s decision



2
       For an impairment to be considered severe enough to be conclusively
disabling under the relevant versions of either § 12.04 or § 12.06, the impairment
must result in at least two of the following consequences:

       (1) Marked restriction of activities of daily living; or (2) Marked
       difficulties in maintaining social functioning; or (3) Deficiencies of
       concentration, persistence, or pace resulting in frequent failure to
       complete tasks in a timely manner (in work settings or elsewhere); or
       (4) Repeated episodes of deterioration or decompensation in work or
       work-like settings which cause the individual to withdraw from that
       situation or to experience exacerbation of signs and symptoms (which
       may include deterioration of adaptive behaviors).

20 C.F.R. Pt. 404 Subpt. P., App. 1, §§ 12.04(B), 12.06(B).

                                             -7-
on this point is supported by substantial evidence for substantially the same

reasons as those set forth by the district court.


                                   Evaluation of Pain

       Mrs. Corber next claims that the ALJ erred by failing to properly evaluate

her subjective complaints of disabling pain. First, Mrs. Corber argues that the

ALJ erred in his application of the framework for evaluating disability based on

pain found in Luna , 834 F.2d 161. Specifically, she states that the ALJ “fails to

lay out his decision in a fashion which portrays his analysis . . . [and instead] the

ALJ intermingles his credibility analysis with his review of the objective

evidence.” Aplt. Br. at 14. We disagree. Under the first prong of the     Luna

analysis , the claimant has the burden to demonstrate a pain-producing impairment

by objective medical evidence.      Luna, 834 F.2d at 163. In connection with this

requirement, we have said, “[t]he first component of this inquiry, the objective

impairment prerequisite, is fulfilled without regard to subjective evidence” and

without assessing the claimant’s credibility.     Williams, 844 F.2d at 753. Pursuant

to this requirement, the ALJ in this case specifically stated that there was no

objective evidence to document a pain-inducing impairment. His finding that the

medical evidence establishes pain, albeit with an unknown cause, is in complete




                                            -8-
accord with that statement and is amply supported by the record.    3
                                                                        Therefore it is

clear that the ALJ did not err by allowing his credibility assessment to affect the

initial determination of whether there was objective proof of some pain-inducing

impairment.

      The ALJ separately found Mrs. Corber’s testimony about her subjective

level of pain not credible, based, in part, on the absence of documented objective

evidence of a disabling   impairment. This is not the same as using a credibility

assessment to preclude, at the outset, consideration of existing objective evidence

in order to avoid further analysis of a claimant’s subjective complaints of pain.

Indeed, an ALJ is obligated to evaluate those subjective complaints, even if they

are unsubstantiated by objective medical evidence.      See Nieto v. Heckler,   750



3
        That particular finding, which states “[t]he medical evidence establishes
that claimant has . . . chronic low back pain and right hip and leg pain, etiology
unknown,” was made under step two of the five-step sequential process for
determining disability. See, Aplt. Br. Supp. at 32. That step requires a claimant
to make a “threshold showing that [her] medically determinable impairment or
combination of impairments significantly limits [her] ability to do basic work
activities . . . .” Williams, 844 F.2d at 751. The showing in step two is a  de
minimis showing of severity which is designed to identify “those claimants whose
medical impairments are so slight that it is unlikely they would be found to be
disabled . . . .” Bowen v. Yuckert, 482 U.S. 137, 153 (1987). We note that, due to
the incremental nature of the sequential process, a finding at step two that
medical evidence establishes an impairment, does not preclude, and may be
entirely consistent with, a contrary finding in an evaluation of severity of
disabling pain under Luna, or a finding at step four that there is no objective
evidence of a disabling impairment that prevents the claimant from performing
past relevant work.

                                           -9-
F.2d 59, 61 (10th Cir. 1984). Thus, we find that there was no improper

“intermingling” of any credibility and objective evidence analyses as alleged by

Mrs. Corber. Furthermore, we agree with the district court that the ALJ applied

the Luna framework sufficiently in this case by making detailed findings that

specifically related to the required showings, such that his final conclusion was

capable of review and ultimately supported by substantial evidence.

       Mrs. Corber next argues that the ALJ erred in evaluating her subjective

complaints of pain under the final prong of      Luna. Under that prong, the ALJ is to

consider “all the evidence presented to determine whether the claimant’s pain is

in fact disabling.”   Luna, 834 F.2d at 163. This evidence includes “all medical

data presented, any other objective indications of pain, and subjective accounts of

the severity of the pain.”   Williams, 844 F.2d at 753. “At this point, the decision

maker may assess the claimant’s credibility.”        Id.

       In Luna, as in other cases, this court described the factors an ALJ should

consider in evaluating subjective allegations of pain.     See 834 F.2d at 165-66.

And we emphasize, once again, that “credibility determinations are peculiarly the

province of the finder of fact,” and should not be upset if supported by substantial

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

omitted). The opportunity to observe and evaluate the demeanor of a witness in

cases like this “is invaluable, and should not be discarded lightly. Therefore,


                                              -10-
special deference is traditionally afforded a trier of fact who makes a credibility

finding.” Williams, 844 F.2d at 755 (quotation and citations omitted). Our

review of the record reveals that the ALJ considered a number of factors which

were relevant to the credibility of Mrs. Corber’s allegations of pain as well as

several “subjective measures of credibility that are peculiarly within the judgment

of the ALJ.” Kepler, 68 F.3d at 391 (quotations omitted). To recite them again

would be duplicitous of the memorandum of the district court which articulated,

in great detail, its reasons for finding the ALJ had not erred. We add only that

during the hearing, the ALJ spent time questioning Mrs. Corber on both her

psychological as well as her physical limitations. His evaluation of the evidence

reflects the fact that he thoroughly considered the psychological evidence in

relation to her subjective complaints of pain, and he specifically found that

evidence to be exaggerated and inconsistent with her objective medical history.

The ALJ linked his determination of credibility to specific findings of facts in

evidence which are fairly derived from the record. Thus, in light of our narrow

scope of review, we are compelled to accept that determination. We therefore

agree with the district court that the ALJ’s determination as to Mrs. Corber’s




                                         -11-
credibility, and his conclusion that her allegations of pain were not disabling

under the final prong of   Luna, are supported by substantial evidence.   4



                                   RFC Assessment

       At step four of the sequential process for determining disability, the ALJ

found that, despite her impairments, Mrs. Corber had the residual functional

capacity (RFC) to perform work she had done in the past as a retail sales clerk.

Mrs. Corber argues that her mental impairments, along with evidence of physical

ailments and pain, met her burden of proving that she is unable to perform that

work and that, therefore, the ALJ erred in his RFC determination. In          Winfrey v.

Chater , 92 F.3d 1017 (10th Cir. 1996), we discussed the three phases of step four.

             In the first phase, the ALJ must evaluate a claimant’s physical
       and mental residual functional capacity (RFC), and in the second
       phase, he must determine the physical and mental demands of the
       claimant’s past relevant work. In the final phase, the ALJ determines
       whether the claimant has the ability to meet the job demands found in
       phase two despite the mental and/or physical limitations found in
       phase one.




4
       This is true despite the existence of Dr. Duniven’s M.R.I., discussed
previously, which was not before the ALJ, but which was, nevertheless,
considered by the Appeals Council and the district court. We have already
concluded that it was proper for the district court to review the report. Now we
agree with that court that consideration of its substance does not change the fact
that the ALJ’s determination is supported by substantial evidence as the report
does not contradict the ALJ’s finding of a limited, but not disabling impairment.
See O’Dell, 44 F.3d at 859.

                                           -12-
Id. at 1023 (citations omitted). The ALJ must make specific findings at each of

these phases, and those findings must be supported by substantial evidence.     See

id.

      Mrs. Corber’s specific argument on appeal is that the ALJ erred in making

his assessment by relying on raw medical data, and that he should have obtained

some analysis or opinion by a treating or examining physician, or by an expert

medical source. Again, we disagree. The determination of RFC is an

administrative assessment, based upon all of the evidence of how the claimant’s

impairments and related symptoms affect her ability to perform work related

activities. See Soc. Sec. Rul. 96-5p, 1996 WL 374183, at *2, *5. The final

responsibility for determining RFC rests with the Commissioner, and because the

assessment is made based upon all of the evidence in the record, not only the

relevant medical evidence, it is well within the province of the ALJ.

See 20 C.F.R. §§ 404.1527(e)(2); 404.1546; 404.1545; 416.946.

      Moreover, the record in this case includes numerous reports from treating

and consultative physicians, all of which contributed to the body of

understandable evidence upon which the ALJ could draw to make his assessment.

Mrs. Corber was questioned by her own counsel, as well as the ALJ, concerning

her mental and physical RFC, the mental and physical demands of her past

relevant work and her ability to do that work. Additionally, the ALJ had the


                                          -13-
benefit of properly elicited testimony from a vocational expert concerning the

second and third phase of the analysis, including testimony specifically directed at

the combined effect of Mrs. Corber’s mental and physical limitations on her

ability to work. Therefore, it is clear from our reading of this record that the ALJ

performed the proper analysis under step four, and that his findings are specific

and supported by substantial evidence.

      Finding Mrs. Corber not disabled under step four, the ALJ was not required

to proceed in the sequential analysis, and therefore he was not obligated to use the

Medical-Vocational Guidelines.    See 20 C.F.R. Pt. 404, Subpt. P., App. 2, §200

(guidelines apply where impairments preclude performance of past relevant

work).

      The judgment of the United States District Court for the District of Kansas

is AFFIRMED.



                                                     Entered for the Court



                                                     Bobby R. Baldock
                                                     Circuit Judge




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