                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          FEB 18 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    LINDA FAYE STEADMAN,

                Plaintiff-Appellant,

    v.                                                   No. 98-5067
                                                   (D.C. No. 96-CV-269-EA)
    KENNETH S. APFEL, Commissioner                       (N.D. Okla.)
    of Social Security Administration,

                Defendant-Appellee.




                            ORDER AND JUDGMENT           *




Before TACHA , BARRETT , and MURPHY , 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      This order and judgment is not binding precedent, except under the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 appeals the district court’s decision affirming the Commissioner’s

denial of plaintiff’s application for supplemental security income benefits.

Plaintiff filed for benefits in September 1992, alleging she had been disabled

since February of that year due to chest pain and headaches accompanied by

numbness in her face and arm and blurred vision. After plaintiff’s application

was denied initially and on reconsideration, she requested and received a de novo

hearing before an administrative law judge (ALJ). Plaintiff appeared at the

September 21, 1993 hearing with her non-attorney representative. In response to

the ALJ’s questions, plaintiff testified that she was unable to work due to pain in

her back, arms, and legs; she stated that without this pain, she would be able to

work. In response to her representative’s questions, plaintiff also acknowledged

that she had suffered from periodic outbreaks of boils on her body for years. At a

supplemental hearing on January 4, 1994, plaintiff again told the ALJ that she was

unable to work only because of pain in her back, arms, and legs. In response to

questions from her representative, plaintiff also said she had constant pain in her

hands and she continued to suffer from outbreaks of boils.

      The ALJ issued a lengthy written decision on October 14, 1994. Based on

April 1993 x-rays showing minimal arthritic processes in plaintiff’s right knee

and degenerative joint disease of her thoracic and lumbar spine, the ALJ

concluded that plaintiff had severe impairments at step two of the sequential


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process. See 20 C.F.R. § 416.920 (describing steps). Despite her limitations, the

ALJ concluded that plaintiff retained the residual functional capacity (RFC) for a

full range of sedentary work. While this RFC precluded plaintiff from returning

to her past relevant work as a nurse’s aide or motel maid, the ALJ concluded that

plaintiff could perform other work in the national economy pursuant to the

medical-vocational guidelines. Therefore, the ALJ denied plaintiff’s application

for benefits at step five of the sequential analysis.   See id.

       Plaintiff petitioned for review of the ALJ’s decision before the Appeals

Council and submitted additional medical records describing her treatment

between December 1994 and November 1995. The Appeals Council concluded

that the new records did not provide a basis to alter the ALJ’s decision. On

February 6, 1996, the Appeals Council denied plaintiff’s petition for review and

the ALJ’s decision became the final decision of the Commissioner. Thereafter,

plaintiff appealed the Commissioner’s decision to the district court, which

affirmed the denial of benefits. This appeal followed.

       Plaintiff raises three challenges to the Commissioner’s decision on appeal.

First, she contends that the ALJ failed to make a proper credibility assessment.

Second, she argues that the ALJ failed to develop the record by obtaining copies

of hospital records that were brought to his attention during the proceedings.




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Finally, she maintains that the ALJ incorrectly shifted the burden of proof to her

at step five of the sequential analysis.

       We review the Commissioner’s decision to determine whether the correct

legal standards were applied and whether the findings are supported by substantial

evidence in the record viewed as a whole. See Castellano v. Secretary of

Health & Human Servs., 26 F.3d 1027, 1028 (10th Cir. 1994). “If supported by

substantial evidence, the [Commissioner’s] findings are conclusive and must be

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

741 (10th Cir. 1993). “In evaluating the appeal, we neither reweigh the evidence

nor substitute our judgment for that of the agency.” Casias v. Secretary of

Health & Human Servs., 933 F.2d 799, 800 (10th Cir. 1991).

       We turn first to plaintiff’s challenge to the ALJ’s credibility assessment.

Under the familiar framework set forth in Luna v. Bowen, 834 F.2d 161, 163

(10th Cir. 1987), an ALJ assessing a claimant’s allegations of disabling pain must

first determine whether there is objective medical evidence of a pain-producing

impairment. If the first step is met, the ALJ must then determine whether there is

a nexus between the pain producing impairment and the claimant’s subjective

allegations of pain.   See id. If the ALJ finds the necessary nexus, the ALJ must

then consider all the evidence–both objective and subjective–and determine the

credibility of the claimant’s allegations of disabling pain.   See id. In making the


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required credibility assessment, the ALJ must link the conclusion to the evidence.

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

determinations are peculiarly the province of the finder of fact, and we will not

upset such determinations when supported by substantial evidence[,] . . .

[f]indings as to credibility should be closely and affirmatively linked to

substantial evidence and not just a conclusion in the guise of findings.”    Id.

(quotations and citations omitted).

       Plaintiff contends that the ALJ’s credibility determination was not

sufficiently linked to substantial evidence in the record. While the ALJ’s

decision might have been organized more clearly on this issue, we think a close

reading of his decision shows that he disbelieved plaintiff’s allegations of

disabling pain based on a variety of factors. First, he noted that plaintiff

originally filed for benefits based on her chest pains and headache syndromes, but

the medical records did not show many complaints of these problems after

plaintiff filed her application. Instead, not long after she filed her application,

plaintiff began to complain of a new set of problems, involving musculoskeletal

pain in her back, arms, and legs. The ALJ noted that while x-rays showed some

mild arthritic or degenerative changes in her back and knees, the medical adviser

stated that these changes would not be expected to limit plaintiff’s ability to

perform all work.


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      The ALJ also discussed the contradiction between plaintiff’s alleged

functional restrictions and the findings of Dr. Cooper during his thorough

examination of plaintiff in December 1992. Additionally, he noted that the

medical records showed that plaintiff often sought treatment for ailments other

than back, leg, or arm pain, and that she went for long periods without seeking

any treatment at all. The ALJ also found that plaintiff failed to follow doctor

recommendations that she lose weight and exercise to lessen the load on her

musculoskeletal and cardiovascular systems, and he determined that she suffered

no side effects from the medications she was taking for her pain.

      Based upon our review, we conclude that the ALJ provided a sufficient link

between the evidence and his determination that plaintiff’s allegations of

disabling pain were not credible. Moreover, we conclude that his credibility

assessment is supported by substantial evidence in the record.

      Plaintiff next challenges the ALJ’s decision on the ground that he failed to

obtain records from her brief hospitalization in late September 1993. After the

September 1993 hearing, the ALJ reopened the record to submit written

interrogatories to Dr. Andelman, a medical adviser. The ALJ gave plaintiff’s

representative an opportunity to submit his own interrogatories or to request a

supplemental hearing at which he could cross-examine Dr. Andelman. In an

October 28, 1993 letter to the ALJ, plaintiff’s representative requested a


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supplemental hearing and noted that plaintiff had been hospitalized since the last

hearing. Accordingly, the ALJ scheduled a supplemental hearing for January 4,

1994.

        At the beginning of the supplemental hearing, the ALJ asked plaintiff’s

representative whether there were any additional documents that he wanted to

have made part of the record, and he said there were not. Thereafter, the ALJ

questioned the plaintiff at some length, and elicited from her information

concerning her recent hospitalization. She testified that she had awoken one

morning with pain in her chest and arm and had gone to the hospital, where she

was placed on a heart monitor and kept overnight. Plaintiff’s representative did

not ask plaintiff any other questions about the hospitalization, nor did he submit

any records from this visit, though he subsequently supplemented the record with

numerous other medical records. Plaintiff now claims that because the ALJ knew

about the hospitalization, he should have obtained the records when plaintiff’s

representative failed to submit them.

        “It is beyond dispute that the burden to prove disability in a social security

case is on the claimant.”   Hawkins v. Chater , 113 F.3d 1162, 1164 (10th Cir.

1997). Nonetheless, because a social security disability hearing is a

nonadversarial proceeding, the ALJ bears responsibility for ensuring that “an

adequate record is developed during the disability hearing consistent with the


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issues raised.”   Henrie v. United States 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). The degree of effort required by the ALJ to develop the record,

however, varies from case to case.     Cf. Battles v. Shalala , 36 F.3d 43, 45 (8th Cir.

1994) (noting that whether ALJ has adequately developed record must be

determined on case by case basis);    Lashley v. Secretary of Health & Human

Servs. , 708 F.2d 1048, 1052 (6th Cir. 1983) (same).

       Here, although plaintiff originally complained of disabling chest pain in her

application for benefits, she did not mention chest pain as part of her disabling

condition at either the September 1993 or the January 1994 hearing before the

ALJ. Plaintiff’s treatment records did not reflect any complaints of chest pain

after December 1991, and when Dr. Cooper examined her in December 1992, she

did not mention any problem with chest pains until specifically asked about it, at

which point she indicated that they did not bother her anymore.

       The record shows that plaintiff’s representative was advised in writing that

he needed to gather and submit medical evidence to the ALJ. In addition, the ALJ

specifically asked plaintiff’s representative at both the September 1993 and the

January 1994 hearings if there were any other documents he desired to have made


                                               -8-
part of the record. Plaintiff’s representative never indicated that he wanted to

submit any information concerning plaintiff’s hospitalization, beyond her

testimony, nor did he ask the ALJ’s assistance in obtaining the hospital records.

Plaintiff’s representative did, however, submit numerous other medical records to

the ALJ after the supplemental hearing. Thus, the ALJ could reasonably assume

that plaintiff’s representative purposely chose not to submit the hospital records,

perhaps because they were of only minor importance.      See Shannon v. Chater , 54

F.3d 484, 488 (8th Cir. 1995) (concluding that plaintiff’s failure to submit

medical records of recent treatment suggested that the alleged treatments had only

minor importance).

       Moreover, plaintiff has never provided the missing hospital records to the

Appeals Council, the district court, or this court, to establish that the record

before the ALJ was not adequately developed. Nor has she indicated how the

ALJ’s review of these missing records would have affected his decision to deny

benefits. See Hawkins , 113 F.3d at 1169 (concluding that when the missing

evidence was in existence at the time of the administrative hearing, it may it may

be appropriate to “require[] the claimant to prove prejudice by establishing that

the missing evidence would have been important in resolving the claim before

finding reversible error”) (citing   Shannon , 54 F.3d at 488). Under the

circumstances, we conclude that the ALJ did not commit reversible error when he


                                            -9-
failed to obtain records from plaintiff’s overnight stay at the hospital in late

September 1993.

      Plaintiff’s final challenge to the ALJ’s decision is rather unclear. While

the caption in her appellate brief and the first few sentences thereunder suggest

that she thinks the ALJ did not correctly put the burden of proof on the

Commissioner at step five of the sequential analysis, plaintiff does not tie this

proposition to the facts in any manner. Instead, she makes the following two

disjointed statements. First, she states: “The ALJ’s failure to obtain hospital

records related to Ms. Steadman’s chest pain cannot affirmatively support a

conclusion that her chest pain was not significant.” Appellant’s Br. at 20. Then,

she states: “The ALJ’s failure to properly consider Ms. Steadman’s nonexertional

impairments created an underlying flaw which tainted the remainder of his

analysis, in that he failed to obtain vocational testimony concerning the impact of

these alleged impairments on Ms. Steadman’s ability to work.”      Id. at 20-21.

Plaintiff does not explain what nonexertional limitations the ALJ allegedly failed

to properly consider.

      We have previously concluded the ALJ did not commit reversible error by

failing to obtain the hospital records relating to plaintiff’s September 1993

episode of chest pain. Moreover, these hospital records were not the only

evidence concerning plaintiff’s chest pain in the record, and the ALJ was able to


                                          -10-
assess the effects of chest pain on plaintiff’s ability to work from the other

evidence. To the extent plaintiff contends that her chest pains constitute a

nonexertional limitation and that the ALJ failed to properly consider it, we reject

this contention based upon our review of the record.

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

of Oklahoma is AFFIRMED.



                                                     Entered for the Court



                                                     Michael R. Murphy
                                                     Circuit Judge




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