                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          June 29, 2005
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    PAMELA G. FOY,

                Plaintiff-Appellant,

    v.                                                    No. 04-7103
                                                    (D.C. No. CV-03-510-S)
    JO ANNE B. BARNHART,                                  (E.D. Okla.)
    Commissioner of Social Security
    Administration,

                Defendant-Appellee.




                            ORDER AND JUDGMENT            *




Before BRISCOE , ANDERSON , and BRORBY , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 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      This order and judgment is not binding precedent, except under the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-appellant Pamela G. Foy appeals from an order of the district court

affirming the Commissioner’s decision denying her application for Social Security

disability benefits. Appellant filed for these benefits on January 30, 2002. She

alleged disability based on multiple physical and mental impairments. The agency

denied her application initially and on reconsideration.

      On December 4, 2002, appellant received a de novo hearing before an

administrative law judge (ALJ). The ALJ issued a decision in which he

determined that appellant retained the residual functional capacity (RFC) to

perform light work, with certain exertional restrictions. He further found that her

mental limitations, which included depression and anxiety, restricted the types of

jobs she could do to those “which involve only incidental contact with the general

public, co-workers, supervisors, and which [are] basically task oriented, not

driven by production[] quotas, and generally involve[] simple one to two step

tasks.” Aplt. App., Vol. II at 28. Although she could not return to her past

relevant work, the ALJ determined that there were a significant number of other

jobs which appellant could perform in the national or regional economy, given her

limitations, including work as a housekeeper. Applying the Medical-Vocational

Guidelines, 20 C.F.R. pt. 404, Subpt. P, App. 2, rule 202.20 (the grids) as a

framework, the ALJ concluded that appellant was not disabled within the meaning

of the Social Security Act.


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         Appellant sought review of the ALJ’s decision from the Appeals Council.

In connection with her request for review, she submitted additional medical

records pertaining to her mental impairments, including a “Mental Medical Source

Statement” prepared by her treating physician, Dr. Miller. In denying review, the

Appeals Council stated that it had considered the additional evidence but that

“this information does not provide a basis for changing the Administrative Law

Judge’s decision.” Id. at 7. The Appeals Council’s denial made the ALJ’s

decision the Commissioner’s final decision for purposes of review. The district

court affirmed the Commissioner’s decision, and appellant timely appealed to this

court.

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

findings are supported by substantial evidence in the record and whether the

correct legal standards were applied. See Andrade v. Sec’y of Health & Human

Servs., 985 F.2d 1045, 1047 (10th Cir. 1993). Substantial evidence is “such

relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” Fowler v. Bowen, 876 F.2d 1451, 1453 (10th Cir. 1989) (quotations

omitted).

         The Commissioner follows a five-step sequential evaluation process

to determine whether a claimant is disabled. See Williams v. Bowen, 844 F.2d

748, 750-52 (10th Cir. 1988). The claimant bears the burden of establishing


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a prima facie case of disability at steps one through four. See id. at 751 n.2.

If the claimant successfully meets this burden, the burden of proof shifts to the

Commissioner at step five to show that the claimant retains sufficient RFC to

perform work in the national economy, given her age, education, and work

experience. See id. at 751. As this case was decided at step five, the burden on

this RFC issue lay with the Commissioner.

      On appeal, appellant does not contest the agency’s adjudication of issues

relating to her physical impairments, but raises two issues pertaining to her

mental impairments. She first contends that the Appeals Council failed to

consider and discuss adequately the new evidence she submitted concerning these

impairments, necessitating a remand to the agency for further proceedings.

Second, she contends that the new evidence undermines two essential facets of

the ALJ’s decision: (1) his conclusion that appellant failed to seek treatment for

her mental impairments, and (2) his assessment of the severity of those

impairments.

      1. Appeals Council’s discussion of new evidence

      Appellant contends that the Appeals Council did not adequately consider

and/or discuss the new evidence she submitted in support of her claim of

disability. The pertinent regulation concerning new evidence provides as follows:




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       If new and material evidence is submitted, the Appeals Council shall
       consider the additional evidence only where it relates to the period
       on or before the date of the administrative law judge hearing
       decision. The Appeals Council shall evaluate the entire record
       including the new and material evidence submitted if it relates to the
       period on or before the date of the administrative law judge hearing
       decision. It will then review the case if it finds that the
       administrative law judge's action, findings, or conclusion is contrary
       to the weight of the evidence currently of record.

20 C.F.R. § 404.970(b).

       Here, the Appeals Council did not specify whether the evidence qualified as

new, material, and chronologically relevant. It did, however, state that the new

evidence was being made a part of the record. Aplt. App., Vol. I at 9. We read

this as an implicit determination that appellant had submitted qualifying new

evidence for consideration. This being the case, the Appeals Council was required

to “consider” this new evidence as part of its “evaluat[ion of] the entire record” in

order to determine whether to “review the case.” 20 C.F.R. § 404.970(b).

Appellant contends that it failed to do so, and remand is therefore required.       Threet

v. Barnhart , 353 F.3d 1185, 1191 (10th Cir. 2003).

       We disagree. The Council’s decision stated that it “considered the reasons

you disagree with the [ALJ’s] decision     and the additional evidence     listed on the

enclosed Order of Appeals Council.”       Id. at 6 (emphasis added). It concluded

“that this information does not provide a basis for changing the [ALJ's] decision,”

id. at 7, and it therefore denied appellant’s request for review. Thus, the Council


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adequately “considered . . . the additional evidence,”   id. at 6, meaning that it

“evaluate[d] the entire record including the new and material evidence.” 20

C.F.R. § 404.970(b).

       Appellant also argues, however, that the Appeals Council should have

specifically discussed the effect of the new evidence on the ALJ’s previous

decision, in light of the record as a whole. While a detailed analysis of the

Appeals Council’s determination would have been helpful for purposes of judicial

review, appellant points to nothing in the statutes or regulations that would require

such an analysis where new evidence is submitted and the Council denies review.

We therefore reject her contention that the Appeals Council provided insufficient

discussion of the new and material evidence.

       2. Effect of new evidence on ALJ’s decision

       Because the Appeals Council “considered” the new evidence appellant

submitted, “the new evidence [is] part of the administrative record to be

considered [by this court] when evaluating the [ALJ’s] decision for substantial

evidence.” O'Dell v. Shalala , 44 F.3d 855, 859 (10th Cir. 1994);      accord Threet ,

353 F.3d at 1191. We must therefore consider the entire record, including the new

evidence, in conducting our review for substantial evidence on the issues

presented.




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             a. Failure to seek treatment

      In his decision rejecting appellant’s claim of a disabling mental impairment,

the ALJ noted that appellant was initially scheduled to attend weekly therapy

sessions with Vicky Brown, a licensed social worker. She attended only two such

sessions, the initial session and one additional session, both in February 2002. She

missed two more appointments in March and April of that year, and Ms. Brown

closed her case in July 2002 after appellant failed to show up for any further

appointments. Concerning this evidence, and other evidence of mental health

treatment or lack thereof, the ALJ opined that

      All factors considered . . . the most troubling aspect of this case is
      claimant’s failure to seek mental health treatment on a regular and
      consistent basis. Claimant has received treatment via psychotropic
      medication. This is not a departure from her status prior to her son’s
      death in 2000. When seen in February 2002 at the St. John Medical
      Center treatment program, claimant stated that her condition had only
      recently worsened. However, despite her allegation of increased
      difficulty, claimant failed to avail herself of the offered weekly
      counseling sessions . Indeed, there is no evidence that claimant has,
      on a consistent basis, except for psychotropic medication , sought
      treatment for her alleged disabling emotional/psychiatric difficulties.
      Despite her allegation that her mental health impairment(s) has been
      disabling, the administrative law judge notes that claimant has never
      required hospitalization for treatment.

Aplt. App., Vol. II at 23 (emphasis added). Based on the evidence before him, the

ALJ further characterized appellant’s visits with her psychiatrist, Dr. Miller, as

“very few, brief [and] perfunctory.”   Id. at 25.



                                          -7-
      Appellant contends that the progress notes and Mental Medical Source

Statement from Dr. Miller, submitted to the Appeals Council, “evidence regular

and consistent treatment” of her mentally impairing condition by Dr. Miller. Aplt.

Opening Br. at 12. While the new evidence may undermine somewhat the ALJ’s

characterization of a “very few, brief, perfunctory” visits to Dr. Miller (the

progress notes detail, by our count, ten actual visits to Dr. Miller over a space of

nearly two years), it does not contraindicate the ALJ’s basic concern about

appellant’s failure to pursue regular and consistent therapy, other than medication,

for her alleged mental impairments.

      Dr. Miller’s progress notes, which cover the time period August 2, 2001

through April 3, 2003, are primarily concerned with the prescription and

adjustment of appellant’s psychotropic medication.       See Aplt. App., Vol. II at

369-72. When he reached his conclusions about appellant’s failure to obtain

therapy, the ALJ was well aware that Dr. Miller was monitoring appellant’s

medications. A letter from Dr. Miller that was before the ALJ noted that

appellant’s use of psychotropic medications “continues to be monitored” and that

she was “compliant with [her] treatment plan.”       Id. at 229. The new records do

not contradict the ALJ’s basic conclusion, that appellant did not seek treatment on

a consistent basis, other than psychotropic medications, for her emotional

problems. Appellant did not follow up with the talk therapy offered by


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Ms. Brown, choosing instead to treat her condition only with the use of

psychotropic medication monitored by Dr. Miller.

      Appellant’s failure to avail herself of available therapeutic treatment is a

legitimate factor to be considered in evaluating the severity of her alleged mental

limitations. See, e.g., Qualls v. Apfel , 206 F.3d 1368, 1372-73 (10th Cir. 2000)

(upholding ALJ’s use of claimant’s failure to take pain medication in evaluating

claimant’s credibility on pain issue). The ALJ’s conclusions on this point are

supported by substantial evidence.

             b. Dr. Miller’s Mental Medical Source Statement

      The ALJ made the following findings concerning the effect of appellant’s

mental impairments on her RFC:

      [T]he administrative law judge, relative to the area of activities of
      daily living, concludes claimant has no more than moderate limitation.
      Although claimant does not do much as far as outside activities, her
      primary mental healthcare provider, Dr. Miller, advised that she
      engaged in “normal routine daily activities.” . . . Claimant has no
      greater than moderate difficulty in maintaining social functioning.
      Claimant does have a significant degree of anxiety and depression,
      which would make it difficult for her to interact with other
      individuals on a consistent, extended basis. On the other hand,
      claimant appears to be able to relate, at least on a superficial basis, to
      the general public, co-workers, and supervision. . . . Claimant’s
      ability to maintain concentration, persistence, and pace is moderately
      limited. . . . [T]he administrative law judge is of the opinion that
      claimant’s degree of anxiety and depression is sufficiently severe to
      limit claimant to routine, simple type work tasks. The evidence is not




                                         -9-
       persuasive that claimant has experienced episodes of decompensation,
       each of extended duration.

Aplt. App., Vol. II at 24.

       In her submission to the Appeals Council, appellant provided a Mental

Medical Source Statement completed by Dr. Miller.              Id. at 365-68. Dr. Miller

concluded that appellant suffered “no significant limitation” in most areas

itemized on the form, but assigned her a “moderate limitation” in several areas. In

the area of “sustained concentration and persistence,” Dr. Miller stated that

appellant was moderately limited in “the ability to carry out detailed instructions”;

“the ability to sustain an ordinary routine without special supervision”; and “the

ability to complete a normal workday and workweek without interruptions from

psychologically based symptoms and to perform at a consistent pace without an

unreasonable number and length of rest periods.”          Id. at 366. In the area of “social

interaction,” appellant was moderately limited in “the ability to get along with

coworkers or peers without distracting them or exhibiting behavioral extremes.”

Id. In the area of “adaptation,” appellant was moderately limited in “the ability to

respond appropriately to changes in the work setting” and “the ability to set

realistic goals or make plans independently of others.”          Id. at 367. Dr. Miller also

noted that appellant “has difficulty in leaving her home” and was seeking

disability “due to inability to function in the work place.”        Id. at 368.



                                             -10-
        Appellant cites our general rule that the Commissioner may not reject a

treating physician’s opinion without providing specific, legitimate reasons for

doing so, Branum v. Barnhart , 385 F.3d 1268, 1275 (10th Cir. 2004), and notes

that the Appeals Council did not provide such reasons. This assumes, of course,

that in conducting its analysis, the Appeals Council   rejected Dr. Miller’s Mental

Medical Source Statement. Yet there is no reason for making such an assumption

here.

        The ALJ assigned appellant a “moderate” impairment in a number of areas

of mental functioning, which is consistent with Dr. Miller’s findings. More

importantly, the ALJ’s ultimate conclusion regarding the combined effect of

appellant’s mental limitations on her ability to work is also consistent with

Dr. Miller’s findings. The ALJ concluded that appellant was limited to “work

which involve[s] only incidental contact with the general public, co-workers,

supervisors, and which is basically task oriented, not driven by production[]

quotas, and generally involves simple one to two step tasks.” Aplt. App., Vol. II




                                            -11-
at 28. This conclusion was supported by substantial evidence on the record as a

whole, including Dr. Miller’s Mental Medical Source Statement.

      The judgment of the district court is AFFIRMED.



                                                  Entered for the Court



                                                  Mary Beck Briscoe
                                                  Circuit Judge




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