                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            APR 26 1999
                            FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    KAREN I. BAUGH,

                Plaintiff-Appellant,

    v.                                                    No. 98-5128
                                                    (D.C. No. 97-CV-335-M)
    KENNETH S. APFEL, Commissioner                        (N.D. Okla.)
    of Social Security Administration,

                Defendant-Appellee.


                             ORDER AND JUDGMENT           *




Before PORFILIO , McKAY , and LUCERO , Circuit Judges.



         Plaintiff-appellant Karen I. Baugh appeals from an order of the district

court affirming the Commissioner’s decision denying her application for

Supplemental Security Income benefits (SSI). 1 Appellant filed for these benefits




*
      This order and judgment is not binding precedent, except under the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.
1
      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.
in September 1993. She alleged disability based on a back injury. The agency

denied her applications initially and on reconsideration.

      On July 20, 1994, appellant received a de novo hearing before an

administrative law judge (ALJ). The ALJ denied her application for benefits, and

she requested review by the Appeals Council. Unfortunately, the hearing tape of

the July 1994 hearing was certified as lost. The Appeals Council remanded the

case to the ALJ to conduct a second de novo hearing and to issue a new decision.

      The ALJ conducted a de novo hearing on February 10, 1996. At the

hearing, appellant complained of severe pain in her back and left knee. The ALJ

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

perform the full range of light work. He found that she had no past relevant work

to which she could return, but that there were a significant number of other jobs

which she could perform in the national or regional economy. Applying the

Medical-Vocational Guidelines, 20 C.F.R. pt. 404, Subpt. P, App. 2, rule 202.20

(the grids) the ALJ concluded that appellant was not disabled within the meaning

of the Social Security Act. The Appeals Council denied review, making the

ALJ’s decision the Commissioner’s final decision.

      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. Secretary of Health &


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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).

      Appellant contends that the ALJ’s findings concerning her disability for the

period after May 1994 are unsupported by substantial evidence. She argues that

the record contains no medical records after May 1994 and the ALJ should have

filled this gap by ordering a consultative medical examination.

      Appellant was represented by counsel at the second hearing. When a

claimant is represented by counsel, “the ALJ should ordinarily be entitled to rely

on the claimant’s counsel to structure and present claimant’s case.” Hawkins v.

Chater, 113 F.3d 1162, 1167 (10th Cir. 1997). Counsel is responsible for

identifying issues requiring further development. See id. Appellant’s counsel did

not indicate at the second hearing that appellant’s medical condition subsequent

to May 1994 required further factual development. 2 Because of this omission, the

ALJ only had a duty to order a consultative examination if the need for an

examination was clearly established in the record. See id. at 1168.



2
       Appellant’s counsel brought out the fact that appellant had not seen a
doctor for nearly two years and that she had been trying to find a doctor but could
not afford medical care. She did not indicate that the record was incomplete,
however, or request further development of the record.

                                         -3-
      The record does not clearly establish the need for a consultative

examination. Appellant does not challenge the sufficiency of the medical

evidence concerning the period prior to May 1994. Unless there was evidence

of a deterioration in appellant’s medical condition after May 1994, a consultative

examination would have served no useful purpose. Cf. 20 C.F.R.

§ 416.919a(b)(5) (stating that ALJ should order consultative examination where

“[t]here is an indication of a change in your condition that is likely to affect

your ability to work”).

      The ALJ developed the record at the second hearing by questioning

appellant about the effect of her impairments as of the hearing date. Appellant’s

testimony at the second hearing was basically consistent with the testimony she

gave at the first hearing in July 1994. 3 The ALJ did not find her testimony at

either hearing credible. At the time of each hearing, he had sufficient medical

evidence before him to rule on her claim. Appellant fails to show that

a consultative examination would have made any difference to the disability

decision. See Hawkins, 113 F.3d at 1169 (“the ALJ should order a consultative

examination when . . . the result of the consultative exam could reasonably be

expected to be of material assistance in resolving the issue of disability.”).


3
       We do not, of course, have this testimony available to us as it was on the
tape that was lost. It is, however, summarized in the ALJ’s first decision which is
part of the administrative record.

                                          -4-
The record is adequately developed to support the ALJ’s decision and he did not

err by failing to order a consultative examination.

      In her next issue, appellant argues that the ALJ applied incorrect legal

standards by failing to shift the burden to the Commissioner until after making his

final RFC determination. 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 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.

      The ALJ stated:

      [W]hen a claimant establishes that he cannot perform his past
      relevant work because of his impairments or because he has no past
      relevant work, the burden shifts to the Commissioner of Social
      Security (the Commissioner) to show that the claimant can perform
      a significant number of other jobs existing in the regional or national
      economy which are consistent with his medically determinable
      impairments, functional limitations, age and work experience. The
      Commissioner has met this burden through the testimony of the
      Qualified vocational expert and the application of [the grids].

Appellant’s App. Vol. II at 18.




                                         -5-
      Although the ALJ could have been more specific about the Commissioner’s

burden of establishing appellant’s RFC, we discern no reversible error here.

Accordingly, the judgment of the United States District Court for the Northern

District of Oklahoma is AFFIRMED.



                                                   Entered for the Court



                                                   Carlos F. Lucero
                                                   Circuit Judge




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