                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUN 6 2003
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    ROSALIE M. MEDINA,

                Plaintiff-Appellant,

    v.                                                   No. 02-2256
                                               (D.C. No. CIV-01-982 MCA/DJS)
    JO ANNE B. BARNHART,                                  (D. N.M.)
    Commissioner of the Social Security
    Administration,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before TACHA , Chief Judge, HARTZ , and O’BRIEN , 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      This order and judgment is not binding precedent, except under the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 seeks review of the district court’s judgment affirming the

Commissioner’s denial of social security disability benefits at step four of the

five-step sequential evaluation process.       See Williams v. Bowen , 844 F.2d 748,

750-52 (10th Cir. 1988) (describing evaluation process). We have jurisdiction,

and we affirm.

       “We review the Commissioner’s decision to determine whether h[er]

factual findings were supported by substantial evidence and whether [s]he applied

the correct legal standards.”   White v. Barnhart , 287 F.3d 903, 905 (10th Cir.

2002). Substantial evidence is relevant evidence that a reasonable mind might

accept as adequate support for a conclusion.       Id. We may not, however, reweigh

the evidence or substitute our judgment for that of the agency.      Casias v. Sec’y of

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

       Plaintiff applied for social security disability benefits in December of 1995

alleging disability beginning April 28, 1995, due to depression and anxiety. In a

second disability report (undated, but apparently prepared in September of 1997),

she listed her disabling condition as lower back pain. After initial and

reconsideration denial, she was afforded a hearing before an administrative law

judge (ALJ) in May of 1999. The ALJ found that plaintiff had not engaged in

substantial gainful activity since her alleged onset date; that her impairments were

severe but did not meet or equal a listed impairment; that she retained the residual


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functional capacity (RFC) for at least light work; and that she could return to her

past relevant work as a tape librarian. The ALJ also found plaintiff’s allegations

“not entirely credible and are not supported by objective medical evidence.”

Aplt. App., Vol. II at 37.

      In district court, plaintiff argued that the ALJ erred in (1) failing to weigh

all the evidence and providing no explanation for rejecting the opinions and

assessments of plaintiff’s treating medical providers; (2) substituting her opinion

for that of medical experts; (3) providing a psychiatric evaluation not supported

by substantial evidence; and (4) failing to make explicit and necessary findings

as to the physical and mental demands of plaintiff’s past work. Finally, plaintiff

alleged the district court should remand her cause to the agency with instructions

to award benefits. Aplt. App., Vol. 1 at 7. The magistrate judge reviewed the

record and plaintiff’s arguments, concluding that the ALJ had committed no error.

Following consideration of plaintiff’s objections, the district court adopted the

magistrate judge’s proposed findings and recommended disposition.

      Plaintiff raises five issues on appeal: (1) the district court failed to conduct

a de novo review of the magistrate judge’s proposed findings and

recommendation; (2) the Commissioner erred in substituting her opinion for

that of the medical experts; (3) the Commissioner failed to accord adequate

weight to the medical opinions and findings of Drs. Hunter and Greene; (4) the


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Commissioner failed to consider the effect of plaintiff’s depression and anxiety

on her RFC; and (5) the Commissioner erred in determining plaintiff could return

to her past relevant work.

       As for plaintiff’s first argument, the district court is presumed to be aware

of the requirement that it review the magistrate judge’s findings and

recommendation de novo.      Northington v. Marin , 102 F.3d 1564, 1570 (10th Cir.

1996). The court expressly acknowledged plaintiff’s objections to the magistrate

judge’s report and did not state it was deferring in any way to the magistrate

judge’s judgment.    Id. This argument is therefore without merit.

       Next, plaintiff contends the ALJ improperly substituted her own opinion for

those of the medical experts. We disagree. The ALJ considered plaintiff’s

medical evidence and various X-rays, which showed some definitive signs of

osteoporosis and mild scoliosis, but no significant degenerative changes or other

abnormalities. It is clear that the “ALJ considered all of the evidence, but an ALJ

is not required to discuss every piece of evidence.”   Clifton v. Chater , 79 F.3d

1007, 1009-10 (10th Cir. 1996). Plaintiff also contends the ALJ erred in

concluding her anxiety attacks were controlled by medication. Again, however,

plaintiff herself reported to the consulting psychiatrist that her “anxiety attacks

are controlled with the use of medication, but, she is still experiencing

free-floating anxiety.” Aplt. App., Vol. II at 229.


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       The ALJ also considered plaintiff’s testimony at the hearing in determining

that her allegations were not entirely credible and not supported by objective

medical evidence.    Id. at 37. That testimony included plaintiff’s statements that

her depression related to losing her job,   id. at 52; that counseling helped her

somewhat, id. at 54; that her panic attacks were less frequent than before,

id. at 56; that the Quantera she takes daily for depression has produced some

improvement, id. at 64; that she has had bouts with depression during the

twenty-three years she worked, which would resolve themselves after a period of

time, id. at 64-65; that Klonopin has helped with her anxiety attacks,        id. at 65.

       For her third claim of error, plaintiff contends that the ALJ failed to accord

controlling weight to the medical opinions and findings of Drs. Hunter and

Greene, plaintiff’s treating psychiatrist and psychologist, respectively. We note,

however, that Dr. Hunter’s records only contained treatment notes, a laboratory

report, and prescriptions.   Id. at 247-51. Plaintiff reported to Dr. Hunter that she

had experienced depression for thirty years,         id. at 250, which the ALJ specifically

questioned her about. Plaintiff does not specify what opinion of Dr. Hunter’s the

ALJ failed to consider, nor are we able to discern one.

       Dr. Greene’s records consisted of a one-page, “to-whom-it-may-concern”

letter outlining his work with plaintiff, including the observation that as of

September 1998, “she reports her anxiety and depression are somewhat better but


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still struggles with problems of pain and worthlessness.”         Id. at 254. Dr. Hunter

stated plaintiff “continues to work on her issues in outpatient therapy.”       Id.

As with Dr. Hunter, Dr. Greene did not offer an opinion regarding her abilities.

       Plaintiff suggests that the lack of an opinion in these records required the

ALJ to recontact the treating physicians to obtain additional information under

20 C.F.R. § 204.1512(e). Aplt. Br. at 25-26. Contrary to plaintiff’s argument in

her reply brief at 8-9, the Commissioner correctly responds that this issue was not

raised in the district court, and we will not address it on appeal.     See Berna v.

Chater , 101 F.3d 631, 632-33 (10th Cir. 1996) (collecting cases).

       Plaintiff next argues that the Commissioner failed to consider the effect of

plaintiff’s depression and anxiety on her RFC. In district court this issue was

phrased as the alleged failure of the ALJ to support her Psychiatric Review

Technique Form (PRTF) by substantial evidence. While these arguments are not

identical, we disagree that the ALJ failed to support the PRTF by substantial

evidence. In addition to the slight restrictions of daily living activities, the ALJ

noted plaintiff has moderate difficulties in maintaining social functioning,

incorporating some of the very limitations plaintiff claimed the ALJ ignored.

Aplt. Br. at 27; Aplt. App., Vol. II at 36, 120-22. He also noted she had mild

depression, but seldom had difficulties in concentration, persistence or pace,




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and never had episodes of deterioration or decompensation in work or work-like

settings. Id. at 37, 39-42.

      Finally, plaintiff alleges the Commissioner erred in determining that

plaintiff could return to light work performed as a tape librarian. At step four of

the process it is plaintiff’s burden to show she cannot perform her particular

former occupation or her former occupation as generally performed throughout

the national economy.   See Andrade v. Sec’y of Health & Human Servs.     , 985 F.2d

1045, 1051 (10th Cir. 1993). The ALJ found that plaintiff could perform the

position of tape librarian as it is described in the Dictionary of Occupational

Titles (DOT) (4th ed. 1991).   See DOT, Vol. I, 206.367-018. She has failed to

show otherwise. The agency accepts the DOT’s definitions as reliable evidence

at step four of the functional demands and job duties of a past job as it is usually

performed in the national economy.    Haddock v. Apfel , 196 F.3d 1084, 1090

(10th Cir. 1999). Further, plaintiff’s own description of her job duties included

comparable functions stated in the DOT listing. We find this argument to be

without merit.

      AFFIRMED.

                                                     Entered for the Court


                                                     Deanell Reece Tacha
                                                     Chief Judge


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