                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                         April 9, 2007
                            FO R TH E TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                         Clerk of Court

    ALFRED L. BR IGGS,

                Plaintiff-Appellant,
                                                          No. 06-5141
    v.                                             (D.C. No. 05-CV-237-FHM )
                                                          (N.D. Okla.)
    M ICH AEL J. ASTRU E, *
    Commissioner of the Social Security
    Administration,

                Defendant-Appellee.



                             OR D ER AND JUDGM ENT **


Before L UC ER O, M cKA Y, and GORSUCH, Circuit Judges.


         Alfred L. Briggs appeals from the order entered by the district court

denying his applications for disability insurance benefits and supplemental

security income benefits under the Social Security Act. Exercising jurisdiction

under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291, we affirm.

*
     Pursuant to Fed. R. App. P. 43(c)(2), M ichael J. Astrue is substituted for
Jo Anne B. Barnhart as the appellee in this action.
**
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                          I.

      In his applications for benefits, plaintiff alleged that he became disabled in

April 2003 as a result of an abdominal wall hernia and back problems. After

conducting a hearing and receiving oral testimony from plaintiff and a vocational

expert, the administrative law judge (ALJ) went through the five-part sequential

evaluation process for determining disability and denied plaintiff’s applications

for benefits. Specifically, in his written decision dated October 21, 2004, the ALJ

found that: (1) plaintiff’s ventral hernia is a severe impairment at step two; (2) for

purposes of step three, plaintiff’s hernia impairment does not meet or equal the

criteria of any of the impairments listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1;

(3) plaintiff’s “allegations regarding his limitations are not totally credible,” Aplt.

App., Vol. 2 at 21; (4) for purposes of step four, plaintiff retains the residual

functional capacity to perform the physical exertion requirements of his past

relevant work as a mail room clerk and fast food worker; and (5) in the

alternative, for purposes of step five, plaintiff retains the residual functional

capacity to perform the physical exertion requirements of other light and

sedentary jobs that exist in significant numbers in the regional and national

economies.

      In M arch 2005, the Appeals Council denied plaintiff’s request for review of

the ALJ’s decision. Plaintiff then filed a complaint in the district court. In July

2006, the magistrate judge, sitting by consent of the parties and by designation of

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the district court pursuant to 28 U.S.C. § 636(c)(1), entered an order and a related

judgment affirming the denial of plaintiff’s applications for social security

benefits. This appeal followed.

      Because the Appeals Council denied review, the ALJ’s decision is the

Commissioner’s final decision for purposes of this appeal. See Doyal v.

Barnhart, 331 F.3d 758, 759 (10th Cir. 2003). In reviewing the ALJ’s decision,

“we neither reweigh the evidence nor substitute our judgment for that of the

agency.” Casias v. Sec’y of Health & H um an Servs., 933 F.2d 799, 800 (10th Cir.

1991). Instead, we review the ALJ’s decision only “to determine whether the

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

the correct legal standards were applied.” Doyal, 331 F.3d at 760.

                                         II.

      Plaintiff argues the ALJ committed reversible error by: (1) failing to make

a proper determination at steps two and three of the sequential evaluation process;

(2) failing to fully and fairly develop the administrative record; and (3) failing to

make a proper credibility determination. W e conclude that plaintiff’s arguments

are without merit.

      A. Steps Tw o and T hree.

      In January 2000, plaintiff was diagnosed as suffering from “[m]arked

restriction of motion throughout the vertebral system secondary to morbid obesity

and osteoarthritis.” Aplt. App., Vol. 2 at 136. Plaintiff was also diagnosed as

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suffering from morbid obesity in April and M ay 2003. Id. at 171, 188. In

addition, in September 2003, an x-ray of plaintiff’s abdomen showed possible

“sclerosis of the left sacroiliac joint with increased density of the left femoral

head,” id. at 246, and plaintiff claims that this “x-ray evidence [is] compatible

with arthritic changes,” Aplt. Opening Br. at 8. Plaintiff argues the ALJ erred at

step two because he failed to address whether plaintiff’s osteoarthritis and obesity

qualify as severe impairments. See 20 C.F.R. §§ 404.1521(a) and 416.921(a)

(providing that an impairment is severe for purposes of step two if it significantly

limits the claimant’s “physical or mental ability to do basic work activities”).

W e are constrained to disagree.

      First, as the magistrate judge noted in his thorough and well-reasoned

order, plaintiff “relies upon a notation by W alter L. W ilson, D.O., as support for

his allegation that he has a severe impairment of osteoarthritis.” Aplt. A pp.,

Vol. 1 at 22. However, “this is the only mention of such a condition in the

medical records,” id., and “there is no suggestion [anywhere in plaintiff’s medical

records] that any functional limitations were found or restrictions on activities

were imposed due to osteoarthritis by Plaintiff’s health care providers,” id.

at 22-23.

      Second, the magistrate judge correctly noted that “[t]he record does not

contain a diagnosis of degenerative joint disease or even any treatment for such a

condition.” Id. at 22. As explained by the magistrate judge:

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      A radiologist’s report of “Increased density in the left sacroiliac joint
      and left femoral head which may be due to technique secondary to
      the patient’s large body habitus versus degenerative change versus
      other” does not support Plaintiff’s allegation that this is a severe
      impairment. [R. 246]. Standing alone, this observation by the
      radiologist, who was review ing Plaintiff’s x-rays in relation to his
      complaints of abdominal pain, does not constitute substantial
      evidence of degenerative joint disease as a severe impairment at step
      two.

Id.

      Third, we agree with the magistrate judge that the ALJ did not err at step

tw o by failing to consider w hether plaintiff’s obesity is a severe impairment. A s

the magistrate judge noted:

             Plaintiff did not address his obesity either in his application
      for benefits or at the hearing before the ALJ, but he now contends
      that the ALJ failed to consider the limitations of Plaintiff’s obesity as
      required by S.S.R. [02-1P] (requiring ALJ to consider obesity at
      various points of the five-step analysis). Plaintiff’s physicians noted
      the condition in several medical reports. [R. 135, 136, 169]. In
      particular, Dr. W hitworth, refused to perform elective surgery on
      Plaintiff’s hernia on April 30, 2003, because of “a very high chance
      of significant complications and even death” due to the “extreme
      weight in this region.” 1 [R. 170]. The ALJ acknowledged this
      evidence. [R. 18]. However, none of Plaintiff’s physicians indicated
      that obesity was a factor in regard to exertional, postural and social
      functions. Nor did Plaintiff testify that his w eight contributed to his
      inability to engage in activities in any way. Because there is no
      evidence regarding obesity in the record that the ALJ failed to
      consider or that the A LJ improperly considered, Plaintiff’s
      contention of error on the part of the ALJ for failing to specifically
      identify obesity as a severe impairment at step two is w ithout merit.



1
     W e note that the medical records that plaintiff submitted to the Appeals
Council show that he had surgery to repair his ventral hernia in December 2004.
See Aplt. App., Vol. 2 at 337-53.

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Id. at 23 (footnote added and footnote omitted); see also Soc. Sec. Ruling 02-1P,

2000 W L 628049, at *4 (“Neither do descriptive terms for levels of obesity (e.g.,

‘severe,’ ‘extreme,’ or ‘morbid’ obesity) establish whether obesity is or is not a

‘severe’ impairment for disability program purposes. Rather, we will do an

individualized assessment of the impact of obesity on an individual’s functioning

when deciding whether the impairment is severe.”).

      Finally, plaintiff argues that the ALJ erred by failing to consider at step

three whether the combined effects of his osteoarthritis and obesity meet or equal

a listed impairment under the listings for musculoskeletal and respiratory systems.

As the magistrate judge pointed out, however, “[b]ecause the Court [found] no

error on the part of the ALJ in his step two findings, Plaintiff’s incidental

argument with regard to the ALJ’s step three findings [is] likewise without

merit.” Aplt. App., Vol. 1 at 24.

      B. Development of the Record.

      Plaintiff’s counsel requested that the ALJ “aid in the development of the

record by obtaining an examination by a consultative examiner (CE).” A plt.

Opening Br. at 29 (citing Aplt. App., Vol. 2 at 395). Specifically, the record

shows that plaintiff’s counsel “requested a CE to evaluate Claimant’s knee pain,

including x-rays of the knees, and evaluate his hand symptoms for carpal tunnel

syndrome, including electrodiagnostic testing of the upper extremities.” Id. at 30

(citing Aplt. App., Vol. 2 at 395). Plaintiff argues that a consultative examination

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was necessary to “resolve the conflict or ambiguity regarding Claimant’s hand

limitations due to alleged carpal tunnel syndrome, and the presence or absence of

osteoarthritic changes in the knees,” id., and he claims that the ALJ committed

reversible error by failing to order the requested consultative examination.

      The magistrate judge accurately summarized the ALJ’s duty to develop the

administrative record as follow s:

             An ALJ has the responsibility “in every case ‘to ensure that an
      adequate record is developed during the disability hearing consistent
      with the issues raised.’” [Hawkins v. Chater, 113 F.3d 1162, 1164
      (10th Cir. 1997)] (quoting Henrie v. United States Dep’t of Health &
      Hum an Servs., 13 F.3d 359, 360-61 (10th Cir. 1993)) . . . . This
      responsibility to develop the record may require the ALJ to order a
      consultative examination. See Hawkins, 113 F.3d at 1166. The
      Commissioner is given broad latitude, however, in making a decision
      to order such an examination. Diaz v. Sec’y of Health & Human
      Servs., 898 F.2d 774, 778 (10th Cir. 1990). M oreover, the A LJ’s
      duty is triggered only after the claimant has satisfied his or her
      burden to provide objective evidence “sufficient to suggest a
      reasonable possibility that a severe impairment exists.” Hawkins,
      113 F.3d at 1167.

Aplt. App., Vol. 1 at 24-25.

      W e agree with the magistrate judge that plaintiff failed to make a sufficient

showing to require the ALJ to order a consultative examination. There is simply

no medical evidence in the record indicating that plaintiff suffers from hand or

knee impairments, and plaintiff has not argued that any of his other impairments

required a consultative examination. Accordingly, we cannot accept plaintiff’s




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assertion that “[t]here was a clear need for a consultative examination and

testing.” Aplt. O pening Br. at 31.

      C. Credibility.

      The ALJ found that plaintiff’s “allegations regarding his limitations are not

totally credible.” A plt. App., Vol. 2 at 21. Plaintiff argues that the A LJ’s

adverse credibility determination is not supported by substantial evidence in the

record. He specifically challenges the ALJ’s findings and/or lack of findings

regarding his abdominal and shoulder pain, his daily activities, his obesity, his

alleged failure to make an effort to improve his health by losing weight and

quitting smoking, and his ability to sit and stand. “Credibility determinations are

peculiarly the province of the finder of fact, and we will not upset such

determinations when supported by substantial evidence.” Diaz, 898 F.2d at 777;

see also White v. Barnhart, 287 F.3d 903, 910 (10th Cir. 2001) (stating that

“ALJ’s credibility findings warrant particular deference”).

      W e conclude that the ALJ’s adverse credibility determination is supported

by substantial evidence in the record, and we see no merit in the arguments

advanced by plaintiff in this appeal. In particular, while plaintiff has correctly

noted that he was never prescribed a diet or other treatment for his obesity, the

ALJ did not err in relying on the medical records of Dr. W hitworth as part of his

credibility evaluation. As pointed out by the magistrate judge, those records

indicate that “Dr. W hitworth reported that when he recommended Plaintiff ‘see

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the clinic on South Harvard’ to initiate treatment for his weight and smoking,

Plaintiff became belligerent and was not motivated to do so.” Aplt. A pp., Vol. 1

at 26 (quoting Dr. W hitworth’s medical record dated April 30, 2003). M oreover,

plaintiff’s failure to follow Dr. W hitworth’s advice was not the only factor the

ALJ relied on to support his adverse credibility determination. As noted by the

magistrate judge, the A LJ also “cited evidence in the record that Plaintiff’s

treating doctors released him to return to work with the limitation of no lifting,

pushing or pulling of more than 20 pounds. He also cited Plaintiff’s testimony

that he can continue sitting and standing if he is allowed to change position.” Id.

W e also reject plaintiff’s argument that the ALJ failed to properly consider the

medical evidence pertaining to his hernia. As explained by the magistrate judge,

“[t]he ALJ found Plaintiff’s hernia to be a severe impairment and assessed his

[residual functional capacity] accordingly.” Id.

      The judgment of the district court is AFFIRMED.


                                                     Entered for the Court


                                                     Neil M . Gorsuch
                                                     Circuit Judge




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