                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                August 31, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                  Clerk of Court
                            FOR THE TENTH CIRCUIT


    MARSHALL L. ROBINSON,

                Plaintiff-Appellant,

    v.                                                 No. 09-5166
                                               (D.C. No. 4:08-CV-468-TLW)
    MICHAEL J. ASTRUE, Commissioner                    (N.D. Okla.)
    of the Social Security Administration,

                Defendant-Appellee.



                             ORDER AND JUDGMENT *


Before TACHA, HOLLOWAY, and ANDERSON, Circuit Judges.



         Marshall Leon Robinson appeals from a final judgment entered by a

magistrate judge, pursuant to the parties’ consent under 28 U.S.C. § 636(c)(1),

upholding the Commissioner’s denial of Mr. Robinson’s application for social

security disability insurance benefits. We hear this appeal from the magistrate



*
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
judge’s order directly, without intermediate review in the district court, pursuant

to 28 U.S.C. § 636(c)(3) and § 1291, and we affirm.

      Mr. Robinson was born in 1957. He has a general equivalence diploma and

earned certificates in welding and auto mechanics. His past relevant work

includes concrete finisher, pipeline worker, petroleum and gas laborer, and driller

helper. He protectively filed for benefits in September 2005, claiming that he had

been unable to work since May 12, 2005, due to a work-related left eye injury.

He was last insured on June 30, 2006; thus, he bore “the burden of proving that

[he] was totally disabled on that date or before.” Wilson v. Astrue, 602 F.3d

1136, 1139 (10th Cir. 2010).

      The agency denied Mr. Robinson’s application initially and on

reconsideration. He then requested and received a de novo hearing before an

administrative law judge (ALJ). At the hearing, he testified about the (mostly

unsuccessful) treatment for his eye injury and asserted that he suffers from severe

headaches and light-sensitivity. A vocational expert (VE) also testified.

Thereafter, the ALJ concluded at step five of the controlling five-step sequential

evaluation process, see Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir.

1988), that Mr. Robinson was not disabled. Specifically, at step one, the ALJ

found Mr. Robinson had not engaged in substantial gainful activity since his

alleged onset date. At steps two and three, he found Mr. Robinson had severe

impairments (chronic left eye pain with occipital neuralgia and blurred vision),

                                         -2-
but that his impairments did not meet or medically equal one of the impairments

in 20 C.F.R. Part 404, Subpart P, Appendix 1.

      Next, the ALJ acknowledged Mr. Robinson’s “medically determinable

impairments could reasonably be expected to produce the alleged symptoms,”

Aplt. App., Vol. 1 at 51, but found Mr. Robinson “not entirely credible in light of

discrepancies between [his] alleged symptoms, and objective documentation in

the file[,]” id. at 52. The ALJ determined that Mr. Robinson retained the residual

functional capacity (RFC) “to perform medium work as defined in 20 [C.F.R.

§] 404.1567(c),” id. at 49, though he found, at step four, that Mr. Robinson could

not perform his past work. At step five, the ALJ—taking into account the VE’s

testimony—concluded that Mr. Robinson was not disabled because, considering

his age, education, work experience, and RFC, he could perform other jobs

available in the national economy.

      Mr. Robinson appealed the ALJ’s decision to the Appeals Council and

submitted a two-page physical residual functional capacity questionnaire that was

completed by one of his treating physicians the day after the ALJ rendered his

decision. The Appeals Council considered the new evidence and made it part of

the record, but decided it did not provide a basis for changing the ALJ’s decision

and denied review.

      Mr. Robinson then sought judicial review, contending that the Appeals

Council erroneously failed to provide “a clear explanation of the new evidence

                                         -3-
and its impact on the Commissioner’s decision.” Id. at 14. As noted above, the

magistrate judge affirmed the Commissioner’s denial of benefits. This appeal

followed.

      Mr. Robinson raises a single issue on appeal. He contends that “the

Appeals Council should be required to state in a clear and concise manner their

analysis of new and material evidence submitted to them.” Aplt. Br. at 6. In

support, he cites 42 U.S.C. § 405(b) which, in pertinent part, requires the

Commissioner’s decision to “contain a statement of the case, in understandable

language, setting forth a discussion of the evidence, and stating the

Commissioner’s determination and the reason or reasons upon which it is based.”

      The Appeals Council “considered . . . the additional evidence,” Aplt. App.,

Vol. 1 at 38, made it “part of the record,” id. at 41, but concluded that it did “not

provide a basis for changing the Administrative Law Judge’s decision,” id. at 39.

This explanation is sufficient under our precedent. See, e.g., Hackett v. Barnhart,

395 F.3d 1168, 1172-73 (10th Cir. 2005) (“Plaintiff complains that the Appeals

Council’s reference . . . was perfunctory . . . . Yet, our general practice . . . is to

take a lower tribunal at its word when it declares that it has considered a

matter.”). Indeed, as the magistrate judge aptly observed:

      the Appeals Council’s statement . . . is almost identical to the
      statement considered adequate by the Tenth Circuit in Martinez[ v.
      Barnhart, 444 F.3d 1201, 1208 (10th Cir. 2006)]. Therefore, the
      same result is required in this case [because] . . . the Appeals Council
      considered the Questionnaire and “evaluate[d] the entire record

                                           -4-
      including the new and material evidence submitted.” 20 C.F.R.
      § 404.970(b).

Aplt. App., Vol. 1 at 30.

      Further, Mr. Robinson’s reliance on 42 U.S.C. § 405(b) is misplaced.

When the Appeals Council denies review, the ALJ’s decision becomes the final

decision of the Commissioner, see Wilson, 602 F.3d at 1140, and the ALJ’s

decision in this case fully comports with § 405(b)’s requirements.

      The judgement of the district court is AFFIRMED.


                                                   Entered for the Court


                                                   William J. Holloway, Jr.
                                                   Circuit Judge




                                        -5-
