                     UNITED STATES COURT OF APPEALS
Filed 10/8/96
                            FOR THE TENTH CIRCUIT



    JOYCE LANTOW,

               Plaintiff-Appellant,

    v.                                                 No. 95-5262
                                                  (D.C. No. 94-C-404-M)
    SHIRLEY S. CHATER, Commissioner                    (N.D. Okla.)
    of Social Security Administration, *

               Defendant-Appellee.




                            ORDER AND JUDGMENT **



Before ANDERSON, LOGAN, and MURPHY, Circuit Judges.




*
       Effective March 31, 1995, the functions of the Secretary of Health and
Human Services in social security cases were transferred to the Commissioner of
Social Security. P.L. No. 103-296. Pursuant to Fed. R. App. Proc. 43(c), Shirley
S. Chater, Commissioner of Social Security, is substituted for Donna E. Shalala,
Secretary of Health and Human Services, as the defendant in this action.
Although we have substituted the Commissioner for the Secretary in the caption,
in the text we continue to refer to the Secretary because she was the appropriate
party at the time of the underlying decision.

**
      This order and judgment is not binding precedent, except under the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.
      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) and 10th Cir. R. 34.1.9. The case is

therefore ordered submitted without oral argument.

      Claimant Joyce L. Lantow appeals from the district court’s order affirming

the denial of her application for social security disability benefits and

supplemental security income by the Secretary of Health and Human Services

(Secretary). After her claim was denied administratively, claimant requested a

review without a hearing by an administrative law judge (ALJ). 1 The ALJ denied

benefits at step four of the five-step sequential evaluation process, see Williams

v. Bowen, 844 F.2d 748, 750-51 (10th Cir. 1988)(discussing five steps),

concluding that claimant could return to her past work as a nurse’s aide, cashier,

real estate agent and teacher’s aide. After the ALJ issued his decision, claimant

submitted additional medical evidence to the Appeals Council, who considered

the additional evidence, see O’Dell v. Shalala, 44 F.3d 855, 859 (10th Cir. 1994),

but nevertheless denied review. The district court upheld the Secretary’s

decision, and claimant now appeals to this court.



1
       We decline to address claimant’s argument that she did not give a knowing
waiver of a hearing because the issue was raised for the first time in her reply
brief to this court. Lyons v. Jefferson Bank & Trust, 994 F.2d 716, 724 (10th Cir.
1993).

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      We review the Secretary’s decision to determine whether the findings of

fact are supported by substantial evidence based on the entire record, and to

ascertain whether she applied the correct legal standards. Castellano v. Secretary

of Health & Human Servs., 26 F.3d 1027, 1028 (10th Cir. 1994). Substantial

evidence is “‘such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.’” Soliz v. Chater, 82 F.3d 373, 375 (10th Cir.

1996)(quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)(further quotation

omitted)).

      Claimant alleges disability due to a heart condition, arthritis, and

fibromyalgia, causing headaches, dizziness, and pain in her hands, wrists, arms,

shoulders, hips, and back. The medical evidence of fibromyalgia was submitted

after the ALJ’s decision. The ALJ reviewed the medical evidence available to

him, and concluded that her heart condition and arthritis were not disabling.

      The medical evidence submitted after the ALJ’s decision included the

opinion of Dr. Newell, a rheumatologist, that claimant suffers from fibromyalgia,

a “chronic pain syndrome of soft tissue affecting arms, chest wall, shoulders,

back, hips [and] legs.” Aplt. app. vol. II at 180. Dr. Newell stated that

claimant’s physical activity was markedly limited, that pain interferes with her

sleep, and that “full time employment [is] not possible.” Id. The new evidence

also included the normal results of various medical tests performed on claimant.


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      The Appeals Council relied on the normal medical test results and the

physical residual functional capacity assessment to conclude that claimant had not

established that she is disabled. Because fibromyalgia, the condition afflicting

claimant, is diagnosed by ruling out other diseases through medical testing, e.g.,

Lisa v. Secretary of Dep’t of Health & Human Servs., 940 F.2d 40, 44-45 (2d Cir.

1991), negative test results or the absence of an objective medical test to diagnose

the condition cannot support a conclusion that claimant does not suffer from a

potentially disabling condition. Therefore, the Appeals Council’s decision to

reject Dr. Newell’s opinion based on “minimal medical findings,” aplt. app. vol.

II at 4, is not supported by substantial evidence.

      The judgment of the United States District Court for the Northern District

of Oklahoma is REVERSED, and the case is REMANDED to the district court

with directions to remand to the Commissioner for further consideration of

claimant’s exertional and nonexertional impairments. We express no opinion as

to the extent of any impairment, or whether claimant is or is not disabled within

the meaning of the Social Security Act.



                                                     Entered for the Court



                                                     Michael R. Murphy
                                                     Circuit Judge

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