                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUN 11 2003
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    JAMES E. POWELL,

                Plaintiff-Appellant,

    v.                                                    No. 02-7107
                                                    (D.C. No. 01-CV-517-P)
    JO ANNE B. BARNHART,                                  (E.D. Okla.)
    Commissioner, Social Security
    Administration,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before HARTZ , O’BRIEN , and McCONNELL , 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      This order and judgment is not binding precedent, except under the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 James E. Powell appeals from a district court order affirming the

Commissioner’s denial of social security disability benefits. Powell claims he is

disabled as a result of a seizure disorder with associated cognitive impairment and

headaches. The Administrative Law Judge (ALJ) found Powell was capable of

returning to past work and, accordingly, determined he was not disabled at step

four of the controlling five-step analysis.     See Williams v. Bowen , 844 F.2d 748,

750-52 (10 th Cir. 1988) (discussing steps). Powell challenged this decision in the

district court on three grounds, which he continues to press on appeal: the ALJ

should have found Powell presumptively disabled at step three under the listing

for epilepsy; the ALJ improperly substituted her own opinions for those of

Powell’s examining physicians; and the ALJ discounted Powell’s credibility on

the basis of inaccurate facts. Directing our review exclusively to the specified

issues, we agree with the district court that the ALJ’s decision in these challenged

respects is supported by substantial evidence and consistent with applicable legal

standards, and we therefore affirm.      Berna v. Chater , 101 F.3d 631, 632 (10 th Cir.

1996).

                          Step-Three Listing Determination

         The relevant listing for the type of seizures presented in Powell’s case

requires:

         Minor motor seizures (petit mal, psychomotor, or focal), documented
         by EEG and by detailed description of a typical seizure pattern,

                                              -2-
       including all associated phenomena; occurring more frequently than
       once weekly in spite of at least 3 months of prescribed treatment .
       With alteration of awareness or loss of consciousness and transient
       postictal manifestations of unconventional behavior or significant
       interference with activity during the day.

20 C.F.R. Pt. 404, Subpt. P, App. 1, § 11.03 (italics altered). Responding to

advances in anti-convulsive therapy, the Social Security Administration sharpened

the focus of the prescribed-treatment condition emphasized above by issuing a

policy statement and amending the introductory section of the convulsive-disorder

listings to direct that a finding of disability cannot be made without evidence

demonstrating therapeutic blood serum levels of the medications prescribed for an

epileptic claimant.   See id. at § 11.00(A); Soc. Sec. Rul. 87-6, Titles II and XVI:

The Role of Prescribed Treatment in the Evaluation of Epilepsy, 1987 WL 109184

(1987). A failure to satisfy this condition undermines Powell’s claim that he was

entitled to a finding of disability at step three under § 11.03.

       Powell has been treated with a regimen combining the anti-convulsive

medications Dilantin (phenytoin) and Tegretol (carbamazapine). There are

several studies in the record assessing his blood levels for these two medications.

On no occasion were normal therapeutic levels found for both.      See App. II at

116, 123, 167; see also id. at 117, 121 (reports of medical consultant noting

treating physician’s failure to routinely monitor blood serum levels and reciting

sub-therapeutic results found when such tests were ordered). Moreover, Powell


                                           -3-
presented no evidence that these low blood serum levels were the result of an

extenuating individual idiosyncracy in absorption or metabolism of the drugs.     1



Indeed, he has instead admitted to some neglect in taking his medication.       Id. at

192; see also id. at 156 (medical consultant report noting statement by Powell’s

wife that Powell has more trouble “when he doesn’t take his medicine,” indicated

lack of compliance with prescribed regimen). In sum, “the [ALJ’s] determination



1
        The relevant policy statement notes that “in extremely rare cases” such an
idiosyncracy could cause sub-therapeutic blood levels in an individual complying
with a prescribed drug regimen. SSR 87-6, 1987 WL 109184, at *3. Given the
rarity of this situation, however, the policy statement directs that any exception to
the presumption of noncompliance “must be based on specific descriptive
evidence provided by the treating physician.”        Id. Powell insists the ALJ had a
duty to pursue this unlikely possibility on his behalf by soliciting such evidence
from his treating physician, citing § 11.00, which states that when drug levels are
low, “the information obtained from the treating source should include the
physician’s statement as to why the levels are low.” Powell confuses the
specification of what would be relevant evidence with the assumption of an
affirmative obligation to develop it. The regulations make it clear that, as a
general matter, the claimant must provide the evidence to support his claim.        See
20 C.F.R. §§ 404.1514, 404.1516. Powell cites no authority relieving him of this
obligation with respect to the requirements for a favorable decision under § 11.03
at step three–a stage at which he bears the burden of proof.        See Musgrave v.
Sullivan , 966 F.2d 1371, 1376-77 (10 th Cir. 1992). In any event, given the rarity
of the condition in question, the speculative nature of Powell’s present suggestion
that it could be the cause of his sub-therapeutic blood serum levels (particularly in
the face of other evidence indicating that he did not comply with his prescribed
regimen), and the failure of Powell’s counsel to ask the ALJ to pursue the matter,
we do not think the ALJ erred in failing to anticipate and assist Powell’s current
effort to avoid the consequences of his failure of proof under the listing.     See
Hawkins v. Chater , 113 F.3d 1162, 1167-68 (10 th Cir. 1997) (explaining
prerequisites for failure-to-develop-the-record argument in context of ALJ’s
established obligation to order consultative examination).

                                           -4-
that [Powell] has not demonstrated compliance with his therapeutic regimen is

supported by substantial evidence,” and, thus, properly precluded a decision in

Powell’s favor at step three.   Brown v. Bowen , 845 F.2d 1211, 1215 (3d Cir.

1988); see also Diaz v. Sec’y of Health & Human Servs.   , 898 F.2d 774, 777 (10 th

Cir. 1990) (holding   seizure-based impairment properly discounted for

noncompliance with prescribed drug treatment, presumptively evidenced by

sub-therapeutic blood levels pursuant to predecessor of policy statement noted

above).

       Substitution of ALJ’s Opinion for those of Examining Physicians

       Powell also contends he has a mental impairment indicated by a loss of

memory performance. His primary support for this contention is an October 1998

report from Dr. McGirk, an examining psychologist. Despite obtaining normal

results for Powell on memory tasks, Dr. McGirk diagnosed a “cognitive disorder

NOS,” 2 evidently based on the concurrence of the seizure disorder and Powell’s

anecdotal account of memory problems.      See App. II at 142-45. Several months

later, another psychologist reviewed Powell’s records, noted that Dr. McGirk had

diagnosed a disorder without any clinically identifiable symptoms, and concluded


2
       “NOS” is short for “not otherwise specified,” and the cited diagnosis refers
to a “cognitive dysfunction presumed to be due to the direct physiological effect
of a general medical condition” that does not fit a more specifically defined
category of disorder. Diagnostic & Statistical Manual of Mental Disorders
(DSM-IV-TR) , at 179-80 (Revised 4 th ed. 2000).

                                          -5-
that Powell had “no medically determinable impairment.”      Id. at 147-48. The ALJ

adopted the latter assessment. Powell argues that in doing so the ALJ improperly

substituted her opinion for that of Dr. McGirk. We disagree. The ALJ simply

evaluated the relevant medical record and sided–quite reasonably, as the evidence

noted below reflects–with one expert rather than another.

      Powell’s memory functioning was assessed on several occasions and never

found deficient. When he was first referred in September 1997 to Dr. Udonta, the

neurologist who has treated him ever since, Powell’s mental status, specifically

including memory, was evaluated without any indication of problems.      See id. at

136. Thirteen months later, as noted above, Powell again produced normal results

on memory tasks for Dr. McGirk. In March 1999, Powell was seen by a second

neurologist, Dr. Lawton, for assessment of his seizure condition and treatment.

Dr. Lawton noted Powell’s “[m]emory appear[ed] intact,” though a “complaint of

memory loss” was “being evaluated elsewhere.”       Id. at 157. That evaluation was

conducted by Dr. Green, who in April 1999 reported that “no confirmation of

[memory loss] was found in test data” and, indeed, identified immediate recall as

one of Powell’s cognitive   strengths . Id. at 161-62 (also noting Powell performed

average on long-term memory tasks and above average on short-term tasks). In

light of this record, we cannot say that the ALJ’s rejection of a cognitive/memory

impairment lacks substantial evidentiary support.


                                          -6-
       In a related but much more perfunctory argument, Powell notes Dr. Green’s

narrative report concluded with the “diagnostic impression” of a “Pain Disorder

associated with psychological factors and general medical condition,”    id. at 162,

and insists that the ALJ must have substituted her opinion for this expert opinion

as well. However, Powell fails to mention that Dr. Green attached to his report an

“Assessment of Ability to Engage in Work Related Activities (Mental),” in which

he discounted the vocational significance of the suggested pain disorder by rating

as “slight” or “none” the degree of occupational/performance/social adjustments

Powell would have to make to work on a daily basis and imposing no associated

job limitations.   Id. at 163-65. The mere presence of a condition–without any

demonstrable work-related impact–will not support a disability claim.     See Hinkle

v. Apfel , 132 F.3d 1349, 1352 (10 th Cir. 1997) (following   Bowen v. Yuckert , 482

U.S. 137, 153 (1987));   see also 20 C.F.R. § 404.1521. Thus, the ALJ adhered to,

not diverged from, the findings of Dr. Green.

                     ALJ’s Assessment of Powell’s Credibility

       Powell argues that the ALJ’s analysis of his credibility on certain matters

was tainted by reliance on factual inaccuracies. We conclude that the alleged

inaccuracies are, rather, reasonable characterizations of the record. First, the ALJ

noted that Powell did not seek different drugs or treatment for his seizures when,

as he alleged, his condition did not improve at all on the medications prescribed.


                                           -7-
Powell objects to this statement, insisting that he took the three medications

prescribed by his treating physician. But this misses the ALJ’s point, which

clearly followed upon the examining neurologist’s observations that Powell “has

never been on any of the newer and often more effective medications for seizures

of this type, of which there are approximately six at this time,” and that “[p]roper

management of [his condition] would include . . . use of [such] alternative

medications if [he] continues to have difficulty that can be documented while

Tegretol and Dilantin levels are proven to be therapeutic.” App. II at 156-57.

       Powell takes issue with the ALJ’s statement that he had not told his doctors

about “feeling almost asleep or other side effects of medications,”     id. at 18,

consistent with what he testified to at the hearing,   id. at 192 (Powell stating that

he is “almost asleep all the time now” and would “never be able to function” if he

took any more medication). Powell cites two instances early on in his treatment

when he told Dr. Udonta that he felt “some fatigue and ‘sleepiness’” and “some

fatigue” attributable to the Dilantin,   id. at 129, 130, and argues that the ALJ

misrepresented the record. There is obviously a large gulf between reporting

“some” fatigue or sleepiness to his physician and Powell’s claim at the hearing

that he was constantly on the verge of incapacitation. While the ALJ might have

been clearer in referring to this divergence, we will not assume a factual

misrepresentation by an ALJ when her statement can readily be understood as a


                                             -8-
reasonable and relevant comment on a discernable discrepancy in the claimant’s

account of his condition.

       Powell insists the ALJ mischaracterized the record when she stated that his

general complaint of being “in constant pain” voiced to Dr. Green, the examining

psychologist who suggested the presence of a mental pain disorder as a result,        see

id. at 161-62 (also noting Powell rated severity of this pain to “a rather marked

degree”), had not been reported by him elsewhere. The unique nature of this

complaint led the ALJ to ask about it at the hearing, where Powell said he had a

dull headache behind his eyes all of the time and also referred to arthritis in his

shoulders. Id. at 200. Powell now ignores his belated and unsubstantiated claim

about arthritis and focuses on headaches, noting that he alleged “almost constant

headache on left side” in a reconsideration disability report,   id. at 89, and that his

current (part-time) employer submitted a letter stating Powell “periodically” must

leave work due to headaches,     id. at 168. Actually, neither of these references is

fully consistent with either his complaint to Dr. Green or the account of that

complaint he gave at the hearing. In any event, it seems clear from context that

the ALJ simply meant Powell never voiced the same broad complaint of             constant

marked pain to another doctor , which is an inconsistency reasonably to be noted

(further, specifically as to headaches, we note Powell often did not mention them

and never told a doctor that he had them constantly or on a daily basis).


                                             -9-
       Finally, Powell contends the ALJ wrongly criticized him for failing to

report the frequency of his seizures to his doctors. Powell cites several medical

records reciting estimates of the number of seizures he was having. Actually, the

ALJ referred to two different types of inconsistency in Powell’s reports of his

seizures and neither of these is refuted by Powell’s citations to the record. First,

the ALJ commented that Powell “has described his seizures in a fairly consistent

way, but has been inconsistent in reporting the time of their origin .” Id. at 17

(emphasis added). The latter criticism has substantial support in the record.        See,

e.g. , id. at 175 (“[Powell] reports he began having trouble two years ago [i.e.,

1995] with intermittent [seizure] episodes”);     id. at 134 (reciting “history of

paroxysmal spells since 1991”);    id. at 156 (reciting Powell “has had episodes” of

seizures “[b]eginning in 1985”). Second, the ALJ observed that Powell’s “reports

of the frequency of his seizures are not reported to doctors and are inconsistent

with [his] activities.”   Id. at 18. The ALJ obviously did not mean that Powell had

failed to give any frequency estimates to his doctors–she refers to these at various

points in her decision; rather, she was commenting on a substantial discrepancy

between Powell’s claim at the hearing that he was having one to four seizures a

day and many of his reports to doctors indicating much lower rates on the order of

one to four a week, see, e.g. , id. at 130, 156, 160.




                                           -10-
         In sum, Powell’s objections do not warrant any disturbance of the ALJ’s

decision under the governing standard of review. And, as we have reached this

conclusion within the analytical confines of the ALJ’s rationale of decision, the

concerns Powell raises about post hoc justification of administrative action,    see

generally Sec. & Exch. Comm’n v. Chenery Corp.        , 318 U.S. 80 (1943), are not

implicated by our disposition. Thus, we have no occasion to decide whether the

principles of Chenery and its progeny, developed in other administrative review

settings, should be mechanically imported into the particular context of social

security disability proceedings,   see generally Sims v. Apfel , 530 U.S. 103, 108-12

(2000) (citing unique “inquisitorial rather than adversarial” character of social

security proceedings as reason for not applying traditional administrative

issue-exhaustion rule on judicial review);     Sullivan v. Hudson , 490 U.S. 877, 885

(1989) (noting judicial review statute governing social security cases “suggest[s]

a degree of direct interaction between a federal court and an administrative

agency alien to traditional review of agency action under the Administrative

Procedures Act”). We acknowledge that some other circuits have done so, though

without explicit consideration of the distinctive aspects of such proceedings noted

by the Court in Sims and Hudson . See, e.g. , Golembiewski v. Barnhart , 322 F.3d

912, 916 (7 th Cir. 2003); Fargnoli v. Massanari , 247 F.3d 34, 44 n.7 (3d Cir.

2001).


                                             -11-
     The judgment of the United States District Court for the Eastern District of

Oklahoma is AFFIRMED.



                                                  Entered for the Court



                                                  Terrence L. O’Brien
                                                  Circuit Judge




                                      -12-
