                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           OCT 7 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    RAYMOND T. RAINS,

                Plaintiff-Appellant,

    v.                                                   No. 98-7178
                                                   (D.C. No. CIV-97-413-S)
    KENNETH S. APFEL, Commissioner,                      (E.D. Okla.)
    Social Security Administration,

                Defendant-Appellee.




                            ORDER AND JUDGMENT            *




Before BRORBY, EBEL , and HENRY , 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      This order and judgment is not binding precedent, except under the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 appeals the district court’s decision affirming the Commissioner’s

denial of plaintiff’s application for disability insurance benefits. Plaintiff filed

for benefits in April 1993, alleging he had been disabled since February 1988 due

to back injury and neck impairments. Plaintiff’s insured status extended only

through June 30, 1993. In order to prevail, therefore, plaintiff must demonstrate

that he was under a disability on and before the date his insured status expired.

See Henrie v. United States Dep’t of Health & Human Servs.      , 13 F.3d 359, 360

(10th Cir. 1993).

      After plaintiff’s application was denied initially and on reconsideration,

he requested and received a de novo hearing before an administrative law judge

(ALJ). Plaintiff appeared at that hearing with a paralegal representative.

      The ALJ issued his written decision on February 21, 1996. Based on

plaintiff’s consistent reports to treating physicians of lumbar and cervical pain,

the ALJ concluded, at step two of the sequential process,    that plaintiff had severe

impairments. Despite plaintiff’s limitations, however, the ALJ concluded that he

retained the residual functional capacity (RFC) for a full range of light work.

While this RFC precluded plaintiff from returning to his past relevant work as a

painter or welder, the ALJ concluded that plaintiff could perform other work in

the national economy pursuant to the medical-vocational guidelines. Therefore,




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the ALJ denied plaintiff’s application for benefits at step five of the sequential

analysis. See id.

      Plaintiff then secured the services of an attorney and petitioned for review

before the Appeals Council. Additional medical records were submitted to the

Appeals Council, but that body concluded that the new records did not provide

a basis to alter the ALJ’s decision. The Appeals Council, therefore, denied

plaintiff’s petition for review, and the ALJ’s decision became the final decision

of the Commissioner. Thereafter, plaintiff appealed the Commissioner’s decision

to the district court, which affirmed the denial of benefits. This appeal followed.

      Plaintiff raises three challenges to the Commissioner’s decision on appeal.

First, he contends that the ALJ failed to develop the record by obtaining various

physicians’ records and a copy of an MMPI (Minnesota Multiphasic Personality

Inventory). Second, he maintains the ALJ failed to consider plaintiff’s mental

impairment. Finally, he argues that the ALJ failed to make a proper credibility

assessment.

      We review the Commissioner’s decision to determine whether the correct

legal standards were applied and whether the findings are supported by substantial

evidence in the record viewed as a whole. See Castellano v. Secretary of

Health & Human Servs., 26 F.3d 1027, 1028 (10th Cir. 1994). “If supported by

substantial evidence, the [Commissioner’s] findings are conclusive and must be


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affirmed.” Sisco v. United States Dep’t of Health & Human Servs., 10 F.3d 739,

741 (10th Cir. 1993). “In evaluating the appeal, we neither reweigh the evidence

nor substitute our judgment for that of the agency.” Casias v. Secretary of

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

       We turn first to plaintiff’s contention that the ALJ failed to obtain records

from various doctors, presumably both treating and non-treating physicians, who

had seen plaintiff during the relevant period and also failed to obtain a copy of

an MMPI. “It is beyond dispute that the burden to prove disability in a social

security case is on the claimant.”    Hawkins v. Chater , 113 F.3d 1162, 1164

(10th Cir. 1997). Nonetheless, because a social security disability hearing is

a nonadversarial proceeding, the ALJ bears responsibility for ensuring that “an

adequate record is developed during the disability hearing consistent with the

issues raised.”   Henrie , 13 F.3d at 360-61. Generally, “[a]n ALJ has the duty to

develop the record by obtaining pertinent, available medical records which come

to his attention during the course of the hearing.”       Carter v. Chater , 73 F.3d 1019,

1022 (10th Cir. 1996). The degree of effort required by the ALJ to develop the

record, however, varies from case to case.         Cf. Battles v. Shalala , 36 F.3d 43, 45

(8th Cir. 1994) (noting that whether ALJ has adequately developed record must be

determined on case by case basis);     Lashley v. Secretary of Health & Human

Servs. , 708 F.2d 1048, 1052 (6th Cir. 1983) (same).


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       The record shows that plaintiff’s representative was advised in writing that

he needed to gather and submit medical evidence to the ALJ.            See R. Vol. II at 42.

In addition, the ALJ specifically asked plaintiff’s representative at the hearing if

there were any other documents he desired to have made part of the record.            See

id. at 397. After the February 1995 hearing, the ALJ wrote plaintiff telling him to

re-contact his paralegal representative, as the latter required more information

regarding plaintiff’s medical evidence.       See id. at 39. Thus, the ALJ gave

plaintiff’s representative an opportunity to submit additional medical evidence

and, in fact, reopened the record twice after the conclusion of the hearing to

receive new evidence.     See id. at 426.

       Further, and as mentioned above, by the time plaintiff’s case reached the

appeals stage, plaintiff had secured the services of an attorney. The attorney

submitted new evidence to the Appeals Council, but presumably did not include

the physicians’ records and the MMPI. This fact could lead to the conclusion

that, either the reports were unobtainable,    2
                                                    or that they were not that crucial to

plaintiff’s case.   See Shannon v. Chater , 54 F.3d 484, 488 (8th Cir. 1995)

(plaintiff’s failure to obtain or even try to obtain records suggests these records

may only have been of minor importance).


2
       The initial decision denying benefits listed four separate sources of
evidence considered by the agency.   See R. Vol. II at 55. The decision indicated
that additional reports were unobtainable.

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       Moreover, plaintiff has not made the required showing in the district court

to justify remand.    See 42 U.S.C. § 405(g) (permitting district court to remand a

case for consideration of new evidence where plaintiff shows that new evidence is

material and there is good cause for failure to incorporate such evidence in the

administrative record). The mere fact that plaintiff had undergone an MMPI,

without more, does not lead to the conclusion that the ALJ’s decision would have

been affected by its inclusion in the record. Nor has plaintiff indicated how the

ALJ’s review of the missing physicians’ records would have affected his decision

to deny benefits.    See Hawkins , 113 F.3d at 1169 (noting that when the missing

evidence was in existence at the time of the administrative hearing, it may it may

be appropriate to “require[] the claimant to prove prejudice by establishing that

the missing evidence would have been important in resolving the claim before

finding reversible error”) (citing   Shannon , 54 F.3d at 488). Under the

circumstances, we conclude that the ALJ did not commit reversible error when he

failed to obtain certain physicians’ reports and the MMPI.

       Plaintiff next argues that the ALJ failed to consider evidence of his mental

impairment. On the contrary, the ALJ correctly noted that plaintiff did not allege

any mental impairment in his disability report but only complained at the hearing

that his pain was causing anxiety and depression. Our review of the evidence in

the record reveals only that plaintiff underwent the MMPI in 1988 before having


                                            -6-
a neck fusion procedure. Before that fusion, plaintiff had complained to a

physical therapist about being under considerable stress.   See R. Vol. II at 168.

After the fusion, his doctor noted that he was “less anxious about his overall

condition.” See id. at 258. The last mention of any mental problem came in 1993

when plaintiff was admitted to the hospital complaining of rash, achiness, fever,

and congestion and was noted to be experiencing anxiety.     See id. at 214.

       As the ALJ correctly noted, plaintiff was never hospitalized for a mental

health impairment and never sought or received psychiatric treatment. Nor did he

seek counseling or use any psychotropic medication. The bare fact that plaintiff

was evaluated via an MMPI is not evidence of the presence of a mental

impairment. As discussed above, had the MMPI been conclusive, or even

relevant, regarding plaintiff’s mental state before the expiration of his insured

status, we can presume that plaintiff’s attorney would have procured the report,

had it been available. The ALJ’s determination that there is no evidence of

a medically determinable mental impairment on or before June 30, 1993,

is supported by substantial evidence.

       Finally, we address plaintiff’s challenge to the ALJ’s credibility

assessment. Under the familiar framework set forth in Luna v. Bowen, 834 F.2d

161, 163 (10th Cir. 1987), an ALJ assessing a claimant’s allegations of disabling

pain must first determine whether there is objective medical evidence of a


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pain-producing impairment. If the first step is met, the ALJ must then determine

whether there is a nexus between the pain producing impairment and the

claimant’s subjective allegations of pain.     See id. If the ALJ finds the necessary

nexus, the ALJ must then consider all the evidence–both objective and

subjective–and determine the credibility of the claimant’s allegations of disabling

pain. See id. In making the required credibility assessment, the ALJ must link

the conclusion to the evidence.    See Kepler v. Chater , 68 F.3d 387, 391 (10th Cir.

1995). While “[c]redibility determinations are peculiarly the province of the

finder of fact, and we will not upset such determinations when supported by

substantial evidence[,] . . . [f]indings as to credibility should be closely and

affirmatively linked to substantial evidence and not just a conclusion in the guise

of findings.” Id. (quotations and citations omitted).

       Plaintiff contends that the ALJ’s credibility determination was not

sufficiently linked to substantial evidence in the record. We disagree. The ALJ

specifically noted that plaintiff’s complaints of disabling pain were inconsistent

with his ability to attend college from January 1989 through the early part of

1993. The ALJ also identified conflicts between plaintiff’s testimony at the

hearing and various reports he had given to attending physicians, including his

reasons for quitting school and the circumstances under which he came to be hit

in the wrist with a baseball. Finally, the ALJ pointed to the medical records


                                             -8-
recording treatment for various injuries sustained while plaintiff was boating,

bicycling, and “venturing out into brush.” R. Vol. II at 26. We acknowledge that

the record has much evidence concerning plaintiff’s pain and his efforts to relieve

it. Plaintiff, however, is basically asking us to reweigh the evidence and to

substitute our judgment for that of the ALJ. This we cannot do.    See Casias ,

933 F.2d at 800.

      Based upon our review, we conclude that the ALJ provided a sufficient link

between the evidence and his determination that plaintiff’s allegations of

disabling pain were not credible. Moreover, we conclude that his credibility

assessment is supported by substantial evidence in the record.

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

of Oklahoma is AFFIRMED.


                                                      Entered for the Court



                                                      Robert H. Henry
                                                      Circuit Judge




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