                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAY 21 2004
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    MAGDALENA ARTEAGA,

                Plaintiff-Appellant,

    v.                                                   No. 03-7099
                                                   (D.C. No. 02-CV-579-W)
    JO ANNE B. BARNHART,                                 (E.D. Okla.)
    Commissioner, Social Security
    Administration,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before EBEL , ANDERSON , and BRISCOE , Circuit Judge.



         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      This order and judgment is not binding precedent, except under the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 Magdalena Arteaga filed applications for disability insurance

benefits and supplemental security income contending that she has been disabled

since December 1, 2000, due to noninsulin-dependent diabetes mellitus, anxiety,

and depression. An administrative law judge (ALJ) held a hearing on plaintiff’s

applications in December 2001 and issued a decision in February 2002 finding

plaintiff not disabled. When the Appeals Council later denied plaintiff’s request

for review, the ALJ’s decision became the final decision of the Commissioner.

A magistrate judge affirmed the Commissioner’s decision, and plaintiff now

appeals. Because the Commissioner applied the correct legal standards and her

decision is supported by substantial evidence, we affirm.


                                          I.

      In 1999, plaintiff began seeking treatment for diabetes, depression, and an

anxiety disorder from Dr. Jerry L. Russell, a primary-care physician. Dr. Russell

continued treating her, but also referred her to a psychiatrist and an

endocrinologist. The psychiatrist referred plaintiff to a clinical psychologist, who

conducted three counseling sessions. After September 2000, plaintiff relied on

Dr. Russell for all treatment and prescriptions. Plaintiff’s prescription

medications include Ativan and Atarax for her affective and anxiety-related

disorders, along with Amaryl and Glucophage for diabetes. She has taken other



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antianxiety and antidepressant medication, such as Paxil, Buspar, and Prozac,

with mixed results.

       There are several mental status evaluations in the medical record: a report

of an examination conducted by a clinical neuropsychologist and psychologist,

Patricia Walz, Ph.D. on April 18, 2001; a mental residual functional capacity

(RFC) assessment completed by Sally Varghese, M.D., on July 6, 2001; and

a psychiatric review technique form completed by Bernard L. Pearce, Ph.D.,

on October 11, 2001. Additionally, Dr. Russell filled out a physical residual

functional capacity evaluation on December 12, 2001, which included a statement

that the number “of days missed from work and co-inciding [sic] office visits

demonstrat[es] fear, anxiety, [and] loss of reality testing.” R. at 234-36. He also

observed that plaintiff had a “fear of job’s socializing environment.”   Id. at 236.

       The evaluators generally agree that plaintiff has dysthymia, panic disorder

with mild agoraphobia, and a history of drug abuse. She has difficulty with

calculations, concentrating, and social functioning, but is able to care for her

personal needs (including blood-sugar monitoring). Dr. Walz was undecided

about plaintiff’s significant limitations of adaptive functioning, but Dr. Varghese

concluded that plaintiff could adapt to a work situation as long as it did not

include active involvement with the general public.




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      Concerning plaintiff’s diabetes, the medical record shows fluctuating sugar

levels, frequently related to stressors in her family life. Dr. Russell adjusted her

medication when her levels were elevated. Plaintiff complained of numbness and

burning on the bottoms of her feet, and Dr. Russell treated her with B-12

injections for mild diabetic sensory neuropathy. The injections slightly decreased

the burning sensation.

      Emad Al-Ghussain, M.D. performed a consultative medical examination on

May 22, 2001. Dr. Al-Ghussain diagnosed diabetes with fair control, anxiety

attacks, and excess weight. He opined that plaintiff could sit, stand, walk, lift,

handle objects, hear, and travel. However, in a form completed on the day of the

hearing, Dr. Russell stated that plaintiff was limited in the use of her feet for

pushing and pulling leg controls and in the use of her hands for repetitive

grasping and fingering.

      At the hearing before the ALJ, plaintiff was represented by counsel. She

testified that she was anxious around other people, had trouble concentrating and

sleeping, and her feet and hands burn. Additionally, her hands had begun itching,

a condition treated with medication that made her sleepy. Plaintiff stated that she

could stand for a couple of hours at a time before she had burning in her feet.

Plaintiff’s mother also testified, saying that plaintiff simply wants to be alone and

that she needs psychiatric treatment.


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      The ALJ asked a testifying vocational expert about unskilled jobs available

for a claimant who “could do the demands of light work from an exertional

standpoint,” but “could not handle complex or detailed work tasks, and would be

limited to simple one or two step jobs that did not involve interaction with public,

and where she didn’t have the requirement for much interaction with others.”

Id. at 63. The vocational expert testified that there were several such jobs

available. However, if plaintiff could not use her hands or feet for repetitive

motions, there would be no jobs she could perform.

      In his decision, the ALJ found that plaintiff’s diabetes and depression were

severe impairments, but that she retained the residual functional capacity (RFC)

to perform a wide range of light work. Her RFC excluded positions that required

her to lift more than ten pounds frequently or twenty pounds occasionally, interact

with the public, or perform more than a one or two-step operation. The ALJ

determined that plaintiff could not do her past relevant work as electronics

assembler, poultry dresser, or restaurant owner. However, she could perform jobs

that exist in significant numbers in the national economy, such as production

assembler, laundry sorter, and housekeeping cleaner.

      Plaintiff appealed to the Appeals Council, and supplemented the record

with an evaluation by Dr. Ben Cheek, who reached a RFC conclusion similar to




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that of Dr. Russell. On judicial review, a magistrate judge affirmed the

Commissioner’s decision.


                                           II.

      Plaintiff raises four challenges on appeal: (1) the ALJ did not fully and

fairly develop the record; (2) the ALJ did not properly evaluate the credibility of

plaintiff’s subjective complaints; (3) the ALJ incorrectly assessed plaintiff’s

residual functional capacity; and (4) the ALJ incorrectly found that plaintiff can

perform other jobs in the national economy. Our review of the Commissioner’s

decision is limited to determining whether the correct legal standards were

applied and whether the findings are supported by substantial evidence in the

record viewed as a whole.    Castellano v. Sec’y of Health & Human Servs.    ,

26 F.3d 1027, 1028 (10th Cir. 1994). “In evaluating the appeal, we neither

reweigh the evidence nor substitute our judgment for that of the agency.”        Casias

v. Sec’y of Health & Human Servs.    , 933 F.2d 799, 800 (10th Cir. 1991).

A.    Development of the administrative record

      Plaintiff contends that the ALJ committed error by failing to obtain records

from the psychiatrist and endocrinologist to whom she was referred by Dr. Russell

and a mental health center that had evaluated her. She also asserts that, “[t]o

make the record absolutely complete, the Appeals Council should have obtained



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[Dr. Cheek’s] office notes of Dr. Cheek or engaged in further inquiry when they

received his assessment.” Aplt. Br. at 15.

       The burden to prove disability in a social security case is on the claimant,

and to meet this burden, the claimant must furnish medical and other evidence

of the existence of the disability.   Bowen v. Yuckert , 482 U.S. 137, 146 (1987).

A social security disability hearing is nonadversarial, however, and the ALJ bears

responsibility for ensuring that “an adequate record is developed during the

disability hearing consistent with the issues raised.”   Henrie v. United States

Dep’t of Health & Human Servs ., 13 F.3d 359, 360-61 (10th Cir. 1993).

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). Nevertheless,

“the ALJ should ordinarily be entitled to rely on the claimant’s counsel to

structure and present claimant’s case in a way that the claimant’s claims are

adequately explored” and “may ordinarily require counsel to identify the issue or

issues requiring further development.”       Hawkins v. Chater , 113 F.3d 1162, 1167

(10th Cir. 1997).

       Plaintiff’s counsel did not indicate or suggest to the ALJ that any medical

records were missing, nor ask for the ALJ’s assistance in obtaining any such

records. The ALJ had before him Dr. Russell’s records (referencing the


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specialists), the records of plaintiff’s psychologist, and also those of the

consulting physicians. We conclude that there was an adequate record by which

the ALJ could decide this case.

B.     Evaluation of plaintiff’s subjective complaints

       In her second argument, plaintiff takes issue with the ALJ’s conclusion that

plaintiff’s allegations of subjective complaints were not fully credible. Plaintiff

contends that the ALJ (1) overstated her ability to perform daily activities and her

mental impairment and (2) improperly discounted Dr. Russell’s opinion and her

testimony about her difficulty standing and walking due to burning in her feet.

She also suggests that the ALJ failed to consider other evidence crucial to

a disability determination, such as her prior work record, her regular seeking of

medical treatment, her compliance with doctor’s orders, and the variety of

medications she takes.

       But the ALJ did not dispute the presence of her impairments nor did he fail

to acknowledge that claimant is limited by them. The ALJ concluded that the

claimed severity of plaintiff’s limitations was inconsistent with the medical

record and her own statements at the hearing. The ALJ’s “[f]indings as to

credibility [were] closely and affirmatively linked to substantial evidence and not

just a conclusion in the guise of findings.”         Huston v. Bowen , 838 F.2d 1125,

1133 (10th Cir. 1988).


                                               -8-
      “Credibility determinations are peculiarly the province of the finder of fact,

and we will not upset such determinations when supported by substantial

evidence.” Kepler v. Chater , 68 F.3d 387, 391 (10th Cir. 1995) (quotation

omitted). Plaintiff essentially disagrees with the weight the ALJ gave to various

facts. Nevertheless, our review of the record reveals no reversible error in the

ALJ’s assessment of plaintiff’s credibility.

C.    Assessment of plaintiff’s RFC

      Plaintiff’s third issue relates primarily to the ALJ’s failure to incorporate

Dr. Russell’s opinion about plaintiff’s limited use of her hands and feet in the

RFC determination. However, the ALJ noted that he rejected only the portions

of Dr. Russell’s opinion that were not supported by the other evidence.    See

Castellano , 26 F.3d at 1029. For instance, the ALJ referred to plaintiff’s

testimony that she could stand for a couple of hours before experiencing burning

in her feet. Additionally, the RFC adequately accounted for plaintiff’s mental

impairments by limiting her RFC to work that does not require interaction with

the public or more than a one to two step operation.

D.    Finding that plaintiff can perform other jobs in the national economy

      Plaintiff’s final contention is related to her RFC argument. She asserts that

the ALJ’s hypothetical question to the vocational expert was flawed because it did

not include all the limitations found by Dr. Russell. The ALJ analyzed the


                                           -9-
medical evidence and concluded that the evidence supported a finding that

claimant could perform the requirements of light unskilled work, with restrictions

on lifting, complexity of operation, and interaction with the public. The ALJ

included these restrictions in his hypothetical question to the vocational expert.

See Decker v. Chater , 86 F.3d 953, 955 (10th Cir. 1996) (hypothetical questions

to the vocational expert need only reflect impairments and limitations that are

borne out by the evidentiary record). The vocational expert then identified jobs

which plaintiff could perform.

      The ALJ rejected Dr. Russell’s assertion that she could not use her hands

and feet for repetitive motions and, consequently, the ALJ was not required to

accept the vocational expert’s response to a hypothetical including this

unsupported limitation.   See Talley v. Sullivan , 908 F.2d 585, 588 (10th Cir.

1990) (stating that the ALJ is not bound by the vocational expert’s opinion in

response to a hypothetical question which includes impairments that are not

accepted as true by the ALJ). Again, we may not reweigh the evidence on appeal.

Casias , 933 F.2d at 800. The vocational expert’s testimony provided substantial

evidence supporting the ALJ’s denial of benefits.




                                         -10-
                                         III.

      The ALJ’s conclusion that plaintiff was not disabled was based on

substantial evidence and arrived at by application of correct legal standards.

AFFIRMED .


                                                    Entered for the Court



                                                    Stephen H. Anderson
                                                    Circuit Judge




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