                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUL 17 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    ELIZABETH B. FISH,

                Plaintiff-Appellant,

    v.                                                   No. 99-5184
                                                    (D.C. No. 98-CV-592-J)
    KENNETH S. APFEL, Commissioner,                       (N.D. Okla.)
    Social Security Administration,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before BRORBY , ANDERSON , and MURPHY , 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      This order and judgment is not binding precedent, except under the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.
       Claimant Elizabeth B. Fish filed this claim for social security benefits

under Title II of the Social Security Act on August 9, 1995, alleging an onset

of disability on October 12, 1992, based on various medical conditions. Her

application was denied at the administrative level, on reconsideration, and after

a hearing before an administrative law judge (ALJ), held on December 9, 1996.

The ALJ denied benefits at step four of the sequential evaluation process, finding

claimant retained the residual functional capacity (RFC) to return to her past

relevant work.   See 20 C.F.R. § 404.1520 (describing five-step evaluation

process); Williams v. Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988) (same).

Thereafter, the Appeals Council denied her request for review. Claimant filed her

complaint in the district court, and the parties consented to   the jurisdiction of

a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). The magistrate

judge affirmed the Commissioner’s denial of benefits and claimant now appeals.

Exercising jurisdiction pursuant to 42 U.S.C. § 405(g) and 28 U.S.C. § 1291, we

affirm; the ALJ’s decision is supported by substantial record evidence.


                                        Background

       Claimant, who has a high school education and past work experience as

a phlebotomist, surgical dressing nurse, and nurse’s aid, was fifty-five years old

at the time of the hearing on December 9, 1996. She alleges substantial

debilitating pain due to various surgical proceedings, including arthroscopic

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surgeries on her right knee in 1993, 1995, and 1996, the last of which was a total

knee replacement; arthroscopic surgery on her right ankle in 1995; tarsal tunnel

syndrome; reflex sympathetic dystrophy syndrome; fibromyalgia (myofascial

pain syndrome); and degenerative joint disease. At the hearing, claimant also

testified that she suffers from arthritis, asthma, headaches, and depression.

See Appellant’s App., Vol. II    at 548, 551-53, 555. According to her testimony,

she suffers pain in her shoulders, arms, hands, head, neck, right knee, feet, legs,

and hips as a result of these conditions.    See id. at 553, 555. The gist of her

testimony is that the pain is so severe that she spends most of her day sitting on

a recliner or lying on a couch, either resting or watching television    . See id.

at 559. Based on her limitations, claimant testified that she can neither sit nor

stand for more than thirty minutes to an hour at a time.      See id. at 558.

       At the hearing the ALJ posed three hypotheticals to the vocational expert

(VE), based on an individual: (1) who can occasionally lift twenty pounds,

frequently lift ten pounds, stand or walk or sit six hours out of an eight-hour

workday, only occasionally climb, balance, kneel, crouch, or crawl; (2) who, in

addition to the above, has to alternate sitting and standing every thirty minutes;

and (3) who has all the restrictions and pain described by claimant’s testimony.

See id. at 569-71. As to the ALJ’s first hypothetical, the VE testified that such an

individual could work as a phlebotomist and surgical dressing aide since both fall


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within the light exertional category; as to the second, the VE testified the

individual could work as a cashier (but that only twenty percent of cashier jobs

could accommodate the sit/stand limitation); and as to the third, the VE testified

that the individual would not be able to work at all.   See id.

       On appeal, claimant contends the ALJ erroneously: (1) found claimant

could return to her past relevant work as a phlebotomist because the ALJ’s

hypothetical to the VE did not reflect her limitations; (2) submitted a hypothetical

to the VE “concerning [claimant’s] ability to walk and sit six hours out of an

eight hour day without the need to alternate sitting and standing” based on

claimant’s RFC assessments which the ALJ never explained, Appellant’s Br. in

Chief at 4-5; (3) found mild to moderate pain contrary to the medical evidence in

the record; and (4) found claimant’s allegations of pain not credible because he

did not analyze the relevant pain evidence. In addition, claimant argues that the

magistrate judge erred by (1) relying on RFC assessments despite the fact that the

ALJ did not rely upon them in his decision, and (2) applying res judicata

principles to excuse the ALJ’s failure to discuss medical evidence from treating

physicians.

       We review the Commissioner’s decision for substantial evidence in the

record and to ascertain whether the Commissioner applied the correct legal

standards. See Hawkins v. Chater , 113 F.3d 1162, 1164 (10th Cir. 1997). “[W]e


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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). “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).


                                  Past Relevant Work

      Claimant argues that the ALJ erred by finding that she could return to

her past relevant work as a phlebotomist because that decision was based on

a hypothetical question to the VE that did not include her alternating

sitting/standing requirements. Claimant argues that the mere absence of evidence

that she had not recovered from her various surgeries does not support the

proposition that she had recovered. Thus, she argues, the ALJ erred by posing

a hypothetical to the VE that did not include any lower extremity limitations.

Claimant instead propounds the ALJ’s third hypothetical, which       credited fully her

testimony.

      The ALJ’s decision notes in particular the doctor’s progress reports

after claimant’s knee replacement surgery, which were very optimistic.      See

Appellant’s App. Vol. II at 475 (stating on second day following surgery,

claimant “was progressing well with physical therapy” and on third day she “was

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doing remarkably well with physical therapy”). Although claimant asserts these

progress notes and the lack of evidence in the record about her restrictions are not

substantial evidence, the ALJ afforded her an opportunity after the hearing to

supplement the medical evidence in the record to include a further assessment of

her restrictions. At the hearing, claimant’s attorney requested an additional week

to submit medical records related to claimant’s appointment for a six-month

postoperative checkup, scheduled for the day following the hearing.     See id.

at 545. Prompted by the ALJ’s request, claimant’s attorney indicated he would

also submit medical evidence as to any restrictions claimant’s doctor had placed

on her activities.   See id. at 545-46. Subsequently, claimant and her attorney

agreed to submit the matter without any additional medical records because she

apparently did not go to see her doctor.   See id. at 539. As the record stands

submitted, the ALJ’s determination that she could sit and stand six hours out of

the work day is supported by substantial evidence.

       In a related issue, claimant argues that the magistrate judge could not

search out the record and bolster the ALJ’s RFC finding based on two RFC

Assessments in the record, the first of which was performed in February 1993,

nineteen months before the start of the relevant period on claimant’s present

claim. As discussed infra at 10, this is claimant’s second application for benefits;

the first application was not successful. Therefore, although she alleges an onset


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of disability as of October 12, 1992, the ALJ determined her eligibility for

benefits could begin only as of September 23, 1994.

       The February 1993 assessment states that claimant can stand and/or walk

for six hours out of an eight-hour workday and that she can sit for six hours out

of an eight-hour workday.     See Appellant’s App., Vol. I at 38. In fact, the RFC

Assessment performed on October 26, 1995, reflects the same exact findings

relating to standing, walking, and sitting as the 1993 findings.    See id. at 217.

Moreover, any error on the part of the magistrate judge was harmless because the

ALJ’s determination of claimant’s limitations–as reflected in the ALJ’s first

hypothetical to the VE–was supported by substantial record evidence with or

without either RFC Assessment.       See Decker v. Chater , 86 F.3d 953, 955

(10th Cir. 1996) (stating that, while hypotheticals to VE must precisely reflect

impairments, “they need only reflect impairments and limitations that are borne

out by the evidentiary record”).


                                            Pain

       Claimant argues that she was suffering from disabling pain and that the

ALJ failed to consider the evidence in the record attesting to this pain and also

erred by not crediting her testimony relating to her pain. To be disabling, pain

must be severe enough to preclude any substantial gainful employment whether by

itself or in combination with other impairments.       See Brown v. Bowen , 801 F.2d

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361, 362-63 (10th Cir. 1986). This court has enumerated the following factors as

pertinent when analyzing a claimant’s pain evidence:

       (1) [W]hether Claimant established a pain-producing impairment by
       objective medical evidence; (2) if so, whether there is a “loose
       nexus” between the proven impairment and the Claimant’s subjective
       allegations of pain; and (3) if so, whether, considering all the
       evidence, both objective and subjective, Claimant’s pain is in fact
       disabling.

Musgrave v. Sullivan , 966 F.2d 1371, 1376 (10th Cir. 1992) (citing        Luna v.

Bowen , 834 F.2d 161, 163-64 (10th Cir. 1987)). Objective evidence includes

physiological and psychological evidence that can be verified by external testing.

See Thompson v. Sullivan , 987 F.2d 1482, 1488-89 (10th Cir. 1993). Subjective

evidence comprises statements from the claimant and other witnesses that are

evaluated on their credibility.    See id. at 1489. 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,” the ALJ must

link the credibility determination and evidence.        Kepler v. Chater , 68 F.3d 387,

391 (10th Cir. 1995) (quotation omitted).

       The ALJ prefaced his pain evaluation by noting that it was guided by

20 C.F.R. § 404.1529, Social Security Ruling 96-7p,         Luna , and Kepler . He then

described claimant’s activities of daily living,   2
                                                       the alleviation of her symptoms by


2
       Although claimant testified generally that her pain prevents her from
                                                                      (continued...)

                                             -8-
medications, and the dearth of evidence in the record from which he could find

that her symptoms would prevent her from undertaking the requirements of

working. The ALJ found her ailments “include mild to moderate chronic pain,

which are sufficiently severe to be noticeable to her at all times; but that

nonetheless claimant would be able to remain attentive and responsive in a work

setting, and could carry out normal work assignments satisfactorily.” Appellant’s

App., Vol. I at 18. Hence, the ALJ deemed claimant’s testimony “credible only to

the extent consistent with a residual functional capacity for a wide range of light

work activity.”   Id. We conclude the ALJ’s pain determination is supported by

substantial record evidence.


                                     Res Judicata

      Claimant initially applied for social security benefits in 1992 and was

denied benefits after a hearing before an ALJ on September 22, 1994. She did not

appeal in federal court after the Appeals Council affirmed that denial, instead, she

applied for benefits anew.

      20 C.F.R. § 404.957(c)(1) provides that:


2
 (...continued)
doing much of anything, she also testified that she can drive to a limited extent
and drove to the hearing, goes to Wal-Mart once a week for a craft hour, goes
to a support group twice a month, can pick up objects as small as a spool of
thread, and dresses and bathes herself. See Appellant’s App., Vol. II at 557,
559, 560, 564.

                                          -9-
       The doctrine of res judicata applies in that we have made a previous
       determination or decision under this subpart about your rights on the
       same facts and on the same issue or issues, and this previous
       determination or decision has become final by either administrative
       or judicial action[.]

       Based on this, and the sections pertaining to reopening,       see 29 C.F.R.

§§ 404.988, 989, which the ALJ held did not apply, the ALJ found that claimant’s

present application for benefits was limited to the period commencing September

23, 1994. See Appellant’s App., Vol. I at 15. The ALJ then went on to consider

her present application without delving into the medical evidence relating to

claimant’s earlier application.

       In the first decision denying benefits, however, the ALJ considered and

discussed evidence from claimant’s treating physicians in the record.        See id.

at 169-70, 172-73. In that decision, the ALJ found that claimant’s testimony was

not consistent with the record as a whole and he did not credit it.      See id. at 172.

The ALJ was not required to reconsider the evidence underlying claimant’s first

application in the context of her second application. In the context of her second

application, the ALJ considered the relevant medical evidence in the record.

Accordingly, we are not persuaded by claimant’s allegations that both the

magistrate judge and ALJ erred in their treatment of the medical evidence.

       For the foregoing reasons, we AFFIRM.




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       Entered for the Court



       Michael R. Murphy
       Circuit Judge




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