                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          DEC 18 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    SHANNON GARDNER-RENFRO,

                Plaintiff-Appellant,

    v.                                                   No. 00-6077
                                                     (D.C. No. 98-CV-697)
    KENNETH S. APFEL, Commissioner,                      (W.D. Okla.)
    Social Security Administration,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before TACHA , EBEL , and BRISCOE , 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      This order and judgment is not binding precedent, except under the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 Shannon Gardner-Renfro appeals the district court’s affirmance of

the final decision of the Commissioner of Social Security denying her

applications for disability insurance benefits and supplemental security income.

We exercise jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291.

Because the Commissioner’s decision is supported by substantial evidence and no

legal errors occurred, we affirm.

       Plaintiff was born in 1970 and has a high school education plus vocational

training as a beautician. She has worked as a secretary, bank teller, tour guide,

and a cashier/general office clerk. She filed an application for disability benefits

on February 6, 1991, claiming she was unable to work after December 11, 1990,

due to the combined effects of chronic fatigue syndrome and dysthymia, a mild

form of depression. A hearing was held in December 1991 before an

administrative law judge (ALJ) who found that plaintiff was not disabled at step

four because she could still perform her past work.   See Williams v. Bowen , 844

F.2d 748, 750-52 (10th Cir. 1988) (outlining five-step sequential process for

determining disability). The Appeals Council affirmed, and plaintiff appealed in

federal district court.

       In 1994, the district court remanded plaintiff’s case for further

consideration, stating that:




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       On remand, the ALJ must proceed to step five to determine whether
       [plaintiff] can return to work elsewhere in the national economy. As
       part of the remand, the ALJ must order an examination of [plaintiff]
       by a consulting specialist in the area of Chronic Fatigue Syndrome.
       In addition, the ALJ must re-evaluate his examination of the evidence
       of Drs. Soto and Anderson[, plaintiff’s treating physicians,] in light
       of this opinion. The ALJ must also conduct a supplemental hearing
       where a Vocational Expert and the consulting specialist can testify,
       considering the whole of the newly found medical evidence and
       testimony, above.

Appellant’s App., Vol. II at 426-27.

       On remand, plaintiff was examined by Dr. Susan Dimick, a board certified

specialist in internal medicine. The ALJ conducted a second de novo

administrative hearing at which plaintiff, Dr. Dimick, and a vocational expert

(VE) testified. In her report, Dr. Dimick opined that plaintiff met none of the

criteria established by the Center for Disease Control for a diagnosis of chronic

fatigue syndrome.      Id. at 478. Dr. Dimick also opined that plaintiff had received

“very bizarre” and “very unconventional” and “unorthodox” treatment from her

treating physicians.    Id. at 472.

       Dr. Dimick performed a medical assessment of plaintiff’s ability to work-

related activities and concluded that plaintiff had no limitations in

lifting/carrying, standing/walking, or sitting; had no limitations in any of her

postural activities, such as climbing, stooping or crouching; no limitations in any

of her physical functions, such as reaching, handling, fingering, or pushing; and

had no environmental restrictions.     Id. at 481-82. Dr. Dimick did note that

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plaintiff exhibited possible signs of fibromyalgia or Raynauld’s syndrome, and

believed that plaintiff should undergo an immunological profile.     Id. at 478-79.

Following the hearing, but prior to the ALJ’s decision, plaintiff was also

examined by a consulting psychologist, Dr. Hickman, who found no evidence of

any organic mental disorder, very mild language-based learning disability and

undifferentiated somatoform disorder. Dr. Hickman opined that plaintiff’s ability

to make occupational, performance, and personal-social adjustments was good or

very good in all areas.

      The ALJ issued a decision in April 1996, concluding that plaintiff was not

disabled at step four. The Appeals Council remanded the case, however, because,

contrary to the district court’s remand order, the ALJ had failed to proceed to step

five. The Appeals Council directed the ALJ to proceed to step five, obtain further

medical evidence from a rheumatologist and, if warranted, obtain further

vocational evidence.   Id. at 565.

      On remand, plaintiff was examined by Dr. Raymond Dougherty, a board

certified specialist in internal medicine. Dr. Dougherty’s report indicated that

physical findings did not support plaintiff’s claims of fatigue, joint and muscle

pain. Id. at 584. He reported that plaintiff had a full range of motion of all joints

and completely normal findings of her back.      Id. at 585-88. He reported that

plaintiff described being able to perform light housework and was taking only


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Premarin and occasional pain and nerve medicine. In addition, Dr. James Lowell,

also a board certified specialist in internal medicine, reviewed plaintiff’s medical

records. The ALJ held a third de novo administrative hearing in October 1997 at

which plaintiff, Dr. Lowell and a VE testified.

      In November 1997, the ALJ concluded at step five of the sequential

analysis that plaintiff was not disabled because she retained the residual

functional capacity (RFC) to perform jobs existing in significant numbers in the

local and national economies. The Appeals Council affirmed, making it the

Commissioner’s final decision.

      On appeal, plaintiff argues that the ALJ (1) breached his duty to develop

the record by refusing to obtain a consultative examination by a specialist as

ordered by the district court and the Appeals Council; and (2) failed to apply

properly the step five burden of proof by substituting his opinion of the medical

evidence, relying instead on his credibility determination to support his step five

denial. In a detailed and thoughtful report and recommendation, the magistrate

judge addressed plaintiff’s issues and rejected her arguments. The district court

affirmed the decision of the Commissioner based upon the magistrate judge’s

report and recommendation. We have reviewed the record as a whole to

determine whether the Commissioner’s findings are supported by substantial




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evidence and whether he applied the correct legal standards.     See Castellano v.

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


                               Development of the Record

       An ALJ has a responsibility in the nonadversarial social security setting “to

ensure 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). This responsibility to

develop the record may require the ALJ to order a consultative examination.       See

Hawkins v. Chater , 113 F.3d 1162, 1166 (10th Cir. 1997).

       Plaintiff claims the ALJ erred in not obtaining a consultative examination

from a specialist in rheumatology, as recommended by Dr. Dimick and as ordered

by the Appeals Council. We conclude that the ALJ did not fail to comply with the

remand instructions of the district court or the Appeals Council. Following the

Appeals Council’s 1997 remand order, the ALJ explained that he was unable to

obtain a consultative examination from a rheumatologist through the disability

determination office in plaintiff’s state. Thus, he substituted a consultative

examination by a board certified internist, Dr. Dougherty, and called on

Dr. Lowell, also a board certified internist, to testify. The Appeals Council

concluded that the ALJ “did his utmost to follow the Council’s remand order and



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. . . that the consultative examination obtained and the further medical expert

testimony obtained, does satisfy the directives in the Council’s remand order.”

Appellant’s App. Vol. II at 337.

      Plaintiff contends that the district court directed that she be examined by a

rheumatology specialist. Appellant’s Br. at 25. This misrepresents the district

court’s remand order. The district court ordered that she be examined by a

specialist in chronic fatigue syndrome, not by a rheumatologist. The ALJ

appropriately complied with the district court’s remand order in obtaining

medical evaluations with respect to chronic fatigue syndrome. Dr. Lowell

testified that he did not know of a speciality in chronic fatigue syndrome and that

a specialist in internal medicine was qualified to evaluate chronic fatigue

syndrome. Plaintiff was evaluated by three internists, Drs. Dimick, Dougherty

and Lowell. Dr. Dougherty found no limitations in plaintiff’s exertional

activities, postural activities, physical functions, or environmental restrictions.

Dr. Dimick opined that plaintiff did not meet the criteria for chronic fatigue

syndrome and Dr. Lowell agreed with her conclusion.

      The ALJ’s inability to obtain a consultative examination from a

rheumatology specialist did not violate his duty to develop the record. As noted,

Dr. Dougherty determined that plaintiff did not have any restrictions in her

exertional activities, postural activities, physical functions, or environmental


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restrictions. This report was consistent with the medical opinions of Drs. Dimick

and Lowell. Dr. Lowell reviewed plaintiff’s medical record and testified that it

was complete and that there were not inconsistencies in the record requiring that

further medical evidence be obtained. The ALJ considered all of the medical

evidence, and concluded that further medical evaluations were not warranted.

“The ALJ does not have to exhaust every possible line of inquiry in an attempt to

pursue every potential line of questioning. The standard is one of reasonable

good judgment.”   Hawkins , 113 F.3d at 1168 (citation omitted).

      It is true that none of the internists performed any tests related to

fibromyalgia or Raynaud’s syndrome, as suggested by Dr. Dimick. However, an

individual is not considered to be disabled under the Social Security Act unless

her “physical or mental impairment or impairments are of such severity that [she]

is not only unable to do [her] previous work but cannot, considering [her] age,

education, and work experience, engage in any other kind of substantial gainful

work which exists in the national economy. . . .” 42 U.S.C. §§ 423(d)(2)(A),

1382c(a)(3)(B). Thus, as pointed out by the district court, “the operative question

for disability benefits under the Act is whether [p]laintiff experiences functional

limitations due to her impairments.” Appellant’s App., Vol. I at 21. Regardless

of whether plaintiff could have been diagnosed with a particular medical

condition, none of the consultative physicians found her to have functional


                                          -8-
impairments which precluded the performance of all work during the relevant

period. Under these circumstances, the ALJ was not required to seek further

medical opinions or consultative examinations.

       Plaintiff contends that even if the ALJ had good cause to not obtain a

consultative examination from a rheumatologist, he erred in failing to provide

Dr. Dougherty with all of plaintiff’s prior medical records. Our review of the

record shows that Dr. Dougherty’s report was prepared based on a thorough

examination of plaintiff and a sufficient understanding of her medical history to

render the report legally sufficient.   See id . Vol. II at 582-92. Moreover, the ALJ

also obtained a report from a third internist, Dr. Lowell, who did review all of

plaintiff’s medical records.    Id. at 398.

       Plaintiff contends that the tone of the ALJ’s questioning and his refusal to

follow the dictates of the Appeals Council and the district court demonstrate an

obvious bias against her and her counsel, preventing her from obtaining a full and

fair hearing. As noted above, the ALJ substantially complied with the appellate

remand orders. We conclude from our review of the record, read in full and in

context, that the ALJ provided plaintiff with a full and fair opportunity to develop

the record and did not exhibit bias against her.




                                              -9-
                               Step Five Determination

      Plaintiff next contends the ALJ failed to apply properly the step five burden

of proof by substituting his personal opinion for medical evidence and relying on

his determination that plaintiff’s subjective complaints lacked credibility. At step

five, the burden is on the agency to show that a claimant retains the RFC to

perform work that exists in the national economy.    Miller v. Chater , 99 F.3d 972,

975 (10th Cir. 1996). Plaintiff contends that, while the ALJ may have been

within his province to reject her testimony of disabling pain, this credibility

determination is not dispositive at step five because he failed to point to

affirmative evidence that she could work on a regular basis and maintain

employment. Plaintiff claims, erroneously, that the ALJ relied solely on the

testimony of Dr. Lowell in making his step five determination, which she claims

was insufficient because Dr. Lowell did not examine plaintiff or give an opinion

as to her functional limitations.

      Contrary to plaintiff’s contention, the record and the ALJ’s decision

demonstrate that the ALJ did not rely solely on Dr. Lowell’s opinion, but

considered the totality of the evidence presented in making his step five

determination. The ALJ’s determination that plaintiff had the RFC to perform

work is supported by numerous medical assessments of her physical ability to

work as well as assessments of her mental ability to work, and by the testimony of


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the VE, as fully detailed in the magistrate judge’s report and recommendation.

This is not a case in which the absence of evidence is made to serve as substantial

evidence to meet the Commissioner’s burden at step five,           cf. Thompson v.

Sullivan , 987 F.2d 1482, 1491 (10th Cir. 1993).

       Plaintiff also complains that the ALJ should have given more weight to

Dr. Dimick’s recommendation that she be evaluated by a rheumatologist than to

Dr. Lowell’s opinion that no further medical examination was necessary. The

ALJ has the duty to weigh evidence and resolve any evidentiary conflicts,

however, and we will not reweigh the evidence.            Rutledge v. Apfel , 230 F.3d

1172, 1174 (10th Cir. 2000). Plaintiff claims that the ALJ should at least have

explained why he rejected Dr. Dimick’s testimony that plaintiff would not be able

to work with her extreme fatigue and pain. This misstates Dr. Dimick’s

testimony, who stated in her report only that plaintiff       reported being physically

too fatigued and in too much pain to work. Appellant’s App., Vol. II at 480. The

ALJ properly evaluated plaintiff’s allegations of disabling fatigue and pain and

his credibility determination was supported by substantial evidence.




                                             -11-
      We conclude that the agency applied the correct legal standards and that

substantial evidence supports the agency’s decision. Thus, we AFFIRM the

judgment of the United States District Court for the Western District of Oklahoma.



                                                  Entered for the Court



                                                  David M. Ebel
                                                  Circuit Judge




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