                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           NOV 4 2002
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    MICHAEL LIESSMANN,

                Plaintiff - Appellant,

    v.                                                    No. 02-2070
                                                (D.C. No. CIV-99-1474 JC/JHG)
    JO ANNE B. BARNHART,                               (D. New Mexico)
    Commissioner, Social Security
    Administration,

                Defendant - Appellee.


                             ORDER AND JUDGMENT           *




Before BRISCOE , Circuit Judge, BRORBY , Senior Circuit Judge, and        HARTZ ,
Circuit Judge.


         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 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      This order and judgment is not binding precedent, except under the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.
      Shannon Rutledge’s surviving spouse appeals from an order of the district

court affirming an order by the Commissioner of the Social Security

Administration denying disability benefits to her. She sought those benefits under

Title II and Title XVI of the Social Security Act. On appeal, she argues that the

Commissioner failed to properly assess her mental impairment, by, among other

things, disregarding the opinions of her treating and consulting physicians and by

understating the extent to which her impairment barred her from employment.

Because we conclude that substantial evidence supports the Commissioner’s

decision, and because that decision was reached in accord with relevant legal

standards, we must affirm.

A.    Background

      Claimant Shannon Rutledge filed her application for benefits in May of

1995, two months after she was admitted to a hospital in the wake of an attempted

suicide. She alleged that she was disabled due to a severe and chronic depression,

a condition exacerbated by a series of physical impairments, including seizures,

an anxiety disorder, and pain in her back and left leg. Tragically, in May of 2002,

more than five years after the ALJ issued his ruling, Ms. Rutledge committed

suicide. Her surviving spouse, Michael Liessmann, has been substituted as a

party to this appeal.




                                        -2-
      After a hearing at which Ms. Rutledge, her mother, and a vocational expert

testified, the administrative law judge (ALJ) found that Ms. Rutledge suffered

from the severe impairments of major depression, anxiety disorder, and a seizure

disorder. Adhering to the five step sequential process required to assess claims of

disability, see 20 C. F. R. §§ 404.1520; 416.920, he also found that this

combination of conditions and symptoms prevented her from returning to her past

work as an office manager. At step five in the sequential process, however, the

ALJ determined that Ms. Rutledge retained the residual functional capacity to

perform certain light duty work, including security/surveillance monitor, a

highway flagger on a road construction crew, or some limited clerical work, and

thus he found that she was not disabled for purposes of obtaining social security

benefits.

      Ms. Rutledge’s medical history and course of treatment is well documented

by the parties, and need not be repeated here.

B.    Legal Standards Governing Review

      Our review is limited to two questions: 1) does substantial evidence support

the Commissioner’s decision?; and 2) does that decision comport with governing

legal standards? In reviewing the ALJ’s ruling, we may neither “reweigh the

evidence nor substitute our judgment for the [Commissioner’s].”    Glass v.

Shalala , 43 F.3d 1392, 1395 (10th Cir. 1994). If supported by substantial


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evidence, the Commissioner’s findings must be affirmed. 42 U.S.C. § 405(g).

“Substantial evidence is more than a scintilla, less than a preponderance, and is

such relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” Sisco v. United States Dep’t of Health & Humans Servs.     , 10 F.3d

739, 741 (10th Cir. 1993).

C.     The ALJ’s Decision

       The ALJ did not dispute that Ms. Rutledge suffered from a severe

depression, coupled with an anxiety disorder triggered by stress and interactions

with the public. But after a lengthy summary of the medical record, he

determined that she made significant progress after her initial hospitalization in

March of 1995 and her readmission one month later. Her treatment records,

according to the ALJ, showed a fairly steady, if not uninterrupted, trend toward

improvement, especially after Ms. Rutledge’s medications were properly adjusted.

By August of 1995, Dr. Fury, one of the treating physicians, reported that Ms.

Rutledge was “improving on her medications.” Aplt. App., Vol. III at 392. In

December of that year, the doctor noted that Ms. Rutledge was “doing quite well

and is getting A’s in school.”   Id. at 389. (Ms. Rutledge was enrolled in a

vocational training program, where she was learning electronics.) She “look[ed]

better than I have seen her since she started coming here.”   Id. Though she

suffered a two-week bout of depression in August 1996, Dr. Fury observed that


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she was nevertheless alert, oriented, and cooperative, and she recommended that

Ms. Rutledge continue with her medications and counseling.

      The ALJ bolstered his account of Ms. Rutledge’s improved medical

condition by noting strengths in other aspects of her life. For instance, he

observed that she not only attended school daily, but she performed quite well

there. Commenting on her enrollment in a difficult electronics class, he found

that her performance at school contradicted her claim that she was precluded from

working because of diminished concentration and memory abilities. School

attendance, while not conclusive, “may be considered by the [Commissioner],

along with medical testimony, in determining the right of a claimant to disability

payments under the Social Security Act.”     Gay v. Sullivan , 986 F.2d 1336, 1339

(10th Cir. 1993) (quotation omitted).

      Similarly, the ALJ found that Ms. Rutledge’s daily activities demonstrated

her capacity to cope adequately with her mental impairments. She gardened,

baked, fished, played golf, drove a car, exercised frequently, and shopped.

Additionally, as the ALJ noted, Ms. Rutledge married in June of 1996, and for

much of the relevant time period she attended weekly sessions of a support group,

both of which reflected a degree of social isolation less marked than that urged by

Ms. Rutledge.




                                           -5-
      At the same time, the ALJ discounted the extent to which Ms. Rutledge

claimed to suffer uncontrollable bouts of decompensation (crying jags or rage),

because none of her medical providers or counselors documented that these events

occurred regularly (though at least one did mention that she had problems with

emotional extremes) and because they did not occur in school. Likewise, as

indicated above, he questioned Ms. Rutledge’s assertion that her concentration

and memory were impaired, again noting a lack of any medical documentation of

these limitations.

      Turning to Ms. Rutledge’s specific work capabilities, the ALJ concluded

that her medical impairments (those that he accepted as supported by the medical

record) did not preclude her from all employment. Recognizing that she could

only work in a low stress environment, one that did not require her to interact

with the public, he found she was able to perform the occupations of surveillance

monitor, highway flagger, and clerical work not involving public interaction. He

determined that all of these jobs exist in significant numbers in the regional and

national economy. His conclusion in this regard flowed from testimony at the

hearing given by a vocational expert. The expert confirmed that these jobs

satisfied the limitations on Ms. Rutledge’s residual functional capacity imposed

by the ALJ; that is, they are relatively free from stress and do not require much

interaction with people.


                                         -6-
      The ALJ, however, rejected answers to certain questions by the vocational

expert given on cross-examination, answers that effectively eliminated the

occupations identified as suitable for Ms. Rutledge. Those questions, posed by

Ms. Rutledge’s lawyer, asked the expert to assume that Ms. Rutledge’s testimony

was true, testimony concerning what she reported were limitations on her

concentration abilities as well as pain in her back and left leg. The ALJ ruled that

her testimony on these points was not credible, because it was unsupported by the

medical record. He therefore refused to consider the expert’s testimony on

cross-examination.

D.    Legal Analysis

      We conclude that the ALJ properly held that the Commissioner met her

burden at step five in the sequential process. We believe that the medical record,

the evidence concerning Ms. Rutledge’s daily activities and her performance at

school, and the testimony of the vocational expert show that Ms. Rutledge could

perform one or more of the occupations cited by the ALJ in his ruling. In

addition, we conclude that the ALJ did not err in refusing to accept testimony

given by the vocational expert on cross-examination. Consequently, we believe

that the evidence marshaled by the ALJ, though certainly not overwhelming,

constitutes substantial evidence in support of his decision. Unable to substitute

our judgment for his, we cannot disturb that ruling.


                                         -7-
      We acknowledge, as did the ALJ, that several of the physicians who

examined or evaluated Ms. Rutledge labeled her “disabled.” Yet not a single

physician stated that she was unable to work for a continuous twelve-month-

period after the onset of her impairment. Such an assertion is the critical element

of a disability claim. To establish eligibility to benefits, a claimant must show

she is unable to work because of a medically determined impairment that lasts

continuously for at least twelve months. 42 U.S.C. § 423(d)(1)(A) (defining

“disability”).

      Our observation that no physician reported that Ms. Rutledge’s impairment

met the above condition does not conflict with the opinion of Dr. Hutchinson, one

of the Commissioner’s consulting psychiatrists. Granted, he said that “[a]t this

level of depression, it is difficult to see how [Ms. Rutledge] could be able to

participate in competitive employment.” Aplt. App., Vol. III at 374. But this

statement falls short of establishing, as it must to trigger an entitlement to

benefits, that Ms. Rutledge was unable to work for a continuous twelve-month

period.

      We similarly find no fault with the ALJ’s stated reasons for discounting

various other opinions given by several of Ms. Rutledge’s treating and consulting

physicians. Dr. Funk, who saw Ms. Rutledge for only one hour, admitted that he

had no test data and thus could only base his opinion about Ms. Rutledge’s


                                          -8-
disability on her “self report.”    Id. at 433. Likewise, with respect to the conflict

in the medical record concerning whether Ms. Rutledge suffered from multiple

sclerosis, we cannot say the ALJ erred in agreeing with the specialist,

Dr. Burnbaum, who reported “there isn’t anything on my examination today to

suggest Multiple Sclerosis.”       Id. at 432. The governing regulations generally

require the ALJ to “give more weight to the opinion of a specialist about medical

issues related to his or her area of specialty than to the opinion of a source who is

not a specialist.” 20 C. F. R. §§ 404.1527(d)(5); 416.927(d)(5).

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

Mexico is AFFIRMED. Ms. Rutledge’s motion for remand is DENIED. The

motion to supplement the record with her death certificate is GRANTED.



                                                        Entered for the Court



                                                        Wade Brorby
                                                        Senior Circuit Judge




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