Weiss v. Barnhart , 92 F. App'x 743 ( 2004 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 12 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
MICHELE T. WEISS,
Plaintiff-Appellant,
v. No. 03-2128
(D.C. No. CIV-01-1427 MV/ACT)
JO ANNE B. BARNHART, (D. N.M.)
Commissioner of the Social Security
Administration,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before EBEL , HENRY , and MURPHY , Circuit Judges.
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This order and judgment is not binding precedent, except under the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.
Claimant Michele T. Weiss appeals the district court’s order 1 affirming the
Commissioner’s determination to cease her social security disability benefits on
the ground that medical improvement in her condition terminated her eligibility.
She claims disability from lupus, major depression, dysthymic disorder, anxiety
and obsessive-compulsive behaviors. We affirm.
Ms. Weiss received benefits from December of 1979 until October of 1998
because she suffered from lupus and related conditions. After the Commissioner
notified her that she was no longer considered disabled, she requested
reconsideration and eventually received a hearing before an administrative law
judge (ALJ). She asserted that her mental disorders were disabling, especially in
conjunction with her continuing physical challenges associated with lupus. The
ALJ found that Ms. Weiss’ lupus was in remission and that her mental
impairments did not significantly erode her capacity to perform sedentary work.
Accordingly, the ALJ determined that her disability ceased in October of 1998.
On appeal, Ms. Weiss claims (1) the ALJ failed to assess properly the
severity of her mental impairments; (2) the ALJ should have obtained evidence
from a vocational expert, but instead, improperly applied the grid, 20 C.F.R.
Pt. 404, subpt. P, App. 2, rules 201.18 & 201.21; (3) the ALJ failed to give
controlling weight to her treating physician’s opinion; and (4) the ALJ
1
The parties proceeded before a magistrate judge. See 28 U.S.C. § 636.
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erroneously applied the medical improvement standard because the evidence did
not demonstrate that her medical condition had improved.
We review the Commissioner’s decision to determine whether it is
supported by substantial evidence and whether correct legal standards were
applied. Glenn v. Shalala, 21 F.3d 983, 984 (10th Cir. 1994). We may neither
reweigh the evidence nor substitute our judgment for that of the Commissioner.
Barnett v. Apfel, 231 F.3d 687, 689 (10th Cir. 2000). The Commissioner’s
decision to terminate benefits must be based on
a finding that the physical or mental impairment on the basis of
which such benefits are provided has ceased, does not exist, or is not
disabling [and must be] supported by –
(1) substantial evidence which demonstrates that –
(A) there has been any medical improvement in the
individual’s impairment or combination of impairments (other than
medical improvement which is not related to the individual’s ability
to work), and
(B) the individual is now able to engage in substantial gainful
activity . . . .
42 U.S.C. § 423(f). Medical improvement is defined as
any decrease in the medical severity of [the] impairment(s) which
was present at the time of the most recent favorable medical decision
that [the claimant was] disabled or continued to be disabled. A
determination that there has been a decrease in medical severity must
be based on changes (improvement) in the symptoms, signs and/or
laboratory findings associated with [the] impairment(s).
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20 C.F.R. § 404.1594(b)(1); accord Shepherd v. Apfel, 184 F.3d 1196, 1199
(10th Cir. 1999).
We have carefully reviewed the record on appeal, as well as the briefs
submitted by the parties. Applying the standards set out above, we affirm the
denial of benefits for the reasons stated in the magistrate judge’s January 17, 2003
recommendation, as adopted by the district court.
The judgment of the district court is AFFIRMED.
Entered for the Court
Michael R. Murphy
Circuit Judge
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