                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          MAY 19 1997
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    SHIRLEY A. WEST,

                Plaintiff-Appellant,

    v.                                                   No. 96-5231
                                                    (D.C. No. 95-CV-955-J)
    SHIRLEY S. CHATER,                                    (N.D. Okla.)
    Commissioner, Social Security
    Administration,

                Defendant-Appellee.




                             ORDER AND JUDGMENT *



Before BRORBY, BARRETT, and LUCERO, 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) and 10th Cir. R. 34.1.9. 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      This order and judgment is not binding precedent, except under the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 appeals the district court’s order affirming the denial of disability

income benefits by the Secretary. 1 Plaintiff applied for disability benefits in

October 1993, alleging she had been disabled since December 1992. Plaintiff

said she was unable to work because of low energy, stiff joints, headaches,

dizziness, leg cramps, chest pains, inability to deal with people, and inability to

handle stress. In what became the final decision of the Secretary, the

administrative law judge (ALJ) concluded that plaintiff had no severe

impairments other than residuals from coronary artery bypass surgery in 1990, and

that she could return to her past relevant work as either a doctor’s receptionist, a

doctor’s assistant, or a clerical worker, all of which were performed at either the

light or sedentary exertional level.

      On appeal, plaintiff does not challenge the ALJ’s assessment of her

physical ailments. She does, however, contend that the ALJ failed to properly

evaluate the existing evidence of her mental impairments and that he failed to

develop the record further by ordering a consultative psychological examination.

Plaintiff also argues that, in light of the ALJ’s improper evaluation of her mental



1
       Effective March 31, 1995, the functions of the Secretary of Health and
Human Services in social security cases were transferred to the Commissioner of
Social Security. P.L. No. 103-296. Although Shirley S. Chater, Commissioner of
Social Security, appears in the caption as the defendant in this action, we continue
to refer to the Secretary in the text, because she was the appropriate party at the
time of the underlying decision.

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impairments, the ALJ’s conclusion that she can return to her past relevant work is

not supported by substantial evidence. Finally, plaintiff contends that, in light of

the errors previously mentioned and the ALJ’s alleged inattention at the hearing,

plaintiff was deprived of a full and fair hearing on her claim for benefits.

      “We review the Secretary’s decision to determine whether her factual

findings are supported by substantial evidence in the record viewed as a whole

and whether she applied the correct legal standards.” Castellano v. Secretary of

Health & Human Servs., 26 F.3d 1027, 1028 (10th Cir. 1994). “We examine the

record as a whole, including whatever in the record fairly detracts from the

weight of the Secretary’s decision and, on that basis, determine if the

substantiality of the evidence test has been met.” Glenn v. Shalala, 21 F.3d 983,

984 (10th Cir. 1994) (quotation omitted). “If supported by substantial evidence,

the Secretary’s findings are conclusive and must be affirmed.” Sisco v. United

States Dep’t of Health & Human Servs., 10 F.3d 739, 741 (10th Cir. 1993).

      Based upon our review of the record, we conclude that substantial evidence

supports the ALJ’s determination that plaintiff could return to her past relevant

work as a clerical worker. We also conclude that plaintiff received a full and fair

hearing on her claims.

      At the hearing before the ALJ, plaintiff’s counsel asked the vocational

expert (VE) whether, if she credited all of plaintiff’s testimony about her


                                          -3-
impairments, plaintiff could perform any of her past relevant work. The VE’s

testimony reflected that giving full credit to plaintiff’s testimony about her mental

impairments would preclude only her past relevant work as a doctor’s assistant or

a doctor’s receptionist; it would not preclude her past relevant work as a clerical

worker. 2 Because the VE premised her testimony on the assumption that

everything plaintiff said was true and credible, remanding the action for the ALJ

to reconsider the evidence or to develop further medical evidence that might

support plaintiff’s allegations would serve no purpose.

      Plaintiff also argues that she did not receive a full and fair hearing. She

bases this contention on the ALJ’s alleged failure to properly evaluate her mental

impairment and on an isolated comment by the ALJ. After questioning plaintiff

for several minutes, plaintiff’s counsel concluded: “I have no further questions,”

to which the ALJ replied: “Is it my turn? I wasn’t awake.” Appellant’s App.,

Vol. II at 499. The transcript reflects that the ALJ then had the vocational expert

sworn in and began questioning her. The transcript does not indicate any break in

the proceedings, nor is there any indication that the ALJ was actually sleeping or




2
       The VE did testify that plaintiff would be unable to perform her past work
as a clerical worker if one fully credited her testimony about the stiffness in her
hands. The ALJ found that plaintiff’s testimony about her hands was not
supported by the medical evidence, however, and plaintiff does not contest this
finding on appeal.

                                         -4-
was otherwise inattentive to the proceedings. We, therefore, reject plaintiff’s

contention that she did not receive a full and fair hearing on her claims.

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

of Oklahoma is AFFIRMED.



                                                     Entered for the Court



                                                     Wade Brorby
                                                     Circuit Judge




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