Davis v. Barnhart , 85 F. App'x 170 ( 2004 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JAN 7 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
JIMMIE D. DAVIS,
Plaintiff-Appellant,
v. No. 03-7009
(D.C. No. 02-CV-15-P)
JO ANNE B. BARNHART, (E.D. Okla.)
Commissioner, Social Security
Administration,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before O’BRIEN and BALDOCK , Circuit Judges, and BRORBY , Senior Circuit
Judge.
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This order and judgment is not binding precedent, except under the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 seeks review of the district court’s order affirming the Social
Security Commissioner’s denial of his application for social security disability
and supplemental security income benefits. We have jurisdiction under 42 U.S.C.
§ 405(g) and 28 U.S.C. § 1291, and we affirm.
Plaintiff filed his benefits applications in October of 1998, alleging
disability as of October of 1995 due to fatigue, dizziness, nausea, shortness of
breath, right leg cramps, and back pain. Plaintiff is a younger individual, see 20
C.F.R. §§ 1563(c); 416.963(c), with about thirty hours of college education. His
past relevant work was primarily as an oil field electrician; he has also done odd
jobs.
Following a hearing, the administrative law judge (ALJ) determined, at step
five of the sequential disability evaluation, that plaintiff was not disabled. See
Williams v. Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988) (discussing sequential
evaluation). Specifically, the ALJ determined that plaintiff retains the residual
functional capacity (RFC) to perform a wide range of light work, subject to
certain limitations, and that occupations exist in the regional or national economy
that plaintiff can perform regardless of his impairments. Aplt. App. Vol. 2 at 17.
The ALJ further found plaintiff had no medically determinable mental
impairments. Id. at 18. We review the ALJ’s decision only to determine whether
his factual findings are supported by substantial evidence and whether he applied
-2-
the correct legal standards. See Watkins v. Barnhart , No. 03-7046, ___ F.3d___,
2003 WL 22855009, at *1 (10th Cir. Dec. 2, 2003).
The medical evidence reflects that plaintiff was injured in an accident on an
off-shore oil rig in 1994. Conservative treatment for this injury proved
ineffective, and in October of 1996 he underwent a right L5-S1 laminectomy and
discectomy. In March of 1997, his treating physician, Dr. Boone, noted that
plaintiff had done well since the surgery, Aplt. App. at 132, had realized “good
resolution of his radicular pain,” and had reached a point of maximum medical
improvement. Id. Dr. Boone reported that plaintiff had “good motion strength
bilaterally,” with “negative neurotensin signs” and nearly complete spinal range
of motion. Dr. Boone further noted plaintiff continued to have some mechanical
back pain and occasional posterior thigh and calf pain, but that this was of an
“intermittent nature.” Id. at 133. Dr. Boone further rated plaintiff as permanently
partially impaired related to the surgically treated disc pathology (10%), with an
additional 1% due to disc pathology not addressed surgically. Id. Plaintiff was
released with the medical recommendation that he “pursue light to light-medium
work not to involve a lot of repetitive lifting more than 25 to 30 pounds and to
avoid a lot of repetitive bending, stooping, climbing or squatting.” Id. Dr. Boone
further suggested plaintiff avoid “positions which involve a lot of prolonged
-3-
standing for more than one hour without [the] ability to rest or change positions.”
Id.The ALJ further considered clinical progress notes from 1999, which
reflect treatment for chronic back pain, sciatia, somatic dysfunction of the
thoracic and lumbar spines. Id. at 14; 173-77. The ALJ also considered
plaintiff’s prescribed and over-the-counter pain medications. Id. at 15. Finally,
the ALJ indicated he had carefully reviewed each exhibit and had considered
plaintiff’s subjective complaints of pain under the appropriate criteria. See id.
at 14-15.
In district court and on appeal, plaintiff generally challenged the
Commissioner’s decision as neither based on substantial evidence nor issued in
accordance with correct legal standards. He further lists several specific issues
regarding the ALJ’s decision.
First, plaintiff argues the ALJ mistook relevant facts and overlooked
relevant evidence. We disagree. To the extent plaintiff claims error in the ALJ’s
decisional statement that Dr. Boone found the back surgery “achieved good
resolution of [plaintiff’s] pain,” Aplt. Br. at 7-8, the ALJ in fact also quoted
directly Dr. Boone’s statement that plaintiff had achieved “good resolution of his
radicular pain.” Aplt. App, Vol. 2 at 14. Plaintiff’s further suggestion that
Dr. Boone would “see and show the results of the surgery in the most positive
-4-
light,” Aplt. Br. at 8, is both speculative and unsupported by the record.
Plaintiff’s challenge to the ALJ’s characterization of Dr. Hillboe’s 1995 finding
of “mildly severe degenerative disc changes” is likewise without merit; in
addition, Dr. Hillboe’s determination predates Dr. Boone’s back surgery.
Plaintiff’s recitation of certain clinical findings and diagnoses not mentioned by
the ALJ does not support his claim the ALJ did not consider this evidence.
Clifton v. Chater , 79 F.3d 1007, 1009-10 (10th Cir. 1996) (holding ALJ must
consider all evidence, but need not discuss each piece). Rather, plaintiff is
suggesting that this court reweigh the evidence, which, of course, we cannot do.
See Kelley v. Chater , 62 F.3d 335, 337 (10th Cir. 1995) (stating we will not
reweigh evidence).
Next, plaintiff contends that ALJ erred by substituting his own medical
knowledge for that of plaintiff’s physicians and psychologists. Aplt. Br. at 11-15.
Within this category, however, plaintiff argues only that the ALJ erred in failing
to order a psychological consultative examination and in completing a psychiatric
review form himself. We disagree. Even assuming that plaintiff’s attorney timely
requested a psychological consultative examination, there is nothing in the
medical record to suggest the need for such an examination. See generally Diaz
v. Sec’y of Health & Human Servs. , 898 F.2d 774, 778 (10th Cir. 1990) (stating
Secretary has broad latitude in ordering consultative examination); Hawkins v.
-5-
Chater , 113 F.3d 1162, 1168 (10th Cir. 1997) (noting consultative examination
necessary only when plaintiff presents evidence sufficient to raise suspicion of
nonexertional impairment) (citing Brock v. Chater , 84 F.3d 726, 728 (5th Cir.
1996)).
Plaintiff further contends that the ALJ failed to support his credibility
finding with substantial evidence. Again, we disagree. The ALJ fully considered
plaintiff’s testimony, particularly that addressing his daily activities. Plaintiff
fails to show where in the record there exists contradictory evidence. “Credibility
determinations are peculiarly the province of the finder of fact, and we will not
upset such determinations when supported by substantial evidence.” Kepler v.
Chater , 68 F.3d 387, 391 (10th Cir. 1995) (quotation omitted).
For his fourth issue, plaintiff contends the ALJ failed to meet the burden
that shifts from plaintiff to the Commissioner at step five. After the ALJ
determined plaintiff could not do his past relevant work, the ALJ utilized the
expertise of a vocational expert (VE) to determine whether, given plaintiff’s
physical limitations and the other relevant factors, plaintiff could nonetheless
perform a sufficient range of jobs within the light work category. An ALJ is
obligated to propound questions to the VE incorporating the plaintiff’s limitations
as supported by the evidence. See Evans v. Chater , 55 F.3d 530, 532 (10th Cir.
-6-
1995) (holding ALJ must include in hypothetical inquiry only impairments
supported by record). The questions asked here satisfied this standard.
As his fifth issue, plaintiff contends the ALJ erred by failing to properly
develop psychological evidence. Aplt. Br. at 20-22. For the reasons previously
stated, this argument is without merit.
Plaintiff next argues that the ALJ erred in “failing to make findings of fact
concerning limitations associated with pain or psychological problems.” Id. at 23.
Other than this statement, however, plaintiff makes no argument, nor does he cite
error by the ALJ or the district court. And, finally, plaintiff claims this case
should be remanded for an immediate award of benefits. Because we uphold the
Commissioner’s determination, this argument must fail.
We conclude that the Commissioner’s decision is amply supported by
substantial evidence and that correct legal standards were applied.
AFFIRMED.
Entered for the Court
Wade Brorby
Senior Circuit Judge
-7-