Parris v. Barnhart , 99 F. App'x 858 ( 2004 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 26 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
BOBBY OLEN PARRIS,
Plaintiff-Appellant,
v. No. 03-6292
(D.C. No. CV-02-533-A)
JO ANNE B. BARNHART, (W.D. Okla.)
Commissioner, Social Security
Administration,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before KELLY , Circuit Judge, BRORBY , Senior Circuit Judge, and BRISCOE ,
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This order and judgment is not binding precedent, except under the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.
Plaintiff Bobby Olen Parris, proceeding pro se, appeals from an order of the
district court affirming the Commissioner’s determination that he is not entitled to
Social Security disability benefits. We affirm.
We review the Commissioner’s decision to determine whether her factual
findings were supported by substantial evidence in light of the entire record and
to determine whether she applied the correct legal standards. See Castellano v.
Sec’y of Health & Human Servs., 26 F.3d 1027, 1028 (10th Cir. 1994).
“Substantial evidence is such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Id. (quotations omitted). In the course of
our review, we may “neither reweigh the evidence nor substitute our judgment for
that of the agency.” Casias v. Sec’y of Health & Human Servs., 933 F.2d 799,
800 (10th Cir. 1991).
Mr. Parris alleged disability as of June 6, 1983. Thus, the period of
adjudication is from June 6, 1983, through December 31, 1988, the date he was
last insured. Mr. Parris alleged he was disabled due to severe pain and heart,
gall bladder, and pancreatic problems resulting from a 1969 automobile accident.
The administrative law judge (ALJ) determined that Mr. Parris was not disabled
at step two of the five-step sequential process, see Williams v. Bowen, 844 F.2d
748, 750-52 (10th Cir. 1988), as he had no severe impairments.
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On appeal, Mr. Parris argues that he is disabled. In his reply brief, he
further argues that he did not receive a proper hearing before the IJ because the
hearing did not last a full hour, as a result of which he was not able to present all
the medical evidence. He also contends that the Commissioner fabricated
information, and the ALJ did not permit him to submit all of his medical records.
At step two, the claimant bears the burden to demonstrate an impairment or
combination of impairments that significantly limits his ability to do basic work
activities. 1
See Bowen v. Yuckert , 482 U.S. 137, 146 n.5 (1987). The step two
severity determination “is based on medical factors alone, and . . . does not
include consideration of such vocational factors as age, education, and work
experience.” Williams , 844 F.2d at 750; 20 C.F.R. § 404.1520(c). Instead, “the
claimant must make a threshold showing that his medically determinable
impairment or combination of impairments significantly limits his ability to do
basic work activities . . . .” Williams , 844 F.2d at 751. While we have
characterized this showing as “de minimis,” see Hawkins v. Chater , 113 F.3d
1162, 1169 (10th Cir. 1997) (quotation omitted), the mere presence of a condition
1
Basic work activities are “the abilities and aptitudes necessary to do most
jobs.” 20 C.F.R. § 404.1521(b). Examples of basic work activities include
“walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or
handling;” “seeing, hearing, and speaking;” “[u]nderstanding, carrying out, and
remembering simple instructions;” “[u]se of judgment;” “[r]esponding
appropriately to supervision, co-workers and usual work situations;” and
“[d]ealing with changes in a routine work setting.” I d.
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or ailment documented in the record is not sufficient to prove that the plaintiff is
significantly limited in the ability to do basic work activities, see Hinkle v. Apfel ,
132 F.3d 1349, 1352 (10th Cir. 1997).
Mr. Parris was represented by counsel at the hearing before the ALJ.
Counsel and the ALJ discussed whether more medical evidence was available,
which should be admitted into the record. As a result, the ALJ gave Mr. Parris
thirty days to supplement the record with any additional medical evidence. “[T]he
ALJ should ordinarily be entitled to rely on the claimant’s counsel to structure
and present claimant’s case in a way that the claimant’s claims are adequately
explored” and “may ordinarily require counsel to identify the issue or issues
requiring further development.” Hawkins , 113 F.3d at 1167. On appeal,
Mr. Parris has failed to identify any evidence that he claims the ALJ should have
considered, but was not submitted.
The ALJ determined that Mr. Parris’s testimony was not fully credible
because the record did not contain objective findings supporting his complaints.
Our review of the record supports the ALJ’s determination.
The record does not contain any medical evidence which supports
Mr. Parris’s claims. Only his own statements supported his claim that he has
severe pain for which he uses narcotic pain relievers prescribed by his treating
physician. There is no medical evidence to support his pain at the severity level
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he alleges. A claimant’s statements alone are insufficient to establish the
existence of an impairment. 20 C.F.R. § 404.1528(a).
The record shows Mr. Parris received medical attention during the relevant
time period, but each was resolved by treatment. See, e.g. , R. tab. 22 at 189
(probable hyperventilation in 1986); 190 (prostatitis in 1974, left flank pain in
1984); 191 (migraine in 1973). None of these or other notations of medical
treatment indicate a severe impairment as required for step two.
The judgment of the district court is AFFIRMED.
Entered for the Court
Wade Brorby
Senior Circuit Judge
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