Salazar v. Astrue , 224 F. App'x 839 ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
May 22, 2007
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
JOSEPH L. SALAZAR,
Plaintiff-Appellant,
v. No. 06-1236
(D.C. No. 02-cv-1531-JLK-M JW )
M ICH AEL J. ASTRU E, * (D . Colo.)
Commissioner of Social Security
Administration,
Defendant-Appellee.
OR D ER AND JUDGM ENT **
Before BR ISC OE, SE YM OU R, and A ND ER SO N, Circuit Judges.
Plaintiff Joseph L. Salazar appeals from the district court’s judgment
affirming the final decision of the Commissioner of Social Security denying him
disability insurance benefits (DIB) and supplemental security income (SSI)
*
Pursuant to Fed. R. App. P. 43(c)(2), M ichael J. Astrue is substituted for
Jo Anne B. Barnhart as appellee in this action.
**
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
benefits under Title II and Title XVI of the Social Security Act. W e have
jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. §§ 405(g) and 1383(c)(3).
After “review[ing] the Commissioner’s decision to determine whether his factual
findings were supported by substantial evidence in light of the entire record and
to determine whether he applied the correct legal standards,” Hinkle v. Apfel,
132 F.3d 1349, 1351 (10th Cir. 1997), we affirm for substantially the same
reasons stated in the district court’s memorandum decision.
I. Background
M r. Salazar was born in 1946. He completed high school, although much
of his education was in special education classes, and worked in manual-labor
occupations since he was twenty. In 1992, he was involved in a work-related car
accident and has not worked since. He filed applications for D IB and SSI in
October 1993 claiming low er back and left knee problems. His applications were
denied at all levels of administrative review, and he appealed to the district court.
At the Commissioner’s request, the district court remanded the matter for further
administrative proceedings, including further development of the evidence and a
new hearing.
On remand, an administrative law judge (ALJ) conducted the new hearing
and received testimony from M r. Salazar and a vocational expert (VE). In his
decision, the ALJ applied the five-step sequential evaluation process set forth in
20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4). See Williams v. Bowen, 844 F.2d
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748, 750-52 (10th Cir. 1988) (explaining five-step process). At step one, the ALJ
found that M r. Salazar had not engaged in any substantial gainful activity since
his alleged onset date. At step two, the ALJ found that M r. Salazar has a number
of impairments that are severe: “Dysthymia, decreased intellectual functioning, a
personality disorder, chronic lumbar strain, degenerative disc disease of the
lumbar spine, myofascial pain disorder[,] and . . . a right upper extremity injury.”
R., Vol. I at 267. But the ALJ found at step three that none of the impairments
were severe enough to meet or equal one of the impairments listed in 20 C.F.R.,
Part 404, Subpart P, Appendix 1.
Proceeding to step four, the ALJ found that the objective medical evidence
did not support M r. Salazar’s subjective complaints to the extent he alleged, and
that there was substantial evidence that he tended to magnify his symptoms. The
ALJ found that M r. Salazar retains the residual functional capacity (RFC) to
perform the physical and nonexertional requirements of medium work, that he is
limited to no more than occasional climbing, stooping, kneeling, crouching,
crawling, or reaching overhead, and that “[m]entally, he is limited to unskilled
work activity involving simple and routine tasks and without frequent
interpersonal contacts.” R., Vol. I at 276, ¶ 5. He further observed that
M r. Salazar’s nonexertional limitations reduced his capacity to perform the full
range of medium work, but not significantly. See id. at 277, ¶¶ 7, 12.
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Based on this RFC, the ALJ determined that M r. Salazar is unable to
perform his past relevant work. Taking into consideration M r. Salazar’s age
(forty-six at his onset date and fifty-three at the time of the decision), his high
school education, and his lack of transferable skills, the ALJ determined that the
M edical Vocational Guidelines, 20 C.F.R., Part 404, Subpart P, Appendix 2 (the
“grids”), would direct a step-five conclusion that M r. Salazar is not disabled, but
because his nonexertional limitations could erode the occupational base, the grids
could only be used as a framework for making a decision. Using the grids as a
framew ork and considering the V E’s testimony that, despite M r. Salazar’s
impaired intellectual functioning and poor reading skills, he could perform a
number of unskilled light and sedentary jobs that exist in significant numbers in
the regional and national economies, the ALJ found M r. Salazar not disabled. See
R., Vol. I at 276.
The Appeals Council denied M r. Salazar’s appeal, and it also rejected his
request to consider evidence of surgical treatment he received after the date of the
ALJ’s decision on the ground that the treatment was due to an exacerbation of
M r. Salazar’s back condition that occurred more than two months after the ALJ’s
decision and therefore did not relate to the relevant time period. M r. Salazar then
appealed to the district court, which affirmed the Commissioner’s decision. This
appeal followed.
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II. Discussion
On appeal, M r. Salazar argues that: (i) the Appeals Council erred in
rejecting the new evidence; (ii) the A LJ did not properly evaluate M r. Salazar’s
subjective complaints of pain under Luna v. Bowen, 834 F.2d 161 (10th Cir.
1987); (iii) the ALJ improperly evaluated his depression; (iv) the ALJ failed to
consider all of his impairments in combination; (v) the ALJ improperly assessed
his credibility; (vi) the ALJ improperly evaluated the VE’s testimony on
cross-examination; and (vii) the ALJ failed to consider the fact that M r. Salazar
was approaching age fifty-five on the date last insured. These arguments are
substantially identical to those he raised in the district court. W e have reviewed
the record, the parties’ briefs, and the governing law, and conclude that
M r. Salazar has not identified any reversible error in this case. Accordingly, w e
affirm the district court’s judgment for substantially the same reasons stated in
the district court’s memorandum decision filed M arch 29, 2006.
The judgment of the district court is AFFIRMED.
Entered for the Court
Stephen H. Anderson
Circuit Judge
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