Walker v. Chater ( 1997 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 19 1997
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
MARIE A. WALKER,
Plaintiff-Appellant,
v. No. 96-5134
(D.C. No. 95-C-354-M)
SHIRLEY S. CHATER, (N.D. Okla)
Commissioner, Social Security
Administration, *
Defendant-Appellee.
ORDER AND JUDGMENT **
Before TACHA, EBEL, and BRISCOE, Circuit Judges.
*
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. In the text we continue to refer to the
Secretary because she was the appropriate party at the time of the underlying
decision.
**
This order and judgment is not binding precedent, except under the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.
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.
Claimant Marie A. Walker appeals from the order of the district court
which affirmed the final decision of the Secretary of the Social Security
Administration denying her request for disability benefits. The sole issue
presented for our review is whether, under the circumstances of this case, the ALJ
erred in failing to obtain a consultative examination to ascertain the current state
of claimant’s vision loss.
Our jurisdiction arises under 28 U.S.C. § 1291. In reviewing the
Secretary’s decision, we determine whether the factual findings are supported by
substantial evidence and whether the Secretary applied the correct legal standards.
See Miller v. Chater, 99 F.3d 972, 975-76 (10th Cir. 1996). Substantial evidence
is “adequate relevant evidence that a reasonable mind might accept to support a
conclusion.” Kepler v. Chater, 68 F.3d 387, 388-89 (10th Cir. 1995). We do not
reweigh the evidence or substitute our discretion for that of the Secretary. Kelley
v. Chater, 62 F.3d 335, 337 (10th Cir. 1995).
Claimant’s application, filed March 4, 1993, was denied initially and on
reconsideration. At the administrative hearing conducted on July 20, 1994 by the
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Administrative Law Judge (ALJ), Claimant testified that she could not work
because of impaired eyesight, severe problems with her feet, and arthritic pain
and weakness in her hands. She stated that she could not see well out of either
eye and that the right eye “had an infection in it [in 1992] and it was iritis,” 1
Appellant’s App. Vol. II at 171, and the “left eye has gotten blurred pretty bad
since I had the iritis,” id. Her testimony was that she could not see well enough
to clean and cook, read a newspaper, or watch television.
However, the objective medical evidence does not support claimant’s
testimony as to the extent of her visual impairment. 2 Claimant was treated for
acute iritis from May 29, 1992 to December 14, 1992. The last report of Dr.
Joe D. Cope, her treating optometrist, dated May 11, 1993, stated that claimant
1
We note, as did the district court, that no evidence in the record links the
iritis with claimant’s degenerative diabetic condition. Iritis is “an inflammation
of the iris.” Stedman’s Medical Dictionary 802 (25th ed. 1990). Claimant’s
medical records also use the term “uveitis,” which is an “inflammation of the
uveal tract: iris, ciliary body and choroid.” Id. at 1678.
2
On appeal, claimant challenges only the ALJ’s findings concerning her
visual impairment, although she describes additional impairments. We note that
the objective medical evidence does not bear out her testimony on the extent of
these impairments, either. At the hearing, claimant stated that she could only lift
2 to 3 pounds. The records reflect that her symptoms of weakness and pain in her
hands were diagnosed and treated as probable osteoarthritis. However, X-rays
failed to show evidence of fracture, dislocation or significant degenerative
change. As to the foot problems that allegedly prevented her from standing more
than 35 minutes or walking more than one-half a block, she was treated by a
podiatrist in February and March of 1994 for a plantar ulcer on her left foot. The
records indicate that the prognosis was “Very good with Orthotics and Orthopedic
Shoes.” Appellant’s App., Vol. II at 139.
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was “doing quite niecly [sic] now” and that her vision had stabilized at 20/100 in
her right eye and 20/25 in her left eye, although the condition had a tendency to
recur. Id. at 91. Dr. Cope opined that claimant’s performance would be limited
by the decrease in binocularity, but that she should be able to perform certain
tasks well so long as her left eye retained its visual acuity. Id. On November 4,
1993, Dr. Steve P. Sanders, claimant’s treating physician, assessed her eye
problems and noted that the iritis was stable. Id. at 101. Claimant herself told
Dr. Sanders in November 1992 that her vision had “almost completely cleared
up,” id. at 111, and in April 1993 that, although she still had difficulties with
vision in her right eye, it appeared to be “improving all the time,” id. at 104.
The ALJ credited the objective medical evidence on claimant’s visual
acuity, along with claimant’s earlier statements to Dr. Sanders, and discounted the
subjective statements made at the hearing. He found that, although claimant’s
residual functional capacity to perform the full range of sedentary and light work
of an unskilled nature was reduced by a lack of close binocular vision, she could
still perform a significant number of jobs in the national economy. The ALJ
denied benefits at step five of the five-part sequential evaluation process for
determining disability. See Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir.
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1988) (discussing the five steps). This decision was upheld by the Appeals
Council and the district court. 3
The record supports the ALJ’s evaluation of claimant’s visual capacity.
Both the objective medical evidence and claimant’s own reports to her medical
providers indicate that she had sufficient vision to perform basic work activities.
The only evidence to the contrary is claimant’s testimony, which the ALJ
disbelieved. “Credibility determinations are peculiarly the province of the finder
of fact.” Diaz v. Secretary of Health & Human Servs., 898 F.2d 774, 777 (10th
Cir. 1990). 4
Contrary to claimant’s contentions, the ALJ was not required to order a
consultative examination regarding the current extent of her visual impairment.
The ALJ has broad latitude in ordering a consultative examination. Id. at 778. A
consultative examination is required only if the record establishes that such an
examination is necessary to enable the ALJ to make the disability decision. See
Turner v. Califano, 563 F.2d 669, 671 (5th Cir. 1977).
3
The parties consented to disposition of this case by the magistrate judge.
See 28 U.S.C. § 636(c)(3).
4
Claimant asserts that the ALJ improperly assessed her credibility and
discounted her testimony because the ALJ failed to link her conclusions to the
evidence. The assertion is not well taken. The ALJ considered the relevant
factors and properly identified the evidence on which he relied in reaching his
conclusions. See Kepler v. Chater, 68 F.3d at 391 (requiring express findings on
an credibility determination, with reference to relevant evidence).
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In this case, the record on the nature and severity of claimant’s vision loss
was adequate for the disability decision. It contained medical reports on the
status of her condition not only from the twelve months prior to the application
date of March 4, 1993, but also from Dr. Cope as of May 1993 and Dr. Sanders as
of November 1993. See 20 C.F.R. § 404.1512(d) (requiring a medical history for
at least the twelve months preceding the date of the application); see also
Kendrick v. Shalala, 998 F.2d 455, 456-57 (7th Cir. 1993) (commenting on the
difficulty of having a “complete” record as “one may always obtain another
medical examination, seek the views of one more consultant, wait six months to
see whether the claimant’s condition changes, and so on.”). Claimant’s testimony
that the vision in her left eye had blurred since she had iritis does not change our
analysis. We find no error in the ALJ’s not obtaining a consultative examination.
We have carefully reviewed the record and have considered claimant’s
arguments in light of the record. We conclude that substantial evidence supports
the determination that claimant was not disabled within the meaning of the Social
Security Act. Therefore, the judgment of the United States District Court for the
Northern District of Oklahoma is AFFIRMED.
Entered for the Court
David M. Ebel
Circuit Judge
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