Day v. Chater ( 1998 )

F I L E D
United States Court of Appeals
Tenth Circuit
JUL 7 1998
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT PATRICK FISHER
Clerk
DOLPHUS L. DAY,
Plaintiff-Appellant,
v. No. 97-6191
(D.C. No. 95-CV-242)
KENNETH S. APFEL, Commissioner, (W.D. Okla.)
Social Security Administration, *
Defendant-Appellee.
ORDER AND JUDGMENT **
Before KELLY, BARRETT, and HENRY , 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. Pursuant to Fed. R. App. P. 43(c), in the
caption, Kenneth S. Apfel is substituted for John J. Callahan, former Acting
Commissioner of Social Security, as the defendant in this action. In the text we
continue to refer to the Secretary because she was the appropriate party at the
time of the underlying administrative 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This order and judgment is not binding precedent, except under the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); 10th Cir. R. 34.1.9. This case is therefore
ordered submitted without oral argument.
Claimant Dolphus L. Day appeals from the district court’s order adopting
the recommendation of the magistrate judge affirming the Secretary of Health and
Human Services’ denial of his application for Social Security disability insurance
and supplemental security income benefits. Claimant, a forty-two-year-old man
with a GED and some college, claims disability from November 19, 1988, due
to diabetes, diabetic neuropathy, bulging disk, pain, and depression.
Claimant filed for benefits on February 24, 1989. Following a hearing
before an administrative law judge (ALJ), his application was denied on
August 27, 1990. This decision was vacated and remanded by the Appeals
Council. A second denial on March 19, 1992, was also vacated and remanded by
the Appeals Council. At a third hearing, the ALJ heard testimony from claimant,
claimant’s wife, a medical expert, and a vocational expert. Thereafter, the ALJ
denied claimant’s application at step four of the five-step evaluation sequence,
see Williams v. Bowen , 844 F.2d 748, 750-51 (10th Cir. 1988), determining that
claimant was capable of performing light work including his past relevant work
as a pest control worker or photographer. The Appeals Council denied claimant’s
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request for review, and the ALJ’s decision became the final decision of the
Secretary.
Our review of the Secretary’s decision is limited to determining whether
the decision is supported by substantial evidence and whether the Secretary
applied correct legal standards. See Castellano v. Secretary of Health & Human
Servs. , 26 F.3d 1027, 1028 (10th Cir. 1994). “To find that the Secretary’s
decision is supported by substantial evidence, there must be sufficient relevant
evidence in the record that a reasonable person might deem adequate to support
the ultimate conclusion.” Bernal v. Bowen , 851 F.2d 297, 299 (10th Cir. 1988).
We may neither reweigh the evidence nor substitute our judgment for that of the
Secretary. See id.
On appeal, claimant argues that the ALJ erred in determining that claimant
retained the residual functional capacity (RFC) to perform his past relevant work.
Although claimant’s brief is not the optimum in organization and clarity, it
appears that the thrust of claimant’s argument is that the ALJ should have found
claimant’s mental impairment to be severe. He also contends that the ALJ failed
to consider significant lay evidence, failed to properly consider his pain, and
improperly relied on a consultative examination. We conclude that the record
supports the denial of benefits in this case, and we affirm the district court’s
decision.
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The ALJ found that claimant was an insulin dependent diabetic with
evidence of peripheral neuropathy. His diabetes was described by Dr. Stephen G.
Lindsey, claimant’s treating physician, as “labile,” or chronically difficult to
control. Appellant’s App., Vol. 2 at 324. Although Dr. Lindsey reported that
claimant complained of severe pain associated with his neuropathy, he never
diagnosed claimant with disabling pain. The only nerve conduction and
electromyography testing performed on claimant was done on May 24, 1988.
The testing showed “[m]inimal slowing of the conduction velocity for both tibial
nerves and minimal slowing of the sensory conduction time for both median
nerves across the wrist.” Id. at 301. These findings were consistent with a
diagnosis of “a mild generalized peripheral neuropathy which is probably
secondary to [claimant’s] Diabetes.” Id.
An x-ray examination of claimant’s back in February 1988, showed
evidence of a minimal bulging disk, but no evidence of herniation. See id. , Vol. 1
at 213. A CT examination by Dr. Richard G. Falk in November 1991, showed no
degenerative disk disease. The examination did show a right posterolateral
herniation of the disc at L5-S1 with no compression on the exiting or traversing
nerve roots. See id. Vol. 2 at 356.
The ALJ concluded that claimant had a history of mental impairments.
He evaluated claimant’s mental impairments in accordance with 20 C.F.R.
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§§ 404.1520a and 416.920a, and found that, although claimant had a history of
depression, it was controlled with tricyclic antidepressants, and, at the time of the
hearing, his mental impairments did not significantly limit his ability to work.
First, claimant asserts that the ALJ erred in determining that claimant’s
mental impairment was not severe. Claimant asserts that “[t]he record varies
a little bit from 1988 through 1994 concerning the severity of [claimant’s]
depression.” Appellant’s Br. at 14. The record, however, belies this assertion.
In 1988, Dr. G. Paul Kula diagnosed claimant with “[m]ajor depression single
episode without melancholia.” Appellant’s App., Vol. 2 at 292. He also opined
that he could not rule out the possibility of a personality disorder. See id. On
November 6, 1991, both Dr. Marcus S. Barker and Dr. Elizabeth A. Rasmussen
saw claimant for a psychiatric and psychological evaluation. Dr. Barker opined
that claimant had dysthymic reaction and what appeared to be fairly severe
complications of diabetes. See id. at 329. Dr. Rasmussen performed
psychological testing which placed claimant in the low average IQ range.
She observed that he appeared to be in considerable pain. She concluded that,
although claimant had cognitive and reasoning skills, and was capable of making
decisions, he used hostility, sarcasm, and humor to cover up his depression.
See id. at 334.
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From February 1991, to December 1992, claimant received individual
counseling at the Central Oklahoma Community Mental Health Center. The
progress notes in the record indicate that claimant was feeling better on prozac
and was not experiencing side effects. See id. at 441. In December 1992, when
his individual counseling was terminated, his counselor reported that his
depression was controlled. See id. at 463. At that time he was referred to group
therapy which he was still attending at the time of his hearing.
At the request of the Secretary, claimant was evaluated by Dr. Harald S.
Krueger on April 12, 1994. Dr. Krueger concluded that claimant’s ability to
reason and make occupational and social adjustments was good, and although his
impression was that claimant had an adjustment disorder with depressed mood,
his psychiatric prognosis was good. See id. at 486-87.
The ALJ found that, during a psychiatric evaluation in April 1994, claimant
reported that he feeds animals, rides horses, watches television, reads, and helps
his son with homework. Moreover, the ALJ found that claimant, who lives with
his wife and child, pursued his photography hobby, taking pictures at rodeos on
weekends and selling them to the cowboys. He stated that he lifts fifty pound
bags of feed for his son’s pony, drives, reads the Bible, and takes care of his son
while his wife works. In fact, in July 1992, he injured his knee when he was hit
by a bull, and in September 1992, he injured his arm in a fall from a horse.
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Claimant argues that the “recitation of these activities is not inconsistent
with an application for disability,” and “does not go into enough detail concerning
these activities.” Appellant’s Br. at 18. Claimant fails, however, to develop this
argument. Contrary to claimant’s contention, our review of the record indicates
that claimant’s mental status improved greatly from 1988 to 1994. In fact, at the
third hearing, claimant testified that he had “improved, gotten better” with
therapy and was less depressed on prozac. Appellant’s App., Vol. 2 at 579.
Therefore, we conclude that the ALJ’s determination that his mental impairment
was not severe was supported by substantial evidence.
Claimant asserts that the ALJ ignored certain lay evidence when
determining claimant not disabled. Specifically claimant points to an October 1,
1990 letter written by the manager of a photography studio where claimant had
worked who stated that claimant had missed a lot of work because of pain and
illness. The studio manager also stated that claimant had trouble dealing with the
other employees and customers. In an April 1, 1991 opinion offered by
claimant’s pharmacist, he stated that the medications claimant was taking to
control his pain can cause both physical and mental impairments. The manager
of a hotel where claimant was employed driving a van for a period of time, stated
in a short, two-sentence letter that claimant had resigned the position for medical
reasons.
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In light of the ALJ’s statement that his decision was based on “careful
consideration of the entire record,” id. , Vol. 1 at 64, and because there is nothing
in the record to indicate that the ALJ did not consider these statements, see
Clifton v. Chater , 79 F.3d 1007, 1009-10 (10th Cir. 1996) (the record must show
that the ALJ considered all the evidence presented, but the ALJ is not required to
discuss every piece of evidence), we conclude that claimant’s argument is without
merit.
Next, claimant asserts that the ALJ did not properly evaluate his pain.
Claimant argues that, although he is not asserting that his physical impairments
meet or equal a listing “or that he is disabled solely due to documentable
peripheral neuropathy,” there is medical history that his neuropathy has caused
pain. Appellant’s Br. at 17. We do not disagree with this statement.
The ALJ evaluated claimant’s subjective complaints of pain pursuant to
20 C.F.R. §§ 404.1529, 416.929, and Luna v. Bowen , 834 F.2d 161 (10th Cir.
1987). Because claimant does not challenge the ALJ’s finding that his pain was
not disabling with any cogent, developed argument, we cannot adequately review
this issue. See Murrell v. Shalala , 43 F.3d 1388, 1389 n.2 (10th Cir. 1994)
(perfunctory complaints which fail to frame and develop an issue are insufficient
to invoke appellate review). We note that, at the time of the hearing, claimant
testified that his neuropathy was “either in a rest or disappearing,” and he was
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“feeling better now than [he had] in years.” Appellant’s App., Vol. 2 at 582.
Therefore, we discern no error in the ALJ’s determination that claimant’s pain
was not disabling.
Finally, claimant asserts that
the ALJ disregarded many medical reports indicating a significant
level of depression and mental impairment including problems
from chronic pain, and relied on a post-hearing 1994 report from
a one-time examiner who performed no psychological test, who did
not even have the records of the treating physician, and who cited
a few vague activities which became a strong part of the ALJ’s
finding of non-severity concerning mental impairments.
Appellant’s Br. at 21. We acknowledge that “[a]n ALJ is required to give
controlling weight to a treating physician’s opinion about the nature and severity
of a claimant’s impairments . . . if ‘it is well supported by clinical and laboratory
diagnostic techniques and if it is not inconsistent with other substantial evidence
in the record.’” Bean v. Chater , 77 F.3d 1210, 1214 (10th Cir. 1995) (quoting
Castellano , 26 F.3d at 1029). There is a voluminous record in this case, and even
though we have thoroughly reviewed the record, we are without any citation to
what medical evidence claimant asserts that the ALJ ignored and which of
claimant’s many consultative exams the ALJ allegedly relied on. Therefore,
because claimant did not tie the relevant facts, supported by specific citation to the
record, to his legal contentions, see United States v. Rodriguez-Aguirre , 108 F.3d
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1228, 1237 n.8 (10th Cir.), cert. denied 118 S. Ct. 132 (1997), we deem the issue
waived.
The ALJ concluded that claimant retained the RFC to perform, on
a sustained basis, light work such as his past relevant work as a pest control
worker or photographer. The ALJ’s determination was based on claimant’s own
testimony as to the status of his neuropathy and his depression and a medical
record that fails to reflect an impairment or combination of impairments that
would preclude claimant from engaging in work activities. Therefore, we cannot
say that the ALJ’s decision was not supported by substantial evidence.
The judgment of the United States District Court for the Western District
of Oklahoma is AFFIRMED.
Entered for the Court
James E. Barrett
Senior Circuit Judge
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