Pennington v. Apfel ( 1999 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 23 1999
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
REGINA F. PENNINGTON,
Plaintiff-Appellant,
v. No. 98-5052
(D.C. No. 97-C-59-J)
KENNETH S. APFEL, Commissioner, (N.D. Okla.)
Social Security Administration,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before TACHA , BARRETT , and MURPHY , Circuit Judges.
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This order and judgment is not binding precedent, except under the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.
Claimant Regina F. Pennington appeals the district court’s affirmance of
the Commissioner’s decision denying her application for disability insurance
benefits. Because we find that the decision of the administrative law judge
(ALJ) is supported by substantial evidence and that the law was properly applied,
we affirm.
Claimant’s first application for social security benefits was denied on
July 2, 1993; her insured status expired on December 31, 1994. In order to
establish her entitlement to benefits, therefore, claimant must prove that she
became disabled on or before December 31, 1994.
Contrary to claimant’s allegation that she has disabling back, hip, and neck
pain, as well as leg weakness, the ALJ found at step four that claimant retained
the residual functional capacity to return to her previous relevant work as
a housekeeper. Claimant argues that, in arriving at this conclusion, the ALJ
failed to consider factors relevant to her pain allegations and failed to articulate
reasons for rejecting her testimony. We disagree with this assessment.
In a thoughtful and thorough opinion, the ALJ pointed to several specific
reasons for discounting claimant’s credibility. In addition to citing medical
evidence which revealed fairly normal objective findings, the ALJ also noted
“claimant’s own description of her activities and life style, the degree of medical
treatment required, discrepancies between the claimant’s assertions and
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information contained in the documentary reports, the reports of the treating and
examining practitioners, and the medical history.” Appellant’s App. Vol. II at 20.
The ALJ then provided the appropriate details to support each of his stated
reasons for disbelieving claimant. All of those statements find substantial support
in the record.
Claimant argues that her work as a housekeeper was not past relevant
work because there is no evidence in the record that she performed that job within
the past fifteen years as required under agency regulations. See 20 C.F.R.
§ 404.1565(a); see also Jozefowicz v. Heckler , 811 F.2d 1352, 1355-56 (10th Cir.
1987). 1 Unfortunately for claimant, however, the attorney representing her in the
district court did not raise this issue. As with other cases, we will not review an
issue in a social security case presented for the first time on appeal. See Crow v.
Shalala , 40 F.3d 323, 324 (10th Cir. 1994). Claimant’s present counsel urges us
to make an exception to this waiver rule, citing Petrini v. Howard , 918 F.2d 1482,
1483 n.4 (10th Cir. 1990). That exception, however, is reserved for cases in
1
Claimant testified at the hearing before the ALJ that she had worked as
a motel housekeeper beginning in 1979 for about eighteen months, ending
sometime during 1980. See Appellant’s App. Vol. II at 92-93. Claimant’s
counsel points out that “Appellant’s earnings record does not establish that she
worked for the [motel] from 1980 to the present.” Appellant’s Br. at 38. He
further opines that “[i]t is extremely likely that the Appellant did not work as
a motel housekeeper with 15 years prior to her date last insured, December 31,
1994.” Id.-3-
which the otherwise waived issue is (1) a question of law (2) whose resolution is
beyond reasonable doubt and (3) where the failure to address the issue would
result in a miscarriage of justice. See id. The question of whether claimant
worked as a housekeeper during the relevant fifteen-year period is clearly not a
question of law whose resolution is beyond doubt. We decline to reach the issue
on appeal.
Finally, claimant argues that the ALJ failed to adequately discuss the
findings of disability from her treating physicians. This argument also lacks
merit. Claimant’s primary treating physician, Dr. Anthony Billings, indicated in
a residual functional capacity (RFC) questionnaire that claimant could not work.
See Appellant’s App. Vol. II at 506. The time-frame covered by that RFC,
however, was from January 1992 to April 1995. As noted by the ALJ, this same
doctor indicated to the City of Tulsa on August 31, 1994, that claimant could no
longer work as a custodian for the City but that he considered her a candidate for
vocational retraining. See id. at 439. Dr. Billings’ statements to the City that
claimant should be “rated out as permanently disabled,” see id. at 441, therefore,
obviously do not mean that claimant is disabled in the social security sense of
being unable to engage in any substantial gainful activity. Moreover, there is no
evidence that claimant’s condition deteriorated so severely between August 31,
1994 and December 31, 1994 that she became unable to work.
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Contrary to claimant’s argument, the ALJ did not improperly disregard
Dr. Billings’ opinion regarding claimant’s condition. Indeed, the ALJ noted that,
while Dr. Billings stated that claimant could not return to her former work as a
custodian, he also recommended vocational retraining. See id. at 21. This
analysis adequately explored Dr. Billings’ estimation of claimant’s condition.
The opinions of Dr. Vashra Sikka that claimant was totally temporarily
disabled were made well after the expiration of claimant’s insured status. See
id. at 511, 514. Indeed, as late as June and July of 1995, Dr. Sikka was
recommending that claimant be afforded vocational retraining. See id.
at 516, 518.
The judgment of the United States District Court for the Northern District
of Oklahoma is AFFIRMED.
Entered for the Court
Michael R. Murphy
Circuit Judge
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