Sebree v. Apfel ( 1999 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
NOV 4 1999
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
DAVID E. SEBREE,
Plaintiff-Appellant,
v. No. 99-7035
(D.C. No. 98-CV-288-S)
KENNETH S. APFEL, Commissioner, (E.D. Okla.)
Social Security Administration,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before ANDERSON , BARRETT , and BRISCOE, 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This order and judgment is not binding precedent, except under the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 David E. Sebree appeals from the district court’s order affirming
the decision of the Commissioner of Social Security. In that decision, the
Commissioner denied claimant’s applications for disability insurance benefits and
supplemental security income benefits made under Titles II and XVI of the Social
Security Act. See 42 U.S.C. §§ 423, 1382. We exercise jurisdiction under 42
U.S.C. § 405(g) and 28 U.S.C. § 1291, and affirm.
Claimant asserts that he has been disabled since September 28, 1993
because of back pain caused by spondylolysis, stomach pain, headaches, and high
blood pressure. His past work includes truck driving, laying sheetrock, and
working as a dishwasher and cook. After a hearing held in December 1995, the
administrative law judge (ALJ) found that claimant has spondylolysis that does
not meet a listed impairment, but that he was unable to perform his past relevant
work. See Appellant’s App. Vol. II at 33. At step five of the sequential
evaluation, see generally Williams v. Bowen , 844 F.2d 748, 750-52 (10th Cir.
1988), the ALJ determined that claimant has the residual functional capacity
(RFC) to perform light work, reduced by an inability to repetitively push or pull
arm and leg controls, or to do more than occasional repetitive overhead reaching,
bending, stooping, crouching, or climbing, or to be exposed to unprotected
heights, or to balance. See Appellant’s App. Vol. II at 33. He found claimant’s
testimony regarding disabling pain not to be credible, but he did believe claimant
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had some pain that limited him to doing no more than light work. See id.
at 30-31.
The ALJ elicited vocational expert testimony as to the jobs claimant could
do in the national economy given his limitations. In his first hypothetical, the
ALJ described claimant as able to do sedentary to light work restricted by the
above-noted limitations and as having mild to moderate chronic pain and taking
medications that did not preclude him from carrying out work assignments or
remaining reasonably alert. See id. at 234. He gave the expert an alternative
scenario in which claimant needed to be able to alternate sitting and standing
every hour. See id. at 237. The vocational expert opined that, under the first
hypothetical, claimant could work as a taxi starter; food assembler; parking lot,
self-service gas station, arcade, car wash, or counter sales attendant; escort driver
and surveillance monitor; and that he could also do miscellaneous hand-working
jobs like polishing and taping. See id. at 235-37. Under the second hypothetical,
he opined that claimant could perform some of the attendant jobs and the
surveillance monitor and taxi starter positions. See id. at 237. After considering
the medical record, hearing testimony, and social security regulations, the ALJ
concluded that claimant was not disabled. See id. at 34.
Claimant raises three issues on appeal: (1) whether the ALJ’s RFC
determination was improperly based on an absence of evidence; (2) whether his
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credibility findings are supported by substantial evidence; and (3) whether he
gave the vocational expert hypothetical questions based upon claimant’s abilities
and limitations. Our review is limited to determining whether the ALJ’s decision
is supported by substantial evidence on the whole record and comports with
relevant legal standards. See Casias v. Secretary of Health & Human Servs. , 933
F.2d 799, 800-01 (10th Cir. 1991).
Dr. Charles Harris prepared an RFC assessment for the agency based on the
medical records of claimant and concluded that claimant could occasionally lift
fifty pounds, frequently lift twenty-five pounds, and stand and sit for six hours
each during an eight-hour workday, and that pain did not limit his RFC. See
Appellant’s App. Vol. II at 61. He found no other significant limitations except
for occasional stooping. See id. at 62-64. Claimant argues that the ALJ
apparently rejected this assessment because he concluded that claimant’s RFC
was in fact limited in certain areas, and that the ALJ’s assessment is therefore not
supported by medical evidence. We conclude that the medical assessment
supports the ALJ’s general RFC determination that claimant can do light work
and that the ALJ properly imposed further limitations after considering claimant’s
testimony and other medical records.
“Credibility determinations are peculiarly the province of the finder of fact,
and we will not upset such determinations when supported by substantial
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evidence.” Diaz v. Secretary of Health & Human Servs. , 898 F.2d 774, 777 (10th
Cir. 1990). The ALJ supported his determination that claimant’s complaints of
disabling pain were not credible by noting that (1) claimant had successfully
worked for several years with spondylolysis and his x-rays had not changed
during that time to indicate that it had worsened; (2) claimant’s statements in the
record regarding his activities were inconsistent with disabling pain; (3) claimant
had suffered injuries after falling out of duck blinds and contracting poison ivy
rashes, which the ALJ believed resulted from continued hunting activities and not
from wandering around his mother’s back yard, as claimant alleged; (4) the
medical record indicated that claimant’s hiatal hernia was mild and medically
treatable; (5) the medical record was inconsistent with claimant’s allegations of
disabling pain; and (6) claimant’s demeanor and inconsistent statements at the
hearing suggested that he was not completely credible. See Appellant’s App.
Vol. II at 28-31. We conclude that the ALJ’s credibility finding is supported by
substantial evidence.
Citing Bastian v. Schweiker , 712 F.2d 1278, 1282 n.5 (8th Cir. 1983),
claimant argues that the ALJ’s hypothetical question to the vocational expert was
improper because the ALJ allegedly told the expert that claimant could perform
light and sedentary work, thereby eliminating the usefulness of the expert.
Claimant’s argument is without merit because the ALJ specifically limited
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claimant’s RFC in both hypotheticals and then properly inquired whether there
were sufficient jobs in the national economy claimant could perform given these
limitations. Claimant’s assertion that the ALJ erred by failing to include
claimant’s headaches, hiatal hernia, depression, and high blood pressure in the
hypotheticals is also without merit because the ALJ’s findings that these
conditions were either controlled or did not significantly limit claimant’s capacity
to perform work is supported in the record. Complaints are considered to be
severe nonexertional limitations only when they “ significantly limit [the] ability
to perform the full range of work in a particular RFC category on a sustained
basis.” Williams , 844 F.2d at 752 (emphasis added) (quotation omitted). Because
the ALJ determined that claimant’s testimony as to the extent of his limitations
was neither completely credible nor supported by objective medical evidence, he
was not required to include all complaints in the hypothetical questions. See
Decker v. Chater , 86 F.3d 953, 955 (10th Cir. 1996) (hypothetical questions need
only reflect impairments and limitations supported by the record).
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The judgment of the United States District Court for the Eastern District of
Oklahoma is AFFIRMED.
Entered for the Court
Stephen H. Anderson
Circuit Judge
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