Boswell v. Astrue ( 2011 )

FILED
United States Court of Appeals
Tenth Circuit
December 14, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
RAYMOND BOSWELL,
Plaintiff–Appellant,
v. No. 11-7041
(D.C. No. 6:10-CV-00073-RAW-KEW)
MICHAEL J. ASTRUE, (E.D. Okla.)
Commissioner of Social Security
Administration,
Defendant–Appellee.
ORDER AND JUDGMENT *
Before LUCERO, ANDERSON, and GORSUCH, Circuit Judges.
Raymond Boswell appeals from the denial of his applications for benefits
under the Social Security Act. Exercising jurisdiction under 42 U.S.C. § 405(g)
and 28 U.S.C. § 1291, we affirm.
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
I
Boswell applied for benefits in March 2007. He alleged that he had been
unable to work since December 1, 2006 1 because of degenerative disc disease,
bone spurs, and problems with his back, neck, arms, hands, shoulders, and liver.
His applications were denied at the administrative level and on reconsideration.
At a hearing before an administrative law judge (“ALJ”), a vocational
expert (“VE”) testified that Boswell could perform his past relevant work as a
telephone solicitor even if he were limited to sedentary work. Relying on this
testimony and objective medical evidence in the record, the ALJ found that
Boswell’s degenerative disc disease was a severe impairment, but that none of his
impairments, either alone or in combination, met or equaled the criteria contained
in the Listing of Impairments at 20 C.F.R. Pt. 404, Subpt. P, App. 1. The ALJ
further found that Boswell had “the residual functional capacity [(“RFC”)] to
perform sedentary work . . . except [to] occasionally stoop, crouch, crawl, kneel,
balance, [and] climb stairs and ladders.” 2 Accordingly, the ALJ denied benefits at
step four of the five-step, sequential-evaluation process. See 20 C.F.R.
§§ 404.1520, 416.920 (describing five-step process).
1
Boswell initially claimed a disability-onset date of July 1, 2000; at the
administrative hearing, he amended his alleged disability-onset date to
December 1, 2006.
2
The ALJ mistakenly stated that the VE categorized Boswell’s past
telephone solicitor job as “light.” The VE actually stated that the job was
sedentary, which corresponds with Boswell’s RFC as determined by the ALJ.
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After the Appeals Council denied his request for review, Boswell filed his
complaint in district court. The district court accepted the recommendation of a
magistrate judge that the Commissioner’s denial of benefits be affirmed. Boswell
now appeals.
II
Our standard of review is highly deferential:
In reviewing the ALJ’s decision, we neither reweigh the evidence nor
substitute our judgment for that of the agency. Instead, we review
the ALJ’s decision only to determine whether the correct legal
standards were applied and whether the ALJ’s factual findings are
supported by substantial evidence in the record. Substantial evidence
is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. A decision is not based on
substantial evidence if it is overwhelmed by other evidence in the
record or if there is a mere scintilla of evidence supporting it.
Branum v. Barnhart, 385 F.3d 1268, 1270 (10th Cir. 2004) (citations and
quotations omitted). Boswell raises two issues: whether the ALJ’s credibility
determination was proper and whether the ALJ’s RFC determination failed to
consider the impact of all Boswell’s impairments in combination.
A
With regard to credibility, the ALJ found that Boswell’s “statements
concerning the intensity, persistence and limiting effects of [his] symptoms are
not credible to the extent they are inconsistent with the [already established]
residual functional capacity assessment.” He further concluded that “the course
of medical treatment in this case does not bolster [Boswell’s] credibility with
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respect to the degree of his pain and other subjective complaints” because
Boswell’s “allegations of disabling pain and limitations are simply not supported
by the medical evidence to the extent alleged.”
“It is well-established that an ALJ’s findings with respect to a claimant’s
credibility should be closely and affirmatively linked to substantial evidence and
not just a conclusion in the guise of findings.” Hardman v. Barnhart, 362 F.3d
676, 678-79 (10th Cir. 2004) (quotation omitted). Credibility determinations,
however, “are peculiarly the province of the finder of fact” and, if supported by
substantial evidence, will not be disturbed on appeal. Kepler v. Chater, 68 F.3d
387, 391 (10th Cir. 1995).
At the hearing, Boswell testified that he has two bulging discs, that he
experiences weakness, numbness, and tingling in his extremities, and that he
suffers severe headaches. He further testified that he can stand for a maximum of
fifteen minutes and suffers pain even when sitting.
The ALJ meticulously cited record evidence to support his credibility
determination. He noted that none of Boswell’s treating or examining physicians
had placed any specific limitations or restrictions on his activities. Despite
having complained of neck and back pain for years, no objective medical
evidence showed “that [Boswell’s] condition significantly worsened around his
alleged onset date – in fact, there was very little in the way of actual medical
treatment other than the continued prescribing of routine medication.” Further,
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the record lacked medical evidence suggesting that Boswell suffered adverse side
effects from his medication. And his daily activities belied his complaints of
debilitating pain. Although Boswell testified that he was significantly restricted
in his ability to sit, stand, walk, and lift, the medical records do not indicate that
he made similar complaints to any of his physicians.
The ALJ concluded:
The statements of [Boswell] concerning his impairments and their
impact on his ability to work during the period at issue are not
entirely credible in light of the conservative nature and the
infrequency of medical treatment required, the lack of medical
evidence demonstrating that claimant’s condition significantly
worsened during the period of time under consideration, the reports
of the treating and examining practitioners, the medical history, the
findings made on examination, the marked discrepancies between his
allegations, and the information contained in the medical records.
Our review of the record confirms these findings. We conclude that the ALJ’s
credibility determination was supported by substantial evidence.
B
Boswell also contends that the ALJ failed to consider the impact of his
headaches when arriving at his RFC determination. It is clear from the ALJ’s
decision, however, that Boswell’s headache complaints were considered. The
ALJ summarized Boswell’s testimony concerning his headaches and reviewed the
medical records related to the headaches and their treatment, observing that
Boswell had been treated conservatively and that Boswell reported Celebrex was
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controlling his pain in December 2007. The ALJ correctly noted that no
neurological deficits appeared in the record.
While we acknowledge Boswell’s probable headache pain, we note that
“disability requires more than mere inability to work without pain. To be
disabling, pain must be so severe, by itself or in conjunction with other
impairments, as to preclude any substantial gainful employment.” Gossett v.
Bowen, 862 F.2d 802, 807 (10th Cir. 1988) (quotation and alteration omitted).
Boswell has not sustained his burden to establish he suffered pain of this caliber.
III
In short, Boswell asks this court to reweigh the evidence and substitute our
judgment for that of the Commissioner. We are without the authority to do so.
See Cowan v. Astrue, 552 F.3d 1182, 1185 (10th Cir. 2008).
The judgment of the district court is AFFIRMED.
Entered for the Court
Carlos F. Lucero
Circuit Judge
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