Cherry v. Apfel ( 1999 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 16 1999
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
SHARON L. CHERRY,
Plaintiff-Appellant,
v. No. 99-6133
(D.C. No. 97-CV-338-T)
KENNETH S. APFEL, Commissioner, (W.D. Okla.)
Social Security Administration,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before EBEL , LUCERO , 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This order and judgment is not binding precedent, except under the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 Sharon Cherry appeals from the district court’s order affirming
the decision of the Commissioner of Social Security denying her application for
social security disability benefits. Claimant, a fifty year old woman with a tenth
grade education, alleged disability beginning on July 9, 1993, due to arthritis,
abdominal pain, constipation, and irregular heart beat. 1
Claimant’s application,
filed on February 24, 1994, was denied initially and on reconsideration. 2
Following a hearing, the ALJ determined at step four of the five-step sequential
analysis, see 20 C.F.R. § 404.1520; Williams v. Bowen , 844 F.2d 748, 750-52
(10th Cir. 1988), that claimant had the residual functional capacity (RFC) to do
a full range of light work including her past relevant work as an apartment
manager. The district court adopted the magistrate judge’s recommendation that
the Commissioner’s decision be affirmed. Claimant appeals. We exercise
jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291, and we affirm.
1
We note that by the time claimant appealed the administrative law judge’s
(ALJ) decision to the Appeals Council, her counsel was representing her
impairments as including emphysema, arteriosclerosis with claudication
symptoms, fibromyalgia, depression and anxiety. See R. Vol. II at 282. These
alleged impairments were not indicated in claimant’s original application for
benefits. See id. at 78-81.
2
Claimant filed a prior application which was denied on July 9, 1993, and
was not appealed. Relying on res judicata, the ALJ dismissed that portion of the
insured period and only considered the period of July 9, 1993, through June 30,
1995, the date claimant was last insured. Claimant does not appeal the ALJ’s
decision not to reopen her prior application.
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On appeal, claimant asserts that (1) substantial evidence does not support
the ALJ’s findings regarding the severity of claimant’s pain and her ability to
perform the standing, walking, and lifting required for her past relevant work;
and (2) the ALJ failed to properly develop the record as to claimant’s mental
impairment. We review the Commissioner’s decision on the whole record to
determine only whether the factual findings are supported by substantial evidence
and whether the correct legal standards were applied. See Goatcher v. United
States Dep’t of Health & Human Servs. , 52 F.3d 288, 289 (10th Cir. 1995). We
may not reweigh the evidence or substitute our judgment for that of the agency.
See Kelley v. Chater , 62 F.3d 335, 337 (10th Cir. 1995).
Initially, claimant challenges the ALJ’s findings that her subjective
complaints of pain were not supported by the medical evidence in the record.
Specifically, claimant alleges that the ALJ failed to link his credibility
determination to specific evidence. See Kepler v. Chater , 68 F.3d 387, 391
(10th Cir. 1995). We disagree.
In evaluating a claim of disabling pain, the ALJ must consider (1) whether
the medical evidence establishes a pain producing impairment; (2) if so, whether
there is at least a loose nexus between the impairment and the claimant’s
subjective complaints of pain; and (3) if so, whether considering all of the
evidence, both objective and subjective, the claimant’s pain is disabling.
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See Luna v. Bowen , 834 F.2d 161, 163 (10th Cir. 1987). Once it is determined
that claimant has an impairment capable of producing pain, the ALJ must then
consider her subjective complaints of pain and decide whether they are credible.
See Kepler , 68 F.3d at 391.
Here, the ALJ established the link between the evidence and his credibility
determination. The ALJ noted that, although claimant alleged severe back pain, 3
she testified that she was able to sit for thirty minutes, stand for a few minutes,
do her own shopping and housework, take care of her son’s two dogs, and mow
her own lawn. Moreover, the ALJ stated that none of claimant’s treating
physicians had ever recommended surgery and that she was prescribed flexeril
only on an as needed basis. The medical evidence before the ALJ showed that,
although x-rays of claimant’s back and knees showed degenerative changes, there
were no fractures, subluxations, bony or fibrous ankylosis, or contracture due to
her arthritis. He also noted that, although claimant had a limited range of motion
in her back and hips, the remainder of her joints enjoyed a full range of motion. 4
3
We note that although claimant alleged severe abdominal pain before the
ALJ and the district court, she has abandoned this claim on appeal.
4
In the magistrate judge’s recommendation, she noted that although claimant
testified that she could barely walk outside to care for her son’s two dogs, in
April 1995, she was treated for tick bites she claimed she received while playing
outside with the dogs.
-4-
Contrary to claimant’s assertion, the ALJ stated adequate reasons for
finding claimant’s subjective complaints of pain to be incredible and linked this
determination to the evidence. See id. Because “[c]redibility determinations are
peculiarly the province of the finder of fact, . . . we will not upset such
determinations when supported by substantial evidence.” Diaz v. Secretary of
Health & Human Servs. , 898 F.2d 774, 777 (10th Cir. 1990). Moreover, insofar
as claimant urges this court to reweigh the evidence, this we may not do. See
Kelley , 62 F.3d at 337.
Next, claimant asserts that the ALJ did not fully develop the record as to
claimant’s alleged mental impairment by ordering a consultative psychological
evaluation. The record indicates that on November 4, 1993, Dr. Kami L. Barton,
claimant’s medical physician, noted that claimant may have a “generalized anxiety
disorder.” R. Vol. II at 161-62. On November 30, 1993, Dr. Barton prescribed
Prozac, id. at 160, and in a letter dated December 13, 1993, Dr. Barton advised
claimant that she would like to follow up and see how she was doing on the
Prozac “in a couple of months,” id. at 157. Later claimant reported that she never
took the Prozac because “friends told her that people killed themselves when they
were on [P]rozac.” Id. at 274. The record does not indicate that she ever
consulted Dr. Barton about a different drug.
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At the time of the hearing, claimant testified that Dr. Barton gave her some
“nerve pills,” but she had not gone to a free clinic to get the prescription filled.
Id. at 48. She also admitted that she had never been diagnosed with any mental
illness or mental impairment or been hospitalized or treated for a mental illness
or mental impairment. See id. Claimant stated that she had been advised by
Dr. Barton to see a counselor, but that she had not done so. See id. At this point,
claimant stated that she had taken “some nerve pills” prescribed by Dr. Barton.
Id. at 49. She said that she took only fifteen pills over a three month period, and
had not taken any mental health medication since. See id.
Accordingly, the ALJ found that claimant’s “depression, anxiety, or panic
attacks, whether viewed alone or in combination, do not impose any degree of
functional limitations on claimant’s daily activities, social functioning, or task
mastering abilities,” id. at 14, and therefore, he concluded that her mental
impairments were not severe. See 20 C.F.R. § 404.1520a(c)(1). We agree that
the absence of any objective medical evidence of a mental impairment supports
the ALJ’s conclusion, and in this light, the ALJ was not required to obtain a
consultative psychological examination. See Hawkins v. Chater , 113 F.3d 1162,
1167-68 (10th Cir. 1997).
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The judgment of the United States District Court for the Western District of
Oklahoma is AFFIRMED.
Entered for the Court
Michael R. Murphy
Circuit Judge
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