Garcia v. Chater ( 1997 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 7 1997
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
MANUEL G. GARCIA,
Plaintiff-Appellant,
v. No. 96-2271
(D.C. No. CIV-95-1034-LH)
JOHN J. CALLAHAN, Acting (D. N.M.)
Commissioner, Social Security
Administration, *
Defendant-Appellee.
ORDER AND JUDGMENT **
Before BRORBY, LOGAN, and HENRY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
*
Pursuant to Fed. R. App. P. 43(c), John J. Callahan, Acting Commissioner
of Social Security, is substituted for Shirley S. Chater, the former Commissioner,
as the defendant in this action.
**
This order and judgment is not binding precedent, except under the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.
Plaintiff Manuel G. Garcia alleges disability due to back pain. His
applications for supplemental security income and disability insurance benefits
were denied by the Social Security Administration, the administrative law judge
(ALJ), the Appeals Council, and the district court.
On appeal, plaintiff argues that because he is “substantially” disabled by
pain, the ALJ erred in relying on the grids to find him not disabled. He further
contends that he meets the criteria for a listed impairment and that the ALJ should
have referred him to an “orthopedic doctor” instead of a neurologist.
The ALJ concluded that plaintiff could do light work, but could not return
to his past relevant work in the oil fields. The ALJ then applied the “grids,” i.e.,
the medical-vocational guidelines, 20 C.F.R., Pt. 404, Subpt. P, App. 2, to find
plaintiff not disabled. We review this decision to determine only whether the
relevant findings are supported by substantial evidence and whether the
Commissioner applied correct legal standards. See Hargis v. Sullivan, 945 F.2d
1482, 1486 (10th Cir. 1991). “Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Id. We will
not reweigh the evidence or substitute our judgment for that of the Commissioner.
See id.We review plaintiff’s claim of disabling pain to determine if he has
(1) “established a pain-producing impairment by objective medical evidence,”
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Musgrave v. Sullivan, 966 F.2d 1371, 1376 (10th Cir. 1992); (2) shown a “loose
nexus” between the proven impairment and the subjective allegations of pain, see
id.; and (3) established that, “considering all the evidence, both objective and
subjective, [his] pain is in fact disabling,” id. Plaintiff’s testimony, by itself, is
insufficient to establish that his pain is disabling. See id.The record contains the results of examinations by two different medical
doctors, neither of whom found plaintiff to be disabled or even identified medical
evidence to support his allegations of disabling pain. Dr. Lloyd Garland, the
neurosurgeon who treated plaintiff after his back injury, noted only that he had
low grade degenerative disc changes at L4-5 and concluded that he did not have a
herniated disc. Dr. Garland further noted that plaintiff had not “pushed his
exercise program appreciably,” Appellant’s App. 116, and that he had no nerve
root compression, see id. at 117. X-rays revealed plaintiff’s lumbosacral spine
was within normal limits. The radiologist who performed an MRI suggested that
plaintiff had a herniated disc, a conclusion with which Dr. Garland disagreed. Dr.
Garland stated: “[p]lain x-rays of the lumbosacral spine showed good
preservation of the intervertebral spaces without evidence of bony erosions,
fractures, subluxation, or other pathology, and I consider them as being within
normal limits.” Id. at 128. Dr. Garland released plaintiff to return to work and
urged him to “use common sense.” Id. at 117. A post-hearing examination by Dr.
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H. S. Chuang, a neurologist, revealed that plaintiff’s neurological exam was
“essentially normal.” Id. at 143.
Plaintiff places great emphasis on the opinion of his treating chiropractor,
Dr. Jim Aho, to establish that his pain is disabling. However, not only is Dr.
Aho’s opinion contradicted by the opinions of two physicians, but a chiropractor
is not an acceptable medical source as defined in the regulations, cf. 20 C.F.R.
§ 404.1513(a). A chiropractor’s opinion may corroborate the findings of a
treating physician, see Frey v. Bowen, 816 F.2d 508, 514 (10th Cir. 1987), or
show how an impairment affects a claimant’s ability to work, see 20 C.F.R.
§ 404.1513(e). A chiropractor’s opinion by itself, however, cannot provide the
objective medical evidence necessary to establish a pain-producing impairment. 1
Finally, the circumstantial evidence surrounding plaintiff’s course of
treatment after his injury supports the finding of no disability. Plaintiff initially
availed himself of massage therapy at Dr. Aho’s chiropractic clinic. Plaintiff
eventually saw Dr. Garland, but did not return to his care after the initial
treatment. Plaintiff gave no particular reason for not returning to the
neurosurgeon. Instead, plaintiff pursued treatment with Dr. Aho which consisted
of traction, electrotherapy, and hydrotherapy. Plaintiff takes no prescription
1
We note that even Dr. Aho believed that, although plaintiff was not able to
continue heavy work, he was an innately intelligent person who would benefit
from retraining. See Appellant’s App. 111.
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medication, relying instead on Tylenol, heat, and rest for pain relief. Further, he
has not diligently pursued the exercise regime prescribed for him. Given this
evidence, we agree that the ALJ’s conclusion that plaintiff does not suffer
disabling pain is supported by substantial evidence. Thus, reliance on the grids to
determine plaintiff’s eligibility for benefits was proper. See Gossett v. Bowen,
862 F.2d 802, 807 (10th Cir. 1988).
In arguing that he should have been found disabled because he meets a
listing, plaintiff relies on a one-sentence letter from Dr. Aho: “In answer to your
question -- yes, Mr. Garcia does meet the criteria listed in paragraph 1.05(c).”
Appellant’s App. 98. Suffice it to say that the objective medical evidence in the
record fails to establish the specific impairments necessary for plaintiff to meet
this listing. Dr. Garland did not find any herniated disc or nerve compression,
and x-rays of plaintiff’s lumbosacral spine were within normal limits. The ALJ
did not err in refusing to find that plaintiff met this listing.
Finally, plaintiff argues that the ALJ promised plaintiff would be examined
by an orthopedic surgeon but sent him instead to Dr. Chuang, another neurologist.
This is incorrect. The ALJ stated merely that he would consider sending plaintiff
to an orthopedic surgeon. Contrary to plaintiff’s argument, the ALJ’s analysis of
the opinions of the two physicians and the chiropractor is consistent with our
directives in Goatcher v. United States Department of Health & Human Services,
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52 F.3d 288, 289-90 (10th Cir. 1995) (discussing factors that determine weight
attributable to medical opinions, including specialization).
AFFIRMED.
Entered for the Court
James K. Logan
Circuit Judge
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