Dabbs v. Apfel ( 2000 )

F I L E D
United States Court of Appeals
Tenth Circuit
JAN 27 2000
UNITED STATES COURT OF APPEALS
PATRICK FISHER
FOR THE TENTH CIRCUIT Clerk
ELIZABETH G. DABBS,
Plaintiff-Appellant,
v. No. 99-2117
(D.C. No. CIV 98-414 BB/DJS)
KENNETH S. APFEL, (D. N.M.)
COMMISSIONER of SOCIAL
SECURITY; DEPARTMENT OF
HEALTH AND HUMAN SERVICES,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before EBEL , KELLY , 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This order and judgment is not binding precedent, except under the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 Elizabeth G. Dabbs 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 she has been disabled since December 10, 1992, 1
because of lupus-like syndrome, chronic fatigue, arthritis, myalgia, and memory
and cognitive problems. She has a degree in architecture and a juris doctorate.
Her past work includes working as an attorney, law clerk, architectural plan
reviewer, plumber’s helper, and convenience store clerk. After a hearing held in
August 1995, the administrative law judge (ALJ) found that claimant has a
personality disorder, dizziness, some fatigue and cognitive thinking problems of
an unknown etiology, and lower back pain that all caused significant vocationally
relevant limitations but that did not meet a listed impairment. See Appellant’s
App., Vol. II at 17-18. He further found that these limitations prevented claimant
1
It is difficult to determine when claimant asserts she became disabled.
She has listed the date from which she was no longer able to work as some time in
1991, see Appellant’s App., Vol. II at 32; June 1, 1992, see id. at 35;
December 10, 1992, see id. at 81; October 1991, see id. at 85; and early 1992,
see id. at 100. After claimant testified at the hearing, the ALJ understood that
her asserted disability began on or about June 2, 1992. See id. at 16.
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from performing her past relevant work. See id. at 17. The ALJ found claimant’s
subjective complaints and her testimony about “their impact on her ability to work
[to be] not entirely credible in light of the degree of medical treatment required,
discrepancies between the claimant’s assertions and information contained in the
documentary reports, the reports of the treating and examining practitioners, the
findings made on examination and the medical history.” Id. at 18. He also based
his credibility finding on claimant’s appearance and performance at the hearing,
on the statements of two psychological examiners who believed that she may tend
to overstate her memory recall and other cognitive problems, and on the fact that
she had been able to function well as a law student and attorney while suffering
with most if not all of her symptoms. See id. at 18-19. The ALJ noted that
claimant had been able to prepare a letter contesting the medical conclusions of a
psychological examiner that demonstrated her clarity of thought and syntax, thus
indicating that claimant retained greater cognitive abilities than she alleged. See
id. at 19.
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 stand or walk for long periods without intermittent resting or to use foot
pedals. See Appellant’s App., Vol. II at 19. He also concluded that claimant’s
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ability to do light work was diminished by significant nonexertional limitations
that made it impossible for her to engage in complex thought processes on a
sustained basis, climb in hazardous places, or be around hazardous machinery.
See id. He found that claimant’s ability to understand, remember, and carry out
detailed instructions, to maintain concentration for extended periods, and to
perform at a consistent pace without an unreasonable number and length of rest
periods were moderately limited. See id. at 354.
The ALJ elicited vocational expert testimony as to the jobs claimant could
do in the national economy given these limitations. The vocational expert opined
that claimant could perform unskilled work as a parking lot attendant and jewelry
assembly worker. See id. at 354-55. The ALJ concluded that claimant is not
disabled within the meaning of the Social Security Act because she is able to
make an adjustment to other work that exists in significant numbers in the
national economy. See id. at 17.
On review of the Commissioner’s decision, the district court adopted the
magistrate judge’s analysis and recommended disposition. Claimant raised four
issues: (1) whether the ALJ’s finding that claimant’s impairments did not meet
a listing was supported by substantial evidence; (2) whether the ALJ’s RFC
determination is based on substantial evidence because the ALJ failed to give the
vocational expert hypothetical questions based upon claimant’s actual abilities
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and limitations; (3) whether the ALJ’s credibility findings are supported by
substantial evidence; and (4) whether the ALJ erred as a matter of law by failing
to accord weight to claimant’s receipt of general assistance benefits from the
State of New Mexico. The proposed analysis and disposition thoroughly reviewed
the medical record and determined that the ALJ’s findings and conclusions were
supported by substantial evidence. See Appellant’s App., Vol. I at 50-55. The
court also determined that the ALJ did not err in failing to consider the state’s
disability finding because claimant had not submitted any evidence regarding that
finding (except for the fact of receipt of benefits) and because the record is clear
that claimant is not disabled within the meaning of the Social Security Act. See
id. at 56. 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).
We have carefully reviewed the entire record, the parties’ arguments, and
the relevant law. For substantially the same reasons as set forth in the magistrate
judge’s analysis and recommended disposition adopted by the district court on
February 19, 1999, we conclude that the Commissioner’s decision is supported by
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substantial evidence on the whole record and comports with the relevant legal
standards.
The judgment of the United States District Court for the District of
New Mexico is AFFIRMED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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