Allen v. Apfel ( 2000 )


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  •                                                                           F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    JUN 21 2000
    FOR THE TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    JANNETT S. ALLEN,
    Plaintiff-Appellant,
    v.                                                  No. 99-3249
    (D.C. No. 98-CV-4087-SAC)
    KENNETH S. APFEL, Commissioner                        (D. Kan.)
    of Social Security Administration,
    Defendant-Appellee.
    ORDER AND JUDGMENT            *
    Before TACHA , EBEL , 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    This order and judgment is not binding precedent, except under the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.
    Plaintiff Jannett S. Allen appeals from the denial of social security
    disability benefits. We have jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C.
    § 405(g). We review the Commissioner’s decision on the whole record to
    determine only whether the factual findings are supported by substantial evidence
    and the correct legal standards were applied.         See Qualls v. Apfel , 
    206 F.3d 1368
    ,
    1371 (10th Cir. 2000). We may not reweigh the evidence or substitute our
    judgment for that of the Commissioner.          See id .
    The facts and a detailed description of the entire administrative record are
    well stated in the district court’s opinion,     see Allen v. Apfel , 
    54 F. Supp. 2d 1056
    (D. Kan. 1999), and we need not restate them here in detail. Suffice it to say that
    plaintiff, who was born in 1951, filed a claim for disability benefits on June 27,
    1995, alleging that she has been disabled since May 30, 1995, due to heel spurs
    and “broken” vertebras, which she claimed prevented her from walking or
    standing more than fours hours at a time. Her claim was denied initially and
    upon reconsideration.
    After a hearing before an administrative law judge (ALJ), the ALJ
    determined that plaintiff could not return to her past relevant work as a
    groundskeeper, waitress, or construction worker, but that she retained the residual
    functional capacity (RFC) to perform work which permitted her to alternate
    between sitting and standing at will, and which did not require her to lift two to
    -2-
    three pounds more than frequently or to ever lift more than ten pounds. Based on
    the testimony of a vocational expert (VE), the ALJ determined that plaintiff had
    the RFC to perform the jobs of cashier, information clerk, food tabulator and
    security monitor, and that these jobs existed in significant numbers in the local
    and national economies. The ALJ therefore determined that plaintiff was not
    disabled and denied benefits at step five of the evaluation sequence.   See Williams
    v. Bowen , 
    844 F.2d 748
    , 750-52 (10th Cir. 1988). The Appeals Council affirmed
    the ALJ’s decision, making it the Commissioner’s final decision. Plaintiff then
    filed suit in district court, which affirmed the Commissioner’s determination.
    See Allen , 54 F. Supp. 2d at 1056.
    On appeal, plaintiff claims that the ALJ (1) did not correctly assess her
    RFC; (2) failed to evaluate properly her complaints of disabling pain; (3) made
    credibility findings which are not supported by substantial evidence; and
    (4) posed a hypothetical question to the VE that did not include all of her
    impairments.
    I. RFC Assessment
    Plaintiff first challenges the ALJ’s RFC assessment on the ground that
    the ALJ ignored plaintiff’s testimony that she needed to alternate sitting and
    standing and to lie down and elevate her feet due to fatigue, pain and swelling.
    See Appellant’s Br. at 14. In fact, the ALJ’s RFC determination did find that,
    -3-
    because of her heel and back pain, plaintiff needed to alternate between sitting
    and standing at will.   See Appellant’s App. at 18 and 240.     2
    With respect to her
    claimed need to elevate her feet, plaintiff did not report this asserted limitation to
    any physician, nor does the record contain any medical treatment for this alleged
    condition. Plaintiff did not include this limitation in her original disability report,
    nor does this asserted limitation appear consistent with her daily living activities
    report. The ALJ’s RFC determination flows from his assessment of plaintiff’s
    impairments, the medical evidence in the record, and plaintiff’s daily living
    activity report. We find the RFC determination is supported by substantial
    evidence in the record.
    II. Pain Evaluation
    Plaintiff next contends that the ALJ failed to follow the dictates of      Luna v.
    Bowen , 
    834 F.2d 161
    , 163-66 (10th Cir. 1987) and improperly discounted her
    complaints of disabling pain. To qualify as disabling, pain must be severe enough
    to preclude any substantially gainful employment.         See Brown v. Bowen , 
    801 F.2d 361
    , 362-63 (10th Cir. 1986). In evaluating a claim of disabling pain, the ALJ
    2
    Plaintiff argues for the first time in her response brief that the ALJ’s
    hypothetical to the VE was flawed because it asked the VE to assume that
    plaintiff had to avoid prolonged sitting and standing, whereas the ALJ’s RFC
    assessment states that plaintiff needs to alternate between sitting and standing
    at will. This court does not ordinarily review issues raised for the first time in
    a reply brief. See Stump v. Gates , 
    211 F.3d 527
    , 533 (10th Cir. 2000).
    -4-
    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.     See Luna , 834 F.2d at 163. Once it is determined
    that a 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 v. Chater , 
    68 F.3d 387
    , 391 (10th Cir. 1995).
    In this case, plaintiff has shown objective medical evidence of a “pain
    producing impairment,” and a loose nexus between the impairment and her pain.
    However, the objective evidence does not establish disabling pain. Accordingly,
    the ALJ had to evaluate plaintiff’s subjective pain testimony and the other
    pertinent evidence before him. At the hearing, plaintiff testified that her pain is
    so intense that she can only walk five feet, sit for twenty-two seconds and stand in
    one place for twenty seconds.       See Appellant’s App. at 226. The ALJ found that
    plaintiff’s “statements as to her pain and limitations are not consistent with the
    evidence of record which would appear to document a far greater physical and
    mental capacity than she . . . testified to.”     
    Id. at 17.
    In reaching his conclusion,
    the ALJ considered and discussed plaintiff’s medical history, including the lack of
    objective medical evidence, the lack of any ongoing medical treatment for her
    -5-
    pain, and the lack of medication for severe pain; her July 1995 daily living
    activity report, in which she reported cooking all of her own meals and doing two
    hours of daily housecleaning without assistance; and her continued participation
    in a cosmetology class since January 1994.
    Contrary to plaintiff’s assertion, the ALJ did not ignore    Luna and discount
    her pain allegations based solely on a lack of supporting objective medical
    evidence. The ALJ was entitled to consider that claimant had not sought medical
    treatment for pain since June 1995, at which time she complained of foot pain
    after four hours of standing, rather than twenty seconds as she claimed at the
    administrative hearing. “[T]he extensiveness of the attempts [medical or
    nonmedical] to obtain relief [and] the frequency of medical contacts” are relevant
    factors in evaluating the plaintiff’s subjective pain complaints.    Kepler , 68 F.3d
    at 391 (quotation omitted).
    Plaintiff contends the ALJ erred in not discussing the side effects of the
    pain medication she was prescribed after her heel spur surgery, which she
    testified made her nauseated. The only indication in the record that she discussed
    side effects from pain medication with her doctors is a January 1995 treatment
    note stating that a full tablet of Dolobid was too strong a dosage for plaintiff,
    and recommending that she take only half a tablet.       See Appellant’s App. at 138.
    Subsequent medical notes indicate that plaintiff’s foot problems had improved,
    -6-
    that she was “doing nicely,” and was “not taking any more of the Dolobid.”             
    Id. at 137.
    We conclude the ALJ’s implicit rejection of her testimony was proper.
    See Qualls , 206 F.3d at 1372 (holding that     Kepler does not require a formalistic
    factor-by-factor recitation of the evidence).
    III. Credibility Determination
    Plaintiff also contends that, in assessing the credibility of her complaints of
    disabling pain, as well as her complaints of fatigue, depression and related
    memory and concentration problems, the ALJ’s credibility findings are not
    supported by substantial evidence in the record.        See Kepler , 68 F.3d at 391.
    Plaintiff first argues the ALJ erred by considering her attendance at cosmetology
    school and her efforts to find work. However, the ALJ relied on numerous factors
    in making his credibility determination, and the fact that claimant was able to
    attend cosmetology school and was looking for work were not the only factors he
    took into consideration in assessing her credibility.      See Gay v. Sullivan , 
    986 F.2d 1336
    , 1339 (10th Cir. 1993) (while not conclusive, such activities as school
    attendance may be considered, along with medical testimony, in determining the
    right of a claimant to disability benefits).
    Plaintiff also contends the ALJ erred in considering as a factor in his
    credibility determination the fact that she has not been told by any doctor “that
    her medical conditions would prevent her from engaging in work activity.”
    -7-
    Appellant’s App. at 17. She claims the ALJ erroneously shifted the step five
    burden of proof by relying on the absence of evidence. This is not, however,
    a situation in which the absence of evidence is made to serve as substantial
    evidence to meet the Commissioner’s burden at step five,     cf. Thompson v.
    Sullivan , 
    987 F.2d 1482
    , 1491 (10th Cir. 1993), but rather one in which the
    relevant medical evidence in the record simply does not support plaintiff’s claim
    of disabling pain.   See Talley v. Sullivan , 
    908 F.2d 585
    , 587 (10th Cir. 1990)
    (medical records must be consistent with nonmedical testimony as to severity
    of pain).
    Relying on our decisions in   Weakley v. Heckler , 
    795 F.2d 64
    , 66 (10th Cir.
    1986) and Teter v. Heckler , 
    775 F.2d 1104
    , 1107 (10th Cir. 1985), plaintiff also
    argues that the ALJ erroneously considered her failure to take pain medication in
    the absence of evidence that plaintiff had been prescribed pain medication and
    that it would have restored her ability to work if she had taken it. Plaintiff’s
    reliance on these decisions is misplaced, because both involved the circumstances
    under which an ALJ may deny benefits because a claimant has refused to follow
    prescribed treatment. Here, the ALJ did not deny plaintiff benefits on the ground
    she failed to follow prescribed treatment, but rather, “the ALJ properly considered
    what attempts plaintiff made to relieve [her] pain--including whether [she] took
    pain medication--in an effort to evaluate the veracity of plaintiff’s contention that
    -8-
    [her] pain was so severe as to be disabling.”     Qualls , 206 F.3d at 1372 (citing
    Hargis v. Sullivan , 
    945 F.2d 1482
    , 1489 (10th Cir. 1991) and        Luna , 834 F.2d
    at 165-66).
    Plaintiff further argues that the ALJ erred in considering whether her
    lack of medical treatment for her pain and chronic fatigue problems is due to
    insufficient funds. The only evidence in the record concerning plaintiff’s ability
    to pay for medical treatment is a notation in the treatment notes relating to her
    June 1996 medical evaluation for a stiff neck stating that plaintiff could not
    afford to have a thyroid scan. The record contains no evidence plaintiff sought
    medical treatment for her claimed disabling pain or for her claimed sleep and
    chronic fatigue problems, but was refused for an inability to pay.       See Murphy v.
    Sullivan , 
    953 F.2d 383
    , 386-87 (8th Cir. 1992) (holding failure to seek low-cost
    medical treatment and lack of evidence claimant had been denied medical care
    because of financial condition supported determination that claimant’s financial
    hardship was not severe enough to justify failure to seek medical treatment).
    Plaintiff contends the ALJ erred in considering that she had not sought
    recent medical treatment for her claimed fatigue and depression because a person
    suffering from a mental impairment, particularly depression, may not recognize
    the need for treatment. Plaintiff relies upon     Nguyen v. Chater , 
    100 F.3d 1462
    ,
    1465 (9th Cir. 1996), which noted that claimants with mental health concerns
    -9-
    often do not seek help at the first sign of a problem. In the instant case, however,
    unlike Nguyen , the ALJ did consider plaintiff’s complaints of disabling fatigue
    and depression, which were not consistent with the treatment record nor with
    a consulting psychologist’s contemporaneous assessment of plaintiff’s condition.
    The plaintiff underwent a consultative psychological examination, and was
    diagnosed with mild depression, most likely of long-standing duration, but the
    consulting psychologist concluded that plaintiff was not significantly depressed
    and was capable of being retrained and placed in a job. The ALJ found that
    plaintiff’s depression was mild and did not impose any degree of functional
    limitations on plaintiff’s daily activities, social functioning, task mastering, or
    work abilities. We conclude the ALJ’s assessment of plaintiff’s depression and
    fatigue is closely and affirmatively linked to substantial evidence.   See Winfrey v.
    Chater , 
    92 F.3d 1017
    , 1020 (10th Cir. 1996).
    In the remainder of plaintiff’s claims, she essentially disagrees with the
    weight the ALJ gave to the relevant factors. We, however, may not reweigh the
    evidence on appeal. “Credibility determinations are peculiarly the province of
    the finder of fact, and 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). In evaluating the credibility of plaintiff’s allegations
    of disabling pain, fatigue and depression, the ALJ considered the kinds of factors
    -10-
    found to be appropriate in    Luna and Hargis , and he recited what specific evidence
    he relied on in considering those factors, as required by       Kepler . The ALJ applied
    the correct legal standards in evaluating plaintiff’s subjective allegations and his
    determination on this matter is supported by substantial evidence in the record.
    IV. Hypothetical
    Finally, plaintiff contends the ALJ’s hypothetical question to the VE was
    flawed because he failed to include the fact that she is blind in her left eye.    3
    Plaintiff has had reduced vision in her left eye since she was five or six years old,
    and is able to see only shapes and forms with that eye.         See Appellant’s App.
    at 211-12. She retains 20/20 vision in her right eye, however.           
    Id. at 212.
    With
    this vision problem, plaintiff was able to work as a groundskeeper, which
    included computer work preparing inventory and material safety data sheets,
    and as a waitress and construction worker. There is no evidence that her reduced
    vision in one eye interfered with her ability to work. Nor did plaintiff claim her
    vision impairment as a contributing cause of disability when she applied for
    3
    In the “Summary of the Argument” portion of her brief, plaintiff mentions
    that the ALJ’s hypothetical was flawed because it did not include her claimed
    bending and stooping restrictions or her claimed need to lie down and elevate
    her feet. See Opening Br. at 11. Plaintiff did not, however, argue either of these
    issues in her arguments relating to the ALJ’s hypothetical.        See id . at 30-32.
    An issue listed, but not argued in the brief on appeal, is waived.       See Abercrombie
    v. City of Catoosa , 
    896 F.2d 1228
    , 1231 (10th Cir. 1990).
    -11-
    benefits. The ALJ found that plaintiff’s vision impairment in the left eye did not
    qualify as a disabling condition because plaintiff’s vision in the right eye has been
    preserved. 
    Id. at 15.
    His assessment that plaintiff’s blindness in one eye would
    have a minimal effect on her ability to work is supported by evidence that she
    worked for many years despite her condition.         See Auer v. Secretary of Health &
    Human Servs. , 
    830 F.2d 594
    , 596 (6th Cir. 1987) (“[claimant’s] blindness in one
    eye has little effect on the disability determination given his past work history”).
    The vocational expert testified she had reviewed the medical exhibits in the
    file and had heard plaintiff’s testimony at the hearing. Moreover, plaintiff’s
    testimony about her reduced left eye vision and her unimpaired right eye vision
    immediately preceded the ALJ’s hypothetical question posed to the VE.         See
    Appellant’s App. at 239-40. Thus, although the ALJ did not expressly include
    this limitation in his hypothetical, we conclude that “[t]he fact the vocational
    expert was present and heard testimony concerning [plaintiff’s vision impairment
    in one eye] suggests that the effect of the error, if any, in the administrative law
    judge’s (ALJ) hypothetical, was minimal.”          Diaz , 898 F.2d at 777.
    We have carefully reviewed the entire record, the parties’ arguments, and
    the relevant law. For substantially the same reasons as set forth in the district
    court’s opinion dated June 17, 1999,   see Allen , 
    54 F. Supp. 2d 1056
    , we conclude
    that the Commissioner’s decision is supported by substantial evidence on the
    -12-
    whole record and comports with the relevant legal standards. The judgment of the
    United States District Court for the District of Kansas is AFFIRMED.
    Entered for the Court
    David M. Ebel
    Circuit Judge
    -13-
    

Document Info

Docket Number: 99-3249

Filed Date: 6/21/2000

Precedential Status: Non-Precedential

Modified Date: 4/18/2021

Authorities (19)

Kim Van Nguyen v. Shirley S. Chater, Commissioner of the ... , 100 F.3d 1462 ( 1996 )

William T. WINFREY, Plaintiff-Appellant, v. Shirley S. ... , 92 F.3d 1017 ( 1996 )

Qualls v. Apfel , 206 F.3d 1368 ( 2000 )

Tim C. TETER, Plaintiff-Appellant, v. Margaret M. HECKLER, ... , 775 F.2d 1104 ( 1985 )

19-socsecrepser-642-unemplinsrep-cch-17670-magdalena-g-luna , 834 F.2d 161 ( 1987 )

Allen v. Apfel , 54 F. Supp. 2d 1056 ( 1999 )

Stump v. Gates , 211 F.3d 527 ( 2000 )

George R. WEAKLEY, Plaintiff-Appellant, v. Margaret M. ... , 795 F.2d 64 ( 1986 )

John R. Auer v. Secretary of Health & Human Services , 830 F.2d 594 ( 1987 )

Wanda TALLEY, Plaintiff-Appellant, v. Louis W. SULLIVAN, M.... , 908 F.2d 585 ( 1990 )

Glen W. WILLIAMS, Plaintiff-Appellant, v. Otis R. BOWEN, M.... , 844 F.2d 748 ( 1988 )

Annie MURPHY, Appellant, v. Louis W. SULLIVAN, Secretary of ... , 953 F.2d 383 ( 1992 )

Randy Abercrombie v. City of Catoosa, Oklahoma Mayor Curtis ... , 896 F.2d 1228 ( 1990 )

Linda S. Thompson v. Louis W. Sullivan, M.D., Secretary of ... , 987 F.2d 1482 ( 1993 )

Mark GAY, Plaintiff-Appellant, v. Louis W. SULLIVAN, M.D., ... , 986 F.2d 1336 ( 1993 )

Jerry D. BROWN, Plaintiff-Appellant, v. Otis R. BOWEN, ... , 801 F.2d 361 ( 1986 )

Donald G. Hargis v. Louis W. Sullivan, Secretary of Health ... , 945 F.2d 1482 ( 1991 )

Jose Archie DIAZ, Plaintiff-Appellant, v. SECRETARY OF ... , 898 F.2d 774 ( 1990 )

Ramona KEPLER, Plaintiff-Appellant, v. Shirley S. CHATER, ... , 68 F.3d 387 ( 1995 )

View All Authorities »