Fox v. Chater

UNITED STATES COURT OF APPEALS
Filed 1/24/97
FOR THE TENTH CIRCUIT
CHARLES R. FOX,
Plaintiff-Appellant,
v. No. 96-7068
(D.C. No. CV-95-255-B)
SHIRLEY S. CHATER, Commissioner (E.D. Okla.)
of Social Security,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before ANDERSON, KELLY, and LUCERO, 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) and 10th Cir. R. 34.1.9. 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This order and judgment is not binding precedent, except under the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-appellant Charles R. Fox (claimant) appeals the district court’s
decision upholding the Commissioner’s denial of disability benefits and
supplemental security income. Claimant alleged that he had been disabled, since
April 1, 1989, from the residual effects of three back surgeries. The
administrative law judge (ALJ) determined, at step five of the applicable analysis,
20 C.F.R. §§ 404.1520, 416.920, that, although claimant could not perform his
past relevant work as a truck driver, he remained capable of performing other
work existing in the national economy. The Appeals Council denied review,
making the ALJ’s determination the Commissioner’s final decision.
This court reviews the Commissioner’s decision only to insure that the
record contains substantial evidence supporting her factual findings and that she
applied the law correctly. Bean v. Chater, 77 F.3d 1210, 1213 (10th Cir. 1995).
At step five, the Commissioner bears the burden of establishing that there is work
existing in the national economy that claimant remains capable of performing.
Saleem v. Chater, 86 F.3d 176, 178 (10th Cir. 1996).
Claimant argues that, in discrediting his complaints of disabling pain, the
ALJ failed to consider his inability to afford medical treatment and his fear of
addiction to prescription pain medication as justifications for not seeking further
treatment. In addition, claimant asserts that the ALJ should have contacted his
treating and consulting physicians concerning his ability to perform the sitting
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requirements of sedentary work. We need not address any of these arguments,
however, because claimant failed to raise these specific issues in his objections to
the magistrate judge’s recommendation. Soliz v. Chater, 82 F.3d 373, 375-76
(10th Cir. 1996). Further, the ALJ’s analysis of claimant’s complaints of
disabling pain was otherwise adequate. See Kepler v. Chater, 68 F.3d 387,
390-91 (10th Cir. 1995) (discussing proper analysis of complaints of disabling
pain).
We also need not address the issue of whether the ALJ erred by
determining that claimant could perform a full range of sedentary work and
denying claimant benefits based upon the application of the medical-vocational
guidelines, see 20 C.F.R. Pt. 404, Subpt. P, App. 2, because the ALJ also relied
upon the testimony of the vocational expert (VE) to deny benefits. While
claimant further argues that the ALJ’s reliance on the VE’s testimony was
misplaced because the questions eliciting that testimony did not reflect all of
claimant’s limitations, review of the record indicates that the ALJ’s questions to
the VE included all the limitations the ALJ found to be credible. See Gay v.
Sullivan, 986 F.2d 1336, 1341 (10th Cir. 1993). There is no reason apparent from
this record for this court not to defer to the ALJ’s credibility determination. See
Kepler, 68 F.3d at 391 (discussing appellate review of ALJ’s credibility
determination).
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The judgment of the United States District Court for the Eastern District of
Oklahoma is, therefore, AFFIRMED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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