Sammy Dever v. Shirley S. Chater, Commissioner of Social Security, 1

70 F.3d 1282

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

Sammy DEVER, Plaintiff-Appellant,
v.
Shirley S. CHATER, Commissioner of Social Security,1 Defendant-Appellee.

No. 95-7042.

United States Court of Appeals, Tenth Circuit.

Nov. 24, 1995.

Before TACHA and BARRETT, Circuit Judges, and BROWN,*** Senior District Judge.

ORDER AND JUDGMENT2

TACHA, Circuit Judge.

1

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.

2

Claimant Sammy A. Dever appeals from the district court's order affirming the decision of the Secretary of Health and Human Services, denying his application for social security disability and supplemental income benefits. Agency regulations establish a five-step sequential analysis to evaluate disability claims. See Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir.1988)(describing five steps in detail). Here, the administrative law judge (ALJ) reached step five, determining that claimant could perform a significant number of jobs in the national economy. Our jurisdiction over this appeal arises under 28 U.S.C. 1291. Our review of the agency's decision is limited to determining whether the decision is supported by substantial evidence, and whether the correct legal standards were applied. Castellano v. Secretary of Health & Human Servs., 26 F.3d 1027, 1028 (10th Cir.1994).

3

On appeal, claimant contends that the ALJ: 1) improperly characterized his mental impairments, 2) ignored his treating physician's opinion, and 3) failed to properly analyze his credibility and complaints of pain. Further, claimant argues that he meets one of the impairments listed in the social security regulations and, therefore, should be considered disabled under step three of the sequential analysis.

4

After careful review of the record on appeal and after consideration of the parties' briefs in light of the standards set out above, we conclude that substantial evidence supports the agency's decision and that the ALJ applied the correct legal standards. Therefore, for substantially the same reasons set forth in the district court's order dated January 30, 1995, adopting the Findings and Recommendation of the magistrate judge, dated June 28, 1994, the judgment of the United States District Court for the Eastern District of Oklahoma is AFFIRMED.

1

Effective March 31, 1995, the functions of the Secretary of Health and Human Services in social security cases were transferred to the Commissioner of Social Security. P.L. No. 103-296. Pursuant to Fed. R.App. P. 43(c), Shirley S. Chater, Commissioner of Social Security, is substituted for Donna E. Shalala, Secretary of Health and Human Services, as the defendant in this action. Although we have substituted the Commissioner for the Secretary in the caption, in the text we continue to refer to the Secretary because she was the appropriate party at the time of the underlying decision

***

Honorable Wesley E. Brown, Senior District Judge, United States District Court for the District of Kansas, sitting by designation

2

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 the court's General Order filed November 29, 1993. 151 F.R.D. 470