Kemper v. Colvin

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 3, 2015
Elisabeth A. Shumaker
Clerk of Court
GARY ALLEN KEMPER,
Plaintiff - Appellant,
v. No. 14-1293
(D.C. No. 1:13-CV-00889-RBJ)
CAROLYN W. COLVIN, Acting (D. Colo.)
Commissioner of Social Security,
Defendant - Appellee.
ORDER AND JUDGMENT*
Before MORITZ, PORFILIO, and BALDOCK, Circuit Judges.
Gary Allen Kemper, proceeding pro se, appeals from a district court order
affirming the Commissioner’s decision to deny his application for supplemental
security income. Exercising jurisdiction under 28 U.S.C. § 1291 and
42 U.S.C. § 405(g), we affirm.
*
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)(2); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
I. Background
Mr. Kemper alleges disability beginning January 10, 1994, due to back and
neck problems. Following two remands for further administrative proceedings, an
administrative law judge (ALJ) held a hearing on January 23, 2013, at which
Mr. Kemper and a vocational expert testified. The ALJ found that Mr. Kemper
suffered from the severe impairment of degenerative disc disease of the cervical,
thoracic, and lumbar spine. The ALJ then determined that Mr. Kemper could not do
his past work as an iron worker, but he retained the residual functional capacity to
perform a limited range of light work that exists in significant numbers in the
national economy. Accordingly, the ALJ determined at step five of the controlling
five-step sequential analysis, see Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir.
2009) (explaining the five-step analysis), that Mr. Kemper was not disabled under the
Social Security Act. The Appeals Council denied review and the district court
affirmed.
II. Legal Standards
We review the agency’s decision to ascertain whether it is supported by
substantial evidence in the record and to evaluate whether the correct legal standards
were applied. Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012).
“Substantial evidence is more than a mere scintilla and is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Flaherty v.
Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007) (internal quotation marks omitted). To
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determine whether substantial evidence supports the agency’s decision, we examine
the record as a whole, but we do not reweigh the evidence. Id. We also do not
“substitute our judgment for that of the agency.” Bowman v. Astrue, 511 F.3d 1270,
1272 (10th Cir. 2008) (internal quotation marks omitted). In this context, “disability”
requires both “an inability to engage in any substantial gainful activity” and “a
physical or mental impairment, which provides reason for the inability.” Barnhart v.
Walton, 535 U.S. 212, 217 (2002) (internal quotation marks omitted).
III. Discussion
Mr. Kemper challenges the ALJ’s finding that his claims concerning the
intensity, persistence, and limiting effects of his symptoms were not entirely credible.
He also argues that the ALJ improperly weighed the medical evidence. And he
disagrees with Dr. Kamer’s opinion on his abilities and limitations, which we
construe as arguing that the ALJ accorded too much weight to Dr. Kamer’s opinion.
It is well-established that “[c]redibility determinations are peculiarly the
province of the finder of fact, and we will not upset such determinations when
supported by substantial evidence.” Wilson v. Astrue, 602 F.3d 1136, 1144 (10th Cir.
2010) (internal quotation marks omitted). An ALJ must consider all the medical
opinions in the record and discuss the weight each opinion is assigned. Mays v.
Colvin, 739 F.3d 569, 578 (10th Cir. 2014).
We have thoroughly reviewed the parties’ briefs, the record, and the applicable
law. We, like the district court, conclude that the ALJ properly evaluated
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Mr. Kemper’s credibility and weighed the medical evidence.1 We determine that
substantial evidence supports the ALJ’s decision and that the correct legal standards
were applied. Accordingly, finding no reversible error, we affirm the denial of
supplemental security benefits for substantially the same reasons as those stated by
the learned district court in its order dated July 18, 2014.
Entered for the Court
Bobby R. Baldock
Circuit Judge
1
Mr. Kemper asserts error in the district court’s statement that Dr. Kamer
reviewed the medical records, even though Dr. Kamer’s report says no medical
records were submitted. The court’s statement does not demonstrate reversible error.
The ALJ’s decision giving significant weight to Dr. Kamer’s opinion was not based
on Dr. Kamer’s review of medical records. We have “independently determine[d]
[that] the ALJ’s decision is free from legal error and supported by substantial
evidence.” Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005).
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