Cleveland v. Chater

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 27 1997
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
KENNETH R. CLEVELAND,
Plaintiff-Appellant,
v. No. 96-5242
(D.C. No. 95-CV-456-W)
JOHN J. CALLAHAN, Acting (N.D. Okla.)
Commissioner of Social Security, *
Defendant-Appellee.
ORDER AND JUDGMENT **
Before ANDERSON, LOGAN, and EBEL, Circuit Judges.
*
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. The Commissioner has been substituted for
the Secretary in the caption. In the text, however, we continue to refer to the
Secretary because the Secretary was the appropriate party at the time of the
underlying decision.
**
This order and judgment is not binding precedent, except under the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.
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.
Plaintiff appeals from the district court’s order affirming the decision of the
Secretary denying his applications for social security disability and supplemental
security income benefits. We review the Secretary’s decision on the entire record
to determine whether it is supported by substantial evidence and whether the
Secretary applied correct legal standards. See Washington v. Shalala, 37 F.3d
1437, 1439 (10th Cir. 1994). Exercising jurisdiction under 42 U.S.C. § 405(g)
and 28 U.S.C. § 1291, we affirm.
Plaintiff alleges disability since January 9, 1993, when he suffered injuries
in an automobile accident. He complains of pain, headaches, weakness, lack of
strength in his left leg, sleep disturbance, forgetfulness, irritability, loss of
memory and concentration, dizziness, tinnitus, blurred vision, numbness, and
depression. After conducting a hearing, the Administrative Law Judge (ALJ)
determined plaintiff “has severe myofascial strain and is status post a mild
concussion, and is malingering with an antisocial personality disorder and drug
dependency in remission.” II Appellant’s App. at 30. The ALJ further
determined, at step four of the five-step sequential evaluation process, see
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20 C.F.R. §§ 404.1520, 416.920, that plaintiff has the residual functional capacity
(RFC) to perform his past relevant work as an automobile detailer, since that job
does not require lifting more than fifty pounds occasionally or lifting or carrying
more than twenty-five pounds frequently or significant dealings with the public.
See II Appellant’s App. at 30-31. The ALJ therefore concluded plaintiff is not
disabled. When the Appeals Council denied plaintiff’s request for review, the
ALJ’s decision became the Secretary’s final decision. Plaintiff sought judicial
review in the district court, and the parties consented to final disposition by the
magistrate judge, who affirmed the decision of the Secretary. This appealed
followed.
Plaintiff argues the ALJ did not conduct a proper analysis at step four to
determine whether he could perform his past work. First, plaintiff argues that the
ALJ failed to properly assess his RFC by failing to properly evaluate his
complaints of pain and failing to give weight to the opinions of his treating
physicians. Although plaintiff recognizes that credibility determinations are the
province of the Secretary, see Diaz v. Secretary of Health & Human Servs.,
898 F.2d 774, 777 (10th Cir. 1990), he contends that the ALJ did not closely and
affirmatively link his findings regarding pain to substantial evidence. Also, he
maintains the ALJ did not accord proper weight to the opinion of his treating
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physician, Dr. Duncan, and failed to properly consider the possibility that
psychological disorders might combine with plaintiff’s physical problems.
As plaintiff recognizes, the ALJ is not required to accept Dr. Duncan’s
brief, conclusory statement of June 2, 1993, that plaintiff is temporarily, totally
disabled, see II Appellant’s App. at 150. See Castellano v. Secretary of Health &
Human Servs., 26 F.3d 1027, 1029 (10th Cir. 1994) (holding Secretary has final
responsibility to determine disability and treating doctor’s opinion may be
rejected if conclusory and not supported by specific findings). We do not believe
the ALJ erred in rejecting the statement. Dr. Duncan’s most recent,
comprehensive report of July 1, 1993, did not indicate that plaintiff suffered from
a disabling condition. Rather, Dr. Duncan released plaintiff on June 21, 1993, to
normal activities as he was able to tolerate them. See II Appellant’s App. at 149.
Dr. Duncan reported that plaintiff had head trauma from the accident resulting in
“severe head pain” and “soft tissue injuries in the form of myofascial strain to the
cervical, thoracic and lumbar spine.” Id. He further reported achievement of
maximal recovery, some improvement in plaintiff’s condition, including
diminished cervical pain, but continuing recurring headaches. See id. Dr.
Duncan noted a need for future care only in the form of drug treatment and
physical therapy. See id.-4-
Dr. Duncan’s report is consistent with the other medical evidence in the
record, which indicates that plaintiff is not disabled. That evidence indicates
plaintiff received only conservative treatment for his accident injuries. Dr. Sikka
treated plaintiff for eleven days in June 1993 at the Northeast Oklahoma
Rehabilitation Hospital. At the time of admission, Dr. Sikka indicated plaintiff’s
prognosis was excellent and set goals to decrease his pain, decrease his pain
medication, increase his activities, and return him to his previous lifestyle and
vocation. See id. at 192-93. Dr. Sikka diagnosed plaintiff on discharge as having
a soft tissue injury, mild post concussion syndrome, nonorganic pain behavior,
and psychological overlay. See id. at 186. At that time, his spine was normal,
and he was able to manage his pain, was “very active,” and had met his long-term
goals. See id. at 187. Dr. Sikka released plaintiff to light-duty work not
requiring lifting greater than thirty pounds. See id. Upon release, however,
plaintiff still suffered from headaches and neck, back, and leg pain. See id. at
195. Dr. Lee, a psychologist, who indicated plaintiff “impresses me as being
totally disabled,” based that impression solely on plaintiff’s complaints. See id.
at 183. The ALJ properly gave little weight to his opinion. See Castellano,
26 F.3d at 1029.
Dr. Blake, who did a consulting psychiatric examination in April 1994,
noted little discomfort or pain. See II Appellant’s App. at 215. He diagnosed
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plaintiff as malingering with questionable residue from his accident. See id. at
216. Dr. Dalessandro, who also performed a consulting examination, determined
that plaintiff was uncooperative and had no problems getting on or off the
examining table, even though movement resulted in pain. See id. at 219-20. He
reported that it was “difficult to ascertain if [plaintiff was] in the extreme pain he
purports to be in.” Id. at 221.
Plaintiff believes the ALJ improperly relied on the reports of the consulting
doctors. Although the treating physician’s opinion regarding the severity of a
claimant’s impairments is generally favored over that of a consulting physician,
see Reid v. Chater, 71 F.3d 372, 374 (10th Cir. 1995), the ALJ did not give
inappropriate weight to the consulting doctors. Because there was no evidence
that plaintiff suffered permanent disability at the time he was released by his
treating doctors, the ALJ properly considered the consulting doctors’ questioning
of his credibility.
Contrary to plaintiff’s argument, the ALJ did not ignore plaintiff’s
complaints of pain. Rather, the ALJ considered his complaints in accordance with
Luna v. Bowen, 834 F.2d 161 (10th Cir. 1987), see II Appellant’s App. at 25, 28,
29, and determined they were credible to the extent he could perform medium
work. Also, the ALJ considered plaintiff’s alleged mental impairments and took
the only credible impairment, his inability to have substantial contact with the
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public, into account in determining plaintiff could perform his past work as an
automobile detailer. Because the ALJ’s credibility findings regarding pain are
closely and affirmatively linked to substantial evidence and are not merely
conclusory, see Huston v. Bowen, 838 F.2d 1125, 1133 (10th Cir. 1988), we defer
to those findings, see Diaz, 898 F.2d at 777.
Plaintiff argues the ALJ failed to make the required findings about the
specific demands of his past work as an automobile detailer. The only
information regarding plaintiff’s past work as an automobile detailer was
contained in disability and vocational reports. Those reports contained no
information concerning the lifting, carrying, and bending demands of the job as
he performed it or the amount of contact he had with the public. Plaintiff,
therefore, argues the ALJ erred in failing to develop the record as to plaintiff’s
past work. Also, he challenges the ALJ’s ultimate conclusion that he is capable
of performing his past work as an automobile detailer.
We conclude plaintiff did not meet his burden of proving an inability to
return to his past work. See Potter v. Secretary of Health & Human Servs.,
905 F.2d 1346, 1349 (10th Cir. 1990). In May of 1993, Dr. Sikka released
plaintiff to light work where he did not have to lift more than thirty pounds. See
II Appellant’s App. at 187. There is no medical evidence in the record indicating
plaintiff has a back injury limiting his ability to lift or carry, however, and Dr.
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Duncan released him to normal activities, which would include medium work, as
he was able to tolerate them. The ALJ recognized plaintiff has some limitation of
motion, pain, and some decreased strength in his left leg, but no medical tests or
other evidence indicated he cannot perform medium work. Cf. 20 C.F.R.
§§ 404.1529(c)(3); 416.929(c)(3) (stating use of medication or other treatment to
relieve pain may indicate severe pain).
Although the ALJ did not question plaintiff regarding his specific duties as
an automobile detailer, the evidence in the record, set forth above, supports the
ALJ’s conclusion that he is capable of performing this medium work as it is
generally performed in the national economy. See Andrade v. Secretary of Health
& Human Servs., 985 F.2d 1045, 1050-51 (10th Cir. 1993) (noting past work
includes claimant’s former occupation as it is generally performed in the national
economy). Thus, the ALJ satisfied his duty of inquiry and factual development.
See Henrie v. United States Dep’t of Health & Human Servs., 13 F.3d 359, 361
(10th Cir. 1993). Contrary to plaintiff’s suggestion, the Secretary had no
obligation to call a vocational expert to testify whether plaintiff could perform his
past work. See Musgrave v. Sullivan, 966 F.2d 1371, 1376 (10th Cir. 1992).
Because the ALJ adequately considered plaintiff’s physical and mental
RFC, the physical and mental demands of his past work, and whether he has the
ability to meet those job demands despite the RFC limitations he may have, see
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Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir. 1996); Henrie, 13 F.3d at 361,
we conclude there is substantial evidence in the record to support the ALJ’s
conclusion that plaintiff can perform his past relevant work as an automobile
detailer and is not disabled.
The judgment of the United States District Court for the Northern District
of Oklahoma is AFFIRMED.
Entered for the Court
Stephen H. Anderson
Circuit Judge
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