Shaffer v. Callahan

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 4 1998
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
JON W. SHAFFER,
Plaintiff-Appellant,
v. No. 97-5174
(D.C. No. 96-CV-586-J)
KENNETH S. APFEL, Commissioner, (N.D. Okla.)
Social Security Administration, *
Defendant-Appellee.
ORDER AND JUDGMENT **
Before TACHA, LOGAN, 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
*
Pursuant to Fed. R. App. P. 43(c), Kenneth S. Apfel is substituted for
John J. Callahan, former Acting Commissioner of Social Security, as the
defendant in this action.
**
This order and judgment is not binding precedent, except under the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.
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
Plaintiff Jon W. Shaffer appeals from an order of the district court
affirming the Commissioner’s determination that he is not entitled to disability
benefits. We affirm.
We review the Commissioner’s decision to determine whether his factual
findings were supported by substantial evidence in light of the entire record and
to determine whether he applied the correct legal standards. See Castellano v.
Secretary of Health & Human Servs., 26 F.3d 1027, 1028 (10th Cir. 1994).
Substantial evidence is “such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Id. (quotations omitted). In the course of
our review, we may “neither reweigh the evidence nor substitute our judgment for
that of the agency.” Casias v. Secretary of Health & Human Servs., 933 F.2d 799,
800 (10th Cir. 1991).
Mr. Shaffer alleged disability due to the effects of a back injury and
arthritis affecting multiple joints. The administrative law judge (ALJ) determined
that Mr. Shaffer was not disabled at step five of the five-step sequential process,
see Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988), finding that he
could perform light work with only temperature and humidity restrictions.
-2-
On appeal, Mr. Shaffer argues the ALJ erred in finding that Mr. Shaffer
could do the prolonged standing necessary to perform light work and he failed to
properly link his credibility findings to Mr. Shaffer’s complaints of pain. He also
asserts the ALJ erroneously failed to shift the burden of proof to the
Commissioner before he made the residual functional capacity (RFC)
determination.
Light work requires that the claimant be able to do a “good deal of walking
or standing or . . . sitting most of the time with some pushing and pulling of arm
or leg controls.” 20 C.F.R. § 404.1567(b). Mr. Shaffer has been diagnosed with
degenerative joint disease in his knees. He testified that he drives 200 miles a
week to run errands, although he is house bound when the temperature gets below
forty degrees. He can walk under a mile or for about thirty minutes before his
knees swell. He does housework, some gardening, and can carry three one-liter
bottles of soda. The medical evidence shows that he has normal range of motion
and gait.
Mr. Shaffer argues that even if the ALJ is correct that he was not disabled
in 1992 and 1993, by 1994, his condition had deteriorated due to marked arthritic
changes in his knees. The record shows that, in 1994, various physicians noted
Mr. Shaffer had some osteostatic changes, his knees were slightly tender, and he
had marked creptitus. No physician has placed any restrictions on Mr. Shaffer’s
-3-
ability to stand. Indeed, one physician noted that Mr. Shaffer was “experiencing
satisfactory relief of his symptoms,” App. Vol. II at 267; another suggested that
he begin a walking program, id. at 259; and a third reported that Mr. Shaffer
stated that he “occasionally” has “continual pain” in his knee which is affected
by stair climbing, id. at 268. The vocational expert opined that jobs exist in the
light work category which Mr. Shaffer can perform with his limitations. The
record supports the ALJ’s determination that Mr. Shaffer can perform light work.
Mr. Shaffer asserts the ALJ failed to make the proper linkage between his
credibility findings and Mr. Shaffer’s complaints of pain. In evaluating a
claimant’s pain, the ALJ must consider the level of medication the claimant uses
and its effectiveness, the claimant’s attempts to obtain relief, the frequency of his
medical contacts, the nature of his daily activities, his credibility, and the
consistency or compatibility of nonmedical testimony with objective medical
evidence. See Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995). “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).
While the ALJ could have discussed these factors more extensively, we see
no legal error. Mr. Shaffer’s daily activities are fairly comprehensive. He takes
pain medication, but his treating physicians have indicated that the medication
-4-
controls his pain effectively. He seeks regular medical intervention, but no
physician has indicated that intervention has been ineffective or that Mr. Shaffer
has been incapacitated by his medical problems. The ALJ’s credibility
determination is well supported by the record. 1
Finally, Mr. Shaffer contends the ALJ erroneously failed to shift the burden
of proof to the Commissioner until after he made the RFC determination. The
RFC determination is initially part of the step four evaluation and, thus, is made
before the burden of proof shifts at step five. See Hinkle v. Apfel, 132 F.3d
1349, 1352 (10th Cir. 1997); 20 C.F.R. § 1520(e), (f). No error occurred.
The judgment of the United States District Court for the Northern District
of Oklahoma is AFFIRMED.
Entered for the Court
Deanell Reece Tacha
Circuit Judge
1
We note, although the ALJ did not consider this fact, that Mr. Shaffer told
his treating physician in 1991 that he quit his job because of unsatisfactory work
conditions, not because of any physical impairment. See App. Vol. II at 121.
-5-