Davis v. Barnhart

85 F. App'x 170
CourtCourt of Appeals for the Tenth Circuit
DecidedJanuary 7, 2004
Docket03-7009
StatusUnpublished
Cited by1 cases

This text of 85 F. App'x 170 (Davis v. Barnhart) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Davis v. Barnhart, 85 F. App'x 170 (10th Cir. 2004).

Opinion

ORDER AND JUDGMENT *

BRORBY, Senior Circuit Judge.

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); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

Plaintiff seeks review of the district court’s order affirming the Social Security Commissioner’s denial of his application for social security disability and supplemental security income benefits. We have jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291, and we affirm.

Plaintiff filed his benefits applications in October of 1998, alleging disability as of October of 1995 due to fatigue, dizziness, nausea, shortness of breath, right leg cramps, and back pain. Plaintiff is a younger individual, see 20 C.F.R. §§ 1563(c); 416.963(c), with about thirty hours of college education. His past relevant work was primarily as an oil field electrician; he has also done odd jobs.

Following a hearing, the administrative law judge (ALJ) determined, at step five of the sequential disability evaluation, that plaintiff was not disabled. See Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988) (discussing sequential evaluation). Specifically, the ALJ determined that plaintiff retains the residual functional capacity (RFC) to perform a wide range of light work, subject to certain limitations, and that occupations exist in the regional or national economy that plaintiff can perform regardless of his impairments. Aplt. App. Vol. 2 at 17. The ALJ further found plaintiff had no medically determinable mental impairments. Id. at 18. We review the ALJ’s decision only to determine whether his factual findings are supported by substantial evidence and whether he applied the correct legal standards. See Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir.2003).

*172 The medical evidence reflects that plaintiff was injured in an accident on an offshore oil rig in 1994. Conservative treatment for this injury proved ineffective, and in October of 1996 he underwent a right L5-S1 laminectomy and discectomy. In March of 1997, his treating physician, Dr. Boone, noted that plaintiff had done well since the surgery, Aplt. App. at 132, had realized “good resolution of his radicular pain,” and had reached a point of maximum medical improvement. Id. Dr. Boone reported that plaintiff had “good motion strength bilaterally,” with “negative neurotensin signs” and nearly complete spinal range of motion. Dr. Boone further noted plaintiff continued to have some mechanical back pain and occasional posterior thigh and calf pain, but that this was of an “intermittent nature.” Id. at 133. Dr. Boone further rated plaintiff as permanently partially impaired related to the surgically treated disc pathology (10%), with an additional 1% due to disc pathology not addressed surgically. Id. Plaintiff was released with the medical recommendation that he “pursue light to light-medium work not to involve a lot of repetitive lifting more than 25 to 30 pounds and to avoid a lot of repetitive bending, stooping, climbing or squatting.” Id. Dr. Boone further suggested plaintiff avoid “positions which involve a lot of prolonged standing for more than one hour without [the] ability to rest or change positions.” Id.

The ALJ further considered clinical progress notes from 1999, which reflect treatment for chronic back pain, sciatia, somatic dysfunction of the thoracic and lumbar spines. Id. at 14; 173-77. The ALJ also considered plaintiff’s prescribed and over-the-counter pain medications. Id. at 15. Finally, the ALJ indicated he had carefully reviewed each exhibit and had considered plaintiffs subjective complaints of pain under the appropriate criteria. See id. at 14-15.

In district court and on appeal, plaintiff generally challenged the Commissioner’s decision as neither based on substantial evidence nor issued in accordance with correct legal standards. He further lists several specific issues regarding the ALJ’s decision.

First, plaintiff argues the ALJ mistook relevant facts and overlooked relevant evidence. We disagree. To the extent plaintiff claims error in the ALJ’s decisional statement that Dr. Boone found the back surgery “achieved good resolution of [plaintiffs] pain,” Aplt. Br. at 7-8, the ALJ in fact also quoted directly Dr. Boone’s statement that plaintiff had achieved “good resolution of his radicular pain.” Aplt. App, Yol. 2 at 14. Plaintiffs further suggestion that Dr. Boone would “see and show the results of the surgery in the most positive light,” Aplt. Br. at 8, is both speculative and unsupported by the record. Plaintiffs challenge to the ALJ’s characterization of Dr. Hillboe’s 1995 finding of “mildly severe degenerative disc changes” is likewise without merit; in addition, Dr. Hillboe’s determination predates Dr. Boone’s back surgery. Plaintiffs recitation of certain clinical findings and diagnoses not mentioned by the ALJ does not support his claim the ALJ did not consider this evidence. Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir.1996) (holding ALJ must consider all evidence, but need not discuss each piece). Rather, plaintiff is suggesting that this court reweigh the evidence, which, of course, we cannot do. See Kelley v. Chater, 62 F.3d 335, 337 (10th Cir.1995) (stating we will not reweigh evidence).

Next, plaintiff contends that ALJ erred by substituting his own medical knowledge for that of plaintiffs physicians and psychologists. Aplt. Br. at 11-15. Within this category, however, plaintiff argues *173 only that the ALJ erred in failing to order a psychological consultative examination and in completing a psychiatric review form himself. We disagree. Even assuming that plaintiffs attorney timely requested a psychological consultative examination, there is nothing in the medical record to suggest the need for such an examination. See generally Diaz v. Sec’y of Health & Human Servs., 898 F.2d 774, 778 (10th Cir.1990) (stating Secretary has broad latitude in ordering consultative examination); Hawkins v. Chater, 113 F.3d 1162

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Related

Davis v. Barnhart
237 F. App'x 339 (Tenth Circuit, 2007)

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Bluebook (online)
85 F. App'x 170, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-barnhart-ca10-2004.