UNITED STATES COURT OF APPEALS Filed 1/6/97 FOR THE TENTH CIRCUIT
LEON HILL,
Plaintiff-Appellant,
v. No. 96-7046 (D.C. No. CV-95-195) SHIRLEY S. CHATER, Commissioner (E.D. Okla.) of Social Security, *
Defendant-Appellee.
ORDER AND JUDGMENT **
Before EBEL and HENRY, Circuit Judges, and DOWNES, *** District Judge.
* 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. In the text we refer to the Secretary because she was the appropriate party at the time of the underlying administrative 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 ** This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. *** Honorable William F. Downes, District Judge, United States District Court for the District of Wyoming, sitting by designation. 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.
Claimant Leon Hill appeals from the district court’s order affirming the
denial of his application for supplemental security income benefits by the
Secretary of Health and Human Services (Secretary). After his claim was denied
administratively, a hearing was held before an administrative law judge (ALJ)
who denied benefits at step four of the five-step sequential evaluation process.
See Williams v. Bowen, 844 F.2d 748, 750-51 (10th Cir. 1988)(discussing five
steps). The ALJ concluded that claimant could perform his past work as a bus
driver. The Appeals Council denied review. The district court adopted the
magistrate judge’s recommendation to uphold the Secretary’s decision, and
claimant now appeals to this court. We affirm.
We review the Secretary’s decision to determine whether the findings of
fact are supported by substantial evidence based on the entire record, and to
ascertain whether she applied the correct legal standards. 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.’” Soliz v. Chater, 82 F.3d 373, 375 (10th Cir.
-2- 1996)(quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)(further quotation
omitted)). We do not reweigh the evidence. Hamilton v. Secretary of Health &
Human Servs., 961 F.2d 1495, 1498 (10th Cir. 1992).
Claimant alleges disability due to pain in his back, chest and shoulder,
numbness and weakness in his left hand and leg, memory deficits and other
residuals of a mild stroke. He maintains the ALJ committed the following errors
in arriving at the decision to deny him benefits: (1) the ALJ did not obtain a
consultative evaluation of claimant’s arm impairment, (2) the ALJ improperly
evaluated claimant’s credibility and failed to link the testimony to the other
evidence, (3) the ALJ’s evaluation of claimant’s residual functional capacity was
flawed, and (4) the ALJ erred in characterizing claimant’s past work as light work
because the Dictionary of Occupational Titles lists bus driver as medium work.
Claimant maintains that a consultative evaluation was necessary to evaluate
his arm impairment. Relying on the reports of the consulting physician and the
psychological tester, he claims that the evidence available to the ALJ was
inadequate to ascertain the extent of his manipulative impairment. The consulting
physician stated that claimant’s “grip strength was slightly decreased on the left.”
Appellant’s app. vol. II at 98 (emphasis added). The psychological tester noted
that claimant’s hands trembled significantly during the psychological testing. The
ALJ did not credit as medical evidence the tester’s observation that claimant’s
-3- hands trembled because the tester was not a physician, and the medical evidence
did not support a finding that claimant’s hands or arms were significantly
impaired. The ALJ gave specific, legitimate reasons for rejecting the tester’s
remarks about claimant’s manipulative problems. Cf. Miller v. Chater, 99 F.3d
972, 976 (10th Cir. 1996)(ALJ must give specific, legitimate reasons for rejecting
treating physician’s opinion). Because the medical evidence from the consulting
physician was adequate to evaluate claimant’s condition, the ALJ was not
required to obtain a consultative evaluation of claimant’s arms and hands. Cf.
20 C.F.R. § 404.1512(e)(where medical evidence is inadequate to determine
whether claimant is disabled, additional information will be sought).
Claimant next asserts that the ALJ improperly assessed his credibility
because the ALJ failed to link his conclusion to the evidence. Claimant produced
medical evidence to establish that he suffered from a pain-producing impairment;
therefore, the ALJ was required to evaluate his subjective complaints of disabling
pain, and to “decide whether he believe[d them].” Kepler v. Chater, 68 F.3d 387,
391 (10th Cir. 1995)(quotation omitted). In evaluating a claimant’s pain, an ALJ
should consider factors such as
the levels of medication and their effectiveness, the extensiveness of the attempts (medical or nonmedical) to obtain relief, the frequency of medical contacts, the nature of daily activities, subjective measures of credibility that are peculiarly within the judgment of the ALJ, the motivation of and relationship between the claimant and
-4- other witnesses, and the consistency or compatibility of nonmedical testimony with objective medical evidence.
Id. (quotations omitted).
Here, the ALJ considered the relevant factors, noting that the medical
evidence indicated that claimant’s chest pains responded to medication, he had
full function of his upper extremities, he had no neurological deficits or muscle
weakness, he had only mild to moderate degenerative spinal disease, and there
was no evidence of considerable progressive changes in his back condition. The
ALJ also noted that claimant had not required extensive medical treatment since
1986, and did not require prescription medications. In addition, the ALJ
considered claimant’s daily activities. Under the circumstances, we will defer to
the ALJ’s credibility determination. Gay v.
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UNITED STATES COURT OF APPEALS Filed 1/6/97 FOR THE TENTH CIRCUIT
LEON HILL,
Plaintiff-Appellant,
v. No. 96-7046 (D.C. No. CV-95-195) SHIRLEY S. CHATER, Commissioner (E.D. Okla.) of Social Security, *
Defendant-Appellee.
ORDER AND JUDGMENT **
Before EBEL and HENRY, Circuit Judges, and DOWNES, *** District Judge.
* 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. In the text we refer to the Secretary because she was the appropriate party at the time of the underlying administrative 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. *** Honorable William F. Downes, District Judge, United States District Court for the District of Wyoming, sitting by designation. 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.
Claimant Leon Hill appeals from the district court’s order affirming the
denial of his application for supplemental security income benefits by the
Secretary of Health and Human Services (Secretary). After his claim was denied
administratively, a hearing was held before an administrative law judge (ALJ)
who denied benefits at step four of the five-step sequential evaluation process.
See Williams v. Bowen, 844 F.2d 748, 750-51 (10th Cir. 1988)(discussing five
steps). The ALJ concluded that claimant could perform his past work as a bus
driver. The Appeals Council denied review. The district court adopted the
magistrate judge’s recommendation to uphold the Secretary’s decision, and
claimant now appeals to this court. We affirm.
We review the Secretary’s decision to determine whether the findings of
fact are supported by substantial evidence based on the entire record, and to
ascertain whether she applied the correct legal standards. 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.’” Soliz v. Chater, 82 F.3d 373, 375 (10th Cir.
-2- 1996)(quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)(further quotation
omitted)). We do not reweigh the evidence. Hamilton v. Secretary of Health &
Human Servs., 961 F.2d 1495, 1498 (10th Cir. 1992).
Claimant alleges disability due to pain in his back, chest and shoulder,
numbness and weakness in his left hand and leg, memory deficits and other
residuals of a mild stroke. He maintains the ALJ committed the following errors
in arriving at the decision to deny him benefits: (1) the ALJ did not obtain a
consultative evaluation of claimant’s arm impairment, (2) the ALJ improperly
evaluated claimant’s credibility and failed to link the testimony to the other
evidence, (3) the ALJ’s evaluation of claimant’s residual functional capacity was
flawed, and (4) the ALJ erred in characterizing claimant’s past work as light work
because the Dictionary of Occupational Titles lists bus driver as medium work.
Claimant maintains that a consultative evaluation was necessary to evaluate
his arm impairment. Relying on the reports of the consulting physician and the
psychological tester, he claims that the evidence available to the ALJ was
inadequate to ascertain the extent of his manipulative impairment. The consulting
physician stated that claimant’s “grip strength was slightly decreased on the left.”
Appellant’s app. vol. II at 98 (emphasis added). The psychological tester noted
that claimant’s hands trembled significantly during the psychological testing. The
ALJ did not credit as medical evidence the tester’s observation that claimant’s
-3- hands trembled because the tester was not a physician, and the medical evidence
did not support a finding that claimant’s hands or arms were significantly
impaired. The ALJ gave specific, legitimate reasons for rejecting the tester’s
remarks about claimant’s manipulative problems. Cf. Miller v. Chater, 99 F.3d
972, 976 (10th Cir. 1996)(ALJ must give specific, legitimate reasons for rejecting
treating physician’s opinion). Because the medical evidence from the consulting
physician was adequate to evaluate claimant’s condition, the ALJ was not
required to obtain a consultative evaluation of claimant’s arms and hands. Cf.
20 C.F.R. § 404.1512(e)(where medical evidence is inadequate to determine
whether claimant is disabled, additional information will be sought).
Claimant next asserts that the ALJ improperly assessed his credibility
because the ALJ failed to link his conclusion to the evidence. Claimant produced
medical evidence to establish that he suffered from a pain-producing impairment;
therefore, the ALJ was required to evaluate his subjective complaints of disabling
pain, and to “decide whether he believe[d them].” Kepler v. Chater, 68 F.3d 387,
391 (10th Cir. 1995)(quotation omitted). In evaluating a claimant’s pain, an ALJ
should consider factors such as
the levels of medication and their effectiveness, the extensiveness of the attempts (medical or nonmedical) to obtain relief, the frequency of medical contacts, the nature of daily activities, subjective measures of credibility that are peculiarly within the judgment of the ALJ, the motivation of and relationship between the claimant and
-4- other witnesses, and the consistency or compatibility of nonmedical testimony with objective medical evidence.
Id. (quotations omitted).
Here, the ALJ considered the relevant factors, noting that the medical
evidence indicated that claimant’s chest pains responded to medication, he had
full function of his upper extremities, he had no neurological deficits or muscle
weakness, he had only mild to moderate degenerative spinal disease, and there
was no evidence of considerable progressive changes in his back condition. The
ALJ also noted that claimant had not required extensive medical treatment since
1986, and did not require prescription medications. In addition, the ALJ
considered claimant’s daily activities. Under the circumstances, we will defer to
the ALJ’s credibility determination. Gay v. Sullivan, 986 F.2d 1336, 1339 (10th
Cir. 1993).
Next we address claimant’s argument that the ALJ’s evaluation of his
residual functional capacity (RFC) was flawed. In addition to the arguments
discussed above regarding evaluation of his manipulative impairment and his
credibility, claimant asserts that the ALJ failed to point to specific evidence to
support his finding that claimant retains the RFC for light work with occasional
medium exertion job functions. On the contrary, the ALJ’s review of the
testimony and documentary evidence demonstrates substantial evidence to support
the RFC determination.
-5- Finally, we address claimant’s argument that the ALJ erred in
characterizing claimant’s past work as light work, contrary to the classification in
the Dictionary of Occupational Titles. Claimant bears the burden to show that he
cannot perform his particular former job or his former occupation as generally
performed throughout the national economy. Andrade v. Secretary of Health &
Human Servs., 985 F.2d 1045, 1051 (10th Cir. 1993); Social Security Ruling
82-61. The ALJ determined that claimant could perform his specific job as a bus
driver. Therefore, the ALJ was not bound by the classification of bus driver in
the Dictionary of Occupational Titles.
We have carefully reviewed the record and we have considered claimant’s
arguments in light of the record. We conclude that substantial evidence supports
the determination that claimant could perform his past work as a bus driver, and
therefore, he was not disabled within the meaning of the Social Security Act.
The judgment of the United States District Court for the Eastern District of
Oklahoma is AFFIRMED.
Entered for the Court
Robert H. Henry Circuit Judge
-6- -7-