Pointer v. Apfel

• Court: Court of Appeals for the Tenth Circuit
• Decided: November 9, 1999
• Docket: 98-6466
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS NOV 9 1999 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk

FANNIE L. POINTER,

Plaintiff-Appellant,

v. No. 98-6466 (D.C. No. 97-CV-1189-M) KENNETH S. APFEL, Commissioner, (W.D. Okla.) Social Security Administration,

Defendant-Appellee.

ORDER AND JUDGMENT *

Before TACHA , KELLY , and BRISCOE , 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

argument. See Fed. R. App. P. 34(f); 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* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. 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. Plaintiff appeals from the district court’s order adopting the magistrate

judge’s report and recommendation upholding the Commissioner’s decision to

deny plaintiff’s application for disability insurance benefits and supplemental

security benefits. We have jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C.

§ 1291 and affirm.

Plaintiff applied for benefits in August of 1994 alleging disability from

November 30, 1993, due to back, leg, and hip pain. The medical evidence reflects

generally that although she had reported her complaints to doctors on a number of

occasions, most of the objective medical tests have failed to account for her

claimed level of pain. The only limitation placed on her activities by a doctor

was a twenty-five pound lifting restriction.

The administrative law judge (ALJ) denied benefits at step four of the

five-part sequential process used to determine disability. See Williams v. Bowen ,

844 F.2d 748, 750-52 (10th Cir. 1988) (discussing five-step process). He

determined, on consideration of the evidence in the record and testimony

introduced at a hearing, that she retained the residual functional capacity to return

to her former relevant work as a short order cook.

Plaintiff claims the ALJ ignored her subjective testimony regarding her

pain because it was not supported by credible medical evidence. We disagree.

The ALJ noted her complaints of pain as part of his consideration of all the

-2- evidence, including extensive medical evidence, and found her allegations of

disabling pain to be unsupported by credible medical evidence. Credibility

determinations are properly the province of the ALJ, not to be disturbed unless

not supported by the evidence. See Casias v. Secretary of Health & Human

Servs. , 933 F.2d 799, 801 (10th Cir. 1991). In addition, medical records must be

consistent with nonmedical testimony as to the severity of pain. See Talley v.

Sullivan , 908 F.2d 585, 587 (10th Cir. 1990); Gaston v. Bowen , 838 F.2d 442,

447 (10th Cir. 1988) (“statements regarding the intensity and persistence of pain

must be reasonably consistent with the medical findings and signs”). Here the

ALJ considered and discussed substantial medical evidence, which simply does

not support plaintiff’s claims of disabling pain.

Plaintiff also contends that the ALJ ignored certain evidence and failed to

demonstrate what medical records he considered. We disagree. Although the

ALJ is required to consider all the evidence, he is not required to discuss every

piece of evidence. See Clifton v. Chater , 79 F.3d 1007, 1009-10 (10th Cir. 1996).

The ALJ’s decision reflects adequate consideration of the evidence.

-3- For these and the reasons set forth by the magistrate judge in his report and

recommendation filed September 9, 1998, we AFFIRM the judgment of the

district court upholding the decision of the Commissioner.

Entered for the Court

Paul J. Kelly, Jr. Circuit Judge

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