Hall v. Shalala
| Decision Date | 29 November 1993 |
| Citation | 999 F.2d 547 |
| Parties | NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of |
| Court | U.S. Court of Appeals — Tenth Circuit |
Before SEYMOUR and TACHA, Circuit Judges, and ROGERS, * Senior District Judge.
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.
Claimant Phillip W. Hall Sr. appeals an order of the district court affirming the decision of the Secretary of Health and Human Services denying his request for social security disability benefits and for supplemental security income disability benefits. On appeal, Claimant contends that (1) the findings of the Secretary were not supported by substantial evidence, and (2) the administrative law judge based his decision on improper hypothetical questions to the vocational expert.
Claimant was twenty-three years old at the time he filed for social security disability benefits on March 16, 1990. The application was denied initially and on reconsideration. Claimant requested, and was granted, a hearing before an administrative law judge (ALJ) on November 7, 1990. Claimant claims disability from May 10, 1987, due to a back injury he sustained while lifting an ice cooler at his job as a clerk in a convenience store.
Claimant has a high school education. He has held numerous jobs in the past with the most recent being as a night clerk in a convenience store, as a buffer in a tire retreading shop, and as a thread clipper in a clothing factory. It appears that he has never held any one job for longer than nine months. R.Vol. II at 65.
The ALJ denied claimant's application for benefits, finding that claimant was able to return to his previous light work activity as a thread cutter or as a clerk. The Appeals Council declined to review the ALJ's decision. The decision thus became the final decision of the Secretary. Claimant filed for review and the district court affirmed. Claimant appeals. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Our review of the Secretary's decision is limited to determining whether the decision is supported by substantial evidence and "whether the Secretary applied correct legal standards." Pacheco v. Sullivan, 931 F.2d 695, 696 (10th Cir.1991). In order to determine whether the Secretary's decision is supported by substantial evidence, we must meticulously examine the record. However, we may neither reweigh the evidence nor substitute our discretion for that of the Secretary. Casias v. Secretary of Health & Human Servs., 933 F.2d 799, 800 (10th Cir.1991). The claimant has the burden of proving a disability that prevents him or her from engaging in prior work activity. Once such a showing is made, the burden shifts to the Secretary to show the claimant can perform jobs existing in the national economy. Ray v. Bowen, 865 F.2d 222, 224 (10th Cir.1989).
In order to determine whether a claimant is under a disability, the Secretary applies a five-step process. 20 C.F.R. §§ 404.1520, 416.920; see Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir.1988) (). If a claimant is determined to be disabled or not disabled at any step, the evaluation process ends there. Sorenson v. Bowen, 888 F.2d 706, 710 (10th Cir.1989).
Following a hearing on November 7, 1990, the ALJ found that claimant had "severe impairments consisting of obesity and a defect at the pars interarticularis, L5," but that claimant's impairments are not equal to one listed in Appendix 1, Subpart P, Regulations No. 4. R.Vol. II at 16. 1 The ALJ further found that, although claimant was restricted from jobs at which he would have to lift and carry in excess of twenty pounds, he had the residual functional capacity for sedentary and light work and therefore could return to his past relevant work as a clerk or a thread cutter, or as a bench worker, inspector, or clerical worker as suggested by the vocational expert. Id.
Here, the ALJ's determination that claimant is not disabled is well supported by the evidence. Although claimant contends that his back injury occurred on May 10, 1987, it appears that he continued working at the convenience store until May 22, 1987. At this time, he sought medical treatment from Dr. James Morris in Atlanta, Texas. The record indicates that claimant was referred by Dr. Morris to Dr. Greg Smolarz in Texarkana, Texas. Medical records from Dr. Smolarz indicate that claimant continued to complain of back pain radiating into his left leg. R.Vol. II at 119. He reported to Dr. Smolarz that he had sought treatment from a chiropractor which had not helped. Id. Although Dr. Smolarz noted some tenderness in claimant's lower left back area, claimant displayed no motor, reflex, or sensory problems. Id.
Claimant continued to complain of pain despite Dr. Smolarz's conservative therapy and finally requested a second opinion. On referral from Dr. Smolarz, on August 7, 1987, claimant entered treatment with Dr. A.E. Dean, Jr., an orthopedic surgeon. Following x-rays, Dr. Dean initially diagnosed "[s]pondylolisis, L5, with possibly some nerve root irritation." Id. at 116.
In October 1987, Dr. Dean reported that the results of a bone scan were negative and ordered a CT scan, providing the table could accommodate claimant's weight. Id. at 115. He discontinued claimant's back brace and ordered him to walk and do back exercises. He continued claimant's muscle relaxants. Id.
Dr. Dean's notes in November 1987, indicate that they were able to do the CT scan, and that it showed no abnormalities. Id. at 114. Dr. Dean opined that the source of claimant's alleged pain could be "a stress fracture or just a spondylolysis." 2 Id. He noted that he could do nothing further for claimant except possibly a surgery which he felt would be unsuccessful due to claimant's excessive weight. Id.
In December 1987, Dr. Dean again x-rayed claimant's thoracic spine which showed no abnormalities. Id. at 113. He recommended that claimant take extra strength Tylenol or Advil, and walk and do his back exercises. Id. at 113. In February 1988, Dr. Dean opined that claimant was capable of working and recommended that claimant "try to find some type of gainful employment." Id. at 111.
Dr. E.C. Simonton examined claimant at the request of the Secretary. Dr. Simonton noted that x-rays of claimant's lumbar spine revealed no evidence of fracture, dislocation, or anomaly. Id. at 124. He further noted that there was no evidence of joint narrowing or arthritic changes and that claimant's motion restrictions were voluntary. Id.
Claimant argues that, in considering his allegations of disabling pain, the ALJ did not properly apply the standards articulated in Luna v. Bowen, 834 F.2d 161, 165-66 (10th Cir.1987). On the contrary, it appears clear that the ALJ did consider the Luna standards, but determined that there was little, if any, objective medical evidence to support claimant's allegations of disabling back pain. Claimant testified that, at the time of the hearing, he was not receiving any medical treatment for his back problem. R.Vol. II at 33. He stated that he spends his days caring for his three children, doing laundry, keeping house, taking the children to school, driving the car, and visiting his father. Id. at 33-35. The record also indicates that claimant was not taking any medication for pain stronger than Tylenol and Advil.
The record further indicates that none of claimant's treating physicians determined that claimant's pain was disabling. On the contrary, Dr. Dean noted several times, as part of claimant's treatment recommendations, that he should seek gainful employment. Id. at 111, 112, 113. He noted that claimant should avoid "a lot of heavy lifting or manual labor and such, but he can work." Id. at 111.
The ALJ did not find claimant's allegations of pain, movement restriction, and leg numbness to be credible. See Ellison v. Sullivan, 929 F.2d 534, 537 (10th Cir.1990) (). We give the credibility determinations of the ALJ great deference. Williams, 844 F.2d at 755. Our review of the record in this case affords us no basis for disturbing the ALJ's determinations.
Claimant also argues that the ALJ failed to adequately develop the record where claimant was represented by a paralegal. The ALJ has an affirmative duty to "fully and fairly develop the record regardless of whether the applicant is represented by an attorney or a paralegal." Baker v. Bowen, 886 F.2d 289, 292 n. 1 (10th Cir.1989). In determining whether the ALJ met the heightened obligation to fully develop the record in a case where a claimant is unrepresented, we ask whether the ALJ asked sufficient questions to determine "(1) the nature of a claimant's alleged impairments, (2) what on-going treatment and medication the claimant is receiving, and (3) the impact of the alleged impairment on a claimant's daily routine and activities." Musgrave v. Sullivan, 966 F.2d 1371, 1375 (10th Cir.1992).
Claimant contends that the ALJ failed in his duty "to ask any probing questions or to ask any material questions." We do not agree. The ALJ asked questions of claimant regarding his claims...
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Hernandez v. Colvin
...of Plaintiff's obesity which are not accounted for in the ALJ's RFC determination. See Hall v. Shalala, No. 92-7140, 999 F.2d 547, 1993 WL 261957, *5, n.1 (10th Cir. June 28, 1993) (unpublished) (finding that Plaintiff's claim that the ALJ failed to adequately consider his obesity as disabl......