Hamilton v. Secretary of Health & Human Services of U.S., 91-3160

Citation961 F.2d 1495
Decision Date17 April 1992
Docket NumberNo. 91-3160,91-3160
Parties, Unempl.Ins.Rep. (CCH) P 16558A Cobern HAMILTON, Plaintiff-Appellant, v. SECRETARY OF HEALTH & HUMAN SERVICES, OF the UNITED STATES of America, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

David H.M. Gray of Hiebsch, Gragert, Hiebert, Gray & Davisson, Wichita, Kan., for plaintiff-appellant.

Lee Thompson, U.S. Atty., Stephen K. Lester, Asst. U.S. Atty., Wichita, Kan. (Frank V. Smith, Chief Counsel, and Sandra L. Wallace, Asst. Regional Counsel, Region VII, Dept. of Health & Human Services, Kansas City, Mo., of counsel), for defendant-appellee.

Before EBEL and BARRETT, Circuit Judges, and KANE, * Senior District Judge.

BARRETT, Senior Circuit Judge.

Claimant Cobern Hamilton appeals from the district court's grant of the Secretary's motion to affirm previous agency decisions denying Claimant's applications for social security benefits. 1 Claimant initially applied for social security disability benefits and supplemental security income benefits in 1985, alleging disability resulting from lower back pain, ulcers, and gout. Applications, Appellant's App., Transcript at 61, 88. After his applications were denied initially and on reconsideration, Claimant requested and received a de novo hearing before an administrative law judge (ALJ). The hearing resulted in a denial, and the Appeals Council denied Claimant's request for review. Action of Appeals Council, id. at 5. Claimant filed suit in district court. After a hearing, the district court remanded the case to the Appeals Council for consideration of Claimant's nonexertional limitations in connection with the ALJ's previous determination that Claimant could perform light work. Journal Entry, Appellant's App. at tab 12. The Appeals Council remanded the case to the ALJ, and a supplemental hearing was held.

The Secretary has established a five-step evaluation process pursuant to the Social Security Act for determining whether a claimant is disabled within the meaning of the Act. See Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir.1988) (describing five steps in detail). In this case, the ALJ reached the fifth step of the pertinent analysis, assuming that Claimant could not perform his past relevant work. Recommended Decision, Appellant's App., Transcript at 186. The ALJ concluded that, although Claimant's nonexertional impairments limited the range of light work he could perform, Claimant retained the functional capacity to perform certain light and sedentary jobs which exist in significant numbers in the national economy. Id. The ALJ's recommended decision denied Claimant benefits; the Appeals Council adopted the ALJ's recommended decision. Decision, id. at 180.

The Appeals Council then agreed to consider additional evidence in the case. Its subsequent decision, discussing the additional evidence, also denied Claimant benefits. Decision, id. at 282. That decision, adopting the previous Appeals Council decision, which in turn adopted the ALJ's recommended decision, became the final decision of the Secretary for purposes of review. See Williams, 844 F.2d at 749.

On appeal, Claimant argues that the Secretary failed to give the proper weight to the opinions of Claimant's treating physicians, failed to properly analyze evidence of Claimant's pain and depression, and failed to consider the combined effect of Claimant's impairments. Judicial review of the Secretary's determination that Claimant is not disabled within the meaning of the Social Security Act is limited; our only function is to determine whether the record as a whole contains substantial evidence to support the Secretary's decision and whether the Secretary applied the correct legal standards. See Bernal v. Bowen, 851 F.2d 297, 299 (10th Cir.1988). The Secretary's findings stand if they are supported by " 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' " Broadbent v. Harris, 698 F.2d 407, 414 (10th Cir.1983) (per curiam) (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420-1427, 28 L.Ed.2d 842 (1971)).

I

Claimant first argues that the ALJ and the Appeals Council, in evaluating Claimant's physical impairments, improperly rejected the opinions of Dr. Schnelle and Dr. Summerhouse, two treating physicians. Dr. Schnelle opined that Claimant "is currently unable to work" because of back problems, Letter of January 13, 1987, Appellant's App., Transcript at 177, and Dr. Summerhouse, in a letter considered by the Appeals Council, stated that Claimant's osteoarthritis would preclude "all but sedentary work," Letter of August 19, 1988, id. at 287. 2 In reaching his conclusions, the ALJ instead chose to rely on the report of Dr. Jarrott, as supported by reports from Doctors Sutton and Sifford, all examining physicians.

Claimant asserts that Dr. Jarrott's report did not consider Claimant's complaint of pain, and notes that Dr. Jarrott saw Claimant for only fifteen minutes and did not test numerous capabilities or test capabilities repetitively. Claimant points to differences between the diagnoses of Dr. Sutton and Dr. Jarrott which could be interpreted to support Claimant's allegations. Finally, Claimant says that Dr. Sifford's report is entitled to no weight because he "is well known to the Federal District Court in Kansas for his biased evaluations." Despite Claimant's views of these physicians and their evaluations, his criticisms do not contradict the specific and legitimate reasons the ALJ gave for rejecting Dr. Schnelle's and Dr. Summerhouse's opinions of Claimant's disability.

The ALJ rejected Dr. Schnelle's opinion that Claimant was disabled because Dr. Schnelle's conclusion was not supported by specific findings and his report was "not as comprehensive" as the reports of the examining physicians. Recommended Decision, id. at 185. The Appeals Council noted that Dr. Summerhouse's letter "contained essentially the same statements regarding the claimant's physical condition" as his previous reports. Decision, id. at 283. The ALJ rejected Dr. Summerhouse's previous diagnoses because his latest report did not mention the lumbosacral spine, and because Dr. Jarrott and Dr. Sutton are orthopedic specialists and their evaluations included extensive testing. Recommended Decision, id. at 185.

Claimant wants us to reweigh the evidence; this we cannot do. Casias v. Secretary of Health & Human Servs., 933 F.2d 799, 800 (10th Cir.1991). In evaluating Claimant's physical impairments, the ALJ and Appeals Council expressed specific and legitimate reasons for rejecting the opinions of Claimant's treating physicians. Our review of the record convinces us that those reasons are not in error. See Diaz v. Secretary of Health & Human Servs., 898 F.2d 774, 777 (10th Cir.1990).

II

In considering Claimant's contentions of pain, the ALJ determined that, while Claimant may have increased intermittent pain, his allegations of disabling pain were not credible. Recommended Decision, Appellant's App., Transcript at 186. Claimant contends that the ALJ improperly analyzed his pain because, although the ALJ said he considered all of the evidence, he relied solely on objective medical findings to support his conclusion. As Claimant points out, the ALJ is required, in assessing credibility, to consider all evidence, both objective and subjective. See Williams, 844 F.2d at 753. The ALJ stated that he considered all of the evidence; his reliance on medical findings does not allow us to assume otherwise.

Claimant asserts that the ALJ's reliance on Dr. Jarrott's report is misplaced because Dr. Jarrott did not consider Claimant's subjective complaints. Dr. Jarrott's report recites Claimant's alleged symptoms and comments about the lack of physical findings to support those complaints. Letter of June 16, 1988, Appellant's App., Transcript at 274. In light of this conclusion, we cannot say Dr. Jarrott did not consider Claimant's allegations of pain. Additionally, the ALJ did not rely solely on Dr. Jarrott's report to support his conclusion. We cannot reweigh the evidence.

Claimant alleged fatigue, which claim the ALJ credited in part, but on the whole found not credible: "I have concluded that even though there may be some fatigue present, it is not of disabling proportions." Recommended Decision, id. at 186. Claimant argues that the record is undisputed that he suffers from fatigue. The ALJ noted an inconsistency between Claimant's allegations that he slept very little at night and his claim that he rested only one hour during the day. Id. The ALJ is entitled to rely on objective evidence in the record, such as Claimant's recount of his daily activities, in making his assessment. Credibility is the province of the ALJ. Williams, 844 F.2d at 755. No medical evidence supports Claimant's allegations of fatigue; his testimony alone cannot establish a nonexertional impairment. See Talley v. Sullivan, 908 F.2d 585, 587 (10th Cir.1990) (per curiam) (subjective complaints alone insufficient to establish disabling pain). Substantial evidence supports the ALJ's determination that Claimant's allegations of fatigue are not credible to the extent alleged.

Claimant complains that the ALJ ignored positive evidence of his credibility. Again, Claimant wants this court to reweigh the evidence. Following our review of the record, we conclude that substantial evidence supports the ALJ's credibility determinations, for the reasons stated in his opinion.

III

Claimant contends the ALJ improperly analyzed evidence of his mental impairments, namely depression and alcohol problems, and that the Appeals Council erred in rejecting the opinions of Dr. Summerhouse and Dr. Schell. Dr. Summerhouse's progress notes mention depression, but the ALJ chose to rely on the report of an examining psychiatrist, Dr. Romalis, in support of his conclusion that Claimant's depression was minimal and reactive, and did not...

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