Talley v. Sullivan
Decision Date | 11 July 1990 |
Docket Number | No. 89-7023,89-7023 |
Citation | 908 F.2d 585 |
Parties | , Unempl.Ins.Rep. CCH 15637A Wanda TALLEY, Plaintiff-Appellant, v. Louis W. SULLIVAN, M.D., Secretary of Health and Human Services, Defendant-Appellee. |
Court | U.S. Court of Appeals — Tenth Circuit |
Paul F. McTighe, Jr., Tulsa, Okl., for plaintiff-appellant.
Roger Hilfiger, U.S. Atty., Donald A. Gonya, Chief Counsel for Social Sec., Randolph W. Gaines, Deputy Chief Counsel for Social Sec., A. George Lowe, Chief, Disability Litigation Branch, Donald H. Romano, Office of the General Counsel, Social Sec. Div., Dept. of Health and Human Services, Baltimore, Md., for defendant-appellee.
Before ANDERSON, BARRETT and BALDOCK, Circuit Judges.
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.
Plaintiff, Wanda Talley, appeals from an order of the district court affirming the final decision of the Secretary denying her application for disability benefits under 42 U.S.C. Secs. 416(i) and 423 and for Supplemental Security Income benefits under 42 U.S.C. Sec. 1381a.
Plaintiff applied for benefits in 1983. Her claim was denied. She did not request a hearing and the decision became final January 13, 1984. Plaintiff then refiled. This application was also denied. Plaintiff requested a hearing before an administrative law judge (ALJ) who denied benefits. The ALJ held that while plaintiff could not return to her prior work, she could perform light work. The Appeals Council vacated the ALJ's decision and remanded for the purpose of receiving expert vocational testimony regarding the transferability of plaintiff's work skills. After a hearing, benefits were again denied and the Appeals Council denied review.
On appeal plaintiff argues that the ALJ's decision was not supported by substantial evidence and, therefore, he erred in basing his decision on the grids 1, in not following the vocational expert's testimony, and in finding plaintiff's complaints of pain not credible.
" Sorenson v. Bowen, 888 F.2d 706, 710-11 (10th Cir.1989) (quoting Cagle v. Califano, 638 F.2d 219, 220 (10th Cir.1981) (citations omitted). Substantial evidence is " 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' " Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938)).
The evidence showed that plaintiff had a discectomy and laminectomy of the lumbar spine in 1970. She returned to work and later became a licensed practical nurse. In April 1983, plaintiff fell and broke her left knee. She claims disability dating from this injury. In the months immediately following her fall, plaintiff was able to walk without difficulty although she complained of pain. In November 1983, plaintiff underwent an arthroscopic examination and was rehospitalized in December for debridement of a hematoma and lysis of adhesions in her knee. At that time, her treating physician estimated plaintiff would have a recovery period of three to four months. In April 1984, plaintiff's physician determined she had a permanent partial impairment of six percent of her knee.
Plaintiff was also seen by Dr. Rao Sureddi for treatment of hypertension and diabetes. In August 1986, Dr. Sureddi opined that plaintiff was totally disabled due to hypertensive cardiovascular disease, uncontrolled diabetes mellitus, severe osteoarthritis, recurrent urinary tract infections angina pectoris, migraine headaches, chronic depression and anxiety reaction, and asthenia and vertigo secondary to poor circulation, obesity, and hypothryroidism.
In 1986, plaintiff was seen at a mental health facility for depression. She was diagnosed as having an adjustment disorder with withdrawal due to unresolved grief over her husband's death which had occurred in early 1983. She was noted as having some difficulty with anxiety attacks at that time.
At the hearing, plaintiff alleged that she was totally disabled due to a combination of her physical and mental impairments and disabling pain. She testified that she was in constant pain, apparently caused by arthritis, especially in her left knee. Plaintiff also alleged that her ability to leave her house was hampered by panic attacks.
Only one of plaintiff's treating physicians, Dr. Sureddi, opined that plaintiff was totally disabled based on her medical and mental impairments. However, his brief, conclusory opinion is not supported by medical evidence. Further, plaintiff does not argue that she is totally disabled because of any one or any combination of these impairments alone. Plaintiff argues that her nonexertional impairment, pain, combined with her other impairments, renders her totally disabled.
" 'To be disabling, pain must be so severe, by itself or in conjunction with other impairments, as to preclude any substantial gainful employment.' " Brown v. Bowen, 801 F.2d 361, 362-63 (10th Cir.1986) (quoting Dumas v. Schweiker, 712 F.2d 1545, 1552 (2d Cir.1983)). To determine whether a claimant's pain is disabling, Brown, 801 F.2d at 363, citing to Dumas. However, a claimant's subjective complaints of pain must be considered in evaluating a claim based on pain. See Luna v. Bowen, 834 F.2d 161, 163 (10th Cir.1987) ( ).
The medical records must be consistent with the nonmedical testimony as to the severity of the pain. ...
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...107.1, 107.16 Talbot v. Heckler , 814 F.2d 1456, 1461, 1463 (10th Cir. 1987), §§ 107.12, 203.4, 205.10, 207.2, 1203.6 Talley v. Sullivan , 908 F.2d 585, 587 (10th Cir. 1990), § 210.4 Tang v. Apfel , 205 F.3d 1084 (8th Cir. Mar. 8, 2000), 8th-00, §§ 204.2, 204.8, 208.5, 210.2, 607.1, 1208.5 ......
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Table of cases
...107.1, 107.16 Talbot v. Heckler , 814 F.2d 1456, 1461, 1463 (10th Cir. 1987), §§ 107.12, 203.4, 205.10, 207.2, 1203.6 Talley v. Sullivan , 908 F.2d 585, 587 (10th Cir. 1990), § 210.4 Tang v. Apfel , 205 F.3d 1084 (8th Cir. Mar. 8, 2000), 8th-00, §§ 204.2, 204.8, 208.5, 210.2, 607.1, 1208.5 ......