Roberson v. Apfel, (10th Cir. 1998)

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UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

LARRY ROBERSON,

Plaintiff-Appellant,

v.

KENNETH S. APFEL, Commissioner,

Social Security Administration,(*)

Defendant-Appellee.

No.
name="1">97-7093

(D.C. No. 96-CV-84-B)

(E.D. Okla.)

ORDER AND JUDGMENT
name="txt**">(**)

Before TACHA, LOGAN, and

LUCERO, Circuit Judges.

Claimant Larry Roberson appeals the district court's order affirming the

Commissioner's decision to deny his application for supplemental security

income and social security disability benefits.
name="txt1a">(1) He alleges that he became

disabled in January 1991 due to back and shoulder pain and numbness in his

hands. He returned to work full-time in June 1994. Following an administrative

hearing and adverse decision, the case was remanded for another hearing and

decision. Thereafter, the Commissioner determined that claimant could perform

sedentary work available in significant numbers in the local and national

economies and thus was not disabled within the meaning of the Social Security

Act. We affirm.

On appeal, claimant contends (1) the administrative law judge (ALJ)

improperly evaluated his pain by failing to apply the correct standards to evaluate

his credibility, (2) the ALJ failed to accord appropriate weight to the treating

physicians' opinions, (3) the ALJ should have obtained an updated medical

evaluation, and (4) the ALJ improperly based his determination on a lack of

evidence, thereby keeping the burden of proof on claimant at step five, contrary

to law.

We review the Commissioner's decision to determine whether it is

supported by substantial evidence and whether correct legal standards were

applied. See Hawkins v. Chater, 113 F.3d 1162, 1164 (10th Cir. 1997).

"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. 1996) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)

(further quotation omitted)). We may neither reweigh the evidence nor substitute

our judgment for that of the Commissioner. See Casias v. Secretary of Health

&

Human Servs., 933 F.2d 799, 800 (10th Cir. 1991).

The ALJ found that claimant's allegations of disabling pain were not fully

credible. Claimant alleges that the ALJ disbelieved his pain allegations based

solely on a lack of objective medical evidence to support them, and failed to link

his credibility findings to the evidence. We disagree with that proposition. The

ALJ was entitled to consider that claimant had not sought medical treatment since

before May 1992. See Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995)

(factors to be considered by ALJ in assessing credibility include extensiveness of

attempts (medical or nonmedical) to obtain relief and frequency of medical

contacts). The ALJ explained his reasons for discounting claimant's pain

allegations, including the objective medical evidence, lack of medication for

severe pain, infrequency of medical treatment, claimant's prior work record, his

daily activities, and his demeanor at the hearing. Because we conclude that the

ALJ properly linked his credibility findings to the record, see id., we find no

reason to deviate from the general rule to accord deference to the ALJ's

credibility determinations, see James v. Chater, 96 F.3d 1341, 1342 (10th Cir.

1996) (witness credibility is province of Commissioner whose judgment is

entitled to considerable deference).

Claimant also argues that the ALJ failed to accord more weight to the

opinions of claimant's treating physicians than to those of one of the consulting

physicians, Dr. McGovern. Although the record contains evidence that claimant

had sustained injuries to his back and shoulder, none of the physicians opined

that his condition was permanently disabling. The opinions of the treating

physicians did not conflict with Dr. McGovern's opinion. Therefore, the ALJ

was not required to explain his reasons for rejecting a treating physician's

opinion. See Miller v. Chater, 99 F.3d 972, 976 (10th Cir. 1996) (ALJ must

give

legitimate reasons to reject treating physician's opinion). Moreover, Dr.

McGovern's May 1992 report was the only medical evidence submitted after

November 1991, except for a brief reference to "a moderate amount of low back

pain" on April 2, 1992, R. vol. II, at 156. In the absence of a treating physician's

report for that time frame, the ALJ was not required to discount Dr. McGovern's

report. See Reid v. Chater, 71 F.3d 372, 374 (10th Cir. 1995).

Claimant next asserts that the ALJ erred in failing to order a consultative

medical examination for an update of his condition since the time of the first

administrative hearing. "[T]he ALJ should order a consultative exam when

evidence in the record establishes the reasonable possibility of the existence of a

disability and the result of the consultative exam could reasonably be expected to

be of material assistance in resolving the issue of disability." Hawkins, 113 F.3d

at 1169. However, the record contains no evidence to suggest that another

consultative examination would have produced material information. Claimant

was represented at the administrative hearing by counsel on whom the ALJ was

entitled to rely "to identify the issue or issues requiring further development," id.

at 1167, but claimant's counsel did not identify any such issue at the hearing.

Accordingly, the ALJ was not required to order another consultative examination.

Finally, we address claimant's contention that the ALJ failed to shift the

burden of proof to the Commissioner at step five of the five-step evaluation

process, see Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988)

(discussing five steps, holding that burden at step five is on Commissioner).

Claimant asserts that the ALJ determined claimant's residual functional capacity

(RFC) before shifting the burden of proof. Because of this approach, he argues,

the step-five burden remained on him. We disagree. In evaluating whether

claimant could perform his past work the ALJ was required to ascertain his RFC.

The ALJ correctly stated that the burden shifts if claimant shows he cannot

perform his past work. The plain wording of the ALJ's decision makes it clear

that he correctly placed the step-five burden on the Commissioner. Substantial

evidence supports the Commissioner's determination that claimant is not disabled

within the meaning of the Social Security Act.

AFFIRMED.

ENTERED FOR THE COURT

Carlos F. Lucero

Circuit Judge

FOOTNOTES

Click footnote number to return to corresponding location in the text.

*. Pursuant to Fed. R. App. P. 43(c), Kenneth

S. Apfel is substituted for

John J. Callahan, former Acting Commissioner of Social Security, as the

defendant in this action.

**. 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.

1. 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. 34.1.9. The case is therefore

ordered submitted without oral argument.

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