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

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UNITED

STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

SHIRLEY A. SMITH,

Plaintiff-Appellant,

v.

KENNETH S. APFEL, Commissioner,

Social Security Administration,(*)

No.
name="1">97-7076

(D.C. No. 96-CV-216-S)

(E.D. Okla.)

Defendant-Appellee.

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

Before BRORBY, BARRETT, 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. 34.1.9. The case is therefore

ordered submitted without oral argument.

Plaintiff-appellant Shirley Smith appeals the Commissioner's denial of her

application for social security disability benefits. Because we find that the

decision of the Administrative Law Judge (ALJ) is supported by substantial

evidence, and that the law was correctly applied, we affirm.

Plaintiff filed an application for disability benefits on June 2, 1994,

alleging that she had been unable to work since September 6, 1987, due to

gastrointestinal problems, back and leg pain, and difficulties grasping and

holding objects. Plaintiff's last insured date was December 31, 1992. Thus,

the issue is whether substantial evidence supports the ALJ's conclusion that

plaintiff was not disabled between September 6, 1987, and December 31, 1992,

because she retained the capacity to perform a significant number of jobs in the

national economy.

"This court reviews the [Commissioner's] decision to determine only

whether his findings are supported by substantial evidence and whether the

[Commissioner] applied correct legal standards . . . ." Hargis v. Sullivan,

945 F.2d 1482, 1486 (10th Cir. 1991). "Substantial evidence is such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion."

Id. We will not reweigh the evidence or substitute our judgment for that of the

Commissioner. See id.

Plaintiff argues that the ALJ failed to consider the combined effect of all

her impairments, specifically the effect of her alleged chronic diarrhea and her

alleged manipulative problems.

The ALJ concluded that plaintiff's bowel problems were not severe. See

R. Vol. II at 11-12. While plaintiff does not take exception to this conclusion,

she argues that, even though the impairment was non-severe, the ALJ should

have taken it into account in determining her residual functional capacity (RFC).

Plaintiff is correct that even non-severe impairments are to be considered in

arriving at an RFC. See 20 C.F.R. § 404.1545(e). She is incorrect, however, in

concluding that the ALJ failed to take her bowel problems into account in

arriving at his RFC determination, or, implicitly, that his conclusion was not

supported by substantial evidence.

Plaintiff testified that she has bowel control problems since having

rectal surgery in 1991. R. Vol. II at 37. She testified that "[w]hen I have to go,

I have to go," id. at 38, and that she has "had accidents," id.

Plaintiff had a

fissurectomy, anoplasty and partial sphincterotomy on March 5, 1991. By as

early as April 24, 1991, plaintiff had made a strong recovery. The surgeon's

notes for that date state: "This lady's rectum has healed well. She has absolutely

no complaints. She says she would have done this long ago if she had known it

would be this good." Id. at 196. A little over a year later, plaintiff was seen by

her gastroenterologist complaining of rectal bleeding. The diagnosis was a large

hemorrhoid with an excoriated area. Plaintiff was ordered to take Sitz baths, to

resume her high fiber diet, and to keep her stools soft. Interestingly, plaintiff

denied having diarrhea. See id. at 127.

Plaintiff lodges various objections to the ALJ's treatment of her bowel

issue, none of which have merit. She argues that there is no support for the

conclusion that her rectal problems were not severe after 1991. The only

evidence in the record, however, regarding her condition after the 1991 surgery

is discussed above and shows that she had made a full recovery. There is no

mention of diarrhea problems after her surgery and plaintiff points to none.

Plaintiff argues that the ALJ failed to offer a conclusion as to the

functional effect of her diarrhea. This also is incorrect, as the ALJ specifically

stated that the "complaint would not significantly interfere with work activities

of a normal schedule" id. at 12, and that "[n]either [the] pre-surgery period nor

[the] post surgery recovery period resulted in symptoms which precluded work,"

id. at 15.

Plaintiff's attorney again fails to read the ALJ's decision carefully when

she argues that he failed to provide findings to support his credibility

determination regarding the diarrhea. The ALJ specifically stated that he found

"troubling inconsistencies in claimant's testimony and statements when compared

to the medical evidence of record." Id. at 15. He supported this statement with

reference to the fact that plaintiff "worked for several years after the onset of the

symptoms from her rectal fissure, and in any case, although uncomfortable, the

symptoms were not such as to be disabling, involving as they did only some

constipation, and pain and bleeding with bowel movements," id. The ALJ's

ultimate conclusion that plaintiff retained the residual functional capacity to

perform sedentary work despite her bowel problems is supported by substantial

evidence.

Turning to the ALJ's treatment of her alleged manipulative problems, the

record reveals that plaintiff had bilateral carpal tunnel surgery in the early 1980s.

She testified that she had grip problems after the surgery, see id. at 40, but that

she worked four or five years after the surgery and was able to use tools to

assemble bicycles, grills, and lawn mowers in her job as a store manager, see

id.

at 45. The only other evidence in the record relating to plaintiff's hand problems

is her complaint to the surgeon who did her rectal surgery that "[s]he still has

muscle spasms, her fingers pull now at times." Id. at 196. The surgeon

observed, "I don't see any incision scar large enough to have done a very wide

excision of tissue, however, a patient sometimes has incorrect observation.

Suggested if she has continued problem with this, return to Dr. Nardone [the

hand surgeon]." Id. There is no evidence in the record that plaintiff ever sought

any kind of follow up treatment for her hands from anyone.

With this sparse evidence, the ALJ was correct to conclude that plaintiff's

hand problems were not severe. Again, plaintiff does not argue with this

conclusion, but insists that the ALJ erred in failing to take her manipulative

problems into account when determining her RFC. As he did with the bowel

complaint, however, the ALJ also carefully analyzed manipulative limitations

when arriving at plaintiff's RFC. The ALJ begins his RFC assessment at page 5

of his decision. See id. at 14. At page 6, he carefully explains why plaintiff's

complaint of significant hand limitation is unpersuasive, citing the surgeon's

opinion discussed above, and the fact that she never complained to anyone else

about hand problems. See id. at 15. This analysis also fulfills the ALJ's duty

to explain why he did not credit plaintiff's testimony about her manipulative

difficulties.

There was substantial evidence in the record, in the form of testimony from

the vocational expert, that plaintiff had transferrable skills in two areas which

would allow her to do sedentary cashier jobs or record keeping/inventory control

jobs. See id. at 51. And finally, and contrary to plaintiff's position, the ALJ

properly concluded that neither her bowel problems nor her manipulative

problems were vocationally significant. See id. at 12, 15. None of plaintiff's

impairments, severe or otherwise, were ignored in this careful, thoughtful and

well organized decision.

The judgment of the United States District Court is AFFIRMED.

Entered for the Court

Mary Beck Briscoe

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.

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