UNITED STATES COURT OF APPEALS
Filed 1/9/97
FOR THE TENTH CIRCUIT
WOODROW BURNS, JR.
Plaintiff-Appellant,
v. No. 96-7048
(D.C. No. CIV-95-272-S)
SHIRLEY S. CHATER, Commissioner (E.D. Okla.)
of Social Security, *
Defendant-Appellant.
ORDER AND JUDGMENT **
Before EBEL and HENRY, Circuit Judges, and DOWNES, *** District Judge.
*
Effective March 31, 1995, the functions of the Secretary of Health and
Human Services in social security cases were transferred to the Commissioner of
Social Security. P.L. No. 103-296. Although the Commissioner has been
substituted for the Secretary in the caption, in the text we continue to refer to the
Secretary because she was the appropriate party at the time of the underlying
decision.
**
This order and judgment is not binding precedent, except under the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.
***
Honorable William F. Downes, District Judge, United States District Court
for the District of Wyoming, sitting by designation.
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) and 10th Cir. R. 34.1.9. The case is
therefore ordered submitted without oral argument.
Claimant appeals from a district court order affirming the Secretary’s
decision to deny his application for social security disability benefits. Utilizing
the applicable five-step sequential analysis, see Williams v. Bowen, 844 F.2d 748,
750-52 (10th Cir. 1988), the administrative law judge (ALJ) determined, at step
five, that claimant has the residual functional capacity to perform the full range of
sedentary work and that, pursuant to the Secretary’s Medical/Vocational Rules
(the grids), he was not disabled.
“This court reviews the Secretary’s decision to determine only whether
[her] findings are supported by substantial evidence and whether the Secretary
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 Secretary. Id.
Claimant alleges disability because of the fusion of his right ankle and a
ruptured disc in his lower back. He assigns as error the ALJ’s (1) failure to
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conduct a proper pain analysis; (2) improper reliance on the grids; and (3)
improper hypothetical questioning of the vocational expert.
Claimant injured his right foot and ankle in 1988 and, after several
surgeries, eventually underwent a fusion of his ankle. Claimant testified that the
resultant limp causes pain in his back, Appellant’s App. Vol. II at 361. In
addition, claimant was hospitalized in 1992 for back pain which was diagnosed as
intervertebral disc disease, id. at 206. Claimant testified that he can sit only
twenty minutes at a time, id. at 364, and needs to shift position because of back
pain, id. at 363.
Claimant argues that the ALJ failed to comply with the analytical process
described by this court in Kepler v. Chater, 68 F.3d 387 (10th Cir. 1995), for
cases involving credibility determinations of subjective complaints of disabling
pain. We disagree. In Kepler, we discussed factors helpful to an ALJ in deciding
whether to believe claims of severe pain. Id. at 391. We ordered a limited
remand for the purpose of requiring the ALJ to “explain why the specific
evidence relevant to each factor led him to conclude claimant’s subjective
complaints were not credible.” Id.. Such action is unnecessary in this case
because the ALJ has adequately explained the link between the evidence and his
conclusion. See id.
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With respect to claimant’s ankle fusion, the ALJ noted that, despite the
numerous surgeries, a 1992 post-fusion arthroscopy resulted in “significant relief
of symptomology.” Appellant’s App. Vol. II at 15. This conclusion finds support
in the record. See id. at 204. Additionally, claimant’s treating physician was of
the opinion that, while claimant could not return to his previous heavy
occupation, he was a candidate for vocational rehabilitation and could perform
sedentary work, “not requiring prolonged walking or weight bearing.” Id.; see
also id. at 224 (opinion of Dr. Metcalf, apparently consulted for purposes of
claimant’s workers’ compensation claim, that claimant was a candidate for
vocational rehabilitation); id. at 228 (consultative physician’s opinion that
claimant can do sedentary work).
The ALJ continued to explain his pain credibility conclusion with reference
to the fact that claimant takes only nonprescription pain medication, can walk as
much as one hundred yards at a time, and was found by a consultative physician
to be free of any significant residual joint swelling and joint deformity. All of
these observations find support in the record.
With respect to claimant’s allegation of disabling back pain, the ALJ noted
that claimant is able to perform some housework, goes fishing occasionally, can
drive for as long as one hour at a time, and does not do anything for his back pain
except to take over-the-counter medication. Id. at 15-16. While we acknowledge
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that there is some evidence in the record favoring claimant’s interpretation of this
case, we reiterate that our task on appeal is not to reweigh the evidence, see
Hargis, 945 F.2d at 1486, but to review the record to ensure that substantial
evidence supports the decision of the ALJ. We conclude that the credibility
determination of the ALJ in this case was sufficiently thorough to comply with
the Kepler requirements and that substantial evidence supports the ALJ’s
credibility determination on the issue of the severity of claimant’s pain.
Further, it was not error for the ALJ to discount the opinion of disability
rendered by Dr. Parano. That opinion was unsupported by objective medical
evidence and was based exclusively on claimant’s subjective complaints of pain.
See Thompson v. Sullivan, 987 F.2d 1482, 1488 (10th Cir. 1993)(noting that
subjective allegations of pain are insufficient by themselves to establish
disability). Nor was the ALJ required to believe claimant’s statements regarding
his need to shift position frequently. As noted above, at least three doctors found
claimant able to do sedentary work without restriction. The only limit of record is
Dr. Miller’s caution that claimant should not engage in work activity requiring
“prolonged walking or weight bearing.” Appellant’s App. Vol. II at 204.
Because neither of those activities are implicated in sedentary work, see 20 C.F.R.
§ 404.1567(a), these limitations do not demand a conclusion that claimant is
disabled. We hold, therefore, that substantial evidence supports the ALJ’s
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conclusion that claimant did not have pain severe enough to interfere with his
ability to engage in a full range of sedentary activity.
Claimant next argues that the ALJ erred in relying on the grids to find him
not disabled, arguing that his nonexertional pain impairment prevented such
reliance. “The mere presence of a nonexertional impairment[, however,] does not
preclude reliance on the grids.” Thompson, 987 F.2d at 1488. Where, as here,
there is substantial evidence that a claimant’s pain does not interfere with an
ability to work, and that a claimant can do the full range of activities required by
sedentary work, reliance on the grids is appropriate. Because we conclude that
the ALJ properly relied on the grids to determine this case, we do not address
claimant’s argument regarding the hypothetical question posed to the vocational
expert.
The judgment of the United States District Court for the Eastern District of
Oklahoma is AFFIRMED.
Entered for the Court
David M. Ebel
Circuit Judge
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