UNITED STATES COURT OF APPEALS
Filed 1/24/97
FOR THE TENTH CIRCUIT
PAULA E. WILKERSON,
Plaintiff-Appellant,
v. No. 96-5097
(D.C. No. 93-C-1046-H)
SHIRLEY S. CHATER, Commissioner (N.D. Okla.)
of Social Security Administration, *
Defendant-Appellee.
ORDER AND JUDGMENT **
Before ANDERSON, KELLY, and LUCERO, 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) and 10th Cir. R. 34.1.9. The case is
therefore ordered submitted without oral argument.
*
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. In the text we continue to refer to the
Secretary because she was the appropriate party at the time of the underlying
administrative 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This order and judgment is not binding precedent, except under the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.
Claimant Paula E. Wilkerson appeals from the district court’s order
adopting the recommendation of the magistrate judge affirming the Secretary of
Health and Human Services’ denial of her application for Social Security
disability insurance and supplemental security income benefits. Claimant, a
thirty-three-year-old woman with a GED, claims disability from July 26, 1988,
due to pain in her left foot and back, chronic asthma, carpal tunnel syndrome, and
chronic stress.
Claimant’s application for benefits was denied initially and on
reconsideration. Following a hearing, the administrative law judge (ALJ) denied
claimant’s application at step-four of the five-step sequential process, see
Williams v. Bowen, 844 F.2d 748, 750-51 (10th Cir. 1988), finding that claimant
could return to her past relevant work.
On appeal, claimant argues that substantial evidence does not support the
ALJ’s determination that she is capable of performing her past relevant work.
Specifically, she asserts that (1) the ALJ erred in failing to consider all of the
medical evidence, (2) the ALJ erroneously relied on the testimony of the
vocational expert to prove a step-four determination, (3) the ALJ applied
incorrect legal standards in determining claimant’s testimony incredible, and (4)
the ALJ failed to properly evaluate the demands of her past relevant work in
relation to her residual functional capacity.
2
-2-
Our review of the Secretary’s decision is limited to determining whether
the decision is supported by substantial evidence and whether the Secretary
applied correct legal standards. Castellano v. Secretary of Health & Human
Servs., 26 F.3d 1027, 1028 (10th Cir. 1994). “To find that the Secretary’s
decision is supported by substantial evidence, there must be sufficient relevant
evidence in the record that a reasonable person might deem adequate to support
the ultimate conclusion.” Bernal v. Bowen, 851 F.2d 297, 299 (10th Cir. 1988).
However, we may neither reweigh the evidence nor substitute our judgment for
that of the Secretary. Id.
An individual is disabled within the meaning of the Social Security Act
only if his impairments are so severe that he “is not only unable to do his previous
work but cannot, considering his age, education, and work experience, engage in
any other kind of substantial gainful work which exists in the national economy.”
42 U.S.C. § 423(d)(2)(A). If a claimant meets his burden of proving that he
cannot return to his past work, the burden shifts to the Secretary to show that the
claimant can perform other jobs in the national economy. Ray v. Bowen, 865
F.2d 222, 224 (10th Cir. 1989).
Initially, claimant asserts that the ALJ erred in failing to consider all of the
medical evidence presented. Claimant alleges that when evaluating claimant’s
mental impairments, the ALJ relied on the evidence contained in the progress
-3-
reports from the Star Community Mental Health Center from October 1991 to
August 1992, and ignored the evidence contained in the progress notes for the
period of September 1992 to February 1993, and the results of the Minnesota
Multiphasic Personality Psychological Evaluation performed on October 21, 1991.
In her psychiatric examination and treatment, claimant was observed to
have no difficulty remembering, comprehending, or carrying out simple
instructions. As the ALJ discussed, she was diagnosed with dysthymia on Axis I
and a personality disorder not otherwise specified on Axis II. Although the
evidence indicates that claimant had some problems with depression and passive
aggressive presentation, she had no delusions, no hallucinations, and no
perceptual problems.
The therapy notes that claimant argues the ALJ ignored are mainly
concerned with problems centered around her family and her feelings regarding
her relationships with her family. There is no indication that any of the
manifestations of her problems would limit her ability to do work-related
activities. In the MMPPE report, the examiner noted that claimant had a low
tolerance for external stress. R. Vol. II at 344. Claimant argues that this
limitation should have been included in claimant’s residual functional capacity.
The examiner’s report also notes, however, that because this was the only
evaluation instrument given to claimant, the report cannot be considered a
-4-
complete assessment of claimant’s personality structure and functioning. Id. at
345.
Therefore, as the ALJ stated that his decision was based upon “full and
careful review of the testimony and evidence,” there is no indication that all of
the medical evidence presented was not considered by the ALJ. See Clifton v.
Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996) (the record must show that the
ALJ considered all the evidence presented, but the ALJ is not required to discuss
every piece of evidence).
Next, claimant asserts that the ALJ applied an incorrect legal standard
when analyzing her credibility as to her subjective complaints of pain.
“‘Credibility determinations are peculiarly the province of the finder of fact, and
we will not upset such determinations when supported by substantial evidence.’”
Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995) (quoting Diaz v. Secretary of
Health & Human Servs., 898 F.2d 774, 777 (10th Cir. 1990)). In determining the
credence given to a claimant’s statements regarding disabling pain, the ALJ
considers the level and effectiveness of medication, the attempts to seek treatment
and relief, the nature of daily activities, observation of the claimant, and the
consistency of the statements with the objective medical evidence. See Huston v.
Bowen, 838 F.2d 1125, 1132 (10th Cir. 1988).
-5-
Here, the ALJ concluded that claimant’s allegations of pain were
“substantially overstated” and “would not interfere with her concentration or
performance of a work-related activity at either a sedentary or a light level of
work.” R. Vol. II at 19. In reaching this conclusion, the ALJ considered the
medical evidence, claimant’s mental stability, and her activities of daily living.
Claimant suffered a work-place injury to her left foot in 1988. The foot
was initially diagnosed as bruised. Claimant was given a week of physical
therapy and was released to return to work. Because the pain persisted, she was
rediagnosed with a fracture, and the foot was casted for ten days. A subsequent
bone scan of the foot was negative. Dr. Alan Lewis, an orthopedic surgeon,
examined claimant in August 1988, and opined that claimant’s symptoms were out
of proportion with his clinical findings. Id. at 177. The ALJ, therefore, found
that the pain in claimant’s left foot was only minor.
The ALJ found that although claimant had been diagnosed with carpal
tunnel syndrome, during her examination in May 1992, she exhibited no
restriction of motion or pain. He further concluded that her complaints of back
pain lacked any objective medical support. The medical evidence supports the
ALJ’s conclusion that claimant’s asthma only produced moderate restriction on
her pulmonary function, and she responded well to bronchodilators.
-6-
Consequently, the medical evidence does not support claimant’s allegations
of disabling pain. Although, it was suggested that psychological factors may
affect her physical condition, the record supports the ALJ’s conclusion that these
factors only slightly interfered with claimant’s activities, and did not preclude
work activities at the light or sedentary level. Claimant testified that she cleaned
house daily, cooked, grocery shopped, drove her car, and visited friends. The
ALJ did find that claimant had a described deficiency of concentration, but with a
seldom degree of limitation. He concluded that claimant had never experienced a
deterioration or decompensation in a work or work-like setting. Id. at 19. The
ALJ applied the correct legal standards and articulated specific reasons for his
decision. Therefore, we conclude that claimant has not presented any grounds for
disturbing the ALJ’s credibility determination.
Next, claimant contends that the ALJ’s determination that claimant could
perform her past relevant work as “a light cashier or sedentary assembler I” was
not supported by substantial evidence. Specifically, claimant asserts that claimant
did not perform sedentary assembly work in the past. The vocational expert
testified that claimant had the residual functional capacity to perform her past
relevant work as a cashier at the light level or as a security guard that works as a
gate keeper at the sedentary level. Id. at 63. In his decision, the ALJ found that
-7-
claimant could return to her past relevant work as a cashier at the light level or as
an assembler I at the sedentary level.
In addressing this contention of error in the district court, the magistrate
judge agreed that claimant had no history of assembly work, but opined that the
ALJ “meant to identify the sedentary security guard position” which was
presented as past relevant work of claimant. R. Vol. I at 7. We agree. The job of
assembler was identified by the vocational expert as other work in the national
economy that claimant could perform. R. Vol. II at 64. While the ALJ’s
confusion of the two occupations is unfortunate, it does not constitute reversible
error, and in light of our decision in this case, is irrelevant.
Finally, claimant asserts two errors in the ALJ’s step-four analysis. First,
she contends that the ALJ failed to properly evaluate the demands of her past
relevant work and compare those demands to her residual functional capacity
according to Henrie v. United States Department of Health & Human Services,
13 F.3d 359 (10th Cir. 1993), and second, that the ALJ incorrectly relied on the
testimony of the vocational expert to prove a step-four determination. For the
following reasons, we affirm without reaching the merits of these contentions.
The magistrate judge upheld the ALJ’s decision that claimant was capable
of performing her past relevant work as characterized by the vocational expert,
and that the ALJ had adequately developed the record as to claimant’s limitations
-8-
and the demands of her past relevant work. R. Vol. I at 7-8. The magistrate
judge further found that, even if the ALJ’s step-four evaluation was insufficient,
he elicited testimony from the vocational expert which would support a step-five
determination of no disability. 1 Id. at 8.
Claimant did not designate the magistrate judge’s step-five determination
as an issue for review in either the docketing statement or in the statement of
issues in her opening brief. Claimant’s only challenge to the step-five
determination is a conclusory argument that the hypothetical posed to the
vocational expert did not adequately reflect claimant’s limitations. Claimant does
not present this argument with any specificity or clarity, and therefore, we
conclude that the issue is insufficiently developed to afford meaningful review.
See Murrell v. Shalala, 43 F.3d 1388, 1389 n.2 (10th Cir. 1994) (“perfunctory
complaints,” not adequately framed or developed, are insufficient to invoke
appellate review).
Because we conclude that the step-five determination stands as
unchallenged and as an independent and sufficient basis for a denial of benefits,
we discern no need to discuss the merits of claimant’s arguments regarding the
step-four determination. See id, at 1389-90; see also Berna v. Chater, 101 F.3d
1
Claimant does not challenge the propriety of this determination by a
magistrate judge, and we deem the issue waived. See Berna v. Chater, 101 F.3d
631, 633 (10th Cir. 1996).
-9-
631, 632-33 (10th Cir. 1996). We note that although the ALJ’s decision stopped
short of a step-five determination, the necessary evidence and findings to support
the alternate determination are present in the record and in the body of the ALJ’s
decision. See Berna, 101 F.3d at 634.
The judgment of the United States District Court for the Northern District
of Oklahoma is AFFIRMED.
Entered for the Court
Stephen H. Anderson
Circuit Judge
-10-