F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 16 1997
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
LOUIS L. PEEK,
Plaintiff-Appellant,
v. No. 96-5232
(D.C. No. 95-CV-714-J)
JOHN J. CALLAHAN, Acting (N.D. Okla.)
Commissioner, Social Security
Administration,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before EBEL, HENRY, and MURPHY, 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.
*
This order and judgment is not binding precedent, except under the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.
Plaintiff appeals from the district court’s order affirming the decision of the
Commissioner of Social Security denying his application for supplemental
security income benefits. We exercise jurisdiction under 42 U.S.C. § 405(g) and
28 U.S.C. § 1291 and affirm.
Plaintiff alleges disability since July 22, 1993, primarily due to pain and
other problems associated with a frequently dislocated left shoulder. After
conducting a hearing, the administrative law judge (ALJ) determined at step five
of the five-step sequential evaluation process, see 20 C.F.R. § 416.920, and after
placing the burden of proof on the Commissioner, see Ragland v. Shalala,
992 F.2d 1056, 1057 (10th Cir. 1993), that although plaintiff has a severe
dislocation of his left shoulder, he has the residual functional capacity to perform
the full range of sedentary work and his testimony was credible to the extent it
was consistent with the performance of sedentary work, see II Appellant’s App. at
18. The ALJ therefore concluded plaintiff is not disabled. When the Appeals
Council denied plaintiff’s request for review, the ALJ’s decision became the final
decision of the Commissioner. Plaintiff sought judicial review in the district
court, and the parties consented to assignment of the case to the magistrate judge,
who affirmed the decision of the Commissioner. This appeal followed.
“We review the [Commissioner’s] decision to determine whether it is
supported by substantial evidence and whether the [Commissioner] applied the
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correct legal standards.” Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir.
1994). 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 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S.
197, 229 (1938)).
On appeal, plaintiff argues that there is not substantial evidence to support
the ALJ’s determination that he has the capacity to perform a full range of
sedentary work, because the ALJ failed to properly consider his postural and
manipulative limitations and his pain as nonexertional impairments. In failing to
consider these, plaintiff further argues that the ALJ improperly relied on the
Medical-Vocational Guidelines (grids) without calling a vocational expert to
testify. Additionally, plaintiff alleges that the district court erred in rejecting his
subjective complaints of pain and Dr. Davis’ opinion that without surgery he is
unemployable and totally disabled. He also contends that the district court’s
decision that he could perform sedentary work was conclusory and based on the
absence of “contraindication” rather than on specific evidence.
Contrary to plaintiff’s argument, the ALJ did address the nonexertional
impairments implicated by plaintiff’s recurrent shoulder dislocation. The medical
evidence indicates, as the ALJ mostly set forth, see II Appellant’s App. at 15, that
plaintiff can manipulate small objects, effectively grasp tools, and perform fine
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and gross manipulation with both hands, even though he has reduced grip strength
in his left hand, cannot lift very much with his left shoulder, and has a limited
range of motion in his left shoulder, see id. at 136, 139. These limitations are
within the definition of sedentary work, which involves lifting no greater than ten
pounds and occasionally lifting or carrying objects such as docket files, ledgers,
and small tools. See 20 C.F.R. § 416.967(a).
The evidence, including plaintiff’s testimony, also establishes that he does
not have significant shoulder pain at times other than when his shoulder is
dislocated. Plaintiff takes no pain medication regularly; rather, he had taken
medication prescribed by emergency room doctors only after a shoulder
dislocation. His activities do not suggest that he experiences significant pain. He
testified that he picks up lumber with his right hand and rakes small piles and puts
them in bags. See II Appellant’s App. at 40; see also id. at 45 (testimony of
plaintiff’s friend that he does some yard work). He also testified that he has
limited use of his left arm. See id. at 34. The ALJ did not minimize the
discomfort plaintiff experiences when his shoulder is dislocated, but the ALJ
noted that plaintiff need not be pain free to have the ability to engage in
substantial gainful employment and that the medical findings the ALJ set forth
did not establish a condition likely to produce the amount of pain alleged. Thus,
no evidence indicates that pain precludes plaintiff from performing a full range of
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sedentary work. Because the ALJ’s credibility findings regarding pain are closely
and affirmatively linked to substantial evidence and are not merely conclusory,
see Huston v. Bowen, 838 F.2d 1125, 1133 (10th Cir. 1988), we defer to those
findings, see Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995).
The only evidence contrary to a determination that plaintiff can perform a
full range of sedentary work is Dr. Davis’ opinion. Dr. Davis indicated that
plaintiff could not work. His handwritten note, however, is brief, conclusory, and
unsupported by any medical evidence. See II Appellant’s App. at 146. The
district court therefore correctly gave little weight to Dr. Davis’ opinion that
plaintiff was unemployable and disabled. See Castellano v. Secretary of Health &
Human Servs., 26 F.3d 1027, 1029 (10th Cir. 1994).
The ALJ’s decision that plaintiff can perform a full range of sedentary
work was not based on “contraindication,” but rather was based on the medical
evidence presented and on an appropriate credibility assessment of plaintiff’s
complaints. Because the ALJ’s decision is supported by substantial evidence, see
Gay v. Sullivan, 986 F.2d 1336, 1339 (10th Cir. 1993), we conclude the ALJ
correctly determined that plaintiff can perform a full range of sedentary work.
We also conclude the ALJ correctly relied on the grids without calling a
vocational expert after finding that plaintiff did not have significant nonexertional
impairments and could perform a full range of sedentary work. See Thompson v.
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Sullivan, 987 F.2d 1482, 1488 (10th Cir. 1993) (mere presence of nonexertional
impairment does not preclude reliance on grids if nonexertional impairment would
not impair plaintiff’s ability to work). Even though the ALJ had given
notification of the hearing to a vocational expert, who failed to attend the hearing,
vocational testimony was unnecessary. Merely notifying a vocational expert to be
available to testify did not prove a need for such testimony.
Although the record indicates that plaintiff would benefit from shoulder
surgery and that his shoulder continues to dislocate from time to time, the record
also indicates that plaintiff is able to perform a full range of sedentary work
without surgery. That surgery may prevent plaintiff’s shoulder from dislocating
as easily as it does now is not sufficient to establish plaintiff cannot perform
sedentary work.
The judgment of the United States District Court for the Northern District
of Oklahoma is AFFIRMED.
Entered for the Court
David M. Ebel
Circuit Judge
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