F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 5 1998
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
EVERETT TURNER,
Plaintiff-Appellant,
v. No. 97-5110
(D.C. No. 95-CV-857-W)
KENNETH S. APFEL, Commissioner (N.D. Okla.)
of Social Security Administration, *
Defendant-Appellee.
ORDER AND JUDGMENT **
Before PORFILIO, KELLY, and HENRY, Circuit Judges.
*
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. Pub. L. No. 103-296. Pursuant to Fed. R. App. P. 43(c),
Kenneth S. Apfel, Commissioner of Social Security, is substituted for Donna E.
Shalala, Secretary of Health and Human Services, as the defendant in this action.
Although we have substituted the Commissioner 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This order and judgment is not binding precedent, except under the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.
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 appeals from the district court’s affirmance of the Secretary’s
determination that he is not disabled and, therefore, is not entitled to disability
benefits or supplemental security income benefits. Discerning no reversible
error, we affirm.
Plaintiff claimed disability based on injuries he sustained in an automobile
accident on May 15, 1992. 1 He alleged that he suffers from pain, severe
headaches, concentration problems, loss of energy, irritability, balance difficulty,
double vision, nausea, and poor short term memory. In the Secretary’s final
decision, the administrative law judge (ALJ) found that plaintiff has a history
of multiple mid-face fractures and a right wrist fracture, an organic mental
disorder, and a substance abuse disorder in remission. The ALJ determined at
step two of the five-step sequential analysis, see 20 C.F.R. §§ 404.1520, 416.920,
that these impairments imposed no more than a minimal effect on plaintiff’s
ability to work and, therefore, that he does not have a severe impairment and
is not disabled.
1
Plaintiff’s disability status expired on March 31, 1994.
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“We review the Secretary’s decision to determine whether [the] factual
findings are supported by substantial evidence in the record viewed as a whole”
and whether correct legal standards were applied. Castellano v. Secretary of
Health & Human Servs., 26 F.3d 1027, 1028 (10th Cir. 1994).
To meet his burden at step two, plaintiff must show that he suffers from
an “impairment or combination of impairments which significantly limits [his]
physical or mental ability to do basic work activities,” 20 C.F.R. §§ 404.1520(c),
416.920(c); see also Bowen v. Yuckert, 482 U.S. 137, 146 & n.5 (1987).
Basic work activities are “the abilities and aptitudes necessary to do most jobs.”
20 C.F.R. §§ 404.1521(b), 416.921(b). Examples of basic work activities include
“walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or
handling;” “seeing, hearing, and speaking;” “understanding, carrying out, and
remembering simple instructions;” “use of judgment;” “responding appropriately
to supervision, co-workers and usual work situations;” and “dealing with changes
in a routine work setting.” See id. §§ 404.1521(b), 416.921(b).
Although step two requires only “de minimis” proof of impairment, the
plaintiff “must show more than the mere presence of a condition or ailment.”
Hinkle v. Apfel, No. 97-6099, 1997 WL 787158, at *2 (10th Cir. Dec. 24, 1997).
Presumptively, if the medical severity of a claimant’s impairments is
so slight that the impairments could not interfere with or have a
serious impact on the claimant’s ability to do basic work activities,
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irrespective of vocational factors, the impairments do not prevent the
claimant from engaging in substantial gainful activity.
Williams v. Bowen, 844 F.2d 748, 751 (10th Cir. 1988); see also Soc. Sec.
Rul. 85-28, Soc. Sec. Reporting Serv. 1983-1991 (West) 390, 393 (stating
impairment is nonsevere only if it “would have no more than a minimal effect
on an individual’s ability to work even if the individual’s age, education, or work
experience were specifically considered”). “Thus, at step two, the ALJ looks at
the claimant’s impairment or combination of impairments only and determines the
impact the impairment would have on his ability to work.” Hinkle, 1997 WL
787158, at *2.
Plaintiff argues that the ALJ erred in determining plaintiff does not have
a severe impairment because the ALJ did not give appropriate weight to his
treating physician’s opinions. According to plaintiff, the ALJ failed to
discuss or give legitimate reasons for rejecting Dr. Detwiler’s diagnosis of
“post-concussive” syndrome and his conclusion that without neuropsychological
treatment plaintiff would be unable to obtain gainful employment. Although the
ALJ did not specifically discuss this evidence, the ALJ did refer to Dr. Detwiler’s
records in his opinion and did indicate he had considered all of the evidence.
See Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996) (requiring ALJ
to consider, but not specifically discuss, each piece of evidence).
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Additionally, plaintiff argues the ALJ failed to properly consider
Dr. Detwiler’s opinion that plaintiff was temporarily totally disabled between
May 1992 and February 1993 as evidence plaintiff had a severe impairment.
The administrative record shows that Dr. Detwiler stated that plaintiff was
temporarily disabled from May 15, 1992 to approximately March 2, 1993.
On November 22, 1993, Dr. Detwiler discharged plaintiff and said that without
treatment, presumably by a neuropsychologist, 2 he would be unable to obtain
gainful employment. These opinions regarding disability were brief, conclusory,
and unsupported by specific medical evidence. See Talley v. Sullivan, 908 F.2d
585, 587 (10th Cir. 1990). They were therefore properly disregarded. See
Goatcher v. United States Dep’t of Health & Human Servs., 52 F.3d 288, 289-90
(10th Cir. 1995). Moreover, Dr. Detwiler’s reports do not specifically mention
most basic work activities or relate plaintiff’s alleged impairments to them.
Plaintiff also points to the facts that he used narcotic pain relievers for ten
months and that Dr. Detwiler referred plaintiff to a specialist who would be better
able to treat him as proof that he was suffering from a severe impairment. Use of
pain relievers alone does not indicate that plaintiff had a severe impairment,
2
Dr. Detwiler recommended on November 22, 1992, that plaintiff see a
neuropsychologist.
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especially when he took the medication for less than one year. Likewise, referral
alone is not enough to establish a severe impairment.
Plaintiff further argues that the ALJ failed to discuss much of the material
medical evidence, which established that plaintiff “had a severe mental
impairment for at least a portion of the time cover[ed] by this claim.” Appellant’s
Br. at 20. We conclude the ALJ sufficiently discussed the evidence and explained
why plaintiff does not have a severe impairment. See Clifton, 79 F.3d at 1009-10.
Plaintiff requests remand for consideration of whether he met the
requirements of listing 12.02. See 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.02.
Under the circumstances, remand is not required.
The judgment of the United States District Court for the Northern District
of Oklahoma is AFFIRMED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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