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
KARYN M. WINSLOW,
Plaintiff-Appellant,
v. No. 97-2123
(D.C. No. CIV-95-503-SC)
KENNETH S. APFEL, Commissioner, (D. N.M.)
Social Security Administration, *
Defendant-Appellee.
ORDER AND JUDGMENT **
Before ANDERSON, McKAY, 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
*
Effective September 29, 1997, Kenneth S. Apfel became the Commissioner
for the Social Security Administration. Pursuant to Fed. R. App. P. 43(c), Mr.
Apfel is substituted for Shirley S. Chater, former 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This order and judgment is not binding precedent, except under the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.
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
Karyn M. Winslow appeals an order of the district court affirming the
decision of the Commissioner of Social Security denying her request for social
security disability benefits and supplemental security income benefits. Our
review of the Commissioner’s decision is limited to determining whether the
decision is supported by substantial evidence, and whether the Commissioner
applied correct legal standards. See Castellano v. Secretary of Health & Human
Servs., 26 F.3d 1027, 1028 (10th Cir. 1994). In light of these standards, and after
a thorough review of the record, we affirm.
In order to determine whether a claimant is under a disability, the
Commissioner applies a five-step process. 20 C.F.R. §§ 404.1520, 416.920; see
Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988) (discussing five steps
in detail). Here, claimant alleged disability as of November 27, 1991 due to
migraine headaches, back, neck, shoulder and arm pain, and Scheurmann’s
disease. The ALJ found that claimant suffers from postural back pain, headaches,
obesity, and a personality disorder. The ALJ determined at step five of the
applicable analysis, that, although claimant was unable to return to her past
relevant work as a nursing assistant, cashier, and manager of a fast-food
restaurant, she had the residual functional capacity (RFC) to perform a full range
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of sedentary work at an unskilled level. The ALJ relied on the medical-vocational
guidelines (grids), 20 C.F.R., Pt. 404, Subpt. P, App. 2, to find that a significant
number of jobs exist that claimant could perform, compelling a conclusion that
claimant was not disabled.
The Appeals Council denied review, and claimant filed suit in federal
district court. The district court, adopting the recommendation and findings of
the magistrate judge, affirmed the agency’s decision. This appeal followed. On
appeal, claimant alleges 1) the record does not contain substantial evidence
supporting the ALJ’s determination that she had the RFC to perform a full range
of sedentary work; 2) the ALJ erred in basing his finding that her pain does not
preclude the performance of sedentary work partially on his observation about her
demeanor during the hearing; and 3) the ALJ failed to indicate what evidence he
relied upon to conclude claimant’s mental impairment does not affect her ability
to work.
I.
Claimant first contends that the Commissioner erred in finding that she has
the RFC to perform sedentary work because the ALJ lacked positive evidence to
support such a finding and should have ordered a consultative examination of her
RFC. She also challenges the ALJ’s RFC determination, arguing that the ALJ
improperly relied on her daily activities in reaching his decision.
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The ALJ was under no duty to obtain any consultative examinations. The
ALJ has broad latitude in determining whether to order a consultative
examination. See Diaz v. Secretary of Health & Human Servs., 898 F.2d 774, 778
(10th Cir. 1990). Consultative examinations are necessary only to resolve
conflicts in the medical evidence or to secure additional evidence needed to
support a decision. See 20 C.F.R. §§ 404.1519a & 416.919a.
Contrary to claimant’s contention, this is not a case in which the ALJ had
“no evidence upon which to make a finding as to RFC.” See Thompson v.
Sullivan, 987 F.2d 1482, 1491 (10th Cir. 1993). The ALJ described the evidence
in the record upon which he based his conclusion that claimant could perform
work at the sedentary exertional level. 1 This evidence included several physical
examinations of claimant’s back and spine that revealed no sensory or motor
abnormalities and good flexibility, and indicated claimant was able to continue
her work as a nursing assistant. Medical evidence also showed that claimant was
exercising at a health club and that her back pain was relieved by exercise and
activity. This evidence supports the ALJ’s determination that claimant retained
1
“Sedentary work involves lifting no more than 10 pounds at a time and
occasionally lifting or carrying articles like docket files, ledgers, and small tools.
Although a sedentary job is defined as one which involves sitting, a certain
amount of walking and standing is often necessary in carrying out job duties.
Jobs are sedentary if walking and standing are required occasionally and other
sedentary criteria are met.” 20 C.F.R. § 404.1567(a).
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the RFC to perform work at a sedentary exertional level. The medical evidence
also revealed that claimant reported that she had had migraine headaches since
childhood and that her migraines were “minimal” at present compared to the past.
We also reject counsel’s contention that the ALJ improperly relied on
claimant’s daily activities to reach his RFC determination. The ALJ did note that
claimant was attending a vocational school and getting excellent grades, though
he also noted that claimant reported having trouble sitting in classes that last
longer than an hour and a quarter and that her teachers allowed her to change
positions. The ALJ also recognized that claimant had been looking for work.
However, it is clear that the ALJ relied on numerous factors in reaching his RFC
determination, particularly the medical evidence, and the fact that claimant was
able to attend and perform well in school and was looking for work were not the
only factors he took into consideration. See Gay v. Sullivan, 986 F.2d 1336, 1339
(10th Cir. 1993) (while not conclusive, such activities as school attendance may
be considered, along with medical testimony, in determining the right of a
claimant to disability benefits). Further, statements regarding daily activities are
evidence properly considered under the Commissioner’s regulations. See 20
C.F.R. §§ 404.1529(a); 416.929(a).
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II.
Next, claimant contends that the ALJ erred in basing his finding that her
complaints of pain did not preclude the performance of sedentary work on his
observation that claimant “did not appear to be in any distress during the
hearing.” Appellant’s App. Vol. II at 19. We held in Teter v. Heckler, 775 F.2d
1104, 1106 (10th Cir.1985), that if the uncontroverted evidence corroborates the
claimant’s assertions of disabling pain, the ALJ “may not reject [those] assertions
on the basis of demeanor alone.” Although the ALJ did comment that claimant
did not appear to be in distress during the hearing, it is clear that he considered
the medical evidence and her testimony in evaluating her allegations of pain, and
it cannot be said that the uncontroverted evidence in this case corroborates
claimant’s assertions of disabling pain.
III.
Finally, claimant contends that the ALJ did not set forth the evidence he
relied upon to reach his conclusion that claimant’s depression would not affect
her ability to work. We disagree. The ALJ decision discusses in detail the
psychologists’ opinions and a description of the information he relied upon.
Claimant complains that the ALJ did not give controlling weight to the disability
opinion of Dr. Goncalves, a psychologist who met with her four or five times over
a two-month period and concluded that “due to a number of factors, both medical
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and psychological, it is . . . quite unrealistic to expect that [claimant] is capable of
successfully interviewing, being hired, and holding down a job at this time.”
Appellant’s App. Vol. II at 131.
Controlling weight will be given to a treating physician’s opinion only “if it
is well supported by clinical and laboratory diagnostic techniques and if it is not
inconsistent with other substantial evidence in the record.” Castellano, 26 F.3d at
1029. Additionally, because the determination of disability is the ultimate
responsibility of the Commissioner, a treating physician’s opinion as to a
claimant’s disability is not dispositive. See id. If a treating physician’s opinion
is not supported by specific findings, it may be rejected as long as specific and
legitimate reasons for doing so are given. See Goatcher v. United States Dep’t of
Health & Human Servs., 52 F.3d 288, 290 (10th Cir. 1995) (ALJ must give
specific, legitimate reasons for disregarding a treating physician’s disability
opinion).
The ALJ pointed out that Dr. Goncalves acknowledged that he had not
administered any psychological tests on claimant, and noted that Dr. Goncalves’
opinion was contradicted by the comprehensive psychological evaluation given to
claimant by Dr. Polk. The ALJ provided specific and legitimate reasons for
rejecting Dr. Goncalves’ opinion. Contrary to claimant’s contentions, Dr. Polk’s
evaluation did provide evidence of claimant’s ability to work. Dr. Polk’s global
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assessment of claimant’s mental functional abilities concludes that claimant has
mild symptoms of functional difficulties, but generally good functioning, and Dr.
Polk noted that claimant’s cognitive functioning appeared intact, with no apparent
deficits in concentration or memory.
The judgment of the United States District Court for the District of New
Mexico is AFFIRMED.
Entered for the Court
Stephen H. Anderson
Circuit Judge
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Winslow v. Chater
Combined Opinion