F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 8 1998
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
DENZIL E. PLACKE,
Plaintiff-Appellant,
v. No. 97-7123
(D.C. No. CV-96-255-S)
KENNETH S. APFEL, Commissioner (E.D. Okla.)
of Social Security Administration,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before BALDOCK, EBEL, 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This order and judgment is not binding precedent, except under the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 a district court judgment affirming the Commissioner
of Social Security’s denial of his application for disability benefits. We review
the district court’s order de novo. See Brown v. Callahan, 120 F.3d 1133, 1135
(10th Cir. 1997). To that end, we must independently determine whether the
Commissioner’s decision is both supported by substantial evidence in the record
and free of legal error. See id. 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) (quotation omitted). Guided
by these standards, we affirm.
As an initial matter, we repeat the magistrate judge’s admonition that
plaintiff’s attorney should be aware of the requirement set forth by this court
in James v. Chater, 96 F.3d 1341, 1343-44 (10th Cir. 1996), that all issues not
brought to the attention of the Appeals Council are waived. We agree with the
magistrate judge that plaintiff’s communication to the Appeals Council shows that
plaintiff focused on the step-four issue, at the expense of plaintiff’s other issues.
However, like the district court, we will consider all issues in this appeal.
Plaintiff was sixty-one years old when he applied for benefits, and he
alleges disability because of carpal tunnel syndrome and various other problems
in both wrists and lower back problems. Following the five-step evaluative
sequence, see Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988), the
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administrative law judge (ALJ) made a determination at step four that plaintiff
could perform his past relevant work as a medical technician. Plaintiff argues
three points on appeal: the ALJ did not accord proper weight to his treating
physician’s findings and opinions; the ALJ’s analysis and findings regarding
plaintiff’s pain and credibility were in error and not supported by substantial
evidence; and the record does not contain substantial evidence that plaintiff
can perform the demands of his past relevant work.
We do not agree with plaintiff that the ALJ erred in his weighing of the
treating physician’s opinion. In fact, the ALJ accepted Dr. Hathcock’s opinion
that plaintiff had a consistent limitation of not being able to engage in frequent
repetitive motion actions. The record shows that Dr. Hathcock’s findings and
opinions are consistent with the ALJ’s findings. The ALJ did not disregard the
opinion of plaintiff’s treating physician, and, in fact, his determination is
consistent with the record evidence by the treating physician.
In addition, the ALJ properly considered plaintiff’s subjective complaints
of pain. See Luna v. Bowen, 834 F.2d 161, 165-66 (10th Cir. 1987). He correctly
determined that nothing in the record indicated that, given the limitation of only
infrequent repetitive motion activity, plaintiff could not meet the demands of his
former work. The record indicates that plaintiff takes only aspirin for his pain,
that he has not sought further treatment, and that his daily activities are consistent
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with the ALJ’s findings as to plaintiff’s capacity. The ALJ was within his
province in finding that plaintiff’s complaints of pain were not credible to the
extent they were inconsistent with this record evidence and the medical evidence.
Substantial evidence also supports the ALJ’s finding that there was no objective
medical basis for his complaints of back pain.
As to plaintiff’s final argument, we hold that the record contains substantial
evidence to support the ALJ’s finding that plaintiff’s impairments did not prohibit
him from performing his past work, with the limitation that he only infrequently
engaged in repetitive motion activity with his hands. In addition to being
consistent with Dr. Hathcock’s findings, the ALJ’s conclusion is supported by the
record evidence of Dr. White’s consultative exam and Dr. Ellis’s one-time exam.
The ALJ questioned the vocational expert as to plaintiff’s ability to perform the
demands of his previous work as a medical technician, specifically instructing her
to assume the limitation regarding repetitive motion activity. The expert testified
that, given that limitation, plaintiff would be able to perform his former work as
a medical technician. Finally, contrary to plaintiff’s representation, the
vocational expert did not testify that plaintiff would need to make a significant
vocational adjustment to return to his medical technician work. She testified that
plaintiff would need to familiarize himself with new medical equipment, but she
did not testify that a significant adjustment would be required.
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The judgment of the United States District Court for the Eastern District
of Oklahoma is AFFIRMED.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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Placke v. Apfel
Combined Opinion