F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 15 1999
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
RANDALL L. NICHOLS,
Plaintiff-Appellant,
v. No. 98-5059
(D.C. No. CV-96-1088)
KENNETH S. APFEL, Commissioner, (N.D. Okla.)
Social Security Administration,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before TACHA , BARRETT , 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(G). 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This order and judgment is not binding precedent, except under the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 Randall L. Nichols appeals from the denial of social security
disability and supplemental security income (SSI) benefits. He argues that the
administrative law judge (ALJ): (1) erroneously concluded at step four that he
could return to his past relevant work without making the required findings to
support that conclusion; (2) erroneously discredited his credibility and pain
testimony without considering all of the relevant factors; and (3) erroneously
relied on incomplete and improper expert vocational testimony at step five. We
have jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291.
Plaintiff was born on March 15, 1955. He completed eleven years of
schooling and obtained a GED. He alleges he has been disabled since
September 30, 1989, due to severe pain in his back, leg, and shoulders; headaches;
vision problems; muscle spasms; and limited mobility. He has had six surgeries:
in 1977, to remove a bone spur on his right ankle; in 1981, for a herniated disk;
in1982, to remove 60% of a disk; in 1983, to fuse two levels on his spine; in 1984,
to redo the fusion; and, in 1992, to remove his gall bladder. His past work
includes a number of jobs: telephone solicitor, maintenance man, butcher,
convenience store cashier, shipping and receiving clerk, window washer, gas
station attendant, motel manager, and Salvation Army bell ringer. A vocational
expert characterized plaintiff’s past work as unskilled or low semi-skilled and
requiring light or medium exertion.
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The ALJ denied plaintiff’s claim at step four of the evaluation sequence.
See generally Williams v. Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988). He
decided that plaintiff retains the residual functional capacity (RFC) to perform
light work, except for jobs that require overhead reaching. Relying on vocational
testimony, he determined that plaintiff can return to his past work as a telephone
solicitor, motel operator, or service station attendant. He therefore concluded that
plaintiff is not disabled. The Appeals Council denied review, making the ALJ’s
decision the final agency decision. Plaintiff then brought this suit. The parties
consented to disposition by a magistrate judge, see 28 U.S.C. § 636(c), who
affirmed the agency’s decision.
We review the agency’s decision on the whole record to determine only
whether the factual findings are supported by substantial evidence and the correct
legal standards were applied. See Goatcher v. United States Dep’t of Health
& Human Servs. , 52 F.3d 288, 289 (10th Cir. 1995). We may not reweigh the
evidence or substitute our judgment for that of the agency. See Kelley v. Chater ,
62 F.3d 335, 337 (10th Cir. 1995). We are not persuaded by plaintiff’s claims of
error.
Plaintiff’s contention that the ALJ erroneously concluded that he could
return to his past relevant work without making the required findings to support
that conclusion subtends several other issues. Plaintiff argues that the ALJ:
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(a) ignored or misconstrued evidence in the record, in that he ignored that plaintiff
had undergone several back surgeries; (b) purported to make findings based on
evidence not in the record, in that he disregarded a doctor’s opinion because the
doctor consistently overrated disabilities in other cases ; (c) improperly determined
that plaintiff’s jobs as a telephone solicitor and motel manager were past relevant
work when plaintiff did not earn enough money from these jobs for either to
qualify as past relevant work; (d) improperly determined that plaintiff could
perform the job of motel manager–a skilled job requiring medium exertion
according to the Dictionary of Occupational Titles (DOT); and (e) improperly
determined that plaintiff could perform the job of service station attendant–a
semi-skilled job requiring medium exertion according to the DOT. The last three
of these issues are raised for the first time on appeal and, therefore, will not be
addressed. See Crow v. Shalala , 40 F.3d 323, 324 (10th Cir. 1994).
At step four, a social security claimant bears the burden of proving that his
medical impairments prevent him from returning to his past relevant work. See
42 U.S.C. § 423(d)(5)(A); 20 C.F.R. § 404.1520(e). A claimant is therefore not
disabled if he fails to prove that he does not retain the RFC to perform the duties
of his past work. In order to make the ultimate finding that a claimant is not
disabled at step four, however, the ALJ is required by the agency’s own ruling to
make specific findings concerning the physical and mental demands of the
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claimant’s past jobs, and how these demands mesh with the claimant’s particular
exertional and nonexertional limitations. See Social Security Ruling 82-62, 1982
WL 31386, at *4; see also Winfrey v. Chater , 92 F.3d 1017, 1024-25 (10th Cir.
1996); Henrie v. United States Dep’t of Health & Human Servs. , 13 F.3d 359, 361
(10th Cir. 1993). The ALJ is bound by the agency’s rulings. See 20 C.F.R.
§ 402.35(b)(1).
In this case, the ALJ found that plaintiff is capable of light work except for
jobs that require overhead reaching. See Appellant’s App. at 21-22. Specifically,
he found that plaintiff “is not able to lift and carry more than 20 pounds or more
than ten pounds on a regular basis . . . [and] significant nonexertional limitations
. . . affect his ability to perform tasks requiring overhead reaching.” Id. Plaintiff
complains that the ALJ failed to consider his two back fusions in this RFC
assessment. However, the event of each surgery, by itself, is not relevant to the
ALJ’s determination. What matters are the limitations, if any, resulting from
plaintiff’s surgeries. Plaintiff points to no evidence of any limitation caused by
his two back fusions, however. Therefore, we find plaintiff’s challenge to the
RFC assessment to be without merit.
The ALJ further found that “[i]n his former job as telephone solicitor, as
motel operator, and as service station attendant, [plaintiff] was not required to lift
more than 20 pounds or perform tasks requiring overhead reaching.” Id. at 22.
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Although these findings as to the requirements of plaintiff’s former jobs and how
they mesh with his impairments are brief, they are sufficient to satisfy the ALJ’s
duty at step four in this case.
We are concerned that the ALJ mentioned his distrust of Dr. Martin’s
opinion in this case based on the ALJ’s opinion of that doctor’s medical findings
in other cases. The regulations do not clearly provide for an ALJ to disregard a
physician’s opinion on this basis. See 20 C.F.R. § 404.1527(d)(1)-(6); 20 C.F.R.
§ 416.927(d)(1)-(6). Nevertheless, the ALJ also noted that Dr. Martin examined
plaintiff on only one occasion, which is an acceptable reason to discount his
opinion that plaintiff is 100% disabled. See 20 C.F.R. § 404.1527(d)(2); 20 C.F.R.
§ 416.927(d)(2). The ALJ’s review of the medical evidence also demonstrated that
Dr. Martin’s opinion was inconsistent with other doctors’ opinions regarding the
extent of plaintiff’s impairments. This inconsistency provided another valid
reason for the ALJ to give Dr. Martin’s opinion less weight. See 20 C.F.R.
§ 404.1527(d)(4); 20 C.F.R. § 416.927(d)(4).
Plaintiff next contends that the ALJ erroneously discredited his credibility
and pain testimony by not making required findings, see Social Security Ruling
96-7p, 1996 WL 374186, at *4-*5, and by not closely and affirmatively linking the
evidence to his decision, Kepler v. Chater , 68 F.3d 387, 391 (10th Cir. 1995).
Plaintiff also argues that the ALJ improperly discredited his claimed inability to
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afford medical treatment by assuming that plaintiff’s several worker’s
compensation awards included medical provisions, when no evidence to that effect
is in the record.
With respect to the first point, plaintiff is asking us to reweigh the evidence.
This, we cannot do. See Kelley , 62 F.3d at 337. The ALJ thoroughly explained
that he disbelieved plaintiff’s complaints of severe pain because the medical
evidence, and plaintiff’s own testimony, showed that he did not pursue medical
treatment or take much medication other than aspirin. Moreover, although
plaintiff argues that the ALJ improperly assumed his various worker’s
compensation awards included medical benefits, he does not contend that the
ALJ’s assumption was wrong. For this reason, we decline to call the ALJ’s
conclusion an error.
Because we find that the ALJ’s conclusion that plaintiff is not disabled at
step four is supported by substantial evidence and the correct legal standards were
applied, it is unnecessary to reach plaintiff’s step-five argument.
The judgment of the United States District Court for the Northern District of
Oklahoma is AFFIRMED.
Entered for the Court
Michael R. Murphy
Circuit Judge
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