F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 22 1999
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
GRACE J. BROWN,
Plaintiff-Appellant,
v. No. 99-5023
(D.C. No. 97-CV-786)
KENNETH S. APFEL, Commissioner, (N.D. Okla.)
Social Security Administration,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before EBEL , LUCERO , and MURPHY , Circuit Judges.
Claimant Grace J. Brown appeals the district court’s order 1 affirming the
Commissioner’s decision to deny her application for disability insurance benefits.
She alleges disability since April 27, 1993, due to pain and swelling in her hands,
wrists, and right ankle, pain in her arms, right foot, right hip, and posterior neck
*
The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). 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judgment is not binding precedent, except under the doctrines of law of the case,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.
1
The parties consented to proceed before a magistrate judge. See
28 U.S.C. § 636(c).
and shoulder areas, microscopic colitis, hypertension, and peptic ulcer disease. A
prior application was denied February 1, 1994, but not appealed. Therefore, the
Administrative Law Judge (ALJ) determined that the beginning date for
claimant’s current application was February 2, 1994.
Following a hearing, the ALJ determined at step five of the five-step
analysis, see Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988)
(discussing five steps), that claimant could not perform her past work as a
converter repairer, but that she could perform alternate work that exists in
significant numbers in the local and national economies. Accordingly, the
Commissioner determined that claimant was not disabled within the meaning of
the Social Security Act.
On appeal, claimant contends that the ALJ (1) failed to find that claimant’s
colitis and seronegative arthritis were severe impairments, (2) failed to evaluate
properly claimant’s complaints of disabling pain, and (3) improperly refused to
reopen claimant’s prior application. We exercise jurisdiction under 28 U.S.C.
§ 1291 and affirm.
We review the Commissioner’s decision to determine whether it is
supported by substantial evidence and whether correct legal standards were
applied. See Hawkins v. Chater, 113 F.3d 1162, 1164 (10th Cir. 1997).
Substantial evidence is “‘such relevant evidence as a reasonable mind might
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accept as adequate to support a conclusion.’” Soliz v. Chater, 82 F.3d 373, 375
(10th Cir. 1996) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)
(further quotation omitted)). We may neither reweigh the evidence nor substitute
our judgment for that of the Commissioner. See Casias v. Secretary of Health &
Human Servs., 933 F.2d 799, 800 (10th Cir. 1991).
Claimant contends that the ALJ misunderstood her diagnoses of
seronegative polyarthritis and microscopic colitis. 2 According to claimant,
seronegative polyarthritis could be the cause of her ankle, hip and shoulder pain,
making it impossible for her to perform medium or light exertional work
activities. The ALJ considered the objective medical evidence and claimant’s
testimony on her pain, as well as her testimony on her ability to stand and walk.
Based on our review of the evidence, we determine that substantial evidence
supports the ALJ’s conclusion that claimant’s arthritis does not preclude her from
performing medium or light work. As for her colitis, neither claimant nor her
doctor indicated it would adversely affect her ability to work. To the extent
claimant argues the ALJ erred by not finding that the combined effects of
2
The Commissioner argues that claimant did not present this argument to
the district court and, therefore, it is waived on appeal. See Crow v. Shalala , 40
F.3d 323, 324 (10th Cir. 1994). We conclude that the issue was apprehended by
her argument that the ALJ failed to consider the extent of her impairments and
their effect on her ability to work.
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seronegative polyarthritis and microscopic colitis were more severe than either
condition separately, the medical evidence does not support such a finding.
Claimant next challenges the ALJ’s finding that her complaints of disabling
pain were not fully credible. The ALJ discussed the appropriate factors relating
to claimant’s assertions of severe pain, identified the evidence he considered in
evaluating those factors, and gave reasons for his determination that claimant did
not suffer from disabling pain. See Kepler v. Chater, 68 F.3d 387, 391 (10th Cir.
1995) (discussing factors ALJ should consider and requiring ALJ to link
credibility findings to substantial evidence).
Claimant argues that the ALJ’s reasons for discrediting her complaints of
severe pain are not supported by substantial evidence. She asserts that the ALJ
improperly relied on her physician’s statement that, although she could not
perform her past job requiring repetitive hand and wrist motions, she could
perform other work-related activities. Citing Harris v. Secretary of Health &
Human Servs., 821 F.2d 541 (10th Cir. 1987), claimant argues that the ALJ
should not have considered that opinion because it was made before claimant was
diagnosed with seronegative polyarthritis and microscopic colitis. Harris is
inapposite. There, the ALJ failed to recognize that the treating physician had
changed his opinion regarding the claimant’s ability to work, and instead relied
on an early opinion that the claimant could work despite a later opinion that his
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deteriorating condition prevented him from working. See 821 F.2d at 544. Here,
claimant’s treating physician, Dr. Sanders, stated on April 7, 1995, that claimant
could do other work. See Appellant’s App. vol. II at 110. No later or conflicting
opinion by Dr. Sanders appears in the record, and no other physician stated that
claimant could not perform any work-related activities, although others concurred
with Dr. Sanders that she could not perform her past work. Consequently, the
ALJ’s consideration of Dr. Sanders’ opinion that claimant could perform other
work was not in error.
Claimant also alleges that the ALJ erred in discounting her complaints of
disabling pain due to the lack of medication for severe pain. She claims the ALJ
did not understand that she could not take strong medications for pain or other
symptoms because they could aggravate her colitis. Claimant relies on “common
knowledge” that patients with ulcers should avoid some medications. Appellant’s
Br. at 33. However, none of claimant’s physicians stated that her peptic ulcer
disease precluded her from taking medications, and they prescribed various
medications. The ALJ properly relied on the medical evidence in the record; he
was not required to investigate medical theories not presented to him.
Claimant’s argument suggests that the ALJ ignored the medical evidence
that she had some pain and swelling in her back, shoulders and legs, but, in fact,
the ALJ acknowledged these conditions. He determined they were not disabling,
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a determination supported by substantial evidence. The ALJ also evaluated the
limitations on claimant’s right hand and tailored his hypothetical question to the
vocational expert to include those limitations. See Appellant’s App. vol. II at
226-27; cf. Gay v. Sullivan, 986 F.2d 1336, 1341 (10th Cir. 1993) (hypothetical
question to vocational expert must include only those impairments ALJ finds
credible). Claimant’s additional arguments speculating that she could have taken
pain medication before the hearing, that her morning stiffness could have worn
off before the hearing, that she could have related to her examining physicians
that she was in pain, not by words, but by facial expressions, and that diarrhea at
night would logically interfere with her sleep and therefore with her ability to
work, are insufficient to undermine the substantial evidence supporting the ALJ’s
decision. Accordingly, we will not disturb the ALJ’s credibility determination.
See Adams v. Chater, 93 F.3d 712, 715 (10th Cir. 1996) (ALJ is “individual
optimally positioned to observe and assess witness credibility”) (quotation
omitted).
Finally, we consider claimant’s allegation that the ALJ erred in refusing to
reopen her earlier claim filed January 3, 1994, and denied February 1, 1994.
Claimant has not identified “a colorable constitutional claim;” therefore, the
district court was without jurisdiction to review the Commissioner’s discretionary
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decision not to reopen the earlier ruling. Nelson v. Secretary of Health & Human
Servs., 927 F.2d 1109, 1111 (10th Cir. 1990) (quotation omitted).
AFFIRMED.
The mandate shall issue forthwith.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
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