F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
SEP 3 2003
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
JOHN PACE,
Plaintiff-Appellant,
v. No. 03-5004
(D.C. No. 02-CV-7-M)
JO ANNE B. BARNHART, (N.D. Okla.)
Commissioner, Social Security
Administration,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before HARTZ , BALDOCK , and McCONNELL , 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This order and judgment is not binding precedent, except under the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-appellant John Pace challenges the Commissioner’s decision
denying Pace disability and supplemental security income benefits. Pace alleged
that he has been disabled, since September 1999, because of back, shoulder and
knee problems, as well as his learning disability and low intelligence. The
administrative law judge (ALJ), determined, however, at the fifth step of the
relevant analysis, see 20 C.F.R. §§ 404.1520, 416.920, that Pace was still able to
work as a bench assembler, fast food worker, clerical mailer and production
assembler. Reviewing the ALJ’s decision to determine only whether he applied
the law correctly and whether there was substantial evidence to support his
decision, see Doyal v. Barnhart , 331 F.3d 758, 760 (10th Cir. 2003), we affirm.
The ALJ found that Pace suffered from three severe impairments: lower
back pain, a learning disability and low intelligence. The ALJ, however, found
incredible Pace’s complaints that his back pain was disabling. Because the ALJ
gave specific reasons for doing so and the record supports those reasons, we must
defer to the ALJ’s credibility finding. See, e.g., White v. Barnhart , 287 F.3d 903,
909-10 (10th Cir. 2001).
The ALJ, then, determined that Pace retained the residual functional
capacity (RFC) to perform light work, defined in part as “lifting no more than
20 pounds at a time,” frequently “lifting or carrying . . . objects weighing up to 10
pounds,” and possibly requiring “a good deal of walking or standing,” 20 C.F.R.
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§§ 404.1567(b), 416.967(b). In addition, the ALJ found that Pace’s ability to do
light work was further limited because he could only walk, stand or sit for six
hours out of an eight-hour workday, perform simple tasks, and stoop occasionally.
In making this RFC determination, however, the ALJ rejected the opinion of
Pace’s treating physician, Dr. Rudolph Wolf, that Pace could only sit, stand or
walk for one hour, occasionally lift and carry up to ten pounds, had a limited
ability to use either hand for repetitive movements, could occasionally bend, but
never squat, crawl, climb or reach, and his ability to drive was mildly restricted,
as was his ability to be around marked changes in temperature and humidity, as
well as dust and fumes. The ALJ rejected Dr. Wolf’s opinion after erroneously
finding that he had not treated Pace since the date Pace alleged he had become
disabled. In fact, Dr. Wolf had treated Pace several times after the alleged onset
of Pace’s disability. Nonetheless, the record supports the ALJ’s ultimate decision
to discount Dr. Wolf’s RFC evaluation. Dr. Wolf had not examined or treated
Pace during the entire year preceding the doctor’s RFC evaluation. And
Dr. Wolf’s treatment notes do not support the functional restrictions Dr. Wolf
later found. Nor do the rest of Pace’s medical records. And Dr. Wolf himself
does not specify on what medical findings he based this RFC evaluation. Because
Dr. Wolf’s opinion was not well supported and was, in fact, inconsistent with the
record as a whole, therefore, the ALJ did not have to afford that opinion
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controlling weight. See 20 C.F.R. §§ 404.1527(d), 416.927(d); see also, e.g.,
Doyal , 331 F.3d at 762.
Pace next argues that the ALJ erred by minimizing the effect his depression
and social phobia had on his ability to work. The ALJ properly afforded the
social-phobia diagnosis “minimal weight” after finding that the counselor making
that provisional diagnosis was not an acceptable medical source. R. vol. 2 at 18;
see 20 C.F.R. §§ 404.1513(a), 416.913(a) (listing “acceptable medical sources”
who can give evidence establishing claimant has “medically determinable
impairment(s)”); cf. Barnett v. Apfel , 231 F.3d 687, 690 (10th Cir. 2000)
(upholding ALJ’s rejecting treating chiropractor’s opinion, noting chiropractor
was not included in list of “acceptable medical sources”). And the ALJ did not
completely disregard the social-phobia diagnosis. See id. §§ 404.1513(d),
416.913(d) (ALJ can consider evidence from sources other than “acceptable
medical sources” when considering severity of claimant’s impairments). Further,
the record supports the ALJ’s determination that these mental impairments only
mildly restricted his functional abilities.
Lastly, Pace argues the ALJ failed to consider the combined effect of his
impairments. Although the Commissioner argues Pace waived this argument by
failing to raise it in the district court, Pace did sufficiently raise this argument in
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his initial brief before that court. See R. vol. 1 at 10-11. Nonetheless, this
argument is unavailing.
Furthermore, although Pace specifically asserts the ALJ failed to consider
Pace’s weakened grip, when the ALJ considered all Pace’s impairments, there is
no evidence in the record supporting Pace’s claim that he has trouble with his
grip. See, e.g., Qualls v. Apfel , 206 F.3d 1368, 1372 (10th Cir. 2000) (holding
ALJ, in making RFC assessment, did not err in excluding claimant’s inability to
perform repetitive hand motions, where record contained no evidence of any such
limitation). While Pace did testify that he dropped things, this was, according to
Pace, the result of his back hurting when he picked up things, rather than
a weakened grip. See R. vol. 3 at 435.
Furthermore, although Pace argues the ALJ should have obtained the
records from his earlier disability proceeding, the ALJ expressly informed Pace’s
attorney that she needed to obtain and submit any relevant medical records. See
id. at 432-33. The attorney agreed to do so, see id., and never asserted that she
had any trouble trying to get those records. See Hawkins v. Chater , 113 F.3d
1162, 1167 (10th Cir. 1997) (noting “ALJ should ordinarily be entitled to rely on
the claimant’s counsel to structure and present claimant’s case in a way that the
claimant’s claims are adequately explored”). Under these circumstances, we
reject Pace’s assertion now that the ALJ should have obtained those records.
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The judgment of the district court, therefore, is AFFIRMED.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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