F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
September 12, 2005
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
LAWRENCE SEGURA,
Plaintiff - Appellant,
v. No. 04-1173
(D.C. No. 03-F-288 (MJW))
JO ANNE B. BARNHART, (D. Colo.)
Commissioner of Social Security,
Defendant - Appellee.
ORDER AND JUDGMENT *
Before O’BRIEN , HOLLOWAY , and BALDOCK , 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.
Claimant Lawrence Segura appeals the district court’s affirmance of the
decision by the Commissioner of Social Security denying his application for
*
This order and judgment is not binding precedent, except under the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.
Supplemental Security Income (SSI). Because the Commissioner’s decision is
supported by substantial evidence and no legal errors occurred, we affirm.
BACKGROUND
Mr. Segura alleges that his disability began with a 1992 fall from a bridge,
while he was working as a cement finisher. This is his second application for
benefits. Starting in 1992, he received benefits based on a supplemental plea that,
in addition to his work-related injuries, he suffered from alcoholism. These
benefits were terminated in 1997 pursuant to 42 U.S.C. § 1382c(a)(3)(J), which
provides that “an individual shall not be considered to be disabled . . . if
alcoholism or drug addiction would . . . be a contributing factor material to the
Commissioner’s determination that the individual is disabled.” And, in any event,
Mr. Segura would have been ineligible for benefits from December 1997 through
February 2000 because he was incarcerated in the Denver County Jail. See 20
C.F.R. §§ 404.468, 416.22.
With his current application, filed upon his release from jail, Mr. Segura
alleges disability as of June 16, 2000, due to pain in his back, neck, shoulders,
upper extremities, and left foot. He also claims depression, headaches, and
cognitive limitations. The medical record consists primarily of three consultative
reports, based on examinations performed in conjunction with Mr. Segura’s
application. Dr. Jonathan Dietz, a physician, recorded claimant’s account of his
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medical history and condition. Mr. Segura stated that he had shattered his left
foot in the 1992 accident, that he was last treated or evaluated for this injury in
1993, but that he still suffered severe foot and back pain. Moreover he reported
that he was in pain from a 1997 injury to his right forearm and experienced pain
and numbness from multiple injuries to his fingers. Mr. Segura had no treatment
in jail. He took no prescription medications.
Based on his examination, Dr. Dietz found deformity in Mr. Segura’s left
foot, with associated tenderness and scarring from surgery. He had decreased
range of motion in his left ankle and slightly decreased range of motion in his
back and fingers. Additionally, Dr. Dietz diagnosed a mood disorder, cognitive
impairment, deconditioning, and a mild increase in blood pressure. As of
August 2, 2000, Dr. Dietz’s functional assessment limited Mr. Segura’s ability to
stand and lift and also anticipated problems with interpersonal communication
and skills requiring memory.
After Dr. Dietz provided his report, two consultants evaluated Mr. Segura’s
psychological status. On September 3, 2000, Dr. Timothy Cucich, a physician,
conducted a mental-status examination. Dr. Cucich’s diagnostic impression was
that Mr. Segura’s alcohol dependence was in remission and that he had a mood
disorder secondary to chronic pain syndrome. Dr. Cucich rated Mr. Segura’s
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global assessment of functioning (GAF) score as 65 and recommended additional
psychological testing to help decipher his ostensible cognitive limitations. 1
The agency then requested Brett Valette, Ph.D., to examine Mr. Segura and
provide an opinion on his ability to perform basic work tasks. Dr. Valette
diagnosed dysthymia (mild chronic depression) and pain disorder associated with
medical and psychological factors. He assigned Mr. Segura a GAF score of 50,
but noted that Mr. Segura “gave up very, very, easily” in attempting to answer
questions (perhaps due to his dysthymia and pain disorder) and that Mr. Segura’s
educational history was inconsistent with his low test scores. Admin. R. at 194.
Dr. Valette suggested that the scores may be invalid and recommended ruling out
cognitive and memory impairment. Because of his reservations about the validity
of the testing results, Dr. Valette stated that he could not determine Mr. Segura’s
abilities with regard to detailed instructions. But he assessed Mr. Segura with
only a slight limitation of the ability to understand, remember, and carry out short
and simple instructions and to make judgments on simple work-related decisions.
1
A global assessment of functioning score “is a subjective determination
based on a scale of 100 to 1 of the clinician’s judgment of the individual’s overall
level of functioning. A GAF score of 51-60 indicates moderate symptoms, such
as a flat affect, or moderate difficulty in social or occupational functioning. A
GAF score of 41-50 indicates serious symptoms or serious impairment in social,
occupational, or school functioning, such as inability to keep a job.” Langley v.
Barnhart, 373 F.3d 1116, 1122 n.3 (10th Cir. 2004) (quotations, brackets, and
elipses omitted).
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Mr. Segura’s application was denied at the initial level of consideration and
after a hearing before an Administrative Law Judge (ALJ). The ALJ followed the
required sequential evaluation process for disability claims. See Williams v.
Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988). Because Mr. Segura was not
engaged in substantial gainful employment, the ALJ proceeded to step two and
determined that Mr. Segura’s left foot, right forearm, left shoulder, back pain,
along with dysthymic and pain disorders with related cognitive impairment,
constituted severe impairments. At step three, the ALJ found that Mr. Segura had
no impairment or combination of impairments which satisfied any of the
Commissioner’s listing of impairments.
Based on the medical record, including consideration of Mr. Segura’s
allegations of disabling pain and the testimony at the hearing, the ALJ concluded
at step four that Mr. Segura could not perform his past relevant work, but that he
had the residual functional capacity for a restricted range of light work. Moving
to the fifth and final step in the sequential process, and based on hypothetical
questions posed to a vocational expert, the ALJ determined that there were
sedentary and light jobs which Mr. Segura was able to perform.
Accordingly, the ALJ concluded that Mr. Segura was not disabled.
Mr. Segura’s claim was then processed under procedures established to test
elimination of the request for Appeals Council review, so that the ALJ’s decision
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became the final decision for purposes of judicial review. See 20 C.F.R.
§ 416.1466. Upon appeal, the district court denied relief.
DISCUSSION
We review the Commissioner’s decision “to determine whether the factual
findings are supported by substantial evidence in the record and whether the
correct legal standards were applied.” Hamlin v. Barnhart , 365 F.3d 1208, 1214
(10th Cir. 2004) (internal quotation marks omitted). “[B]ecause our review is
based on the record taken as a whole, we will meticulously examine the record in
order to determine if the evidence supporting the agency’s decision is
substantial,” but we “neither reweigh the evidence nor substitute our discretion
for that of the Commissioner.” Id. (internal quotation marks and brackets
omitted).
On appeal, Mr. Segura asserts three main reasons why the Commissioner’s
decision is not supported by substantial evidence. First, he challenges the ALJ’s
discounting of his testimony on his pain levels. In evaluating an ALJ’s credibility
determination when a claimant alleges disabling pain, we employ a three-part
framework that considers
(1) whether Claimant established a pain-producing impairment by
objective medical evidence; (2) if so, whether there is a loose nexus
between the proven impairment and the Claimant's subjective
allegations of pain; and (3) if so, whether considering all the
evidence, both objective and subjective, Claimant’s pain is in fact
disabling.
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Kepler v. Chater , 68 F.3d 387, 390 (10th Cir.1995) (quotations omitted). It is
“difficult,” however, for a claimant “to establish disabling pain without the
explicit confirmation of treating physicians.” Id. (internal quotation marks
omitted). We generally defer to an ALJ’s evaluation of credibility as long as the
findings are linked to substantial evidence. Id. at 391.
In this case, the ALJ explained his reasons for determining that
Mr. Segura’s testimony was not wholly credible. A major factor was the lack of
regular medical treatment, including prescriptions for pain relief. Mr. Segura had
not been treated for his left-foot problems since 1993, or his right-arm injury
since 1997. He attended physical therapy in 2001 for a dislocated and fractured
left shoulder, but ceased therapy after six sessions. Also, the ALJ noted that
Mr. Segura’s daily activities were inconsistent with his complaints of extreme
pain. The ALJ applied the correct legal standards in evaluating Mr. Segura’s
subjective allegations of pain, and the ALJ’s assessment of credibility is
supported by substantial evidence in the record.
Mr. Segura’s second argument is that the ALJ lacked sufficient evidence
upon which to make RFC findings, because he failed to order an additional
psychoneurological evaluation. The ALJ has considerable discretion to procure
consultative examinations. See Diaz v. Sec’y of Health & Human Servs ., 898 F.2d
774, 778 (10th Cir. 1990). “The standard” for determining whether the ALJ fully
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developed the record “is one of reasonable good judgment.” Hawkins v. Chater,
113 F.3d 1162, 1168 (10th Cir. 1997).
Contrary to Mr. Segura’s contentions, the ALJ did not need further mental-
status evidence to reach an RFC determination. The record here contains two
psychological evaluations. The second consultative report provided an
affirmative assessment of Mr. Segura’s mental ability to do simple work-related
activities in spite of his dysthymia and pain disorder. Indeed, this report indicated
that his low scores may not accurately reflect his true intellectual functioning.
And the ALJ accounted for Mr. Segura’s mental limitations by determining that
his reasoning, mathematical, and language development skills were on the most
basic rung of the General Educational Development Scale described in the
Dictionary of Occupational Titles , App. C, 1009-12 (U.S. Dep’t of Labor,
Employment, & Training Admin., 4th ed. 1991). The ALJ restricted the jobs
which Mr. Segura could perform to those requiring only the mental ability to
“understand, remember and carry out one and two-step work instructions, in jobs
that are routine and repetitive in nature.” Admin. R. at 15. Under these
circumstances, there was no need to order another consultative examination.
Finally, Mr. Segura claims error in the ALJ’s declining to presume that a
person with Mr. Segura’s problems “would logically miss work two or three days
per month.” Aplt. Br. at 9. In essence, Mr. Segura disagrees with the weight the
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ALJ gave to various facts in reaching an RFC determination. But, as previously
stated, we may not reweigh the evidence on appeal.
The judgment of the district court is AFFIRMED.
Entered for the Court
William J. Holloway
Circuit Judge
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