Qualls v. Apfel

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
MAR 22 2000
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

EDMOND L. QUALLS,

Plaintiff-Appellant,

v. No. 99-5014

KENNETH S. APFEL,

Defendant-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
(D.C. No. 97-CV-209-E)

Submitted on the briefs:

Paul F. McTighe, Jr., Tulsa, Oklahoma, for Plaintiff-Appellant.

Stephen C. Lewis, United States Attorney, Peter Bernhardt, Assistant U.S.
Attorney, Tina M. Waddell, Regional Chief Counsel, Mark J. Kingsolver,
Deputy Chief Counsel, and Virginia Watson, Assistant Regional Counsel,
Social Security Administration, Office of the General Counsel, Dallas, Texas,
for Defendant-Appellee.

Before BALDOCK , PORFILIO , and BRORBY , Circuit Judges.

BALDOCK , Circuit Judge.
 Plaintiff appeals the denial of his April 1992 applications for disability

insurance benefits and supplemental security income. 1
Plaintiff contends he has

been disabled since June 15, 1986, due to back and hand problems and illiteracy.

An administrative law judge (ALJ) held a hearing on plaintiff’s applications

March 31, 1993, at which plaintiff was represented by counsel. In May 1993,

the ALJ issued a decision ruling that plaintiff was not disabled. Plaintiff

appealed the decision to the Appeals Council, which denied review. Plaintiff then

appealed to the district court, which remanded the matter to the agency with

directions to have plaintiff examined by a hand specialist and then hold a

supplemental hearing.

On remand, the agency had plaintiff examined by Dr. Milo, an orthopedist,

and the ALJ subsequently conducted another hearing at which plaintiff was

represented by counsel. In October 1996, the ALJ issued a new decision, in

which he again concluded that plaintiff was not disabled. The ALJ found that

plaintiff had severe impairments, but that he retained the residual functional

capacity (RFC) to perform limited light and sedentary work. Specifically, the

ALJ found that plaintiff’s ability to do light and sedentary work was restricted

1
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.

-2-
by the following nonexertional limitations: limited fine finger manipulation in

the left hand, limited feeling in both hands, inability to manipulate small objects,

and mental impairments that necessitated simple, repetitive, unskilled work. The

ALJ concluded that plaintiff could no longer do his past relevant work, which had

required heavy exertion, but that he could perform a variety of light and sedentary

jobs that exist in significant numbers in the national economy. The Appeals

Council denied plaintiff’s petition for review, thereby making the ALJ’s decision

the final decision of the Commissioner, and the district court subsequently

affirmed the denial of benefits.

Plaintiff now appeals to this court, arguing that (1) the ALJ’s RFC

assessment is not supported by substantial evidence; (2) the ALJ’s credibility

findings are neither linked to, nor supported by, specific evidence in the record;

and (3) the ALJ failed to include all of plaintiff’s impairments in his hypothetical

questions to the vocational expert (VE). 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 accept as adequate to support a conclusion.” Soliz v. Chater , 82 F.3d

373, 375 (10th Cir. 1996) (quotations omitted). In conducting our review, we

may neither reweigh the evidence nor substitute our judgment for that of the

-3-
Commissioner. See Casias v. Secretary of Health & Human Servs. , 933 F.2d 799,

800 (10th Cir. 1991).

The ALJ’s RFC Assessment

Plaintiff first challenges the ALJ’s RFC assessment on the ground that

“[t]he Administrative Law Judge’s finding that the Appellant can perform a full

range of light or sedentary work on a sustained, consistent basis is simply not

based on substantial evidence.” Appellant’s Br. at 27. This argument is based on

a misrepresentation of the record and is clearly without merit. The ALJ did not

find that plaintiff could perform a full range of light and sedentary work; he

found that plaintiff could perform only limited light and sedentary work. This

court does not look favorably upon arguments founded on misrepresentations of

the record. Plaintiff’s counsel, Paul McTighe, has been warned and admonished

many times for making misrepresentations to this court. In light of his conduct,

Mr. McTighe shall be referred to a randomly assigned attorney disciplinary panel

to determine what action, if any, is appropriate. See 10th Cir. R. 46.5, 46.6.

Next, plaintiff challenges the ALJ’s RFC assessment on the ground that

he failed to take into account a statement in the February 22, 1996, report of

Dr. Felmlee, plaintiff’s treating physician, that plaintiff should be examined by

an internist “due to his generalized weakness and muscle fasciculation (quivering)

when attempting to perform manual labor activities and biceps contraction and

-4-
extension maneuvers.” Appellant’s App., Vol. II, Pt. 2, at 472. Plaintiff argues

that “a person who has generalized weakness and muscle quivering cannot

perform the full range of light or sedentary work on a consistent basis.” 2

Appellant’s Br. at 27. The ALJ’s RFC assessment, which assumed that plaintiff

was limited to work involving lifting no more than twenty pounds occasionally,

was not inconsistent with Dr. Felmlee’s statement that plaintiff experienced

weakness and muscle quivering when performing manual labor. Further,

the ALJ’s RFC assessment was consistent with the RFC assessment made by

Dr. Milo, an orthopedic specialist who examined plaintiff after Dr. Felmlee.

Finally, plaintiff argues that the ALJ failed to take into account his alleged

inability to perform repetitive movements with his hands and that someone with

his severe hand problems could not perform the full range of light or sedentary

work. The first contention is belied by the medical record, which does not show

that the limitations in plaintiff’s use of his hands included an inability to perform

repetitive motions. Therefore, the ALJ did not err by failing to include this

alleged limitation in his RFC assessment. The second contention is founded on

a misrepresentation of the record similar to that noted above. The ALJ did not

find that someone with plaintiff’s hand problems could perform a full range of

2
We note that plaintiff does not challenge the ALJ’s decision on the ground
that the ALJ should have ordered a consultative examination by an internist, as
suggested by Dr. Felmlee.

-5-
light and sedentary work. The ALJ found that plaintiff’s hand problems limited

his ability to perform light and sedentary work, and the jobs he found plaintiff

could perform took those limitations into account.

The ALJ’s Credibility Determination

Plaintiff first attacks the ALJ’s credibility determination on the ground that

the ALJ did not apply the correct legal standards. Specifically, plaintiff argues

that the ALJ failed to link his credibility findings to the evidence, as required by

Kepler v. Chater , 68 F.3d 387, 391 (10th Cir. 1995). In Kepler , we found the

ALJ’s credibility determination inadequate because the ALJ simply recited the

general factors he considered and then said the claimant was not credible based

on those factors. The ALJ did not refer to any specific evidence relevant to the

factors, so we, as a reviewing court, could only guess what evidence the ALJ

relied on in evaluating the claimant’s credibility. Id. at 390-91. Here, however,

the ALJ did not simply recite the general factors he considered, he also stated

what specific evidence he relied on in determining that plaintiff’s allegations of

disabling pain were not credible. Contrary to plaintiff’s view, our opinion in

Kepler does not require a formalistic factor-by-factor recitation of the evidence.

-6-
So long as the ALJ sets forth the specific evidence he relies on in evaluating the

claimant’s credibility, the dictates of Kepler are satisfied. 3

Plaintiff next challenges the ALJ’s credibility determination on the ground

that it is not supported by the evidence. Plaintiff first argues that the ALJ erred

in relying on plaintiff’s failure to take medication for severe pain. Plaintiff

contends that his testimony that he took pills his friends gave him belies this

finding. Plaintiff did not indicate that he took pills from friends with any

frequency, however, nor did he know what he was taking. Relying on our opinion

in Frey v. Bowen , 816 F.2d 508 (10th Cir. 1987), plaintiff also argues that the

ALJ could not consider his failure to take pain medication in the absence of

evidence that plaintiff had been prescribed pain medication and that it would have

restored his ability to work if he had taken it. Plaintiff’s reliance on our opinion

in Frey is misplaced, because Frey concerned the circumstances under which an

ALJ may deny benefits because a claimant has refused to follow prescribed

treatment. Id. at 517; see also 20 C.F.R. § 404.1530; SSR 82-59, 1982 WL 31384

(S.S.A.). The ALJ here did not purport to deny plaintiff benefits on the ground he

failed to follow prescribed treatment. Rather, the ALJ properly considered what

3
Because we conclude that the ALJ adequately linked his credibility findings
to specific evidence in the record, we need not consider plaintiff’s challenge to
the magistrate judge’s attempt to cure what she saw as an inadequate link between
the ALJ’s findings and the evidence.

-7-
attempts plaintiff made to relieve his pain--including whether he took pain

medication--in an effort to evaluate the veracity of plaintiff’s contention that his

pain was so severe as to be disabling. See Hargis v. Sullivan , 945 F.2d 1482,

1489 (10th Cir. 1991); Luna v. Bowen , 834 F.2d 161, 165-66 (10th Cir. 1987).

Plaintiff further argues that the ALJ could not consider his failure to seek medical

treatment or take pain medication because of his indigence. The ALJ specifically

found that free medical care was available, however, and plaintiff does not

dispute this finding.

Plaintiff also argues that the ALJ erred in relying on his own observations

of plaintiff at the hearing. Although an ALJ may not rely solely on his personal

observations to discredit a plaintiff’s allegations, he may consider his personal

observations in his overall evaluation of the claimant’s credibility. See Teter v.

Heckler , 775 F.2d 1104, 1106 (10th Cir. 1985) (holding that where other evidence

corroborates claimant’s pain as genuine, ALJ may not reject claimant’s

allegations solely on basis of his demeanor); SSR 96-7p, 1996 WL 374186, at *8

(S.S.A.) (stating that ALJ may not accept or reject claimant’s allegations based

solely on ALJ’s personal observation of claimant, but ALJ should consider

personal observations in overall evaluation of claimant’s credibility). Here, the

ALJ properly considered his personal observations of plaintiff as part of his

overall assessment of plaintiff’s credibility.

-8-
 The ALJ’s Hypothetical Questions

Finally, plaintiff contends that the ALJ’s hypothetical questions to the VE

did not recite all of plaintiff’s impairments and, therefore, the VE’s answers to

those questions could not serve as substantial evidence to support the ALJ’s

conclusion that plaintiff is not disabled. We have already rejected plaintiff’s

challenges to the ALJ’s RFC assessment. The ALJ propounded a hypothetical

question to the VE that included all the limitations the ALJ ultimately included

in his RFC assessment. Therefore, the VE’s answer to that question provided

a proper basis for the ALJ’s disability decision. See Gay v. Sullivan , 986 F.2d

1336, 1341 (10th Cir. 1993).

Finding no reversible error in the Commissioner’s denial of social security

benefits, we AFFIRM the judgment of the United States District Court for the

Northern District of Oklahoma.

-9-