Sammie Z. Nutt v. Donna E. Shalala, Secretary of Health and Human Services, 28 F.3d 113, 10th Cir. (1994)
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Scribd Government DocsSammie Z. Nutt v. Donna E. Shalala, Secretary of Health and Human Services, 28 F.3d 113, 10th Cir. (1994)
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Scribd Government Docs28 F.
3d 113
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.
Sammie Z. NUTT, Plaintiff-Appellant,
v.
Donna E. SHALALA, Secretary of Health and Human
Services,
Defendant-Appellee.
No. 93-7064.
United States Court of Appeals, Tenth Circuit.
June 1, 1994.
ORDER AND JUDGMENT1
1
Before BRORBY and EBEL, Circuit Judges, and KANE,** District Judge.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed.R.App.P. 34(a); 10th Cir. R. 34.1.9. The case is
therefore ordered submitted without oral argument.
This matter comes before the court on plaintiff's petition for rehearing. After
consideration, we grant the petition for rehearing and now consider plaintiff's
appeal on the merits.
Plaintiff appeals from an order of the district court affirming the denial of his
application for supplemental security income by the Secretary of Health and
Human Services under Title XVI of the Social Security Act. Plaintiff argues
that the Secretary's decision is not supported by substantial evidence when the
record as a whole is considered, and that the Secretary did not follow the proper
legal standards in evaluating the evidence.
Plaintiff applied for supplemental security income with a protective filing date
of March 5, 1990, claiming disability since April 1986 because of mental
problems and back pain. He was born in 1947, and was forty-three years of age
at the time of the hearing before the Administrative Law Judge (ALJ). Plaintiff
has a tenth grade education and past relevant work experience as a small engine
mechanic.
We must uphold the ALJ's decision if it is supported by substantial evidence in
the record, Frey v. Bowen, 816 F.2d 508, 512 (10th Cir.1987), substantial
evidence being "such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401
(1971)(citation omitted). We have thoroughly reviewed the record, and we hold
that it contains substantial evidence supporting the ALJ's disability
determination.
The ALJ followed the five-step process established by the Secretary for
evaluating disability claims, see Williams v. Bowen, 844 F.2d 748, 750-52
(10th Cir.1988), and he determined that neither plaintiff's exertional nor his
nonexertional impairments prohibited him from performing his past relevant
work. Plaintiff claims that the ALJ erred in rejecting the opinion of plaintiff's
treating physician, Dr. Brixey, in making that determination. Consistent with
our holding in Frey, the ALJ gave specific and legitimate reasons for rejecting
Dr. Brixey's opinion that plaintiff's mental condition prevented him from
working. See Frey, 816 F.2d at 513. Dr. Brixey's own progress notes, which
were made over the period of time he was treating plaintiff, conflict with the
later opinion rendered in connection with plaintiff's disability claim. The
progress notes indicate continuous improvement in mental condition, while the
forms filled out by Dr. Brixey for purposes of this claim indicate otherwise.
The ALJ specifically considered the conflict and found Dr. Brixey's progress
notes to be more reliable.
Plaintiff also claims error in the ALJ's determination that plaintiff can return to
his past relevant work. Plaintiff described his work as a small engine mechanic
as heavy, but the vocational expert testified that, as the job is generally
performed in the national economy, the work is classified as medium. The ALJ
acted properly in considering the work as performed in the national economy,
as opposed to how it was performed by plaintiff, when he determined that
plaintiff had the residual functional capacity for medium work and, therefore,
that he was capable of returning to work as a small engine mechanic. See
Andrade v. Secretary of Health and Human Servs., 985 F.2d 1045, 1051 (10th
Cir.1993).
Finally, the ALJ rejected plaintiff's claims of the severity of his pain, and
plaintiff alleges error. The ALJ did consider plaintiff's subjective allegations of
pain in conjunction with the objective evidence relating thereto, and he found
that plaintiff was prohibited from heavy lifting. The ALJ found that plaintiff's
allegations of severe, constant pain were inconsistent with the objective
medical findings and signs. See Gossett v. Bowen, 862 F.2d 802, 806 (10th
Cir.1988). The record supports the ALJ's determination.
10
The judgment of the District Court for the Eastern District of Oklahoma is
AFFIRMED.
ORDER AND JUDGMENT2
11
Before BRORBY and EBEL, Circuit Judges, and KANE,** District Judge.
12
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed.R.App.P. 34(a); 10th Cir. R. 34.1.9. The case is
therefore ordered submitted without oral argument.
13
Plaintiff appeals from an order of the district court affirming the denial of his
application for supplemental security income by the Secretary of Health and
Human Services under Title XVI of the Social Security Act. Plaintiff argues
that the Secretary's decision is not supported by substantial evidence when the
record as a whole is considered, and that the Secretary did not follow the proper
legal standards in evaluating the evidence.
14
Plaintiff has failed to provide us with the administrative record. Consequently,
we are unable to undertake the review necessary to determine whether the
district court was correct in its finding that substantial evidence exists to support
the Secretary's denial of benefits, and whether the evidence presented to the
Administrative Law Judge was evaluated under the proper legal standards.3 We
must, therefore, DISMISS plaintiff's appeal.
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 the court's General
Order filed November 29, 1993. 151 F.R.D. 470
**
Honorable John L. Kane, Jr., Senior District Judge, United States District Court
for the District of Colorado, sitting by designation
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 the court's General
Order filed November 29, 1993. 151 F.R.D. 470
**
Honorable John L. Kane, Jr., Senior District Judge, United States District Court
for the District of Colorado, sitting by designation
Plaintiff's counsel filed an appendix to his brief that included an "abstract of the
evidence," which summarizes testimony and evidence referred to in plaintiff's
brief. For obvious reasons, we decline to treat plaintiff's evidence summary as a
substitute for the actual and complete administrative record
