57 F3d 1081 Moore v. S Chater

Ellen L. MOORE, Plaintiff-Appellant,
v.
Shirley S. CHATER, Commissioner of Social Security
1 Defendant-Appellee.

No. 94-5230.
(D.C. No. 93-C-266-B)

United States Court of Appeals, Tenth Circuit.

June 20, 1995.

57 F.3d 1081
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument,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.

Before TACHA, LOGAN, and KELLY, Circuit Judges.

ORDER AND JUDGMENT2

1

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.

2

The Secretary of Health and Human Services (the Secretary) denied Ellen Moore's application for Social Security disability benefits. The district court affirmed the decision, and claimant now appeals. We have jurisdiction pursuant to 28 U.S.C. 1291 and affirm.

I. Background

3

On September 24, 1991, claimant was a fifty-eight-year-old woman with a twelfth-grade education plus two semesters of shorthand training. For several years, doctors have treated her for sarcoidosis, a chronic lung disease. Alleging that her illness qualified as a "disability," claimant applied for Social Security disability benefits on April 19, 1991. The Secretary rejected claimant's application for disability benefits initially on January 31, 1991, and on reconsideration on April 10, 1991. After an administrative hearing, the ALJ denied benefits at step four of the five-part sequential evaluation process for determining disability, finding that claimant could perform her past relevant work during the years for which she claimed disability. The Appeals Council denied claimant's request for review of the ALJ's decision, making the ALJ's decision the final decision of the Secretary. After claimant filed suit in federal court, the district court affirmed the Secretary's decision. On appeal, claimant contends that the Secretary's decision was not based on substantial evidence and that the ALJ erred in discounting claimant's subjective pain testimony, as well as testimony from her treating physician and the vocational expert witness.3

II. Discussion

4

On appeal of the Secretary's decision, we limit our review to determining whether the factual findings are supported by substantial evidence and whether the Secretary applied the correct legal standards. See Andrade v. Secretary of Health & Human Servs., 985 F.2d 1045, 1047 (10th Cir.1993). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' " Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). "Evidence is not substantial if it is overwhelmed by other evidence ... or if it really constitutes not evidence but mere conclusion.' " Knipe v. Heckler, 755 F.2d 141, 145 (10th Cir.1985) (quoting Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir.1983)). To determine whether the Secretary's decision is supported by substantial evidence, "we must meticulously examine the record. However, we may neither reweigh the evidence nor substitute our discretion for that of the Secretary." Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir.1992).

5

An individual is disabled within the meaning of the Social Security Act only if his impairments are so severe that he "is not only unable to do his previous work, but cannot, considering his age, education, and work experience, engage in any other kind of substantial, gainful work which exists in the national economy." 42 U.S.C. 423(d)(2)(A). A claimant has the burden of proving his disability prevents him from engaging in his prior work activity. See Ray v. Bowen, 865 F.2d 222, 224 (10th Cir.1989). If a claimant meets this burden, the burden shifts to the Secretary to show that the claimant can perform other jobs in the national economy. Id.

6

Claimant argues that the ALJ did not properly credit the testimony of her treating physician. The record shows, however, that the ALJ considered all relevant evidence, including the testimony of claimant's physician, before he concluded that claimant was able to perform past relevant work. An ALJ's duty is to resolve conflicts in the record, and he may reject an opinion of a treating physician if he gives specific, legitimate reasons for doing so, Reyes v. Bowen, 845 F.2d 242, 245 (10th Cir.1988). In this case, the ALJ properly discounted a letter from claimant's doctor because it was ambiguous and inconsistent with the great weight of medical evidence in the record.

7

Claimant also argues that the ALJ erred in disregarding her subjective testimony regarding pain and fatigue. Because the medical evidence alone did not support the severity of claimant's alleged pain, the ALJ evaluated the credibility of claimant's pain testimony according to the factors set out in Luna v. Bowen, 834 F.2d 161, 165-66 (10th Cir.1987). The ALJ concluded that claimant's subjective complaints were credible to the extent they were consistent with her medically determinable residual functional capacity to perform light or sedentary work. In reviewing such a credibility determination, courts should "defer to the ALJ as trier of fact, the individual optimally positioned to observe and assess witness credibility." Casis v. Secretary of Health & Human Servs., 933 F.2d 799, 801 (10th Cir.1991). We find no reason to disturb the ALJ's findings in this case.

8

Finally, claimant contends that the ALJ erred in refusing to credit testimony of the vocational expert. The expert testified that if claimant's testimony were accepted as true, she would be unable to perform her past work. An ALJ is bound, however, only by vocational testimony regarding impairments he has accepted as true. Talley v. Sullivan, 908 F.2d 585, 588 (10th Cir.1990) (per curiam). Because he did not accept claimant's subjective testimony, the ALJ did not err when he disregarded that portion of the expert's opinion.

9

The Secretary's decision that claimant is not disabled within the meaning of the Social Security Act is supported by substantial evidence. The judgment of the United States District Court for the Northern District of Oklahoma is AFFIRMED.

10

The mandate shall issue forthwith.

1

Effective March 31, 1995, the functions of the Secretary of Health and Human Services in social security cases were transferred to the Commissioner of Social Security. P.L. No. 103-296. Pursuant to Fed. R.App. P. 43(c), Shirley S. Chater, Commissioner of Social Security, is substituted for Donna E. Shalala, Secretary of Health and Human Services, as the defendant in this action. Although we have substituted the Commissioner for the Secretary in the caption, in the text we continue to refer to the Secretary because she was the appropriate party at the time of the underlying decision

2

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

3

Claimant raised two additional issues for the first time on appeal: (1) that the ALJ failed to conduct a proper Luna analysis and (2) that the ALJ was not fair and impartial in providing claimant a full and fair hearing. It is well settled that, absent compelling reasons, claimants may not raise issues for the first time before the Circuit Court of Appeals. Crow v. Shalala, 40 F.3d 323, 324 (10th Cir.1994). Our review of the record discloses no threat of injustice in this court's refusal to consider those issues in this appeal