Roundtree v. Apfel, 10th Cir. (1999)

F I L E D
UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT
United States Court of Appeals

Tenth Circuit
AUG 27 1999
PATRICK FISHER
Clerk
PALECIA R. ROUNDTREE,
Plaintiff-Appellant,
v.
KENNETH S. APFEL, Commissioner,
Social Security Administration,
No. 98-6365
(D.C. No. CIV-96-1857-T)
(W.D. Okla.)
Defendant-Appellee.
ORDER AND JUDGMENT
Before TACHA , McKAY , and MURPHY , 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This order and judgment is not binding precedent, except under the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.
Claimant Palecia R. Roundtree appeals from the district courts order

affirming the decision of the Commissioner of Social Security. In that decision,
the Commissioner denied claimants applications for disability insurance benefits
made under Title II of the Social Security Act.
See 42 U.S.C. 423. We exercise
jurisdiction under 42 U.S.C. 405(g) and 28 U.S.C. 1291, and affirm.

Two issues are presented for review. The first is whether the
administrative law judge (ALJ) properly considered claimants complaints of
cervical pain when determining that she had no nonexertional impairments at the
sedentary level of activity and in determining her residual functioning capacity
(RFC). The second is whether the ALJ demonstrated that he had considered all
the medical evidence that supported claimants allegations of disability. In our
review, we determine whether the ALJs decision is supported by substantial
evidence on the whole record and comports with relevant legal standards.
Casias v. Secretary of Health & Human Servs.
See
, 933 F.2d 799, 800-01 (10th Cir.
1991).
Claimant alleges disability due to pain in her back, neck, and shoulder
resulting from strains and sprains suffered at work. Claims for disability benefits
are evaluated according to the five-step sequential process set out in 20 C.F.R.
404.1520. See Williams v. Bowen , 844 F.2d 748, 750 (10th Cir. 1988). At step
five of this process, the ALJ found that claimant had the RFC to perform
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sedentary work that allowed for alternate sitting and standing. He discredited
claimants subjective complaints of disabling pain, analyzing them in accordance
with Luna v. Bowen , 834 F.2d 161 (10th Cir. 1987).
Claimant maintains that the ALJ discussed only one factor in making his
credibility determinations--her daily activities. This assertion is clearly belied by
the written decision. There, the ALJ noted that claimants complaints of
disabling pain were not consistent with the amount or type of pain medication she
was taking; that she had been discharged from physical therapy for failure to
attend the sessions; that her treating neurosurgeon had determined that she could
resume work; that her diagnoses were of mild cervical and lower back strains;
that she regularly drove, did laundry, and cooked, and that she had not sought
treatment for pain in almost two years.
See Appellants App. Vol. II at 39-40.
The ALJs credibility finding is supported by substantial evidence. Credibility

determinations are peculiarly the province of the finder of fact, and we will not
upset such determinations when supported by substantial evidence.
Secretary of Health & Human Servs.
Diaz v.
, 898 F.2d 774, 777 (10th Cir. 1990).
Claimant next asserts that the ALJ erroneously concluded that claimants
testimony regarding her back impairment was credible but her testimony
regarding her cervical impairment was not. Appellants Br. at 6. We have
carefully reviewed the ALJs decision and can find no such conclusion. Claimant
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also argues that the ALJs analysis is internally inconsistent because he concluded
that she had a severe cervical impairment and then accorded no limitations to it
when assessing her RFC.
Id. We disagree. Claimant herself testified that her
neck impairment had improved and was no longer her primary impairment, that
she suffered from some muscle spasms two or three times a week, when she held
her neck in one place for a long time, such as when reading or watching TV, and
that the spasms were relieved by doing neck exercises or using a heating pad.
See
Appellants App. Vol. II at 173-74. Thus, claimant did not allege that her neck
and shoulder pain were constant or severe. Complaints of pain are considered to
be nonexertional limitations only when they
significantly limit [the] ability to
perform the full range of work in a particular RFC category on a sustained basis.
Williams , 844 F.2d at 752 (emphasis added) (quotation omitted). The ALJ gave
claimants complaints of pain some credence in that he determined that pain
limited her to doing sedentary work with the additional limitation of being
allowed to move around. He ultimately concluded, however, that her pain was not
disabling. This conclusion comports with the applicable social security law. A
finding of disability based on complaints of pain requires more than mere
inability to work without pain. . . . [The] pain must be so severe . . . as to
preclude any substantial gainful employment.
Brown v. Bowen , 801 F.2d 361,
362-63 (10th Cir. 1986) (quotation omitted). We have carefully reviewed

-4-
claimants medical records, and the ALJs conclusions are supported by

substantial evidence.
Claimant alleges that the ALJ erred by failing to discuss Dr. Griffith
Millers report concerning claimants neck and shoulder impairment, in which he
opined that she had a 53% total impairment to the body due to a decreased range
in cervical motion; six months of documented muscle spasms, pain, and
rigidity; shoulder injury; and radiculopathy in the left arm with numbness, pain,
and marked weakness.
See Appellants App. Vol. II at 160;
see also Clifton v.
Chater , 79 F.3d 1007, 1009-10 (10th Cir. 1996) (stating that ALJ must consider
all evidence and must discuss any significantly probative evidence he rejects or
uncontroverted evidence he chooses not to rely on, but does not have to discuss
every piece of evidence). Dr. Miller was a consultative physician hired by
claimant to examine her on April 15, 1993, for preparation of a report for her
workers compensation claim.
A review of the medical records shows that Dr. Millers report is not
consistent with the reports of claimants treating physicians or even with the facts
of her injury, which occurred on December 24, 1992. It is difficult to see how
there could be six months of documented muscle spasm, pain, and rigidity arising
from an injury that had occurred only four months previously. Further, Dr.
Harvey, who initially treated claimant for two weeks, reported no muscle
-5-
spasm--his examination revealed only tenderness over the [left] scapula.

Appellants App. Vol. II at 106. While Dr. Miller estimated her impairment
rating for the cervical area based on range of motion to be 12%, Dr. Reynolds, her
treating neurologist, gave her an impairment rating of only 3% in a report dated
April 16 that was based on his April 5 examination. Dr. Miller reported
claimants cervical flexion and extension as 30 and 35 degrees, respectively,
while Dr. Reynolds found both to be 60 degrees. There were similar
discrepancies between the lateral cervical flexion and rotation measurements. Dr.
Miller reported marked left arm muscle weakness; Dr. Reynolds reported
muscle strength of 5/5 in all muscle groups.
Compare id. at 160 with id. at
136-37.
Dr. Miller reported a 20% impairment based on left arm radiculopathy, but
Dr. Rice, an orthopedic specialist who also had examined her, found that she had
no true radicular type symptoms. Dr. Miller found an impairment of 12% based
on left shoulder injury, but Dr. Rice determined that she had no symptoms
suggesting rotator cuff injury, that her problem sounded mainly muscular, and
that she had normal range of motion in her shoulder, no loss of strength, and no
crepitation. Compare id. at 160 with id. at 143. We agree with the district court
that claimant has failed to show that Dr. Millers findings were either
uncontroverted or significantly probative as to require specific discussion.
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See id. Vol. I at 12 (quoting Clifton , 79 F.3d at 1009-10). The ALJ did not err in
failing to discuss Dr. Millers report.
The judgment of the United States District Court for the Western District of
Oklahoma is AFFIRMED .
Entered for the Court
Deanell Reece Tacha

Circuit Judge
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F I L E D

UNITED STATES COURT OF APPEALS

United States Court of Appeals

ORDER AND JUDGMENT

Before TACHA , McKAY , and MURPHY , Circuit Judges.

Claimant Palecia R. Roundtree appeals from the district courts order

See 42 U.S.C. 423. We exercise

jurisdiction under 42 U.S.C. 405(g) and 28 U.S.C. 1291, and affirm.

, 933 F.2d 799, 800-01 (10th Cir.

See Appellants App. Vol. II at 39-40.

The ALJs credibility finding is supported by substantial evidence. Credibility

, 898 F.2d 774, 777 (10th Cir. 1990).

Id. We disagree. Claimant herself testified that her

significantly limit [the] ability to

Brown v. Bowen , 801 F.2d 361,

362-63 (10th Cir. 1986) (quotation omitted). We have carefully reviewed

claimants medical records, and the ALJs conclusions are supported by

See Appellants App. Vol. II at 160;

see also Clifton v.

spasm--his examination revealed only tenderness over the [left] scapula.

Compare id. at 160 with id. at

Entered for the Court

Deanell Reece Tacha

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