Terry L. Bennett v. Kenneth S. Apfel, Commissioner, Social Security Administration, 166 F.3d 1220, 10th Cir. (1999)
Terry L. Bennett v. Kenneth S. Apfel, Commissioner, Social Security Administration, 166 F.3d 1220, 10th Cir. (1999)
Terry L. Bennett v. Kenneth S. Apfel, Commissioner, Social Security Administration, 166 F.3d 1220, 10th Cir. (1999)
3d 1220
1999 CJ C.A.R. 111
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a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.
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.
I.
2
The record shows that plaintiff received neck and back injuries in an auto
accident in April 1993. Plaintiff was taken to the hospital emergency room
where he was x-rayed and given pain medication and muscle relaxers. Plaintiff
was discharged later that day with instructions not to return to work for two
days. Over the course of the next eight or nine months, plaintiff sought
treatment from several doctors, including two orthopedic surgeons and an
orthopedist. Plaintiff also received chiropractic treatment and physical therapy,
including a full rehabilitation exercise program. In addition, plaintiff underwent
numerous diagnostic tests, including an MRI, a lumbar myelogram, a lumbar
discogram, and a CT scan. Plaintiff's neck problems resolved fairly quickly, but
he continued to complain of problems with his lower back.
results of all the diagnostic tests, the latest being a discogram and CT scan from
November 1993, and concluded that the mild degenerative changes revealed by
those tests "would not be expected to produce any significant symptoms." Id.
The record does not reflect that plaintiff received further treatment for his back
after Dr. Hawkins released him from his care on December 16, 1993.
6
Five days later, however, plaintiff was evaluated by Dr. Martin, a family
practitioner, at his attorney's behest. Based on a single examination of plaintiff
and a review of the diagnostic testing, Dr. Martin concluded that plaintiff had
not reached maximum medical benefit and that he was, in fact, temporarily
totally disabled and would remain so for an indefinite period. In his decision,
the ALJ rejected Dr. Martin's opinion because it was not supported by the other
evidence of record. Plaintiff does not take issue with this determination on
appeal.
After the ALJ issued his decision denying benefits, Dr. Jennings reevaluated
plaintiff on September 7, 1995. Dr. Jennings wrote two letters based on this
examination, which plaintiff submitted to the Appeals Council. In them, Dr.
Jennings noted that plaintiff entered his office walking in a flexed position with
a cane and that plaintiff complained of severe pain in his back that radiated into
his legs. Dr. Jennings did not set forth any of his findings on examination. He
did, however, express the opinion that plaintiff had discogenic disease of the
lumbar spine, and he recommended a neurological evaluation. Dr. Jennings
also stated that plaintiff was temporarily totally disabled. The Appeals Council
considered this new evidence, but concluded that it did not provide a basis for
changing the decision of the ALJ. Plaintiff does not dispute this conclusion on
appeal.
II.
Plaintiff raises two main issues on appeal. First, he contends that the ALJ failed
to properly evaluate his pain and other subjective complaints. More
particularly, plaintiff argues that some of the reasons the ALJ advanced for
discounting his subjective complaints were not supported by substantial
evidence and that the ALJ ignored other evidence that corroborated plaintiff's
allegations. Plaintiff characterizes the reasons given by the ALJ for discounting
his subjective allegations as follows:
12
Plaintiff contends that the first reason advanced by the ALJ is contradicted by
the evidence of record, which shows plaintiff had several conditions capable of
producing pain. Plaintiff's argument, however, mischaracterizes the ALJ's
actual decision. The ALJ did not suggest that plaintiff's condition was not
capable of producing any pain. Rather, the ALJ stated that "the objective
medical findings fail to establish a severe, disabling pain-producing condition."
Appellant's App., Vol. II at 22 (emphasis added). This statement is supported
by the record.
13
Plaintiff also takes issue with the second reason advanced by the ALJ. He
argues that "the ALJ was not correct in finding that no physician had found Mr.
Bennett was incapable of the performance of light work," because both Dr.
Martin and Dr. Jennings were of the opinion that plaintiff was totally disabled.
Appellant's Br. at 20. Once again, plaintiff mischaracterizes the ALJ's opinion.
The ALJ did not state that no physician had found plaintiff incapable of
performing light work. Rather, the ALJ first stated "[t]he record contains no
treating physician opinion setting forth functional limitations that would
preclude light work activity," and later said "[t]he record does not reflect
functional restrictions by any physician that would preclude light work
activity." Appellant's App., Vol. II at 21-22, 23. Again, the ALJ's actual
statements are fully supported by the record. Neither Dr. Martin nor Dr.
Jennings was a treating physician, and while both gave the conclusory opinion
that plaintiff was temporarily totally disabled, neither noted any specific
functional restrictions.
14
Plaintiff also challenges the ALJ's reliance on the absence of muscle weakness,
14
III.
15
We turn, then, to plaintiff's second issue on appeal. Plaintiff contends that the
Commissioner's decision that he is not disabled is not supported by substantial
evidence because the Commissioner should have ordered a consultative
examination to update the medical record after rejecting the most current
medical evidence, rather than rely on remote medical evidence to determine
disability. Citing to 42 U.S.C. 423(d)(5)(B), which provides that the
Commissioner "shall develop a complete medical history of at least the
preceding twelve months for any case in which a determination is made that the
individual is not under a disability," plaintiff argues that the Commissioner had
the burden "to point to substantial evidence which affirmatively established
that, for the 12 month period prior to its denial decision, Mr. Bennett retained
the capacity to perform the demands of alternative work on a sustained basis."
Appellant's Br. at 21-22 (emphasis added). Plaintiff notes that the only medical
evidence between January 1994 and the Commissioner's final decision were the
reports of Dr. Jennings opining that plaintiff had discogenic disorder and should
undergo further neurological examination. Plaintiff then argues that, once the
Commissioner chose not to accept Dr. Jennings' opinion, there was no evidence
left to support the Commissioner's decision. Therefore, plaintiff concludes, the
Commissioner should have ordered a consultative examination to update the
medical record, and his failure to do so warrants reversal.
16
17
The record before the Commissioner contained treatment notes from a number
of specialists, as well as the results of a variety of diagnostic tests, and this
evidence consistently showed that plaintiff was not disabled. Therefore, the
Commissioner's decision was supported by substantial evidence and he had no
need to order another consultative examination to determine whether plaintiff
was disabled, see Hawkins v. Chater, 113 F.3d 1162, 1166 (10th Cir.1997)
This court has the power to impose monetary sanctions to regulate the docket,
promote judicial efficiency and to deter frivolous filings. See Braley v.
Campbell, 832 F.2d 1504, 1510 (10th Cir.1987); Van Sickle v. Holloway, 791
F.2d 1431, 1437 (10th Cir.1986). "An appeal is frivolous when the result is
obvious, or the appellant's arguments of error are wholly without merit."
Braley, 832 F.2d at 1510 (quotation omitted). As discussed above, the first set
of contentions advanced by plaintiff's counsel in this appeal are based largely
on misstatements of the record and the second set of contentions are based
entirely on misstatements of the law. We are particularly troubled by counsel's
persistence in pressing arguments that disregard the plain language of 20 C.F.R.
404.1512(d), 416.912(d) and assert that the ALJ must give greater weight to
the evidence obtained during the twelve months preceding his or her decision,
despite the fact that we have repeatedly rejected similar arguments from
plaintiff's counsel in the past.
19
20
The judgment of the United States District Court for the Northern District of
Oklahoma is AFFIRMED.
**
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
We note that this court has repeatedly instructed both of plaintiff's counsel on
the provisions of these regulations. See Breedlove v. Callahan, No. 97-7024,