Slip Opinions Home
Page | Keyword | Case | Docket | Date: Filed / Added |    Download WordPerfect version (18117 bytes)     Download RTF version (11373 bytes)






JO ANNE B. BARNHART, Commissioner of the Social Security Administration,


No. 06-5130

(D.C. No. 05-CV-81-FHM)

(N.D. Okla.)


Before PORFILIO, BALDOCK, and EBEL, Circuit Judges.

In June 2003, plaintiff applied for disability insurance benefits and supplemental security income alleging disability due to chronic back pain. After initial denials, plaintiff and his counsel appeared at a hearing before an administrative law judge (ALJ) who eventually ruled that plaintiff was not disabled within the meaning of the Social Security Act. The Appeals Council denied review, and plaintiff appealed to the district court which affirmed the decision of the Commissioner.

Plaintiff now appeals to this court, arguing that the ALJ (1) erred at steps two and three of the five-step sequential evaluation process; (2) failed to perform a proper credibility determination; and (3) erred at step five when he found that plaintiff could perform the job of self-service store attendant. Exercising jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291, we affirm.

In reviewing the ALJ's decision, "we neither reweigh the evidence nor substitute our judgment for that of the agency." Casias v. Sec'y of Health & Human Servs., 933 F.2d 799, 800 (10th Cir. 1991). Instead, we review the ALJ's decision only "to determine whether the factual findings are supported by substantial evidence in the record and whether the correct legal standards were applied." Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003).

Plaintiff argues that the ALJ erred by failing to consider that his diagnosed pain disorder, a type of somatoform disorder, was severe at step two.(1) Plaintiff, however, failed to demonstrate that his pain disorder "significantly limits [his] . . . ability to do basic work activities." See 20 C.F.R. § 404.1520(c). A claimant at step two "must show more than the mere presence of a condition or ailment." Hinkle v. Apfel, 132 F.3d 1349, 1352 (10th Cir. 1997).

Because plaintiff's pain disorder was not a severe impairment, the ALJ was not required to consider it at step three when he applied the listings. Cf. 20 C.F.R. § 404.1525(a) (noting that listings describe only severe impairments). As for the other impairments which the ALJ did recognize as severe, we hold that, despite the ALJ's failure to discuss the evidence or his reasons for determining that plaintiff was not disabled at step three, "the ALJ's factually substantiated findings at steps four and five of the evaluation process alleviates any concern that [plaintiff] might have been adjudged disabled at step three." Fischer-Ross v. Barnhart, 431 F.3d 729, 730 (10th Cir. 2005).

Turning to the ALJ's credibility determination, we find it adequately linked to and supported by specific evidence in the record. Specifically, we note that the most remarkable aspect of plaintiff's medical record is that there is so little of it. The medical evidence in the record comes entirely from consultative examinations ordered by the Commissioner. Despite complaints of chronic and debilitating back pain that has lasted for twenty years, plaintiff never sought treatment by any private physician or used any pain medication other than over-the-counter remedies.(2) In response to plaintiff's explanation that he could not afford treatment, the ALJ noted that free medical care was available, a finding plaintiff does not dispute on appeal.

Finally, we find no error in the ALJ's step-five determination that plaintiff could work as a self-service store attendant despite plaintiff's assertion that he is unable to tolerate the visual and noise demands of that particular job. Plaintiff's residual functional capacity as described by the ALJ in his hypotheticals to the vocational expert matches up appropriately with the visual demands and noise characteristics of the job as described in the Dictionary of Occupational Titles.

Our review of the record, the submissions of the parties, and the applicable law leads us to conclude that the decision of the ALJ is supported by substantial evidence and that the correct legal standards were applied. The judgment of the district court is therefore AFFIRMED.

Entered for the Court

Bobby R. Baldock

Circuit Judge

Click footnote number to return to corresponding location in the text.

*. 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. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

1. Contrary to the Commissioner's position, the consulting psychologist, Dr. Vaught, made this diagnosis; it was not concocted by plaintiff's attorney. See Aplt. App., Vol. II at 128. Dr. Vaught provisionally diagnosed "Pain Disorder Associated with Both Psychological Factors and a General Medical Condition." This disorder is a type of pain disorder which itself is a subcategory of somatoform disorders. See Amer. Psychiatric Assn., Diagnostic & Statistical Manual of Mental Disorders 445, 462 (4th ed. 1994).

2. There is some evidence that plaintiff would occasionally take pain medications given him by friends. Aplt. App., Vol. II at 63.

Slip Opinions Home
Page | Keyword | Case | Docket | Date: Filed / Added |    Download WordPerfect version (18117 bytes)     Download RTF version (11373 bytes)
Comments to: WebMaster, ca10 [at]
Updated: January 18, 2007.
HTML markup © 2007, Washburn University School of Law.