Filed: Patrick Fisher
Filed: Patrick Fisher
Filed: Patrick Fisher
AUG 7 2000
PATRICK FISHER
Clerk
TERRELL WILLIAMSON,
Plaintiff-Appellant,
v.
KENNETH S. APFEL, Commissioner,
Social Security Administration,
No. 99-5192
(D.C. No. 98-CV-460-M)
(N.D. Okla.)
Defendant-Appellee.
ORDER AND JUDGMENT
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This order and judgment is not binding precedent, except under the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.
113 F.3d 1162, 1164 (10th Cir. 1997). On appeal, plaintiff argues that (1) the
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Commissioner failed to fully develop the record; (2) the Commissioner did not
properly evaluate plaintiffs credibility and the related finding and determination
is not supported by substantial evidence; and (3) the Commissioners finding
concerning plaintiffs residual functional capacity (RFC) is not supported by
substantial evidence.
For his first argument, plaintiff claims that the ALJ did not have the
background or training necessary to interpret the clinical findings and understand
their significance, see id. at 11, and therefore should have obtained the opinion
of a qualified medical expert. We disagree. The determination of RFC is an
administrative assessment, based on all the evidence of how plaintiffs
impairments and related symptoms affect his ability to perform work related
activities. See Soc. Sec. Rul. 96-5p, 1996 WL 374183 at *5; 96-8p, 1996 WL
37184 at *2. Because this assessment is made based on all of the evidence in the
record, not only the medical evidence, [it is] well within the province of the
ALJ. See Dixon v. Apfel , No. 98-5167, 1999 WL 651389, at **2 (10th Cir.
Aug. 26, 1999) (unpublished disposition). In addition, the final responsibility for
determining RFC rests with the Commissioner.
404.1546.
It also appears that the ALJ thoroughly considered the medical evidence
mentioned by plaintiff.
at 334-39. Moreover, the findings of another agency, here the VA, were
considered by the ALJ, see id. at 338-39, but properly determined to be not
controlling, see id. at 339; 20 C.F.R. 404.1504;
1371, 1375 (10th Cir. 1992). Accordingly, this argument is without merit.
Next, plaintiff claims the ALJ failed to properly evaluate his credibility.
He bases this argument on allegations of significant limitations to his back and
knees, Appellants Br. at 12; failure of the ALJ to address plaintiffs back pain,
see id. ; improper rejection of plaintiffs knee pain,
rejection of plaintiffs claimed lack of concentration ability due to the side effects
of medication, see id. at 14-15; and a general failure to consider all the evidence
indicating that the claimant was having significant physical problems,
For all these claims, plaintiff cites
id. at 15.
(10th Cir. 1995) (outlining the requirements for credibility assessment), the ALJs
decision itself, and four excerpts from the medical record.
Vol. II at 278 (plaintiff observed on August 28, 1984, walking with cane and
limping gait); 186-87 (progress notes reflecting that plaintiff had stated he had
been out of medications on different occasions, for periods of one or two weeks,
although a call to the pharmacy confirmed that he had failed to fill any of his
prescribed medications for the previous six months); 179 (plaintiff advised that
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Tylenol #3 and other scheduled drugs are not given for chronic pain);
176 (plaintiff advised of prudent use of Tylenol #3).
It is clear, however, that the ALJ reviewed a considerable body of evidence,
both medical and nonmedical, in determining that plaintiffs complaints of
disabling pain were not fully credible. He also adequately explained his reasons
for not fully accepting plaintiffs claims. The record must show that the ALJ
considered all the evidence, but he is not required to discuss every piece of it.
See Clifton v. Chater , 79 F.3d 1007, 1009-10 (10th Cir. 1996). What plaintiff is
essentially asking is that we reweigh the evidence, which, of course, we cannot
do. See Kelley v. Chater , 62 F.3d 335, 337 (10th Cir. 1995).
Finally, plaintiff claims that the ALJs finding of plaintiffs RFC is not
supported by substantial evidence.
he made only two references to the record in support of his claim--the ALJs
definition of shifting weight, to encompass plaintiffs need to shift weight from
one leg to another (if standing) and to shift weight to seek comfort from
symptomology (if sitting),
was required to establish disability prior to December 31, 1988. The ALJ
considered plaintiffs use of a cane (notwithstanding plaintiffs inconsistent
testimony at the two hearings as to whether he began using it in 1983,
Appellants App. at 409, or 1985,
see
See
Winfrey v. Chater , 92 F.3d 1017, 1020 (10th Cir. 1996) (holding that credibility
determinations, peculiarly the province of factfinder, will not be upset when
supported by substantial evidence). Although as he claims he has consistently
mentioned that [his] medications reduce his ability to concentrate,
see
Appellants Br. at 16, plaintiff admitted he was not taking one prescription as it
was prescribed, see Appellants App. at 417, and that when he told his VA
doctors about the side effects, he was given different medication, after which he
did not experience further side effects.
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For these and the reasons set forth in the magistrate judges order of
July 15, 1999,
the judgment of the United States District Court for the Northern
District of Oklahoma is
AFFIRMED .
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See 28