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Filed: Patrick Fisher
Filed: Patrick Fisher
JAN 5 1999
PATRICK FISHER
Clerk
TERRY L. BENNETT,
Plaintiff-Appellant,
v.
KENNETH S. APFEL, Commissioner,
Social Security Administration, *
No. 98-5048
(D.C. No. 96-C-1063-M)
(N.D. Okla.)
Defendant-Appellee.
**
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
This order and judgment is not binding precedent, except under the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.
**
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1 (G). The case is therefore
ordered submitted without oral argument.
I.
Plaintiff filed applications for disability insurance benefits and
supplemental security income on June 13, 1994. Plaintiff contended that he had
been disabled since April 10, 1993, as a result of back injuries he sustained in an
automobile accident that day. After an administrative hearing in June 1995, the
administrative law judge (ALJ) found that plaintiff was not disabled and,
therefore, denied his request for benefits. The ALJ concluded that plaintiff
retained the residual functional capacity (RFC) to perform a limited range of light
work, which precluded plaintiff from performing his past relevant work. Based
on testimony from a vocational expert (VE), however, the ALJ further concluded
that plaintiff could perform a significant number of other jobs that exist in the
national economy. When the Appeals Council denied review, the ALJs decision
became the final decision of the Commissioner. Plaintiff now appeals the district
courts affirmance of that final agency decision.
We review the Commissioners decision to determine whether the correct
legal standards were applied and whether the findings are supported by substantial
evidence in the record viewed as a whole. See Castellano v. Secretary of
Health & Human Servs., 26 F.3d 1027, 1028 (10th Cir. 1994). If supported by
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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.
does not reflect that plaintiff received further treatment for his back after
Dr. Hawkins released him from his care on December 16, 1993.
Five days later, however, plaintiff was evaluated by Dr. Martin, a family
practitioner, at his attorneys 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
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rejected Dr. Martins opinion because it was not supported by the other evidence
of record. Plaintiff does not take issue with this determination on appeal.
In July 1994, plaintiff was examined by Dr. Jennings, an osteopath, at the
request of the Commissioner. Dr. Jennings found that plaintiff could stand erect
and could perform normal heel-and toe-walking without pain. Dr. Jennings noted
that plaintiff was currently using a cane for balance, but he later explained that
plaintiff did not actually need to use a cane to walk; it simply made him feel
safer. Dr. Jennings found that plaintiff had a decreased range of motion in his
spine and some pain on percussion, but found a full range of motion in plaintiffs
lower extremities and no signs of sensory loss or weakness. Dr. Jennings thought
plaintiff might have a discogenic disorder in his lumbar spine, and he suggested a
neurological exam to rule out that possibility. Dr. Jennings did not note any
functional limitations arising from plaintiffs impairment.
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
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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. Appellants Br. at 20. Once again, plaintiff mischaracterizes the ALJs
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.
Appellants App., Vol. II at 21-22, 23. Again, the ALJs 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.
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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 Commissioners 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.
Plaintiffs argument, however, is based on a complete misstatement of the
law. As the regulations make clear, the twelve-month period referred to in
423(d)(5)(B) is the twelve months preceding the claimants application for
benefits, not the agencys decision denying benefits.
See 20 C.F.R.
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this evidence consistently showed that plaintiff was not disabled. Therefore, the
Commissioners 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)
(describing circumstances that may warrant a consultative examination).
IV.
This court has the power to impose monetary sanctions to regulate the
docket, promote judicial efficiency and to deter frivolous filings.
Campbell , 832 F.2d 1504, 1510 (10th Cir. 1987);
See Braley v.
791 F.2d 1431, 1437 (10th Cir. 1986). An appeal is frivolous when the result is
obvious, or the appellants 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 plaintiffs 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 counsels
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
plaintiffs counsel in the past.
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James E. Barrett
Senior Circuit Judge
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