* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 3 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

JERRY C. NOEL,

Plaintiff-Appellant,

v. KENNETH S. APFEL, Commissioner, Social Security Administration,

Defendant-Appellee. No. 97-5182 (D.C. No. 95-C-1127-E) (N.D. Okla.)

ORDER AND JUDGMENT *

Before TACHA , LOGAN , and LUCERO , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. Th e case is therefore ordered submitted without oral argument.-2-

Plaintiff appeals from an order of the district cou rt affirming the Commissioner’s decision to deny plaintiff’s application for supplemental security income (SSI). Plaintiff filed his SSI application in February 1989, alleging he was disabled by pain arising from a back injury he suffered in January 1985 while working as a plumber’s helper. After an administrative hearing in December 1989, an administrative law judge (ALJ) concluded that plaintiff suffered from a severe impairment that prohibited him from returnin g to his past relevant work, which had been mostly heavy or very heavy. The ALJ further concluded, however, that plaintiff retained the residual funct ional capacity (RFC) to perform medium work and, therefore, was not disabled becaus e he could perform other jobs in the national economy. Plaintiff appealed t he ALJ’s decision to the district court and then to this court. By order and judgmen t entered July 1, 1993, this court reversed the denial of benefits and remanded the action for further administrative proceedings. See Noel v. Shalala , No. 92-5211, 1993 WL 261890, at **3 (10th Cir. July 1, 1993). On remand, a second ALJ conducted a supplemental he aring in September 1994 and considered further medical evidence submitted by plaintiff. The ALJ issued his decision on June 29, 1995, concluding th at plaintiff could no longer perform his past relevant work, but that he retaine d the RFC for a full range of light work. Therefore, the ALJ concluded that plai ntiff was not disabled because-3-

he could perform other jobs in the national economy . When the Appeals Council denied review, the ALJ’s June 1995 decision became the final decision of the Commissioner, which plaintiff now appeals. Plaintiff raises three related challenges to the Co mmissioner’s decision. First, he contends that the ALJ erred in not obtain ing another consultative exam on remand to assess plaintiff’s RFC. Second, he co ntends that, in the absence of such a consultative exam, the record does not conta in substantial evidence to support the ALJ’s conclusion that plaintiff can per form either the walking and standing requirements or the lifting and carrying r equirements of light work. Finally, plaintiff argues that, because the record does not support the ALJ’s conclusion that plaintiff can perform a full range of light work, the ALJ’s conclusion that plaintiff can perform a significantnumber of other jobs in the national economy is not supported by substantial ev idence. We review the Commissioner’s decision to determine whether the correct legal standards were applied and whether the findin gs 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 support ed by substantial evidence, the [Commissioner’s] findings are conclusive and must be affirmed.” Sisco v. United States Dep’t of Health & Human Servs. , 10 F.3d 739, 741 (10th Cir. 1993). “In evaluating the appeal, w e neither reweigh the evidence-4-

nor substitute our judgment for that of the agency. ” Casias v. Secretary of Health & Human Servs. , 933 F.2d 799, 800 (10th Cir. 1991). The scope of our review, moreover, is “limited to the issues the cla imant properly preserves in the district court and adequately presents on appeal[.] ” Berna v. Chater , 101 F.3d 631, 632 (10th Cir. 1996). The record shows that plaintiff injured his back inJanuary 1985, while lifting a cast iron sink. At the time, plaintiff w as working as a plumber’s assistant, which the vocational expert (VE) testifi ed was heavy, unskilled work as performed by plaintiff. Plaintiff was treated by s everal doctors from 1985 through 1987, while he had a pending workers compen sation claim. Treatment notes from Dr. Yu, a neurosurgeon, reflect that pla intiff was disabled as of March 1985 due to a herniated disc in his lower back, whi ch was causing low back pain and left-sided leg pain. Plaintiff underwent chemo nucleolysis in February 1986, and subsequent examinations by Dr. Yu revealed impr ovement in plaintiff’s condition. When Dr. Yu last saw plaintiff, on Augu st 28, 1987, he noted that plaintiff “continues to have a sore back and pain i n the left leg, but he can get around fairly well.” Appellant’s App., Vol. II at 115. Plaintiff’s straight leg raising had increased considerably, and while he ha d some weakness in the distal1 Fasciculation is “[i]nvoluntary contractions, or tw itchings, of groups

(fasciculi) of muscle fibers, a coarser form of mus cular contraction than fibrillation.” Stedman’s Medical Dictionary , 567 (25th ed. illus. 1990).

2 The job of locksmith is performed at the light exertional level. United States Dept. of Labor, Employment & Training Admin. , Dictionary of Occupational Titles 696 (4th ed. 1991). -5- muscles of his left foot, there was no “atrophy or fasciculation.” 1 Id. Dr. Yu recommended vocational rehabilitation for plaintiff , and had earlier indicated that locksmithing, in which plaintiff had expressed an i nterest, “may be a suitable job for him with his physical limitations.” 2 Id. at 116. Dr. Yu stated that he was “not in favor of any more work ups, nor any conside ration of surgical intervention,” but he did recommend that plaintiff wear a back brace during the daytime. Id. at 115. In January 1988, plaintiff received a lump sum paym ent of workers compensation benefits and used the money to buy a h ouse. Thereafter, he said, he could not afford medical treatment. At the time of the first administrative hearing in December 1989, plaintiff had not sought treatmen t for his back since 1987. He had, however, been sent by the Commissioner to Dr. Singh for a consultative examination. Dr. Singh’s notes of her April 1989 e xamination showed that plaintiff’s range of motion in his lumbosacral spin e was limited and painful, and that he had decreased sensation in his left lower e xtremities. Plaintiff also exhibited decreased general strength in his left lo wer extremities, which Dr. Singh-6-

thought might be due to lack of effort because of p ain, rather than a true lack of strength. Dr. Singh also noted that plaintiff’s ga it was slow. After Dr. Singh submitted the report of her examination, two physicians examined the medical record to date and concluded t hat plaintiff’s condition prevented him from performing his past work, but th at he retained the RFC for less demanding work. Both of these reports reflect ed that plaintiff could still perform a full range of light work. At the first administrative hearing, plaintiff test ified that he had recently learned from his attorney of the availability of cl inics that would treat indigent patients. Plaintiff stated that he had an appointm ent to see a doctor at the Oklahoma Medical School Clinic on January 15, 1990, and that he hoped “to get something done to my back and get some pain medicat ion.” Appellant’s App., Vol. II at 40. Plaintiff also acknowledged that he was supposed to be wearing a back brace all the time, but said he was no longer wearing one. Likewise, he said he was not using a cane at present, though he had u sed one for some time in the past and thought he should get a new one. Despite plaintiff’s stated intention to seek treatm ent for his back after the hearing, the record before us reflects only a singl e visit on January 3, 1990, to Dr. Ferguson, a physician at the Broken Arrow Family Cl inic. The only medical record from this visit is a brief letter, addressed “To Whom it May Concern,”-7-

dated January 5, 1990. Dr. Ferguson expressed his opinion in the letter that plaintiff was “totally disabled from his previous j ob and without surgical intervention he is likely to remain that way,” but he neither discussed his findings on examination nor suggested a course of treatment for plaintiff. Id. at 150. The record contains no further evidence of medical treatment until after plaintiff’s case was remanded to the agency by this court in July 1993. Then, between August and October 1993, plaintiff sought treatment on several occasions from Morton Comprehensive Health Services for his b ack pain and other maladies. On August 16, plaintiff was complaining of pain in his back and his right shoulder. Plaintiff was not on any medicatio n at that time, so the physician prescribed 600 mg of ibuprofen three times a day an d ordered x-rays of plaintiff’s shoulder and lumbar spine. The latter showed “mini mal degenerative changes” at the L2 and L4 vertebrae, but otherwise were unremar kable. Id. at 252. Plaintiff was still complaining of low back pain when he was seen on August 30, but his shoulder pain had resolved. Plaintiff was prescrib ed Motrin and told to return in one month. Plaintiff returned to the clinic on September 17, c omplaining of back pain and ear pain for the past week. The physician note d that plaintiff had previously had “satisfactory (partial) pain control on Motrin, ” but that plaintiff had stopped taking the medication “because he heard it could da mage kidneys.” Id. at 248.-8-

The physician also noted that plaintiff walked with a cane because, plaintiff said, his left leg “‘gives out.’” Id. Plaintiff, however, exhibited a full range of mot ion and his gait was normal. Plaintiff was directed to take nonprescription-strength Motrin when needed, was given a prescription for anantidepressant, and was told to return to the clinic in two months. Plaintiff was seen for dental services on September21 and October 5, and was last seen on October 7, when his chief complaint was acute exacerbation of his chronic low back pain after sleeping in a recli ner. Plaintiff reported that he had taken one Motrin and one Elavil (an antidepress ant), which caused the pain to subside somewhat, but he thought a stronger dose of Elavil would help. Examination at that time revealed decreased motor s trength and sensation in plaintiff’s left leg. Plaintiff was given another prescription for an antidepressant and was told to have his blood pressure checked within the next three weeks. The record contains no further notes of any treatment, either at Morton or elsewhere. At the supplemental administrative hearing on Septe mber 27, 1994, plaintiff discussed his daily routine and noted that he had been using a cane for the past five years when he was outside. He said h e did not use the cane inside his house. Plaintiff also said that he had been ta king Motrin for pain relief for the past year. When asked about his physical capabilit ies, plaintiff testified that he could walk one hundred feet without serious problem , he could stand about-9-

twenty minutes and sit about forty-five minutes to an hour at a time, and he could lift about twenty pounds. In his June 1995 decision, the ALJ noted that, because SSI payments are made no earlier than the application filing date, t he question before the agency was whether plaintiff was disabled on or after February 27, 1989, the date on which he filed his application. Considering all th e medical evidence before him, as well as plaintiff’s testimony and that of the VE , the ALJ concluded that plaintiff’s chronic back pain precluded him from pe rforming his past work. The ALJ also concluded that plaintiff’s pain limited hi s ability to do more than light work, which generally requires the ability to lift no more than twenty pounds at a time, to lift or carry up to ten pounds frequently, to stand or walk six out of eight hours in a day, and to stoop only occasionally. Th e ALJ found, however, that plaintiff’s pain did not further limit his ability to do light work. Plaintiff argues on appeal that the ALJ’s determination that he retained the RFC for light work is not supported by substantial evidence, in the absence of a consultative examination specifically assessing pla intiff’s RFC. Plaintiff’s argument is flawed in several respects. First, pla intiff cites no Tenth Circuit authority for his contention that the ALJ’s failure to obtain an examining physician’s opinion of plaintiff’s RFC was legal error, and we know of no such authority. Second, plaintiff’s contention that thi s court concluded in the earlier-10-

appeal that the Commissioner had “erred by neglecti ng to obtain an RFC assessment from an examining physician,” Appellant’ s Br. at 15, is a misstatement of our earlier decision. We merely no ted in that decision that Dr. Singh, the consultative physician, did not make an RFC assessment; we neither suggested that this omission created error nor directed the Commissioner to obtain an RFC assessment from a consulting physi cian on remand. Noel , 1993 WL 261890, at **3. Finally, we have held that, “when the claimant is r epresented by counsel at the administrative hearing, the ALJ should ordinari ly be entitled to rely on the claimant’s counsel to structure and present claimant’s case in a way that the claimant’s claims are adequately explored.” Hawkin s v. Chater , 113 F.3d 1162, 1167 (10th Cir. 1997). Therefore, unless counsel s pecifically identifies the issue(s) needing further development, “we will not impose a duty on the ALJ to order a consultative examination unless the need fo r one is clearly established in the record.” Id. at 1168. The record here contains medical assessments of pla intiff’s RFC by two different nonexamining physicians, which reflect th at plaintiff can perform light work. Subsequent medical records do not reflect re strictions on plaintiff’s abilities beyond those noted in these RFC assessments. Further, the record reflects that the ALJ and plaintiff’s counsel speci fically discussed the reasons for3 Nor did counsel raise the need for a consultative e xamination in his lengthy

letter to the Appeals Council challenging the ALJ’s decision. See Appellant’s App., Vol. II at 154-57. -11- this court’s earlier remand, but counsel never sugg ested to the ALJ that a further consultative examination was needed to assess plaintiff’s RFC. 3 Under the circumstances, we conclude that the ALJ h ad no duty to order another consultative examination and that the recor d supports the ALJ’s conclusion that plaintiff retains the RFC to perfor m light work. Having so concluded, we necessarily reject plaintiff’s third challenge to the ALJ’s decision, which is based on the assumption that plaintiff can not perform a full range of light work. The judgment of the United States District Court fo r the Northern District of Oklahoma is AFFIRMED.

Entered for the Court

Deanell Reece Tacha Circuit Judge