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Filed United States Court of Appeals Tenth Circuit
Filed United States Court of Appeals Tenth Circuit
Plaintiff - Appellant,
v. No. 16-3316
(D.C. No. 5:16-CV-04028-JTM)
NANCY A. BERRYHILL, (D. Kan.)
Acting Commissioner of Social Security,
Defendant - Appellee.
_________________________________
Mike Allen appeals pro se from the district courts judgment affirming the
In accordance with Rule 43(c)(2) of the Federal Rules of Appellate
Procedure, Nancy A. Berryhill is substituted for Carolyn W. Colvin as the Acting
Commissioner of the Social Security Administration.
**
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
I. BACKGROUND
Mr. Allen alleged in his application that as of October 9, 2013, he was disabled
due to a back injury. His claim was ultimately denied by an administrative law judge
(ALJ) at steps four and five of the five-step sequential evaluation process set forth in
20 C.F.R. 416.920(a)(4). The ALJ found that although Mr. Allen had several
joint disease, obesity), they did not meet or medically equal the severity of one of the
impairments listed in 20 C.F.R. Pt. 404, Subpart P, Appendix 1, that are so severe as
to preclude employment. The ALJ then found that Mr. Allen had the residual
exertional category. Specifically, the ALJ determined that Mr. Allen could lift, carry,
push, or pull 50 pounds occasionally and 25 pounds frequently; stand and walk or sit
about 6 hours in an 8-hour workday with normal breaks; occasionally climb ramps,
stairs, ladders, ropes, and scaffolds; and occasionally stoop, kneel, crouch, and crawl.
The ALJ also found that Mr. Allen should avoid concentrated exposure to jerking or
bouncing motions, and that he would need to shift between standing and sitting as
these limitations, the ALJ determined Mr. Allen could return to his past relevant
work as a security guard. In the alternative, the ALJ concluded that Mr. Allen could
including arcade attendant, storage facility rental clerk, and parking lot cashier.
2
Mr. Allen submitted additional evidence to the Appeals Council, including a
spinal MRI performed after the ALJ had issued his decision. The Council determined
the evidence would not have changed the outcome and denied his request for review.
II. DISCUSSION
supports the agencys factual findings and whether the agency applied the correct
legal standards. Barnett v. Apfel, 231 F.3d 687, 689 (10th Cir. 2000). Substantial
the evidence or substitute our judgment for that of the agency. Id. (internal
Mr. Allen raises only general challenges to the substantiality of the evidence
supporting the ALJs decision, claiming that [t]he medical record speaks volumes
also points to the MRI report and claims there is no argument in presenting the facts
to the court[:] he cannot walk for more than 20 minutes, and he cannot sit in one
position or stand for more than an hour. Reply at 12.1 He summarily claims that he
cannot climb ropes or scaffolds, as the ALJ found, and he newly complains that he
1
We have construed Mr. Allens Motion to Approve Plaintiffs Request for
SSDI as his reply brief.
3
lacks flexibility in his right hand. He also states that he cannot afford regular
Mr. Allen fails to support these arguments with any citation to the record or
legal authority. Even pro se litigants are required to do this much. Garrett v. Selby
Connor Maddux & Janer, 425 F.3d 836, 84041 (10th Cir. 2005). Nonetheless, we
have reviewed the medical evidence. Our review confirms that the ALJ accurately
recounted the medical evidence in his decision, and we have uncovered nothing
suggesting that there was not substantial evidence to support the ALJs determination
of Mr. Allens RFC or the ALJs findings concerning the jobs Mr. Allen could
Mr. Allen testified that his low-back injury resulted from moving more than 20
afforded him some relief, and he was given a lumbar support, which he did not wear
during the day because it was too hot. He was also advised to stretch and use ice at
home. R. at 397. A few weeks later he was seen at the Hunter Health Clinic for
severe back pain. Id. at 491. He had a normal gait, no focal deficits, intact sensation,
and symmetric reflexes. Id. at 492. He was assessed with lumbago, prescribed
2
Mr. Allen faults the ALJ for stating the injury occurred after moving only
three heavy bags. But the number of bags Mr. Allen moved is immaterial to the
disability issue, which concerns what he can still do despite his limitations.
See 20 C.F.R. 416.945(a)(1) (RFC is the most [a claimant] can still do despite
[his] limitations). Hence, any error by the ALJ regarding the number of bags was
harmless. See Poppa v. Astrue, 569 F.3d 1167, 1172 n.5 (10th Cir. 2009)
(recognizing that a mere scriveners error does not affect the outcome of [a social
security] case).
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prednisone and baclofen, and advised to stretch, rest, and use ice or heat as needed.
Id.
Mr. Allen next met with a consultative examiner, James Henderson, M.D., in
Mr. Allens walking was unimpaired, but he had limited range of motion in the
lumbar spine, and crepitation in both knees with full range of motion. Id. at 508.
or paraspinous muscle spasm. Id. at 50708. Mr. Allens motor and sensory
functions were intact, his reflexes were symmetrical, and his gait and station were
stable. Id. at 508. He had no difficulty getting on and off the examination table, no
difficulty with heel and toe walking, and mild difficulty squatting and arising from
the sitting position. Id. A radiologists report made the following observations:
Mr. Allens right knee had no acute abnormalities; the joint spaces appeared
and the surrounding soft tissues were intact. Id. at 509. Regarding his lumbar spine,
there was minimal spondylosis between T12 and L2 and at L34, but the vertebral
height and alignment were satisfactory, and the remaining disc spaces appeared
Mr. Allen returned to the Hunter Health Clinic in June 2014 complaining that
his back was killing him. Id. at 514. He rated his pain at 6/10 and reported that
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ibuprofen and muscle relaxers effectively relieved his symptoms. Id. He was in no
acute distress, and his gait was normal, but he had impaired range of motion bending
forward and backward. Id. at 515. He was tender to palpitation over the paraspinal
muscles bilaterally but not over the spinous processes, and a straight-leg raising test
was negative. Id. Other findings were essentially unremarkable. He was diagnosed
with low back pain, muscle spasm, and obesity. He was prescribed ibuprofen for
pain and inflammation, and tizanidine for muscle spasms, both as needed. Id. He
was told to lose weight, stretch, exercise lightly, use ice or heat as needed, and use a
Mr. Allens next follow-up for back pain occurred in March 2015, when he
had a lumbar-spine x-ray for what he said was increasing back pain. Id. at 524. The
x-ray showed normal vertebral body height and alignment; well-maintained disc
spaces; and some anterior osteophyte formation. Id. The impression was spondylosis
A few weeks later, Mr. Allen followed up with his primary care provider at the
clinic. Id. at 52629. He reported that if he wakes up around 6:00 or 7:00 a.m., his
lower back hurts and he is fatigued, but he is better if he sleeps until 10:00 a.m.
Id. at 526. He said if he lifts objects more than 25 or 30 pounds, his back pain
worsens for three or four days. Id. He was using ibuprofen three or four times a
week and tizanidine even less unless he exacerbates his symptoms, in which case a
numbness in his pelvis but denied any sciatica, radiculopathy, or loss of bowel or
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bladder control. Id. Except for decreased range of motion with forward flexion and
extension due to pain, the examination of his back was unremarkable: his range of
motion was normal with right and left lateral rotation and flexion, there was no pain
with palpation to spinal processes, and a straight-leg-raise test was negative. Id. The
assessment was lumbar spondylosis, low-back pain, and low-back muscle spasm.
Id. at 529. He was referred to physical therapy, received a refill on his medications,
and encouraged to do light stretching and exercises, to use ice or heat, and to rest his
back. Id. In April, Mr. Allen went for a physical therapy evaluation, where it was
noted that he had minimal or no loss of movement in his lumbar spine, his
upper-extremity range of motion was within functional limits, and he had complete
at 553, and a suggestion to join a YMCA for exercise, id. at 574, but in May he
decided that the exercises were not effective and that he would return to his medical
In June 2015, Mr. Allen went to the emergency room for his back pain. Id.
at 53750. He thought his medications (Motrin, Flexeril, and aspirin) were causing
chest pain and palpitations. Id. at 537. He asked for an MRI and a referral to a
specialist. Examination revealed midline tenderness to the lower lumbar area without
At the hearing, Mr. Allen said he could probably do an office job now using
his education, id. at 136, could probably do a security job that involved only sitting
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and watching a monitor, id. at 137, and could sit for two hours if he was able to move
around in his seat, but then he would have to get out of the chair, id. at 149. He was
concerned about side effects, in particular the chest pain he had experienced while on
other medication. Id. at 138. He said he used a knee brace sometimes, but it was not
prescribed for him, id. at 139, and he was not using any assistive devices at time of
hearing, id. at 140. He also said he uses a back support he got from his chiropractor,
id., and he had not used cold therapy because theres too much to it, id. at 141. He
reported an ability to attend to a variety of activities of daily living, albeit with some
limitations.
As noted, the ALJ accurately described this medical evidence and Mr. Allens
testimony. In reaching his decision, the ALJ also considered the April 2014 report of
medical evidence and opined that due to his back injury, Mr. Allen could perform
work at the medium exertional level; could stand and/or walk with normal breaks for
6 hours in an 8-hour workday; could sit with normal breaks for 6 hours in an 8-hour
workday; could frequently climb stairs, stoop, and kneel; and could occasionally
crouch and crawl. Id. at 19293. The ALJ gave Dr. Parsonss opinion substantial
weight for the exertional findings because they were supported by the record, but
found other limitations where Dr. Parsons had found none: Mr. Allens knee
condition limited him to only occasional stair climbing, kneeling, and stooping; he
8
needed to avoid bouncing and jerking; and he needed to be able to shift positions as
In September 2015, after the ALJ had issued his decision, Mr. Allen had an
MRI of his lumbar spine. Id. at 58283. The MRI confirmed multilevel degenerative
disc disease most pronounced at the L1-L2 level; a diffuse L1-L2 disc bulge with a
disc spur causing mild central canal narrowing and mild left neuroforaminal
to disc bulge and spurs. Id. at 583. Mr. Allen submitted the MRI results to the
Appeals Council along with an undated letter from a Doctor Roy stating that
Mr. Allen was a good candidate for spinal decompression therapy. Id. at 587.
medications used only as needed, the weight afforded to Dr. Parsons opinion, and
Mr. Allens testimony, there was substantial evidence for the ALJs decision. See
White v. Barnhart, 287 F.3d 903, 90910 (10th Cir. 2002) (effectiveness of
impression that evidence confirming the mere existence of his impairments, coupled
with his allegation that pain has prevented him from working since the injury, is
See 20 C.F.R. 416.929(a) ([S]tatements about your pain or other symptoms will
not alone establish that you are disabled.). The disability inquiry turns on what he
can still do despite his impairments and the pain they cause. See Brown v. Bowen,
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801 F.2d 361, 36263 (10th Cir. 1986) ([D]isability requires more than mere
No one doubts that Mr. Allen has severe impairments that cause him pain. The
ALJ said as much. And while the MRI report is consistent with those findings,
nothing in it suggests that Mr. Allens back impairment limits him more than the ALJ
found. Nor does his claimed inability to pay for epidural injections or physical
therapy alter our conclusion. Mr. Allen has not argued that he cannot afford the
medication that was prescribed for, and effectively controlled, his pain, and a lack of
funds was not the reason he gave for discontinuing physical therapy such that we
might question any reliance the ALJ may have placed on Mr. Allens decision to do
so. See Threet v. Barnhart, 353 F.3d 1185, 119091 n.7 (10th Cir. 2003)
treatment.). Finally, Mr. Allen did not base his benefits claim on any problems with
his right hand, and no such problem is evident in the record the agency considered.
In sum, we cannot say the evidence supporting the ALJs decision was insubstantial.
Mr. Allen does advance specific challenges to the handling of his case. In one,
he claims that at an initial hearing, the ALJ asked him to waive his right to an
attorney. The ALJ did no such thing. At the first hearing, Mr. Allen appeared
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See R. at 154. The ALJ granted that request but said it was a onetime thing. . . . [A]t
the next hearing if youre without representation, we can go ahead and go forward at
that time. Id. at 15455. The ALJ then summarized Mr. Allens right to be
representative. Id. at 155. The ALJ then said, Now prior to proceeding with the
hearing, Ill ask you to sign a form indicating that you understand your rights and in
this instant, since youve indicated that you would like a continuance, the form
indicates that you understand that this is a onetime thing . . . and the next time we go
ahead and go forward. Id. at 15556. The ALJ advised Mr. Allen that it would be
in [his] best interest to obtain representation sooner rather than later. Id. at 161.
Mr. Allens first attorney. First, we emphasize that, contrary to what Mr. Allen
appears to think, he did not have a constitutional right to counsel, but only an
any attorney in good standing or any person who is not an attorney who is
qualified under the regulation); Banta v. Chater, No. 95-6457, 1996 WL 477298,
cf. MacCuish v. United States, 844 F.2d 733, 735 (10th Cir. 1988) (Sixth
3
Consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1, we cite to our
unpublished decision in Banta only for its persuasive value.
11
Amendment right to counsel does not apply to civil matters.) Second, even if the
ALJs remarks were somehow improper or misleading, Mr. Allen was able to obtain
counsel to represent him at the second and final hearing before the ALJ.
Mr. Allen also questions the ALJs qualifications, stating that the agency
Opening Br. at 3. But we are not empowered to judge whether the agency has hired
See 42 U.S.C. 405(g) (providing for judicial review of final decisions of the
Commissioner); Brandtner v. Dept of Health & Human Servs., 150 F.3d 1306, 1307
(10th Cir. 1998) ( 405(g) is sole jurisdictional basis in social security cases).
Third, in his docketing statement, Mr. Allen suggests the Commissioner had
his district court case improperly transferred from Topeka, Kansas, where he filed it,
to Wichita, Kansas. Our review of the district courts docket indicates that although
Mr. Allen designated Topeka as the place for trial, the Commissioner filed nothing to
affect whether the case was assigned to a judge in Wichita, and no trial ever
Finally, we note that Mr. Allen filed with this court a Summary Judgment
Motion, asking that we grant him summary judgment in this matter. Requesting
summary judgment is not appropriate in an appeal from the denial of social security
benefits. In any event, we have concluded that the denial of benefits should be
12
affirmed. Therefore, although we have considered the arguments set forth in the
C. Ancillary matter
making contact with [his] healthcare providers to influence the quality of medical
care [he] receive[s] and to alter the language of [his] medical reports. Motion at 1.
He asks us to stop this source of distraction both with [his] care providers as well as
limited to reviewing the ALJs decision. We therefore deny the Motion for lack of
jurisdiction.
III. CONCLUSION
Gregory A. Phillips
Circuit Judge
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