UNITED STATES COURT OF APPEALS
Filed 6/18/96
FOR THE TENTH CIRCUIT
CATERINA HERRERA,
Plaintiff-Appellant,
v. No. 95-3305
(D.C. No. 94-CV-1480)
SHIRLEY S. CHATER, Commissioner of (D. Kan.)
Social Security Administration,*
Defendant-Appellee.
ORDER AND JUDGMENT**
Before PORFILIO, JONES,*** and TACHA, Circuit Judges.
*
Effective March 31, 1995, the functions of the Secretary of Health and Human
Services in social security cases were transferred to the Commissioner of Social Security.
P.L. No. 103-296. Pursuant to Fed. R. App. P. 43(c), Shirley S. Chater, Commissioner of
Social Security, is substituted for Donna E. Shalala, Secretary of Health and Human Services,
as the defendant in this action. Although we have substituted the Commissioner for the
Secretary in the caption, in the text we continue to refer to the Secretary because she was the
appropriate party at the time of the underlying decision.
**
This order and judgment is not binding precedent, except under the doctrines of law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.
***
Honorable Nathaniel R. Jones, Senior Circuit Judge, United States Court of Appeals
for the Sixth Circuit, sitting by designation.
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) and 10th Cir. R. 34.1.9. The case is therefore ordered submitted
without oral argument.
Plaintiff Caterina Herrera appeals from an order of the district court that affirms the
decision of the Secretary of Health and Human Services to deny her social security disability
benefits and supplemental security income. Plaintiff claims she has been disabled since July
1988 due to back pain, numbness in her left leg and heel, kidney impairments, and
headaches. The administrative law judge (ALJ) denied benefits at step four of the five-part
sequential process for determining disability. See Williams v. Bowen, 844 F.2d 748, 750-52
(10th Cir. 1988)(discussing five-step process). The ALJ determined that plaintiff retained
the residual functional capacity to perform her past work as an office manager and therefore
was not disabled. The Appeals Council denied review, making the ALJ's determination the
final decision of the Secretary.
We have jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291 to review the
Secretary's decision to determine only whether it is supported by substantial evidence and
whether the correct legal standards were applied. See Goatcher v. United States Dep’t of
Health & Human Servs., 52 F.3d 288, 289 (10th Cir. 1995). Substantial evidence “is such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
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Richardson v. Perales, 402 U.S. 389, 401 (1971)(quotation and citation omitted). Evidence
is not substantial if it is overwhelmed by other evidence or is mere conclusion. Musgrave
v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). We may not reweigh the evidence or
substitute our judgment for that of the Secretary. Kelley v. Chater, 62 F.3d 335, 337 (10th
Cir. 1995).
On appeal, plaintiff contends the ALJ: (1) posed a defective hypothetical to the
vocational expert (VE); (2) erroneously disregarded her nonexertional limitations; and (3)
erred in determining she could perform her past work as an office manager. We have
reviewed the briefs and the record on appeal, and are not persuaded by plaintiff’s claims of
error.
At step four, plaintiff bears the burden to establish that she cannot return to her past
relevant work. See Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993). The ALJ
is not limited to considering the specific demands of her past job, however. “Claimant’s
burden [] is to demonstrate [s]he cannot return to [her] former type of work, and not just to
[her] previous job.” Andrade v. Secretary of Health & Human Servs., 985 F.2d 1045, 1052
(10th Cir. 1993)(citing S.S.R. 82-61, 1982 WL 31387). Plaintiff testified she worked as an
office manager/salesperson at a jewelry store. She contends she cannot return to a job as
office manager because she can no longer do the frequent bending required by the sales
duties she also formerly performed. Additional duties do not change the ALJ’s line of
inquiry, however, unless plaintiff can show that she was in a different line of work than the
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ALJ addressed. See id. There is substantial evidence to support the ALJ’s conclusion that
plaintiff possessed the skills of an office manager, even if she also did sales work. E.g.,
Appellant’s App. at 405. The ALJ therefore did not err in asking the VE if plaintiff could
return to the work of an office manager.
In determining whether a claimant can return to a past line of work, an ALJ must
include in his hypothetical questions to the VE only those impairments he accepts as true.
See Talley v. Sullivan, 908 F.2d 585, 588 (10th Cir. 1990). The medical evidence shows that
plaintiff was restricted by her doctors from repeated or frequent bending, stooping, or lifting,
and prolonged sitting or standing. Appellant’s App. at 291, 295, 517. When the ALJ posed
hypothetical questions incorporating restrictions against frequent bending and lifting and a
need to alternate thirty minutes of sitting with forty-five minutes of standing, the VE testified
that plaintiff could still perform a job as an office manager. Id. at 124-25. The ALJ properly
rejected plaintiff’s claims of more severe restrictions and disabling pain as inconsistent with
the evidence as a whole and not credible. See Hargis v. Sullivan, 945 F.2d 1482, 1489 (10th
Cir. 1991). The ALJ also properly rejected an indication by Dr. Pence that plaintiff had a
severe limitation of functional capacity and was incapable of even sedentary work,
Appellant’s App at 533, as inconsistent with the rest of his evidence indicating that she is not
disabled, id. at 263, 281, 295, 533, 535. Finally, nothing mandates that a sit/stand option is
not available in sedentary jobs. Rather, Social Security Ruling 83-12 directs the ALJ to
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obtain vocational testimony on this point, see S.S.R. 83-12, 1983 WL 31253, at *4, and that
is precisely what the ALJ did.
The ALJ properly concluded that plaintiff can return to the work of an office manager
and she is therefore not disabled. The judgment of the United States District Court for the
District of Kansas is AFFIRMED.
Entered for the Court
John C. Porfilio
Circuit Judge
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