UNITED STATES COURT OF APPEALS
Filed 12/20/96
FOR THE TENTH CIRCUIT
LARRY FRANKLIN,
Plaintiff-Appellant,
v. No. 96-5086
(D.C. No. CV-94-919-W)
SHIRLEY S. CHATER, Commissioner (N.D. Okla.)
of Social Security Administration, *
.
ORDER AND JUDGMENT **
Before PORFILIO, ALARCON, *** and LUCERO, 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This order and judgment is not binding precedent, except under the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 Arthur L. Alarcon, Senior Circuit Judge, United States Court of
(continued...)
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.
I. Facts.
Claimant Larry Franklin appeals from a district court order affirming the
Secretary's decision to deny his application for social security disability and
supplemental security income benefits. Claimant filed his application for benefits
on May 28, 1992, with a protective filing date of April 13, 1992. He alleged
disability from December 1991 because of mental retardation. After he was
briefly hospitalized in August 1992, he also claimed disability due to polycystic
kidney disease.
The administrative law judge (ALJ) determined at step four of the
applicable five-step sequential evaluation process, see Williams v. Bowen, 844
F.2d 748, 750-52 (10th Cir.1988)(generally describing five-step analysis), that
claimant was not disabled because he had the residual functional capacity to
(...continued)
***
Appeals for the Ninth Circuit, sitting by designation.
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perform a full range of basic work activities except for work involving average or
above average intelligence, and that he could return to his past relevant work as a
car washer and dishwasher. Claimant contends on appeal that substantial
evidence does not support the ALJ’s findings that his impairments do not meet 20
C.F.R. Pt. 404, Subpt. P, App. 1, 1205(C) of the Listing of Impairments, or that
he can return to his past relevant work.
II. Standard of Review.
“We review the Secretary's decision to determine whether her factual
findings are supported by substantial evidence in the record viewed as a whole
and whether she applied the correct legal standards. Substantial evidence is such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Castellano v. Secretary of Health & Human Servs., 26 F.3d 1027,
1028 (10th Cir. 1994)(citations and quotation omitted). We affirm.
III. Analysis.
A person is disabled within the meaning of the Social Security Act only if
his physical and mental impairments, considered in combination, preclude him
from doing his previous work, as well as any other “substantial gainful work
which exists in the national economy.” 42 U.S.C. § 423(d)(2). At step three of
the sequential evaluation, the ALJ determines whether the claimant’s impairment
“is equivalent to one of a number of listed impairments that the Secretary
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acknowledges are so severe as to preclude substantial gainful activity.” Williams,
844 F.2d at 751 (quotation omitted). If the impairment is listed, it is conclusively
presumed to be disabling, and the claimant is entitled to benefits. If the
impairment is not listed, the evaluation proceeds to step four, where the claimant
must show that the “impairment prevents [him] from performing work he has
performed in the past.” Id (quotation omitted). Claimant bears the burden of
establishing his disability at steps three and four of the sequential analysis. See,
e.g., Musgrave v. Sullivan, 966 F.2d 1371, 1376 (10th Cir. 1992).
A. Listed Impairment.
Claimant contends he meets disability listing § 12.05(C), which requires
him to satisfy a two-prong test: claimant must have “[a] valid verbal,
performance, or full scale IQ of 60 through 70 and a physical or other mental
impairment imposing additional and significant work-related limitation of
function.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05(C)(emphasis added). An
impairment imposes a significant work-related limitation of function “when its
effect on a claimant’s ability to perform basic work activities is more than slight
or minimal.” Fanning v. Bowen, 827 F.2d 631, 633 (9th Cir. 1987); accord
Pullen v. Bowen, 820 F.2d 105, 109 (4th Cir. 1987); Cook v. Bowen, 797 F.2d
687, 690 (8th Cir. 1986); Nieves v. Secretary of Health & Human Servs., 775
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F.2d 12, 14 (1st Cir. 1985); Edwards ex rel. Edwards v. Heckler, 755 F.2d 1513,
1515 (11th Cir. 1985).
It is undisputed that claimant's IQ falls within the required range of the first
prong of the listing. Thus, the determinative issue is whether claimant suffers
from a physical or other mental impairment which imposes an additional and
significant work-related limitation of function, in satisfaction of the second prong
of § 12.05(C). The ALJ concluded that claimant did not meet the second prong of
§ 12.05(C) because, on the basis of medical reports in the record, claimant’s
“physical impairments, singularly or in combination, represent no more than a
slight abnormality, having such a minimal affect on the claimant that they would
not be expected to interfere with his ability to work.” R. Vol. II, at 50. The
ALJ’s finding that claimant’s condition did not meet a listing also relied, in part,
upon the absence of such a finding by two physicians authorized by the Secretary
to determine whether claimant’s condition meets or equals a listing. Id. We
find no indication in the record that claimant has an additional mental or physical
impairment imposing significant work-related limitations on function. Claimant
was diagnosed in August 1992 with adult polycystic kidney disease, 1 borderline
1
Polycystic kidney disease is an inherited kidney disorder characterized by
the presence of many bilateral cysts which cause enlargement of the kidney, as
well as reduced function thereof. It is a disease which progresses slowly over a
number of years. The time at which the disease becomes manifest is highly
(continued...)
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hypertension, and a history of urinary tract infection. However, the medical
reports from the time of the diagnosis indicate that claimant was feeling well, was
not in pain, had no blood in his urine (hematuria) and was voiding without
difficulty, id at 199-200, 224-228, and the medical report from December 1993
indicates that claimant’s polycystic kidney disease was currently without
symptoms, id. at 213. Although claimant was seen by a doctor on five occasions
in 1993, the medical reports are unremarkable with the exception of elevated
blood pressure. The medical reports indicate that claimant’s hypertension was
under control by medication begun in January 1993. Id. at 209, 226. See Pacheco
v. Sullivan, 931 F.2d 695, 698 (10th Cir. 1991)(a medical condition that can be
controlled or remedied with treatment is not disabling). Dr. Sutton’s December
1993 medical report indicates that claimant was able to stand, sit or walk for eight
hours in an eight-hour day; had good range of motion in all joints, good reflexes,
and good grip strength; could continually lift and carry up to 100 pounds; could
continuously bend, crawl, squat, climb and reach; had no restrictions with his
1
(...continued)
variable, and for many, end-stage renal failure will not occur for more than
twenty years. The Merck Manual of Diagnosis and Therapy 1730-31 (Robert
Berkow, M.D., 16th ed.1992).
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ability to use his hands or feet; and no restrictions for exposure to environmental
pollutants. R. Vol II, at 212-219.
Claimant contends there is evidence in the record that supports a finding
that he has a physical or other mental impairment imposing additional and
significant work-related limitation of function. He first points to the evidence
that he is illiterate. However, claimant has held dishwashing and car washing
jobs constituting substantial gainful activity in spite of his illiteracy. He next
points to his sister’s testimony that he cannot take care of his own business affairs
without assistance and is severely fatigued. The ALJ considered this testimony,
but discounted it as not credible because it was not supported by any of the
evidence. The ALJ correctly noted that claimant had never complained of fatigue
to any of his doctors. Moreover, claimant testified he was able to manage his
own money, cook his daily meals, clean his home, do his own shopping, and drive
his car almost every day. Id. at 78, 83-84.
Claimant then points to medical reports that claimant suffers from marked
restrictions in his ability to understand and remember detailed instructions and to
interact appropriately with the public; cannot work under stressful conditions;
cannot use good judgment in a work situation; would need close supervision, and
has a limited intellectual capacity. Like the evidence of claimant’s illiteracy, this
evidence demonstrates symptoms of claimant’s mental retardation, and does not
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satisfy claimant’s obligation to show an additional impairment meeting the second
prong of listing § 12.05(C). Moreover, despite these limitations, the report from
Dr. Gordon stated that claimant is “obviously capable of performing a routine and
repetitive task on a regular basis” and that his mental impairment “does not keep
him from working as a dishwasher.” Id. at 185.
Claimant’s final contention, that the broken wrist he suffered after the
administrative hearing satisfies the second prong, is without merit. The medical
evidence demonstrates that this injury was temporary and satisfactorily healed.
Id. at 13-16. We conclude that substantial evidence supports the ALJ’s
conclusion that claimant’s condition does not meet or equal a listed impairment.
B. Ability to Perform Past Relevant Work.
Claimant contends the ALJ’s finding that claimant can perform his past
relevant work is not supported by substantial evidence. At step four, “claimant
bears the burden of proving his inability to return to his particular former job and
to his former occupation as that occupation is generally performed throughout the
national economy.” Andrade v. Secretary of Health & Human Servs., 985 F.2d
1045, 1051 (10th Cir. 1993).
Claimant first contends his most recent work as a part-time dishwasher did
not constitute substantial gainful activity. The capacity to do past work that was
substantial gainful activity indicates the claimant is not disabled, provided the
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work was not remote in time or sporadically performed. SSR 82-62, Soc. Sec.
Rep. Serv., Rulings 1975-1982, 809-10 (West 1983); see also 20 C.F.R.
§ 404.1571 (any work performed during a period of claimed disability may
demonstrate an ability to perform substantial gainful activity). Although
claimant’s most recent work as a part-time dishwasher was not “substantial
gainful activity,” as determined under 20 C.F.R. § 404.1574, claimant does not
dispute the ALJ’s finding that claimant’s past relevant work as a car washer and
dishwasher in 1976 through 1979, 1982 through 1984, and 1988 through 1990 did
constitute “substantial gainful activity,” some of which was performed within
fifteen years of the date of adjudication. See 20 C.F.R. § 404.1565(a); SSR
82-62, at 809-10; see also Jozefowicz v. Heckler, 811 F.2d 1352, 1356 (10th Cir.
1987)(holding that eight months of work is not considered as brief or sporadic
activity). Therefore, claimant clearly performed substantial gainful activity that
was neither remote in time, nor sporadically performed.
Claimant next contends the ALJ erred by not calling a vocational expert.
However, the Secretary need not produce vocational expert testimony when the
issue is whether the claimant can return to work he has previously performed.
See Musgrave, 966 F.2d at 1376. As discussed above, claimant has not
demonstrated any impairment other than his mental retardation that has more than
a slight or minimal effect on his ability to work. It is undisputed that claimant
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suffered from mental retardation during all of the time he was able to perform his
past relevant work. The medical evidence supports the ALJ’s finding that
“claimant’s mental impairment did not in any way change on December 30, 1990,
the date claimant alleged his impairment began, or on December 30, 1991, the
date he alleged he became disabled.” R. Vol. II, at 51 (citations omitted).
Claimant’s sister testified, and there is no medical evidence to the contrary, that
nothing happened to claimant in 1990 or 1991 in terms or injury or other similar
event that caused a change in claimant’s mental or physical condition. Claimant
also testified that he left full-time employment as a dishwasher in 1990 because
that business was slow. Id. at 97. Thus, because claimant did not provide any
evidence of an inability to return to his former employment, the ALJ did not err in
not calling a vocational expert.
Finally, claimant contends the ALJ did not compare the requirements and
demands of his past relevant work to his specific limitations. See Henrie v.
United States Dep’t of Health & Human Servs., 13 F.3d 359, 361 (10th Cir.
1993)(ALJ required to make findings regarding a claimant’s residual functional
capacity, the physical and mental demands of a claimant’s past relevant work, and
the ability of the claimant to perform those demands given claimant’s residual
functional capacity). The ALJ found that claimant had the residual functional
capacity to perform a full range of basic work activities except for work involving
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average or above average intelligence. The ALJ considered the findings of Dr.
Gordon that claimant was “obviously capable of performing a routine and
repetitive task on a regular basis” and that his mental impairment “obviously does
not keep him from working as a dishwasher.” R. Vol. II, at 185. The ALJ also
considered claimant’s testimony that he was able to manage his own money, cook
his daily meals, clean his home, do his own shopping, and drive his car almost
every day. The ALJ made the requisite findings regarding claimant’s residual
functional capacity and ascertained that claimant could perform his past relevant
work given his residual functional capacity. The ALJ was not required to conduct
any further comparison of limitations with work demands. See SSR 82-62, at 812
(in making findings at step four, ALJ must obtain “factual information about
those work demands which have a bearing on [a claimant’s] medically established
limitations”). Thus, contrary to claimant’s assertion, the record substantially
supports the ALJ's determination that claimant’s mental impairments have not
prevented him from performing his past relevant work.
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The judgment of the United States District Court for the Northern District
of Oklahoma is AFFIRMED.
Entered for the Court
Arthur L. Alarcon
Circuit Judge
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Franklin v. Chater
Combined Opinion