F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 14 1997
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
ARTURO OCHOA,
Plaintiff-Appellant,
v. No. 96-2301
(D.C. No. CIV-95-1150-M)
JOHN J. CALLAHAN, Acting (D. N.M.)
Commissioner of Social Security, *
Defendant-Appellee.
ORDER AND JUDGMENT **
Before BRORBY, BARRETT, and MURPHY, 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), John J.
Callahan, Acting Commissioner of Social Security, is substituted for Donna E.
Shalala, Secretary of Health and Human Services, as the defendant in this action.
**
This order and judgment is not binding precedent, except under the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.
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-appellant Arturo Ochoa appeals the district court’s judgment
affirming the decision by the Commissioner of Social Security denying his
applications for benefits. Because the Commissioner’s decision is supported by
substantial evidence, we affirm.
In October 1988, plaintiff injured his back and was diagnosed with a left-
sided herniated disc at L5-S1. He underwent two back surgeries, the first in
November 1988, and the second in June 1989. In November 1991, medical tests
revealed L5 disc degeneration with an annular rupture. In September 1991,
plaintiff applied for disability benefits and supplemental security income benefits,
alleging an inability to work due to back and left leg pain. After a hearing, an
administrative law judge found that although plaintiff cannot return to his former
work, he is not disabled because he retains the ability to do the full range of
sedentary work. The Appeals Council denied review, making this the final
decision of the Commissioner. The district court affirmed, finding that although a
vocational expert should have been consulted, the record supported a finding that
plaintiff is not disabled. This appeal followed.
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We review the Commissioner’s decision to determine whether his factual
findings are supported by substantial evidence and whether correct legal standards
were applied. Castellano v. Secretary of Health & Human Servs., 26 F.3d 1027,
1028 (10th Cir. 1994). Substantial evidence is “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Id.
(quotations and citations omitted). We may “neither reweigh the evidence nor
substitute our judgment for that of the agency.” Casias v. Secretary of Health &
Human Servs., 933 F.2d 799, 800 (10th Cir. 1991).
On appeal, plaintiff argues that the district court erred in finding that his
impairment did not meet or equal the criteria for a listed impairment, and in
finding that the Commissioner met his burden of showing that plaintiff retained
the ability to perform a significant number of jobs without a vocational expert’s
testimony.
A vertebrogenic disorder such as plaintiff’s is deemed disabling upon
repeated findings of continuous
1. Pain, muscle spasm, and significant limitation of motion
in the spine; and
2. Appropriate radicular distribution of significant motor
loss with muscle weakness and sensory and reflex loss.
20 C.F.R. Pt. 404, Subpt. P, App. 1 §§ 1.05(C) & 1.00 (noting that abnormal
findings must persist on repeated examinations to establish continuous presence).
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Plaintiff’s medical records do not support this degree of limitation on a
continuous basis. His treating neurosurgeon reported on numerous occasions that
plaintiff had no weakness in either lower extremity and that his reflexes were
normal, see Appellant’s App. at 94, 98, 100, 104, 136. In addition, plaintiff’s
episodes of pain were described as “minor,” id. at 95, and the surgeon did not find
“[p]ain, discomfort or loss of sensation or strength” to increase plaintiff’s
impairment rating, id. at 100. Subsequent examinations by other physicians
revealed no muscle spasm, see id. at 157, 167, no atrophy, see id. at 158, and
normal motor and sensory functions, see id. at 167. Although there are occasional
findings of loss, such as a decreased Achilles reflex in the left leg, see id. at 157,
a decrease in the circumference of the left thigh, see id. at 167, and denervation
of the left L5 myotome, see id. at 159, these findings have not been repeated, and
do not meet the listing requirement that they be persistent and continuous.
Plaintiff argues that the Commissioner’s finding that he can perform the
full range of sedentary work is not supported by the record, and that, therefore,
the testimony of a vocational expert was necessary. He argues that he cannot
perform the full range of sedentary work due to his limitations in lifting, sitting,
and standing, combined with his illiteracy and inability to communicate in
English. After reviewing the record, we conclude the Commissioner’s finding is
supported by substantial evidence.
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Sedentary work “involves lifting no more than 10 pounds at any time and
occasionally lifting or carrying articles like docket files, ledgers, and small tools.
Although a sedentary job is defined as one which involves sitting, a certain
amount of walking and standing is often necessary . . . .” 20 C.F.R.
§ 404.1567(a). Plaintiff’s ability to lift fifteen pounds and to stand up to an hour
at a time fits this criteria. Although consulting physician Davis noted that
plaintiff’s ability to sit for long periods may be affected, he concluded that
plaintiff retained the ability to sit from four to six hours during the day with
appropriate rest periods to stretch and move around. See Appellant’s App. at 168.
He also suggested that his assessment be coordinated with the records of
plaintiff’s treating physician, who noted no such limitation on plaintiff’s abilities,
restricting him only from stooping, bending, and lifting over fifteen pounds See
id. at 175. Further, the functional assessment performed on plaintiff in March
1990, although partially invalidated due to the perception that plaintiff was not
performing up to his true capabilities, nonetheless assessed his ability to sit as
unlimited. See id. at 147, 153.
The Commissioner’s finding that plaintiff’s pain did not prevent him from
performing the full range of sedentary work is also supported by substantial
evidence. At the time of the hearing, plaintiff used only over-the-counter pain
medication, which was fairly effective in relieving his pain, see id. at 194-95.
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Although he used a cane, several medical sources questioned his need for this
device. See id. at 147, 167. Moreover, plaintiff’s treating neurosurgeon, in rating
plaintiff’s impairment, did not assess any additional impairment due to pain or
weakness. See id. at 100.
Because substantial evidence supports the conclusion that plaintiff can
perform the full range of sedentary work, the ALJ did not err in relying on the
grids, rather than calling a vocational expert, to determine that he is not disabled.
A vocational expert should be consulted when a “claimant’s residual functional
capacity is diminished by both exertional and nonexertional impairments.” Hargis
v. Sullivan, 945 F.2d 1482, 1491 (10th Cir. 1991). This requirement applies,
however, only when the claimant’s exertional and nonexertional impairments limit
his ability to perform the full range of work within a particular exertional
category. See, e.g., Evans v. Chater, 55 F.3d 530, 532 (10th Cir. 1995); Glass v.
Shalala, 43 F.3d 1392, 1396 (10th Cir. 1994). Plaintiff’s illiteracy and inability to
communicate in English do not require a different result, as the grids take these
factors into account in determining whether a claimant is disabled. See 20 C.F.R.
Pt. 404, Subpt. P, App. 2 § 201.00(i).
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The judgment of the United States District Court for the District of New
Mexico is AFFIRMED.
Entered for the Court
Wade Brorby
Circuit Judge
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Ochoa v. Chater
Combined Opinion