F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 23 1997
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
BEN E. MCDADE,
Plaintiff-Appellant,
v. No. 96-7118
(D.C. No. CV-95-366-S)
JOHN J. CALLAHAN, Acting (E.D. Okla.)
Commissioner of Social Security, *
Defendant-Appellee.
ORDER AND JUDGMENT **
Before BRORBY, BARRETT, and MURPHY, Circuit Judges.
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), 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
*
John J. Callahan, Acting Commissioner of the Social Security
Administration, is substituted for former Commissioner Shirley S. Chater. See
Fed. R. App. P. 43(c).
**
This order and judgment is not binding precedent, except under the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.
Claimant Ben E. McDade appeals from the district court’s order affirming
the Commissioner’s denial of his application for disability insurance benefits and
supplemental security income. This court exercises jurisdiction under 42 U.S.C.
§ 405(g) and 28 U.S.C. § 1291, and affirms.
BACKGROUND
Mr. McDade, who is presently fifty-six years old, alleges disability arising
from an incident on April 2, 1992, when he fell backwards from a chair while
reading a newspaper at work. At the hearing before the administrative law judge
(ALJ), Mr. McDade testified that he was disabled by loss of balance, muscle
spasms, sharp pain all over his body, foot drag, a shoulder that locks up, loss of
neck motion, difficulty in swallowing, and sleep problems. According to Mr.
McDade, the resulting limitations were that he could lift five or ten pounds
without losing his balance, sit for thirty-five minutes before his side starts
burning, stand for up to thirty-five minutes, walk four blocks before becoming
tired, bend halfway down, move his neck to the left but not the right, and reach to
the side but not overhead.
Medical records show that, beginning one week after his fall, Mr. McDade
sought medical treatment, reporting symptoms of steadily progressing intensity.
His treating physicians were unable to explain the severity of the problems he
described. On August 25, 1992, a neurological surgeon diagnosed Mr. McDade
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with radiculitis 1 and recommended a lumbar selective nerve block. The procedure
was performed, but at a follow-up examination Mr. McDade stated that he
experienced no relief. In February 1993, while undergoing physical therapy, he
began to complain of neck problems. The neurological surgeon diagnosed
cervical myelopathy 2 secondary to C5-6 disc herniation and performed a cervical
disketomy and fusion.
After considering the evidence, including medical records and testimony by
Mr. McDade and a vocational expert, the ALJ applied the five-step sequential
evaluation process and determined that Mr. McDade was not under a disability as
defined in the Social Security Act. See Williams v. Bowen, 844 F.2d 748, 750-52
(10th Cir. 1988) (discussing the five steps in detail). A key to this determination
was the ALJ’s finding that Mr. McDade’s testimony was credible only “to the
extent that it is consistent with the performance of light work activity, with
occasional stooping, bending, twisting and balancing.” Appellant’s App., Vol. II
at 21. The ALJ specified numerous reasons for discounting many of the
impairments which Mr. McDade reported to his physicians or raised in his
testimony.
1
Radiculitis is defined as an “[i]nflammation of the intradural portion of a
spinal nerve root . . . .” Stedman’s Medical Dictionary 1308 (25th ed. 1990).
2
Myelopathy is defined as a “[d]isturbance or disease of the spinal cord.”
Stedman’s Medical Dictionary at 1013.
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At step four of the evaluation process, the ALJ decided that Mr. McDade
did not have the residual functional capacity to perform his past relevant jobs of
bus driver and chief of a road paving crew, but could perform his past jobs of
expeditor and truck driver. Alternatively, at step five, the ALJ determined that
the Commissioner had shown that there were other jobs existing in significant
numbers in the national economy, consistent with Mr. McDade’s impairments and
limitations.
The Appeals Council denied Mr. McDade’s request for review so that the
ALJ’s decision became the final decision of the Commissioner. Upon judicial
review in the district court, the magistrate judge recommended affirming the
Commissioner’s decision and the district court adopted the recommendation.
DISCUSSION
On appeal, Mr. McDade contends that (1) in determining his residual
functional capacity, the ALJ failed to consider the effects of his impairments and
did not link the credibility analysis to specific evidence; (2) in the step four
determination, the ALJ failed to make a proper evaluation of the physical
demands of his past relevant work and his ability to meet them; and (3) in the step
five determination, the Commissioner failed to produce substantial evidence that
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he could perform a significant number of the alternative jobs cited by the
vocational expert. 3
This court reviews the Commissioner’s decision to determine whether his
factual findings were supported by substantial evidence in the record viewed as a
whole and whether he applied the correct legal standards. See 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. (quoting Richardson v. Perales, 402
U.S. 389, 401 (1971) (further quotations omitted). The court may neither reweigh
the evidence nor substitute its judgment for that of the Commissioner. See Casias
v. Secretary of Health & Human Servs., 933 F.2d 799, 800 (10th Cir. 1991).
First, Mr. McDade argues that the ALJ erred in determining his residual
functional capacity. Essentially, his contention is that the ALJ did not
acknowledge all his claimed limitations. The ALJ, however, properly considered
Mr. McDade’s subjective complaints in light of the objective evidence, see Kepler
v. Chater, 68 F.3d 387, 390-91 (10th Cir. 1995) (discussing proper consideration
3
We note that Mr. McDade did not present the step five issue to the Appeals
Council. Nonetheless, the court will not apply a waiver rule in this case because,
at the time he appealed to the Appeals Council, Mr. McDade did not have notice
of James v. Chater, 96 F.3d 1341, 1344 (10th Cir. 1996) (holding “issues not
brought to the attention of the Appeals Council on administrative review may,
given sufficient notice to the claimant, be deemed waived on subsequent judicial
review.”).
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of complaints of disabling pain), and specifically linked the credibility findings to
substantial evidence in the record, see Winfrey v. Chater, 92 F.3d 1017, 1020
(10th Cir. 1996). In doing so, the ALJ decided to credit some of Mr. McDade’s
alleged limitations and discount others. This determination is peculiarly within
the province of the finder of fact, see id., and the record on appeal presents no
reason to upset it.
Mr. McDade also claims error in the ALJ’s determination that he could
perform two of his four past jobs, the positions of expeditor and truck driver.
After determining the claimant’s residual functional capacity, an ALJ has a duty
at the step four level to make findings regarding the physical and mental demands
of the claimant’s past relevant work and the ability of the claimant to perform
those demands. See Henrie v. United States Dep’t of Health & Human Servs., 13
F.3d 359, 361 (10th Cir. 1993). A vocational expert may supply information to
the ALJ about the claimant’s past relevant work as it is generally performed in the
national economy. See Winfrey, 92 F.3d at 1025; Social Security Ruling 82-61
(SSR 82-61).
From this record, it appears doubtful that Mr. McDade’s limitations permit
him to perform the position that he called “expeditor.” Mr. McDade testified that,
in this job, he “fixed kits for welders for trucks,” and had to lift “up to 35, 40
pounds.” Appellant’s App., Vol. II at 281-82. The vocational expert, without
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elaborating on the duties of the position as generally performed, testified that it
required only light exertion.
Both the ALJ and the vocational expert used the term “expeditor” to refer
to a generic classification of jobs, without identifying the particular functional
demands of Mr. McDade’s past job, either as performed by him or in the national
economy. SSR 82-61 specifically warns against this practice, stating that the use
of a “broad generic, occupational classification” will lead to a “fallacious and
unsupportable” step four finding. See Evans v. Shalala, 21 F.3d 832, 834 (8th
Cir. 1994). To the extent that the ALJ’s step four determination is dependent on
Mr. McDade’s ability to be an “expeditor,” it is erroneous.
The ALJ, however, also found that Mr. McDade could perform his past
relevant work as truck driver. Mr. McDade’s sole contention on this finding is
that he lacks the residual functional capacity to do the job, because he does not
have the strength to push pedals or the ability to move his neck. As noted above,
it was the ALJ’s prerogative to disbelieve Mr. McDade’s testimony on these
limitations. Based on his findings concerning the job of truck driver, the ALJ
correctly denied benefits at the step four level.
The above conclusion is dispositive of Mr. McDade’s appeal. See Murrell
v. Shalala, 43 F.3d 1388, 1389-90 (10th Cir. 1994). An additional basis for
affirming the ALJ’s denial of benefits, however, can be found in the step five
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determination that Mr. McDade was capable of performing other jobs which exist
in significant numbers in the national economy. At step five, the Commissioner
satisfies the burden of proving that the claimant is not disabled if his decision is
supported by substantial evidence. See Miller v. Chater, 99 F.3d 972, 975 (10th
Cir. 1996).
At the hearing, the ALJ presented a hypothetical question to the vocational
expert, setting forth an individual of Mr. McDade’s age, education, and work
experience and describing the limitations he found credible and supported by the
evidence. Cf. Talley v. Sullivan, 908 F.2d 585, 588 (10th Cir. 1990) (observing
that a vocational expert’s response to a hypothetical is not binding on the ALJ if
the question sets forth impairments which the ALJ does not accept as true). The
vocational expert responded that such an individual could perform other jobs at
the light and sedentary levels, such as hand packager and filler. She testified that
there were at least 225,000 of these positions in the national economy and 2,400
in Oklahoma. A sit and stand option reduced these numbers by only twenty
percent.
Mr. McDade suggests that the vocational expert’s statistics were flawed
and that her characterization of the exertional levels of the alternative positions
was incorrect. The ALJ established the expert’s education and experience, probed
for bias, and allowed Mr. McDade’s attorney to question the expert. Under these
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circumstances, we will not question the reliability of the testimony. See Trimiar
v. Sullivan, 966 F.2d 1326, 1330-31 (10th Cir. 1992). Plainly, the testimony
supplies substantial evidence of a significant number of positions which Mr.
McDade could perform.
CONCLUSION
After a careful review of the entire record, we agree with the district court
that the ALJ applied the correct legal standards and that the record contains
substantial evidence supporting the ALJ’s findings and conclusions. Therefore,
the judgment of the United States District Court for the Eastern District of
Oklahoma is AFFIRMED.
Entered for the Court
Michael R. Murphy
Circuit Judge
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