F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 7 1997
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
STEVEN O. MUSGROVE,
Plaintiff-Appellant,
v. No. 96-5217
(D.C. No. 95-CV-77-W)
JOHN J. CALLAHAN, Acting (N.D. Okla.)
Commissioner of Social Security, *
Defendant-Appellee.
ORDER AND JUDGMENT **
*
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 Shirley S.
Chater, 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This order and judgment is not binding precedent, except under the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.
Before KELLY and HENRY, Circuit Judges, and DOWNES, *** District Judge.
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.
Plaintiff appeals from an order of the magistrate judge 1 affirming the
Secretary’s decision to deny his application for social security benefits. We
closely examine the record as a whole to determine whether the Secretary’s
decision is supported by substantial evidence and adheres to applicable legal
standards. See Washington v. Shalala, 37 F.3d 1437, 1439 (10th Cir. 1994). The
scope of our review, however, is limited to those issues properly preserved and
presented by the claimant. See Berna v. Chater, 101 F.3d 631, 632 (10th Cir.
1996). Upon consideration of the contentions before us, we find no reversible
error and, accordingly, affirm.
From July 11 to August 2, 1993, plaintiff was hospitalized with a severe
aortic aneurysm, resulting in surgical repair of the artery, replacement of the
***
Honorable William F. Downes, District Judge, United States District Court
for the District of Wyoming, sitting by designation.
1
Pursuant to 28 U.S.C. § 636(c)(1), the parties consented to proceed before
the magistrate judge. Thus, our appellate jurisdiction arises under § 636(c)(3) and
28 U.S.C. § 1291.
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aortic valve, and implantation of a permanent pacemaker for a related heart
problem. His initial applications for supplemental income and disability benefits,
filed July 23, 1993, asserted a disability based solely on this condition, which
reduced his physical strength and endurance. After the initial administrative
denial, plaintiff sought reconsideration and alleged an additional, psychological
restriction regarding a fear of crowds. He also complained for a time to his
treating physicians about stiffness and pain in his left shoulder, but did not note
this on administrative filings. At the hearing before the administrative law judge
(ALJ), plaintiff testified that he lacked the strength and endurance for the
physical labor he had previously done, and was more susceptible to heat
exhaustion, but could still stand for a half-hour at a time, walk a mile, and lift
twenty pounds. He did not mention either shoulder pain or fear of crowds in
response to open-ended inquiries about his impairments from both the ALJ and
his own attorney.
The ALJ found plaintiff retained a residual functional capacity (RFC) for a
full range of (unskilled) sedentary work, with an environmental limitation
regarding extreme temperatures. This precluded his return to past, physically
demanding work. The pertinent medical-vocational guideline (grid), however,
directed a conclusion of “not disabled.” See 20 C.F.R. Pt. 404, Subpt. P, App. 2,
Rule 201.27. Purporting to use the grid only as a nondispositive “framework for
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decisionmaking,” but citing no other basis for his conclusion, the ALJ held there
was a significant number of sedentary jobs plaintiff could perform despite the
nonexertional temperature limitation, and, accordingly, found him not disabled at
the fifth step of the governing analytical sequence. See generally Williams v.
Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988) (describing steps).
On this appeal, plaintiff contends the ALJ erred in: finding a sedentary
RFC without a sufficient evidentiary basis; failing to develop and assess the
evidentiary record adequately with respect to his fear of crowds and his left
shoulder impairment; and conclusively relying on the grids for sedentary work
when his impairments, exertional and nonexertional, significantly limited his
capacity for such work. We shall take up each of these objections, in turn, below.
Sedentary work primarily involves sitting, with some occasional walking
and standing, and lifting no more than ten pounds at a time. Thompson v.
Sullivan, 987 F.2d 1482, 1488 (10th Cir. 1993). Plaintiff’s own testimony at the
hearing, noted above, established his ability to meet the walking, standing, and
lifting criteria. As for sitting, plaintiff never alleged, testified, or suggested in
the administrative proceedings, nor has he specifically argued at any stage of
judicial review, that this basic component of sedentary work is compromised by
his condition. We see no “compelling reason” to pursue this untrodden path sua
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sponte. See Berna, 101 F.3d at 633 (quoting Crow v. Shalala, 40 F.3d 323, 324
(10th Cir. 1994)).
This court recently discussed at some length the ALJ’s duty “in every case
to ensure that an adequate record is developed . . . consistent with the issues
raised.” Hawkins v. Chater, 113 F.3d 1162, 1164 (10th Cir. 1997) (quotation
omitted). In particular, Hawkins addressed the threshold question: “How much
evidence must a claimant adduce in order to raise an issue requiring further
investigation?” Id. at 1167. The court provided the following general answer:
[T]he starting place must be the presence of some objective evidence
in the record suggesting the existence of a condition which could
have a material impact on the disability decision requiring further
investigation. Isolated and unsupported comments by the claimant
are insufficient, by themselves, to raise the suspicion of the existence
of a nonexertional impairment.
Ordinarily, the claimant must in some fashion raise the issue
sought to be developed, which, on its face, must be substantial.
Specifically, the claimant has the burden to make sure there is, in the
record, evidence sufficient to suggest a reasonable possibility that a
severe impairment exists. When the claimant has satisfied his or her
burden in that regard, it then, and only then, becomes the
responsibility of the ALJ to [investigate further].
Id. (citations omitted). Further, the court noted that the threshold was even higher
for cases, such as this one, in which the claimant had the benefit of representation
during the administrative proceedings:
Further, when the claimant is represented by counsel at the
administrative hearing, the ALJ should ordinarily be entitled to rely
on the claimant’s counsel to structure and present claimant’s case in
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a way that the claimant’s claims are adequately explored. Thus, in a
counseled case, the ALJ may ordinarily require counsel to identify
the issue or issues requiring further development. In the absence of
such a request by counsel, we will not impose a duty on the ALJ to
order a consultative examination unless the need for one is clearly
established in the record.
Id. at 1167-68 (citations omitted).
Plaintiff and counsel did not mention either of his allegedly undeveloped
claims at the administrative hearing. With respect to fear of crowds, the
documentary record simply reflects a concern about adhering to post-surgical
instructions to avoid infection. See Appellant’s App., Vol. II at 76-77, 98-100.
As for the left shoulder, medical reports indicate only a transient problem due to
inactivity following surgery. See id. at 206 (Nov. 18, 1993--noting pain and
significantly limited motion), 213 (Dec. 16, 1993--noting “some” loss of motion),
214 (Dec. 21, 1993--noting “no complaints today”), 215 (Jan. 4, 1994--no
mention). 2 This record does not suggest, much less clearly establish, a reasonable
possibility of severe impairment in either case. Consequently, further efforts by
the ALJ to exhaust these unpressed and unpromising lines of inquiry were not
2
Plaintiff does cite to a March 14, 1994 note which recites, among many
complaints, “pain of the shoulder/back/Rt. side.” Appellant’s App., Vol. II at
216. It is not clear that this even refers to the left shoulder problem apparently
resolved months before. In any event, this passing reference, unaccompanied by
any indication of severity, duration, or need for treatment, does not alter our
conclusion.
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required. A fortiori, the ALJ properly found no vocational limitation on such
grounds.
Finally, it appears the ALJ effectively relied on the grids. However, given
our rejection of all plaintiff’s impairment-related objections, we are concerned
here only with whether the temperature restriction noted by the ALJ foreclosed
such reliance. While a nonexertional limitation may preclude use of the grids, it
will not if the job base underlying the grid is not significantly reduced. See
Evans v. Chater, 55 F.3d 530, 532-33 (10th Cir. 1995) (ability to perform
“substantial majority” of work in RFC suffices for purposes of grids). The
Secretary’s instructional rulings, which are premised on the same vocational
sources as the grids, indicate that a temperature restriction like the one imposed
here will not have a significant effect on the unskilled sedentary job base. See
SSR 96-9p, 1996 WL 374185, at *9 (“[F]ew occupations in the unskilled
sedentary occupational base require work in environments with extreme cold,
extreme heat, wetness, humidity, vibration, or unusual hazards. . . . Even a need
to avoid all exposure to these conditions would not, by itself, result in a
significant erosion of the occupational base.”); cf. SSR 83-14, 1983 WL 31254, at
*4 (citing exclusion of outdoor jobs from sedentary occupational base, due to
allergy, as example of vocationally insignificant environmental restriction). Thus,
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the sedentary-work grid relied on by the ALJ provided a proper basis for
disposition of the case.
The judgment of the United States District Court for the Northern District
of Oklahoma is AFFIRMED.
Entered for the Court
William F. Downes
District Judge
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