F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 25 1999
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
DONALD R. HUDSON,
Plaintiff-Appellant,
v. No. 98-7179
(D.C. No. CIV-97-720-S)
KENNETH S. APFEL, Commissioner, (E.D. Okla.)
Social Security Administration,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before TACHA , McKAY , 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(G). The case is therefore
ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the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.
Plaintiff Donald R. Hudson appeals from the denial of social security
disability benefits. He argues that the administrative law judge (ALJ) improperly
denied the case at step five: (1) by relying on the absence of evidence to find that
he could perform the full range of light work unlimited by any significant
nonexertional impairments, and by failing to link his credibility findings to the
evidence; and (2) by relying on expert vocational testimony that was elicited by
improper hypothetical questions. We have jurisdiction under 28 U.S.C. § 1291
and 42 U.S.C. § 405(g).
Plaintiff was born on March 6, 1952. His past work was as an oil field
worker. The vocational expert (VE) testified that this was heavy, semi-skilled
work. Plaintiff alleges that he became disabled on June 10, 1992, as a result of
an episode of Bell’s Palsy, severe lower back pain, high blood pressure, diabetes,
a separated left shoulder, left arm numbness, and blurred eyesight.
The ALJ decided the claim at step five of the evaluation sequence. See
generally Williams v. Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988) (discussing
the five steps). Reviewing the medical evidence, the ALJ noted that plaintiff’s
diabetes was well controlled, see Appellant’s App., Vol. II at 12; that his episode
of Bell’s Palsy was resolved, see id. at 10; that his vision, with correction, was
within normal limits, see id. at 12; and that he did not seek treatment for, or take
medication for, his alleged back pain or any orthopedic complaint, see id.
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at 10-11. The ALJ found at step two that plaintiff’s diabetes was a severe
impairment, and that his other impairments of arthritis, chest pain, and shortness
of breath were not severe. At step four, he found that plaintiff was capable only
of light work, and therefore could not return to his past, heavy work. At step
five, the ALJ determined that plaintiff was not limited by any significant
nonexertional impairments, had a limited education, and was a younger
individual. Although the ALJ questioned a VE, he based his conclusion that
plaintiff was not disabled on Rule 202.18 from the medical-vocational guidelines
(the “grids”), 20 C.F.R. pt. 404, subpt. P, app. 2.
Plaintiff’s argument on his first issue is focused solely on a statement in the
ALJ’s decision that “[t]here is no support in the record for a finding that claimant
cannot occasionally perform tasks requiring bending, stooping, and all other
postural activities consistent with light work.” See Appellant’s App., Vol. II
at 13. Citing Thompson v. Sullivan , 987 F.2d 1482, 1491 (10th Cir. 1993),
plaintiff asserts that the ALJ improperly relied on “the absence of
contraindication in the [claimant’s] medical records” to make this finding. See
Appellant’s Br. at 21. However, the particular statement challenged by plaintiff
was part of the ALJ’s assessment of plaintiff’s residual functional capacity
(RFC). See 20 C.F.R. § 404.1545(b). The determination of a claimant’s RFC is
made at step four, see Winfrey v. Chater , 92 F.3d 1017, 1023 (10th Cir. 1996),
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where the claimant bears the burden of proof. See Nielson v. Sullivan , 992 F.2d
1118, 1120 (10th Cir. 1993). The ALJ therefore did not err by pointing out that
plaintiff had not presented medical evidence to establish any postural limitations.
To the extent that plaintiff may be arguing that the ALJ’s finding, at step five,
that he had no significant nonexertional impairments is not properly supported,
we hold that the ALJ’s finding is supported by substantial evidence. We reject
plaintiff’s contention that the ALJ failed to link his credibility determination to
the evidence. The ALJ adequately reviewed the medical evidence, and it does not
support plaintiff’s claim for benefits.
Plaintiff’s second issue is without merit. The ALJ relied conclusively on
the grids and did not rely on the VE’s testimony. Assuming arguendo that the
ALJ erred in formulating his hypothetical questions, the errors did not affect his
decision.
AFFIRMED.
Entered for the Court
Michael R. Murphy
Circuit Judge
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