Campbell v. Apfel, Commissioner

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PATRICIA CAMPBELL,
Plaintiff-Appellant,

v.
No. 97-2128
KENNETH S. APFEL, COMMISSIONER OF
SOCIAL SECURITY,
Defendant-Appellee.

Appeal from the United States District Court
for the Middle District of North Carolina, at Salisbury.
Paul Trevor Sharp, Magistrate Judge.
(CA-96-351-4)

Submitted: November 17, 1998

Decided: December 31, 1998

Before MURNAGHAN, ERVIN, and WILLIAMS, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

H. Russell Vick, Greensboro, North Carolina, for Appellant. Frank
W. Hunger, Assistant Attorney General, Walter C. Holton, Jr., United
States Attorney, Mary Ann Sloan, Chief Counsel, Region IV, Haila
Naomi Kleinman, Acting Branch Chief, Cheryl Nikonovich-Kahn,
Assistant Regional Counsel, Office of the General Counsel, SOCIAL
SECURITY ADMINISTRATION, Atlanta, Georgia, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Patricia Campbell appeals the magistrate judge's judgment order
affirming the Commissioner's final decision denying her claim for a
period of disability and disability insurance benefits. On appeal,
Campbell alleges that the magistrate judge erred in failing to properly
evaluate the Commissioner's finding that Campbell is not disabled at
step five of the sequential evaluation process under the applicable reg-
ulations and social security rulings. Finding no error, we affirm.

Patricia Campbell has a tenth grade education and vocational expe-
rience as a machine operator, inspector of paper products, and sewing
machine operator. She applied for a period of disability and disability
insurance benefits in January 1993, claiming disability beginning
mid-August 1991. She alleged that she became unable to work in
1991 due to pain in her hands. After conducting a hearing on Septem-
ber 8, 1994, the ALJ issued a decision denying benefits based on a
finding that there was work in the national economy that Campbell
could perform. Campbell was twenty-seven years old at the time of
the hearing. Campbell requested review of the ALJ's decision by the
Appeals Council. The Appeals Council denied Campbell's request for
review. The ALJ's decision then became the Commissioner's final
decision.

Campbell filed a complaint in the district court challenging the
final decision of the Commissioner. Both parties filed cross motions
for summary judgment. By order entered on June 20, 1997, a magis-
trate judge granted the Commissioner summary judgment and
affirmed the decision of the Commissioner. This appeal followed.

We review the Commissioner's final decision to determine whether
it is supported by substantial evidence and whether the correct law
was applied. See 42 U.S.C.A. § 405(g) (West Supp. 1998); Hays v.

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Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). Substantial evidence
is "`such relevant evidence as a reasonable mind might accept as ade-
quate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389,
401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197,
229 (1938)). We do not re-weigh conflicting evidence, make credibil-
ity determinations, or substitute our judgment for that of the Commis-
sioner. See Hays, 907 F.2d at 1456. It is the duty of the ALJ, not the
courts, to make findings of fact and to resolve conflicts in the evi-
dence. See id.

The record discloses that Campbell was physically able to work
until 1991, at which time her hand pain became disabling. Her doctors
diagnosed her as suffering from arthritis and an"unstable" thumb
joint of the right hand. She underwent three surgeries on her right
hand, but has experienced no post-operative complications. She has
reported similar problems with the left hand. She wears flexible
braces on both hands for approximately two hours a day. Although
she experiences pain early in the morning and has difficulty writing,
she is able to lift objects weighing up to five pounds if she uses both
hands. She is able to perform light household tasks for brief periods
of time. She is also able to go horseback riding once a month, engages
in "normal" social activities, and drives a car.

Because Campbell established non-exertional limitations which
significantly interfere with her ability to perform her past relevant
work or work encompassed within the Medical-Vocational Guidelines
(the "Grids"), the ALJ found the use of a vocational specialist neces-
sary to satisfy the Commissioner's burden of going forward with the
evidence. James Burge, the vocational expert, testified that Camp-
bell's past work was "unskilled" and was performed at a "light" exer-
tional level. Burge was asked whether a significant number of jobs
existed for a person who has a residual functional capacity for "seden-
tary" work, with additional non-exertional limitations which preclude
jobs requiring lifting objects with one hand. Burge testified that a sig-
nificant number of jobs existed in the specified area for a person with
such a profile.

In reaching his decision, the ALJ applied the sequential five step
analysis found at 20 C.F.R. § 404.1520 (1998). Under this process,
the ALJ considers sequentially whether Campbell: (1) is currently

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engaged in substantial gainful activity; (2) if not, whether she has a
severe impairment; (3) if so, whether that impairment meets or equals
medical criteria warranting a finding of disability without considering
vocational factors; (4) if not, whether the impairment prevents her
from performing her past relevant work; and (5) if so, the burden
shifts to the Commissioner to determine whether she can perform
other work. See Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981).
If an individual is found not disabled at any step, the inquiry ends.

At step one, the ALJ first found that Campbell has not engaged in
substantial gainful activity since 1989. The ALJ further found, at step
two, that medical evidence shows that Campbell is severely impaired
by arthritic hand pain. The ALJ, however, concluded at step three that
the evidence did not demonstrate that Campbell suffered from any
impairment, or combination of impairments, which meets or equals
the level of severity specified in any of the Listed Impairments set
forth in 20 C.F.R. § 404.1525. At the fourth step, the ALJ, finding
that Campbell's testimony was not fully credible, concluded that
Campbell has the residual functional capacity to perform sedentary
level work which does not require her to lift objects with one hand,
but that she cannot perform her past relevant work. At the fifth step,
the ALJ concluded that given Campbell's age, education, work expe-
rience, and residual functional capacity for "sedentary" work in con-
junction with Rule 201.24 of the Grids and the vocational expert
testimony, Campbell is not disabled within the meaning of the Social
Security Act. It is the ALJ's resolution of this fifth step that is the
crux of this appeal.

The Grids categorize a claimant's exertional limitations, age, edu-
cation, and past work experience to determine disability. See 20
C.F.R. pt. 404, subpt. P, app. 2. (1995). The ALJ applied Grid
§ 201.24, which categorizes Campbell as a young individual, having
a limited or less education but at least literate and able to communi-
cate in English, and with previous unskilled or no work experience.
Application of this Grid directs a finding of no disability in Camp-
bell's case. If a claimant's impairments fall within the exertional cate-
gories of the Grids, and there are no further restrictions on those
exertional categories by non-exertional factors, the Commissioner's
burden is met under the Grids. See Gory v. Schweiker, 712 F.2d 929,
930 (4th Cir. 1983). Because Campbell suffered from both exertional

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and non-exertional limitations, however, the ALJ used the Grids as
merely a guideline and also considered the testimony of a vocational
expert. See Walker v. Bowen, 889 F.2d 47, 49 (4th Cir. 1989). After
due consideration of all of the factors, the ALJ concluded that Camp-
bell was not disabled.

Campbell argues that the ALJ misapplied the Grids in determining
that she is not disabled, by ignoring 20 C.F.R. pt. 404, subpt. P, app.
2, § 201.00(h), which she claims requires a finding that she is dis-
abled. Specifically, she posits that her situation is so analogous to the
example set forth in Section 201.00(h), the Grids direct a finding of
disability.

The rule against application of the Grids to individuals who suffer
from non-exertional limitations significantly restricting the range of
available work is reflected in the Commissioner's regulations explain-
ing proper application of the Grids. This is the case with regard to
Grid rule 201.24. The rule is qualified by footnote 4, which references
20 C.F.R. pt. 404, subpt. P, app. 2 § 201.00(h).

Section 201.00(h) explains the term "younger individual" as used
in the Grids, and gives examples as to how the Commissioner might
or might not accord weight to a claimant's age in determining
whether work exists that the claimant could perform. We do not agree
with Campbell that § 201.00(h) requires a finding of disabled for an
individual, like Campbell, who has demonstrated the inability to per-
form the full range of sedentary work. Section 201.00(h), on which
Campbell relies, reads in relevant part:

[A] finding of disabled is not precluded for those individuals
under age 45 who do not meet all of the criteria of a specific
rule and who do not have the ability to perform a full range
of sedentary work. The following examples are illustrative:
Example 1: An individual under age 45 with a high school
education can no longer do past work and is restricted to
unskilled sedentary jobs because of a severe medically
determinable cardiovascular impairment (which does not
meet or equal the listings in appendix 1). A permanent
injury of the right hand limits the individual to sedentary
jobs which do not require bilateral manual dexterity. None

5
 of the rules in appendix 2 are applicable to this particular set
of facts, because this individual cannot perform the full
range of work defined as sedentary. Since the inability to
perform jobs requiring bilateral manual dexterity signifi-
cantly compromises the only range of work for which the
individual is otherwise qualified (i.e., sedentary), a finding
of disabled would be appropriate.

Section 20l.00(h) essentially states that the Grids may not be used
to preclude a finding of disabled when a significant non-exertional
impairment exists. Campbell asserts that the example directs a finding
of disabled whenever a claimant's case presents analogous facts. She
argues that the ALJ's factual findings in this case are so similar to
those contained in the example as to require a finding of disability.
We disagree.

First, we note that Campbell does not have all of the impairments
described in the example. Second, the example is intended merely to
illustrate the limited applicability of the Grids and to remove the man-
datory directive of the Grid rule wherever it is not appropriate. The
plain meaning of the text is simply that an ALJ is"not precluded"
from finding disabled those individuals who would fit within rule
201.24 but for their inability to perform the full range of sedentary
work. The example is just an illustration of a situation in which an
ALJ's decision to award benefits would be appropriate, despite the
Grids' contrary directive. We do not agree that any claimant who may
present a factually analogous situation to the example should auto-
matically be considered disabled. See Abbott v. Sullivan, 905 F.2d
918, 927 (6th Cir. 1990); Mitchell v. Chater, 918 F. Supp. 675, 683
(W.D.N.Y. 1995). Because non-exertional impairments vary, the dif-
fering degrees of losses and their effects on the occupational base can
best be analyzed by a vocational expert. See Heggarty v. Sullivan, 947
F.2d 990, 996 (1st Cir. 1991). For this reason, the Grids can only be
used as a framework where there are non-exertional limitations.

We conclude that substantial evidence, based on Campbell's age,
education, and vocational skills in conjunction with the vocational
expert's testimony and the Grids, supports the ALJ's determination
that Campbell is not disabled within the meaning of the Social Secur-
ity Act. Accordingly, we affirm the denial of relief. We dispense with

6
oral argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.

AFFIRMED

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