F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 28 1999
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
LEONARD E. BURLAND,
Plaintiff-Appellant,
v. No. 98-7113
(D.C. No. CV-97-300-S)
KENNETH S. APFEL, Commissioner, (E.D. Okla.)
Social Security Administration,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before PORFILIO , BARRETT , and HENRY , 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This order and judgment is not binding precedent, except under the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 Leonard E. Burland appeals from the denial of social security
disability and supplemental security income benefits. He argues that: (1) the
findings of the administrative law judge (ALJ) concerning his residual functional
capacity (RFC) are inconsistent with the ALJ’s discussion of the evidence, are
insufficiently specific to permit review, and are not based on a proper
consideration of the evidence of his mental impairment; (2) the ALJ failed to use
the medical-vocational guidelines (the “grids”) as a framework for
decisionmaking at step five; (3) the ALJ’s step-five findings were based on
vocational testimony elicited by an improper hypothetical; and (4) the district
court failed to address the actual issues raised.
Plaintiff was born on November 8, 1948, and has a seventh-grade
education. His insured status expired on June 30, 1996, when he was forty-seven
years old. His past jobs included unskilled sedentary, light, and heavy jobs of:
oil field laborer, janitor, and security guard. He alleges that he became disabled
on July 15, 1991, due to the residuals of diabetes, arthritis, a leg fracture, high
blood pressure, and anxiety.
The ALJ decided the claim alternatively at steps four and five of the
evaluation sequence. See generally Williams v. Bowen , 844 F.2d 748, 750-52
(10th Cir. 1988) (discussing the five steps). At step four, he found that plaintiff
was capable only of sedentary work with a sit/stand option, and therefore could
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not return to his past, heavy work as an oil field laborer. He decided that plaintiff
could return to his past work as a security guard, however, as it is performed at
the sedentary level. In addition, the ALJ determined at step five that there are
numerous other jobs that plaintiff can perform with the limitations the ALJ found
him to have. The Appeals Council denied review, making the ALJ’s decision the
final agency decision. Plaintiff then filed this suit. In the district court, the
government conceded that plaintiff’s work as a security guard was too far in the
past to be relevant to these proceedings. Based on the recommendation of the
magistrate judge, the district court affirmed the ALJ’s finding of nondisability at
step five.
We have jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291. We
review the agency’s decision on the whole record to determine only whether the
factual findings are supported by substantial evidence and the correct legal
standards were applied. See Goatcher v. United States Dep’t of Health & Human
Servs. , 52 F.3d 288, 289 (10th Cir. 1995). We may not reweigh the evidence or
substitute our judgment for that of the agency. See Kelley v. Chater , 62 F.3d 335,
337 (10th Cir. 1995).
Because the government conceded that the ALJ erred at step four, plaintiff
challenges only the ALJ’s step-five determination in this appeal. He first argues
that the ALJ’s findings concerning his RFC are inconsistent with the ALJ’s
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discussion of the evidence, are insufficiently specific to permit review, and are
not based on a proper consideration of the evidence of his mental impairment.
We agree that the ALJ’s finding that plaintiff is capable of lifting twenty
pounds, see Appellant’s App., Vol. II at 17, 18 (finding 5), is somewhat
inconsistent with the finding that plaintiff is limited to sedentary work, see id.
at 17, which requires lifting no more than ten pounds, see 20 C.F.R.
§§ 404.1567(a), 416.967(a). However, if plaintiff can lift twenty pounds, he can
manage the lifting requirements of sedentary work, and the ALJ was otherwise
consistent in his view that plaintiff is capable only of sedentary work. The ALJ’s
decision is sufficiently specific to be reviewable on this basis. Moreover, the
ALJ’s finding that plaintiff’s anxiety is not a significant nonexertional
impairment is supported by substantial evidence. Although the ALJ might have
been more careful in articulating his decision, we find no reversible error on these
points.
Next, plaintiff argues that the ALJ improperly failed to use § 201.00(h) in
the grids, 20 C.F.R. pt. 404, subpt. P, app. 2, as a framework for decisionmaking
at step five. This argument is plainly without merit. Section 201.00(h) states that
a claimant who is a younger individual as defined in the regulations, who is
restricted to unskilled, sedentary work, who cannot return to his past relevant
work, and who is illiterate or unable to communicate in English, is presumptively
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disabled. Because there is no evidence that plaintiff is illiterate or unable to
communicate in English, however, § 201.00(h) has absolutely no application to
plaintiff’s claim. Rather, Rule 201.18 of the grids provides a framework for a
decision that plaintiff is not disabled.
Third, plaintiff argues that the ALJ’s step-five findings were based on
vocational testimony elicited by an improper hypothetical. Although it is true that
the ALJ failed to include plaintiff’s need to alternate sitting and standing in his
hypothetical questions, plaintiff’s counsel made up for this failing. Further,
plaintiff’s counsel used plaintiff’s own testimony as to his ability to sit and stand
in his hypothetical question. There is no reason to believe that the ALJ would
have found plaintiff to be more restricted than he testified he was, so there is no
reason to remand for the ALJ to make a specific finding on this point. The
vocational expert testified in response to plaintiff’s counsel’s hypothetical
question that an individual could perform thirty different jobs with the sitting and
standing restrictions plaintiff’s counsel presented. The vocational testimony
therefore supports the ALJ’s finding at step five that plaintiff is not disabled.
Finally, plaintiff argues that the district court failed to address the actual
issues raised. For the reasons explained above, this argument is without merit.
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The judgment of the United States District Court for the Eastern District of
Oklahoma is AFFIRMED.
Entered for the Court
James E. Barrett
Senior Circuit Judge
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