Bridgeman v. Chater ( 1997 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 10 1997
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
JIMMY BRIDGEMAN,
Plaintiff-Appellant,
v. No. 96-7047
(D.C. No. CV-95-194-S)
SHIRLEY S. CHATER, (E.D. Okla.)
Commissioner, Social Security
Administration, *
Defendant-Appellee.
ORDER AND JUDGMENT **
Before EBEL and HENRY, Circuit Judges, and DOWNES, *** District Judge.
*
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), Shirley S.
Chater, Commissioner of Social Security, is substituted for Donna E. Shalala,
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This order and judgment is not binding precedent, except under the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.
***
Honorable William F. Downes, District Judge, United States District Court
for the District of Wyoming, sitting by designation.
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) and 10th Cir. R. 34.1.9. The case is
therefore ordered submitted without oral argument.
Claimant Jimmy Bridgeman appeals the district court’s affirmance of the
decision by the Secretary of Health and Human Services denying his application
for supplemental security income (SSI) benefits. Because the Secretary’s decision
that claimant can perform his previous work is not supported by substantial
evidence, we reverse and remand the case for further proceedings.
Claimant applied for SSI benefits in November 1992, alleging an inability
to work due to diabetes, hemorrhoids, back pain, removal of a portion of his
stomach and pancreas, ulcers, and problems with stress. After a hearing, the
administrative law judge (ALJ) found that claimant could perform his former
work as a light delivery truck driver despite his impairments. The Appeals
Council denied review, making the ALJ’s decision the final decision of the
Secretary. The district court affirmed, and this appeal followed.
We review the Secretary’s decision to determine whether her factual
findings are supported by substantial evidence and whether correct legal standards
were applied. Castellano v. Secretary of Health & Human Servs., 26 F.3d 1027,
1028 (10th Cir. 1994). Substantial evidence is “such relevant evidence as a
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reasonable mind might accept as adequate to support a conclusion.” Id.(quotations and citations omitted). We may “neither reweigh the evidence nor
substitute our judgment” for that of the Secretary. Casias v. Secretary of Health
& Human Servs., 933 F.2d 799, 800 (10th Cir. 1991).
On appeal, claimant argues that (1) the Secretary’s findings regarding the
severity of his mental impairment are not supported by substantial evidence;
(2) the ALJ failed to develop the record regarding the mental demands of
claimant’s past work and his ability to perform that work despite his mental
impairment; and (3) the ALJ failed to discuss the evidence he considered in filling
out the Psychiatric Review Technique form. We do not address claimant’s third
argument as it was not raised in the district court. 1 See Crow v. Shalala, 40 F.3d
323, 324 (10th Cir. 1994).
After reviewing the record, we conclude that substantial evidence supports
the Secretary’s finding that claimant’s mental impairment limited his functional
abilities only slightly to moderately, with no episodes of deterioration or
decompensation at work, and that claimant could perform light work not requiring
1
The Secretary argues that claimant’s second issue, regarding the mental
requirements of his past work, also was not raised in the district court. See
Appellee’s Br. at 6. This is not correct, however, as claimant specifically raised
in his objections to the magistrate judge’s report and recommendation the issue
whether the ALJ “made a flawed step IV analysis by failing to make required
specific findings concerning his past relevant work.” R. I at 15.
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the toleration of high stress. Other than claimant’s testimony, which the ALJ
found incredible, there is no evidence that claimant’s mental impairments
significantly restricted his ability to perform all types of work. Although claimant
testified that he worked only two days at his one former job, R. II at 298-99, and
somewhat inconsistently, that he quit several jobs which became too stressful
after a few days, id. at 294, his earnings records show a fairly consistent work
history between his return from Vietnam in 1969 and his last recorded
employment in 1981, id. at 62. 2
The case must be remanded, however, because the record does not contain
evidence to support the ALJ’s conclusion that claimant can return to his former
work as a light delivery driver despite his inability to tolerate high stress. In
Henrie v. United States Department of Health & Human Services., 13 F.3d 359(10th Cir. 1993), we held that the ALJ must develop the record and make express
findings regarding “1) the individual’s residual functional capacity, 2) the
physical and mental demands of prior jobs or occupations, and 3) the ability of
the individual to return to the past occupation given his or her residual functional
capacity.” Id. at 361; see S.S.R. 82-62, Soc.Sec.Rep. 809, 812 (West 1983).
Here, the record contains no evidence regarding the mental demands of claimant’s
2
We note that during most of these years, claimant’s earnings were above
the amounts considered to be “substantial gainful employment,” see 20 C.F.R.
§ 416.974(b)(2), with earnings as high as approximately $11,800, see R. II at 62.
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former occupation or his ability to return to that occupation given his inability to
tolerate high stress. The case, therefore, must be remanded for further factual
development on these issues. See Henrie, 13 F.3d at 361.
The judgment of the United States District Court for the Eastern District of
Oklahoma is REVERSED, and the case is REMANDED to the court with
directions to REMAND to the Commissioner of Social Security for further
proceedings consistent with this order and judgment.
Entered for the Court
William F. Downes
District Judge
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