Simmons v. Chater ( 1997 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 10 1997
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
WILMA J. SIMMONS,
Plaintiff-Appellant,
v.
No. 97-5052
KENNETH S. APFEL, Commissioner, (D.C. No. 95-CV-1242)
Social Security Administration, * (N.D. Okla.)
Defendant-Appellee.
ORDER AND JUDGMENT **
Before BALDOCK, BARRETT, 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. 34.1.9. The case is therefore
ordered submitted without oral argument.
*
Pursuant to Fed. R. App. P. 43(c), Kenneth S. Apfel is substituted for
Shirley S. Chater, Commissioner of Health and Human Services, as the defendant
in this action.
**
This order and judgment is not binding precedent, except under the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.
Claimant Wilma J. Simmons appeals from an order of the magistrate judge 1
affirming the final decision of the Commissioner of Social Security denying her
application for disability and supplemental security income benefits. We review
the Commissioner’s decision to determine whether it is supported by substantial
evidence and whether the correct legal standards were applied. See Washington
v. Shalala, 37 F.3d 1437, 1439 (10th Cir.1994).
This court has reviewed Ms. Simmons’ brief and contentions, 2 as well as
the entire record on appeal. Based on that review, we affirm for substantially the
reasons set forth in the magistrate judge’s well-reasoned order dated January 6,
1997. See Simmons v. Chater, 950 F. Supp. 1501 (N.D. Okla. 1997). We find
only one issue warranting further comment: Ms. Simmons’ contention that,
despite the fact that the ALJ determined she could only perform unskilled work,
the jobs identified by the vocational expert (VE) as ones she could perform are
classified as semi-skilled jobs in the Dictionary of Occupational Titles (DOT).
1
The parties consented to proceed before the magistrate judge pursuant to
28 U.S.C. § 636(c)(1).
2
We note that Ms. Simmons did not present her claims to the Appeals
Council. Nonetheless, the court will not apply a waiver rule in this case because,
at the time she appealed to the Appeals Council, Ms. Simmons did not have notice
of James v. Chater, 96 F.3d 1341, 1344 (10th Cir.1996) (holding “[i]ssues not
brought to the attention of the Appeals Council on administrative review may,
given sufficient notice to the claimant, be deemed waived on subsequent judicial
review.”).
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She maintains that the DOT controls when a VE’s testimony contradicts it, citing
to Campbell v. Bowen, 822 F.2d 1518, 1523 n.3 (10th Cir. 1987).
We agree with the magistrate judge, for substantially the same reasons set
forth in its detailed order, that no direct contradiction between the VE testimony
and the DOT’s rating of skill classifications is present here. In addition to the
reasons given by the magistrate judge, we note that Soc. Sec. Ruling 82-41
indicates the imprecise nature of determining whether a job is unskilled:
Jobs are unskilled when persons can usually learn to do them in 30
days or less. The majority of unskilled jobs are identified in the
[DOT]. It should be self-evident that restaurant dishwashers are
unskilled. It may not be self-evident that other jobs can be learned in
30 days or less, . . .[and i]n these cases, occupational reference
materials or specialists should be consulted. . . . Even though
semiskilled occupations require more than 30 days to learn, the
content of work activities in some semiskilled jobs may be little more
than unskilled.
Soc. Sec. Ruling 82-41, Soc. Sec. Rep. Serv., Rulings 1975-1982, 849-50
(emphasis supplied). Moreover, 20 C.F.R. § 404.1566(e) specifically contemplates
the use of vocational experts in determining complex issues such as the matching
of a claimant’s work skills with available occupations. Further, the DOT cautions
that occupational information provided only “reflects jobs as they have been
found to occur, but they may not coincide in every respect with the content of
jobs as performed in particular establishments or at certain localities.” DOT, Vol.
I, at xiii (4th ed. 1991). We also note, as did the magistrate judge, see Simmons,
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950 F. Supp. at 1508, that the VE testified Ms. Simmons would be able to
perform a third job, “escort driver,” which Ms. Simmons does not claim to be
inconsistent with the DOT. Because we hold there was no direct conflict between
the VE’s testimony in this case and the DOT, we do not reach the question of
whether the DOT creates a rebuttable presumption as to job classifications.
The judgment of the United States District Court for the Northern District
of Oklahoma is AFFIRMED substantially for the reasons set forth in its order
dated January 6, 1997.
Entered for the Court
Michael R. Murphy
Circuit Judge
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