Rhodes v. Barnhart , 117 F. App'x 622 ( 2004 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
SEP 7 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
JERRY RHODES,
Plaintiff-Appellant,
v. No. 03-7125
(D.C. No. 03-CV-113-W)
JO ANNE B. BARNHART, (E.D. Okla.)
Commissioner, Social Security
Administration,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before HARTZ , McKAY , and PORFILIO , 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This order and judgment is not binding precedent, except under the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-appellant Jerry Rhodes appeals from an order of the district court
affirming the Social Security Administration’s decision denying his application
for disability insurance benefits. We exercise jurisdiction under 42 U.S.C.
§ 405(g) and 28 U.S.C. § 1291. We affirm in part, reverse in part, and remand
this matter to the Commissioner for further proceedings.
Plaintiff claims that he has been unable to work since October 14, 2000 due
to lung problems and back pain. After his application for disability benefits was
denied initially and on reconsideration, a de novo hearing was held before an
administrative law judge (ALJ). Subsequently, in a decision dated March 27,
2002, the ALJ denied plaintiff’s application for disability benefits, concluding
that plaintiff was not disabled because: (1) although he suffered from severe
impairments in the form of chronic obstructive pulmonary disease and
osteoarthritis which prevented him from performing his past relevant work as a
heavy equipment operator and pipeline foreman, he retained the residual
functional capacity (RFC) to perform sedentary work; and (2) based on the
testimony of the vocational expert at the hearing before the ALJ, he was capable
of performing other jobs that existed in significant numbers in the national
economy.
In January 2003, the Appeals Council denied plaintiff’s request for review
of the ALJ’s decision. Plaintiff then filed a complaint in the district court. After
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the parties consented to having a magistrate judge decide the case, a magistrate
judge entered an order affirming the ALJ’s decision denying plaintiff’s
application for disability benefits. This appeal followed.
Because the Appeals Council denied review, the ALJ’s decision is the
Commissioner’s final decision for purposes of this appeal. See Doyal v.
Barnhart , 331 F.3d 758, 759 (10th Cir. 2003). In reviewing the ALJ’s decision,
“we neither reweigh the evidence nor substitute our judgment for that of the
agency.” Casias v. Sec’y of Health & Human Servs. , 933 F.2d 799, 800 (10th Cir.
1991). Instead, we review the ALJ’s decision only to determine whether the
correct legal standards were applied and whether the ALJ’s factual findings are
supported by substantial evidence in the record. Doyal , 331 F.3d at 760.
“Substantial evidence is such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Id. (quotation omitted). “A decision is not
based on substantial evidence if it is overwhelmed by other evidence in the record
or if there is a mere scintilla of evidence supporting it.” Bernal v. Bowen , 851
F.2d 297, 299 (10th Cir. 1988).
In this appeal, plaintiff claims the ALJ’s decision denying his application
for disability benefits must be reversed because: (1) there is new and material
evidence that should be included in the administrative record; (2) the ALJ’s
decision that plaintiff was not credible was not supported by substantial evidence
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in the record; (3) the ALJ’s RFC determination was not supported by substantial
evidence in the record; and (4) the ALJ’s conclusion that plaintiff can perform
other jobs that exist in significant numbers in the national economy was not
supported by substantial evidence in the record. Having carefully reviewed the
record and the pertinent legal authorities, we conclude that plaintiff’s first three
arguments are without merit. We agree with plaintiff, however, that the ALJ
committed reversible error by failing to properly analyze the issue of whether
plaintiff could perform other jobs that exist in significant numbers in the national
economy.
A. New Evidence.
Plaintiff submitted new evidence to the district court that was not available
at the time of the administrative hearing before the ALJ. The evidence consisted
of: (1) medical records from the Sparks Regional Medical Center in Fort Smith,
Arkansas, documenting treatment that plaintiff received at the center in October
2002, see Aplt. Br., Att. B; and (2) a “Rating Decision” from the United States
Department of Veterans Affairs dated May 22, 2003 and a related letter to
plaintiff from the Department dated June 5, 2003, id. , Att. C. Relying on 42
U.S.C. § 405(g), plaintiff argued that, in light of this new evidence, the district
court was required to remand this matter to the Commissioner for a new disability
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determination. The district court denied plaintiff’s request for a remand, and we
agree with the district court that a remand is not appropriate.
Section 405(g) provides as follows:
The [district] court may . . . at any time order additional evidence to
be taken before the Commissioner of Social Security, but only upon a
showing that there is new evidence which is material and that there is
good cause for the failure to incorporate such evidence into the
record in a prior proceeding. . . .
42 U.S.C. § 405(g). “In order to find a remand appropriate, we normally must
determine that the new evidence would have changed the [Commissioner’s]
decision had it been before [her].” Hargis v. Sullivan , 945 F.2d 1482, 1493 (10th
Cir. 1991). “Implicit in this requirement is that the proffered evidence relate to
the time period for which the benefits were denied.” Id. Thus, it is well
established that a remand will not be granted under § 405(g) if the new evidence
shows only a “subsequent deterioration of the previously nondisabling condition.”
Szubak v. Sec’y of Health & Human Servs. , 745 F.2d 831, 833 (3d Cir. 1984);
accord Jones v. Callahan , 122 F.3d 1148, 1154 (8th Cir. 1997); Sizemore v. Sec’y
of Health & Human Servs. , 865 F.2d 709, 712 (6th Cir. 1988); Bradley v. Bowen ,
809 F.2d 1054, 1058 (5th Cir. 1987); Godsey v. Bowen , 832 F.2d 443, 444-45 (7th
Cir. 1987). In such cases, “the appropriate remedy [is] to initiate a new claim for
benefits as of the date that the condition aggravated to the point of constituting a
disabling impairment.” Sizemore , 865 F.2d at 712.
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The district court denied plaintiff’s request for a remand, concluding that a
remand “is not required as the additional evidence presented by [plaintiff] would
not have resulted in a different decision by the ALJ.” Aplt. App. at 35. Although
we agree with the district court that plaintiff did not meet his burden of showing
that a remand is proper, see Sizemore , 865 F.2d at 711 (“[T]he party seeking
remand bears the burden of showing that a remand is proper under Section 405.”)
(quotation omitted), we do not reach the issue of whether the additional evidence
presented by plaintiff would have resulted in a different decision by the ALJ.
Instead, we affirm the district court on alternative grounds. 1
1
There is a split of authority among the circuits concerning the standard of
review to be used in reviewing a decision of a district court regarding a request
for a new evidence remand under § 405(g). Compare Vega v. Comm’r of Social
Security , 265 F.3d 1214, 1218 (11th Cir. 2001) (conducting de novo review), and
Johnson v. Apfel , 191 F.3d 770, 776 (7th Cir. 1999) (same), with Wainwright v.
Sec’y of Health & Human Servs. , 939 F.2d 680, 682 (9th Cir. 1991) (conducting
abuse of discretion review). Although this court has addressed the standard of
review in an unpublished order and judgment, see Henderson v. Dep’t of Health &
Human Servs. , No. 93-6264, 1994 WL 18076, at **1-**2 (10th Cir. Jan. 24, 1994)
(following Wainwright and conducting abuse of discretion review), we have not
definitively resolved the issue in a published decision. The question of what
standard of review to apply does not prevent us from affirming the district court
on alternative grounds, however, because, even if the abuse of discretion standard
of review applies, we conclude as a matter of law that it would have been an
abuse of discretion for the district court to grant a remand in this case. See Ashby
v. McKenna , 331 F.3d 1148, 1151 (10th Cir. 2003) (holding that “with respect to
a matter committed to the district court’s discretion, we cannot invoke an
alternative basis to affirm unless we can say as a matter of law that it would have
been an abuse of discretion for the trial court to rule otherwise”) (quotation
omitted).
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First, as noted above, the medical records from the Sparks Regional
Medical Center document treatment that plaintiff received at the center in October
2002, and plaintiff’s counsel claims that he did not receive these records until
after the Appeals Council denied plaintiff’s request for review in January 2003.
See Aplt. Br. at 15. Counsel has offered no explanation, however, as to why the
records could not have been obtained and submitted to the Appeals Council
between October 2002 and January 2003. Consequently, counsel has not
established good cause for the failure to submit the records to the Appeals
Council, and plaintiff is therefore not entitled to a remand based on the Sparks
Regional Medical Center records. See Cummings v. Sullivan , 950 F.2d 492, 500
(7th Cir. 1991) (stating that § 405(g) “require[s] good cause for a failure to
submit new evidence to the ALJ and the Appeals Council”).
Second, even if plaintiff could establish good cause for the failure to
submit the Sparks Regional Medical Center records to the Appeals Council, we
conclude that the records do not relate to the relevant time period before the ALJ
issued his decision in March 2002. Instead, the records show only a subsequent
deterioration of plaintiff’s back impairment.
Specifically, the medical records in the administrative record show that
plaintiff was initially diagnosed in September 2001 as suffering from an acute
myofascial strain in the lumbar spine. See A.R. at 166. In addition, X-ray and
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computerized tomographic imaging studies performed in September 2001 showed
that plaintiff had what appeared to be old compression fractures of the first and
fifth lumbar vertebral bodies. Id. at 171-72. The Sparks Regional Medical Center
records show, however, that plaintiff was subsequently diagnosed in
October 2002 -- six months after the ALJ issued his decision -- as suffering from
“L5 radicular pain right side secondary to vertebral compression fracture.” Aplt.
Br., Att. B at 5. This is the first reference in plaintiff’s medical records to a
radicular syndrome of pain, 2
and there is no indication in the administrative
record that plaintiff was suffering from this condition prior to March 2002.
Accordingly, we hold, as a matter of law, that the Sparks Regional Medical
Center records show only a subsequent deterioration of plaintiff’s back
impairment. As a result, the records do not relate to the time period for which
benefits were denied, and they cannot provide a proper basis for a remand under
§ 405(g). See Szubak , 745 F.2d at 833.
Finally, the “Rating Decision” from the United States Department of
Veterans Affairs dated May 22, 2003 and the related letter to plaintiff from the
Department dated June 5, 2003 suffer from the same defect. See Aplt. Br., Att. C.
2
“Radiculopathy” is a “[d]isorder of the spinal nerve roots.” Stedman’s
Medical Dictionary at 1484 (26th ed. 1995); see also The Merck Manual , § 14
at 1488 (17th ed. 1999) (“Nerve root dysfunction, which is usually secondary to
chronic pressure or invasion of the root, causes a characteristic radicular
syndrome of pain and segmental neurologic deficit.”).
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These documents show that plaintiff was diagnosed by the Department in May
2003 as suffering from “[r]adiculopathy, right [and left] lower extremity,” and the
Department determined that the radiculopathy was related to plaintiff’s previously
determined “service-connected disability of lumbosacral strain, complicated by
osteoporosis and compression fracture of L1, L3 and L5.” 3
Id. at 6, 7-8. Based
on this diagnosis, the Department increased plaintiff’s overall or combined
service connected disability rating for his back impairment to 60%, and plaintiff
was “granted entitlement to the 100% [disability] rate effective March 11, 2003,
because [he is] unable to work due to [his] service connected
disability/disabilities.” Id. at 2. Importantly, these documents also state that
October 3, 2002 was the first date when the medical evidence showed that
plaintiff had signs of radiculopathy, and this statement is based on the
information contained in the above-referenced medical records from the Sparks
Regional Medical Center, which were part of the evidence considered by the
Department. Id. at 6-8. Thus, like the Sparks Regional Medical Center records,
3
Although it is unclear when the Department of Veterans Affairs first
diagnosed plaintiff as suffering from a lumbosacral strain as a result of his
military service, we note that plaintiff’s counsel has submitted documentation to
this court showing that the Department increased plaintiff’s disability rating for
his lumbosacral strain from ten to forty percent in November 2001. See Aplt. Br.,
Att. A. However, because plaintiff’s counsel did not submit the November 2001
rating decision to either the ALJ or the Appeals Council, the decision is not part
of the administrative record, and it is therefore not properly before this court.
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the documents from the Department of Veterans Affairs also show only a
subsequent deterioration of plaintiff’s back impairment, and they cannot form the
basis for a remand under § 405(g).
B. Credibility Determination.
The ALJ found that plaintiff retained the RFC to perform sedentary work.
Specifically, the ALJ found that plaintiff had the capacity “to lift and/or carry ten
pounds maximum, stand and/or walk about two hours out of an eight hour
workday, and sit about six hours out of an eight hour workday.” A.R. at 17.
Plaintiff disputes the ALJ’s RFC determination, claiming that he cannot perform
the sedentary work described by the ALJ due to the limitations caused by his lung
problems and back pain. The ALJ found that plaintiff’s allegations regarding the
limitations caused by his lung problems and back pain were not supported by the
medical evidence or credible to the extent alleged. Id. at 20-21.
“Credibility determinations are peculiarly the province of the finder of fact,
and we will not upset such determinations when supported by substantial
evidence.” Kepler v. Chater , 68 F.3d 387, 391 (10th Cir. 1995) (quotation
omitted). “However, [f]indings as to credibility should be closely and
affirmatively linked to substantial evidence and not just a conclusion in the guise
of findings.” Id. (quotation omitted). Further, according to Social Security
Ruling 96-7p, 1996 WL 374186, at *2 (July 2, 1996):
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The regulations describe a two-step process for evaluating
symptoms, such as pain, fatigue, shortness of breath, weakness, or
nervousness:
First, the adjudicator must consider whether there is an
underlying medically determinable physical . . . impairment[] . . . that
could reasonably be expected to produce the individual’s pain or
other symptoms. . . .
Second, once an underlying physical . . . impairment[] that
could reasonably be expected to produce the individual’s pain or
other symptoms has been shown, the adjudicator must evaluate the
intensity, persistence, and limiting effects of the individual’s
symptoms to determine the extent to which the symptoms limit the
individual’s ability to do basic work activities. For this purpose,
whenever the individual’s statements about the intensity, persistence,
or functionally limiting effects of pain or other symptoms are not
substantiated by objective medical evidence, the adjudicator must
make a finding on the credibility of the individual’s statements based
on a consideration of the entire case record. This includes the
medical signs and laboratory findings, the individual’s own
statements about the symptoms, any statements and other information
provided by treating or examining physicians . . . and other persons
about the symptoms and how they affect the individual, and any other
relevant evidence in the case record.
In this case, there is objective medical evidence in the administrative record
establishing that plaintiff has pain-producing back impairments (myofascial strain
and compression fractures) and a lung impairment (chronic obstructive pulmonary
disease) that is capable of producing shortness of breath and other breathing
difficulties. Consequently, the ALJ was required to consider plaintiff’s subjective
complaints of severe pain and breathing limitations and “decide whether he
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believe[d them].” Thompson v. Sullivan , 987 F.2d 1482, 1489 (10th Cir. 1993)
(quotation omitted).
The ALJ found that plaintiff’s allegations of disabling pain and breathing
limitations were not credible because: (1) with respect to his allegations of pain,
“[t]he objective evidence indicates that . . . he has exhibited relatively moderate
symptoms[, and]. . . . [t]he record fails to demonstrate the presence of any
pathological clinical signs, significant medical findings, or any neurological
abnormalities which would establish the existence of a pattern of pain of such
severity as to prevent the claimant from engaging in any work on a sustained
basis”; (2) “[t]he claimant has received essentially conservative treatment;” (3)
“[t]here is no medical evidence of any physician finding that claimant has had
persistent and adverse side effects due to any prescribed medication”; (4)
“[a]lthough the claimant stated that he was fairly restricted in his ability to sit,
stand, walk, and lift, it does not appear that he has made similar complaints to his
physicians”; (5) “claimant has not reported precipitating and aggravating
conditions to his physicians”; and (6) “[t]he claimant’s statements concerning his
impairments and their impact on his ability to work are not entirely credible in
light of the claimant’s own description of his activities and life style, the
conservative nature and the infrequency of medical treatment required, the reports
of the treating and examining physicians, the medical history, the findings made
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on examination, and, most importantly, the claimant’s demeanor at hearing and
the marked discrepancies between his allegations and the information contained in
the documentary reports.” A.R. at 21.
Although some of the ALJ’s findings come close to transgressing our
decisions prohibiting the use of boilerplate language to support credibility
determinations, see, e.g., Hardman v. Barnhart , 362 F.3d 676, 678-79 (10th Cir.
2004), we find reasonable the basic thrust of the ALJ’s analysis, which is that
plaintiff did not have a sufficient treatment history with respect to either his lung
or back problems to support his claim that he cannot perform sedentary work.
Thus, we conclude that the ALJ’s credibility determination is supported by
substantial evidence in the record.
C. RFC Determination.
Plaintiff asserts that the ALJ’s RFC determination is not supported by
substantial evidence in the record because: (1) the ALJ failed to take into
consideration the severe impairments related to: (a) the partial removal of
plaintiff’s right lung in 1996; and (b) the compression fractures in plaintiff’s
lumbar spine that were discovered in September 2001; and (2) the ALJ improperly
rejected the opinion of Dr. Cheek, one of plaintiff’s treating physicians. We
conclude that plaintiff’s arguments are without merit.
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First, with respect to the upper lobectomy of plaintiff’s right lung that was
performed in 1996, the ALJ summarized the pertinent medical records relating to
the operation in his decision. See A.R. at 17-18. The ALJ’s decision also
indicates that he reviewed all of the medical records pertaining to plaintiff’s lung
problems and took into account all of the limitations related thereto. Id. at 18.
Further, the record indicates that the ALJ considered the medical records from
September 2001 showing that plaintiff was diagnosed as suffering from an acute
myofascial strain and compression fractures in the lumbar spine. Id. at 18-19.
We therefore reject plaintiff’s argument that the ALJ failed to consider all of his
lung and back impairments.
Second, Dr. Cheek, who is apparently an osteopath, filled out a “Physical
Residual Functional Capacity Evaluation” form for plaintiff, see A.R. at 163-65,
and we will assume for purposes of this appeal that Dr. Cheek is one of plaintiff’s
treating physicians. In the evaluation form, Dr. Cheek evaluated plaintiff’s back
impairment, and he concluded that plaintiff could sit only for a total of four hours
in an eight-hour workday. Id. at 163. If this is accurate, plaintiff is incapable of
performing sedentary work. See Social Security Ruling 96-9p, 1996 WL 374185,
at *3, *6 (July 2, 1996) (stating that sedentary work generally requires sitting for
a total of six hours in an eight-hour workday).
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In deciding how much weight to give the opinion of a treating physician, an
ALJ must first determine whether the opinion is entitled to “controlling weight.”
Watkins v. Barnhart , 350 F.3d 1297, 1300 (10th Cir. 2003). An ALJ is required
to give the opinion of a treating physician controlling weight if it is both:
(1) “well-supported by medically acceptable clinical and laboratory diagnostic
techniques;” and (2) “consistent with other substantial evidence in the record.”
Id. (quotation omitted). “[I]f the opinion is deficient in either of these respects,
then it is not entitled to controlling weight.” Id.Even if a treating physician’s opinion is not entitled to controlling weight,
“[t]reating source medical opinions are still entitled to deference and must be
weighed using all of the factors provided in 20 C.F.R. § 404.1527.” Id.(quotation omitted). Those factors are:
(1) the length of the treatment relationship and the frequency of
examination; (2) the nature and extent of the treatment relationship,
including the treatment provided and the kind of examination or
testing performed; (3) the degree to which the physician’s opinion is
supported by relevant evidence; (4) consistency between the opinion
and the record as a whole; (5) whether or not the physician is a
specialist in the area upon which an opinion is rendered; and
(6) other factors brought to the ALJ’s attention which tend to support
or contradict the opinion.
Id. at 1301 (quotation omitted). After considering these factors, “the ALJ must
give good reasons in [the] . . . decision for the weight he ultimately assigns the
opinion.” Id. (quotation omitted). “Finally, if the ALJ rejects the opinion
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completely, he must then give specific, legitimate reasons for doing so.” Id.(quotations omitted)
In his decision, the ALJ concluded that Dr. Cheek’s opinion was “entitled
to little weight.” A.R. at 19. The conclusion was reasonable. To begin with, in
response to the question on the evaluation form concerning the objective medical
findings that support his RFC assessment, Dr. Cheek responded with only two
objective medical findings: (1) decreased range of motion tests; and (2) positive
straight leg raising tests. Id. at 165. While these are acceptable clinical
techniques for evaluating a back impairment, they are insufficient, standing alone,
to support a conclusion that plaintiff is incapable of performing sedentary work.
Further, we find reasonable the following assessment of the ALJ regarding Dr.
Cheek’s opinion:
I find his account of claimant’s limitations not to be a genuine
medical assessment of discrete functional limitations based upon
clinically established pathologies. . . . He did not refer to reports of
individual providers, hospitals, or clinics, and he did not indicate on
what basis, if any, his treatment of the claimant would support his
conclusions. His assessment is clearly based on the claimant’s
subjective complaints, which I do not find to be fully credible.
Id. at 19.
In sum, we conclude that the ALJ performed a proper treating physician
analysis, and that he did not err in rejecting the opinion of Dr. Cheek.
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D. Ability to Perform Other Jobs.
Plaintiff’s challenge to the ALJ’s finding that he is capable of performing
other jobs that exist in significant numbers in the national economy is based on
two arguments. First, plaintiff claims the hypothetical question posed by the ALJ
to the vocational expert (VE) at the hearing before the ALJ was deficient because
it was based on the ALJ’s incomplete RFC assessment. Second, plaintiff claims
the ALJ erred by failing to analyze the necessary factors for evaluating the
numerical-significance requirement. 4
As set forth above, we do not agree with
plaintiff’s assertion that the ALJ performed an incomplete RFC assessment.
Consequently, we reject plaintiff’s challenge to the hypothetical question that the
ALJ posed to the VE. We agree with plaintiff, however, that the ALJ failed to
properly analyze the numerical-significance requirement.
According to the governing regulations:
[I]f your residual functional capacity is not enough to enable you to
do any of your previous work, we must still decide if you can do
other work. To do this, we consider your residual functional
capacity, . . . age, education, and work experience. Any work (jobs)
that you can do must exist in significant numbers in the national
4
In his opening brief, plaintiff also asserts that there is “an apparently
unresolved issue about the transferability of Plaintiff’s skills.” Aplt. Br. at 26.
This issue is not properly before this court, as plaintiff waived it by failing to
raise it during the district court proceedings. See Crow v. Shalala , 40 F.3d 323,
324 (10th Cir. 1994) (“Absent compelling reasons, we do not consider arguments
that were not presented to the district court”).
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economy (either in the region where you live or in several regions of
the country).
20 C.F.R. § 404.1561 (2001). The regulations further provide as follows:
[W]ork exists in the national economy when it exists in significant
numbers either in the region where you live or in several other
regions of the country. It does not matter whether – (1) Work exists
in the immediate area where you live; (2) A specific job vacancy
exists for you; or (3) You would be hired if you applied for work.
20 C.F.R. § 404.1566(a) (2001).
“This Circuit has never drawn a bright line establishing the number of jobs
necessary to constitute a ‘significant number.’” Trimiar v. Sullivan , 966 F.2d
1326, 1330 (10th Cir. 1992). “Our reluctance stems from our belief that each
case should be evaluated on its individual merits.” Id. Nonetheless, we have
noted that several factors go into the proper evaluation of the issue:
A judge should consider many criteria in determining whether work
exists in significant numbers, some of which might include: the level
of claimant’s disability; the reliability of the vocational expert’s
testimony; the distance claimant is capable of traveling to engage in
the assigned work; the isolated nature of the jobs; the types and
availability of such work, and so on.
Id. (quoting Jenkins v. Bowen , 861 F.2d 1083, 1087 (8th Cir. 1988)). On the
other hand, we have also emphasized that “[t]he decision should ultimately be left
to the [ALJ’s] common sense in weighing the statutory language as applied to a
particular claimant’s factual situation.” Id.-18-
During the hearing before ALJ, the VE testified that plaintiff has skills
from his past work as a heavy equipment operator and pipeline foreman that are
transferrable to “sedentary supervisor jobs,” and the VE testified that there are
150 such jobs in Oklahoma and 14,000 such jobs nationally. See A.R. at 217-19.
The VE further testified, however, that these jobs are “not in significant numbers”
in the State of Oklahoma. Id. at 218. At the hearing, the ALJ also stated on the
record that these jobs may not exist in significant numbers:
ALJ: But the real question may be that the number of jobs . . .
- - not whether he can get the job, but there must be enough jobs that
he would have a fair opportunity to work in those. 150 total in the
state of Oklahoma . . . is getting way down there. I -- it just may not
be a significant number. So -- well, that’s all I’ll say about it.
....
ALJ: So if he could sit -- sitting 45 minutes at a time, six
hours out of the eight -- well, I’ll tell you what. There’s no need
trying to beat this horse to death. I just think there’s just not enough
jobs here to say - -
ATTY [for plaintiff]: I agree with you, Your Honor.
ALJ: And theoretically, he may have some skills, you know,
in the pipeline construction industry that might transfer to some of
these jobs, but 150 jobs in the state of Oklahoma is just not a
significant number.
ATTY [for plaintiff]: Thank you, Judge.
ALJ: Okay. Mr. Rhodes, I think your attorney can explain to
you the significance of the vocational testimony we’ve heard here
and I’ll get a Decision out as soon as I can.
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Id. at 226-27.
Despite his statements on the record during the hearing, the ALJ
subsequently concluded in his decision, without any analysis or discussion of the
factors set forth in Trimiar , that 150 jobs in the State of Oklahoma and 14,000
jobs nationally are a significant number of jobs in the economy. Id. at 22.
However, because the ALJ failed to evaluate the Trimiar factors and make
specific factual findings regarding the numerical-significance requirement, we
cannot properly review this issue. As we recently emphasized:
Trimiar’s insistence on an antecedent exercise of judgment by the
ALJ is not novel. On the contrary, it is consistent with, if not
compelled by, our broader recognition that as a court acting within
the confines of its administrative review authority, we are
empowered only to review the ALJ’s decision for substantial
evidence and . . . we are not in a position to draw factual conclusions
on behalf of the ALJ.
Allen v. Barnhart , 357 F.3d 1140, 1144 (10th Cir. 2004) (quotations omitted).
Accordingly, without expressing any opinion concerning the merits of the issue,
we remand this matter to the Commissioner for a redetermination of the issue of
whether the VE identified a sufficient number of jobs to satisfy the
numerical-significance requirement.
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The order of the district court is AFFIRMED in part and REVERSED in
part, and this matter is REMANDED to the district court with instructions to
remand, in turn, to the Commissioner for further proceedings consistent with this
order and judgment.
Entered for the Court
John C. Porfilio
Circuit Judge
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