Lambert v. Chater ( 1996 )

PUBLISH
UNITED STATES COURT OF APPEALS
Filed 9/19/96
TENTH CIRCUIT
ALJEWELL LAMBERT,
Plaintiff-Appellant,
v. No. 96-6024
SHIRLEY S. CHATER, Commissioner
of Social Security, *
Defendant-Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. No. CIV-94-807-L)
Submitted on the briefs:
Paul F. McTighe, Jr., and Gayle L. Troutman, Tulsa, Oklahoma, for Plaintiff-
Appellant.
Stephen C. Lewis, United States Attorney, Joseph B. Liken, Acting Chief
Counsel, Region IV, and Chris Carillo, Lead Attorney, Region VI, Office of the
General Counsel, Social Security Administration, Dallas, Texas, for Defendant-
Appellee.
*
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. In the text we continue to refer to the
Secretary because she was the appropriate party at the time of the underlying
decision.
Before BRORBY, BARRETT, and EBEL, Circuit Judges.
EBEL, Circuit Judge.
Claimant Aljewell Lambert appeals from an order of the district court
affirming the final decision of the Secretary of Health and Human Services
denying her application for social security disability benefits. 1 Claimant contends
she became disabled prior to expiration of her insured status on September 30,
1984, due to phlebitis, obesity and venous insufficiency. In a decision that now
stands as the final decision of the Secretary, the administrative law judge (ALJ)
denied benefits at step five of the five-part sequential process for determining
disability. See Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988). We
have jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291. We review the
Secretary's decision to determine whether it is supported by substantial evidence
and whether the correct legal standards were applied. Washington v. Shalala, 37
F.3d 1437, 1439 (10th Cir. 1994).
1
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.
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The ALJ determined that at the time claimant’s insured status expired, she
had the capacity to perform sedentary work, but could not perform her past work,
which was performed at a level beyond sedentary. Finding that she was a younger
individual, that she had limited education, and that the transferability of skills was
immaterial, the ALJ relied on the grids, the Medical-Vocational Guidelines, 20
C.F.R. Pt. 404, Subpt. P, App. 2, Rule 201.19, in concluding claimant was not
disabled.
On appeal, claimant contends that because she was in the “borderline
category” between “younger individual” and “closely approaching advanced age,”
the ALJ erred by mechanically relying on the grids’ age classification rather than
considering whether her ability to adapt to new work situations was less than the
level established under the grids for persons her age. At the time her insured
status expired, claimant was 49 years, 5 months old. “Closely approaching
advanced age” begins at age 50.
The regulations provide that the Secretary will not apply the age categories
mechanically in a “borderline situation.” 20 C.F.R. § 404.1563(a). The Secretary
considers a borderline situation to exist “when there would be a shift in results
caused by the passage of a few days or months.” Social Security Ruling 82-46c,
1982 WL 31427, at *6 (quotation omitted); see also Andrade v. Secretary of
Health & Human Servs., 985 F.2d 1045, 1051 (10th Cir. 1993)(Social Security
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Rulings entitled to deference). When her insured status expired, claimant was
seven months short of the next category. We conclude that she did not fall within
a borderline situation preventing application of the grids. See Russell v. Bowen,
856 F.2d 81, 84 (9th Cir. 1988)(holding that claimant seven months younger than
next age category did not fall into borderline situation).
Claimant also urges us to apply the Eleventh Circuit rule prohibiting strict
reliance on the grids’ age factor when the claimant proffers substantial credible
evidence that “‘the claimant’s ability to adapt to a new work environment is less
than the level established under the grids for persons his age.’” Patterson v.
Bowen, 799 F.2d 1455, 1458 (11th Cir. 1986)(quoting Reeves v. Heckler, 734
F.2d 519, 526 (11th Cir. 1984)). Though we have serious doubts about the
correctness of that rule, even if we were to apply it in this case, it would not avail
claimant. She contends that her ability to perform no more than sedentary work
and her limited education demonstrate her limited ability to adapt. Patterson held
that these factors do not relate to a claimant’s ability to adapt. Id. at 1459. She
also contends her medical problems limit her ability to adapt because they would
require her to elevate her legs and to miss work occasionally. She did not present
this argument to the district court, and we will not consider it on appeal. See
Crow v. Shalala, 40 F.3d 323, 324 (10th Cir. 1994).
AFFIRMED.
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