Adams v. Apfel ( 1998 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 9 1998
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
BLAINE A. ADAMS,
Plaintiff-Appellant,
v. No. 97-5140
(D.C. No. 96-CV-395-J)
KENNETH S. APFEL, Commissioner (N.D. Okla.)
of Social Security Administration, *
Defendant-Appellee.
ORDER AND JUDGMENT **
Before BALDOCK, EBEL, 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
*
Pursuant to Fed. R. App. P. 43(c), Kenneth S. Apfel is substituted for
Shirley S. Chater, former Commissioner of Social Security, 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This order and judgment is not binding precedent, except under the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.
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 Blaine A. Adams appeals from an order of the magistrate judge 1
affirming the denial of disability benefits at step five of the disability
determination. See Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988)
(explaining the five-step analysis set out in 20 C.F.R. § 404.1520). After
reviewing the record to determine whether substantial evidence supports the
decision of the Commissioner of Social Security and whether correct legal
standards were applied, this court affirms. See Washington v. Shalala, 37 F.3d
1437, 1439 (10th Cir. 1994).
BACKGROUND
Mr. Adams, who is presently thirty-seven years old, has not worked since
he sustained an on-the-job injury to his left wrist in the summer of 1991. The
medical records document multiple surgeries performed on his wrist and show
that he has no range of motion in the wrist, reduced thumb movement, decreased
grip strength, and hand pain. An examining physician concluded that,
post-surgery, Mr. Adams has a 33% permanent partial impairment to the hand.
The records reflect the opinions of both treating and examining physicians that
1
The parties consented to proceed before the magistrate judge pursuant to
28 U.S.C. § 636(c)(1).
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Mr. Adams may no longer do heavy work (as required in his former positions
of machine operator, custodian, yard worker, and laundry worker) and their
recommendations of retraining for lighter work.
At the hearing before the Administrative Law Judge (ALJ), Mr. Adams
testified about other problems relating to his disability, such as restrictions on
walking, sitting, standing, and reaching, due to knee surgery and the use of his hip
as a graft donor site for the wrist surgery. He also described severe hand and hip
pain. In response to the ALJ’s hypothetical questions, a vocational expert (VE)
testified about positions available for an individual who could do unskilled light
work, limited by the absence of range of motion in the left wrist, lack of grip
strength, restricted use of the left wrist and arm, the need to shift position to
alleviate pain, and restricted walking and climbing. According to the VE, the
hypothetical individual could work as a cashier or parking-lot attendant.
In his written decision, the ALJ evaluated the evidence and found that
Mr. Adams has the residual functional capacity (RFC) to do light work, reduced
by the same restrictions presented in the hypothetical questions to the VE.
Although this RFC precluded Mr. Adams from performing his past relevant
work, the ALJ found, relying primarily on the testimony of the VE, that
Mr. Adams could perform a significant number of jobs in the national economy.
He concluded, therefore, that Mr. Adams is not disabled.
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DISCUSSION
The essence of Mr. Adams’ first contention on appeal is that the RFC
assessment does not include his claimed pain and other manipulative limitations.
The ALJ properly considered Mr. Adams’ testimony in light of the objective
evidence; determined that Mr. Adams experienced chronic, but not disabling,
pain; and then took this pain into account in determining Mr. Adams' RFC.
See Kepler v. Chater, 68 F.3d 387, 390-91 (10th Cir. 1995) (discussing proper
consideration of complaints of disabling pain); Thompson v. Sullivan, 987 F.2d
1482, 1490-91 (10th Cir. 1993) (requiring consideration of nondisabling pain
in RFC determination). The ALJ could have been more explicit in describing
Mr. Adams’ documented manipulative restrictions. The limitations included in
the assessment, however, are comprehensive enough to encompass his reduced
thumb motion and difficulties with repetitive manipulative tasks.
Mr. Adams also asserts that the VE’s identification of alternative jobs
should be discounted because the testimony (1) relates to the allegedly flawed
RFC determination and (2) conflicts with job data in the Dictionary of
Occupational Titles (DOT). See United States Dept. of Labor, Employment &
Training Admin., Dictionary of Occupational Titles (4th ed. 1991). As noted
above, the hypothetical questions correspond with the RFC assessment, which this
court has found acceptable. An ALJ’s hypothetical questions to a VE need not
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include a claimant’s unsubstantiated complaints. See Evans v. Chater, 55 F.3d
530, 532 (10th Cir. 1995).
Equally unavailing is Mr. Adams’ argument concerning a contradiction
between the VE’s testimony about the positions of cashier and parking-lot
attendant and dexterity requirements purportedly in the DOT. As the magistrate
judge observed, other courts of appeal have disagreed on the relative weight to be
given to the DOT and contradictory testimony of a VE, 2 and this court has not
specifically addressed the issue. 3 The record in this case presents no reason to
resolve the issue. Counsel did not come forward with data from a published
2
Compare Porch v. Chater, 115 F.3d 567, 572 (8th Cir. 1997) (“When expert
testimony conflicts with the DOT, and the DOT classifications are not rebutted,
the DOT controls.”) with Johnson v. Shalala, 60 F.3d 1428, 1436 (9th Cir. 1995)
(“It was . . .proper for the ALJ to rely on expert testimony to find that the
claimant could perform the two types of jobs the expert identified, regardless of
their [DOT] classification.”), and Conn v. Secretary of Health & Human Serv., 51
F.3d 607, 610 (6th Cir. 1995) (“[T]he ALJ was within his rights to rely solely on
the VE’s testimony. The social security regulations do not require the Secretary
or the expert to rely on [DOT] classifications.”).
3
On appeal, counsel for Mr. Adams acknowledges that this court has not had
occasion to resolve the issue. See Appellant’s Brief at 20 (“The law is [sic] in
this circuit is unclear as to [sic] degree an ALJ is permitted to rely on vocational
expert testimony which contradicts the DOT.”). We note, with disapproval, his
lack of candor in the district court, in which he suggested that the law is so well-
established that citation to supporting authority would be redundant. See
Plaintiff’s Memorandum Brief at 2.
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source until he sought judicial review. Even in this court, he has not properly
submitted or identified his proffered information. 4
At step five, the Commissioner bears the burden of establishing that
claimant can perform work existing in the national economy. See Saleem v.
Chater, 86 F.3d 176, 178 (10th Cir.1996). The regulations authorize two
alternative avenues of proof. See Gay v. Sullivan, 986 F.2d 1336, 1340 (10th Cir.
1993). The ALJ may take administrative notice of job information in the DOT
and other governmental sources, see 20 C.F.R. § 404.1566(d), or use the services
of a VE for the “complex issue” of determining whether the claimant’s work
skills “can be used in other work and the specific occupations in which they can
be used,” 20 C.F.R. § 404.1566(e). Although it is the ALJ who decides whether
to employ the services of a VE, see id., “nothing prevent[s] counsel from
challenging the expert’s figures and conclusions with data available from other,
4
The assertion that the DOT requires average finger and manual dexterity to
perform the cashier and parking-lot positions is a misstatement. The DOT does
not list these aptitudes. See DOT, Vol. I, at 183 (cashier); id., Vol. II, at 929
(parking-lot attendant). Another publication of the United States Department of
Labor, Employment & Training Administration, Selected Characteristics of
Occupations Defined in the Revised Dictionary of Occupational Titles (1993),
includes the physical demand components of frequent fingering and handling, but
does not refer to aptitudes. See id. at 333 (cashier), 365 (parking-lot attendant).
Mr. Adams has attached materials to his brief without requesting supplementation
of the record or indicating whether the materials are part of the district court
record. We note that these materials, which do discuss dexterity, appear to be
print-outs from a private database service.
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administratively noticed publications, which is a recognized means of discrediting
expert vocational testimony,” Gay v. Sullivan, 986 F.2d at 1340 n.2.
During Mr. Adams’ hearing, at which he was represented by experienced
counsel, the ALJ exercised his option to call a VE. The ALJ established the
expert’s education and experience, probed for bias, and received testimony
responsive to his hypothetical questions. On cross-examination, Mr. Adams’
counsel questioned the expert at length, but did not raise the issue of dexterity
requirements. Moreover, counsel did not request administrative notice of
contradictory data, before, during, or after the hearing. Under these
circumstances, our assessment of the reliability of the expert’s figures and
conclusions “is effectively foreclosed.” Id.The judgment of the United States District Court for the Northern District
of Oklahoma is AFFIRMED.
Entered for the Court
Michael R. Murphy
Circuit Judge
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