Knight v. Barnhart , 68 F. App'x 958 ( 2003 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 3 2003
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
ROSCOE C. KNIGHT,
Plaintiff-Appellant,
v. No. 02-7109
(D.C. No. 01-CV-450-P)
JO ANNE B. BARNHART, (E.D. Okla.)
Commissioner of the Social Security
Administration,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before SEYMOUR , HENRY , and BRISCOE , 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This order and judgment is not binding precedent, except under the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.
Roscoe C. Knight appeals the denial of his 1997 application for Social
Security disability insurance benefits, claiming disability as a result of injuries to
his back and left arm and hand and vision loss in his right eye. Social Security
regulations implement a five-step sequential process to evaluate a disability
claim. See Williams v. Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988) (detailing
steps). After claimant’s application was denied administratively and upon
reconsideration, a hearing was held before an administrative law judge (ALJ) at
which a vocational expert (VE) testified. That decision was remanded by the
Appeals Council and another hearing was held after claimant was sent for a
consultative exam. The ALJ’s second decision denied claimant’s application for
benefits at step five concluding that, while claimant could not return to his past
relevant work as an apartment manager or transportation officer, he had
transferrable skills and retained the residual functional capacity (RFC) to perform
other, sedentary, jobs available in the national economy. The Appeals Council
denied review.
Claimant brought suit in federal court and the district court affirmed the
agency’s denial of benefits. This appeal followed. We have jurisdiction pursuant
to 28 U.S.C. § 1291 and 42 U.S.C. § 405(g). Our review, however, is limited to
evaluating whether the factual findings are supported by substantial evidence in
the record as a whole and whether the correct legal standards were applied.
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Goatcher v. United States Dep’t of Health & Human Servs ., 52 F.3d 288, 289
(10th Cir. 1995).
Claimant raises three arguments on appeal. He asserts that the ALJ erred in
determining that his right eye blindness was not a severe impairment at step two
of the applicable analysis. A severe impairment is one which significantly limits
a claimant’s ability to do basic work activities. Hinkle v. Apfel , 132 F.3d 1349,
1352 (10th Cir. 1997); 20 C.F.R. § 404.1520(c). The ALJ’s conclusion that this
impairment is not severe was supported by claimant’s own testimony that he was
gainfully employed after surgery on his eye. We perceive no error in the ALJ’s
step two determination.
Next, claimant contends that the ALJ erred in determining that he retained
the RFC to perform limited sedentary work, arguing that most sedentary jobs
require good use of the hands and repetitive finger work. In his RFC
determination, the ALJ included a limitation against rapid fingering with
claimant’s left hand, which was injured in an automobile accident. The VE
considered this limitation and concluded that claimant could perform certain
enumerated sedentary jobs. Claimant’s argument lacks merit.
Finally, claimant asserts that the ALJ did not properly consider the
diagnosis of Dr. Allen, a treating physician, concluding that claimant has reflex
sympathetic dystrophy. Claimant argues that the VE was not able to evaluate this
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evidence, as well as the consulting physician’s report, because it was presented at
the second hearing, which the VE did not attend. However, it is not part of the
VE’s role to independently evaluate medical evidence, see, e.g., Winfrey v.
Chater , 92 F.3d 1017, 1025 (10th Cir. 1996) (discussing VE’s role and
discouraging delegation of RFC fact-finding), and it is clear that the ALJ
considered both Dr. Allen’s notes and the consulting physician’s report in his
decision. Further, claimant does not state how this evidence undermines the
ALJ’s conclusion, based on the VE’s testimony, that he could perform certain
sedentary jobs. This court cannot reweigh the evidence. Hamilton v. Sec’y of
Health & Human Servs. , 961 F.2d 1495, 1498 (10th Cir. 1992).
Accordingly, we conclude that substantial evidence supports the ALJ’s
denial of benefits at step five, and that the correct legal standards were applied.
The judgment of the district court is AFFIRMED.
Entered for the Court
Robert H. Henry
Circuit Judge
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