Lowther v. Chater ( 1997 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
SEP 8 1997
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
MICHAEL E. LOWTHER,
Plaintiff-Appellant,
v. No. 97-5022
(D.C. No. 95-CV-919)
JOHN J. CALLAHAN, Acting (N.D. Okla.)
Commissioner, Social Security
Administration, *
Defendant-Appellee.
ORDER AND JUDGMENT **
Before TACHA, MCKAY, and BALDOCK, 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
*
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. Pursuant to Fed. R. App. P. 43(c), John J.
Callahan, Acting Commissioner of Social Security, is substituted for Donna E.
Shalala, Secretary 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This order and judgment is not binding precedent, except under the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.
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
Plaintiff appeals the Commissioner’s denial of disability benefits. Plaintiff
asserted that he had been disabled, since July 1991, from the residual effects of a
back injury, three back surgeries, and surgery on his left knee. The administrative
law judge (ALJ) determined, at step five of the applicable analysis, see 20 C.F.R.
§ 404.1520, that plaintiff remained capable of performing the unskilled sedentary
jobs of bench assembler and machine operator, which exist in significant numbers
in the national economy. See Saleem v. Chater, 86 F.3d 176, 178 (10th Cir. 1996)
(at step five, Commissioner bears burden of establishing that claimant can
perform work existing in national economy). The Appeals Council denied review,
making the ALJ’s determination the Commissioner’s final decision.
This court reviews the Commissioner’s decision to determine only that the
Commissioner applied the law correctly and that the record contains substantial
evidence to support the decision. See Bean v. Chater, 77 F.3d 1210, 1213 (10th
Cir. 1995). On appeal, plaintiff argues that the ALJ’s hypothetical question
eliciting the vocational expert’s (VE) testimony that there were jobs existing in
the national economy that plaintiff remained capable of performing, failed to
include all of plaintiff’s limitations. Our review of the record, however, indicates
that the ALJ included in his hypothetical question all of the limitations supported
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by the record. See Decker v. Chater, 86 F.3d 953, 955 (10th Cir. 1996). In light
of that, the VE’s testimony elicited by the hypothetical question provided
substantial evidence supporting the denial of benefits. See id. Further, in
determining plaintiff’s limitations, the ALJ properly analyzed his complaints of
disabling pain. See Kepler v. Chater, 68 F.3d 387, 390-91 (10th Cir. 1995)
(discussing proper analysis of complaints of disabling pain).
The judgment of the United States District Court for the Northern District
of Oklahoma is, therefore, AFFIRMED.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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