Rogers v. Barnhart , 216 F. App'x 345 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-2286
CHARLES R. ROGERS,
Plaintiff - Appellant,
versus
JO ANNE B. BARNHART, Commissioner of Social
Security,
Defendant - Appellee.
Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Frederick P. Stamp, Jr.,
District Judge. (CA-04-164)
Argued: October 24, 2006 Decided: February 2, 2007
Before WIDENER, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished opinion. Judge Shedd wrote the opinion, in
which Judge Widener and Judge King joined.
ARGUED: Michael G. Miskowiec, Charleston, West Virginia, for
Appellant. Anne von Scheven, SOCIAL SECURITY ADMINISTRATION,
Office of General Counsel, Philadelphia, Pennsylvania, for
Appellee. ON BRIEF: Donna L. Calvert, Regional Chief Counsel,
Region III, Nora Koch, Supervisory Attorney Regional Counsel,
SOCIAL SECURITY ADMINISTRATION, Office of General Counsel,
Philadelphia, Pennsylvania; Thomas E. Johnston, United States
Attorney, Helen Campbell Altmeyer, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Wheeling, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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SHEDD, Circuit Judge:
Charles R. Rogers filed this action challenging the decision
of the Commissioner of Social Security (“the Commissioner”) denying
his claim for social security disability benefits. The district
court granted summary judgment in favor of the Commissioner, and
Rogers now appeals. Finding no error, we affirm.
I
The facts of this case are largely undisputed. From 1975 to
1997, Rogers owned and operated a machine shop. In 1997, however,
the shop became unprofitable, and Rogers closed the shop.
Subsequently, Rogers found employment as a millwright, a position
he held until 2001. During his work as a millwright, Rogers
developed a series of medical conditions. As relevant here, Rogers
suffered from frequent urination, a condition which was later
diagnosed as interstitial cystitis. Due to the limitations caused
by his interstitial cystitis, Rogers was fired from his job as a
millwright in 2001.
On April 3, 2003, Rogers applied for disability insurance
benefits under Title II of the Social Security Act, 42 U.S.C. §§
401-433, alleging disability as of October 12, 2002, due to
interstitial cystitis. After his claim was administratively
denied, Rogers sought review by an administrative law judge
(“ALJ”). On March 4, 2004, the ALJ heard evidence regarding
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Rogers’ claim. At this hearing, Rogers presented abundant medical
testimony, including diagnoses from Drs. Joseph Kassis, Cynthia
Osborne, and Fulvio Franyutti, documenting his condition and his
need to go to the bathroom approximately every 30 minutes. The
medical evidence also indicated that, despite his limitations,
Rogers was capable of performing medium work. Rogers’ testimony
shows that he continued to pursue such activities as hunting,
fishing, and gardening, although these were affected by his need to
go to the bathroom frequently.
Vocational expert Timothy E. Mahler also testified at the
hearing. Mahler stated that Rogers’ past work as a self-employed
machinist was medium, skilled work, while the administrative
aspects of the work were sedentary in nature. When questioned as
to whether Rogers could perform his past relevant work as a
machinist, Mahler testified that Rogers could not if he were in the
employ of another. Mahler based this conclusion on the fact that
no employer would hire a machinist who would need to leave his post
to go to the bathroom every half hour. Importantly, however,
Mahler testified that an individual with Rogers’ residual
functional capacity (“RFC”) could perform as a self-employed
machine shop operator because “he could accommodate his routine.”
J.A. 19.
Based on the medical evidence indicating that Rogers had an
RFC for performing medium work and on Mahler’s testimony, the ALJ
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concluded that Rogers could perform his past relevant work as a
self-employed machine shop operator. Accordingly, the ALJ found
Rogers not disabled and denied benefits. After exhausting his
administrative appeals, Rogers filed this action in the district
court. The magistrate judge recommended that the Commissioner’s
decision be reversed. In so recommending, the magistrate judge
relied largely on our decision in Cornett v. Califano, 590 F.2d 91(4th Cir. 1978), in which we held that the Commissioner could not
find that a social security claimant was capable of performing work
in the national economy simply because he could start his own
business. The district court subsequently declined to adopt the
magistrate judge’s recommendation and found that the Commissioner
properly denied benefits. This appeal followed.
II
We review de novo the district court’s decision to grant
summary judgment, applying the same standards which the district
court employed. Nat’l City Bank of Indiana v. Turnbaugh, 463 F.3d
325, 329 (4th Cir. 2006). Thus, we review the Commissioner’s
decision to deny benefits under the highly deferential substantial
evidence standard. 42 U.S.C. § 405(g). Pursuant to this standard,
we must accept the factual findings of the Commissioner if they are
supported by substantial evidence, which is defined as “such
relevant evidence as a reasonable mind might accept as adequate to
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support a conclusion.” Johnson v. Barnhart, 434 F.3d 650, 653 (4th
Cir. 2005). Therefore, “[w]here conflicting evidence allows
reasonable minds to differ as to whether a claimant is disabled,”
we must defer to the decision of the Commissioner. Id.III
The Commissioner uses a five-step process to evaluate a claim
for disability insurance benefits. Pursuant to this process, the
Commissioner asks, in sequence, whether the claimant: (1) worked
during the alleged period of disability; (2) had a severe
impairment; (3) had an impairment that met or equaled the severity
of a listed impairment; (4) could return to his past relevant work;
and (5) if not, whether he could perform any other work in the
national economy. 20 C.F.R. § 404.1520. The claimant bears the
burden of proof at steps one through four, but the burden shifts to
the Commissioner at step five. Bowen v. Yuckert, 482 U.S. 137, 146
n.5 (1987). Further, if a decision regarding disability can be
made at any step of the process, the inquiry ceases. 20 C.F.R. §
404.1520(a)(4).
In the instant case, the ALJ found that Rogers met his burden
of proof at steps one through three. However, the ALJ concluded
that Rogers failed to prove that he could not return to his past
relevant work at step four of the process because he is capable of
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performing as a self-employed machine shop operator.1 Rogers
contends that this finding is not supported by substantial
evidence. Specifically, Rogers asserts that he is unable to
perform his past relevant work because the vocational expert
testified that he could perform as a self-employed machinist only
if he accommodates his routine. Rogers also asserts that our
decision in Cornett precludes a finding that the ability to perform
past work in a self-employed status satisfies step four of the
evaluation process. We find Rogers’ arguments unpersuasive.
The Commissioner’s finding that Rogers is capable of
performing as a self-employed machine shop operator is clearly
supported by substantial evidence. The uncontradicted testimony of
Drs. Osborne and Franyutti confirms that Rogers is capable of
performing medium work despite his diagnosis of interstitial
cystitis. Further, Mahler testified that an individual with an RFC
for medium work, but who needed to go to the bathroom every 30
minutes, is capable of performing as a self-employed machine shop
operator. In contrast, Rogers presented no evidence to meet his
burden of showing that he cannot perform his past relevant work as
a self-employed machine operator.
1
The Commissioner’s regulations provide that past relevant
work includes “work that you have done within the past 15 years,
that was substantial gainful activity, and that lasted long enough
for you to learn to do it.” 20 C.F.R. § 404.1560(b)(1). Rogers
does not dispute that his work as a self-employed machinist
constitutes past relevant work.
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Rogers does not contest the accuracy of Mahler’s testimony
regarding his RFC and his past relevant work.2 Rather, he contends
that the expert’s use of the term “accommodate” changes the nature
of his findings. This is simply not the case. While “accommodate”
may have been a poor choice of words given its use as a term of art
in the law governing disability benefits, it is clear that Mahler
was simply expressing his view that self-employment offers more
flexibility than working for another. Because of this flexibility,
Rogers could leave his post at a machine or at a desk to go to the
bathroom. Thus, Rogers can perform in a self-employment setting
but he cannot perform while working for another. The appropriate
inquiry at step four of the evaluation process is whether the
claimant’s past relevant work would, as he performed it, permit him
to perform it with his current impairment. Substantial evidence
supports the ALJ’s conclusion that Rogers could perform his past
relevant work as a self-employed machine shop operator. Therefore,
Rogers failed to meet his burden of proving he is disabled.
Rogers next contends that the Commissioner’s decision
contradicts our holding in Cornett v. Califano, 590 F.2d 91 (4th
Cir. 1978). There, we found that, at step five of the evaluation
process, the Commissioner may not meet her burden of proving that
2
While Rogers initially argued that the ALJ erred in
determining that his past work as a self-employed machine shop
operator was performed at a medium exertional level, in his reply
brief he conceded that he has waived this argument.
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a claimant is capable of performing work in the national economy by
showing that a claimant has the skills to start his own business.
Id. at 94.
For two reasons, we believe Cornett is inapposite here.
First, the Commissioner did not find that Rogers is not disabled
because he can create a type of work which he was capable of
performing. Instead, the Commissioner found that Rogers is capable
of performing his past relevant work as a self-employed machine
shop operator as he performed it due to the inherent flexibility of
self-employment. Therefore, the Commissioner did not purport to
impose the same burden on Rogers which was placed on the claimant
in Cornett.
Second, Cornett’s applicability here is limited because it
concerned a finding that a claimant was not disabled at step five
of the evaluation process rather than at step four. The Supreme
Court’s decision in Barnhart v. Thomas, 540 U.S. 20 (2003),
illustrates the importance of this distinction. In Thomas, the
Court upheld the Commissioner’s finding that a claimant was not
disabled because she could perform her past relevant work, even
though the work no longer existed. The Court reached this
conclusion based on its acceptance of the Commissioner’s
determination that a finding that a claimant is able to perform
past relevant work serves as an “effective and efficient
administrative proxy for the claimant’s ability to do some work
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that does exist in the national economy.” Id. at 28 (emphasis in
original). In other words, even if the past relevant work which a
claimant is capable of performing does not exist, “in the vast
majority of cases” a claimant likely will be able to find other
similar work which does exist. Id.Therefore, at step four of the evaluation process any
consideration of whether the claimant’s past relevant work is still
in existence is irrelevant. All that is necessary is an inquiry
into whether a claimant is capable of performing his past relevant
work. Because substantial evidence supports the Commissioner’s
finding that Rogers is capable of performing his past relevant work
as a self-employed machine shop operator, we must affirm the
Commissioner’s denial of benefits. As the Supreme Court has noted,
the Commissioner’s use of step four as an administrative proxy for
step five may result in “imperfect applications in particular
circumstances.” Id. at 29. Nevertheless, the Court accepted these
imperfect applications, and we are bound to do the same here.
IV
Based on the foregoing, we conclude that substantial evidence
supports the Commissioner’s finding that Rogers is not disabled.
Accordingly, the judgment of the district court is
AFFIRMED.
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