Thompson v. Chater, Commissioner ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
NORMA S. THOMPSON,
Plaintiff-Appellant,
v.
No. 95-2443
SHIRLEY S. CHATER, COMMISSIONER OF
SOCIAL SECURITY,
Defendant-Appellee.
Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Charles E. Simons, Jr., Senior District Judge.
(CA-93-2698-3-6BC)
Submitted: January 9, 1996
Decided: January 31, 1996
Before NIEMEYER, LUTTIG, and MICHAEL,
Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
S. Michael Camp, Rock Hill, South Carolina, for Appellant. Frank W.
Hunger, Assistant Attorney General, J. Preston Strom, Jr., United
States Attorney, Mack A. Davis, Acting Chief Counsel, Region IV,
Mary Ann Sloan, Principal Regional Counsel, Social Security Dis-
ability Litigation, Haila Naomi Kleinman, Supervisory Assistant
Regional Counsel, Ronald Lamar Paxton, Assistant Regional Coun-
sel, SOCIAL SECURITY ADMINISTRATION, Atlanta, Georgia, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Norma Thompson appeals the district court order affirming the
decision of the Commissioner denying Thompson's application for
Social Security disability insurance benefits. Thompson contends that
the Commission's decision is not supported by substantial evidence
because the Administrative Law Judge did not properly consider her
age as a vocational factor. Thompson further contends that the exist-
ing employment identified by the vocational expert did not include
transferable skills from Thompson's nursing experience. Thompson
also contends that the magistrate judge's report and recommendation
adopted by the district court relied upon an incorrect burden of proof.
Finding no reversible error, we affirm.
I
Norma Thompson fell and fractured her right elbow in November
1991. She applied for disability insurance benefits in February 1992,
at the age of fifty, for a period of disability beginning in November
1991. Thompson worked as a registered nurse prior to her fracture.
After an initial benefits denial, Thompson requested a hearing before
an administrative law judge (ALJ). Thompson and Vocational Expert
(VE) Mooney testified at the hearing.
The ALJ asked Mooney, "[t]aking into account of that non-
exertional restriction (on the right arm), and the claimant's age, edu-
cation, and prior relevant work experience, would there be jobs exist-
ing in the general area in which the claimant lives or the several
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regions of the country that she could perform with that limitation?"
The vocational expert testified that other work existed which was
within Thompson's residual work capacity. These jobs included light
duty nursing positions and other work such as a house mother, cus-
tomer service clerk, gate attendant, or central station manager. Moo-
ney testified to specific numbers of positions in North Carolina, but
did not have corresponding figures for the number of existing posi-
tions in South Carolina. She testified that the positions also existed in
South Carolina but in slightly smaller numbers.
The ALJ found that Thompson could not return to her past relevant
work due to the difficulties with her right arm. He found Thompson
not disabled, however, because she could still perform other work
existing in the national economy. Thompson requested review from
the Appeals Council. The Appeals Council denied her request and
adopted the decision of the ALJ as the decision of the Commissioner.
The district court adopted the recommendation of the magistrate
judge to affirm the Commissioner's decision. Thompson appealed.
II
This court, like the district court, will uphold the Commissioner's
disability determination if it is supported by substantial evidence. 42
U.S.C. § 405(g) (1988). Substantial evidence is "``such relevant evi-
dence as a reasonable mind might accept as adequate to support a
conclusion.'" Richardson v. Perales, 402 U.S. 389, 401 (1971) (quot-
ing Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
Substantial evidence "consists of more than a mere scintilla of evi-
dence but may be somewhat less than a preponderance. If there is evi-
dence to justify a refusal to direct a verdict were the case before a
jury, then there is ``substantial evidence.'" Hays v. Sullivan, 907 F.2d
1453, 1456 (4th Cir. 1990) (quoting Laws v. Celebrese, 368 F.2d 640,
642 (4th Cir. 1962)).
The ALJ makes factual determinations and resolves evidentiary
conflicts including inconsistencies in the medical evidence. Review-
ing courts do not weigh evidence anew or substitute their judgment
for that of the Commissioner, provided that substantial evidence sup-
ports the Commissioner's decision. Hays, 907 F.2d at 1456. Because
substantial evidence supports the ALJ's findings here, there is no rea-
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son to disturb the decision of the Commissioner. In the five-step eval-
uation of disability under 20 C.F.R. § 404.1520 (1995), if the claimant
can no longer perform past relevant work, her age and other factors
are taken into consideration to determine her residual work capacity.
The ALJ specifically included age as a factor when he asked VE
Mooney what existing work would Thompson be able to perform.
The record demonstrates that Mooney had knowledge of Thompson's
age. Without a showing that the claimant is illiterate or unable to
communicate in English, and is unskilled or has no prior work experi-
ence, her age will not be considered to seriously affect her ability to
adjust to a significant number of jobs in the community. See 20
C.F.R. § 404.1563(c); 20 C.F.R. Pt. 404, Subpt. P. App. 2.
III
Thompson next contends that to support a finding that she is capa-
ble of performing other work available in the national economy, the
existing work must utilize transferable skills from her prior work
experience. Thompson claims that because the ALJ found that she can
no longer perform the strenuous type of nursing that she did before
her fracture, she must be found disabled. The regulations and case law
point to the opposite conclusion.
A claimant is not disabled if she is able to do work which exists
in the national economy, but does not work because she does not want
to do the type of work within her residual functional capacity and
vocational abilities. 20 C.F.R. § 404.1567(c)(8) (1995). Only when a
claimant cannot do any work that she has done in the past, and cannot
do any other work existing in the national economy, will a claimant
be found disabled at step five. 20 C.F.R. § 1520(f). If the only exist-
ing work that a claimant is able to perform does not utilize transfer-
able skills or is a lower paid position, a claimant must still be found
not disabled when other work exists in the national economy. See
Schmidt v. Sullivan, 914 F.2d 117, 119 (7th Cir. 1990), cert. denied,
502 U.S. 901 (1991).
Thompson also claims that the ALJ's finding that other work
existed in the national economy is in error because Mooney based her
testimony on an outdated edition of the Dictionary of Occupation
Titles. Thompson failed to offer persuasive evidence that Mooney
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used an outdated edition, or that harm resulted from use of an out-
dated version, to support her claim. We find the ALJ's reliance on
Mooney's testimony from the Dictionary of Occupation Titles to be
without error.
IV
Finally, Thompson claims that the magistrate judge applied an
incorrect burden of proof. The ALJ follows a five-step evaluation of
disability as set forth in the Social Security regulations. 20 C.F.R.
§ 404.1520. Under this analysis, the ALJ must consider whether the
claimant: (1) is working, (2) has a severe impairment, (3) has an
impairment that meets or equals the requirements of a listed impair-
ment, (4) can return to her past work, and (5) if not, whether she can
perform other work. 20 C.F.R. § 404.1520.
The burden of production and proof is on the claimant through the
fourth step. At the fifth step, the burden shifts to the Commissioner
to prove that other jobs exist in the national economy that the claim-
ant can do. Hunter, 993 F.2d 31, 35 (4th Cir. 1992). Thompson con-
tends that the magistrate judge relied upon an incorrect burden of
proof in his report and recommendation. The report stated "(Thomp-
son) has not shown that she is precluded from doing all substantial
gainful activity." It also stated: "[a] claimant for disability benefits
bears the burden of proving a disability."
The district court order found that the magistrate applied the cor-
rect burden of proof, and his statements merely reflected that Thomp-
son did not rebut the testimony by VE Mooney that she was able to
perform other work. The district court's characterization of the magis-
trate judge's statement is sound. The magistrate judge's statement that
a claimant bears the burden of proving a disability is accurate because
the claimant carries the burden through the fourth step. Only at the
fifth step does the burden shift. At the hearing, the VE testified that
other gainful employment existed in the national economy. The mag-
istrate judge's statement reflects that Thompson did not adequately
rebut the evidence of job availability. Thompson cross-examined
Mooney but did not put forth convincing evidence to demonstrate an
inability to perform, or the absence of, the identified positions. We
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find that the district court properly found that the magistrate judge
applied the correct burden of proof.
V
Finding no error with the district court order, we affirm. We grant
the Commissioner's motion for judicial notice. We dispense with oral
argument because the facts and legal contentions are adequately pres-
ented in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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