Parrish v. Apfel

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
NOV 13 2000
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
NAN H. PARRISH,
Plaintiff-Appellant,
v. No. 99-1337
(D.C. No. 98-M-858)
KENNETH S. APFEL, Commissioner, (D. Colo.)
Social Security Administration,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before BALDOCK , McKAY , 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This order and judgment is not binding precedent, except under the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.
Claimant Nan H. Parrish appeals from the district court ’s order affirming
the decision of the Commissioner denying her application for disability benefits
under Title II of the Social Security Act. Our jurisdiction over this appeal arises
under 28 U.S.C. § 1291.
Agency regulations establish a five-step sequential analysis to evaluate
disability claims. See Williams v. Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988)
(describing five steps in detail). Here, the administrative law judge (ALJ)
reached step five of the analysis, determining that claimant could perform jobs
which exist in significant numbers in the national economy. We review the
agency’s decision under a deferential standard, determining only whether the
decision is supported by substantial evidence in the record as a whole and whether
the correct legal standards were applied. See Castellano v. Secretary of Health &
Human Servs. , 26 F.3d 1027, 1028 (10th Cir. 1994).
The ALJ held a hearing at which a vocational expert (VE) testified that
claimant was capable of performing certain jobs. On appeal, as before the district
court , claimant complains that the job descriptions the VE used do not relate to
those contained in the Dictionary of Occupational Titles (DOT) and that similarly-
titled jobs listed in the DOT do not match claimant’s residual functional capacity,
skill level and nonexertional limitations. While claimant does not cite to this
court’s opinion in Haddock v. Apfel , 196 F.3d 1084 (10th Cir. 1999), we conclude
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that Haddock controls here. “We hold that before an ALJ may rely on expert
vocational evidence as substantial evidence to support a determination of
nondisability, the ALJ must ask the expert how his or her testimony as to the
exertional requirement of identified jobs corresponds with the Dictionary of
Occupational Titles, and elicit a reasonable explanation for any discrepancy on
this point.” Id. at 1087. It is clear from our review of the record on appeal that
this process did not take place at claimant’s hearing. Therefore, the correct legal
standards were not applied and we reverse.
Accordingly, we need not address the balance of claimant’s arguments on
appeal, although we note that several of them were not presented to the district
court and therefore were not preserved for appeal. See Okland Oil Co. v. Conoco
Inc. , 144 F.3d 1308, 1314 n.4 (10th Cir. 1998).
REVERSED and REMANDED to the district court with instructions to
remand the case to the agency for further proceedings in light of Haddock .
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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