Filed: Apr. 16, 2003
Latest Update: Feb. 21, 2020
Summary: F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS APR 16 2003 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk WENDELL NEWBURN, Plaintiff - Appellant, v. No. 02-5055 (D.C. No. 00-CV-1021-X) JO ANNE B. BARNHART, (N.D. Oklahoma) Commissioner of Social Security Administration, Defendant - Appellee. ORDER AND JUDGMENT * Before EBEL , HENRY , and MURPHY , Circuit Judges. After examining the briefs and appellate record, this panel has determined unanimously to grant the p
Summary: F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS APR 16 2003 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk WENDELL NEWBURN, Plaintiff - Appellant, v. No. 02-5055 (D.C. No. 00-CV-1021-X) JO ANNE B. BARNHART, (N.D. Oklahoma) Commissioner of Social Security Administration, Defendant - Appellee. ORDER AND JUDGMENT * Before EBEL , HENRY , and MURPHY , Circuit Judges. After examining the briefs and appellate record, this panel has determined unanimously to grant the pa..
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F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 16 2003
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
WENDELL NEWBURN,
Plaintiff - Appellant,
v. No. 02-5055
(D.C. No. 00-CV-1021-X)
JO ANNE B. BARNHART, (N.D. Oklahoma)
Commissioner of Social Security
Administration,
Defendant - Appellee.
ORDER AND JUDGMENT *
Before EBEL , HENRY , and MURPHY , 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This order and judgment is not binding precedent, except under the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 Wendell Newburn appeals from the magistrate judge’s order
affirming the Commissioner’s determination, at step five of the five-part process,
that he is not entitled to Social Security disability benefits. 1 After reviewing the
Commissioner’s decision to determine “whether the factual findings are supported
by substantial evidence and whether correct legal standards were applied,” we
affirm. See Kelley v. Chater , 62 F.3d 335, 337 (10th Cir. 1995).
BACKGROUND
Mr. Newburn asserts that he has been disabled since September 8, 1994,
primarily due to chest pain and shortness of breath attributable to coronary artery
disease. 2 At the hearing before the administrative law judge (ALJ), Mr. Newburn
and his wife testified that his activities were significantly limited by his chest
1
The parties consented to proceed before a magistrate judge. See 28 U.S.C.
§ 636(c).
2
Mr. Newburn filed a prior application for benefits which was denied on
September 8, 1994, and not appealed. In the instant case, the administrative law
judge determined that no reason existed to reopen the earlier application and that
the earlier denial was res judicata as to the issue of disability before the denial
date. Mr. Newburn does not contest that determination. See Brown v. Sullivan ,
912 F.2d 1194, 1196 (10th Cir. 1990) (stating that courts have no “jurisdiction to
review the [Commissioner’s] refusal to reopen a claim for disability benefits or
determination such claim is res judicata”). Further, Mr. Newburn’s insured status
expired September 30, 1996; thus, he must show that he was totally disabled prior
to that date. See Henrie v. United States Dep’t of Health & Human Servs. ,
13 F.3d 359, 360 (10th Cir. 1993) (holding that claimant must show she was
disabled prior to expiration of insured status). Accordingly, the relevant period
for consideration of Mr. Newburn’s application for benefits is between
September 8, 1994, and September 30, 1996.
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pains and shortness of breath. Additionally, they said that he had memory
problems and, though he had attended school through sixth grade, could not read
very well or perform more than simple mathematics. A vocational expert also
testified, naming unskilled light assembler, assembler of printed products, and
assembler of hospital supplies as jobs which could be performed by a hypothetical
person who could spend no more than four hours total on his feet during an eight-
hour day, with occasional severe pain, and with a limited ability to read, write,
and calculate.
Subsequently, the ALJ issued his written decision. The decision recognized
that Mr. Newburn had severe coronary artery disease and, as a consequence, was
unable to perform his past relevant work as a bus driver. The ALJ determined,
however, that Mr. Newburn retained the residual functional capacity (RFC) to
perform a wide range of light work, reduced by an inability to stand for more than
four hours out of an eight-hour workday. The testimony of Mr. Newburn and his
wife was found to be credible only to the extent consistent with this RFC. Based
on the vocational expert’s testimony, the ALJ concluded that, taking into
consideration Mr. Newburn’s standing limitations, his lack of transferable skills,
and his marginal education, there were a significant number of jobs in the
regional and national economies that he could perform. Therefore, the ALJ
concluded that Mr. Newburn was not disabled. On appeal, Mr. Newburn argues
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that the ALJ erred in: (1) determining that he had the RFC to perform a wide
range of light work activity; (2) assessing his educational level; and (3) failing to
question the vocational expert with more specific hypothetical questions.
DISCUSSION
Residual functional capacity determination
Mr. Newburn’s first issue is essentially an assertion that the RFC
determination is not supported by substantial evidence. “Substantial evidence
is such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Hargis v. Sullivan , 945 F.2d 1482, 1486 (10th Cir. 1991)
(citation omitted). The medical records show that Mr. Newburn underwent
bypass surgery in 1991. In May 1994, before the relevant period and in
connection with Mr. Newburn’s prior application for disability benefits, Dr. Merle
Jennings, a consulting cardiologist, examined Mr. Newburn, diagnosed him with
coronary insufficiency, and opined that he was “unable to perform any type of
activity due to his cardiac impairment.” Aplt. App., Vol. 2 at 130. On
January 13, 1996, Mr. Newburn was admitted to the hospital complaining of chest
pressure. After a four-day hospital stay during which a cardiac catheterization
was performed, Mr. Newburn’s final discharge diagnosis was “unstable angina,
stabilized.”
Id. at 191. His chest pains were thought to be musculoskeletal in
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origin. In September 1997, a year after expiration of Mr. Newburn’s insured
status, an exercise thallium study was conducted, with normal results.
Just a month before the disability-benefits hearing, Mr. Newburn told an
examining physician that he was doing well and denied any episodes of chest
pain. 3 The physician reported that Mr. Newburn had a full range of motion and
that his upper and lower body strength was adequate. In addition, the record
contains two RFC assessments during and after the relevant time period which
state that Mr. Newburn could be on his feet for six hours in an eight-hour day.
We conclude that the medical record as a whole, the evidence concerning
Mr. Newburn’s daily activities, and the ALJ’s decision to discount the testimony
concerning the extent of Mr. Newburn’s impairment all support the RFC
determination. Contrary to Mr. Newburn’s argument, the ALJ adequately
explored the side effects of Mr. Newburn’s medication. 4
Further, the lack of
3
We acknowledge the testimony that Mr. Newburn was despondent and that
he misrepresented his chest pain to the physician in an unsuccessful attempt to
restore his bus driver’s license. However, we must also recognize the ALJ’s
statement that he was “not satisfied that [Mr. Newburn was] necessarily being
entirely truthful,” Aplt. App., Vol. 2 at 78, and that he was “trying to figure out”
when Mr. Newburn was lying and when he was telling the truth, id. at 63.
Credibility determinations in particular lie in the domain of the finder of fact, and
the ALJ’s finding is afforded deference as a result. See McGoffin v. Barnhart ,
288 F.3d 1248, 1254 (10th Cir. 2002).
4
On appeal, Mr. Newburn also challenges the ALJ’s finding that he had the
ability to occasionally lift up to twenty pounds, a requirement of light work
activity. Although Mr. Newburn challenged the ALJ’s RFC determination in
(continued...)
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discussion of Dr. Jennings’ opinion about Mr. Newburn’s ability to work is not
legally significant. The opinion was developed outside the relevant period and
had been specifically considered in evaluating Mr. Newburn’s earlier application
for benefits. In sum, we conclude that substantial evidence supports the
Commissioner’s RFC determination.
Assessment of educational level
Mr. Newburn also argues that the ALJ erred in categorizing him as a person
with a marginal education, rather than as a person who is illiterate. The issue is
critical because Rule 202.11 of the Medical Vocational Guidelines (the “grids”),
20 C.F.R. pt. 404, subpt. P, app. 2, table 2, directs a finding of not disabled for a
claimant of Mr. Newburn’s age, work experience, and RFC if the claimant’s
education is “[l]imited or less–at least literate and able to communicate in
English.” In contrast, if the same claimant is illiterate, the grids provide that he is
disabled. See id. at 202.00(d).
4
(...continued)
district court, he did not mention the lifting requirement. Our scope of review is
limited to those issues plaintiff has properly preserved in the district court. Berna
v. Chater ,
101 F.3d 631, 632 (10th Cir. 1996). “Absent compelling reasons, we
do not consider arguments that were not presented to the district court.” Crow v.
Shalala ,
40 F.3d 323, 324 (10th Cir. 1994). We decline to reach the issue on
appeal. Nevertheless, we have reviewed this issue and, even if we were to
consider it, we would find it to be without merit.
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Illiteracy is defined in the regulations as: “the inability to read or
write. . . . [S]omeone [is] illiterate if the person cannot read or write a simple
message such as instructions or inventory lists even though the person can sign
his or her name. Generally, an illiterate person has had little or no formal
schooling.” Id. § 404.1564(b)(1). A person with a “marginal education,” on the
other hand, has “ability in reasoning, arithmetic, and language skills which are
needed to do simple, unskilled types of jobs. . . . [F]ormal schooling at a 6th
grade level or less is [generally considered] a marginal education.”
Id. § 404.1564(b)(2). “[I]f there is no other evidence to contradict it, [the
Commissioner] will use . . . numerical grade level to determine [a claimant’s]
educational abilities.”
Id. § 404.1564(b).
In this case, Mr. Newman completed the sixth grade and testified that he
could “read and write . . . a little bit,” and, when working as a bus driver, could
generally read a road map. Aplt. App., Vol. 2 at 39. His mathematics ability was
confined to “low numbers.” Id. at 40. Mr. Newman’s background does not meet
the definition of illiteracy; his testimony does not contradict a finding of marginal
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educational abilities. The evidence in the record is therefore sufficient to sustain
the ALJ’s finding that Mr. Newman had a marginal education.
Hypothetical questions to vocational expert
Finally, Mr. Newburn argues that the Commissioner failed to meet her
burden at step five in the sequential evaluation process because the ALJ did not
pose questions to the vocational expert sufficient to demonstrate that he retains
the RFC to perform work in the national economy, given his age, education, and
work experience. He also contends, citing Haddock v. Apfel , 196 F.3d 1084, 1089
(10th Cir. 1999), that the ALJ did not resolve discrepancies between the testimony
of the vocational expert and the D ICTIONARY OF O CCUPATIONAL T ITLES (DOT).
The record does not bear out Mr. Newburn’s contentions. The vocational
expert testified that, under the ALJ’s hypothetical, Mr. Newburn could perform
light-work, unskilled, assembler positions. There are no unexplained conflicts
between the vocational expert’s testimony and the DOT. The ALJ directly
addressed the issue of whether the designated jobs could be performed with the
specified limitation on hours of standing or walking. In response to the ALJ’s
questions, the vocational expert answered that “[t]hose jobs would accommodate
the inability to stand more than four hours.” Aplt. App., Vol. 2 at 73.
The Commissioner met her step-five burden of proving that there are sufficient
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jobs in the national economy for a hypothetical person with the claimant’s
impairments. There is no reversible error in this aspect of the ALJ’s decision.
AFFIRMED.
Entered for the Court
Michael R. Murphy
Circuit Judge
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