Brown v. Bowen, 85-2924

• Citation: 801 F.2d 361
• Decision Date: 22 August 1986
• Docket Number: No. 85-2924,85-2924
• Parties: , Unempl.Ins.Rep. CCH 16,953 Jerry D. BROWN, Plaintiff-Appellant, v. Otis R. BOWEN, Secretary of Health and Human Services, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 361

801 F.2d 361

15 Soc.Sec.Rep.Ser. 121, Unempl.Ins.Rep. CCH 16,953

Jerry D. BROWN, Plaintiff-Appellant, v. Otis R. BOWEN, Secretary of Health and Human Services,

Defendant-Appellee.

No. 85-2924.

United States Court of Appeals,

Tenth Circuit.

Aug. 22, 1986.

Paul F. McTighe, Jr., Tulsa, Okl., for plaintiff-appellant.

Harry S. Gold, Office of Gen. Counsel (Layn R. Phillips, U.S. Atty., Philard L. Rounds, Jr., Asst. U.S. Atty., Donald A. Gonya, Chief Counsel for Social Sec., Randolph W. Gaines, Deputy Chief Counsel for Social Sec. Litigation, and A. George Lowe, Chief, Disability Litigation Branch, with him, on the brief), Social Sec. Div., Dept. of Health and Human Services, Baltimore, Md., for defendant-appellee.

Before McKAY, TACHA, and McWILLIAMS, Circuit Judges.

McWILLIAMS, Circuit Judge.

This is an appeal from an order and judgment of the United States District Court for the Northern District of Oklahoma affirming a decision of the Secretary of Health and Human Services which denied Jerry D. Brown's application for Social Security disability benefits. Brown's initial appeal was remanded by the district court to the Secretary for further hearings, which would include, if deemed essential by the parties, testimony from a vocational expert. On remand, Brown, appearing with counsel, updated his prior testimony concerning his physical condition. Also, David Smith, a vocational expert, testified at length, being first examined by the Administrative Law Judge, and thereafter examined extensively by Brown's own counsel. The critical issue at this juncture was apparently whether Brown was entitled to disability benefits because of a back injury, or whether, notwithstanding his back problem, Brown could still perform light work available in the national economy. At the conclusion of this hearing on remand, the ALJ again denied Brown's application and the Secretary thereafter affirmed the ALJ's recommended decision. Brown then sought judicial review of the Secretary's decision denying disability benefits, and the district court affirmed.

On appeal, Brown raises but one issue: Was there substantial evidence to support the Secretary's decision in light of the ALJ's allegedly improper questioning of the vocational expert, David Smith? Brown asserts that hypothetical questions posed to Smith by the ALJ were based on incomplete premises concerning Brown's physical and mental condition in that the ALJ did not factor into his questions Brown's claim of pain, and therefore that the Secretary's decision is not based on substantial evidence.

In reviewing a final decision of the Secretary, the court's role is limited to a determination of whether the decision is supported by substantial evidence. 42 U.S.C. Sec. 405(g); Cagle v. Califano, 638 F.2d 219, 220 (10th Cir.1981). ¹ The reviewing court may not weigh the evidence nor substitute its discretion for that of the agency. 638 F.2d at 220. Substantial evidence is more than a scintilla; it is such relevant evidence as a reasonable mind might deem adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971); Teter v. Heckler, 775 F.2d 1104, 1105 (10th Cir.1985).

By way of general background, we note that the vocational expert was not the only witness in the case. There was lay testimony and medical evidence concerning Brown's degree of disability which did not point towards a finding of total disability. Prior to his injury, Brown had worked for some eleven years in a furniture store where, initially, he had, among his other duties, from time to time moved furniture, and more recently had generally served in a managerial capacity. He injured his back while moving furniture, but there was testimony that notwithstanding the fact that he probably could no longer move furniture, he could perform light work, including clerical, timekeeping or bookkeeping services. Brown asserts that his pain interferes with his ability to work, but disability requires more than mere inability to work without pain. "To be disabling, pain must be so severe, by itself or in conjunction with other impairments, as to preclude any substantial gainful employment." Dumas v. Schweiker, 712 F.2d 1545, 1552 (2d Cir.1983). See also discussion of what constitutes "disability" in Heckler v. Campbell, 461 U.S. 458, 459-60, 103 S.Ct. 1952, 1953-54, 76 L.Ed.2d 66 (1982).

In regard to the vocational expert's testimony, we note that both the ALJ and Brown's counsel examined the vocational expert at length without objection from the other. Doubtless Brown's counsel was reluctant to object to the form of questions propounded to the witness by the ALJ, but, in subsequent cross-examination, counsel had the opportunity to put questions to the witness which would reflect counsel's understanding of his client's physical limitations, which is exactly what counsel did. He asked Smith specifically to express an opinion as to Brown's potential performance in a "sedentary" job, taking into consideration Brown's allegations of pain. The ALJ, as the fact finder, had Smith's testimony with regard to these questions, as well as Smith's testimony in response to the ALJ's hypotheticals to consider. Moreover, in...