Berna v. Chater

• Citation: 101 F.3d 631
• Decision Date: 26 November 1996
• Docket Number: No. 96-5057,96-5057
• Parties: , Unempl.Ins.Rep. (CCH) P 15618B, 96 CJ C.A.R. 1978 Kathleen E. BERNA, Plaintiff-Appellant, v. Shirley S. CHATER, Commissioner, Social Security Administration, * Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 631

101 F.3d 631

52 Soc.Sec.Rep.Ser. 253, Unempl.Ins.Rep. (CCH) P 15618B,

96 CJ C.A.R. 1978

Kathleen E. BERNA, Plaintiff-Appellant, v. Shirley S. CHATER, Commissioner, Social Security Administration, ^* Defendant-Appellee.

No. 96-5057.

United States Court of Appeals Tenth Circuit.

Nov. 26, 1996.

Paul F. McTighe, Jr. and Gayle L. Troutman, Tulsa, OK, for Plaintiff-Appellant.

Stephen C. Lewis, United States Attorney, Joseph B. Liken, Acting Chief Counsel, Region IV, Chris Carillo, Lead Attorney, Region VI, Office of the General Counsel, Social Security Administration, Dallas, TX, for Defendant-Appellee.

Before BALDOCK and BRISCOE, Circuit Judges, and LUNGSTRUM, ^** District Judge.

LUNGSTRUM, District Judge.

Plaintiff Kathleen E. Berna appeals ¹ from an order of the magistrate judge ² affirming the decision of the Secretary to deny her social security benefits. On the basis of expert vocational testimony identifying certain past relevant work plaintiff could perform despite her impairments, the administrative law judge (ALJ) found her not disabled at step four of the controlling analytical sequence. See generally Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir.1988). Plaintiff's sole argument on appeal is that the ALJ deviated from proper step-four procedure by relying entirely on the expert's conclusory opinion that she could return to prior work, without specifying on the record the pertinent demands of such work and the factual basis for the conclusion that these demands could be satisfied despite her recognized impairments, as required by Henrie v. United States Department of Health & Human Servs., 13 F.3d 359, 361 (10th Cir.1993). See also Winfrey v. Chater, 92 F.3d 1017, 1024-26 (10th Cir.1996). As explained below, special considerations lead us to affirm the magistrate judge's order without reaching the merits of plaintiff's contention.

The rigor of our review in social security matters is captured in the familiar formulation that "[w]e closely examine the record as a whole to determine whether the Secretary's decision is supported by substantial evidence and adheres to applicable legal standards." Evans v. Chater, 55 F.3d 530, 531 (10th Cir.1995). The scope of our review, however, is limited to the issues the claimant properly preserves in the district court and adequately presents on appeal:

This court has on a number of recent occasions recognized that waiver principles developed in other litigation contexts are equally applicable to social security cases. Thus, waiver may result from the disability claimant's failure to (1) raise issues before the magistrate judge, Marshall[ v. Chater, 75 F.3d 1421, 1426 (10th Cir.1996) ], (2) object adequately to the magistrate judge's recommendation, Soliz[ v. Chater, 82 F.3d 373, 375-76 (10th Cir.1996) ], (3) preserve issues in the district court as a general matter, Crow v. Shalala, 40 F.3d 323, 324 (10th Cir.1994), or (4) present issues properly to this court, Murrell v. Shalala, 43 F.3d 1388, 1389-90 (10th Cir.1994).

James v. Chater, 96 F.3d 1341, 1344 (10th Cir.1996). In particular, if on appeal a claimant challenges only one of two alternative rationales supporting a disposition, "[t]his choice of litigation strategy necessarily carries with it adverse consequences for [the] appeal as a whole. Since the unchallenged [rationale] is, by itself, a sufficient basis for the denial of benefits, [claimant's] success on appeal is foreclosed--regardless of the merits of [the] arguments relating to [the challenged alternative]." Murrell, 43 F.3d at 1389-90.

In this case, the magistrate judge recounted and upheld the Secretary's determination that plaintiff could return to the past relevant work identified by the vocational expert and, thus, was not disabled at step four. The magistrate judge did not stop there, however:

The Court also finds that even if Plaintiff could establish that she was incapable of performing her past relevant work, there is sufficient evidence in the record establishing that even with Plaintiff's current impairments, there are a significant number of other jobs in the national economy which she is capable of performing. That is, there is sufficient evidence in the record for the Secretary to carry her burden at step five of the sequential evaluation process. The ALJ described the following hypothetical person to the vocational expert: (1) 51 years old, (2) ninth grade education, (3) medium ability to read, write and use numbers, (4) can perform sedentary or light work, (5) has back problems, ulcers and a hernia, (6) has chronic pain, and (7) has to change position from time to time to relieve pain. R. at 185. The Court finds that this hypothetical adequately describes Plaintiff's impairments. With respect to this hypothetical person, the vocational expert described five different jobs with approximately 10,000 positions in Oklahoma. R. at 186. This is sufficient to carry the Secretary's burden at step five.

For the foregoing reasons, the Secretary's decision is AFFIRMED.

R. I at 16.

Plaintiff has offered no challenge to the latter, equally dispositive rationale for affirming the Secretary's decision. On the contrary, plaintiff complains only that the ALJ failed to identify the functional demands of pertinent (past) work and delegated to the vocational expert the task of matching such demands to her impairments, neither of which is improper at step five:

At step five of the sequential analysis, an ALJ may relate the claimant's impairments to a VE and then ask the VE whether, in his opinion, there are any jobs in the national economy that the claimant can perform. This approach, which requires the VE to make his own...