Campbell v. Bowen

• Decision Date: 09 July 1987
• Docket Number: No. 85-2160,85-2160
• Court: U.S. Court of Appeals — Tenth Circuit
• Parties: , Unempl.Ins.Rep. CCH 17,459 William R. CAMPBELL, Plaintiff-Appellant, v. Otis BOWEN, Secretary of the Department of Health & Human Services, Defendant-Appellee.

Page 1518

822 F.2d 1518

18 Soc.Sec.Rep.Ser. 385, Unempl.Ins.Rep. CCH 17,459

William R. CAMPBELL, Plaintiff-Appellant, v. Otis BOWEN, Secretary of the Department of Health & Human

Services, Defendant-Appellee.

No. 85-2160.

United States Court of Appeals,

Tenth Circuit.

July 9, 1987.

Eric G. Melders (Jack E. Gray, with him on the briefs), Oklahoma City, Okl., for plaintiff-appellant.

Debra Hollis (Edwin L. Meese, U.S. Atty. Gen., Washington, D.C., William S. Price, U.S. Atty., Oklahoma City, Okl., Gayla Fuller, Regional Atty., Patrick A. Hudson and Valerie Olds, Asst. Regional Attys., U.S. Dept. of Health and Human Services, Washington, D.C., on the brief), for defendant-appellee.

Before McKAY, McWILLIAMS and TACHA, Circuit Judges.

TACHA, Circuit Judge.

William R. Campbell appeals from a judgment of the district court affirming a denial of social security disability benefits. Campbell claims, among other things, that the Secretary of Health & Human Services erred in finding that substantial work exists which Campbell is capable of performing and that he is therefore not medically disabled. We reverse.

Appellant, a former carpenter and construction contractor, was diagnosed in 1970 as having a bi-polar psychosis, manic depressive type, and has been hospitalized several times for problems stemming from the disorder. He has also had arthritis of the knees. Campbell injured his right knee on the job in June 1980 and has not been able to work since December 1980.

Campbell filed an application for disability benefits on March 23, 1982, at the age of 55. The Secretary denied the claim initially, and again on reconsideration, after two physicians and a disability examiner reviewed the evidence and found Campbell was not disabled. Appellant's claim was reviewed de novo by an administrative law judge, who found that Campbell was capable of performing sedentary work and was therefore not disabled.

Campbell sought review before the Appeals Council. The Appeals Council found that while the claimant had a high school education, his schooling was not sufficient for direct entry into skilled work. The Council remanded the case to the administrative law judge, and directed the ALJ to obtain testimony from a vocational expert as to whether Campbell's skills were transferable to other types of work.

On remand, the ALJ heard testimony from Campbell and a vocational expert, who testified that Campbell's skills were transferable to four jobs in the "light" residual functional capacity category. After considering the evidence, the ALJ made findings of fact which included in relevant part:

3. The medical evidence establishes that the claimant has osteoarthritis of both knees and Bipolar Disorder, mixed with psychotic features, but that he does not have an impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, Regulations No. 4.

4. The claimant's subjective complaints, including pain, appeared exaggerated and out of proportion to the medical findings and, consequently, cannot be accepted as reasonable or accurate.

5. The claimant has the residual functional capacity to perform the physical exertion and nonexertional requirements of work except for work requiring standing or walking over approximately 6 hours of an 8-hour day, work requiring frequent bending or stooping due to his exertional impairments, or any work involving excessive stress due to his nonexertional impairment (20 CFR 404.1545)

6. The claimant is unable to perform his past relevant work as a carpenter in the construction industry.

7. The claimant's residual functional capacity for the full range of light work is reduced by his non-exertional limitations.

* * *

12. Although the claimant's additional nonexertional limitations do not allow him to perform the full range of light work, using the above-cited rule as a framework for decisionmaking, there are a significant number of jobs in the national economy which he could perform. Examples of such jobs are: mobile home park manager, lift truck operator, maintenance man of small commercial buildings, and ground keeper. There are a significant number of these jobs in the national economy.

Based on these facts the administrative law judge concluded that Campbell was not disabled within the meaning of the Social Security Act, 42 U.S.C. Sec. 423(d)(1)(A), and denied the claim for benefits.

The Appeals Council denied appellant's request for review, thereby making the ALJ's December 1983 decision the final decision of the Secretary. Appellant filed suit in the United States District Court for the Western District of Oklahoma, seeking review under Sec. 205(g) of the Social Security Act, 42 U.S.C. Sec. 405(g). The district court affirmed the Secretary's decision. Campbell now appeals from the decision of the district court.

I.

This court's function on review is to determine whether the Secretary's decision is supported by substantial evidence. 42 U.S.C. Sec. 405(g); Talbot v. Heckler, 814 F.2d 1456, 1461 (10th Cir.1987). Substantial evidence is more than a scintilla, but less than a preponderance; it is such evidence that a reasonable mind might accept to support the conclusion. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971).

42 U.S.C. Sec. 423(d)(1)(A) defines disability as, inter alia, the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." The Secretary evaluates disability claims by a five-step process, set out in 20 C.F.R. Sec. 404.1520 (1986). See Bowen v. Yuckert, --- U.S. ----, ----, 107 S.Ct. 2287, 2290, 96 L.Ed.2d 119 (1987) (describing the five-step process). If a finding of "disabled" or "not disabled" can be made at any step, further inquiry is not needed.

In this case, the Secretary proceeded through each of the five steps before determining that Campbell was not disabled. Campbell argues that the Secretary erred at steps three and five.

II.

Campbell contends that the ALJ erred at step three in finding that the combination of his impairments did not meet or equal the Listing of Impairments in 20 C.F.R. pt. 404, subpt. P, app. 1 (1986).

When a claimant has one or more severe impairments the Social Security Disability Benefits Reform Act of 1984 requires the Secretary to consider the combined effect of the impairments in making a disability determination. 42 U.S.C. Sec. 423(d)(2)(C). In this case, the Secretary properly considered the medical evidence and the claimant's testimony. The Secretary found that Campbell had not been able to work since December 1980, and that he had two impairments, osteoarthritis and bi-polar syndrome. The ALJ found that these impairments, alone or in combination, did not meet or equal the Listing of Impairments in appendix 1.

The appellant has not suggested how the combination of impairments might meet the criteria in the appendix. We have carefully reviewed the record and find that the Secretary's finding at step three is supported by substantial evidence.

III.

Campbell alleges several errors at step five of the Secretary's determination.

A.

Campbell argues that the Secretary erred in changing his initial finding that Campbell retained a residual functional capacity for sedentary work to a finding that he was capable of performing light work.

The Social Security Administration categorizes jobs in terms of the physical exertion required to perform them: sedentary, light, medium, heavy, and very heavy. 20 C.F.R. Sec. 404.1567 (1986). Light work primarily requires "a good deal of walking or standing," or it may involve "sitting most of the time with some pushing and pulling of arm or leg controls." 20 C.F.R. Sec. 404.1657(b) (1986). Light work may demand "lifting no more than twenty pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds." Id. Sedentary work, on the other hand, involves "lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools." 20 C.F.R. Sec. 404.1567(a) (1986). Sedentary work generally involves sitting, although it may require some walking or standing. Id.

The Secretary did not err, as appellant contends, by first finding a residual functional capacity of "sedentary" in his November 22, 1982 decision, and then on remand, changing that finding to a residual functional capacity of "light" following the December 23, 1983 hearing at which Campbell testified. The regulations provide that "[t]he administrative law judge shall take any action that is ordered by the Appeals Council and may take any additional action that is not inconsistent with the Appeals Council's remand order." 20 C.F.R. Sec. 404.977(b) (1986). The Appeals Council directed the ALJ to obtain testimony from a vocational expert as to the transferability of Campbell's skills to a range of work "within the claimant's residual functional capacity." The ALJ's redetermination of the residual functional capacity was not inconsistent with this order. Nor did the order bind the ALJ to his earlier decision. To hold otherwise would discourage administrative law judges from reviewing the record on remand, checking initial findings of fact, and making corrections, if appropriate. We decline to constrain the ALJ in a manner not mandated by the regulations.

B.

Campbell also charges that the Secretary improperly discounted his testimony that he was unable to work due to the pain in his knees.

The ALJ did not ignore Campbell's allegations of pain; rather, he properly weighed them in light of the medical evidence. ¹ The ALJ found that, while there was no doubt that Campbell did have some pain, "his testimony was not wholly credible or consistent with the medical evidence."

We give...