Trimiar v. Sullivan, 90-5249

• Decision Date: 23 April 1992
• Docket Number: No. 90-5249,90-5249
• Citation: 966 F.2d 1326
• Parties: , Unempl.Ins.Rep. (CCH) P 16567A, 2 NDLR P 337 Samuel TRIMIAR, Plaintiff-Appellant, v. Louis W. SULLIVAN, M.D., Secretary of Health and Human Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1326

966 F.2d 1326

37 Soc.Sec.Rep.Ser. 533, Unempl.Ins.Rep. (CCH) P 16567A,

2 NDLR P 337

Samuel TRIMIAR, Plaintiff-Appellant, v. Louis W. SULLIVAN, M.D., Secretary of Health and Human Services, Defendant-Appellee.

No. 90-5249.

United States Court of Appeals, Tenth Circuit.

April 23, 1992.

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

Peter Bernhardt, Asst. U.S. Atty., Tulsa, Okl. (Tony M. Graham, U.S. Atty., with him on the brief), for defendant-appellee.

Before ANDERSON and EBEL, Circuit Judges, and ANDERSON, Senior District Judge ^*.

ALDON J. ANDERSON, Senior District Judge.

Appellant Samuel Trimiar, a fifty-three year old bus driver who claims to be permanently disabled as a result of injuries to his right arm, appeals a district court decision affirming the denial by the Secretary of Health and Human Services ("Secretary") of an open period of benefits under the Social Security Act. We affirm the district court's decision, because it is supported by substantial evidence when the record is considered as a whole.

I. BACKGROUND

On July 20, 1982, Appellant sustained injuries to his right arm when he fell through a plate glass window. ¹ At the time, Appellant was forty-three years old and was employed as a bus driver in Tulsa, Oklahoma. Over the ensuing three years, Appellant required surgery and physical therapy, but nevertheless was left with permanent partial impairment of the right arm. On August 9, 1984, after initial denial by the Social Security Administration, Appellant was awarded retroactively a closed period of disability by a Health and Human Services Administrative Law Judge ("ALJ").

On October 30, 1985, Appellant filed an application for permanent disability due to radial nerve palsy in his right arm. His request was denied initially and upon reconsideration by the Social Security Administration. Appellant sought and was granted review by an ALJ who, on December 16, 1986, decided that Appellant was not disabled and was not therefore entitled to the benefits he claimed. The Appeals Council of the Department of Health and Human Resources vacated this decision and ordered further proceedings, including testimony from a vocational expert. After a hearing on November 25, 1987, an ALJ found that Appellant could perform light work ² without the use of his right arm and that he did not have nonexertional limitations. ³ The ALJ concluded that Appellant was not disabled. Decision of the Administrative Law Judge Bruce L. Evans, App. to Appellant's Br., Vol II, at 30. The Appeals Council remanded for further testimony from a vocational expert to determine whether "a significant number of unskilled jobs [are] available to the claimant, given his exertional and non-exertional limitations." Order of Appeals Council, id. at 20. On October 30, 1988, after further testimony, an ALJ concluded that Appellant was not disabled because a significant number of jobs existed in the local or national economy which Appellant could have performed. Decision of the ALJ, id. at 11-14. On June 7, 1989, the Appeals Council denied Appellant's claim for further review and let the decision stand as a final decision of the Secretary. Action of Appeals Council on Request for Review, id. at 7-8.

Appellant filed a complaint in the United States District Court for the Northern District of Oklahoma, seeking review of the Secretary's final decision pursuant to 42 U.S.C. § 405(g). Compl., App. to Appellant's Br., Vol. I, at 1-3. After oral argument, a United States Magistrate submitted findings and recommended that the ALJ's decision be affirmed. Findings and Recommendations of U.S.Magis., id. at 7-12. By order of September 25, 1990, the District Court adopted the findings and recommendation of the Magistrate and affirmed the Secretary's decision. Order of Dist.Ct., id. at 13. Appellant appealed to this Court. Notice of Appeal, id. at 14. We have jurisdiction to review the final decision of the United States District Court pursuant to 28 U.S.C. § 1291. ⁴

II. DISCUSSION

On appeal, Appellant's principal contention is that the findings of the ALJ, the Appeals Council, and the District Court were not based on substantial evidence and should be reversed. Appellant's Br. at 6-11. In making this argument, Appellant raises two grounds of error: (1) that the testimony of the vocational expert was favorable to the Appellant and required a different conclusion; and (2) that the Appellant should have been found disabled pursuant to the medical-vocational guidelines (the "grids"). ⁵ Id. at 11-16. Our review of the record convinces us that there is substantial evidence to support the ALJ's conclusion. Accordingly, we must reject the grounds of error set forth by the Appellant and affirm the District Court.

A.

At the outset, the Court notes its function in this matter. Judicial review of the Secretary's final decision is limited in scope by 42 U.S.C. § 405(g). ⁶ Our role "on review is to determine whether the Secretary's decision is supported by substantial evidence." Campbell v. Bowen, 822 F.2d 1518, 1521 (10th Cir.1987) (citation omitted). "The court may not reweigh the evidence or try the issues de novo or substitute its judgment for that of the Secretary." Pierre v. Sullivan, 884 F.2d 799, 802 (5th Cir.1989) (citation omitted). For our purpose, "[s]ubstantial evidence is more than a scintilla; it is such relevant evidence as a reasonable mind might deem adequate to support a conclusion." Jordan v. Heckler, 835 F.2d 1314, 1316 (10th Cir.1987) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). A finding of " 'no substantial evidence' will be found only where there is a 'conspicuous absence of credible choices' or 'no contrary medical evidence.' " Hames v. Heckler, 707 F.2d 162, 164 (5th Cir.1983) (quoting Hemphill v. Weinberger, 483 F.2d 1137 (5th Cir.1973)).

The Appellant bears the burden of proving disability within the meaning of the Social Security Act. Channel v. Heckler, 747 F.2d 577, 579 (10th Cir.1984). Having shown that his disability precludes return to his prior employment, the "burden of going forward shifts to the Secretary, who must show that the claimant retains the capacity to perform an alternative work activity and that this specific type of job exists in the national economy." Id. (citations omitted). Social Security Regulations mandate that the ALJ who determines a claim for benefits under the Social Security Act follow a five-step evaluation: (1) whether the claimant is currently working; (2) whether the claimant has a severe impairment; (3) whether the claimant's impairment meets an impairment listed in appendix 1 of the relevant regulation; ⁷ (4) whether the impairment precludes the claimant from doing his past relevant work; and (5) whether the impairment precludes the claimant from doing any work. 20 C.F.R. § 404.1520(b)-(f) (1991). "If at any point in the process the Secretary finds that a person is disabled or not disabled, the review ends." Gossett v. Bowen, 862 F.2d 802, 805 (10th Cir.1988) (citations omitted).

In the present case, the ALJ reached the fifth step in the evaluation process: whether the impairment precludes the claimant from doing any work. Decision of the ALJ, App. to Appellant's Br., Vol. II, at 14, pp 4-8. Relying on testimony from a vocational expert, the ALJ found that the Appellant retained the physical capacity to engage in light work of a nature not requiring use of the right arm. Id. at 12-13. Although the Appellant is unable to perform his past relevant work, his vocational skills were found to be transferable to other jobs which exist in substantial numbers in the region where he resides and in the national economy. Id. at 13. Accordingly, the ALJ concluded that the Appellant was not disabled under the Social Security Act at any time through the date of the decision. Id. at 14. We agree.

B.

Appellant first contends that the ALJ's finding of no disability is flawed. Appellant argues that he cannot engage in any other kind of substantial gainful activity which exists in significant numbers in the national economy and is therefore disabled. ⁸ Appellant's Br. at 11-14. This contention lacks support in the record. Appellant apparently cannot return to his former occupation as a bus driver; ⁹ however, the vocational expert testified that the Appellant could perform work in three unskilled jobs: escort driver, recreational facility attendant, and telephone solicitor. Tr. of Hr'g, App. to Appellant's Br., Vol. II, at 124-25. The expert testified that 650 to 900 such jobs exist in the state of Oklahoma. ¹⁰ Id. at 126. The ALJ found that "[t]hese jobs exist in substantial numbers in the region in which the claimant resides and in the national economy." Decision of the ALJ, id. at 14, p 9. Resolution of the issue raised by Appellant requires this Court to address what constitutes a "significant number" for purposes of the statute.

This Circuit has never drawn a bright line establishing the number of jobs necessary to constitute a "significant number" and rejects the opportunity to do so here. Our reluctance stems from our belief that each case should be evaluated on its individual merits. Notwithstanding our reluctance, we note that several factors go into the proper evaluation of significant numbers. The Eighth Circuit has succinctly stated these factors:

A judge should consider many criteria in determining whether work exists in significant numbers, some of which might include: the level of claimant's disability; the reliability of the vocational expert's testimony; the distance claimant is capable of travelling to engage in the assigned work; the isolated nature of the jobs; the types and availability of such work, and so on.

Jenkins v. Bowen, 861 F.2d 1083, 1087 (8th Cir.1988) (quoting Hall v. Bowen, 837 F.2d 272, 275 (6th Cir.1988)). "The decision should ultimately be left to the [ALJ's] common sense in weighing the statutory language as applied to a...