Collins v. Apfel, (10th Cir. 1998)

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UNITED

STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

ROBERT G. COLLINS,

Plaintiff-Appellant,

v.

KENNETH S. APFEL, Commissioner,

Social Security Administration,

Defendant-Appellee.

No.
name="1">98-2037

(D.C. No. CIV-96-1418-MV)

(D. N.M.)

ORDER AND JUDGMENT
name="txt*">(*)

Before BALDOCK, EBEL, 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) and 10th Cir. R. 34.1.9. The case is

therefore ordered submitted without oral argument.

Plaintiff Robert G. Collins appeals from an order of the district court

affirming the decision of the Commissioner to deny Social Security supplemental

security income (SSI) benefits at step five of the five-step sequential process for

determining disability. See Williams v. Bowen, 844 F.2d 748, 750-52 (10th

Cir.

1988) (discussing five-step process). After reviewing the record as a whole to

determine whether the Commissioner's findings are supported by substantial

evidence and whether he applied the correct legal standards, see Castellano v.

Secretary of Health & Human Servs., 26 F.3d 1027, 1028 (10th Cir. 1994), we

affirm.

BACKGROUND

Mr. Collins suffered an injury to his back on July 8, 1986, while working as

a grocery store stocker. He then filed an application for social security insurance

benefits. In connection with that earlier application, Mr. Collins was determined

to be disabled for a closed period through April 9, 1989. After that date, he was

determined to have the residual functional capacity for the full range of sedentary

work in spite of back and leg problems, knee pain, headaches, dizziness, learning

disabilities, solitary nature, and situational depression. See Collins v. Sec'y of

Health & Human Serv., CIV No. 91-0549 JP/JHG, 1992 WL 551422 (D.N.M.

Dec. 14, 1992), aff'd, No. 92-2286, 1993 WL 335811 (10th Cir. Aug. 26, 1993)

(affirming termination of entitlement to disability insurance benefits).

Next, Mr. Collins filed an application for SSI benefits, seeking a

determination of disability commencing August 27, 1993 based on pain, learning

disabilities, and depression. An Administrative Law Judge (ALJ) determined that

Mr. Collins was not disabled. The Appeals Council, however, granted Mr.

Collins' request for review and remanded the matter with directions to obtain

further evidence and evaluate his mental impairments and subjective complaints

in accordance with the disability regulations.

On remand, the ALJ complied with the directions of the Appeals Council.

After holding a hearing at which Mr. Collins and a vocational expert (VE)

testified, the ALJ issued the denial of benefits prompting this appeal.

Specifically, the ALJ found that: (1) Mr. Collins has a severe impairment or

combination of impairments, including back problems, a pain disorder associated

with psychological factors, a schizoid or schizotypal personality disorder, and

borderline to mentally retarded intellectual functioning; (2) none of these

impairments, solely or in combination, meets or equals the criteria of the relevant

listing of impairments, see 20 C.F.R., Pt. 404, Subpt. P, App. 1; (3) Mr. Collins is

limited to light work allowing for a change in position; (4) Mr. Collins is

illiterate, with a poor ability to deal with social interaction, cope with work

stresses, function independently, or carry out complex job instructions; (5) Mr.

Collins cannot return to any relevant past job; and (6) notwithstanding his

limitations, Mr. Collins can perform jobs existing in significant numbers in the

national and regional economies.

The Appeals Council denied Mr. Collins' request for review, so that the

decision of the ALJ became the final decision of the Commissioner. On judicial

review in the district court, the magistrate judge recommended that the ALJ's

decision be affirmed, and the district court adopted the recommendation.

DISCUSSION

In this court, Mr. Collins contends that the Commissioner's decision should

be reversed for essentially three reasons: (1) the ALJ failed to consider and make

explicit findings on all relevant medical evidence, all medically determined

impairments, and the combined effect of all impairments; (2) the ALJ 's

hypothetical questions to the VE took into account Mr. Collins' record for job

reliability before his back injury, but did not acknowledge the lack of such a

record after the injury; and (3) the ALJ failed to consider a prior administrative

finding of autism.

Mr. Collins' first claim of error attacks the substantiality of evidence

supporting the decision of the Commissioner. A review of the record, however,

demonstrates that substantial evidence supports the ALJ's finding that, despite

severe orthopedic and mental impairments, Mr. Collins can perform substantial

gainful activity. In hypothetical questions addressed to the VE, the ALJ

specifically described the limitations established by the medical evidence and, in

response, the VE identified a substantial number of jobs that an individual with

these limitations could perform.

Concerning Mr. Collins' next claim of error, this court agrees that

reliability is a factor in determining whether an individual can perform work for

which he will receive remuneration. See Wright v. Sullivan, 900 F.2d 675, 680

(3d Cir. 1990). In the social security context, however, the term "reliability"

refers to the claimant's ability to work on a consistent basis. See id. Thus, the

focus is on capability, not historical performance. As noted, the hypothetical

questions addressed to the VE included the information relevant to Mr. Collins'

ability to work. The omission of his lack of a recent work history does not

provide grounds for reversal.

Finally, Mr. Collins contends that the ALJ erred by failing to discuss the

impairment of autism. Contrary to his counsel's assertions, there is no medical

evidence that Mr. Collins is autistic. The term "autism" was introduced into this

case only through the prior ALJ's evaluation of whether Mr. Collins met Listing

12.05 for Mental Retardation and Autism. See 20 C.F.R., Pt. 404, Subpt. P,

App. 1. A review of the discussion demonstrates that the ALJ was assessing Mr.

Collins under the criteria for mental retardation, not autism. Counsel's attempts

to suggest a diagnosis of autism are inappropriate.

For substantially the reasons stated in the thorough analysis and

recommended disposition submitted by the magistrate judge, this court concludes

that the ALJ committed no reversible error in determining that Mr. Collins is not

disabled under the Social Security Act. We AFFIRM the judgment of the district

court.

Entered for the Court

Michael R. Murphy

Circuit Judge

FOOTNOTES

Click footnote number to return to corresponding location in the text.

*. 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.

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