Deherrera v. Apfel, (10th Cir. 1999)

Text

---

UNITED

STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

PRISCILLA DEHERRERA,

Plaintiff-Appellant,

v.

KENNETH S. APFEL, Commissioner,

Social Security Administration,

Defendant-Appellee.

No.
name="1">99-1131

(D.C. No. 98-B-613)

(D. Colo.)

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

Before ANDERSON, BARRETT, and

BRISCOE, 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); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

Claimant Priscilla DeHerrera appeals from the district court's order

affirming the decision of the Commissioner of Social Security denying her

application for disability insurance benefits under Title II of the Social Security

Act. Agency regulations establish a five-step sequential analysis to evaluate

disability claims. See Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988)

(describing five steps in detail). Here, the administrative law judge (ALJ)

reached step five of the analysis, determining that claimant could perform jobs

which exist in significant numbers in the national economy.

Claimant filed suit in district court; the court affirmed the agency's denial

of benefits. Our jurisdiction over this appeal arises under 28 U.S.C. § 1291. Our

review of the agency's decision is limited to determining whether the decision is

supported by substantial evidence in the record as a whole and whether the

correct legal standards were applied. See Castellano v. Secretary of Health &

Human Servs., 26 F.3d 1027, 1028 (10th Cir. 1994). On appeal, claimant

contends that the ALJ erred in 1) relying on the hearing testimony of a vocational

expert (VE) based on an allegedly improper hypothetical; 2) finding that claimant

had no nonexertional impairments; 3) rejecting opinions from claimant's treating

physicians that she was disabled; and 4) discounting claimant's credibility.

As part of her argument challenging the ALJ's hypothetical to the VE,

claimant contends that because she was fifty years of age at the hearing before the

ALJ, she should have been considered a person "closely approaching advanced

age." See Appellant's Br. at 20-21. Agency regulations state that any claimant

under age 50 is a "younger person." See 20 C.F.R. § 404.1563(b). The

next

category, "approaching advanced age," covers persons from age 50 to 54. See

id.

§ 404.1563(c). Claimants age 55 or older are in the "advanced age" category.

See

id. § 404.1563(d). Although the ALJ's decision correctly notes that claimant

is a

person "approaching advanced age," see Appellant's App., Vol. I at 21, the

hypothetical the ALJ posed to the VE at the hearing included an age range of 45

to 50 years, see id. at 238. Claimant contends that the hypothetical

misstated her

age and therefore precluded the ALJ from considering whether she was disabled

in light of her inability to perform a full range of light work and a lack of

transferable skills. See Appellant's Br. at 21. However, the agency's regulations

do not support claimant's argument. They provide that "advanced age" claimants

who are unable to perform medium work "may not be able to work unless [they]

have skills that can be used in (transferred to) less demanding

jobs . . . ." Id.

However, as to persons "approaching advanced age," such as claimant, the

regulations state only that the agency "will consider that [their] age, along with a

severe impairment and limited work experience, may seriously affect [their]

ability to adjust to a significant number of jobs in the national economy." Id.

§ 404.1563(c). Claimant does not contend that her age, recognized impairments,

and work experience present adjustment problems or challenge the ALJ's decision

or analysis on that basis. We conclude this argument lacks merit.

After careful review of the record on appeal and consideration of claimant's

remaining arguments in light of the applicable legal standards, we conclude that

substantial evidence supports the agency's decision and that the ALJ applied the

correct legal standards. Further, we conclude the district court correctly decided

this case. Therefore, for substantially the same reasons set forth herein and in the

district court's thorough order, dated February 26, 1999, the judgment of the

United States District Court for the District of Colorado is AFFIRMED.

Entered for the Court

Mary Beck Briscoe

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.

---