Gibson v. Barnhart, (10th Cir. 2003)

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UNITED

STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

GARY A. GIBSON,

Plaintiff - Appellant,

v.

JO ANNE B. BARNHART,

Commissioner, Social Security

Administration,

Defendant - Appellee.

No.
name="1">02-6337

(D.C. No. 01-CV-1498-BA)

(W.D. Oklahoma)

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

Before KELLY, ANDERSON, and

O'BRIEN, 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.

Plaintiff Gary A. Gibson appeals the denial of his application for Social

Security disability benefits. The Commissioner denied benefits and the district

court(1) affirmed the decision. Our

jurisdiction arises under 42 U.S.C. § 405(g)

and 28 U.S.C. § 1291. We affirm.

I. Background

Mr. Gibson alleged that he was disabled due to back injuries and back pain.

A hearing was held before an administrative law judge (ALJ), at which testimony

was received from Mr. Gibson and a vocational expert. The ALJ also received

medical reports into evidence.

The ALJ denied benefits at step four of the five-step sequential evaluation

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

(discussing five steps). He determined that Mr. Gibson had the residual

functional capacity (RFC) to perform two of his past jobs, both requiring

"light" exertional capacity. Those two past jobs were production assembler and

resident aide. Although Mr. Gibson testified that he had performed other work,

the ALJ concluded that he could not return to those jobs.

Mr. Gibson raised two issues on appeal: (1) the ALJ erred in determining

that he retained the RFC to perform his past relevant work, and (2) the ALJ failed

properly to evaluate the medical evidence.

II. Legal Standards

We review the Commissioner's decision to determine whether it is

supported by substantial evidence and whether correct legal standards were

applied. See Hawkins v. Chater, 113 F.3d 1162, 1164 (10th Cir. 1997).

"Substantial evidence is 'such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.'" Soliz v. Chater, 82 F.3d 373, 375

(10th Cir. 1996) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)

(further quotation omitted)). We may neither reweigh the evidence nor substitute

our judgment for that of the [Commissioner]. See Barnett v. Apfel, 231 F.3d

687, 689 (10th Cir. 2000).

III. ALJ's Step Four Analysis

Mr. Gibson challenges the ALJ's conclusion that he retained the RFC to

perform his past jobs as a production assembler and resident aide. He claims the

ALJ failed to (1) identify sufficient medical evidence to support his conclusion,

(2) compare Mr. Gibson's subjective complaints to the medical evidence, and

(3) make findings regarding the physical and mental demands of Mr. Gibson's

past relevant work. He asserts that these failures require reversal under Winfrey

v. Chater, 92 F.3d 1017 (10th Cir. 1996).

In Winfrey, this court articulated three phases an ALJ must address in

making a determination at step four. The first phase requires an evaluation of the

claimant's RFC. Id. at 1023. The second phase entails an examination of the

demands of the claimant's past relevant work. Id. In the third phase, "the ALJ

determines whether the claimant has the ability to meet the job demands found

in phase two despite the mental and/or physical limitations found in phase one."

Id. Specific findings are required at all phases. Id.

(A) Phase one challenge ­ medical evidence

Mr. Gibson argues that in evaluating his RFC, the ALJ improperly relied on

the reports by Drs. Smith and Livingston to find that he had the RFC to perform

his past "light" jobs as a production assembler and resident aide. He maintains

that because both doctors stated that he could not return to his work, the ALJ's

conclusion is unsupported. This argument is specious. The work to which the

doctors stated Mr. Gibson could not return was his job as a shipping and receiving

clerk. Aplt. App., tab 3 at 158, 176. The ALJ did not find that Mr. Gibson could

return to this job, classified as "medium." See id. at 66-67 (testimony of

vocational expert).

Mr. Gibson also charges that the ALJ failed to point to medical evidence

in support of his finding that Mr. Gibson could perform "light" work. On the

contrary, the ALJ pointed to the reports of at least six medical providers to

support his finding. Id. at 27-29 (concluding that medical records provided

"ample support" for determination that Mr. Gibson could perform "light" work;

reviewing medical reports). We find it unnecessary to summarize the medical

evidence as was done by both the ALJ and the magistrate judge. Our review of

the record reveals that substantial evidence supports the conclusion that

Mr. Gibson could perform his past "light" jobs.

(B) Phase one challenge ­ subjective complaints

We turn to Mr. Gibson's second challenge to the phase one determination.

He complains that the ALJ did not compare his subjective complaints to the

medical evidence and did not analyze how his activities affected his credibility.

We construe this argument as challenging the ALJ's credibility findings on the

ground that they did not satisfy the requirement that they "be closely and

affirmatively linked to substantial evidence and not just a conclusion in the

guise of findings." Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995)

(quotation

omitted).

"Credibility determinations are peculiarly the province of the finder of fact,

and we will not upset such determinations when supported by substantial

evidence." Id. (quotation omitted). "'Kepler does not require a formalistic

factor-by-factor recitation of the evidence. So long as the ALJ sets forth the

specific evidence he relies on in evaluating the claimant's credibility, the dictates

of Kepler are satisfied.'" White v. Barnhart, 287 F.3d 903, 909 (10th Cir. 2001)

(quoting Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000)).

In this case, the ALJ explained his reasons for discounting Mr. Gibson's

testimony that his pain was disabling. Mr. Gibson testified that he needed to lie

down for four hours each day, yet no physician indicated that he needed to do so.

Aplt. App., tab 3 at 31. Similarly, Mr. Gibson's testimony that his medications

made him drowsy was not a complaint mentioned in the medical reports. Id.

The ALJ found that Mr. Gibson's description of his physical limitations was

at odds with the medical evidence that at least two physicians believed that he

could work. Id. Although Mr. Gibson testified he could sit for no longer than

fifteen minutes, he also stated that he had driven himself nonstop thirty-five miles

to the hearing that day­contradictory evidence the ALJ found undermined

Mr. Gibson's credibility. Id. The ALJ also noted the neurologist's observation

that Mr. Gibson exhibited "significant symptom magnification." Id. The ALJ

remarked that the medical evidence showed that Mr. Gibson sought relatively

infrequent treatment and that the treatment provided was very conservative. Id.

He found this "inconsistent with allegations of disability." Id.

Based on our independent review of the record, we conclude that the ALJ

adequately supported his credibility determination. It "was linked to specific

findings of fact, findings we are compelled to accept because they are fairly

derived from the record." White, 287 F.3d at 910.

(C) Phase two challenge ­ past relevant work

Mr. Gibson next argues that the ALJ failed to make the findings necessary

at phase two regarding the demands of Mr. Gibson's past relevant work. He

maintains that the ALJ abdicated his duty to make findings by relying on the

vocational expert's testimony. The ALJ noted with approval the portion of the

vocational expert's testimony relating to "light" jobs and concluded that those

jobs "precisely match[ed] the claimant's residual functional capacity." Aplt.

App., tab 3 at 33. He incorporated that testimony into his findings. "The ALJ

did not delegate the analysis to the vocational expert; instead, he quoted the VE's

testimony approvingly, in support of his own findings. . . . There was nothing

improper about this." Doyal v. Barnhart, 331 F.3d 758, 761 (10th Cir. 2003).

IV. ALJ's Evaluation of the Medical Evidence

Mr. Gibson claims that the ALJ did not evaluate fairly the medical

evidence submitted by the treating and consulting physicians. He argues that

Drs. Livingston and Smith placed permanent restrictions on Mr. Gibson's physical

abilities, such as avoiding repetitious bending, lifting, stooping, and twisting, as

well as weight-lifting limits. Mr. Gibson has not explained, however, how these

restrictions affect his ability to perform his past work as a production assembler

or a resident aide. We have compared the demands of those two jobs with the

limitations he alleges prevent him from performing them and we find no support

for his claim.

The Dictionary of Occupational Titles (DOT) states that neither job

requires bending or twisting, but both jobs require occasional stooping and

crouching. Dictionary of Occupational Titles, §§ 355.377-018

(resident aide);

737.684-034 (production assembler). The resident aide job also requires

occasional kneeling, but neither job requires crawling. Id. Both jobs also

require moderate lifting, but the weights to be lifted are within the limitations

imposed by Mr. Gibson's physicians. Id.

We cannot find that the ALJ unfairly or erroneously viewed the medical

evidence when he determined that Mr. Gibson could perform his past jobs as

a resident aide or production assembler. No physician opined that Mr. Gibson

could do no bending, lifting, stooping, or twisting. To the contrary, Drs. Smith

and Livingston believed Mr. Gibson could work, despite the restrictions they

recommended.

Mr. Gibson alludes to the DOT's characterization of the resident aide job as

"medium" exertional level. While this is true, see id.

§ 355.377-018, the ALJ

determined that this job was at the "light" level, as performed by Mr. Gibson.

A claimant is able to perform past relevant work if he can perform "'[t]he actual

functional demands and job duties of a particular past relevant job.'" Andrade v.

Sec'y of Health & Human Servs., 985 F.2d 1045, 1050 (10th Cir. 1993) (quoting

Social Security Ruling 82-61, 1982 WL 31387 (1982)). Moreover, Mr. Gibson

does not challenge the ALJ's determination that, as he performed it, the resident

aide job was "light" work. Accordingly, we conclude that the ALJ's

determination that Mr. Gibson could perform his past relevant work as a resident

aide or production assembler was supported by substantial evidence in the record.

V. Conclusion

The agency applied the correct legal standards and substantial evidence

supports the agency's decision. Accordingly, the judgment of the district court

is AFFIRMED.

Entered for the Court

Terrence L. O'Brien

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.

1. The parties consented to proceed

before a magistrate judge pursuant to

28 U.S.C. 636(c)(1).

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