Gallegos v. Barnhart

92 F. App'x 775
CourtCourt of Appeals for the Tenth Circuit
DecidedMarch 30, 2004
Docket03-2072
StatusUnpublished

This text of 92 F. App'x 775 (Gallegos v. Barnhart) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gallegos v. Barnhart, 92 F. App'x 775 (10th Cir. 2004).

Opinion

ORDER AND JUDGMENT *

DAVID M. EBEL, Circuit Judge.

Plaintiff-appellant Martin Gallegos appeals from an order of the district court affirming the Commissioner’s decision denying his 1999 application for supplemental security income benefits. Plaintiff, who is 32 years old, has a tenth grade education, and has never held a job. He alleges that he became disabled when he was electrocuted at age thirteen; as a result, his right forearm and hand, and two toes on his left foot had to be amputated. He also suffered serious damage to his left hand, which was burned during the accident. He bases his disability claim on the limitations caused by these injuries, including extensive scarring on his left hand, which impairs his grip, and difficulty with standing, walking, and balance, due to his missing toes. The agency denied his application initially and on reconsideration.

An administrative law judge (ALJ) held a de novo hearing on plaintiffs application in July 2001. Shortly thereafter he issued a decision finding plaintiff not disabled within the meaning of 42 U.S.C. § 1382c(a)(3)(A) (defining disability). The ALJ determined that plaintiff retained the residual functional capacity (RFC) for a restricted range of light work of an unskilled nature, but limited him from performing repetitive actions with his remaining hand, and from lifting more than ten to fifteen pounds. The ALJ found that plaintiff had no past relevant work, but after eliciting testimony from a vocational expert (VE), the ALJ concluded that several unskilled light jobs, which plaintiff is exertionally capable of performing, exist in significant numbers in the regional and national economies. When the Appeals Council later denied plaintiffs request for review, the ALJ’s decision became the final decision of the Commissioner. The district court affirmed the Commissioner’s decision, 1 and plaintiff now appeals. We exercise jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291, and affirm.

Our review of the Commissioner’s decision is limited to determining whether the correct legal standards were applied and whether the Commissioner’s factual findings are supported by substantial evidence *777 in the record. Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir.2003). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (internal quotation marks omitted). “A decision is not based on substantial evidence if it is overwhelmed by other evidence in the record or if there is a mere scintilla of evidence supporting it.” Bernal v. Bowen, 851 F.2d 297, 299 (10th Cir.1988). “In reviewing the Commissioner’s decision we meticulously examine the record and view it in its entirety.” Williams v. Bowen, 844 F.2d 748, 750 (10th Cir.1988).

The Commissioner follows a five-step sequential evaluation process to determine whether a claimant is disabled. See 20 C.F.R § 416.920; Williams, 844 F.2d at 750-52 (explaining sequential evaluation). Plaintiffs claim was denied at step five of the sequential process. He raises two issues on appeal: (1) that the district court’s finding regarding plaintiffs RFC is not supported by substantial evidence and is contrary to law, and (2) that the district court committed reversible error in affirming the ALJ’s reliance on the testimony of the VE, which was contrary to the evidence and contrary to the Dictionary of Occupational Titles (4th ed. 1991) (DOT).

In essence, the first issue raised by plaintiff is that the ALJ ignored evidence regarding plaintiffs left arm and lower extremity impairments. We first address his left arm impairment. Plaintiff asserts that the district court’s approval of the ALJ’s use of the opinion of the examining doctor, Dr. Davis, that plaintiff is not precluded from frequent reaching, handling, or fingering is inconsistent with the ALJ’s finding that plaintiff is restricted from repetitive actions. Plaintiff presumes the terms “frequent” and “repetitive” are synonymous, but they are not. The DOT’S descriptions of two of the unskilled jobs in the light exertional level, identified by the VE at plaintiffs hearing, define the term “frequent” as from 33% to 66% of the time. By contrast, the term “repetitive” means from 66% to 100% of the time. See Aplt. App., Vol. II at 44-45 & 48. Because repetitive and frequent have different definitions, the ALJ’s findings are not inconsistent.

Plaintiff also complains that the ALJ ignored Dr. Davis’s finding that plaintiffs left wrist “extension [i]s limited to 20 degrees” and that the scarring on the palm of plaintiffs left hand is “extensive.” Id., Vol. II at 126. He contends that the ALJ viewed the evidence selectively, and ignored evidence that cast doubt on his conclusions. Having closely reviewed the record, we see no indication that the ALJ selectively viewed the evidence. Even though the ALJ did not explicitly mention plaintiffs limited left wrist extension and the extensive scarring on his left hand, the ALJ clearly accommodated Dr. Davis’s observations by concluding that plaintiff is restricted from performing repetitive actions with his left hand.

Plaintiff likewise contends that the ALJ erred by not acknowledging the state agency’s nonexamining doctor’s Physical Residual Functional Capacity Assessment, and that the district court improperly excused the ALJ’s failure to mention the Assessment by holding that the opinions of specialists are entitled to more weight than that of nonspecialists. In plaintiffs view, the district court’s holding is not supported by the record or by the regulations. He asserts that because the nonexamining doctor’s name is omitted from the Assessment the district court was precluded from comparing the physicians’ qualifications. In the alternative, he suggests that the nonexamining doctor is, of course, a specialist in disability determinations because the state would not retain a nonspecialist.

*? We agree with the district court that the ALJ’s failure to discuss the nonexamining doctor’s Assessment was not error. Our agreement is, however, based on different grounds. See United States v. Sandoval, 29 F.3d 537, 542 n. 6 (10th Cir.1994) (“We may affirm a district court decision on any grounds for which there is a record sufficient to permit conclusions of law, even grounds not relied upon by the district court.”) (internal quotation marks omitted). Here, the ALJ chose to accord Dr.

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92 F. App'x 775, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gallegos-v-barnhart-ca10-2004.