Lowther v. Chater

• Court: Court of Appeals for the Tenth Circuit
• Decided: September 8, 1997
• Docket: 97-5022
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS SEP 8 1997 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk

MICHAEL E. LOWTHER,

Plaintiff-Appellant,

v. No. 97-5022 (D.C. No. 95-CV-919) JOHN J. CALLAHAN, Acting (N.D. Okla.) Commissioner, Social Security Administration, *

Defendant-Appellee.

ORDER AND JUDGMENT **

Before TACHA, MCKAY, and BALDOCK, 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

* Effective March 31, 1995, the functions of the Secretary of Health and Human Services in social security cases were transferred to the Commissioner of Social Security. P.L. No. 103-296. Pursuant to Fed. R. App. P. 43(c), John J. Callahan, Acting Commissioner of Social Security, is substituted for Donna E. Shalala, Secretary of Health and Human Services, as the defendant in this action. ** This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

Plaintiff appeals the Commissioner’s denial of disability benefits. Plaintiff

asserted that he had been disabled, since July 1991, from the residual effects of a

back injury, three back surgeries, and surgery on his left knee. The administrative

law judge (ALJ) determined, at step five of the applicable analysis, see 20 C.F.R.

§ 404.1520, that plaintiff remained capable of performing the unskilled sedentary

jobs of bench assembler and machine operator, which exist in significant numbers

in the national economy. See Saleem v. Chater, 86 F.3d 176, 178 (10th Cir. 1996)

(at step five, Commissioner bears burden of establishing that claimant can

perform work existing in national economy). The Appeals Council denied review,

making the ALJ’s determination the Commissioner’s final decision.

This court reviews the Commissioner’s decision to determine only that the

Commissioner applied the law correctly and that the record contains substantial

evidence to support the decision. See Bean v. Chater, 77 F.3d 1210, 1213 (10th

Cir. 1995). On appeal, plaintiff argues that the ALJ’s hypothetical question

eliciting the vocational expert’s (VE) testimony that there were jobs existing in

the national economy that plaintiff remained capable of performing, failed to

include all of plaintiff’s limitations. Our review of the record, however, indicates

that the ALJ included in his hypothetical question all of the limitations supported

-2- by the record. See Decker v. Chater, 86 F.3d 953, 955 (10th Cir. 1996). In light

of that, the VE’s testimony elicited by the hypothetical question provided

substantial evidence supporting the denial of benefits. See id. Further, in

determining plaintiff’s limitations, the ALJ properly analyzed his complaints of

disabling pain. See Kepler v. Chater, 68 F.3d 387, 390-91 (10th Cir. 1995)

(discussing proper analysis of complaints of disabling pain).

The judgment of the United States District Court for the Northern District

of Oklahoma is, therefore, AFFIRMED.

Entered for the Court

Bobby R. Baldock Circuit Judge

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