*

John J. Callahan, Acting Commissioner of the Social Security

Administration, is substituted for former Commissioner Shirley S. Chater. See

Fed. R. App. P. 43(c).

** This order and judgment is not binding precedent, except under the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.

F I L E D

United States Court of Appeals

Tenth Circuit

JUL 23 1997

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BEN E. MCDADE,

Plaintiff-Appellant,

v.

JOHN J. CALLAHAN, Acting

Commissioner of Social Security,*

Defendant-Appellee.

No. 96-7118

(D.C. No. CV-95-366-S)

(E.D. Okla.)

ORDER AND JUDGMENT**

Before BRORBY, BARRETT, 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), 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.
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Claimant Ben E. McDade appeals from the district court’s order affirming

the Commissioner’s denial of his application for disability insurance benefits and

supplemental security income. This court exercises jurisdiction under 42 U.S.C.

§ 405(g) and 28 U.S.C. § 1291, and affirms.

BACKGROUND

Mr. McDade, who is presently fifty-six years old, alleges disability arising

from an incident on April 2, 1992, when he fell backwards from a chair while

reading a newspaper at work. At the hearing before the administrative law judge

(ALJ), Mr. McDade testified that he was disabled by loss of balance, muscle

spasms, sharp pain all over his body, foot drag, a shoulder that locks up, loss of

neck motion, difficulty in swallowing, and sleep problems. According to Mr.

McDade, the resulting limitations were that he could lift five or ten pounds

without losing his balance, sit for thirty-five minutes before his side starts

burning, stand for up to thirty-five minutes, walk four blocks before becoming

tired, bend halfway down, move his neck to the left but not the right, and reach to

the side but not overhead.

Medical records show that, beginning one week after his fall, Mr. McDade

sought medical treatment, reporting symptoms of steadily progressing intensity. 

His treating physicians were unable to explain the severity of the problems he

described. On August 25, 1992, a neurological surgeon diagnosed Mr. McDade
1 Radiculitis is defined as an “[i]nflammation of the intradural portion of a

spinal nerve root . . . .” Stedman’s Medical Dictionary 1308 (25th ed. 1990).

2 Myelopathy is defined as a “[d]isturbance or disease of the spinal cord.” 

Stedman’s Medical Dictionary at 1013.

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with radiculitis1 and recommended a lumbar selective nerve block. The procedure

was performed, but at a follow-up examination Mr. McDade stated that he

experienced no relief. In February 1993, while undergoing physical therapy, he

began to complain of neck problems. The neurological surgeon diagnosed

cervical myelopathy2 secondary to C5-6 disc herniation and performed a cervical

disketomy and fusion.

After considering the evidence, including medical records and testimony by

Mr. McDade and a vocational expert, the ALJ applied the five-step sequential

evaluation process and determined that Mr. McDade was not under a disability as

defined in the Social Security Act. See Williams v. Bowen, 844 F.2d 748, 750-52

(10th Cir. 1988) (discussing the five steps in detail). A key to this determination

was the ALJ’s finding that Mr. McDade’s testimony was credible only “to the

extent that it is consistent with the performance of light work activity, with

occasional stooping, bending, twisting and balancing.” Appellant’s App., Vol. II

at 21. The ALJ specified numerous reasons for discounting many of the

impairments which Mr. McDade reported to his physicians or raised in his

testimony.
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At step four of the evaluation process, the ALJ decided that Mr. McDade

did not have the residual functional capacity to perform his past relevant jobs of

bus driver and chief of a road paving crew, but could perform his past jobs of

expeditor and truck driver. Alternatively, at step five, the ALJ determined that

the Commissioner had shown that there were other jobs existing in significant

numbers in the national economy, consistent with Mr. McDade’s impairments and

limitations.

The Appeals Council denied Mr. McDade’s request for review so that the

ALJ’s decision became the final decision of the Commissioner. Upon judicial

review in the district court, the magistrate judge recommended affirming the

Commissioner’s decision and the district court adopted the recommendation.

DISCUSSION

On appeal, Mr. McDade contends that (1) in determining his residual

functional capacity, the ALJ failed to consider the effects of his impairments and

did not link the credibility analysis to specific evidence; (2) in the step four

determination, the ALJ failed to make a proper evaluation of the physical

demands of his past relevant work and his ability to meet them; and (3) in the step

five determination, the Commissioner failed to produce substantial evidence that
3 We note that Mr. McDade did not present the step five issue to the Appeals

Council. Nonetheless, the court will not apply a waiver rule in this case because,

at the time he appealed to the Appeals Council, Mr. McDade did not have notice

of James v. Chater, 96 F.3d 1341, 1344 (10th Cir. 1996) (holding “issues not

brought to the attention of the Appeals Council on administrative review may,

given sufficient notice to the claimant, be deemed waived on subsequent judicial

review.”).

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he could perform a significant number of the alternative jobs cited by the

vocational expert.3

This court reviews the Commissioner’s decision to determine whether his

factual findings were supported by substantial evidence in the record viewed as a

whole and whether he applied the correct legal standards. See Castellano v.

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

Substantial evidence is “such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion.” Id. (quoting Richardson v. Perales, 402

U.S. 389, 401 (1971) (further quotations omitted). The court may neither reweigh

the evidence nor substitute its judgment for that of the Commissioner. See Casias

v. Secretary of Health & Human Servs., 933 F.2d 799, 800 (10th Cir. 1991).

First, Mr. McDade argues that the ALJ erred in determining his residual

functional capacity. Essentially, his contention is that the ALJ did not

acknowledge all his claimed limitations. The ALJ, however, properly considered

Mr. McDade’s subjective complaints in light of the objective evidence, see Kepler

v. Chater, 68 F.3d 387, 390-91 (10th Cir. 1995) (discussing proper consideration
-6-

of complaints of disabling pain), and specifically linked the credibility findings to

substantial evidence in the record, see Winfrey v. Chater, 92 F.3d 1017, 1020

(10th Cir. 1996). In doing so, the ALJ decided to credit some of Mr. McDade’s

alleged limitations and discount others. This determination is peculiarly within

the province of the finder of fact, see id., and the record on appeal presents no

reason to upset it.

Mr. McDade also claims error in the ALJ’s determination that he could

perform two of his four past jobs, the positions of expeditor and truck driver. 

After determining the claimant’s residual functional capacity, an ALJ has a duty

at the step four level to make findings regarding the physical and mental demands

of the claimant’s past relevant work and the ability of the claimant to perform

those demands. See Henrie v. United States Dep’t of Health & Human Servs., 13

F.3d 359, 361 (10th Cir. 1993). A vocational expert may supply information to

the ALJ about the claimant’s past relevant work as it is generally performed in the

national economy. See Winfrey, 92 F.3d at 1025; Social Security Ruling 82-61

(SSR 82-61).

From this record, it appears doubtful that Mr. McDade’s limitations permit

him to perform the position that he called “expeditor.” Mr. McDade testified that,

in this job, he “fixed kits for welders for trucks,” and had to lift “up to 35, 40

pounds.” Appellant’s App., Vol. II at 281-82. The vocational expert, without
-7-

elaborating on the duties of the position as generally performed, testified that it

required only light exertion.

Both the ALJ and the vocational expert used the term “expeditor” to refer

to a generic classification of jobs, without identifying the particular functional

demands of Mr. McDade’s past job, either as performed by him or in the national

economy. SSR 82-61 specifically warns against this practice, stating that the use

of a “broad generic, occupational classification” will lead to a “fallacious and

unsupportable” step four finding. See Evans v. Shalala, 21 F.3d 832, 834 (8th

Cir. 1994). To the extent that the ALJ’s step four determination is dependent on

Mr. McDade’s ability to be an “expeditor,” it is erroneous.

The ALJ, however, also found that Mr. McDade could perform his past

relevant work as truck driver. Mr. McDade’s sole contention on this finding is

that he lacks the residual functional capacity to do the job, because he does not

have the strength to push pedals or the ability to move his neck. As noted above,

it was the ALJ’s prerogative to disbelieve Mr. McDade’s testimony on these

limitations. Based on his findings concerning the job of truck driver, the ALJ

correctly denied benefits at the step four level.

The above conclusion is dispositive of Mr. McDade’s appeal. See Murrell

v. Shalala, 43 F.3d 1388, 1389-90 (10th Cir. 1994). An additional basis for

affirming the ALJ’s denial of benefits, however, can be found in the step five 
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determination that Mr. McDade was capable of performing other jobs which exist

in significant numbers in the national economy. At step five, the Commissioner

satisfies the burden of proving that the claimant is not disabled if his decision is

supported by substantial evidence. See Miller v. Chater, 99 F.3d 972, 975 (10th

Cir. 1996). 

At the hearing, the ALJ presented a hypothetical question to the vocational

expert, setting forth an individual of Mr. McDade’s age, education, and work

experience and describing the limitations he found credible and supported by the

evidence. Cf. Talley v. Sullivan, 908 F.2d 585, 588 (10th Cir. 1990) (observing

that a vocational expert’s response to a hypothetical is not binding on the ALJ if

the question sets forth impairments which the ALJ does not accept as true). The

vocational expert responded that such an individual could perform other jobs at

the light and sedentary levels, such as hand packager and filler. She testified that

there were at least 225,000 of these positions in the national economy and 2,400

in Oklahoma. A sit and stand option reduced these numbers by only twenty 

percent.

Mr. McDade suggests that the vocational expert’s statistics were flawed

and that her characterization of the exertional levels of the alternative positions

was incorrect. The ALJ established the expert’s education and experience, probed

for bias, and allowed Mr. McDade’s attorney to question the expert. Under these
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circumstances, we will not question the reliability of the testimony. See Trimiar

v. Sullivan, 966 F.2d 1326, 1330-31 (10th Cir. 1992). Plainly, the testimony

supplies substantial evidence of a significant number of positions which Mr.

McDade could perform.

CONCLUSION

After a careful review of the entire record, we agree with the district court

that the ALJ applied the correct legal standards and that the record contains

substantial evidence supporting the ALJ’s findings and conclusions. Therefore,

the judgment of the United States District Court for the Eastern District of

Oklahoma is AFFIRMED.

Entered for the Court

Michael R. Murphy

Circuit Judge