* John J. Callahan, Acting Commissioner of the Social Security

Administration, is substituted for former Commissio ner Shirley S. Chater. See Fed. R. App. P. 43(c).

** This order and judgment is not binding precedent, e xcept under the doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions 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, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f), 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Claimant Ben E. McDade appeals from the district co urt’s order affirming the Commissioner’s denial of his application for di sability 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, a lleges disability arising from an incident on April 2, 1992, when he fell bac kwards 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 byloss 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 pr oblems. According to Mr. McDade, the resulting limitations were that he coul d lift five or ten pounds without losing his balance, sit for thirty-five min utes 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 leftbut not the right, and reach to the side but not overhead. Medical records show that, beginning one week afterhis fall, Mr. McDade sought medical treatment, reporting symptoms of ste adily progressing intensity. His treating physicians were unable to explain the severity of the problems he described. On August 25, 1992, a neurological surg eon diagnosed Mr. McDade1 Radiculitis is defined as an “[i]nflammation of the intradural portion of a

spinal nerve root . . . .” Stedman’s Medical Dicti onary1308 (25th ed. 1990).

2 Myelopathy is defined as a “[d]isturbance or diseas e of the spinal cord.” Stedman’s Medical Dictionaryat 1013. -3- with radiculitis 1 and recommended a lumbar selective nerve block. T he procedure was performed, but at a follow-up examination Mr. M cDade stated that he experienced no relief. In February 1993, while und ergoing physical therapy, he began to complain of neck problems. The neurologic al surgeon diagnosed cervical myelopathy 2secondary to C5-6 disc herniation and performed a cervical disketomy and fusion. After considering the evidence, including medical r ecords and testimony by Mr. McDade and a vocational expert, the ALJ appliedthe five-step sequential evaluation process and determined that Mr. McDade w as 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 deta il). A key to this determination was the ALJ’s finding that Mr. McDade’s testimony w as credible only “to the extent that it is consistent with the performance o f light work activity, with occasional stooping, bending, twisting and balancin g.” Appellant’s App., Vol. II at 21. The ALJ specified numerous reasons for disc ounting many of the impairments which Mr. McDade reported to his physic ians or raised in his testimony.-4-

At step four of the evaluation process, the ALJ dec ided that Mr. McDade did not have the residual functional capacity to pe rform his past relevant jobs of bus driver and chief of a road paving crew, but cou ld 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 jo bs existing in significant numbers in the national economy, consistent with Mr . McDade’s impairments and limitations. The Appeals Council denied Mr. McDade’s request forreview so that the ALJ’s decision became the final decision of the Com missioner. Upon judicial review in the district court, the magistrate judge recommended affirming the Commissioner’s decision and the district court adop ted the recommendation.

DISCUSSION On appeal, Mr. McDade contends that (1) in determin ing his residual functional capacity, the ALJ failed to consider the effects of his impairments and did not link the credibility analysis to specific e vidence; (2) in the step four determination, the ALJ failed to make a proper eval uation of the physical demands of his past relevant work and his ability t o meet them; and (3) in the step five determination, the Commissioner failed to prod uce substantial evidence that3 We note that Mr. McDade did not present the step fi ve issue to the Appeals

Council. Nonetheless, the court will not apply a w aiver 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 “iss ues 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.”). -5- he could perform a significant number of the altern ative jobs cited by the vocational expert. 3
This court reviews the Commissioner’s decision to d etermine whether his factual findings were supported by substantial evid ence in the record viewed as a whole and whether he applied the correct legal stan dards. 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 o f 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 dete rmining his residual functional capacity. Essentially, his contention i s 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 dete rmination 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 functiona l capacity, an ALJ has a duty at the step four level to make findings regarding t he 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 Se rvs. , 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. McDa de’s limitations permit him to perform the position that he called “expedit or.” 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 genera lly 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 identi fying the particular functional demands of Mr. McDade’s past job, either as perform ed 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” w ill 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 fourdetermination is dependent on Mr. McDade’s ability to be an “expeditor,” it is er roneous. The ALJ, however, also found that Mr. McDade could perform his past relevant work as truck driver. Mr. McDade’s sole c ontention on this finding is that he lacks the residual functional capacity to d o 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. McDa de’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 addit ional basis for affirming the ALJ’s denial of benefits, however, can be found in the step five-8-

determination that Mr. McDade was capable of performing other jobs which exist in significant numbers in the national economy. Atstep five, the Commissioner satisfies the burden of proving that the claimant i s 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 qu estion 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 hypothetic al is not binding on the ALJ if the question sets forth impairments which the ALJ d oes 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 packag er 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 st atistics were flawed and that her characterization of the exertional lev els of the alternative positions was incorrect. The ALJ established the expert’s ed ucation and experience, probed for bias, and allowed Mr. McDade’s attorney to ques tion the expert. Under these-9-

circumstances, we will not question the reliabilityof the testimony. See Trimiar v. Sullivan , 966 F.2d 1326, 1330-31 (10th Cir. 1992). Plainly , the testimony supplies substantial evidence of a significant numb er of positions which Mr. McDade could perform.

CONCLUSION After a careful review of the entire record, we agr ee with the district court that the ALJ applied the correct legal standards an d that the record contains substantial evidence supporting the ALJ’s findings and conclusions. Therefore, the judgment of the United States District Court fo r the Eastern District of Oklahoma is AFFIRMED. Entered for the Court Michael R. Murphy Circuit Judge