* Pursuant to Fed. R. App. P. 43(c), Kenneth S. Apfel is substituted for

Shirley S. Chater, former Commissioner of Social Se curity, as the defendant in this action.

** This order and judgment is not binding precedent, e xcept under the doctrines of law of the case, res judicata, and col lateral estoppel.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 

### MAR 9 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

BLAINE A. ADAMS,

Plaintiff-Appellant,

v. KENNETH S. APFEL, Commissioner of Social Security Administration, *

Defendant-Appellee. No. 97-5140 (D.C. No. 96-CV-395-J) (N.D. Okla.)

ORDER AND JUDGMENT **

Before BALDOCK , EBEL , 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 oral1 The parties consented to proceed before the magistr ate judge pursuant to

28 U.S.C. § 636(c)(1). -2- argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. Th e case is therefore ordered submitted without oral argument. Claimant Blaine A. Adams appeals from an order of t he magistrate judge 1 affirming the denial of disability benefits at step five of the disability determination. See Williams v. Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988) (explaining the five-step analysis set out in 20 C. F.R. § 404.1520). After reviewing the record to determine whether substanti al evidence supports the decision of the Commissioner of Social Security andwhether correct legal standards were applied, this court affirms. See Washington v. Shalala , 37 F.3d 1437, 1439 (10th Cir. 1994).

BACKGROUND Mr. Adams, who is presently thirty-seven years old, has not worked since he sustained an on-the-job injury to his left wristin the summer of 1991. The medical records document multiple surgeries perform ed on his wrist and show that he has no range of motion in the wrist, reduce d thumb movement, decreased grip strength, and hand pain. An examining physici an concluded that, post-surgery, Mr. Adams has a 33% permanent partial impairment to the hand. The records reflect the opinions of both treating a nd examining physicians that-3-

Mr. Adams may no longer do heavy work (as required in his former positions of machine operator, custodian, yard worker, and la undry worker) and their recommendations of retraining for lighter work. At the hearing before the Administrative Law Judge (ALJ), Mr. Adams testified about other problems relating to his disa bility, such as restrictions on walking, sitting, standing, and reaching, due to kn ee surgery and the use of his hip as a graft donor site for the wrist surgery. He al so described severe hand and hip pain. In response to the ALJ’s hypothetical questi ons, a vocational expert (VE) testified about positions available for an individu al who could do unskilled light work, limited by the absence of range of motion in the left wrist, lack of grip strength, restricted use of the left wrist and arm, the need to shift position to alleviate pain, and restricted walking and climbing . According to the VE, the hypothetical individual could work as a cashier or parking-lot attendant. In his written decision, the ALJ evaluated the evid ence and found that Mr. Adams has the residual functional capacity (RFC ) to do light work, reduced by the same restrictions presented in the hypotheti cal questions to the VE. Although this RFC precluded Mr. Adams from performi ng his past relevant work, the ALJ found, relying primarily on the testi mony of the VE, that Mr. Adams could perform a significant number of job s in the national economy. He concluded, therefore, that Mr. Adams is not disabled.-4- DISCUSSION The essence of Mr. Adams’ first contention on appea l is that the RFC assessment does not include his claimed pain and other manipulative limitations. The ALJ properly considered Mr. Adams’ testimony inlight of the objective evidence; determined that Mr. Adams experienced chr onic, but not disabling, pain; and then took this pain into account in deter mining Mr. Adams' RFC.
See Kepler v. Chater , 68 F.3d 387, 390-91 (10th Cir. 1995) (discussing proper consideration of complaints of disabling pain); Tho mpson v. Sullivan , 987 F.2d 1482, 1490-91 (10th Cir. 1993) (requiring consideration of nondisabling pain in RFC determination). The ALJ could have been mor e explicit in describing Mr. Adams’ documented manipulative restrictions. T he limitations included in the assessment, however, are comprehensive enough t o encompass his reduced thumb motion and difficulties with repetitive manip ulative tasks. Mr. Adams also asserts that the VE’s identificationof alternative jobs should be discounted because the testimony (1) relates to the allegedly flawed RFC determination and (2) conflicts with job data i n the Dictionary of Occupational Titles (DOT). See United States Dept. of Labor, Employment & Training Admin., Dictionary of Occupational Titles (4th ed. 1991). As noted above, the hypothetical questions correspond with the RFC assessment, which this court has found acceptable. An ALJ’s hypothetical questions to a VE need not2 Compare Porch v. Chater , 115 F.3d 567, 572 (8th Cir. 1997) (“When expert

testimony conflicts with the DOT, and the DOT class ifications are not rebutted, the DOT controls.”) with Johnson v. Shalala , 60 F.3d 1428, 1436 (9th Cir. 1995) (“It was . . .proper for the ALJ to rely on expert testimony to find that the claimant could perform the two types of jobs the expert identified, regardless of their [DOT] classification.”), and Conn v. Secretary of Health & Human Serv. , 51 F.3d 607, 610 (6th Cir. 1995) (“[T]he ALJ was withi n his rights to rely solely on the VE’s testimony. The social security regulation s do not require the Secretary or the expert to rely on [DOT] classifications.”).

3 On appeal, counsel for Mr. Adams acknowledges that this court has not had occasion to resolve the issue. See Appellant’s Brief at 20 (“The law is [sic] in this circuit is unclear as to [sic] degree an ALJ i s permitted to rely on vocational expert testimony which contradicts the DOT.”). We note, with disapproval, his lack of candor in the district court, in which he s uggested that the law is so wellestablished that citation to supporting authority w ould be redundant. See Plaintiff’s Memorandum Brief at 2. -5- include a claimant’s unsubstantiated complaints. S ee Evans v. Chater , 55 F.3d 530, 532 (10th Cir. 1995). Equally unavailing is Mr. Adams’ argument concernin g a contradiction between the VE’s testimony about the positions of c ashier and parking-lot attendant and dexterity requirements purportedly inthe DOT. As the magistrate judge observed, other courts of appeal have disagre ed on the relative weight to be given to the DOT and contradictory testimony of a V E, 2 and this court has not specifically addressed the issue. 3 The record in this case presents no reason to resolve the issue. Counsel did not come forward wi th data from a published4 The assertion that the DOT requires average finger and manual dexterity to

perform the cashier and parking-lot positions is a misstatement. The DOT does not list these aptitudes. See DOT, Vol. I, at 183 (cashier); id. , Vol. II, at 929 (parking-lot attendant). Another publication of th e United States Department of Labor, Employment & Training Administration, Select ed Characteristics of Occupations Defined in the Revised Dictionary of Oc cupational Titles (1993), includes the physical demand components of frequentfingering and handling, but does not refer to aptitudes. See id. at 333 (cashier), 365 (parking-lot attendant). Mr. Adams has attached materials to his brief witho ut requesting supplementation of the record or indicating whether the materials a re part of the district court record. We note that these materials, which do dis cuss dexterity, appear to be print-outs from a private database service. -6- source until he sought judicial review. Even in th is court, he has not properly submitted or identified his proffered information. 4 At step five, the Commissioner bears the burden of establishing that claimant can perform work existing in the national economy. See Saleem v. Chater , 86 F.3d 176, 178 (10th Cir.1996). The regulation s authorize two alternative avenues of proof. See Gay v. Sullivan , 986 F.2d 1336, 1340 (10th Cir. 1993). The ALJ may take administrative notice of j ob information in the DOT and other governmental sources, see 20 C.F.R. § 404.1566(d), or use the services of a VE for the “complex issue” of determining whet her the claimant’s work skills “can be used in other work and the specific occupations in which they can be used,” 20 C.F.R. § 404.1566(e). Although it is the ALJ who decides whether to employ the services of a VE, see id. , “nothing prevent[s] counsel from challenging the expert’s figures and conclusions wi th data available from other,-7-

administratively noticed publications, which is a r ecognized means of discrediting expert vocational testimony,” Gay v. Sullivan , 986 F.2d at 1340 n.2. During Mr. Adams’ hearing, at which he was represented by experienced counsel, the ALJ exercised his option to call a VE. The ALJ established the expert’s education and experience, probed for bias, and received testimony responsive to his hypothetical questions. On cross -examination, Mr. Adams’ counsel questioned the expert at length, but did no t raise the issue of dexterity requirements. Moreover, counsel did not request ad ministrative notice of contradictory data, before, during, or after the he aring. Under these circumstances, our assessment of the reliability of the expert’s figures and conclusions “is effectively foreclosed.” Id. The judgment of the United States District Court fo r the Northern District of Oklahoma is AFFIRMED.

Entered for the Court

Michael R. Murphy Circuit Judge