Patrick Harwood appeals the judgment of the district court, 1 which affirmed the denial of his application for social security disability benefits. The Social Security Administration denied Harwood’s initial application, and an Administrative Law Judge denied benefits after a hearing. The Appeals Council denied Harwood’s request for further review, and the ALJ’s decision became the final decision of the Commissioner. Harwood argues that the ALJ failed to fully and fairly develop the record, that the ALJ’s decision ignores Harwood’s limited intellectual abilities, and that the decision is otherwise not supported by substantial evidence. The district court held that Harwood waived the first two arguments because he failed to include them in his brief to the Appeals Council, and it rejected the third argument on its merits, holding that substantial evidence supported the ALJ’s rejection of Harwood’s subjective complaints of disabling pain. We affirm the judgment of the district court because we reject Harwood’s arguments on their merits.
Harwood is forty-three years old, has a tenth-grade education, and formerly worked as a jewelry manufacturer and
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cleaner. He stopped working in September 1994 because he experiénced pain throughout his shoulders, elbows, wrists, and hands. He applied for disability benefits on April 12, 1995, and the ALJ denied benefits in September 1996 after a hearing. The ALJ analyzed Harwood’s claim through the familiar five-step process set out by the Social Security Regulations.
See
20 C.F.R. § 404.1520(a)-(f) (1999);
McCoy v. Schweiker,
The ALJ’s conclusion was predicated upon a hypothetical question that he posed to a vocational expert. Harwood’s treating physician concluded that Harwood could perform “light” work with “no repetitive upper extremity activities,” provided that he receive the “opportunity for mini rest breaks for his upper extremities and to rotate activities.” The ALJ asked whether an individual with Harwood’s skills, work experience and physical limitations could find any unskilled jobs in the national economy. The vocational expert responded that an individual fitting the ALJ’s description could find work as a parking enforcement officer, a parking lot attendant, a house-sitter, or a driver. Based largely upon this evidence, the ALJ concluded that Harwood was not entitled to disability benefits.
We must uphold the ALJ’s decision if it is supported by substantial evidence.
See Metz v. Shalala,
At the outset, we reject the Commissioner’s argument that Harwood forfeited two of the three issues he now raises by failing to raise them before the Appeals Council. Although a party seeking judicial review of an agency action must generally exhaust available agency remedies and may not generally proceed upon an argument not made to the agency,
see McCarthy v. Madigan,
First, the Commissioner urges us to adopt a waiver rule that the agency does not itself enforce. The Appeals Council routinely considers arguments not specifically raised by claimants before it — a product of its duty to review an ALJ’s decision “in an informal, nonadversary (sic) manner” and a fitting analogue to the ALJ’s well-established duty to develop a full and fair record (even when, as here, claimants are represented by counsel).
See
20 C.F.R. §§ 404.900(b), 416.1400(b) (1999); Jon C. Dubin,
Torquemada Meets Kafka: The Misapplication of the Issue Exhaustion Doctrine to Inquisitorial Administrative Proceedings,
97 Colum. L.Rev. 1289, 1325-26 and n. 179 (1997);
Wilcutts v. Apfel,
Second and relatedly, the Appeals Council’s non-adversarial proceedings give claimants like Harwood no advance notice that issues not specifically raised will be forfeited. The Commissioner’s own regulations establish a one-page form, the HA-520, through which claimants who lose before the ALJ may request review by the Appeals Council. See 20 C.F.R. § 422.205(a) (1999). The form provides a three-line space for claimants to articulate the grounds for appeal — and no warning of the waiver rule that the Commissioner now urges. See Dubin, supra, at 1305, 1332. Indeed, Harwood himself received no notice of such a waiver rule. The ALJ’s written decision denying benefits stated that the Appeals Council “may review your case for any reason.” Further, the decision warned Harwood that he could not obtain judicial review unless he first sought review by the Appeals Council, or unless the Council reviewed the ALJ’s decision on its own motion. Nowhere did it state that Harwood would forfeit issues not raised to the Council, and the ALJ’s reassurance that the Council “may review your case for any reason” misleadingly implies otherwise. In effect, the Commissioner urges us to deny judicial review to those claimants who have relied upon the agency’s own professed duty to proceed in an “informal, nonadversary manner.” We decline to do so.
Third, we are not persuaded by the cases cited in support of the Commissioner’s position. As an initial matter, most of them involve issues that claimants failed to raise not only before the ALJ and the Appeals Council, but before the district court as well.
See Weikert v. Sullivan,
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Addressing the merits of Harwood’s claims, we first reject his argument that the ALJ did not fully and fairly develop the record. The ALJ’s hypothetical question to the vocational expert included the findings of Harwood’s treating physician, who concluded that Harwood could perform “light” work with “no repetitive upper extremity activities” if he received the “opportunity for mini rest breaks for his upper extremities and to rotate activities.” The vocational expert testified that an individual with Harwood’s skills, work experience, and physical limitations could work as a parking enforcement officer, a parking lot attendant, a house-sitter, or a driver. Harwood argues that the terms “repetitive” and “mini rest breaks” are ambiguous and that the ALJ should have clarified their meaning by posing interrogatories to Harwood’s treating physician. In particular, Harwood argues that “repetitive” could, on one hand, describe a job involving the same motion throughout the day, or, on the other, a job involving the same motion performed for discrete periods of time during the day. Further, he argues, the phrase “mini rest breaks” does not specify the frequency or duration of the breaks that Harwood needs. We are unpersuaded. The vocational expert stated that none of the jobs that Harwood could perform “are in
any sense
repetitive,” and the hypothetical question described one’s need for “normal breaks” during the working day. “A proper hypothetical question presents to the vocational expert a set of limitations that mirror those of the claimant.”
Hutton v. Apfel,
Harwood next argues that the ALJ’s finding ignores various intellectual deficiencies discovered during a vocational assessment in July 1995 — three months after Harwood applied for benefits. We reject this argument. First, Harwood misreads the record. The ALJ did not ignore the assessment, but rather declined to give it “any significant probative weight.” Second, the ALJ’s decision to discount the assessment was entirely reasonable. The assessment conflicted with those of Harwood’s treating and examining physicians, and it primarily concerned various transferable skills without assessing any unskilled work that Harwood might be capable of performing (such as that described by the vocational expert). Further, Harwood’s previous success as a cleaner and manufacturer of jewelry before the onset of his pain belies his claim that he lacks the intellectual capacity to perform the unskilled jobs described by the vocational expert. Although one’s physical ability to perform a job does not necessarily imply that he or she “has the mathematical, reasoning, or language skills to perform the duties [of the job] on a full-time basis in a sometimes competitive and stressful environment in the working world,”
Titus v. Callahan,
Finally, Harwood attacks the ALJ’s rejection of Harwood’s subjective complaints of disabling pain. “[T]he ALJ must ... set forth the inconsistencies in the record that lead him to reject the claimant’s complaints.”
Jeffery v. Sec. of
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Health & Human Servs.,
Under these standards, we conclude that substantial evidence supports the ALJ’s credibility determination. Harwood’s treating physician performed a functional capacity assessment and determined that Harwood was capable of light work that did not involve repetitive upper extremity motions. An orthopedic surgeon, in turn, found that Harwood’s upper extremity area was essentially normal with no localized tenderness or swelling, and determined that Harwood was capable of “light duty work” and should seek retraining for new job skills. Harwood told his physical therapist that he had only intermittent pain while working and no pain at rest or at night, and a physician who examined Harwood at the request of his workers’ compensation carrier turned down Har-wood’s request for a slip stating that he could not work because the physician “really didn’t think he was totally disabled from doing any type of job.” At one point, Harwood was discharged from physical therapy for failing to reschedule missed appointments.
See Thomas v. Sullivan,
For the foregoing reasons, the judgment of the district court is affirmed.
Notes
. The Honorable Richard H. Battey, United States District Judge for the District of South Dakota.
. See also Riggins
v.
Apfel,
. The first of these,
James v. Chater,
.
See Paul v. Shalala,