Case Information
*1 Before HULL, MARTIN and JULIE CARNES, Circuit Judges.
PER CURIAM:
Thomas Windle Atha, Jr. appeals the district court’s order affirming the Social Security Administration’s denial of his application for supplemental security income (“SSI”), pursuant to 42 U.S.C. § 1383(c)(3). The administrative law judge (“ALJ”) found that Atha suffered from several severe impairments—status post fractures to his left knee and leg, mild degenerative disc disease, depression, alcohol dependence, a history of substance abuse, and low average to borderline intellectual functioning—that made him unable to perform his past relevant work installing vinyl siding, hanging sheet rock, and assembling trailers. The ALJ, however, also found that Atha was not disabled because there were a significant number of other, sedentary jobs he could still perform despite his impairments. On appeal, Atha argues that: (1) substantial evidence does not support the ALJ’s finding that there were a significant number of jobs he could perform; and (2) the Appeals Council did not adequately review his new evidence when it denied his request for review. After review, we affirm. [1]
I. THE FIVE-STEP EVALUATION
A claimant for SSI benefits must prove he is disabled. 20 C.F.R. § 416.912;
Moore v. Barnhart,
The claimant bears the burden to prove the first four steps. If the claimant
does so, the burden shifts temporarily to the Commissioner to prove the fifth step.
20 C.F.R. § 416.920(a)(4)(v) & (g); see also Jones v. Apfel,
At the fifth step, the Commissioner can carry her burden through the
testimony of a vocational expert (“VE”). Jones,
II. SIGNIFICANT NUMBERS IN THE NATIONAL ECONOMY Further, under the statutory provisions governing SSI benefits, a person is not disabled unless he cannot “engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.” 42 U.S.C. § 1382c(a)(3)(B). These provisions make clear that “‘work which exists in the national economy’ means work which exists in significant numbers either in the region where such individual lives or in several regions of the country.” Id. (emphasis added). Likewise, the implementing regulations state that work exists in the national economy when the work “exists in significant numbers either in the region where [the claimant] live[s] or in several other regions of the country.” 20 C.F.R. § 416.966(a). The regulations clarify that “[i]t does not matter whether . . . [w]ork exists in the immediate area in which [the claimant] live[s],” whether a “specific job vacancy exists,” or if the claimant “would be hired if [he] applied for work.” Id. Thus, a claimant is considered “not disabled” if he “remain[s] unemployed because of . . . [la]ck of work in [his] local area.” Id. § 416.966(c). On the other hand, “[i]solated jobs that exist only in very limited numbers in relatively few locations outside of the region where [the claimant] live[s] are not considered work which exists in the national economy.” Id. § 416.966(b).
This Court has never held that a minimum numerical count of jobs must be
identified in order to constitute work that “exists in significant numbers” under the
statute and regulations. We have concluded, however, that the “appropriate focus
under the regulation is the national economy,” not the local economy in which the
claimant lives. Allen v. Bowen,
In Allen v. Bowen, this Court upheld the ALJ’s finding that work existed in significant numbers were the VE testified that there were 174 small appliance repairman positions in the area of Georgia where the claimant lived. The VE also testified that there were 1,600 general appliance repair jobs in the entire state, and 80,000 such jobs nationally, of which “[a] considerable number . . . [were] in the small appliance field.” Id. at 602. This Court stressed in Allen that, because an ALJ’s finding as to the existence of a sufficient quantity of jobs is a finding of fact reviewed under the substantial evidence standard, we could not reweigh the evidence or “substitute our judgment for that of the Secretary.” Id. In light of the VE’s testimony, this Court concluded in Allen that the Secretary had “clearly achieved” his burden by substantial evidence. Id. The claimant’s additional evidence submitted to the Appeals Council was immaterial because it tended only to disprove the existence of jobs in the claimant’s local economy, when the proper focus was on “the existence of such jobs on a national scale.” Id. at 603.
III. ATHA’S APPEAL OF ALJ’S FIFTH-STEP FINDING On appeal, Atha does not challenge the ALJ’s findings as to the first four steps. Atha argues only that the ALJ erred in relying on the VE’s testimony to find, at the fifth step, that a significant number of jobs existed in the national economy that Atha could perform despite his RFC, age, education, and work experience. [2] In particular, Atha does not dispute the VE’s job numbers or contend that these are jobs he could not perform. He argues only that the number of jobs to which the VE testified does not constitute a “significant number” and thus he is disabled. [3]
Here, the ALJ’s fact finding that work existed in significant numbers in the national economy was based on the VE’s testimony that there were 440 jobs in Alabama and 23,800 jobs nationally that Atha could perform. In particular, the VE testified that a person with Atha’s RFC, age, education, and work experience could perform work as a surveillance system monitor, of which there were approximately 100 such jobs in Alabama and 7,600 nationally; as an inspector/sorter, of which there were approximately 240 such jobs in Alabama or 13,000 nationally; or as a machine tender, of which there were approximately 100 jobs in Alabama and 3,200 nationally.
Given that the proper focus is on the national economy, the ALJ’s finding that there were a significant number of jobs Atha could perform, and thus Atha was not disabled, is supported by substantial evidence.
IV. APPEALS COUNCIL’S CONSIDERATION OF NEW EVIDENCE
Atha argues the Appeals Council “failed to adequately consider” additional
medical records he submitted along with his request for review. In denying Atha’s
request for review, the Appeals Council stated that it had considered both Atha’s
reasons for disagreeing with the ALJ’s decision and the additional evidence Atha
included with his request, and that it “found that this information does not provide
a basis for changing the Administrative Law Judge’s decision.” Citing Epps v.
Harris,
In Mitchell v. Commissioner, Social Security Administration, this Court
recently concluded that the Appeals Council is not required to provide a detailed
explanation of a claimant’s new evidence when it denies a petition for review.
Mitchell,
Thus, under Mitchell, the Appeals Council was not required to discuss any further Atha’s new evidence or provide a more detailed explanation of its reasons for denying review. Atha’s reliance on Epps is misplaced. As we explained in
Mitchell, Epps involved an Appeals Council’s affirming the ALJ’s decision, and
thus Epps does not apply when, as here, the Appeals Council denies a petition for
review. Mitchell,
We also reject Atha’s argument that in light of the additional medical
records he submitted, the Appeals Council should have granted his petition for
review. The Appeals Council must grant a petition for review only if it finds that
the ALJ’s “action, findings, or conclusion is contrary to the weight of the
evidence,” including the new and material evidence. Ingram v. Comm’r of Soc.
Sec. Admin.,
Here, even considering the additional medical records Atha submitted, substantial evidence supports the ALJ’s denial of Atha’s SSI application. For example, Atha’s new mental health records indicated that Atha’s GAF score increased from 48 to 50 to as high as 60 as he continued his abstinence from drugs and mostly stayed sober. This evidence supports, rather than undermines, the ALJ’s finding that Atha’s past substance abuse was a material contributing factor to his disability, and that, in the absence of substance abuse, Atha had the RFC to perform some kinds of sedentary work. Although the new records noted Atha’s depression, none indicated that he was severely impaired as a result of his depression. Nor do any of the new records regarding Atha’s physical impairments indicate that he is more limited than reflected in the ALJ’s RFC assessment, and, in fact, the records show that he continued to work in vinyl siding as late as December 2009. In short, we cannot say that Atha’s new evidence rendered the Commissioner’s denial of SSI benefits erroneous.
AFFIRMED.
Notes
[1] Atha’s application for benefits originally sought both supplemental security income and disability insurance benefits. Before the district court, however, Atha amended his disability onset date to October 13, 2008, and he acknowledged that this change rendered him ineligible for disability benefits. ] The district court adopted the new onset date, and thus we review only the denial of Atha’s application for supplemental security income.
[2] We review the Commissioner’s findings of fact to determine whether they are supported
by substantial evidence and the Commissioner’s legal conclusions de novo. Ingram v. Comm’r
of Soc. Sec. Admin.,
[3] To the extent Atha’s brief stated in passing that part-time jobs should not be counted at
step five, he failed to preserve this issue for appeal because he did not meaningfully develop this
argument in his appeal briefs. See Cole v. U.S. Att’y Gen.,
[4] In Bonner v. City of Prichard,