                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                            FOR THE TENTH CIRCUIT                      December 21, 2012

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
ANDREW T. BLOCK,

             Plaintiff-Appellant,

v.                                                        No. 12-6098
                                                   (D.C. No. 5:10-CV-01242-D)
MICHAEL J. ASTRUE, Commissioner,                          (W.D. Okla.)
Social Security Administration,

             Defendant-Appellee.


                            ORDER AND JUDGMENT*


Before KELLY, O’BRIEN, and MATHESON, Circuit Judges.


      Andrew T. Block appeals from the district court’s order affirming the Social

Security Commissioner’s denial of his application for supplemental security income

benefits. Mr. Block argues that the Administrative Law Judge (ALJ) (1) failed to

evaluate the medical evidence properly; (2) relied on incompetent vocational expert

(VE) testimony; and (3) erred in his credibility analysis. “We independently review


*
      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(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
the Commissioner’s decision to determine whether it is free from legal error and

supported by substantial evidence.” Krauser v. Astrue, 638 F.3d 1324, 1326

(10th Cir. 2011). “Substantial evidence is such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion. It requires more than a

scintilla, but less than a preponderance.” Wall v. Astrue, 561 F.3d 1048, 1052

(10th Cir. 2009) (internal quotation marks omitted). Exercising jurisdiction under

42 U.S.C. § 405(g) and 28 U.S.C. § 1291, we affirm.

                                 I. BACKGROUND

      Mr. Block was 21 years old when he filed for supplemental security income

benefits. He has a high school education and completed job training in residential

and commercial construction. He worked for brief periods as a cook, general

contractor, and landscaper.

      Mr. Block filed for benefits in May 2006, alleging he became disabled on

December 15, 2005, due to “[m]ental illness, bipolar I disorder, [d]epression

unspecified, . . . herniated disc in center back, right ankle has been broken 4 times,

[and] right leg shorter than left leg.” Admin. R. at 200. Benefits were denied

initially and on reconsideration. Mr. Block then requested and received a hearing

before an ALJ. The ALJ issued an unfavorable ruling, finding Mr. Block not

disabled at step four of the five-step sequential evaluation process for determining

disability. See Wall, 561 F.3d at 1052 (describing five steps). The Appeals Council,

however, issued an order vacating the ALJ’s decision and remanding the case to the


                                          -2-
ALJ for further proceedings, noting that Mr. Block did not have any past relevant

work. See Jozefowicz v. Heckler, 811 F.2d 1352, 1355 (10th Cir. 1987) (defining

past relevant work).

      The ALJ held a second hearing and issued a new decision, denying benefits at

step five of the sequential evaluation process. See Wall, 561 F.3d at 1052. The ALJ

found that (1) Mr. Block had not engaged in substantial gainful activity since the date

he filed his application for benefits; (2) he has severe impairments of low back pain,

recurrent right sprained ankle, obesity, bipolar disorder, anxiety disorder, and a

history of alcohol abuse; (3) these impairments, singly or in combination, did not

meet or medically equal any of the per se disabling impairments listed in 20 C.F.R.

Part 404, Subpart P, Appendix 1; (4) he has no past relevant work; and (5) he is

capable of making a successful adjustment to work that exists in significant numbers

in the national economy.

      The Appeals Council denied Mr. Block’s request for “review, making the

ALJ’s decision the Commissioner’s final decision.” Krauser, 638 F.3d at 1327.

Mr. Block appealed to this court after the district court adopted the magistrate

judge’s findings and recommendation to affirm the Commissioner’s denial of

benefits.




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                                  II. DISCUSSION

A.    Evaluation of the Medical Evidence

      Mr. Block challenges the ALJ’s evaluation of medical source statements from

(1) Dr. Stow, Mr. Block’s treating physician; (2) Kay Ramsey, Mr. Block’s mental

health counselor and case manager; and (3) both Ms. Ramsey and her supervisor,

Lynn Denslaw, a licensed clinical social worker.

      1.     Dr. Stow

      In Dr. Stow’s March 2008 Medical Source Statement-Physical (MSS-P), he

checked boxes indicating Mr. Block could lift and/or carry 10 pounds, stand and/or

walk 1 hour in an 8-hour workday with usual breaks, and stand and/or walk for

30 minutes continuously. He also checked boxes indicating Mr. Block could sit for

30 minutes continuously and for a total of 1 hour in an 8-hour workday with usual

breaks. Dr. Stow noted that Mr. Block’s ability to push and/or pull was limited

because he was wearing a right ankle brace and was unable to flex/extend his right

ankle. Dr. Stow further indicated that Mr. Block could frequently handle, finger and

feel; could never climb, balance, stoop, kneel, crouch, crawl or reach; and that he

needed to avoid heights. In answer to the question “Briefly describe in what ways

the impaired activities . . . are limited,” Dr. Stow stated that Mr. Block “has a bad

ankle,” “[b]ack pain due to herniated discs,” “[s]evere anxiety,” and “[h]eadaches.”

Admin. R. at 480.




                                          -4-
      Mr. Block argues that the ALJ did not adequately consider Dr. Stow’s opinion.

According to Mr. Block, the limitations identified in Dr. Stow’s MSS-P are supported

by medical evidence from doctors other than Dr. Stow. In his words, the “medical

evidence of record shows [he] was treated for right ankle pain and back pain by

medical health providers other than Dr. Stow” and “the evidence supports that he

has . . . significant back and right ankle impairments that result in significant

limitations.” Aplt. Br. at 13. Mr. Block also faults the ALJ for assigning “little

weight” to Dr. Stow’s MSS-P, contending that the ALJ did so without addressing the

factors for weighing opinion evidence. See 20 C.F.R. § 416.927(c). Mr. Block’s

arguments are unavailing.

      When analyzing a treating physician’s opinion, the ALJ first considers

“whether the opinion is well supported by medically acceptable clinical and

laboratory diagnostic techniques and is consistent with the other substantial evidence

in the record.” Pisciotta v. Astrue, 500 F.3d 1074, 1077 (10th Cir. 2007). If so, the

ALJ must give the opinion controlling weight. Id. But if the ALJ decides “the

treating physician’s opinion is not entitled to controlling weight, the ALJ must then

consider whether the opinion should be rejected altogether or assigned some lesser

weight.” Id. Relevant factors for weighing opinion evidence include:

      (1) the length of the treatment relationship and the frequency of
      examination; (2) the nature and extent of the treatment relationship,
      including the treatment provided and the kind of examination or testing
      performed; (3) the degree to which the physician’s opinion is supported
      by relevant evidence; (4) consistency between the opinion and the
      record as a whole; (5) whether or not the physician is a specialist in the

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      area upon which an opinion is rendered; and (6) other factors brought to
      the ALJ’s attention which tend to support or contradict the opinion.

Watkins v. Barnhart, 350 F.3d 1297, 1301 (10th Cir. 2003) (internal quotation marks

omitted). See also 20 C.F.R. § 416.927(c) (factors for weighing opinion evidence).

      Before evaluating Dr. Stow’s opinion, the ALJ described the medical evidence

provided by other physicians. See Admin. R. at 14-16. This is the same evidence

Mr. Block cites in support of his contention that he has “significant back and right

ankle impairments that result in significant limitations.” Aplt. Br. at 13. We

summarize that evidence here.

      Mr. Block’s history of back pain began in March 2003. Admin. R. at 302-05.

In February 2005, Mr. Block fell and sprained his right ankle. Id. at 293-97. In June

2005, about a week after reinjuring his right ankle, physical examination revealed

excessive inversion of the ankle but x-rays were normal. Id. at 279. Mr. Block was

diagnosed with recurrent ankle sprain. Id. In July 2006, a physical consultative

examiner made a similar diagnosis: “[c]hronic sprain of the right ankle (neglected).”

Id. at 314. In evaluating Mr. Block, the consultative examiner observed Mr. Block’s

gait without an ankle brace and reported that it was steady, stable, and secure without

any assistive devices. Id. The consultative examiner also found that Mr. Block had

pain on inversion of the right ankle and tenderness over the right lateral malleolus,

but both ankles’ ranges of motion were within normal limits and there was no

evidence of synovitis or arthritis in any joints examined. Id.



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      In August 2007, a physician examined Mr. Block for bilateral back pain. Id. at

442-45. Mr. Block reported a history of disc problems in his lower back, but had no

recent injuries. Id. at 442. Mr. Block’s back examination revealed negative straight

leg raising bilaterally and pain at about 50 degrees on the left. Id. at 444. In March

2008, Dr. Stow completed the MSS-P at issue. Id. at 479-80. In February 2009, after

a car accident, Mr. Block’s chest x-rays were normal, id. at 492, as was a cervical

spine series, id. at 493. X-rays of Mr. Block’s thoracic spine showed mild

levoscoliosis, but no acute abnormality, id. at 494, and he was diagnosed with

cervical/thoracic strain secondary to a motor vehicle accident, id. at 487. Several

days after the car accident, Dr. Stow examined Mr. Block. Dr. Stow’s examination

revealed Mr. Block was stiff and sore in the neck, tender to palpation, and his

shoulder range of motion was decreased. Id. at 528. Dr. Stow reported that

Mr. Block’s “[m]usculoskeletal system is normal. Gait is normal.” Id. Dr. Stow

diagnosed Mr. Block with a neck sprain. Id.

      Turning to Dr. Stow’s MSS-P, the ALJ concluded: “While Dr. Stow’s opinion

regarding the claimant’s limitations is probative and has been given due

consideration, . . . the medical opinion is not substantiated by the clinical findings

and is inconsistent with the other evidence of record.” Id. at 18. In support, and

contrary to Mr. Block’s position, the ALJ cited inconsistencies between Dr. Stow’s

opinion and other substantial evidence in the record.




                                          -7-
      For example, in contrast to the physical limitations described in Dr. Stow’s

MSS-P, Mr. Block’s July 2006 physical consultative exam revealed that he had full

strength in his extremities; normal ranges of motion in both ankles; and that his gait

was steady, stable, and secure without any assistive devices. The ALJ also noted that

Mr. Block “had neglected the chronic sprain of the right ankle and had not followed

up with medical care from his treating physician.” Id. See Decker v. Chater, 86 F.3d

953, 955 (10th Cir. 1996) (“The failure to follow prescribed treatment is a legitimate

consideration in evaluating the validity of an alleged impairment.”). Further,

although Dr. Stow indicated in the MSS-P that Mr. Block had back pain due to

herniated discs—and Mr. Block testified he is disabled due to back pain—Mr. Block

did not allege back pain during his physical consultative exam. The ALJ went on to

note that after Mr. Block was involved in the 2009 car accident, he had a normal

cervical spine x-ray series and his thoracic spine x-rays showed mild levoscoliosis,

but no acute abnormality. Thus, the ALJ decided to “give[] little weight to the

opinions and findings of Dr. Stow where they [we]re not supported by the signs,

symptoms and medical findings of record.” Id. at 18.

      We discern no error. Our review of the record confirms that the ALJ’s

decision not to give controlling weight to Dr. Stow’s opinion is supported by

substantial evidence.

      Further, in evaluating what weight to assign Dr. Stow’s opinion, the ALJ

properly considered the degree to which Dr. Stow’s opinion was supported by


                                         -8-
relevant evidence and the consistency between Dr. Stow’s opinion and the record as a

whole. See 20 C.F.R. § 416.927(c) (factors for weighing opinion evidence). The

ALJ’s summary of the medical evidence also made clear that Dr. Stow’s treatment of

Mr. Block was relatively infrequent. See id.1 It is not necessary for the ALJ to

address each factor for weighing opinion evidence expressly or at length. See

Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007) (observing that “not every

factor for weighing opinion evidence will apply in every case”) (alteration and

internal quotation marks omitted). What matters is that the decision is “sufficiently

specific to make clear to any subsequent reviewer[] the weight the adjudicator gave

to the . . . opinion and the reasons for that weight.” Id. (internal quotation marks

omitted). The ALJ’s decision meets this test.

      2.     Kay Ramsey and Lynn Denslaw

      In Ms. Ramsey’s February 2008 Medical Source Statement-Mental (MSS-M),

she checked boxes indicating Mr. Block had marked limitations in the ability to carry

out detailed instructions; maintain attention and concentration for extended periods;


1
       Thus, despite Mr. Block’s insistence that Dr. Stow examined him on
“numerous” occasions from 2004 to 2010, Mr. Block cites treatment notes from
seven office visits for conditions largely unrelated to back and right ankle pain. Aplt.
Br. at 12. See Admin. R. at 281 (ear pain and blurred vision); id. at 285 (same); id. at
474 (lump under right breast), id. at 470-73 (vomiting blood), id. at 528 (sprained
neck), id. at 525 (cyst removal), id. at 526 (cyst in groin area). Moreover, we note
that Dr. Stow left question E on the MSS-P blank. It reads: “Briefly describe the
principal, clinical and laboratory findings and symptoms or allegations (including
pain) from which the impairment-related capacities and limitations
indicated . . . were concluded.” Id. at 480.

                                          -9-
perform activities within a schedule, maintain regular attendance and be punctual;

work in coordination with or proximity to others without being distracted by them;

make simple work-related decisions; and complete a normal work day and workweek

without psychologically based symptoms, and perform at a consistent pace without

an unreasonable number and length of rest periods. Ms. Ramsey also checked boxes

indicating marked limitations in most areas of social interaction. See Admin. R.

at 482-83. In January 2010, a second MSS-M was completed and signed by both

Ms. Ramsey and Ms. Denslaw. It is nearly identical to the first MSS-M. Compare

id., with id. at 529-30.

       Mr. Block acknowledges that under the Social Security regulations

Ms. Ramsey and Ms. Denslaw are not “‘acceptable medical sources,’” that neither

can be considered a “treating sourc[e],” Aplt. Br. at 18-19, and that they cannot

provide a medical opinion or medical evidence establishing the existence of a

medically determinable impairment. See Frantz v. Astrue, 509 F.3d 1299, 1301-02

(10th Cir. 2007). Instead, they are classified as “other sources” whose opinions can

be considered “to show the severity of the individual’s impairment(s) and how it

affects the individual’s ability to function.” Soc. Sec. Ruling (SSR) 06-03p,

2006 WL 2329939, at *2 (Aug. 9, 2006).

       Mr. Block argues that the ALJ did not adequately consider Ms. Ramsey’s and

Ms. Denslaw’s mental medical source statements, broadly asserting that the ALJ did

not follow the analysis contemplated by SSR 06-03p or Frantz. We disagree.


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       In Frantz, we explained that SSR 06-03p was promulgated to clarify how the

agency considers opinions, like those of Ms. Ramsey and Ms. Denslaw, “from

sources who are not acceptable medical sources.” Frantz, 509 F.3d at 1301 (internal

quotation marks omitted). The same factors for weighing the opinions of acceptable

medical sources, see 20 C.F.R. § 416.927(c), “apply . . . to all opinions from medical

sources who are not acceptable medical sources,” Frantz, 509 F.3d at 1302.

Additionally, the ALJ is required to explain the amount of weight he assigns a

particular opinion:

       [T]he adjudicator generally should explain the weight given to opinions
       from these “other sources,” or otherwise ensure that the discussion of
       the evidence in the determination or decision allows a claimant or
       subsequent reviewer to follow the adjudicator’s reasoning, when such
       opinions may have an effect on the outcome of the case.

SSR 06–03p, 2006 WL 2329939, at *6. “In the case of a nonacceptable medical

source . . . , the ALJ’s decision is sufficient if it permits us to ‘follow the

adjudicator’s reasoning.’” Keyes-Zachary v. Astrue, 695 F.3d 1156, 1164 (10th Cir.

2012) (quoting SSR 06–03p, 2006 WL 2329939, at *6)).

       Here, the ALJ thoroughly detailed the contents of a July 2006 mental

consultative exam, see Admin. R. at 14-15, and treatment notes from the clinic where

Ms. Ramsey acted as Mr. Block’s case manager, see id. 15-16. Then, as to the first

MSS-M, the ALJ concluded:

       A case manager is not an acceptable medical source to provide medical
       evidence of the claimant’s impairment. She is not certified or licensed
       psychologist . . . . Furthermore, the[] marked limitations [identified] are
       not consistent with the medical evidence of record, including

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       [Ms. Ramsey’s] own reports and the psychiatrist’s reports at Red Rock
       Behavioral Health.

                . . . Ms. Ramsey’s opinion is given little weight.

Id. at 18-19. Turning to the second MSS-M, the ALJ noted that a social worker is not

an acceptable medical source and assigned the “opinion the same weight” as the first

MSS-M. Id. at 19.

       In assigning “little weight” to the mental medical source statements, the ALJ

observed that Mr. Block

       has continued medication management at Red Rock Clinic. He attended
       almost all of his scheduled appointments. . . . [He] was medically
       compliant most of the time and he reported no side effects. His speech
       is normal, mood is normal, and thought is oriented times three. He has
       no psychotic process such as delusions or hallucinations. His
       interaction is cooperative. His sleep is decreased. . . . He claimed he
       was doing okay. A few times he reported having depressive symptoms
       and his medications were adjusted. . . . [He was] reported [to have] a
       “drug seeking tendency with the benzo.”

Id. at 18-19.

       As mentioned above, Mr. Block asserts that, in assigning little weight to the

mental medical source statements, the ALJ did not follow the analysis contemplated

by SSR 06-03p and Frantz. Yet he does not specifically address how the ALJ

allegedly failed in this respect. Mr. Block states that he had a long treating

relationship with Ms. Ramsey. He urges, without detail, that her treating notes are

consistent with her mental medical source statements. Mr. Block asserts that

Ms. Denslaw was familiar with his treatment. And he complains that the only other

assessment of his mental abilities was from a psychological consultative examiner.

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As best we can discern, Mr. Block would like us “to engage in an impermissible

reweighing of the evidence and to substitute our judgment for that of the

Commissioner, an invitation we must decline,” Hackett v. Barnhart, 395 F.3d 1168,

1173 (10th Cir. 2005).

      In any event, the ALJ explained the weight he gave the mental medical source

statements: “little.” And the ALJ’s discussion of the evidence permits us to follow

his reasoning. As such, the ALJ’s decision on this point is satisfactory under our

precedent. See Keyes-Zachary, 695 F.3d at 1164.

B.    The Vocational Expert’s Testimony

      At step five of the sequential analysis, the ALJ asked a VE whether Mr. Block

might be capable of performing entry-level work in the regional and national

economy. As reflected in the hearing transcript, the ALJ asked the VE to assume a

hypothetical person who, among other things, “[c]an’t interact appropriately with

others at a superficial level, but not the general public, and can’t adapt to a work

situation . . . .” Admin. R. at 49 (emphasis added). In the ALJ’s written decision,

however, as part of Mr. Block’s residual functional capacity (RFC), the ALJ stated

that Mr. Block “can interact appropriately with others at a superficial level, but not to

include the general public. He can adapt to a work situation.” Id. at 12 (bold text

omitted) (emphasis added).

      Mr. Block asserts that the difference between the ALJ’s use of “can’t” at the

hearing and the ALJ’s use of “can” in his written decision, “in conjunction with the


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illogical VE response to the ALJ’s . . . hypothetical . . . does not constitute

substantial evidence sufficient to support a denial of benefits.” Aplt. Br. at 24. The

Commissioner counters that the transcriber inaccurately transcribed “can’t” and the

VE’s testimony provided substantial evidence to support the ALJ’s decision. In

support, the Commissioner points out that counsel for Mr. Block was present at the

hearing but did not mention the VE’s allegedly illogical response to the ALJ’s

hypothetical; that counsel did not raise the issue before the Appeals Council; and that

the hearing transcript was not created until after the Appeals Council denied

Mr. Block’s request for review, see 42 U.S.C. § 405(g) (“As part of the

Commissioner’s answer [to claimant’s civil action challenging the denial of benefits]

the Commissioner of Social Security shall file a certified copy of the transcript of the

record.”).

       Having reviewed the hearing testimony in its entirety and the administrative

record as a whole, we agree with the Commissioner that the presence of “can’t” in

the hearing transcript must have been a transcription error. To conclude otherwise

would be tantamount to ignoring the VE’s testimony, which was responsive to an

inquiry about a hypothetical person who can interact appropriately with others at a

superficial level, but not the general public, and who can adapt to a work situation.

The VE testified that the hypothetical person described by the ALJ could work as a

(1) price stamper, Dictionary of Occupational Titles (DOT) code 209.587-034;

(2) laundry sorter, DOT code 361.687-014; and (3) folding and inserting machine


                                          - 14 -
operator, DOT code 208.685-014. See Admin. R. at 49-51.2 Further, “[c]an’t interact

appropriately with others at a superficial level,” is incongruent with “but not the

general public.” Id. at 49 (emphasis added).

      Accordingly, we reject Mr. Block’s contention that the vocational evidence

was incompetent. The VE’s testimony demonstrates that he heard the ALJ say “can.”

The ALJ, who asked the question at the hearing and relied on his memory (and

perhaps an audio recording of the hearing, but not a transcript, see 42 U.S.C.

§ 405(g)), used the word “can” in his written decision. Indeed, even Mr. Block

concedes “that a typographical error may have occurred.” Id. at 25.

C.    Credibility Analysis

      The ALJ found Mr. Block’s statements concerning the intensity, persistence

and limiting effects of his symptoms not credible to the extent they were inconsistent

with his RFC. Mr. Block challenges this determination in the last 2½ pages of his

brief on appeal, contending the ALJ improperly evaluated Mr. Block’s allegations of

pain and based his determination on mistaken observations from the medical record.

      “Credibility determinations are peculiarly the province of the finder of fact,

and we will not upset such determinations when supported by substantial evidence.

However, findings as to credibility should be closely and affirmatively linked to

substantial evidence and not just a conclusion in the guise of findings.” Hackett,

395 F.3d at 1173 (citation, brackets, and internal quotation marks omitted).
2
      The ALJ relied on this testimony in concluding Mr. Block was not disabled.


                                         - 15 -
      The ALJ cited a number of grounds, tied to the evidence, for his adverse

credibility finding. The ALJ found (1) Mr. Block alleged disability due to lower

back pain but did not complain about back pain at a consultative physical exam;

(2) there was no showing of nerve root compression or radiculopathies requiring

invasive treatments or a showing that he required extensive physical therapy or other

conservative treatment; (3) he had not demonstrated considerable loss of motion or

muscle strength; (4) his gait was reported to be steady, stable, and secure without any

assistive devices; (5) he had not received ongoing medical treatment for either of his

allegedly disabling physical impairments—back and right ankle pain; and (6) there

have been significant periods of time since the alleged onset date during which

Mr. Block has not taken any medications for his alleged pain.

      Our review of the record convinces us that substantial evidence supports the

ALJ’s credibility determination.

                                   III. CONCLUSION

      For the foregoing reasons, we affirm the judgment of the district court.


                                                 Entered for the Court


                                                 Scott M. Matheson, Jr.
                                                 Circuit Judge




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