                      UNITED STATES COURT OF APPEALS
Filed 10/28/96
                             FOR THE TENTH CIRCUIT



    CECIL E. HICKS,

                Plaintiff-Appellant,

    v.                                                  No. 95-7151
                                                  (D.C. No. CV-94-506-S)
    SHIRLEY S. CHATER,                                  (E.D. Okla.)
    Commissioner, Social Security
    Administration, *

                Defendant-Appellee.




                             ORDER AND JUDGMENT **




*
       Effective March 31, 1995, the functions of the Secretary of Health and
Human Services in social security cases were transferred to the Commissioner of
Social Security. P.L. No. 103-296. Pursuant to Fed. R. App. Proc. 43(c), Shirley
S. Chater, Commissioner of Social Security, is substituted for Donna E. Shalala,
Secretary of Health and Human Services, as the defendant in this action.
Although we have substituted the Commissioner for the Secretary in the caption,
in the text we continue to refer to the Secretary because she was the appropriate
party at the time of the underlying decision.

**
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Before TACHA, ALDISERT, *** and BALDOCK, Circuit Judges.




      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) and 10th Cir. R. 34.1.9. The case is

therefore ordered submitted without oral argument.

      Claimant Cecil E. Hicks appeals the district court’s order affirming the

decision of the Secretary of Health and Human Services denying his applications

for social security disability insurance and supplemental security income benefits.

We exercise jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291 and

affirm.

      Claimant’s applications were denied initially and on reconsideration.

Following a hearing, the administrative law judge (ALJ) concluded the analysis at

step four of the five-step evaluation sequence, see Williams v. Bowen, 844 F.2d

748, 750-51 (10th Cir. 1988)(discussing the five steps in detail), determining that

claimant had the residual functional capacity to return to his past relevant work as

a janitor, grounds keeper, dishwasher, trash collector, packer, and grocery sacker.

In addition, the ALJ determined that claimant’s impairments did not prevent him


***
      Honorable Ruggero J. Aldisert, Senior Circuit Judge, United States Court
of Appeals for the Third Circuit, sitting by designation.

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from continuing with his employment as a toy assembler in a sheltered workshop.

The Appeals Council accepted review, completed and appended a Psychiatric

Review Technique form, and affirmed the ALJ’s decision. The district court

adopted the findings and recommendation of the magistrate judge affirming the

decision of the Secretary, claimant appeals, and we affirm.

      At step four, claimant bears the burden of establishing that he is unable to

return to his past relevant work. See Nielson v. Sullivan, 992 F.2d 1118, 1120

(10th Cir. 1993). We review the Secretary’s decision to determine whether the

factual findings are supported by substantial evidence and whether correct legal

standards were applied. Castellano v. Secretary of Health & Human Servs., 26

F.3d 1027, 1028 (10th Cir. 1994).

      Claimant is a thirty-year-old man with a high school education in special

education classes. At the time of the hearing, he was employed in a sheltered

workshop assembling toys. Claimant alleged that he is unable to work in the

competitive workplace because of his limited intelligence, inability to understand

and follow directions, short attention span, and inability to control his frustration

and temper. At the hearing, claimant also complained of hip pain.

      The ALJ found that claimant was impaired by borderline intellectual

functioning which was severe enough to impact claimant’s ability to work. The

ALJ further found, however, that claimant’s impairments did not prevent him


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from performing his past work and a full range of unskilled, light to medium

work, subject to his borderline intellectual functioning.

      On appeal, claimant specifically argues that (1) the ALJ erred in finding

that claimant’s impairment does not meet the listing of § 12.05; (2) the

consultative testing relied on by the ALJ was incomplete and not supported by

substantial evidence; 1 (3) the ALJ erred in not completing a Psychiatric Review

Technique form; (4) the ALJ failed to develop the record as to the particular

demands of claimant’s past relevant work, and claimant’s ability to meet those

demands; and (5) the ALJ relied on the testimony of a vocational expert which

was not based on a hypothetical question containing all of claimant’s true

impairments.

      Claimant’s main argument is that the ALJ’s determination that his mental

impairments did not meet listing § 12.05C of 20 C.F.R. Pt. 404, Subpt. P, App.1

is not supported by substantial evidence. To meet the listing, a claimant must

have “[a] valid verbal, performance, or full scale IQ of 60 through 70 and a

physical or other mental impairment,” § 12.05C (emphasis added), which imposes




1
      This issue was not raised and ruled on in the district court. Because there
are no “compelling reasons” to consider this waived argument on appeal, we
decline to do so. See Crow v. Shalala, 40 F.3d 323, 324 (10th Cir. 1994).


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“additional and significant work-related limitation of function,” Ellison v.

Sullivan, 929 F.2d 534, 536 (10th Cir. 1990).

      Upon admission to work in the sheltered workshop, claimant was tested by

Dr. Roy T. Maxwell who ascertained claimant had a verbal IQ of 68, a

performance IQ of 79, and a full scale IQ of between 68-76. R. Vol. II at 176. At

the request of the Secretary, claimant was tested by Dr. Randy L. Crittenden who

ascertained that claimant had a verbal IQ of 74, a performance IQ of 84, and a

full scale IQ of 76. Id. at 160. Claimant’s lowest score, a verbal IQ of 68

obtained by Dr. Maxwell’s testing, falls within the qualifying range. However,

even if the ALJ had favored Dr. Maxwell’s results over those of Dr. Crittenden,

as claimant asserts he should have, claimant fails to satisfy the second prong of

the § 12.05C test, by showing an additional and significant physical or mental

impairment. See Ellison, 929 F.2d at 536.

      Although claimant testified that he had hip pain, his subjective complaints

were not supported by objective medical evidence, and after considering

claimant’s complaints under Luna v. Bowen, 834 F.2d 161, 165 (10th Cir. 1987)

and Soc. Sec. R. 88-13, the ALJ concluded that claimant’s allegations of pain

were not credible. This conclusion is supported by the record.

      At the hearing, claimant testified that he was unable to lift because of an

injury to his shoulder in 1989, when he was hit with a baseball bat. In April


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1990, Dr. Wayne Flatt noted a “mild deformity” in claimant’s shoulder which he

opined was most likely “a projectional phenomenon.” R. Vol. II at 152. The

record, however, is void of any indication that claimant’s shoulder injury would

prevent him from engaging in the light to medium work activities the ALJ found

him capable of performing.

      Insofar as claimant attempts to assert that the ALJ should have considered

illiteracy as an additional limiting impairment, the record is lacking in any

indication that claimant asserted illiteracy as an impairment impacting his ability

to work. Accordingly, even if claimant’s IQ fell in the 60 to 70 range, claimant

has no other physical or mental impairment which would serve to satisfy the

listing. See § 12.05C.

      Although 20 C.F.R. § 416.920a(d) directs the ALJ to complete a Psychiatric

Review Technique form at the hearing stage, we agree with the district court that

the ALJ’s failure to do so here did not prejudice claimant. The Appeals Council

notified claimant of its intent to complete and append a Psychiatric Review

Technique form to the decision, giving claimant twenty days to comment. R. Vol.

II at 7. The Appeals Council noted that claimant failed to respond. Id. The

Appeals Council completed the form in accordance with the ALJ’s findings. Id.

at 8. Therefore, claimant was not prejudiced by the omission, and there is no

error. See, e.g., Bernal v. Bowen, 851 F.2d 297, 302 (10th Cir. 1988)(no error


                                         -6-
exists where claimant not prejudiced by ALJ’s failure to have mental health

professional assist in completing the form). Moreover, the record contains an

additional Psychiatric Review Technique form completed by C.M. Kampschaefer,

Ph.D. R. Vol. II at 135-46.

      Claimant contends that the ALJ erred in his step-four analysis by not

comparing the requirements and demands of claimant’s prior jobs to his

limitations. See Henrie v. United States Dep’t of Health & Human Servs., 13

F.3d 359, 361 (10th Cir. 1993)(ALJ has duty to consider the claimant’s residual

functional capacity in relation to the physical and mental demands of claimant’s

past work). Specifically, claimant asserts that the ALJ failed to consider that

claimant’s inability to follow orders and understand directions prevents him from

holding a competitive job on a sustained basis. The record belies this contention.

      The ALJ thoroughly considered the findings of Dr. Crittenden that

claimant’s “[a]ttention span, concentration and capacity to understand instructions

was quite good,” and that he appeared friendly, cooperative, and showed no signs

of anxiety or tension. R. Vol. II at 158. In addition, the evaluation done by the

sheltered workshop director indicates that claimant was capable of working with

only limited supervision after receiving one-step instructions; had satisfactory

interaction with his supervisor and coworkers; had satisfactory responses to

pressure; was able to deal normally with changes in work routine; and required


                                         -7-
minimal supervision throughout the day. Id. at 147. Therefore, contrary to

claimant’s assertion, the record substantially supports the ALJ’s determination

that claimant’s ability to do his past relevant work was not limited by an inability

to follow orders and understand directions.

      The ALJ found that claimant did not have a physical impairment which

would limit his ability to work and therefore was capable of performing a full

range of light and medium, unskilled work, limited only by his borderline

intellect. See id. at 34. The ALJ found, however, that this limitation did not

prevent claimant from performing the entry grade level tasks involved in his past

relevant work, including his work assembling toys in the sheltered workshop, a

job claimant has held successfully since 1992. See 20 C.F.R.

§ 404.1573(c)(providing that work done in a sheltered workshop may show a

claimant possesses “the necessary skills and ability to work at the substantial

gainful activity level”). Accordingly, contrary to claimant’s assertion, the ALJ

adequately developed the record and made the requisite findings regarding

claimant’s ability to do his past relevant work considering his limitations.

      Lastly, claimant contends that the ALJ erred in relying on the testimony of

a vocational expert based on a hypothetical question which did not contain all of

claimant’s impairments. In a step-four determination, the ALJ is not required to

obtain the testimony of a vocational expert. See Glenn v. Shalala, 21 F.3d 983,


                                         -8-
988 (10th Cir. 1994). Here, the ALJ obtained the testimony of a vocational

expert, but only relied on the expert’s testimony to show that claimant could

perform a significant number of other jobs existing in the national economy, a

step-five determination. R. Vol. II at 33. Because the ALJ ultimately decided

this case at step-four, and did not make an alternate step-five determination, he

did not improperly rely on the testimony of the vocational expert.

      Contrary to claimant’s assertions, our review of the record indicates that

the ALJ properly and adequately considered and evaluated his mental impairment.

He determined that claimant’s mental impairment did not prevent him from

performing his former work activities, and stated the reasons for his decision. We

conclude that substantial evidence supports the Secretary’s decision to deny

claimant’s applications for disability benefits.

      The judgment of the United States District Court for the Eastern District of

Oklahoma is AFFIRMED.



                                                    Entered for the Court



                                                    Deanell Reece Tacha
                                                    Circuit Judge




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