                                                                             FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                       April 28, 2008
                     UNITED STATES COURT OF APPEALS
                                                                    Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                       Clerk of Court



    KRISTY M. SAYLES,

                Plaintiff-Appellant,

    v.                                                   No. 07-5142
                                                  (D.C. No. 06-CV-413-FHM)
    MICHAEL J. ASTRUE,                                   (N.D. Okla.)

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before MURPHY, McKAY, and GORSUCH, Circuit Judges.



         Kristy M. Sayles appeals the district court’s order upholding the

Commissioner’s denial of her application for social security disability insurance

and supplemental security income benefits. We exercise jurisdiction under

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




*
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
                                        ***

      In her social security application, Ms. Sayles alleged disability 1 since

November 15, 2001, due to bipolar disorder, depression, bulimia, anxiety, acid

reflux, migraines, insomnia, lesions in her mouth, allergies, and an inability to

concentrate. Her application was denied initially and on reconsideration. At her

request, an administrative law judge (“ALJ”) held a hearing at which Ms. Sayles

and a vocational expert (“VE”) testified. The ALJ held the record open following

the hearing to receive additional medical evidence. Thereafter, the ALJ

determined that Ms. Sayles could not perform her past work, but she retained the

residual functional capacity (“RFC”) to perform other work in the national

economy despite her limitations. Accordingly, he denied benefits at step five of

the five-part sequential evaluation process. See Fischer-Ross v. Barnhart, 431

F.3d 729, 731 (10th Cir. 2005) (describing five steps).

      The Appeals Council denied Ms. Sayles’s request for review, making the

ALJ’s decision the final decision of the Commissioner. Jensen v. Barnhart,

436 F.3d 1163, 1164 (10th Cir. 2005). The district court affirmed the


1
     In this context, “disability” requires both an “inability to engage in any
substantial gainful activity” and “a physical or mental impairment, which
provides reason for the inability.” Barnhart v. Walton, 535 U.S. 212, 217 (2002)
(quotation omitted). The impairment must be a “‘medically determinable physical
or mental impairment which can be expected to result in death or which has lasted
or can be expected to last for a continuous period of not less than 12
months . . . .’” Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007) (quoting
42 U.S.C. § 423(d)(1)(A) (further quotation omitted)).

                                         -2-
Commissioner’s decision, 2 and Ms. Sayles now appeals to this court, raising three

arguments: (1) the ALJ improperly evaluated her treating physicians’ opinions,

(2) the ALJ did not credit the VE’s response to the hypothetical question posed by

her attorney, and (3) the record does not support a conclusion that she can sustain

employment. We address each in turn.

      1. Ms. Sayles argues that the ALJ improperly disregarded a June 1, 2005,

mental status evaluation prepared by her treating physician Dr. Delia indicating

that her work-related abilities were “markedly” limited in all areas. By

regulation, the ALJ was required to give “controlling weight” to this opinion from

Ms. Sayles’s treating physician unless it was contrary to medical evidence or

inconsistent with the record as a whole. See 20 C.F.R. §§ 404.1527(d)(2),

416.927(d)(2). In this case, the ALJ determined that Dr. Delia’s June 1

evaluation was both contrary to medical evidence, as well as inconsistent with the

record as a whole.

      First, the ALJ found that Dr. Delia’s June 1 opinion conflicted with the

other psychological evidence. In an April 13, 2003, mental status evaluation

completed by treating physician Dr. Sokkar, Ms. Sayles’s limitations were rated

as “moderate.” Aplt. App. Vol. 2, at 192-93. The form defines a “moderate

limitation” as one that “[a]ffects but does not preclude ability to function.” Id. at


2
      The parties consented to proceed before a magistrate judge. See 28 U.S.C.
§ 636(c)(1), (3).

                                         -3-
192. The ALJ also considered the opinions of two State agency medical

consultants who reviewed Ms. Sayles’s records. 3 Both opined that Ms. Sayles

was moderately limited in the ability to understand and remember detailed

instructions and the ability to carry out detailed instructions, and moderately or

markedly limited in her ability to interact appropriately with the public. Id. at

125, 139-40 (Janice B. Smith, Ph.D., 6-11-03); id. at 199-203 (Margaret

McKinney, Ph.D., 12-30-03). One of them further indicated that Ms. Sayles was

moderately limited in the ability to maintain attention and concentration for

extended periods. Id. at 200.

      Second, the ALJ determined that Dr. Delia’s opinion conflicted with other

record evidence, specifically Ms. Sayles’s treatment notes for the dates between

the April 2003 treating physician’s assessment and the one dated June 2005. The

ALJ observed that those records “generally indicate[d] that [Ms. Sayles] was

doing well on her medication” and showed no “increase of symptoms or decline

in functioning for any sustained period.” Id. at 18.

      In declining to give Dr. Delia’s opinion controlling weight, the ALJ thus

properly followed the prescribed regulatory process for doing so and, given the



3
       The ALJ properly acknowledged that while these State agency physicians
had not examined or treated Ms. Sayles, they had reviewed her medical records,
they were psychologists familiar with the social security disability program, and
their opinions were consistent with the other evidence. See 20 C.F.R.
§ 404.1527(d)(1), (3)-(6); id. § 416.927(d)(1), (3)-(6).

                                         -4-
evidence he cited, we are unable to say his cited reasons for doing so are bereft of

substantial evidence. “Substantial evidence is more than a mere scintilla and is

such relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005). See

also Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007) (stating ALJ

“provided good reasons” for giving little weight to treating physicians’ opinions:

they did not consider contrary evidence and they conflicted with well-supported

medical evidence to the contrary); White v. Barnhart, 287 F.3d 903, 908 (10th

Cir. 2001) (stating sufficient reasons to disregard physician’s opinion included

lack of support for findings, opinion was inconsistent with other medical

opinions, and treatment relationship with claimant was relatively brief).

      2. Ms. Sayles next asserts that the ALJ incorrectly assessed her RFC at

step five, and as a result, he erred in finding that she had the capacity to perform

jobs existing in significant numbers in the national economy. 4 She complains that



4
       The record indicates that the ALJ may have taken out of context
Ms. Sayles’s description of her activities and abilities to support his conclusion
that her abilities were only moderately limited. The ALJ relied heavily on
Ms. Sayles’s Disability Supplemental Interview Outline for his determination that
she could function (including caring for pets, doing cleaning and laundry, and
visiting friends), but he disregarded other evidence in that document suggesting
that Ms. Sayles could not function (including daily activity limited to sleeping,
eating, and purging; taking a week to clean her room and bathroom; going several
days without showering). Nevertheless, this issue was not preserved for appeal,
so we do not consider it. See Murrell v. Shalala, 43 F.3d 1388, 1389-90
(10th Cir. 1994) (declining to consider issue not argued on appeal).

                                          -5-
the ALJ did not credit the VE’s response to the hypothetical question posed by

her attorney, in which he opined that a person would not be able to maintain work

if her concentration “was interfered with often up to 50% of the day,” Aplt. App.

Vol. 2, at 289.

         The ALJ was not required to accept this opinion, however, because the

record does not establish the limitation on concentration assumed in the attorney’s

hypothetical. See Barnett v. Apfel, 231 F.3d 687, 690 (10th Cir. 2000) (holding

ALJ did not err in rejecting VE’s opinion based on claimant’s testimony where

record did not establish limitations described by claimant). Rather, the

hypothetical posed by the ALJ included the “moderate” limitations set forth in the

psychological reports described above, which the ALJ reasonably credited. The

ALJ then included those limitations in his RFC assessment. Accordingly, “the

VE’s answer to [the ALJ’s hypothetical] question provided a proper basis for the

ALJ’s disability decision.” Qualls v. Apfel, 206 F.3d 1368, 1373 (10th Cir.

2000).

         3. Finally, and in further support of her contention that the ALJ incorrectly

assessed her RFC at step five, Ms. Sayles contends that, even if she could find a

job, the record does not contain substantial evidence that she would be able to

keep it. Specifically, Ms. Sayles points us to the VE’s testimony that “marked”

limitations in two areas – the ability (1) “to perform activities within a schedule,

regular attendance and be punctual,” and (2) “to complete a normal workday and

                                           -6-
work week without interruptions from psychologically based symptoms and to

perform at a consistent pace” – “reflect what’s happened to her in the past about

these jobs,” and that she would likely have a similar future pattern of changing

jobs and needing help getting a job. Aplt. App. Vol. 2, at 291-92. Ms. Sayles

argues that this evaluation of her “marked” inability to perform in key job-

retention areas “is in evidence and the ALJ has not impeached it.” Aplt. Reply

Br. at 13.

      This argument is simply another gloss on Ms. Sayles’s disagreement with

the ALJ about the severity of her impairments. As we have already indicated, see

supra Part 1, substantial evidence supports a conclusion that Ms. Sayles suffered

from only moderate, not marked, impairments; the record evidence to which Ms.

Sayles points us does not alter this conclusion.

      First, the VE’s testimony on which Ms. Sayles relies refers to what

“marked” limitations in two areas would mean to one’s ability to hold a job.

This, however, reflects a hypothetical that goes beyond the limitations the ALJ

accepted as true. The ALJ specifically found that Ms. Sayles’s limitations were

moderate, not marked – two entirely different things in a Mental Residual

Functional Capacity Assessment (“MRFC”). See Aplt. App. Vol. 2, at 18; see

also supra Part 2; Talley v. Sullivan, 908 F.2d 585, 588 (10th Cir. 1990) (ALJ

need not accept a VE’s answer to a hypothetical where the impairments posed go

beyond those which have been accepted as true by the ALJ). Indeed, the VE

                                         -7-
himself concluded that moderate limitations in the two areas he identified “would

not rule out employment.” Aplt. App. Vol. 2, at 291.

      Second, the ALJ expressly found that Ms. Sayles retained the capacity “to

remain attentive and responsive in a work setting, and could carry out normal

work assignments satisfactorily,” id. at 21, findings that go directly to the ability

to hold, not just obtain, a job. In doing so, the ALJ relied in part on two MRFCs.

The first of these found Ms. Sayles to have moderate (not marked) limitations in

the very two areas related to job retention she has identified. See id. at 192

(questions B-7 & B-11). And the term “moderate,” in turn, is defined as

“[a]ffects but does not preclude ability to function.” Id. This plainly suggests,

consistent with what the VE testified about moderate limitations, that Ms. Sayles

retained the “ability to function” in the specific job-retention areas she has

identified.

      Third, the other MRFC also credited and relied upon by the ALJ, see supra

Part 1, and undertaken two months after the first, further supports this conclusion.

In both the ability “to perform activities within a schedule . . . ” and “to complete

a normal work-day and work week . . . ,” id. at 139-40, the MRFC reflects that

Ms. Sayles’s residual capacities were “not significantly limited,” let alone

“moderately” limited, as the ALJ found, id. at 139-40. The medical consultant

went on to conclude that Ms. Sayles “is able to complete a normal work day and




                                          -8-
work week from a mental standpoint, and she can adapt to a work setting.” Id. at

140.

       In the face of such evidence, we cannot help but conclude that there is

substantial evidence in this record that Ms. Sayles can find and sustain

employment. The fact a different conclusion could have been reached based on

the record before us does not prevent a conclusion that substantial evidence exists

to support the ALJ’s decision. See Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir.

2007) (“We may not displace the agency’s choice between two fairly conflicting

views, even though the court would justifiably have made a different choice had

the matter been before it de novo.”) (internal quotation marks, brackets, and

citation omitted).

                                        ***

       The judgment of the district court is affirmed.



                                               Entered for the Court



                                               Neil M. Gorsuch
                                               Circuit Judge




                                         -9-
