                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                         July 31, 2007
                       UNITED STATES CO URT O F APPEALS              Elisabeth A. Shumaker
                                                                         Clerk of Court
                             FO R TH E TENTH CIRCUIT



    N ICK P. A RA G O N ,

                 Plaintiff-Appellant,

    v.                                                    No. 06-2285
                                                 (D.C. No. CIV-05-931 JP/AC T)
    M ICH AEL J. ASTRU E, *                                (D . N.M .)
    Commissioner of the Social Security
    Administration,

                 Defendant-Appellee.



                             OR D ER AND JUDGM ENT **


Before TA CH A, Chief Judge, M U RPH Y and HO LM ES, Circuit Judges.


         Plaintiff Nick P. Aragon appeals the district court’s order upholding the

Commissioner’s denial of his application for social security disability benefits

and supplemental security income benefits. W e take jurisdiction under 28 U.S.C.


*
     Pursuant to Fed. R. App. P. 43(c)(2), M ichael J. Astrue is substituted for
Jo Anne B. Barnhart as appellee in this appeal.
**
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
 § 1291 and 42 U.S.C. § 405(g). W e affirm.

                                     Background

      M r. Aragon alleges disability since August 14, 2001, due to pain, depression,

and strength and mobility restrictions to his dominant right shoulder, arm, and hand

caused by an injury he sustained in February of 2001. An administrative law judge

(A LJ) held a hearing at which M r. Aragon was represented by counsel. He, his

wife, and a vocational expert testified. The A LJ determined that M r. Aragon’s

depression was non-severe at step two of the five-step sequential evaluation

process. See Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005)

(describing five steps). The A LJ then determined that although M r. Aragon’s

shoulder injury was severe at step two and he could not return to his past relevant

work, there were jobs he could perform that existed in significant numbers in the

regional and national economies. Accordingly, the ALJ denied benefits at step

five. The Appeals Council denied review, thus making the ALJ’s determination the

final decision of the Commissioner. Jensen v. Barnhart, 436 F.3d 1163, 1164

(10th Cir. 2006). The district court affirmed the Commissioner’s decision.

                                  Legal Framework

      W e review the Commissioner’s decision to ascertain whether it is supported

by substantial evidence in the record and to evaluate whether he applied the correct

legal standards. Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005).

“Substantial evidence is more than a mere scintilla and is such relevant evidence as

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a reasonable mind might accept as adequate to support a conclusion.” Id. W e do

not reweigh the evidence or retry the case, but we “meticulously examine the

record as a w hole, including anything that may undercut or detract from the A LJ’s

findings in order to determine if the substantiality test has been met.” Id. at 1262.

      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) (internal

quotation marks 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. . . .’” Fischer-Ross, 431 F.3d at 731 (quoting 42 U.S.C. § 423(d)(1)(A)).

      On appeal, M r. Aragon asserts that (1) the ALJ erred in finding that his

depression was not a “severe” mental impairment, which requires only a

“de minimis” showing at step two, and (2) the ALJ failed to give controlling

weight to his treating physician’s opinion.

                                       Analysis

      Both of M r. Aragon’s appellate arguments pertain to his claim that he

suffered from severe depression. He maintains that his treating physician, Richard

T. Radecki, M .D., diagnosed him with depression. 1 He also relies on the diagnosis



 1
        To the extent M r. Aragon argues that Dr. Radecki’s lifting limitations to
                                                                       (continued...)

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of major depression made by a clinical psychologist, J. Annette Brooks, Ph.D.

According to M r. Aragon, the ALJ improperly disregarded these opinions and

determined in error that he had not made the required showing at step two that his

depression was severe.

         At step two, the claimant must make a “de minimis” showing that his

impairment or combination of impairments is medically severe. Hinkle v. Apfel,

132 F.3d 1349, 1352 (10th Cir. 1997). At this step, the ALJ considers only the

claimant’s impairment(s) and evaluates “the impact the impairment would have on

his ability to work.” Id. “[T]he mere presence of a condition is not sufficient to

make a step-two showing.” William son v. Barnhart, 350 F.3d 1097, 1100

(10th Cir. 2003). The claimant must show at step two that his condition

significantly limits his ability to do basic work activities. See 20 C.F.R.

§§ 404.1521(a); 416.921(a). Basic work activities are the “abilities and aptitudes

necessary to do most jobs,” and include the facility to understand, remember, and

carry out simple instructions; to use judgment; to respond appropriately to

supervisors, co-workers, and usual work situations; and to deal with changes in a




1
    (...continued)
     less than ten pounds mandated a determination that he was disabled, we reject this
     argument. The ultimate decision on disability is for the ALJ, not the physician.
     E.g., 20 C.F.R. §§ 404.1527(e)(1); 416.927(e)(1). M oreover, as discussed herein,
     the ALJ imposed greater restrictions on the use of M r. Aragon’s right shoulder
     than those recommended by Dr. Radecki. M r. Aragon’s briefs do not make clear
     the precise findings and opinions he claims the ALJ disregarded.

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routine work setting. 20 C.F.R. §§ 404.1521(b)(3)-(6); 416.921(b)(3)-(6).

      During the time he treated M r. Aragon for his shoulder injury, Dr. Radecki

noted his concerns about M r. A ragon’s depression. See R. Vol. I at 211, 212-13.

On M ay 13, 2003, he wrote that M r. Aragon “probably needs evaluation also by [a]

psychological assessor to see if he has reactionary depression or if this is true

depression and needing treatment.” Id. at 213. Shortly thereafter, Dr. Radecki

referred him for pain-management counseling to a psychologist, Edward Naimark,

Ph.D., who saw M r. Aragon on two occasions -- once for an evaluation and once

for counseling. Dr. Naimark’s report from the initial interview, a copy of which

was sent to Dr. Radecki, states that M r. Aragon “did deny the presence of any

emotional problems.” Id. at 158. He also noted no psychological abnormalities, as

well as M r. A ragon’s anger and lack of cooperation. Id. at 159. At the counseling

session on July 30, 2003, Dr. Naimark noted that he “is an extraordinarily

embittered individual but he was able to talk a little more about the physical pain,

history of two failed surgeries, role reversals at home, etc.” Id. at 161. A copy of

these notes was likewise sent to Dr. Radecki. Another counseling session was

scheduled in August with Dr. Naimark, but M r. Aragon did not keep the

appointment, and Dr. Radecki was so notified. Id. at 163. Nevertheless,

Dr. Radecki wrote in November of 2003 that M r. Aragon “is also seeing [a]

psychologist due to depression,” id. at 211, despite the fact that Dr. Naimark never

made any such diagnosis and M r. A ragon was not receiving any counseling.

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      In January of 2005, one month before his hearing before the ALJ,

M r. Aragon’s attorney sent him for an evaluation by Dr. Brooks. She met with

M r. Aragon and his wife, administered various tests (one of which M r. Aragon

refused to complete), and concluded that M r. Aragon had “[a] major depressive

order – severe,” and “longstanding and undiagnosed Posttraumatic Stress

Disorder,” as w ell as “a personality style that significantly interfere[d] with

interpersonal interactions.” Id. at 326. According to D r. Brooks, these

circumstances adversely affected his ability to function in work and social settings.

Id. at 326-28, 339, 343-44. W hen asked to comment on D r. Brooks’ diagnosis,

Dr. Radecki concurred with her overall findings that M r. Aragon had “expressed

significant depression” and that he demonstrated “persistent psychological

stressors.” Id. at 346. He also described M r. Aragon’s condition as “possible

depression.” Id.

      “Under Social Security Administration regulations, the opinion of a treating

physician concerning the nature and extent of a claimant’s disability is entitled to

‘controlling weight’ when it is ‘well-supported by medically acceptable clinical

and laboratory diagnostic techniques’ and is ‘not inconsistent with the other

substantial evidence in [the claimant’s] case record.’” Doyal v. Barnhart, 331 F.3d

758, 762 (10th Cir. 2003) (quoting 20 C.F.R. § 416.927(d)(2)); accord 20 C.F.R.

§ 404.1527(d)(2). M r. Aragon’s claim that the ALJ rejected Dr. Radecki’s opinion

in favor of the opinions of the non-examining physicians is not supported by the

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record. The A LJ explicitly “afford[ed] all of the medical opinions of record

considerable evidentiary weight,” except Dr. Brooks’ opinion. R. Vol. I at 21. In

addition, the ALJ gave controlling weight to Dr. Radecki’s restrictions on

M r. Aragon’s use of his right arm and shoulder by “rul[ing] out any use of the right

upper extremity,” id. at 22, even though Dr. Radecki opined that M r. Aragon could

use his right arm occasionally, id. at 345.

      M r. Aragon also contends that the ALJ should have given controlling weight

to Dr. Radecki’s remarks about his depression. The record reveals Dr. Radecki’s

concern that M r. Aragon might be suffering from depression and should be

evaluated. In addition, on an assessment form completed in February of 2005,

Dr. Radecki indicated that M r. Aragon had described his “experience of pain [as]

severe enough to interfere with attention and concentration.” Id. at 345. But these

concerns w ere not diagnoses, supported by clinical and laboratory diagnostic

techniques. Consequently, the A LJ did not err in evaluating Dr. Radecki’s

opinions.

      In her discussion of M r. Aragon’s depression claim, the ALJ noted that

M r. Aragon had not received any treatment for depression and had regularly denied

that he needed any such treatment. She further noted that the record did not

establish that M r. Aragon’s depression had persisted for any continuous period of

twelve months or more, but rather, that he had intermittently exhibited symptoms

of depression. The ALJ discussed at length the evidence pertaining to the claimed

                                              -7-
impairment, noting that M r. Aragon did not allege a mental impairment on his

application, but after his claim was denied initially, he asserted that his worsening

depression contributed to his disability. In addition, two state non-examining

consulting physicians concluded that M r. Aragon did not have a severe mental

impairment. Id. at 192, 321.

      The ALJ rejected Dr. Brooks’ opinion and diagnosis, giving numerous

legitimate reasons for doing so, including the fact that she saw M r. Aragon only

one time to provide evidence for his disability claim; she took much of the

information for her report from M r. Aragon’s wife, rather than from him; her

assessments were not supported by her report of the interview and testing;

M r. Aragon did not engage her for therapy, but only for a report; and she found

that M r. Aragon had a difficult personality style that significantly interfered with

interpersonal interactions, but she did not explain why he had been able to work in

the past despite his difficult personality style, “and she provide[d] no indication

that [M r. Aragon] [was] any different in personality than when he was working on

a regular and continuing basis.” R. Vol. I at 20. The ALJ considered the

appropriate factors for deciding what weight, if any, to give to Dr. Brooks’ opinion

and she gave “specific, legitimate reasons” for rejecting it. Watkins v. Barnhart,

350 F.3d 1297, 1301 (10th Cir. 2003); 20 C.F.R. §§ 404.1527(d) & 416.927(d)

(listing factors to be considered when “deciding what weight [to be given] to any

medical opinion”). The ALJ’s analysis of Dr. Brooks’ report and the other

                                           -8-
evidence pertaining to M r. Aragon’s depression claim is in accordance with the

governing regulations and case law, and the conclusions are supported by

substantial evidence.

      M r. Aragon also disputes the ALJ’s determination that his depression did not

meet the twelve-month threshold under § 423(d)(1)(A). The ALJ stated, “while the

claimant since mid-2001 has intermittently exhibited signs and symptoms of

depression or a severe depressive disorder, the record fails to document an

impairment that has existed or been observed for 12 continuous months at a level

that would more than minimally affect the claimant’s ability to work.” R. Vol. I at

20. M r. Aragon points to evidence that he began taking Zoloft for depression in

2001. This evidence is in accordance with the ALJ’s finding. Again, “the claimant

must show more than the mere presence of a condition or ailment.” Hinkle,

132 F.3d at 1352.

                                      Conclusion

      M r. Aragon failed to demonstrate at step two that his mental impairment

substantially limits his ability to engage in basic work activities. Accordingly, w e

uphold the Commissioner’s decision and AFFIRM the district court’s judgment.


                                                     Entered for the Court



                                                     Deanell Reece Tacha
                                                     Chief Circuit Judge

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