                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                            FEB 8 2005
                              FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    RONALD WOODS,

                  Plaintiff-Appellant,

    v.                                                   No. 04-3268
                                                  (D.C. No. 03-CV-2592-KHV)
    JO ANNE B. BARNHART,                                    (D. Kan.)
    Commissioner of Social Security,

                  Defendant-Appellee.


                              ORDER AND JUDGMENT          *




Before TACHA , Chief Judge, HENRY , and O’BRIEN , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination

of this appeal.    See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

         Plaintiff-appellant Ronald Woods appeals pro se from an order of the

district court affirming the Commissioner’s decision denying his application for


*
      This order and judgment is not binding precedent, except under the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.
Supplemental Security Income benefits (SSI). Appellant filed for these benefits

on July 1, 1999, with an alleged disability onset date of July 1999, later amended

to May 5, 1998. He alleged disability based on depression, hepatitis, memory

problems, fainting spells, difficulties with breathing and walking, hypertension,

and liver problems. The agency denied his applications initially and on

reconsideration.

      On March 16, 2000, appellant received a de novo hearing before an

administrative law judge (ALJ). In a decision dated March 31, 2000, the ALJ

determined that appellant’s degenerative disc disease in the cervical spine and his

hepatitis were severe impairments, but that “[a]bsent substance abuse, [appellant]

does not have a severe mental impairment.” Admin. R. at 26. He further

determined that appellant’s impairments did not meet or equal a listed

impairment, and that appellant had no past relevant work. Applying the

Medical-Vocational Guidelines, 20 C.F.R. Pt. 404, Subpt. P, App. 2, Rule 202.13

(the grids) as a framework, the ALJ concluded that appellant was not disabled

within the meaning of the Social Security Act.

      Appellant requested review from the Appeals Council, stating that “I feel

the decision was wrong because these demons are tying to take over my body.”

Admin. R. at 7. The Appeals Council denied review, but upon motion by the

United States Attorney, the district court remanded the case to the Appeals


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Council, which in turn remanded to the ALJ. The Appeals Council directed the

ALJ to order neuropsychological examination and testing for organic mental

problems, to evaluate the severity of appellant’s mental impairment at step two of

the sequential evaluation, reevaluating all the mental status findings in the record,

and to reevaluate appellant’s substance abuse in accordance with 20 C.F.R.

§ 416.935. The ALJ was further directed to obtain vocational expert testimony

concerning the effect of appellant’s mental impairments on his ability to work.

      The ALJ held a second hearing on August 8, 2003, at which a clinical

psychologist and a vocational expert testified. Appellant arrived at the hearing

with a red cross painted on his forehead in fingernail polish. He explained that

the cross was there “[t]o keep demons away from me.” Admin. R. at 441.

Appellant also stated that he kept a bag of table salt with him at all times to keep

the demons away. Id. at 443. The clinical psychologist, who had reviewed the

medical records pertinent to appellant’s mental status, testified that he was “not

sure” whether appellant had a diagnosable mental or emotional impairment. Id. at

454. He noted gross inconsistencies in the record concerning appellant’s mental

state, difficulties with memory, and alcohol use. Id. at 454-56. He stated there

were also indications of malingering. Id. at 454, 456. The vocational expert

testified that if appellant were limited to jobs with simple instructions, he could




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still perform some jobs, but if he had a marked inability to complete a normal

work-week, this would eliminate his ability to work in the national economy.

      On November 18, 2003, the ALJ issued a second decision in the case. He

found that appellant’s hepatitis C, affective disorder or other psychosis and

history of alcohol and/or substance abuse, were singularly or jointly “severe,” but

that appellant did not meet or equal any listed impairment. Because the claimant

was not disabled, considering all his impairments, it was unnecessary to determine

whether alcohol or drug addiction was a contributing material factor to his

disability. The ALJ concluded that appellant retained the RFC to perform a wide

range of light exertional level work, diminished by his inability to stand for more

than six hours in an eight hour day, his inability to sit for more than six hours in

an eight hour day, and a limitation on frequent stooping and crouching. Appellant

should not climb on ropes, ladders or scaffolds or be in an environment with

dangerous machinery. He was slightly limited in his ability to carry out detailed

instructions and to make judgments on simple work-related decisions, and

moderately limited in his ability to interact with the public. Hence, he would be

limited to work that was non-complex with the ability to recall no more than four

to five step instructions. Applying Rule 202.13 and Rule 202.20 of the grids as a

framework, and relying on VE testimony, the ALJ concluded that appellant was

not disabled. The district court affirmed the Commissioner’s decision.


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      We review the Commissioner’s decision to determine whether the factual

findings are supported by substantial evidence in the record and whether the

correct legal standards were applied. See Andrade v. Sec’y of Health & Human

Servs., 985 F.2d 1045, 1047 (10th Cir. 1993). Substantial evidence is “such

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

conclusion.” Fowler v. Bowen, 876 F.2d 1451, 1453 (10th Cir. 1989) (quotations

omitted).

      The Commissioner follows a five-step sequential evaluation process

to determine whether a claimant is disabled. See Williams v. Bowen, 844 F.2d

748, 750-52 (10th Cir. 1988). The claimant bears the burden of establishing

a prima facie case of disability at steps one through four. Id. at 751 & n.2. If the

claimant successfully meets this burden, the burden of proof shifts to the

Commissioner at step five to show that the claimant retains sufficient RFC to

perform work in the national economy, given her age, education and work

experience. Id. at 751.

      On appeal, appellant raises a single issue: “Appellant[’s] mental

impairment had more than a minimal effect on his ability to work.” Aplt. Br. at 3.

He presents no substantive argument on this issue, but refers us to his district

court brief. Construing his pro se argument broadly, we believe appellant intends

to challenge whether substantial evidence supports the ALJ’s step five finding


                                         -5-
that he can perform work in the national economy, notwithstanding his mental

impairments. We conclude that the ALJ’s finding is supported by substantial

evidence, and we therefore affirm.

      As noted, appellant testified concerning “demons” that troubled him. He

also wrote a letter to the ALJ after the first hearing stating that he had been

fighting demons, and that the demons had been present and threatening him

during the hearing. The ALJ did not find appellant’s testimony entirely credible,

due to his inconsistent and exaggerated report of symptoms; opinions by

physicians that he appeared to be malingering; and lack of support for subjective

symptoms to the extent alleged in the objective medical evidence.

      Dr. Moeller, a psychologist, examined appellant in July 1999 and stated

that he seemed distracted and acted bizarrely. Appellant achieved extremely low

results on various tests of mental functioning that Dr. Moeller conducted.

Dr. Moeller speculated that appellant suffered from continued alcohol abuse and

could be suffering from alcohol-related dementia or an atypical psychotic

disorder.

      When Dr. Moeller re-examined appellant in February 2003, however,

appellant’s concentration and attention were adequate. On that occasion,

appellant denied previous or current visualization of devils or demons.

Appellant’s scores on the MMPI test reflected an invalid profile, but other tests


                                          -6-
reflected a much higher level of organization than one would expect from

appellant’s bizarre presentation and statements. Dr. Moeller believed that

appellant suffered from a short-term memory impairment, but he could not rule

out malingering. He completed a statement concerning appellant’s mental ability

to do work-related activities, in which he found “slight” impairments in

appellant’s ability to understand and remember detailed instructions, to carry out

detailed instructions, and to make judgments on simple, work-related decisions,

and “moderate” restrictions on his ability to interact with the public. Admin R. at

358.

       Appellant was seen between November 1999 and February 2000 by

ComCare of Sedgwick County. Dr. Gaynor diagnosed him with an adjustment

disorder with mixed anxiety and depressed mood. He assigned him a GAF score

of 60, and stated that his prognosis was “[f]air, with treatment.” Id. at 230.

       In November 2002, Kerin Schell, Ph.D., diagnosed appellant with a major

depressive disorder, single episode, severe with psychotic features. She assigned

appellant a GAF score of 35. She noted he was “medication compliant,” id. at

417, but there is no evidence in the record concerning appellant’s use of any

psychotropic medications.

       At the August 20, 2003, hearing, the psychological consultant,

Dr. Hutchinson, reviewed all the evidence in the record and found major


                                         -7-
inconsistencies. For example, only Dr. Moeller indicated an alcohol-related

diagnosis. ComCare diagnosed him with depression but did not find that he had

any hallucinations or delusions. Appellant’s emergency room visits for other

reasons did not indicate an abnormal mental status. In an April 2002 neurological

examination for headaches, appellant scored twenty-eight out of thirty points on a

mental status exam, a score Dr. Hutchinson described as “excellent.” Id. at 455.

Dr. Hutchinson described appellant’s memory difficulties as “moderate at the

most,” id. at 458, stated that there was no indication that he was not performing

his activities of daily living, id. at 459, and noted no particular evidence in the

medical records that he had specific difficulties in socializing with others, id. at

460. Dr. Hutchinson stated that appellant’s memory difficulties should not

prevent him from performing routine work, and that appellant did not appear to

suffer from any other mental impairments that would affect his ability to work.

Id. at 460-61.

      In August 1999, an agency physician completed a PRT form in which he

opined that appellant met Listing 12.09, for “substance addiction disorders,”

based on psychosis. Id. at 206, 208, 212. He opined that appellant had “marked”

difficulties in maintaining social functioning, and “frequent” deficiencies of

concentration, persistence and pace. Id. at 213. The ALJ specifically rejected

this non-treating opinion, on the basis of evidence developed since the agency


                                          -8-
physician had rendered his opinion on the PRT form. In particular, the agency

physician did not have the benefit of Dr. Hutchinson’s opinions concerning the

effect of appellant’s mental impairments.

      Having reviewed the record and all the evidence concerning appellant’s

mental impairments, we conclude that the ALJ’s decision concerning the

seriousness of the mental impairments, and the restrictions necessitated by them,

is supported by substantial evidence. See generally 20 C.F.R. § 416.920a

(describing agency procedures for evaluating mental impairments and their effect

on claimant’s ability to work). All of the medical opinions concerning appellant’s

mental RFC, with the exception of an early PRT form by a non-examining agency

physician that the ALJ adequately distinguished, are basically consistent with the

ALJ’s specific findings concerning appellant’s mental RFC. No treating or

examining physician supplied a reasoned opinion that appellant could not work

because of mental impairments.




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      The judgment of the district court is therefore AFFIRMED.   1




                                                    Entered for the Court



                                                    Deanell Reece Tacha
                                                    Chief Judge




1
       Appellant attaches new evidence not presented to the ALJ or the district
court to his reply brief. We cannot consider this new evidence.  See, e.g., Boone
v. Carlsbad Bancorp, Inc. , 972 F.2d 1545, 1549 n.1 (10th Cir. 1992).

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