                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           FEB 3 2005
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk


    DENNIS A. CHAVEZ,

                Plaintiff-Appellant,

    v.                                                   No. 03-2298
                                                  (D.C. No. CIV-02-714-ACT)
    JO ANNE B. BARNHART,                                   (D. N.M.)
    Commissioner of Social Security,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before McCONNELL , HOLLOWAY , and PORFILIO , 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); 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      This order and judgment is not binding precedent, except under the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. 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.
      Claimant Dennis A. Chavez appeals the district court’s order affirming the

Commissioner’s decision to deny his application for supplemental security income

benefits. He alleged disability due to neck, back, hip and leg pain, headaches,

and mental impairments, including major depression. At step five of the five-step

sequential evaluation process, see Williams v. Bowen, 844 F.2d 748, 750-52 (10th

Cir. 1988) (discussing five steps), an administrative law judge (ALJ) determined

that Mr. Chavez could perform a limited range of light work that existed in

significant numbers in the regional and national economies. Accordingly, the

ALJ held that Mr. Chavez was not disabled within the meaning of the Social

Security Act and was, therefore, not entitled to benefits. Mr. Chavez appealed to

the district court, where a magistrate judge affirmed the denial of benefits. We

have jurisdiction over his appeal to this court under 42 U.S.C. § 405(g) and

28 U.S.C. § 1291. We reverse and remand for further proceedings.

      On appeal, Mr. Chavez asserts that reversal is required because (1) the ALJ

relied on incorrect information in concluding that Mr. Chavez could perform other

work that existed in the regional and national economies, (2) the Appeals Council

failed to consider relevant evidence submitted after the ALJ issued his decision

but before the Appeals Council denied review, (3) the ALJ’s credibility findings

were not supported by substantial evidence, and (4) the ALJ erred in evaluating




                                        -2-
Mr. Chavez’ residual functional capacity (RFC). We hold that the first three

arguments require a remand.

                                  Standards of Review

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

findings are supported by substantial evidence and whether the correct legal

standards were applied. Threet v. Barnhart, 353 F.3d 1185, 1189 (10th Cir.

2003). “Substantial evidence is such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.” Hamlin v. Barnhart, 365 F.3d

1208, 1214 (10th Cir. 2004) (further quotation omitted).

           Other Jobs Available in the National and Regional Economies

       The ALJ found that Mr. Chavez met his burden to prove his disability. At

that point, the burden of going forward shifted to the Commissioner to establish

that Mr. Chavez retained the capacity to perform alternative work activity and that

the specific type of job he could do existed in the national or regional economy.

Trimiar v. Sullivan, 966 F.2d 1326, 1329 (10th Cir. 1992); 42 U.S.C.

§ 423(d)(2)(A). Relying on a vocational expert, the ALJ found that there were

three jobs Mr. Chavez could perform. The Commissioner concedes, however, that

two of those jobs as described by the vocational expert conflicted with the

definitions in the Dictionary of Occupational Titles. Therefore, only the job of

parking lot attendant was properly identified as suitable for Mr. Chavez.   See


                                            -3-
Haddock v. Apfel , 196 F.3d 1084, 1091 (10th Cir. 1999) (holding “ALJ must

investigate and elicit a reasonable explanation for any conflict between the

Dictionary and expert testimony before the ALJ may rely on the expert’s

testimony as substantial evidence to support a determination of nondisability”).

The VE testified that there were 49,957 of those jobs nationally, but only 199 in

the region.

       We must remand on this issue because the ALJ did not have an opportunity

to evaluate whether the parking lot attendant job, standing alone, existed in

significant numbers under the statute.     Allen v. Barnhart , 357 F.3d 1140, 1144

(10th Cir. 2004). “Thus, he did not give explicit consideration to the factors this

court has recognized should guide the ALJ’s commonsense judgment.”              Id.

       In addition, “[t]his court has made it clear that judicial line-drawing in this

context is inappropriate.”   Id. The question of whether the number of jobs

available is significant is fact-specific and requires evaluation on an individual

basis. Id. The resolution “should ultimately be left to the [ALJ’s] common sense

in weighing the statutory language as applied to a particular claimant’s factual

situation.” Trimiar , 966 F.2d at 1330 (quotation omitted). This rule is

particularly appropriate where, as here and in       Allen , the number of jobs available

in the region is relatively small–199 here, 100 in      Allen . See Allen , 357 F.3d at

1144. Accordingly, we decline the Commissioner’s invitation to find harmless


                                             -4-
error on the ground that the number of jobs is significant as a matter of law.    See

Allen , 357 F.3d at 1144-45 (refusing to hold as a matter of law that 100 jobs in

region was numerically significant);     compare id. , with Trimiar , 966 F.2d at 1330

(affirming ALJ’s determination, based on appropriate factors, that 650 to 900 jobs

in region was significant number).

       Mr. Chavez also asserts that the training required for this job conflicted

with the ALJ’s finding that he could do jobs involving only one- and two-step

processes. He argues that the parking lot attendant job’s specific vocational

preparation (SVP) level of two (“Anything beyond short demonstration up to and

including 1 month”), Dictionary of Occupational Titles, App. C, ¶ II ( 4th ed.

1991), impermissibly conflicts with the one- and two-step processes identified for

him. An SVP of two, however, is in the class of unskilled work, Social Security

Ruling 00-4p, 2000 WL 1898704, at *3, which is “work which needs little or no

judgment to do simple duties that can be learned on the job in a short period of

time,” 20 C.F.R. § 416.968(a). There is substantial evidence in the record to

support the ALJ’s conclusion that the parking lot attendant job’s mental

requirements were within Mr. Chavez’ capabilities.

       In sum, our remand on the issue of alternative work that Mr. Chavez could

perform is limited to a determination of whether the number of jobs is sufficient

to qualify as significant under the statute, § 423(d)(2)(A).


                                             -5-
                      Evidence Submitted to Appeals Council

      After the ALJ’s decision, but before the Appeals Council denied review,

Mr. Chavez submitted five reports from his treating psychiatrist, Dr. Leiby, to the

Appeals Council. “[N]ew evidence submitted to the Appeals Council becomes a

part of the administrative record to be considered when evaluating the

[Commissioner’s] decision for substantial evidence. . . . If the Appeals Council

fails to consider qualifying new evidence, the case should be remanded for further

proceedings.” Threet, 353 F.3d at 1191 (quotation omitted). The Appeals

Council is required to consider the evidence if it is new, material, and related to

the period on or before the ALJ’s decision. Id.

      Here, as in Threet, the Appeals Council “simply stated, without any

reference to the newly submitted materials, that ‘there is no basis under the above

regulations for granting your request for review.’” Id. at 1192 (quoting Appeals

Council); R. Vol. II, at 7. Consequently, if the evidence Mr. Chavez submitted

was new, timely, and material, a remand is required. Threet, 353 F.3d at 1191.

      Dr. Leiby’s reports qualify as new evidence because they were not

duplicative or cumulative; they provided information not available to the ALJ at

the time he made his decision. See Threet, 353 F.3d at 1191. The reports are

dated between October 25, 2001 and January 31, 2002. The reports available to

the ALJ were earlier than these new reports. Dr. Leiby opined that Mr. Chavez


                                          -6-
was totally disabled, citing physical pain and major depression. E.g., R. Vol. II,

at 430-31. The evidence also qualifies as timely because two of the reports

predate the ALJ’s decision, and the others appear to pertain to that period. See

Threet, 353 F.3d at 1191.

       We turn to the materiality requirement. “Evidence is material to the

determination of disability if there is a reasonable possibility that it would have

changed the outcome.” Id. (quotation omitted). The Commissioner asserts that

the reports are not material because Dr. Leiby’s opinion of disability was based

on Mr. Chavez’ claims of physical pain, which is not Dr. Leiby’s specialty.

       Whether Dr. Leiby’s reports raise a reasonable possibility that they would

have changed the outcome is a close question. The reports present the opinion of

a treating psychiatrist, which cannot simply be ignored. See Robinson v.

Barnhart , 366 F.3d 1078, 1082-84 (10th Cir. 2004) (explaining how to analyze

treating psychiatrist’s opinion).   On the other hand, the reports do not reveal that

Dr. Leiby’s opinions are based on “observed signs and symptoms or on

psychological tests,” either of which qualify as “specific medical findings” to

support a psychological opinion. Langley v. Barnhart, 373 F.3d 1116, 1122 (10th

Cir. 2004) (quotation omitted). We need not resolve whether Dr. Leiby’s reports

are material because the case must be remanded on other grounds. Therefore, we

direct the ALJ to consider these reports on remand, and, if necessary, to obtain


                                           -7-
supplementation from Dr. Leiby. See 20 C.F.R. § 416.912(e)(1) (authorizing

Commissioner to obtain additional information from treating source).

                                     Credibility

      The ALJ found that Mr. Chavez retained the RFC to perform a limited

range of light work, after determining that his allegations of limitations caused by

his back pain and depression were not supported by the medical evidence or were

not credible to the extent alleged. Mr. Chavez argues that in finding him not fully

credible, the ALJ failed to consider all of the medical evidence, exaggerated the

extent of his daily activities, and relied on reasons not supported by the record.

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

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

Kepler v. Chater, 68 F.3d 387, 391 (10th Cir.1995) (quotation omitted).

      Among the reasons the ALJ discounted Mr. Chavez’ claim that he could not

perform light work were that he refused to work at a desk job, he had a history of

non-compliance with recommended treatment, including quitting the “DVR

program” and refusing injections to his back, and he stopped psychiatric

counseling after a few visits because his counselor left the organization. In

addition, the ALJ found that Mr. Chavez continued to work off and on all the time

remodeling in Santa Fe, even after he injured his back.




                                         -8-
      The record does not support the ALJ’s finding that Mr. Chavez continued to

do remodeling work after he injured his back. The ALJ cited to a form

Mr. Chavez filled out describing “any work performed within the past 15 years.”

R. Vol. II, at 222. Mr. Chavez stated that he did remodeling in Santa Rosa (not

Santa Fe) “off & on all the time.” Id. This reference cannot be interpreted to

mean that Mr. Chavez did remodeling work all the time after his injury because

the form clearly requested data about past work, and neither Mr. Chavez nor his

physicians indicated that he had worked after he injured his back. 1 Moreover, the

ALJ found that Mr. Chavez “ha[d] not engaged in substantial gainful activity

since his alleged onset date.” Id. at 19. The record also does not contain

evidence about the “DVR program,” or the circumstances under which

Mr. Chavez refused to perform a desk job, except for a very brief reference in an

examining psychiatrist’s September 2000 report. Id. at 371. Therefore, because

we cannot say that the ALJ would have made the same credibility determination if

he had properly considered this evidence, we remand for additional findings.

                   Evaluation of Residual Functional Capacity

      Finally, Mr. Chavez contends that the ALJ failed to evaluate properly his

RFC because (1) he did not include in his hypothetical question to the VE


1
      The Commissioner’s spurious claim on appeal that Mr. Chavez was hired to
work at a KOA campground is improper; the record makes clear that Mr. Chavez
was not hired because of his back pain. See R. Vol. II, at 44-45.

                                        -9-
Mr. Chavez’s limitation on standing and prolonged activity, so (2) placing

Mr. Chavez’ RFC in the category of “light” work was in error, and (3) the ALJ

did not conduct a function-by-function analysis of Mr. Chavez’ walking and

sitting limitations.

      Dr. Reeve stated that Mr. Chavez would “have difficulty with standing

and/or performing activities for prolonged periods of time.” R. Vol. II, at 356.

The ALJ apparently incorporated these restrictions in a hypothetical question to

the VE, but the audiotape of the hearing was inaudible at that point, so the full

question is not contained in the record. Id. at 104. Nevertheless, it is clear that

the ALJ incorporated the restrictions noted by Dr. Reeve in his hypothetical

question, and that the restrictions did not change the jobs the VE had stated

Mr. Chavez could do. See id. Moreover, although “light” work can require “a

good deal of . . . standing,” 20 C.F.R. § 416.967(b), the ALJ properly relied on

the VE’s testimony to determine that the jobs identified for Mr. Chavez did not

require prolonged standing or activity.

      Mr. Chavez next complains that the ALJ did not evaluate his ability to walk

and sit in order to meet the requirements for light work. He points to evidence

that he exhibited discomfort while sitting and that he walked with an antalgic

(tending to alleviate pain) gait. “Disability requires more than mere inability to

work without pain.” Gossett v. Bowen, 862 F.2d 802, 807 (10th Cir. 1988)


                                          -10-
(quotation omitted). Although the evidence on which Mr. Chavez relies

demonstrates that he suffered discomfort while walking and sitting, it does not

undermine the ALJ’s determination, based on substantial evidence in the record as

a whole, that he retained the RFC to perform a limited range of light work.

                                    Conclusion

      The judgment of the district court is REVERSED, and this case is

REMANDED to the district court with instructions to remand, in turn, to the

Commissioner for further proceedings consistent with this order and judgment.



                                                   Entered for the Court



                                                   William J. Holloway, Jr.
                                                   Circuit Judge




                                        -11-
