                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         NOV 13 2002
                          FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    ANN PALMER,

              Plaintiff - Appellant,

    v.                                                 No. 02-2002
                                              D.C. No. CIV-00-1698-BB/LCS
    DEPARTMENT OF HEALTH AND                        (D. New Mexico)
    HUMAN SERVICES; JO ANNE B.
    BARNHART, * Commissioner of
    Social Security Administration,

              Defendants - Appellees.


                          ORDER AND JUDGMENT           **




Before O’BRIEN and PORFILIO , Circuit Judges, and       KANE , *** Senior District
Judge.




*
      On November 9, 2001, Jo Anne B. Barnhart became the Commissioner of
Social Security. In accordance with Rule 43(c)(2) of the Federal Rules of
Appellate Procedure, Ms. Barnhart is substituted as the appellee in this action.
**
      This order and judgment is not binding precedent, except under the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.
***
      The Honorable John L. Kane, Senior District Judge, United States District
Court for the District of Colorado, sitting by designation.
      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.

      Plaintiff-appellant Ann Palmer appeals from the district court’s order

affirming the Commissioner’s denial of her application for disability and

supplemental security income benefits under the Social Security Act. We exercise

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


                                          I.

      In May 1997, plaintiff applied for social security benefits, alleging that she

has been disabled since October 1995. After plaintiff’s application was denied

initially and on reconsideration, a de novo hearing was held before an

administrative law judge (ALJ). In a decision dated March 26, 1999, the ALJ

denied plaintiff’s application at step five of the evaluation process, concluding

that, while she suffers from severe mental and physical impairments and is unable

to perform her past relevant work, there are other jobs available in the national

economy which she can perform. Specifically, the ALJ found that plaintiff

retains the physical capacity to perform light work and the mental capacity to

perform semi-skilled work, and that she is therefore capable of working as a

customer service clerk, file clerk, duplicating machine operator, or receptionist.

                                         -2-
       In October 2000, the Appeals Council of the Social Security

Administration denied plaintiff’s request for review of the ALJ’s decision.

Plaintiff then filed a complaint and a motion to reverse or remand the

administrative agency decision in the United States District Court for the District

of New Mexico. After independently reviewing the entire record, a magistrate

judge recommended to the district court that plaintiff’s motion to reverse or

remand be denied. In October 2001, the district court entered an order overruling

plaintiff’s objections to the magistrate judge’s recommendation, and the court

adopted the magistrate judge’s recommendation and denied plaintiff’s motion to

reverse or remand the administrative agency decision. This appeal then followed.


                                          II.

       “To qualify for disability benefits, a claimant must establish a severe

physical or mental impairment expected to result in death or last for a continuous

period of twelve months which prevents the claimant from engaging in substantial

gainful activity.”   Thompson v. Sullivan , 987 F.2d 1482, 1486 (10th Cir. 1993)

(citation omitted). The Commissioner has established a five-step sequential

evaluation process for determining whether a claimant is disabled.    Id. Here, the

ALJ denied benefits at step five. At step five, a claimant has established that he

has a severe impairment which prevents him from returning to his past relevant

work, and “the burden shifts to the [Commissioner] to show that the claimant

                                           -3-
retains the residual functional capacity (RFC) to do other work that exists in the

national economy.”    Id. at 1487.

      In this case, the ALJ found that the Commissioner met his burden at step

five, and the Appeals Council denied plaintiff’s request for review, rendering the

decision of the ALJ the final decision of the Commissioner.       See Hargis v.

Sullivan , 945 F.2d 1482, 1486 (10th Cir. 1991). We review the Commissioner’s

decision to determine only whether her factual findings are supported by

substantial evidence and whether she applied the correct legal standards.      Id.

“Substantial evidence is such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion.”    Id. “Evidence is insubstantial if it is

overwhelmingly contradicted by other evidence.”        O’Dell v. Shalala , 44 F.3d 855,

858 (10th Cir. 1994). In reviewing the record, we neither reweigh the evidence

nor substitute our judgment for that of the Commissioner.       Hargis , 945 F.2d at

1486. However, the record to be considered on review includes all of the

evidence before the Appeals Council, including any new evidence that was not

before the ALJ.   O’Dell , 44 F.3d at 859.


                                             III.

      Plaintiff contends the ALJ committed two errors that require us to reverse

the district court’s affirmance of the ALJ’s denial of benefits. First, plaintiff

claims the ALJ ignored the testimony of the vocational expert (VE), in response

                                             -4-
to three separate hypothetical questions, that there are no jobs in the economy

which plaintiff is capable of performing.   1
                                                Second, plaintiff claims the ALJ failed

to give controlling weight to the opinions of her treating physicians.

       1. Testimony of the VE

       At the hearing before the ALJ, the ALJ asked the VE the following

hypothetical question:

       What impact on the–either the availability of [customer service clerk,
       file clerk, duplicating machine operator, or receptionist] jobs or the
       transferability of those skills would a limitation of seriously limited,
       but not precluded in terms of ability to relate to co-workers, deal
       with the public or interact with supervisors have?

Aplt. App., Vol. I, at 71. The VE responded that “[s]eriously limited in those

jobs, she would–there aren’t any of those jobs that she could perform because

they’re all dealing with the public, supervisors and co-workers.”      Id. The ALJ

then asked the VE another hypothetical question:

       What impact do you have if you take those factors I’ve just outlined,
       seriously limited, but not precluded in terms of ability to deal with
       co-workers, relate to public, interact with supervisors. Throw into


1
       In her opening brief, plaintiff also claims the ALJ committed reversible
error because her hypothetical questions to the VE failed to include certain
physical limitations which had been identified by her treating physicians.
However, in the objections she filed to the magistrate judge’s proposed findings
and recommended disposition, see Aplt. App., Vol. II, at 80-83, plaintiff failed to
object to the magistrate judge’s proposed findings and recommended disposition
on this ground, and she therefore waived the VE/physical limitations issue for
purposes of this appeal.  See Key Energy Res. Inc. v. Merrill (In re Key Energy
Res. Inc.) , 230 F.3d 1197, 1199-1200 (10th Cir. 2000).

                                            -5-
      the mix the seriously limited but not precluded in terms of ability to
      behave in an emotionally stable manner, relate predictably in social
      situations and deal with work stresses? What impact does that have
      on the availability of jobs?

Id. at 72. The VE responded by stating that these limitations “would eliminate all

the jobs.” Id.

      In addition, plaintiff’s counsel asked the VE the following hypothetical

question:

      I want you to assume then the testimony of the claimant and her
      daughter about emotional problems that she’s presented both at home
      and work, in a work setting, and assume that she would have
      problems in completing a normal work day, accepting instructions
      and responding appropriately to criticism, getting long [sic] with
      co-workers and peers without distracting them or exhibiting
      behavioral extremes and responding appropriately to changes in the
      work setting. Making those assumptions, would the claimant be able
      to do any of her past relevant work or any of the suggested jobs
      you’ve come up with?

Id. at 73. The VE’s response to this question was “[n]o.”   Id.

      It is well established that an ALJ “may not ask a vocational expert a

hypothetical question based on substantial evidence and then ignore unfavorable

answers.” Campbell v. Bowen , 822 F.2d 1518, 1523 n.6 (10th Cir. 1987).

Plaintiff claims the ALJ violated this rule because, in his decision denying

benefits, he found that plaintiff has severe mental impairments, consisting of an

adjustment disorder, a borderline personality disorder, and depression, but he then

failed to discuss the VE’s unfavorable answers to the hypothetical questions. As


                                           -6-
a result, according to plaintiff, the ALJ erroneously concluded that her mental

impairments would not prevent her from performing the four semi-skilled jobs

identified by the VE as involving skills that were transferable from her prior work

experience.

      After thoroughly analyzing plaintiff’s medical records, the opinions of her

treating physicians, the opinions of the consulting physicians retained by the

Commissioner, and the other evidence in the administrative record, the magistrate

judge concluded as follows:

      In this case, the ALJ found the Plaintiff’s testimony and other
      evidence did not credibly establish symptoms of functional
      limitations to the extent alleged. His hypothetical question assumed
      that Plaintiff was seriously limited in the ability to relate to
      co-workers, deal with the public, and interact with supervisors. . . .
      Although the VE furnished an unfavorable answer, the ALJ’s
      question was not supported by the record. Therefore, even though
      the ALJ included within his questions pertaining to an individual
      with seriously limiting emotional problems at the hearing, he was not
      required to rely upon the VE’s answer if he later discredited the
      Plaintiff’s alleged limitations. I cannot say the [ALJ’s] decision is
      unsupported by substantial evidence.

Aplt. App., Vol. II, at 76 (citations omitted).

      Plaintiff argues that the magistrate judge’s analysis is flawed because the

limitations set forth in the hypothetical questions were supported by: (1) the

medical records and mental impairment evaluations of her treating psychologist,

Dr. Harmon, id. , Vol. I, at 197-201, 252-53, 284-85; (2) the mental impairment

evaluation completed by her treating physician, Dr. Carabajal,   id. at 254-55; and

                                           -7-
(3) “[t]he evidence of psychiatric problems with past employers, and the loss of

two jobs due to emotional instability,” Opening Br. at 15.

       We are not convinced the ALJ erred in determining that the limitations set

forth in the hypothetical questions were not supported by the record. First,

Dr. Harmon determined in June 1996, November 1996, and February 1997 that

plaintiff was unable to work due to her mental impairments.         See Aplt. App., Vol.

I, at 198-201. The ALJ correctly noted, however, that Dr. Harmon “provided no

formal or detailed mental status evaluation [to support his opinion],”      id. at 24,

and that “his basis for reaching this conclusion is not clear from the evidence in

the record,” id. Further, in the subsequent mental impairment evaluations he

prepared in February 1998 and November 1998,         2
                                                         Dr. Harmon listed a number of

limitations that plaintiff would have to overcome if she returned to work, and he

rated her mental limitations as moderate/severe.         Id. at 252-53, 284-85.

Nonetheless, he concluded that the limitations did not preclude employment.              Id.

       Second, we agree with the magistrate judge that the ALJ properly

discounted the opinions set forth in Dr. Carabajal’s mental impairment evaluation.

Id. at 254-55. Dr. Carabajal is a board-certified family practitioner,      id. at 257,


2
       After the ALJ issued his decision, Dr. Harmon prepared another mental
impairment evaluation in May 1999 which was submitted to the Appeals Council.
See Aplt. App., Vol. I, at 8, 307-08. However, while plaintiff cites to the May
1999 evaluation in her reply brief, she has not raised any specific issues regarding
that evaluation.

                                             -8-
and there is no evidence in the record indicating that Dr. Carabajal treated

plaintiff for her mental impairments. Instead, the record indicates that she treated

plaintiff for her back and stomach problems.     Id. at 245-51, 259-66, 271-74. As a

result, even if plaintiff is correct that Dr. Carabajal is permitted under state law to

provide psychiatric services,   see, e.g., Sprague v. Bowen , 812 F.2d 1226, 1232

(9th Cir. 1987), we cannot say the ALJ acted improperly in giving greater weight

to the opinions and conclusions of Dr. Harmon and Dr. Hughson, the consulting

psychiatrist retained by the Commissioner, “both of whom are mental health

professionals and both of whom essentially found [plaintiff] capable of working.”

Aplt. App., Vol. I, at 26.

       Third, plaintiff’s prior work history does not establish that she is incapable

of working as a result of her mental impairments and her related

anger-management problem. According to plaintiff’s own testimony, she was

fired from her most recent job after an emotional confrontation with her boss, but

she acknowledged that the confrontation was precipitated by her boss’s abusive

behavior and was also related to stress she was experiencing at the time caused by

medical problems and problems with her teenage daughter.        Id. at 45-47. And,

while plaintiff testified that she had problems interacting with her co-workers at

another prior job, she does not know why she was fired from that job.      Id. at




                                           -9-
47-48, 51-52. Thus, we cannot conclude, based on plaintiff’s prior work history,

that she is permanently disabled due to her mental impairments.

      Finally, the record shows that, since the time of her last employment,

plaintiff has been receiving reasonably effective treatment for her depression and

related anger-management problem, and that there has been a gradual, but

marked, improvement in her mental condition. As a result, while we do not

question whether plaintiff actually suffers from depression and a related

anger-management problem, we fully concur with the following conclusions of

the ALJ:

      It is clear from this record that much of [plaintiff’s] symptomatology
      consists of anger and explosive outbursts associated with an inability
      to control her emotions. While it is true that anger can interfere
      significantly with work, at the same time this is ultimately a problem
      of attitude and emotion. There is nothing in the record which would
      suggest that [plaintiff’s] condition is not responsive to control
      through counseling, medication, and self-discipline, or that it has
      ever resulted in a degree of limitation as to be considered disabling
      under the Social Security Act. The record generally shows that
      [plaintiff’s] mental impairments are responsive to medication,
      counseling, and changes in [her] life circumstances. The record
      likewise describes her treatment regimen as effective and helpful.
      Any finding of disability on the basis of [plaintiff’s] alleged mental
      impairments would fly in the face of the record as a whole and the
      Social Security Act and Regulations.

Id. at 26-27.




                                        -10-
       2. Opinions of Plaintiff’s Treating Physicians

       Plaintiff contends the ALJ erred by failing to give controlling weight to the

opinions of her treating physicians, Dr. Harmon, Dr. Carabajal, and Dr. Dorin.   3



With respect to Dr. Harmon and Dr. Carabajal and their opinions regarding the

work limitations resulting from plaintiff’s mental impairments, we explained

above why their opinions are not supported by substantial evidence in the record,

and we will not repeat that discussion here. Instead, we need only determine

whether the ALJ erred in failing to give controlling weight to the opinions of

plaintiff’s treating physicians concerning her alleged physical impairments and

related limitations.

       A treating physician’s opinion is not dispositive on the ultimate issue of

disability.   Castellano v. Sec’y of Health & Human Servs.    , 26 F.3d 1027, 1029

(10th Cir. 1994). Nonetheless, an ALJ must comply with specific requirements

before rejecting the opinions of a claimant’s treating physicians, and we have

explained the process as follows:

       An ALJ is required to give controlling weight to a treating
       physician’s well-supported opinion, so long as it is not inconsistent


3
       Plaintiff also claims the ALJ erred in failing to give controlling weight to
the opinions of Dr. Olivares, another of her treating physicians. However, we
need not address this claim since there is no indication in the record that
Dr. Olivares provided any specific opinions, or diagnoses, concerning plaintiff’s
alleged mental or physical impairments.    See Aplt. App., Vol. I, at 267-70,
275-77.

                                           -11-
       with other substantial evidence in the record. When an ALJ decides
       to disregard a medical report by a claimant’s physician, he must set
       forth specific, legitimate reasons for his decision. Further, there are
       several specific factors the ALJ must consider, including: (1) the
       length of the treatment relationship and the frequency of
       examination; (2) the nature and extent of the treatment relationship,
       including the treatment provided and the kind of examination or
       testing performed; (3) the degree to which the physician’s opinion is
       supported by relevant evidence; (4) consistency between the opinion
       and the record as a whole; (5) whether or not the physician is a
       specialist in the area upon which an opinion is rendered; and
       (6) other factors brought to the ALJ’s attention which tend to support
       or contradict the opinion.

Drapeau v. Massanari , 255 F.3d 1211, 1213 (10th Cir. 2001) (citations and

quotations omitted).

       The record indicates that plaintiff was involved in a car accident in

November 1997, and she subsequently complained of back and neck pain.

Following the accident, she was treated by a chiropractor, Dr. Simons, and by

Dr. Carabajal, and she was eventually diagnosed by Dr. Wilson, an orthopedic

specialist, as suffering from degenerative disc disease, with a superimposed

cervical strain, along with mechanical low back pain, with a superimposed strain.

See Aplt. App., Vol. I, at 260. Radiology reports also indicated that she had a

small focal disc bulge in her lumbar spine without evidence of herniation and a

possible cervical spondylosis.   Id. at 247, 262.

       The ALJ found that, while plaintiff’s back and neck problems constitute

severe physical impairments, she still retains the capacity to perform light work.


                                          -12-
Id. at 29-31. The governing regulations define light work as involving lifting no

more than twenty pounds at a time, with frequent lifting or carrying of objects

weighing up to ten pounds, and a good deal of walking or standing, or sitting with

some pushing and pulling of arm or leg controls.       See 20 C.F.R. §§ 404.1567 and

416.967. Plaintiff contends the ALJ’s finding that she can perform light work is

erroneous, and that the ALJ committed reversible error by discounting the

opinions of Dr. Carabajal and Dr. Dorin regarding her physical limitations.

       In July 1998, Dr. Carabajal completed a physical impairment evaluation

concerning plaintiff’s back and neck problems.       See Aplt. App., Vol. I, at 256.

She concluded that: (1) plaintiff could occasionally lift and/or carry twenty

pounds; (2) plaintiff could frequently lift and/or carry less than ten pounds;

(3) plaintiff could stand and/or walk for at least two hours in an eight-hour work

day; (4) plaintiff could sit for less than six hours in an eight-hour work day; and

(5) plaintiff has a limited ability to push and/or pull with her lower extremities

due to weak lower muscles.     Id.

       In April 1999, after the ALJ issued his decision, Dr. Dorin also prepared a

physical impairment evaluation for plaintiff.      Id. at 306. Dr. Dorin’s evaluation

was submitted to the Appeals Council,     id. at 8, and she concluded that:

(1) plaintiff could frequently lift and/or carry less than ten pounds; (2) plaintiff

could stand and/or walk less than two hours in an eight-hour work day;


                                           -13-
(3) plaintiff must periodically alternate between sitting and standing to relieve

pain or discomfort; and (4) plaintiff has a limited ability to push and/or pull with

her upper and lower extremities.    Id. at 306.

      Although the limitations set forth in Dr. Carabajal’s and Dr. Dorin’s

evaluations are arguably inconsistent with an ability to perform light work, we

agree with the ALJ that the conclusions set forth in Dr. Carabajal’s evaluation are

not supported by her clinical notes or the record as a whole, and we hold that

Dr. Dorin’s evaluation is similarly unsupported by the record.   4
                                                                     Specifically, as

summarized by the ALJ:

      When Dr. Carabajal examined [plaintiff] on December 29, 1997, she
      reported no tenderness or spasm in [plaintiff’s] back and she said
      medication had improved both her back and rib pain. On March 5,
      1998 [plaintiff] told Dr. Carabajal that her back was doing much
      better, and examination of the spine again showed no abnormalities.
      Radiographic evidence showed some degenerative changes in the
      cervical area, but no significant abnormalities elsewhere in the spine.

             ....

      [T]he record shows no evidence of a major back problem. . . .
      Physical examinations of the back have been within essentially
      normal limits. [Plaintiff] responded well to physical therapy and
      chiropractic treatments. As noted, she told Dr. Simon in February
      1998 that therapy had really helped her back, and she reported to
      Dr. Carabajal in March 1998 that her back was doing much better.


4
       We also note that, while plaintiff claims Dr. Dorin continued to treat her
after she underwent a hysterectomy in 1996 under Dr. Dorin’s care, there are no
medical records in the record pertaining to any treatment provided by Dr. Dorin
after 1996.

                                           -14-
      On February 23, 1998, she cancelled an appointment with Dr. Simon
      because she was in the middle of painting. At the time of her last
      physical examination in August 1998, she offered no complaints of
      back pain and Dr. Olivares reported a normal neurological
      examination. I find that the medical evidence supports a capability
      to perform at least light-level work activity.

             ....

      This finding . . . is consistent with the medical record, which
      documents no major physical impairments or limitations, with
      [plaintiff’s] somewhat sporadic and relatively minimal treatment
      regimen, and with her actual level of activities.

Aplt. App., Vol. I, at 25, 29 (citations omitted).

      The ALJ’s conclusions are supported by substantial evidence in the record,

and there is no overwhelming evidence to the contrary. Accordingly, we are

bound by the ALJ’s conclusions.    See Hargis , 945 F.2d at 1486.

      The judgment of the district court is AFFIRMED.


                                                     Entered for the Court


                                                     John C. Porfilio
                                                     Circuit Judge




                                          -15-
