                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                       UNITED STATES CO URT O F APPEALS
                                                                       December 20, 2006
                              FO R TH E TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                           Clerk of Court

    M AR GA RET SAN DO VA L,

              Plaintiff-Appellant,

     v.                                                    No. 06-2066
                                                   (D.C. No. CIV-04-1391 W DS)
    JO A NN E B. BA RN HA RT,                                (D . N.M .)
    Commissioner of the Social Security
    Administration,

              Defendant-Appellee.



                              OR D ER AND JUDGM ENT *


Before O ’B RIE N and BROR BY, Circuit Judges, and BRO W N, ** District Judge.




          Claimant M argaret Sandoval appeals from an opinion and order entered by

a United States M agistrate Judge 1 that affirmed the decision of the Commissioner



*
       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. 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not binding precedent, except under the doctrines of law of the case, res judicata,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 w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
**
       The H onorable W esley E. Brown, Senior District Judge, District of K ansas,
sitting by designation.
1
          The parties consented to the jurisdiction of the magistrate judge.
of Social Security (Commissioner) to deny her application for disability insurance

benefits and/or supplemental security income. Because the decision is supported

by substantial evidence and the correct legal standards were applied, we affirm.

                                  BACKGROUND

      M s. Sandoval filed her application on June 21, 2002, alleging disabling

back pain, depression and anxiety, as of September 1, 2000, when she was

thirty-nine years old. Following the administrative denial of her claim, she

appeared at a hearing before an administrative law judge (ALJ) in M arch 2004,

during which she, her ex-husband, and a vocational expert testified.

      In his June 2004 decision, the ALJ applied the five-step sequential

evaluation process required by Williams v. Bowen, 844 F.2d 748, 750-52

(10th Cir. 1988), and determined that M s. Sandoval was not disabled. At step

three the A LJ found that although she had a combination of impairments that were

severe, they did not meet or medically equal any of the Commissioner’s listing of

impairments. At step four he found that she retained the residual functional

capacity (RFC) to perform routine, supervised light work, and, specifically, her

past job as an electronics assembler. Last, at step five he found that even if she

could not perform her past relevant work, there were other jobs in significant

numbers in the regional and national economies that she could perform.




                                         -2-
      After the Appeals Council denied M s. Sandoval’s request for review, she

filed this action in district court. The magistrate judge entered an opinion and

order that affirmed the Commissioner’s denial of benefits. This appeal followed.

                            STANDARD OF REVIEW

      W e review the ALJ’s decision “to determine whether the factual findings

are supported by substantial evidence in the record and whether the correct legal

standards were applied.” Ham lin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir.

2004) (internal quotation marks omitted). W e base our review on the whole

record; therefore, “we . . . meticulously examine the record in order to determine

if the evidence supporting the agency’s decision is substantial,” but we “neither

reweigh the evidence nor substitute our discretion for that of the Commissioner.”

Id. (internal quotation marks and brackets omitted).

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

accept as adequate to support a conclusion. However, a decision is not based on

substantial evidence if it is overwhelmed by other evidence in the record or if

there is a mere scintilla of evidence supporting it.” Id. (internal quotation marks

and brackets omitted).




                                         -3-
                                    ANALYSIS

                                   Disabling Pain

      M s. Sandoval claims that at step three, the ALJ improperly evaluated her

complaints of disabling pain and also failed to consider all of the objective and

subjective evidence, including the testimony of her ex-husband. W e disagree.

      Although the objective medical evidence did not establish the existence of

disabling low er back pain, the medical records contained M s. Sandoval’s own

reports of severe pain. Therefore, she was “entitled to have [her] nonmedical

objective and subjective testimony of pain evaluated by the ALJ and weighed

alongside the medical evidence.” Kepler v. Chater, 68 F.3d 387, 390 (10th Cir.

1995) (quotation marks omitted).

      The framew ork for analyzing disabling pain under these circumstances

takes into account whether (1) there is objective medical evidence of a pain-

producing impairment; (2) there is a loose nexus between the pain-producing

impairment and the subjective allegations of pain; and (3) the pain is in fact

disabling, considering all of the objective and subjective evidence. Luna v.

Bowen, 834 F.2d 161, 163-64 (10th Cir. 1987). “O bjective” evidence is

physiological or psychological evidence that can be discovered and substantiated

by external testing. Id. at 162. “Subjective” evidence is statements by the

claimant or other witnesses that can be evaluated only on the basis of credibility.”

Id. at 162 n.2.

                                         -4-
      As to the first two Luna factors, the ALJ acknowledged that the objective

medical evidence established that M s. Sandoval had “mild degenerative disc

disease” and “a little arthritis in her back.” Aplt. App., Vol. I at 27. Having

found some objective evidence of a pain-producing impairment and a loose nexus

betw een the impairment and her subjective allegations of disabling pain, Luna

next “required [the ALJ] to consider her assertions of severe pain and decide

whether he believed them.” Kepler, 68 F.3d at 391 (quotation marks and brackets

omitted).

      In deciding whether to believe a claimant’s assertions of disabling pain,

there are “certain factors an [ALJ] should take into consideration when

considering the credibility of pain testimony.” Hargis v. Sullivan, 945 F.2d 1482,

1489 (10th Cir. 1991).

      Some of the possible factors include: the levels of medication and
      their effectiveness, the extensiveness of attempts (medical or
      nonmedical) to obtain relief, the frequency of medical contacts, the
      nature of daily activities, subjective measures of credibility that are
      peculiarly within the judgment of the ALJ, the motivation of and
      relationship between the claimant and other witnesses, and the
      consistency or compatibility of nonmedical testimony with objective
      medical evidence.

Id. (quotation omitted).

      Importantly, “[c]redibility determinations are peculiarly the province of the

finder of fact, and we will not upset such determinations when supported by




                                         -5-
substantial evidence. Diaz v. Sec’y of Health & Human Servs., 898 F.2d 774, 777

(10th Cir. 1990).

      Our review of the ALJ’s decision confirms that he specifically mentioned

many of the foregoing factors when evaluating M s. Sandoval’s allegations of

disabling pain. For example, w hile her M RIs and x-rays showed some arthritis

and mild degenerative disc disease, he noted the consultative physical

examination in which the physician said “from a physical, orthopaedic, and

neurological perspective, there were no significant signs necessitating limitations

in life or w ork activities,” and “the source of her complaints is unclear.” A plt.

App., Vol. I at 154.

      Further, the ALJ found that the nature of M s. Sandoval’s daily activities

included “driving and shopping when necessary, visiting, doing housework, and

conducting other routine activities.” Id. at 28. He acknowledged that she

testified that she was severely limited in her ability to sit, stand, walk, and lift.

However, he found her “complaints of debilitating back pain are disproportionate

to the objective findings and are not fully credited.” Id. He explained that “[h]er

contention that she can only walk short distances and sit from ten to twenty

minutes has no real support in the medical record. [She] has no spinal canal

narrowing or spinal cord impingement. [The consulting physician] could hardly

account for her complaints at all. [Her] level of degenerative changes is seen to

be essentially age appropriate.” Id; see also id. at 154.

                                           -6-
      Admittedly, the ALJ did not specifically mention M s. Sandoval’s pain

medications, the single epidural steroid injection she received in her lower back,

or describe each and every medical contact. He did, however, state that in

addition to her testimony, he considered “all of the evidence of record” and “the

evidence, as a whole.” Aplt. A pp., Vol. I at 25, 28. “[O]ur general practice . . .

is to take a lower tribunal at its word when it declares that it has considered a

matter.” Hackett v. Barnhart, 395 F.3d 1168, 1173 (10th Cir. 2005).

      M s. Sandoval next argues that the ALJ’s failure to specifically mention a

July 25, 2003 report of Thomas J. W halen, M .D., means that he did not consider

all of the objective medical evidence. In his report, Dr. W halen noted that the

source of her lower back pain is “degenerative disk disease” and “lumbar facet

arthropathy.” Aplt. App., Vol. I at 211-12. The ALJ’s decision acknowledges

that she suffers from “mild degenerative disk disease” and “a little arthritis in her

back,” which is consistent with Dr. W halen’s impressions. Id. at 27. 2 The mere

diagnosis of a condition, however, does not prove its severity, and a concomitant

disability. See Coleman v. Chater, 58 F.3d 577, 579 (10th Cir. 1995) (holding

that the mere presence of a condition is not necessarily disabling).




2
       “Lumbar facet arthropathy” is more commonly known as degenerative
arthritis that affects the facet joints in the spine. Taber’s Cyclopedic M edical
Dictionary 169 (19th ed. 2001), defines “arthropathy” as “an inflammatory joint
disease, such as rheumatoid arthritis.”

                                          -7-
      M s. Sandoval also argues that the case must be remanded because the ALJ

did not specifically mention or pass on the credibility of the testimony of her

ex-husband, Daniel Sandoval. Again, we disagree. Because M r. Sandoval’s

testimony was cumulative of M s. Sandoval’s testimony, the ALJ’s failure to

specifically discuss his testimony or pass on its credibility is not grounds for

reversal. See Adams v. Chater, 93 F.3d 712, 715 (10th Cir. 1996) (rejecting a rule

requiring an ALJ to make specific w ritten findings concerning each witness’s

credibility); Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996) (holding

that an ALJ is not required to discuss every piece of evidence.)

                    RFC Assessment and Hypothetical Question

      M s. Sandoval claims that the ALJ’s step-four finding that she could

perform her past relevant work as an electronics assembler must be reversed

because he failed to follow the three-phase analysis in Winfrey v. Chater, 92 F.3d

1017 (10th Cir. 1996). 3 In determining whether a claimant’s impairment prevents

her from performing past relevant work, the ALJ must evaluate her physical and

mental RFC, the physical and mental demands of her past relevant work, and



3
       Relying on confusion in the transcript, M s. Sandoval argued in her opening
brief that the A LJ’s determination that she could perform her past relevant work
or other jobs had to be reversed, because it was unclear whether they were
supervised or unsupervised jobs. A corrected transcript supplied by the
Commissioner establishes that the A LJ’s questions and the vocational expert’s
responses concerned supervised work. She does not challenge the corrected
transcript in her reply, and we do not address this issue on appeal.


                                          -8-
whether she has the ability to meet the job demands despite her physical and

mental limitations. Id. at 1023.

      Read closely, M s. Sandoval’s challenge is nothing more than a

disagreement with the findings made by the ALJ – not a misapplication of

Winfrey analysis to the facts. As stated by the magistrate judge in his opinion,

“[her] arguments might have merit if the ALJ had uncritically accepted the

entirety of [her] testimony. However, these arguments are based on testimony

that was rejected by the ALJ as not credible.” Aplt. App., Vol. 2 at 63. W e agree

with the magistrate’s conclusion that the ALJ’s factual findings are supported by

substantial evidence.

      Relying on Hargis, 945 F.2d at 1492, which requires that hypothetical

questions relate a claimant’s impairments with precision, M s. Sandoval’s final

contention of error is the ALJ’s failure to include in his question to the vocational

expert that she was moderately limited in her ability to understand and remember

detailed or complex instructions.

      As background, this limitation appears in a “Psychiatric - Psychological

Source Statement Of Ability To Do W ork-Related Activities” prepared in

November, 2002, by Tony Kreuch, an examining neuropsychologist. Aplt. A pp.,

Vol. I at 160. W hat M s. Sandoval fails to recognize is that Dr. Kreuch’s

accompanying “Psychological Consultative Examination,” does not mention this

limitation, and finds only that her “concentration is mild-to-moderate impaired,”

                                          -9-
but she has “the ability to understand and remember basic instructions.” Id. at

158.

       This is the evidence that the ALJ relied on for his finding that she “retains

the ability to understand and follow [basic] instructions, but [has] ‘moderate’

limitation in her ability to sustain concentration, persistence, and pace.

Accordingly, she is best suited for routine, supervised types of work.” Id. at 28.

And this is the evidence he relied on in posing his hypothetical question to the

vocational expert about the need for “routine” and “supervised” work. Id. at 287.

       Hypothetical questions to a vocational expert need only include those

limitations that the ALJ finds are established by substantial evidence. Evans v.

Chater, 55 F.3d 530, 532 (10th Cir. 1995). Here, the ALJ did not find that

M s. Sandoval’s asserted moderate limitation in her ability to understand and

remember complex and detailed instructions was supported by substantial

evidence, and therefore, it was not error for the ALJ to have not included this

restriction.

       W e also disagree with M s. Sandoval’s argument that if the ALJ had

apprised the vocational expert about this limitation, the expert would have

concluded that she lacked the reasoning skills for her past relevant work or the

other jobs. M s. Sandoval bases this argument on Appendix C of the Dictionary of

Occupational Titles (DOT), which requires the ability to “apply commonsense

understanding to carry out detailed but uninvolved written or oral instructions,”

                                         -10-
for the jobs the expert testified she could perform. DOT, Vol. II, App. C, 1011

(4th ed. Rev. 1991). This argument is based upon a misreading of Appendix C.

      For example, the job description for a small products assembler, DOT

No. 739.687-030 (one of several jobs that the vocational expert testified that

M s. Sandoval could perform), is followed by a trailer that states: “GOE: 06.04.23

STRENGTH : L G ED: R2 M 1 L1 SVP: 2 DLU : 81.” DOT, Vol. II at 772.

Appendix C explains that the reasoning, mathematical, and language descriptions

(R2 M 1 L1), refer to the educational development required for a job:

      General Educational Development (GED) embraces those aspects of
      education (formal and informal) which are required of the worker for
      satisfactory job performance. This is education of a general nature
      which does not have a recognized, fairly specific occupational
      objective. Ordinarily, such education is obtained in elementary
      school, high school, or college. However, it may be obtained from
      experience and self-study.

Id. at 1009, 1112.

      The adequacy of M s. Sandoval’s educational development is not in dispute,

and, therefore, the ALJ’s failure to include a restriction concerning her ability to

understand and remember complex instructions in his hypothetical question to the

vocational expert is immaterial to the outcome of the case.

      The judgment is A FFIR MED.

                                                     Entered for the Court

                                                     W ade Brorby
                                                     Circuit Judge



                                          -11-
