                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                     UNITED STATES COURT OF APPEALS                 April 1, 2010
                            FOR THE TENTH CIRCUIT               Elisabeth A. Shumaker
                                                                    Clerk of Court


    THOMAS A. TALAMANTES,

                Plaintiff-Appellant,

    v.                                                  No. 09-1204
                                              (D.C. No. 1:07-CV-01664-CMA)
    MICHAEL J. ASTRUE,                                   (D. Colo.)
    Commissioner of Social Security,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before KELLY, BALDOCK, and HOLMES, Circuit Judges.



         Thomas A. Talamantes appeals from a district court judgment affirming a

decision by the Commissioner of Social Security to deny his application for

disability insurance benefits. Exercising jurisdiction under 28 U.S.C. § 1291 and

42 U.S.C. § 405(g), we affirm.




*
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
                                   Background

      Mr. Talamantes alleges disability since June 9, 2004, due to chronic back

pain, depression, high cholesterol, and high blood pressure. He last met insured

status requirements on December 31, 2005, when he was fifty years old. He has

been a tree trimmer and a chef, but stopped working outside the home in August

2000, when he became the primary caretaker of his two children and his

residence. His typical day involves self-care, cooking, housework, tending to his

animals, and gathering wood for the day.

      His primary complaint, back pain, stems from a 1975 rollover motor

vehicle accident that occurred while Mr. Talamantes was in military service.

For this reason, he has received consistent medical care through the Veterans

Administration Health Care System (VA). His back pain, sometimes

accompanied by hip, leg, and foot pain, began to worsen in 2000 or 2001. VA

medical records compiled from 2000 to 2006 indicate mild degenerative problems

at several levels of his lumbar spine, as revealed by an MRI, an x-ray, an

electromyogram, a nerve conduction study, a musculoskeletal examination, a

neurosurgery examination, observation of motion, and orthopedic tests.

Treatment has involved medication and a TENS unit (a device that sends

electrical impulses to block pain signals), but surgery has not been recommended.

The medical records are replete with observations of exaggerated pain behaviors,

conflicting statements about pain levels, and inconsistent descriptions of physical

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activities. His high cholesterol levels and high blood pressure are controlled by

medication.

      At times, Mr. Talamantes has complained of stress, anxiety, anger,

irritability, and depression. He was prescribed Prozac at his request, but refused

formal mental health treatment. Although a nurse practitioner described him as

depressed, a follow-up mental status evaluation indicated that he had normal,

nondepressed mood; coherent thought processes; good insight and judgment;

intact memory; and an average fund of knowledge. He was assigned a global

assessment of functioning score of 75, which indicates that symptoms, if present,

“are transient and expectable reactions to psychosocial stressors (e.g. difficulty

concentrating after family argument),” and cause “no more than slight impairment

in social, occupation, or school functioning.” See Am. Psychiatric Ass’n,

Diagnostic & Statistical Manual of Mental Disorders 32 (4th ed. 1994).

      Mr. Talamantes’ application for disability benefits was denied initially and

on reconsideration. He then requested and received a de novo hearing before an

Administrative Law Judge (ALJ). In her written decision, the ALJ detailed the

medical record, discussed Mr. Talamantes’ testimony, and reviewed the testimony

of a Vocational Expert (VE). Specifically, the ALJ found that (1) Mr. Talamantes

suffered from the severe physical impairment of degenerative changes of the

lumbar spine, a condition which was reasonably likely to produce pain and related

symptoms; (2) he did not have a severe mental impairment or a severe impairment

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related to high blood pressure or high cholesterol; (3) he did not have an

impairment or combination of impairments that met or medically equaled a listed

impairment; (4) his “statements concerning the intensity, persistence and limiting

effects of [his] symptoms are not entirely credible,” Admin. App., Vol. 1 at 24;

(5) he was unable to perform his previous jobs; (6) he had the RFC to perform a

limited range of unskilled light work on the date last insured; and (7) he could

perform jobs existing in significant numbers in the national economy, such as

gate guard, storage facility rental clerk, and video rental clerk. Thus, the ALJ

concluded that Mr. Talamantes was not disabled at step five of the sequential

evaluation process. See Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009)

(explaining the five-step framework for determining disability).

                                     Discussion

      On appeal, Mr. Talamantes raises three challenges to the ALJ’s decision.

“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.” Cowan v. Astrue, 552 F.3d 1182, 1184-85

(10th Cir. 2008) (quotation omitted). “We consider whether the ALJ followed the

specific rules of law that must be followed in weighing particular types of

evidence in disability cases, but we will not reweigh the evidence or substitute

our judgment for the Commissioner’s.” Id. (quotation omitted).




                                         -4-
Compliance with Medical Opinion Standards

      Mr. Talamantes’ first contention is that the ALJ violated the

Commissioner’s regulations regarding the weight to be given medical opinions.

He claims that the ALJ accorded disproportionate weight to the RFC assessment

of a nontreating, nonmedical source. It is true that the ALJ mistakenly referred to

an evaluator with a doctor-of-education degree as a “[s]tate agency physician”

and stated that she gave “significant weight” to the evaluator’s opinion. Admin.

App., Vol. I at 26.

      The ALJ’s mistake, however, does not necessarily mean that she committed

reversible error. Under the applicable regulations, “[a]n ALJ is required to give

controlling weight to a treating physician’s well-supported opinion, so long as it

is not inconsistent with other substantial evidence in the record.” Drapeau v.

Massanari, 255 F.3d 1211, 1213 (10th Cir. 2001). The ALJ must also evaluate

every medical opinion in the record, giving varying weight to each opinion

“according to the relationship between the disability claimant and the medical

professional.” Hamlin v. Barnhart, 365 F.3d 1208, 1215 (10th Cir. 2004).

In other words, a violation of the applicable regulations contemplates a disregard

of a medical-source opinion.

      Here, the ALJ reviewed both the medical record and the state-agency

evaluator’s RFC findings. She “not[ed] there are no other opinions from treating

or examining physicians contained in the file which would indicate the claimant is

                                        -5-
not capable of” the restricted-light-work assessment reached by the evaluator.

Admin. App., Vol. I at 26. In reaching her RFC finding, the ALJ “considered all

symptoms and the extent to which these symptoms can reasonably be accepted as

consistent with the objective medical evidence and other evidence.” Id. at 24.

      Agreeing with the evaluator, the ALJ found that Mr. Talamantes had the

RFC “to lift 20 pounds occasionally and 10 pounds frequently; stand and/or walk

for up to 6 hours in an 8 hour day and sit for up to 6 hours in an 8 hour day with

the ability to alternate positions as needed” but was “precluded from stooping,

and limited to occasional crouching or crawling.” Id. at 23. What is more, the

ALJ added another restriction to the evaluator’s RFC. “[T]o give the claimant the

greatest benefit of the doubt,” she “assum[ed] that he must have the ability to

alternate positions as needed.” Id. at 26.

      The evaluator’s assessment and the ALJ’s ultimate finding were in accord

with the medical evidence, not at odds with it. Although the ALJ erred in

mischaracterizing the source of the initial RFC description, this error was not in

violation of the medical-opinion regulations: there were no conflicts between the

medical opinion on record and the evaluator’s opinion. Cf. Poppa v. Astrue,

569 F.3d 1167, 1174 (10th Cir. 2009) (finding harmless error in ALJ’s failure to

inquire about potential conflict between VE testimony and DOT job descriptions

when no actual conflict existed). We conclude the ALJ’s misapprehension of the

evaluator’s medical qualifications amounted to harmless error.

                                             -6-
Substantial Evidence Underlying RFC Determination

      A related issue is Mr. Talamantes’ claim that the ALJ’s RFC determination

is not supported by substantial evidence. He contends that the ALJ should have

obtained additional opinions regarding his physical and mental impairments

because the medical record contains insufficient evidence to assess his RFC.

“In a social security disability case, the claimant bears the burden to prove [his]

disability,” though the nonadversarial nature of these matters imposes a duty on

the ALJ “to ensure that an adequate record is developed . . . consistent with the

issues raised.” Flaherty v. Astrue, 515 F.3d 1067, 1071 (10th Cir. 2007)

(quotation omitted).

      Mr. Talamantes’ physical and mental condition is well-documented in his

VA medical records. None of his numerous medical providers suggested

uncertainty or the need for additional investigation, so there was no need for

further development of the record. The existing medical records provided

substantial evidence in support of the ALJ’s RFC assessment.

Commissioner’s Step-Five Burden

      If the analysis reaches step five of the sequential-evaluation process, the

burden shifts to the Commissioner to show “there are sufficient jobs in the

national economy for a hypothetical person with [the claimant’s] impairments,”

Jensen v. Barnhart, 436 F.3d 1163, 1168 (10th Cir. 2005), “given [his] age,

education, and work experience,” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir.

                                         -7-
2007) (quotation omitted). In posing hypothetical questions to the VE, the ALJ is

required to identify only those physical and mental impairments borne out by the

evidentiary record. Decker v. Chater, 86 F.3d 953, 955 (10th Cir. 1996).

       Specifically, Mr. Talamantes argues that the Commissioner did not satisfy

his burden at step five of the analysis because the ALJ’s hypotheticals did not

“relate with precision” all of the impairments included in his RFC. Hargis v.

Sullivan, 945 F.2d 1482, 1492 (10th Cir. 1991) (quotation omitted). He claims

there is a significant distinction to be made between “the opportunity to alternate

positions between sitting and standing,” as stated in a hypothetical to the VE,

Admin. App. at 360, and the “ability to alternate positions as needed,” as

described in the RFC, id. at 26. Any discrepancy between these two statements is

“minor enough not to undermine confidence in the determination of this case.”

Gay v. Sullivan, 986 F.2d 1336, 1341 n.3 (10th Cir. 1993).

      Our review of the record indicates that the ALJ’s question adequately

included the limitations that she found were supported by the medical record.

That record, along with the VE’s testimony on existing jobs, provided substantial

evidence to support the ALJ’s step-five determination.




                                         -8-
                                  Conclusion

      For the foregoing reasons, we conclude that the ALJ applied the correct

legal standards and substantial evidence supports the ALJ’s RFC determination

and step-five conclusion. The judgment of the district court is AFFIRMED.


                                                  Entered for the Court



                                                  Paul J. Kelly, Jr.
                                                  Circuit Judge




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