                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   June 16, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                            FOR THE TENTH CIRCUIT


    JOHN C. ARMIJO,

                Plaintiff-Appellant,

    v.                                                   No. 09-1305
                                               (D.C. No. 1:08-CV-02150-CMA)
    MICHAEL J. ASTRUE, Commissioner                       (D. Colo.)
    of Social Security,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, BALDOCK, and TACHA, Circuit Judges.



         John C. Armijo appeals the district court’s affirmance of the Commissioner

of Social Security’s denial of disability 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 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not binding precedent, except under the doctrines of law of the case, res judicata,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 with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                   Background

      In his application for disability benefits, Mr. Armijo alleged an onset date

of November 25, 2005. He based his claim on back and leg pain stemming from a

work-related injury he sustained in 1990. He received a 44% impairment rating

shortly after that injury but continued to work until 2003 as a concrete form setter

and then a carpenter. Both jobs involved lifting more than 100 pounds on a

frequent basis. From June 2005 until his onset date, Mr. Armijo was employed as

a maintenance worker, a job that required frequent lifting of 20 pounds. He stated

that his final employer knew how bad his back was, but he believed that a DUI

conviction “opened the door for them to let me go.” Aplt. App., Vol. II at 26.

      After initial denials of his application, Mr. Armijo testified at a hearing

before an Administrative Law Judge (ALJ), who issued a written decision on

January 24, 2008. The ALJ applied the familiar five-step sequential evaluation

process set forth in 20 C.F.R. § 404.1520(a). At the first step, the ALJ

determined that Mr. Armijo had not engaged in substantial gainful activity since

his onset date. At step two, the ALJ found that Mr. Armijo had one severe

impairment, degenerative disc disease of the lumbar spine, but that it was not of

listing-level severity for step-three purposes. The ALJ also noted that Mr. Armijo

had depression, but observed that it was controlled by medication and therefore

did “not impose more than a minimal effect on [his] ability to perform basic work

activities and is thus not a ‘severe’ impairment.” Aplt. App., Vol. II at 14. The

                                         -2-
ALJ further considered Mr. Armijo’s cocaine and alcohol abuse and repaired

right-hand fracture, but concluded they were not severe impairments.

      The ALJ then determined at step four that Mr. Armijo retained the residual

functional capacity (RFC) to perform light work; he could “lift and carry

20 pounds occasionally and 10 pounds frequently; sit for six hours in an

eight-hour workday; stand/walk for six hours in an eight-hour workday; and

occasionally climb, balance, stoop, kneel, crouch and crawl.” Id. at 15. In

reaching this finding, the ALJ afforded little weight to the greater limitations

described in a disability report prepared by Mr. Armijo’s treating physician,

David Yamamoto, M.D., after an October 12, 2007 examination. Based on this

RFC, the ALJ determined that Mr. Armijo was unable to return to his past

relevant work. 1

      Finally, at step five, the ALJ noted that because Mr. Armijo had

nonexertional limitations, the Medical-Vocational Guidelines, 20 C.F.R. Part 404,

Subpart P, Appendix 2 (the “grids”), could only be used as a framework for the


1
       In formulating his RFC finding, the ALJ provided a number of reasons for
finding that Mr. Armijo was not entirely credible concerning the intensity,
persistence, and limiting effects of his symptoms: the apparent lack of treatment
during an eleven-month period after his onset date; his significant activities of
daily living and regular reports of pain relief with treatment; the lack of medical
evidence to support his claims of leg pain; the lack of severity in his diagnoses of
sacroiliac strain and lower back pain; the fact that clinical exams did not
demonstrate any neurological deficits; and Mr. Armijo’s admission that he was
fired from his last job because of his DUI conviction. Mr. Armijo has not
challenged the ALJ’s adverse credibility finding on appeal.

                                          -3-
disability determination, not as a directive. Taking account of Mr. Armijo’s

combination of age (49), tenth-grade education, and work experience (unskilled),

and finding that his nonexertional limitations had little or no effect on the

occupational base of unskilled light work, the ALJ determined that a finding of

“not disabled” was appropriate under Rule 202.17 of the grids.

      Mr. Armijo appealed to the Appeals Council and submitted several pieces

of new evidence. The Appeals Council considered this evidence but denied

review, concluding that it did “not establish greater work restrictions than found

in the hearing decision.” Aplt. App., Vol. II at 1. The Council also rejected the

argument that the ALJ did not give adequate weight to Dr. Yamamoto’s 2007

disability report. Mr. Armijo unsuccessfully appealed to the district court, and

this appeal followed.

                                     Discussion

      On appeal, Mr. Armijo raises four issues, which we consider in order of

analytical convenience: (1) the ALJ failed to evaluate his depression according to

the special technique described in 20 C.F.R. § 404.1520a; (2) the ALJ gave

improper weight to Dr. Yamamoto’s 2007 disability report; (3) the ALJ erred in

relying on the grids because the evidence showed Mr. Armijo had significant

nonexertional impairments; and (4) the Appeals Council should have reviewed the

ALJ’s decision in view of the additional evidence he submitted to it. Our task is

to review “the Commissioner’s decision to determine whether the factual findings

                                          -4-
are supported by substantial evidence in the record and whether the correct legal

standards were applied.” Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir.

2003).

         A.    The ALJ’s evaluation of Mr. Armijo’s depression

         Mr. Armijo contends that the ALJ committed an error at step two in not

evaluating his depression using the special technique of 20 C.F.R. § 404.1520a,

claiming that failure affected the ALJ’s RFC finding and application of the grids.

The Commissioner concedes the error but argues it was harmless. We agree.

Under the regulation, when a claimant has a medically determinable mental

impairment, it must be evaluated by rating the degree of functional limitation in

four broad functional areas: “Activities of daily living; social functioning;

concentration, persistence, or pace; and episodes of decompensation.” 20 C.F.R.

§ 404.1520a(c)(3). After rating the degree of functional limitation in each area,

the factfinder then determines the severity of the mental impairment. Id.

§ 404.1520a(d). 2 At the ALJ-hearing level, the ALJ must document application of

the technique in the written decision. Id. § 404.1520a(e).



2
       We pause to note that in analyzing the regulation, the district court
erroneously concluded that the ALJ was not obligated to rate the degree of
functional limitation because he concluded Mr. Armijo’s depression was not
severe. See Aplt. App., Vol. I at 48-49 (Dist. Ct. Order at 13-14). But as is plain
from the regulation, rating the degree of functional limitation in each functional
area is the means of determining whether a claimant’s mental impairment is
severe. See 20 C.F.R. § 404.1520a(d).

                                         -5-
      Here, the ALJ did not cite to the regulation, let alone document its special

technique in his decision. Instead, the ALJ merely observed that Mr. Armijo’s

depression was controlled by medication and therefore did “not impose more than

a minimal effect on [his] ability to perform basic work activities and is thus not a

‘severe’ impairment.” Aplt. App., Vol. II at 14. Given the state of the record

before the ALJ, 3 it is commendable that the ALJ even took note of Mr. Armijo’s

depression. Mr. Armijo did not advance depression as a basis for his disability

claim; he wholly omitted it from his application and other filings except for one

reference in his request for an ALJ hearing, where he listed an antidepressant

among his medications. Indeed, it was not until after the ALJ’s adverse decision

that Mr. Armijo took the position that his depression was a factor in the disability

calculus. Moreover, Mr. Armijo never complained to his doctors that his

depression was causing problems. The record reflects only that Dr. Yamamoto

prescribed Lexapro for Mr. Armijo on a number of occasions and that it helped

with his depression. Significantly, nowhere in his medical records does

Dr. Yamamoto observe any mental problems or memory limitations attributable to

depression; to the contrary, in his 2007 disability report, on which Mr. Armijo

3
      In determining whether the ALJ’s failure to apply the special technique was
harmless error, we do not take into account the evidence Mr. Armijo submitted to
the Appeals Council, as he implies we should. That evidence was not before the
ALJ at the time of his decision, and whether the ALJ erred with respect to the
special technique is a legal question, not one of substantial evidence. Whether
substantial evidence supports the ALJ’s decision in view of the evidence he
submitted to the Appeals Council is a separate issue discussed below.

                                         -6-
relies with regard to his back pain, Dr. Yamamoto stated that Mr. Armijo “does

not appear to have memory problems, mental or sensory limitations,” id. at 199.

      Although the ALJ’s failure to apply the special technique was error, it was

harmless. We may apply harmless error in the social security context “where,

based on material the ALJ did at least consider (just not properly), we could

confidently say that no reasonable administrative factfinder, following the correct

analysis, could have resolved the factual matter in any other way.” Allen v.

Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004). 4 Because there was nothing in

the record before the ALJ to suggest that Mr. Armijo’s depression caused

functional limitations in any of the four broad functional areas, we can say with

confidence that no reasonable administrative factfinder, applying the special

technique of § 404.1520a, could have reached any finding other than that

Mr. Armijo’s depression had only minimal effect on his ability to perform basic

work activities. Accordingly, the ALJ’s RFC finding was sound, and his failure

to apply the special technique did not affect his reliance on the grids (discussed

more fully below).



4
       The Commissioner urges us to apply a different harmless-error standard,
one drawn from outside of the social-security context, where an error is harmless
“‘unless it had a substantial influence on the outcome.’” Aplee. Br. at 15
(quoting United States v. Wacker, 72 F.3d 1453, 1473 (10th Cir. 1995)). We are
not at liberty to deviate from Allen’s controlling formulation of the harmless-error
standard to be used in social-security cases. See Mendiola v. Holder, 585 F.3d
1303, 1310 (10th Cir. 2009) (“We may not overrule another panel of this court.”).

                                         -7-
      B. Weight given to Dr. Yamamoto’s opinion

      In his 2007 disability report, Dr. Yamamoto offered his opinion as to

Mr. Armijo’s functional capacity, which the ALJ summarized:

      [Mr. Armijo] can lift up to 10 pounds for 10 minutes an hour; can
      carry eight pounds for 10 to 15 minutes an hour; can sit for 30 to 60
      minutes at a time and a total of three hours in an eight-hour workday;
      can stand for 30 minutes at a time and a total of two hours in an
      eight-hour workday; can walk for 15 to 20 minutes at a time and a
      total of two hours in an eight-hour workday; must change positions
      every 20 to 30 minutes; must spend one hour lying down during an
      eight-hour workday; can perform grasping and fine manipulation
      with the bilateral upper extremities for 10 to 15 minutes per hour;
      can use the bilateral feet to operate foot controls for 10 to 15 minutes
      an hour; cannot climb, kneel or crawl; can occasionally balance,
      stoop and crouch; can occasionally reach, handle and finger; can
      frequently perform feeling; has limitations of his ability to work at
      heights and around moving machinery; cannot tolerate concentrated
      exposure to extremes of temperature or fumes; can tolerate moderate
      exposure to vibrations; would require five-minute breaks every
      30 minutes; would be absent from work three to five days a month;
      and has fatigue that limits his ability to adapt to stress and to
      concentrate.

Aplt. App., Vol. II at 17-18 (citation omitted). The ALJ found Dr. Yamamoto’s

opinion “largely unpersuasive and accord[ed] it little weight.” Id. at 18. In

support, the ALJ provided many reasons:

      [The opinion’s] assertion that the claimant must change positions
      every 20 to 30 minutes is inconsistent with its indication that he can
      sit for 30 to 60 minutes at a time; its limitations on fine manipulation
      are not consistent with its later-stated limitations on fingering and
      feeling and none of those limitations are consistent with the
      claimant’s responses in the “Function Report” in exhibit 4E, which
      do not indicate any difficulty with using his hands or reaching; the
      opinion does not explain how the claimant’s lower back and leg pain
      limit his ability to perform manipulative activities with his upper

                                         -8-
      extremities; its limitations on balance are not consistent with the
      claimant’s denial of balance problems at his December 2007 hearing
      evaluation; its lifting limitations are not consistent with the
      claimant’s own reports of his ability to lift; the opinion is not
      supported by any documentation of complaints of fatigue in the
      treatment records; its mental limitations are not supported by any
      documentation of complaints of poor concentration or stress
      tolerance in the treatment records, by any objective medical evidence
      of concentration deficits, or by the claimant’s responses in the
      “Function Report” in exhibit 4E, which do not indicate any difficulty
      with concentration, following instructions, or handling stress or
      changes in routine; though the opinion states that the claimant’s
      lifting limitations were measured on October 12, 2007, the treatment
      note corresponding to that date does not document any measurement
      or assessment of lifting abilities; to the extent that the opinion relies
      on the claimant’s 1990 impairment rating for support it is
      unpersuasive because despite that rating, the claimant subsequently
      performed physically demanding work for several years; and the
      objective findings Dr. Yamamoto offers in support of the opinion are
      not consistent with those actually documented in his treatment notes
      in exhibit 12F. For example, Dr. Yamamoto’s treatment notes do not
      identify any exam findings of “marked” tenderness or muscle spasm.
      Similarly, though Dr. Yamamoto states in support of his opinion that
      the March 2007 MRI demonstrated a right lateral disc bulge at L4-5,
      the treatment records indicate that the MRI revealed only a possible
      “small” herniated nucleus pulposis at L4-5.

Id. (citations omitted).

      Mr. Armijo first claims the ALJ erred in not first determining whether

Dr. Yamamoto’s opinion was entitled to controlling weight under 20 C.F.R.

§ 404.1527(d)(2), which provides that controlling weight is afforded to a treating

source’s opinion if it “is well-supported by medically acceptable clinical and

laboratory diagnostic techniques and is not inconsistent with the other substantial

evidence in [the] record.” He alternately argues that in finding Dr. Yamamoto’s


                                         -9-
opinion was entitled to little weight, the ALJ failed to consider the factors set

forth in § 404.1527(d), which we have summarized as follows:

      (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.

Watkins, 350 F.3d at 1301 (quotation omitted). In support, he argues that

“Dr. Yamamoto’s treatment notes document findings such as decreased range of

motion of the lumbar spine, lumbar and right hip tenderness, and trigger points.

He reviewed a lumbar MRI report and a nerve conduction study, which showed

evidence of mild right L5 radiculopathy.” Aplt. Opening Br. at 36-37 (citations

omitted). He also contends that Dr. Yamamoto’s findings at the October 12, 2007

disability examination support his opinion in that Dr. Yamamoto found

“[Mr.] Armijo had a reduced range of motion of his lumbar spine, was markedly

tender over the sacroiliac joints bilaterally, and had tenderness and spasms on his

lumbar spine.” Id. at 37. He further claims that “[c]ontrary to the ALJ’s doubts,

Dr. Yamamoto actually measured [his] limitations.” Id. This argument is based

on a statement in Dr. Yamamoto’s report that lifting limitations were “based on

testing in my office,” Aplt. App., Vol. II at 197, and on Mr. Armijo’s hearing

testimony that Dr. Yamamoto “had me lifting some light weights, I think it was

                                         -10-
10, 15 pounds, had me bending over, checking me and checking my back and

measuring my movements,” id. at 38; see also id. at 39 (“he measured me, like I

said, and . . . measured my bending and . . . wrote down what he thought”).

Mr. Armijo also claims that Dr. Yamamoto’s opinion is consistent with “the only

other significant evidence of record,” a June 2004 evaluation that “showed a

positive straight leg raising test on the right at 45 degrees and a diagnosis [of]

low back pain with radiculopathy.” Aplt. Opening Br. at 38.

      Although a somewhat close case, we disagree with Mr. Armijo. First, even

though the ALJ did not explicitly state that Dr. Yamamoto’s opinion was not

entitled to controlling weight, that finding is implicit in his decision to accord

little weight to the opinion. A treating physician’s medical opinion is entitled to

controlling weight only if it is “well-supported by medically acceptable clinical

and laboratory diagnostic techniques and is not inconsistent with the other

substantial evidence in [the] record.” 20 C.F.R. § 404.1527(d)(2). The ALJ

detailed the lack of supporting documentation in the record for the type and/or

degree of limitations that Dr. Yamamoto advanced. He observed that

Dr. Yamamoto’s prior treatment notes did not support the degree of limitation in

his disability report, and there was no suggestion that Mr. Armijo’s condition had

deteriorated since his previous visit on September 19, 2007, when

Dr. Yamamoto’s back exam revealed only that Mr. Armijo’s back is “tender,

SI joints bilaterally, also midline lumber spine.” Aplt. App., Vol. II at 242. See

                                          -11-
Castellano v Sec’y of Health & Human Servs., 26 F.3d 1027, 1029 (10th Cir.

1994) (deeming such circumstances proper grounds for rejection of treating

physician’s opinion). The ALJ also noted particular conflicts between

Dr. Yamamoto’s opinion and specific record evidence, and pointed to internal

inconsistencies in Dr. Yamamoto’s opinion. In addition, we are not persuaded by

Mr. Armijo’s argument that Dr. Yamamoto’s opinion is consistent with “the only

other significant evidence of record,” Aplt. Opening Br. at 38, his 2004 positive

straight-leg raising test and diagnosis of low back pain with radiculopathy.

Dr. Yamamoto observed a bilaterally negative test much later, on March 5, 2007,

and the issue is not whether Mr. Armijo has low back pain with radiculopathy but

the degree to which it affects his ability to work. Accordingly, we conclude that

substantial evidence supports the ALJ’s implicit determination that the opinion

was not entitled to controlling weight.

      Next, in determining that Dr. Yamamoto’s opinion was only entitled to

little weight, the ALJ did not expressly apply each of the six regulatory factors set

out in 20 C.F.R. § 404.1527(d). However, we do not require express application

of each factor; indeed, not all the factors “will apply in every case.” Oldham v.

Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007) (quotation omitted). We only

require the ALJ’s decision to “be sufficiently specific to make clear to any

subsequent reviewers the weight the adjudicator gave to the treating source’s

medical opinion and the reasons for that weight.” Watkins, 350 F.3d at 1300

                                          -12-
(quotation omitted). Put more simply, we only require an ALJ to give “good

reasons” for the weight accorded to a treating source’s medical opinion. Oldham,

509 F.3d at 1258 (citing 20 C.F.R. § 404.1527(d)(2)).

      The ALJ’s decision indicates that he considered all the factors, and it

contains good reasons for the weight he gave to Dr. Yamamoto’s opinion. It is

clear from the ALJ’s recitation of the medical evidence generated by

Dr. Yamamoto that he was well aware of factors one, two, and five, “(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;” and “(5) whether or not the

physician is a specialist in the area upon which an opinion is rendered,” Watkins,

350 F.3d at 1301. Factors one and two favor Dr. Yamamoto except to the extent

the ALJ found fault with his failure to contemporaneously document any

measurement or assessment of Mr. Armijo’s lifting abilities at the October 12,

2007 examination. Factor five appears neutral. Most importantly, the third and

fourth factors, “(3) the degree to which the physician’s opinion is supported by

relevant evidence” and the “(4) consistency between the opinion and the record as

a whole,” id., had significant bearing on the ALJ’s finding, and as discussed

above, support the weight the ALJ gave Dr. Yamamoto’s opinion. Regarding the

sixth factor, Mr. Armijo has not pointed to, nor have we uncovered, “other factors

brought to the ALJ’s attention which tend to support or contradict the opinion,”

                                        -13-
id. For all these reasons, we disagree with Mr. Armijo that the ALJ seized on

minor flaws in Dr. Yamamoto’s opinion when deciding to accord it little weight.

Instead, we conclude that the ALJ considered all the regulatory factors and gave

good reasons for assigning little weight to Dr. Yamamoto’s opinion.

      Mr. Armijo raises one final argument on this point, that the ALJ improperly

gave greater weight to the opinion of Denise Eschenbaum, a nonmedical source

who reviewed his medical records in August 2006 and found he could perform a

full range of light work, than he gave to Dr. Yamamoto’s opinion. We disagree

with Mr. Armijo’s view of the ALJ’s reference to Ms. Eschenbaum’s opinion.

The ALJ noted that his RFC finding was consistent with Ms. Eschenbaum’s

findings only after performing an exhaustive review of the evidence provided by

the medical sources of record and providing good reasons for the weight he

assigned to Dr. Yamamoto’s opinion. We therefore see nothing improper in the

ALJ’s observation that his RFC finding correlated with the opinion of a

nonmedical source.

      C. The ALJ’s reliance on the grids

      Mr. Armijo claims it was error for the ALJ to use the grids in determining

he was not disabled because there was evidence of significant nonexertional

impairments, namely, his depression and the nonexertional impairments noted in

Dr. Yamamoto’s 2007 disability report, which Mr. Armijo characterizes as “lying

down, breaking frequently (5 out of every 30 minutes), and concentrating and

                                       -14-
adapting to stress due to back pain,” Aplt. Opening Br. at 45. But we have

already confirmed that substantial evidence supports the ALJ’s findings that

(1) Mr. Armijo’s depression had little effect on his ability to perform basic work

activities and (2) Dr. Yamamoto’s opinion was entitled to little weight. Thus,

substantial evidence supports the ALJ’s finding that Mr. Armijo’s nonexertional

limitations “have little or no effect on the occupational base of unskilled, light

work.” Aplt. App., Vol. II at 19. His reliance on the grids, therefore, was proper.

See Thompson v. Sullivan, 987 F.2d 1482, 1488 (10th Cir. 1993) (holding, in

relevant part, that “an ALJ may not rely conclusively on the grids unless he finds

. . . that the claimant has no significant nonexertional impairment”).

      D. Evidence submitted to the Appeals Council

      Mr. Armijo’s final argument is that the Appeals Council erred in its

conclusion that two pieces of aft-submitted evidence did not warrant review of the

ALJ’s January 24, 2008 decision: (1) a psychological evaluation performed on

May 23, 2008, by a licensed psychologist, W.E. Wisner, Ed.D.; and (2) a Physical

Residual Functional Capacity Questionnaire completed by Dr. Yamamoto on

June 5, 2008. We disagree.

      The Appeals Council will review an ALJ’s decision only in certain

circumstances, including when it receives “new and material evidence . . .

relate[d] to the period on or before the date of the [ALJ’s] hearing decision” and

the Council “finds that the [ALJ’s] action, findings, or conclusion is contrary to

                                         -15-
the weight of the evidence currently of record.” 20 C.F.R. § 404.970(b). When

the evidence qualifies and the Appeals Council has considered it, the evidence

“becomes part of the record we assess in evaluating the Commissioner’s denial of

benefits under the substantial-evidence standard.” Chambers v. Barnhart,

389 F.3d 1139, 1142 (10th Cir. 2004). In this case, the Appeals Council indicated

that it considered the reports of Drs. Wisner and Yamamoto, implying that the

reports qualified as new, material, and chronologically relevant under

§ 404.970(b). See Martinez v. Barnhart, 444 F.3d 1201, 1207 (10th Cir. 2006).

But it concluded that “[t]he new evidence does not establish greater work

restrictions than found in the [ALJ’s] hearing decision.” Aplt. App., Vol. II at 1.

      As we have previously pointed out, an express analysis by the Appeals

Council would aid judicial review, but there is no statutory or regulatory mandate

for such an analysis. Martinez, 444 F.3d at 1207-08. Because the Appeals

Council considered the reports of Drs. Wisner and Yamamoto, we must consider

whether substantial evidence supports the ALJ’s decision in light of the entire

record, including the new evidence. See id. at 1208. We conclude that it does.

      First, Dr. Wisner “believe[d] it likely that Mr. Armijo has been suffering

from a major depressive disorder for the past two to three years. His level of

depression is at least moderate and is interfering with his life.” Aplt. App.,

Vol. II at 279. As the Commissioner points out, however, Dr. Wisner’s

evaluation of Mr. Armijo’s condition during the relevant time period is

                                         -16-
retrospective and necessarily based on Mr. Armijo’s subjective statements, which

included, apparently for the first time, the claim that he felt suicidal on two

different antidepressive medications. But Mr. Armijo did not advance depression

as a basis for his disability claim or seek treatment for it (other than taking

Lexapro, which he reported to Dr. Yamamoto as helpful), and there is nothing in

the medical records generated during the period prior to the ALJ’s decision that

supports Dr. Wisner’s opinion regarding the severity of his depression or suggests

any limitations on Mr. Armijo’s functional capacity. Moreover, the ALJ did not

find Mr. Armijo fully credible regarding the limiting effects of his pain, an

unchallenged finding that casts a substantial shadow over his post-decisional

effort to obtain benefits on the basis of his depression. Therefore, we conclude

that even in view of Dr. Wisner’s report, substantial evidence supports the ALJ’s

finding that his depression was not severe and did not have more than a minimal

effect on his ability to perform basic work activities.

      Second, on his 2008 physical RFC questionnaire, Dr. Yamamoto indicated

that Mr. Armijo was subject to limitations equal to or greater than those he

described in his 2007 disability report. The new set of limitations are not

accompanied by any new supporting evidence, and therefore the opinion is not

entitled to any more weight than the little weight the ALJ accorded




                                          -17-
Dr. Yamamoto’s 2007 report. Thus, the 2008 RFC questionnaire provides no

basis to alter the ALJ’s determination that Mr. Armijo is not disabled.

      The judgment of the district court is AFFIRMED.


                                                    Entered for the Court



                                                    Bobby R. Baldock
                                                    Circuit Judge




                                        -18-
