                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         JAN 28 1997
                             FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    THOMAS FRIES,

                Plaintiff-Appellant,

    v.                                                 No. 96-2047
                                             (D.C. No. CIV 95-209 JC/WWD)
    SHIRLEY S. CHATER,                                  (D. N.M.)
    Commissioner, Social Security
    Administration, *

                Defendant-Appellee.




                             ORDER AND JUDGMENT **



Before PORFILIO, BALDOCK, and HENRY, Circuit Judges.




*
      Effective March 31, 1995, the functions of the Secretary of Health and
Human Services in social security cases were transferred to the Commissioner of
Social Security. P.L. No. 103-296. In the text we continue to refer to the
Secretary because she was the appropriate party at the time of the underlying
decision.
**
      This order and judgment is not binding precedent, except under the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.
      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) and 10th Cir. R. 34.1.9. The case is

therefore ordered submitted without oral argument.

      Claimant Thomas Fries appeals from an order of the district court affirming

the final decision of the Secretary of Health and Human Services denying his

applications for social security disability and supplemental security income

benefits. Claimant contends that he has been disabled since January 1990 due to

mental retardation and emotional problems. The administrative law judge (ALJ)

denied benefits at step four of the five-part sequential process for determining

disability. See 20 C.F.R. §§ 404.1520, 416.920. The ALJ determined that

claimant had the residual functional capacity to return to his past relevant work

that included jobs as a food service worker and janitor. The Appeals Council

denied review, making the ALJ’s determination the final decision of the




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Secretary. 1 We agree with the district court that ALJ did not commit any

reversible error in his analysis and affirm.

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

review the Secretary's decision to determine whether it is supported by substantial

evidence and whether the correct legal standards were applied. Washington v.

Shalala, 37 F.3d 1437, 1439 (10th Cir. 1994). The Secretary’s factual findings

are conclusive when supported by substantial evidence, § 405(g), which is

adequate relevant evidence that a reasonable mind might accept to support a

conclusion, Richardson v. Perales, 402 U.S. 389, 401 (1971).

      Claimant first contends that the ALJ erred in his step three analysis. The

ALJ found that claimant was severely impaired due to borderline intellectual

functioning, but that this impairment did not meet or equal the Listing of

Impairments criteria covering mental retardation set forth in 20 C.F.R. § 404,


1
       The ALJ also found that at the time of his decision, claimant was engaging
in substantial gainful activity, which would require denial of benefits at step one.
The ALJ continued with the analysis, however, “giv[ing] Mr. Fries the benefit of
the doubt and find[ing] that it is unclear whether he has engaged in substantial
gainful activity during the entire time period at issue.” Appellant’s App. Vol. II
at 13. We also note that claimant submitted additional wage information to the
Appeals Council, id. at 202, indicating that he was then currently employed as a
clerk in a drug store and that his average earnings for at least the past eight
months exceeded the $500 a month that ordinarily demonstrates a claimant is
engaging in substantial gainful activity. See 20 C.F.R. § 404.1574(b)(2)(vii).
Similar to the ALJ, the Appeals Council gave claimant the benefit of the doubt
and did not deny benefits at step one. While we also will address claimant’s
contentions of error, his continued employment colors our analysis.

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Subpt. P, App. 1, § 12.05. The initial criteria for this section requires either an

IQ of 59 or less, § 12.05B, or an IQ of 60 through 70 coupled with a physical or

other mental impairment imposing additional significant work-related limitations,

§ 12.05C. The ALJ did not find that claimant suffered from any other

impairments, rejecting claimant’s contention that he was severely impaired due to

emotional problems, and claimant does not challenge this finding. Because

claimant’s lowest score was a verbal IQ of 75, the ALJ concluded claimant’s

impairment did not meet the listing criteria. Claimant contends that the ALJ erred

by failing to perform an adequate assessment of whether claimant’s condition was

medically equivalent to the listing criteria and that he “should have requested

medical expert testimony regarding whether [his] developmental disability causes

deficits in his adaptive functioning, which in turn might affect his efforts at

sustained competitive employment.” Appellant’s Br. at 6.

      We reject claimant’s contention for several reasons. First, he does not

explain how an IQ score fifteen points higher than the listing standard could be

determined to be equivalent to that standard. See Ellison v. Sullivan, 929 F.2d

534, 536 (10th Cir. 1990). Second, and more fundamentally, he misconstrues the

purpose of the equivalence analysis. Whether a claimant meets or equals a listed

impairment is strictly a medical determination. 20 C.F.R. §§ 404.1526(b),

416.926(b). It allows a “presumption of disability that makes further inquiry


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unnecessary.” Sullivan v. Zebley, 493 U.S. 521, 532 (1990). In claiming that the

ALJ should have considered at step three his “deficits in his adaptive functioning,

which in turn might affect his efforts at sustained competitive employment,”

claimant is improperly trying to combine the functional analysis performed at

subsequent steps into step three in the guise of medical equivalence. See id. at

531. (“A claimant cannot qualify for benefits under the ‘equivalence’ step by

showing that the overall functional impact of his unlisted impairment or

combination of impairments is as severe as that of a listed impairment.”); see also

Cockerham v. Sullivan, 895 F.2d 492, 496 (8th Cir. 1990) (“A claimant whose

alleged impairment is an I.Q. of 70-79 inclusive has alleged a severe impairment

and may be considered disabled after consideration of vocational factors.”).

Finally, § 12.05 contains its own equivalence standard where “use of standardized

measures of intellectual functioning is precluded,” § 12.05A. This requires a

demonstration of “[m]ental incapacity evidenced by dependence upon others for

personal needs (e.g., toileting, eating, dressing, or bathing).” Id. Claimant does

not contend he meets this standard; indeed, the evidence clearly demonstrates that

he performs far above this level.

      Claimant also argues that the ALJ erred in finding that he could return to

his past work. He contends he needs a constant supportive environment, that he

should work at most in a sheltered workshop, and that he should work only


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part-time. A vocational evaluator did state that claimant “is best suited for

unskilled work to exceed no greater than 20 hours per week,” Appellant’s App.

Vol. II at 229, but none of the other psychiatrists, psychologists or vocational

specialists who evaluated claimant placed any limit on how much he could work.

Moreover, no evaluator opined that claimant could work only in a sheltered

workshop or that he could not perform unskilled work. To the contrary, for

example, a vocational specialist concluded after testing claimant’s performance in

a work environment that “[t]he quantity of work was above sheltered level and the

quality was acceptable and considered to be at the competitive level.” Id. at 185.

A clinical psychologist concluded that, while claimant would benefit from an

advisor to help him manage his funds, “[h]e is able to function in a concrete,

repetitive kind of way as necessary for minimal work.” Id. at 218; see also note 1

above. Though claimant contends that his history of quitting or being terminated

from jobs shows that he is incapable of engaging in substantial gainful activity,

see Washington, 37 F.3d at 1442-43, he does not challenge the ALJ’s conclusion

that “there is no evidence that this history is the result of his impairment.”

Appellant’s App. Vol. II at 17. In sum, there was ample evidence to support the

ALJ’s determination claimant was not disabled.




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     The judgment of the United States District Court for the District of New

Mexico is AFFIRMED.



                                                 Entered for the Court



                                                 Robert H. Henry
                                                 Circuit Judge




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