                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                      August 10, 2006
                            FO R TH E TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                        Clerk of Court

    TIM OTH Y C . HEINR ITZ,

                Plaintiff-Appellant,

    v.                                                   No. 05-5208
                                                  (D.C. No. 04-CV-618-SA J)
    JO A NN E B. BA RN HA RT,                            (N.D. Okla.)
    Commissioner of Social Security
    Administration,

                Defendant-Appellee.



                             OR D ER AND JUDGM ENT *


Before B ROR B Y and EBEL, Circuit Judges, and KANE, ** District Judge.




         Plaintiff-appellant Timothy C. Heinritz appeals from the order entered by

the district court affirming the Social Security Commissioner’s decision denying



*
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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. 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.
his application for disability insurance benefits under the Social Security Act.

Exercising jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291, we

affirm.

                                          I.

      In a decision issued in A ugust 2003, the administrative law judge (ALJ)

denied plaintiff’s application for benefits at step five of the five-step sequential

evaluation process for determining disability, finding that: (1) plaintiff’s

“impairments of status post right hip replacement; right sensorineural hearing

loss; and a generalized anxiety disorder . . . are severe impairments by Social

Security definition,” Aplt. App., Vol. 2 at 21; (2) plaintiff’s impairments do not

meet or equal any listed impairment under step three of the controlling

regulations, id.; (3) plaintiff’s “impairments limit him to unskilled light level

work activity that does not require more than occasional climbing, balancing,

stooping, kneeling, crouching, or crawling; working in the presence of noise; or

active interaction with the general public,” id. at 23; (4) plaintiff does not retain

the residual functional capacity (RFC) to perform the requirements of his past

skilled w ork as a general manager, marketing director, and operations manager,

id. at 20, 24; but (5) based on the hearing testimony of the vocational expert,

there are multiple unskilled jobs in the regional and national economy that

plaintiff can perform, and the available jobs include ticket taker, cafeteria

attendant, cleaner, bench assembler, and addresser, id. at 24-25.

                                          -2-
      In July 2004, the Appeals Council denied plaintiff’s request for review of

the A LJ’s decision. Plaintiff then filed a complaint in the district court. In

September 2005, the magistrate judge, sitting by consent of the parties and by

designation of the district court pursuant to 28 U.S.C. § 636(c), entered an order

and a related judgment affirming the denial of plaintiff’s application for disability

benefits. This appeal followed.

      Because the Appeals Council denied review, the ALJ’s decision is the

Commissioner’s final decision for purposes of this appeal. See Doyal v.

Barnhart, 331 F.3d 758, 759 (10th Cir. 2003). In reviewing the ALJ’s decision,

“we neither reweigh the evidence nor substitute our judgment for that of the

agency.” Casias v. Sec’y of Health & H um an Servs., 933 F.2d 799, 800 (10th Cir.

1991). Instead, we review the ALJ’s decision only “to determine whether the

factual findings are supported by substantial evidence in the record and whether

the correct legal standards were applied.” Doyal, 331 F.3d at 760.

                                          II.

      In this appeal, plaintiff claims that “[t]he State agency review ing experts

diagnosed him as having an organic mental disorder due to alcohol induced

dementia, an affective disorder and a substance abuse disorder.” Aplt. Opening

Br. at 10. He further asserts that the ALJ committed reversible error by:

(1) failing to properly consider and develop the administrative record; (2) failing

to perform a proper step-two evaluation of his alleged impairments; (3) failing to

                                          -3-
properly evaluate the opinions of D r. M allgren, one of his treating physicians;

(4) failing to properly evaluate the credibility of his allegations regarding his

impairments; and (5) failing to perform a proper step-five evaluation.

      Plaintiff’s allegations and medical history are set forth in detail in the

ALJ’s decision and the magistrate judge’s order. In particular, we note that the

magistrate judge’s thorough and well-reasoned order contains a detailed summary

of plaintiff’s allegations, his medical history, and the administrative proceedings

below, see Aplt. A pp., Vol. 1 at 18-25, and we will not repeat that summary here.

Having carefully considered the extensive arguments that are set forth in

plaintiff’s appellate briefs, we are also convinced that the ALJ’s denial of

disability benefits is supported by substantial evidence in the administrative

record. Consequently, we do not deem it necessary to address all of the

arguments advanced by plaintiff in this appeal, and only briefly address the

follow ing points.

      A. Testimony of the Vocational Expert.

      Because there is substantial medical evidence in the record that contradicts

the vocational expert’s testimony, we reject plaintiff’s argument that the ALJ

com mitted reversible error by “fail[ing] to acknowledge the testimony of the VE

that the marked limitation in [his] ability in the domain of concentration,

persistence, or pace precluded competitive work.” Aplt. O pening Br. at 23.

W hile plaintiff is correct that the Psychiatric Review Technique form that was

                                          -4-
prepared and reviewed by the “State agency experts” stated that plaintiff had a

“marked degree of limitation” in maintaining concentration, persistence, or pace,

id. at 21; see also Aplt. App., Vol. 2 at 316, these same experts also submitted a

separate, and more specific, RFC assessment of plaintiff’s ability to perform

work-related mental activities. In the latter document, the state experts concluded

that plaintiff was “Not Significantly Limited” with regard to seventeen of twenty

specific mental activities associated with “Understanding And M emory,”

“Sustained Concentration And Persistence,” “Social Interaction,” and

“Adaptation.” See Aplt. App., Vol. 2 at 320-21. In particular, with regard to

concentration and persistence, the state experts opined that plaintiff was not

significantly limited with regard to “[t]he ability to carry out very short and

simple instructions.” Id. at 320.

      In addition, while the state experts found that plaintiff was “M oderately

Limited” with regard to his abilities to: (1) understand, remember, and carry out

detailed instructions; and (2) interact appropriately with the general public, id. at

320-21, these limitations are not inconsistent with the ALJ’s RFC determination,

id. at 22, 23 (limiting plaintiff “to unskilled light level work activity that does not

require . . . active interaction with the general public,” and relying on opinion of

consultative psychologist that plaintiff “could understand and remember simple

instructions; could concentrate and persist on simple tasks; could interact on a




                                           -5-
limited basis with the general public and/or coworkers; and could adapt to the

demands of a simple work environment”).

      W e also reject plaintiff’s argument that the ALJ erred by “ignor[ing] the

testimony of the vocational expert witness that [he] could not work with a Global

Assessment of Function of 50 to 55.” Aplt. Opening Br. at 23 (capitalization

modified). To begin with, as the magistrate judge noted, “GAF scores are not

considered absolute determiners of disability.” A plt. App., Vol. 1 at 28. M ore

importantly, however, a GAF score of 51-60 indicates only that a person will have

“moderate difficulty in social or occupational functioning.’” Langley v. Barnhart,

373 F.3d 1116, 1122 n.3 (10th Cir. 2004) (quotation omitted). 1 W e are therefore

not convinced, based on the medical and other evidence in the record before us,

that a G AF score of 50-55 is necessarily inconsistent with the A LJ’s

determination that plaintiff retains the RFC to perform unskilled work. See

20 C.F.R. § 404.1568(a) (defining “[u]nskilled work” as “work which needs little

or no judgment to do simple duties that can be learned on the job in a short period

of time”). In fact, although Dr. Kent, the consultative psychologist, assigned a

GAF score of 50-55 to plaintiff, see Aplt. App., Vol. 2 at 243, Dr. Kent

nonetheless concluded that plaintiff could: (1) “understand and remember simple

to moderately complex [work] instructions”; (2) “concentrate and persist on



1
       By contrast, “[a] GAF score of 41-50 indicates . . . serious impairment in
social, occupational, or school functioning.” Langley, 373 F.3d at 1122 n.3.

                                         -6-
simple to moderately complex [work] tasks”; and (3) “adapt to a simple to

moderately demanding work environment,” id. at 242-43.            In sum, like the

magistrate judge, we “conclude[] that the ALJ’s conclusion with regard to

Plaintiff’s mental functioning is based upon substantial evidence in the record.”

Id., Vol. 1 at 29. As a result, we “cannot say that the ALJ erred by failing to rely

upon a specific GAF score attributable to Plaintiff.” Id. at 28-29.

      B. Development of the Administrative Record.

      Plaintiff claims the ALJ erred by failing to order “further

neuropsychological testing.” Aplt. Opening Br. at 25. This argument is without

merit. As explained by the magistrate judge:

      Plaintiff specifically asserts that a “Hallstead-Reitan test” should
      have been administered to Plaintiff. Plaintiff was referred for a
      Psychological Evaluation and did have some testing performed.
      [R. at 238]. As a result of that testing, the examiner noted that
      Plaintiff had some memory difficulties. The examiner concluded that
      rehabilitation could assist Plaintiff and noted that “more extensive
      memory or neuropsychological testing may help to determine
      whether he is capable of understanding and remembering more than
      simple instructions on a day to day basis.” [R. at 242]. This
      examiner, which Plaintiff relies in part upon to suggest that the ALJ
      failed his duties, suggests that more testing could be ordered to
      determine if Plaintiff could retain more information or could improve
      more. The examiner did not state that such testing was necessary to
      determine Plaintiff’s current impairments.

Aplt. App., Vol. 1 at 29 (emphasis added).




                                          -7-
      C. The ALJ’s Step-Tw o Evaluation.

      Plaintiff claims the ALJ failed to perform a proper evaluation at step two of

the sequential evaluation process because: (1) “the experts of the State agency

found that [he] suffered primarily from an organic mental disorder”; and (2) he

“clearly has a medically determinable organic mental disorder and the A LJ’s

failure to find it constituted a severe impairment is erroneous.” A plt. Opening Br.

at 29 (citing Aplt. App., Vol. 2 at 307; 20 C.F.R. § 404.1520; and SSR 96-3p at

*2). W e disagree. As noted by the magistrate judge:

      An ALJ is required to consider the limitations that a given
      impairment has on the claimant’s abilities to work rather than the
      label given to a disease or ailment. For example, if a claimant has
      diabetes, the ALJ’s focus is on the impairments that result from
      diabetes. In this case, the record reveals that the ALJ considered the
      mental impairments which were attributed to Plaintiff.

Aplt. App., Vol. 1 at 30.

      D. Dr. M allgren.

      Plaintiff claims the ALJ failed to properly evaluate the opinions of

Dr. M allgren, one of his treating physicians at the Grand Lake M ental H ealth

Center. Plaintiff’s treating physician argument is not supported by the record, and

we agree with the following analysis of the magistrate judge:

            Plaintiff complains that the ALJ did not adequately address the
      records of Plaintiff’s treating physicians at Grand Lake M ental
      Health. The A LJ first noted that the records by Dr. M allgren were
      not consistent with the treatment records submitted from Grand Lake
      M ental Health. The ALJ observed that Plaintiff’s records indicated
      gradual improvement. The ALJ therefore did not give controlling

                                        -8-
      weight to the opinion of Dr. M allgren which is consistent with the
      requirements in assessing a treating physician’s opinion.

             Plaintiff additionally asserts that the ALJ failed to follow the
      remaining factors in analyzing the treating physician’s opinion. The
      ALJ noted that Dr. M allgren saw Plaintiff on two occasions in
      January and April 2003. The ALJ discussed the nature and extent of
      the relationship noting that Plaintiff was seen primarily by a different
      doctor, that Plaintiff was described as stable on medication and was
      released because he did not meet the criteria for treatment. The ALJ
      discussed the remaining medical evidence in the record and noted
      Dr. M allgren’s opinion was inconsistent with the treatment notes.
      The ALJ noted that much of Dr. M allgren’s opinion was based on
      Plaintiff’s subjective comments rather than the treatment notes. The
      Court cannot conclude that the ALJ failed to evaluate and give
      reasons for giving little weight to the opinion of the treating
      physician.

Id. at 34-35.

      E. The ALJ’s Credibility and Step-Five Determinations.

      W e agree with the magistrate judge that “the ALJ’s [credibility] evaluation

is supported by substantial evidence.” Id. at 35. Specifically, we agree that the

administrative record contains sufficient evidence to support the A LJ’s

“conclusion . . . that the symptoms experienced by the claimant are limiting but,

when compared with the total evidence, not severe enough to preclude all types of

work.” Id., Vol. 2 at 22; see also id. at 25 (finding that “claimant’s testimony is

. . . credible only to the extent consistent with a residual functional capacity for a

wide range of light work”).

      W e also reject plaintiff’s argument that “the ALJ failed to perform a proper

evaluation at step 5 of the sequential evaluation process.” Aplt. Opening Br. at

                                          -9-
45 (capitalization modified). First, because w e have concluded that the A LJ’s

step-five finding that plaintiff can perform certain unskilled light jobs is

supported by substantial evidence in the record, we do not need to address

plaintiff’s claim that he should be “limited to sedentary work, [because then] he

grids out.” Id. (quotation omitted). Second, as found by the magistrate judge,

while “Plaintiff additionally assert[ed] that none of the hypotheticals [submitted

to the vocational expert] included mental limitations caused by Plaintiff’s organic

brain impairment,” A plt. App., Vol. 1 at 36, plaintiff failed to adequately support

this argument in the proceedings before the district court, id. (noting that plaintiff

failed to “specify the limitations that should have been included”).

       Finally, we will not consider the arguments that plaintiff has made in this

appeal in an attempt to demonstrate that “[t]he ALJ’s own hypothetical precludes

work for Claimant.” Aplt. Opening Br. at 46. Plaintiff failed to present the latter

arguments to the district court, and there are no compelling reasons to excuse his

waiver. See Crow v. Shalala, 40 F.3d 323, 324 (10th Cir. 1994) (“Absent

compelling reasons, we do not consider arguments that were not presented [by a

social security claimant] to the district court.”); Berna v. Chater, 101 F.3d 631,

632-33 (10th Cir. 1996) (stating that “waiver principles developed in other

litigation contexts are equally applicable to social security cases,” and that

“waiver may result from the disability claimant’s failure to . . . preserve issues in

the district court”).

                                         -10-
The judgment of the district court is AFFIRMED.


                                          Entered for the Court


                                          W ade Brorby
                                          Circuit Judge




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