                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                        August 27, 2007
                            FO R TH E TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                         Clerk of Court

    ELM ER C. TA N K ER SLEY ,

                Plaintiff-Appellant,
                                                         No. 06-7122
    v.                                           (D.C. No. CIV-05-506-KEW )
                                                         (E.D. Okla.)
    M ICH AEL J. ASTRU E,
    Commissioner, Social Security
    Administration,

                Defendant-Appellee.



                             OR D ER AND JUDGM ENT *


Before HA RTZ, EBEL, and T YM KOVICH, Circuit Judges.




         Elmer Tankersley appeals from an order of the district court affirming the

Commissioner’s denial of his applications for disability insurance and

supplemental security income benefits under the Social Security Act. W e have

jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. §§ 405(g) and 1383(c)(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); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
After “review[ing] the Commissioner’s decision to determine whether his factual

findings were supported by substantial evidence in light of the entire record and

to determine whether he applied the correct legal standards,” Hinkle v. Apfel,

132 F.3d 1349, 1351 (10th Cir. 1997), we affirm.

                                  I. Background

      M r. Tankersley was born on September 18, 1959. He has a ninth-grade

education and has w orked as a forklift driver and asphalt layer.

      In 1998 Dr. M ichael Standefer examined M r. Tankersley and determined

that he had myofascial pain syndrome and degenerative disc disease in his lumbar

spine but no obvious underlying surgical problem. Accordingly, Dr. Standefer

recommended conservative treatment.

      Dr. Standefer examined M r. Tankersley again in July 2003. Diagnostic

tests showed focal canal stenosis secondary to a diffuse disc bulge as well as

ligament and facet hypertrophy at the L4-L5 level. Noting that M r. Tankersley’s

condition had worsened since 1998, Dr. Standefer recommended surgery and

opined that M r. Tankersley could not w ork for a minimum of four months.

M r. Tankersley stopped working on July 29, 2003, his alleged onset date, and on

August 8 Dr. Standefer performed the surgery, which included a lumbar

laminectomy, diskectomy, and fusion.

      M r. Tankersley saw Dr. Standefer for a series of follow-up examinations

from September 2003 through February 2004 and attended physical therapy. His

                                         -2-
recovery went well, and after the February examination Dr. Standefer released

him from the clinic, advising him to avoid heavy lifting and repeated bending,

ideally not lifting more than 35-45 pounds and then only on occasion.

Dr. Standefer also advised him to alternate sitting, standing, and walking, and to

pursue an exercise program. Dr. Standefer further stated that a reasonable

impairment rating would be 12% and that M r. Tankersley could seek light-duty

work. For future care, Dr. Standefer referred M r. Tankersley to D r. Richard

D otson, D.O .

      A few months later, on June 24, 2004, Dr. Standefer completed a physical

residual functional capacity (RFC) evaluation form. Dr. Standefer indicated that

M r. Tankersley’s ability to sit, stand, and walk in an eight-hour w orkday would

vary— he would be able to perform each activity from one to three hours at a time

and from one to four hours in total. In an undated note, Dr. Standefer clarified

that the amount of time M r. Tankersley would be able to sit, stand, or walk at one

time or in total “would vary according to the day.” Admin. R. at 192.

      On April 4, 2005, Dr. Dotson, whom M r. Tankersely apparently had been

seeing for a year, completed an RFC evaluation form. Dr. Dotson indicated that

M r. Tankersley could stand and/or walk a total of less than two hours in a normal

eight-hour w orkday, with normal breaks, and that he required a cane to walk.

Dr. Dotson also indicated (1) that M r. Tankersley “must periodically alternate

sitting and standing to relieve pain or discomfort” based on his degenerative disc

                                        -3-
disease, back surgery, and decreased lumbar range of motion, id. at 190, and (2)

that he had a number of nonexertional limitations.

      After M r. Tankersley’s benefits applications were denied initially and upon

reconsideration, he received a hearing before an administrative law judge (ALJ)

on April 6, 2005. The ALJ heard testimony from M r. Tankersley and a vocational

expert (VE) and issued a written decision in which he applied the familiar

five-step sequential evaluation process set forth in 20 C.F.R. §§ 404.1520(a)(4)

and 416.920(a)(4). See Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988)

(explaining five-step process). At the first three steps the ALJ found that

M r. Tankersley had not engaged in substantial gainful activity since his alleged

onset date, and that his degenerative disc disease, although a severe impairment,

did not meet or medically equal the severity of any impairment listed in

20 C.F.R., Part 404, Subpart P, Appendix 1. 1

      Proceeding to step four, the ALJ accorded less than controlling weight to

Dr. Standefer’s opinion concerning M r. Tankersley’s ability to sit, stand, and

walk, and greater weight to Dr. Dotson’s opinion. He gave only limited weight to

the opinions of nonexamining state-agency consultants, who had opined that

M r. Tankersley could sit for a total of about six hours in an eight-hour work day

and stand and/or walk for that same amount of time. Based on the medical

1
       The ALJ also found that the evidence did not establish a medically
determinable impairment concerning M r. Tankersley’s complaints of headaches.
M r. Tankersley has not taken issue with that finding.

                                         -4-
evidence and his finding that M r. Tankersley was not totally credible regarding

his limitations, the ALJ determined, in relevant part, that M r. Tankersley is

“limited to lifting no more than 10 pounds; . . . is able to stand and/or walk for

less than 2 hours during an 8-hour workday; . . . [and] requires the use of a cane,

as well as the ability to alternate between standing and sitting[.]” Admin. R.

at 22. Because of these limitations, which tracked Dr. Dotson’s RFC evaluation,

the ALJ found that M r. Tankersley could not perform his past relevant work.

      At step five the ALJ found that because M r. Tankersley was incapable of

performing the full range of sedentary work, the M edical-Vocational Guidelines

could be used only as a framew ork for the disability determination. Using that

framew ork the ALJ relied on the testimony of the VE that, even with the postural

and other limitations reflected in Dr. Dotson’s RFC evaluation, M r. Tankersley

could work as an order clerk or a surveillance-system monitor. The ALJ

determined that those jobs exist in significant numbers in the national economy

and accordingly found M r. Tankersley not disabled. The appeals council denied

review, and the district court affirmed the Commissioner’s decision. This appeal

followed.

                                   II. Discussion

      The sole issue raised on appeal is whether the ALJ properly disregarded the

VE’s testimony on cross-examination by M r. Tankersley’s attorney that he would

not be competitive for jobs, and perhaps completely unemployable, if he could not

                                         -5-
consistently sit, stand, and walk in combination for an eight-hour workday. The

ALJ could disregard this testimony only if he could properly find that the

hypothetical limitations were not supported by the evidence. See Evans v.

Chater, 55 F.3d 530, 532 (10th Cir. 1995).

      M r. Tankersley contends that both Dr. Standefer and Dr. Dotson reported

that he “would not be able to perform a combination of sitting, standing, and

walking for eight hours per day every day.” Aplt. Br. at 14. But we think that the

ALJ could reasonably interpret Dr. Dotson’s report as saying that M r. Tankersley

could regularly work such an eight-hour day. (M r. Tankersley has not contended

that the ALJ was required to accept Dr. Standefer’s opinions.)

      Dr. Dotson completed a form regarding M r. Tankersley’s physical

limitations. W ith respect to standing and walking, Dr. Dotson checked boxes

saying that M r. Tankersley’s standing and/or walking was affected by his

impairment, that he could stand and/or walk less than two hours in an eight-hour

workday, and that he needed an “assistive device” (a cane) for walking. As for

sitting, Dr. Dotson checked boxes saying that M r. Tankersley’s sitting was

affected by his impairment and that he must periodically alternate sitting and

standing to relieve discomfort. He did not check either of the remaining two

boxes under the “Sitting” heading: one that stated that M r. Tankersley could sit

about six hours in an eight-hour workday and one that stated that he could sit less

than six hours in an eight-hour workday.

                                           -6-
      M r. Tankersley infers from Dr. Dotson’s failure to check the box stating

that he could sit about six hours per workday that Dr. Dotson thought that

M r. Tankersley could sit less than six hours a day. Because Dr. Dotson had

checked the box that M r. Tankersley could stand or walk less than two hours per

workday, M r. Tankersley concludes that Dr. Dotson reported that he could not

walk, stand, and sit for a complete eight-hour workday. In our view , however,

M r. Tankersley’s first inference is faulty. Not only did Dr. Dotson fail to check

the box saying that M r. Tankersley could sit about six hours per workday, but he

also failed to check the box saying that M r. Tankersley could sit less than six

hours per workday. The natural inference is that Dr. Dotson thought that

M r. Tankersley could sit more than six hours per workday, at least so long as he

could periodically stand to relieve discomfort. And nothing suggests that

Dr. Dotson thought that M r. Tankersley could not do so on a regular basis.

      Thus, the ALJ reasonably interpreted Dr. Dotson’s opinion to be that

M r. Tankersley can regularly complete an eight-hour workday in a sedentary job

if he is able to alternate sitting and standing. The ALJ therefore could properly

disregard the VE’s testimony in response to cross-examination by

M r. Tankersley’s attorney.




                                          -7-
                                III. Conclusion

      Based on the foregoing, we conclude that substantial evidence supported

the Commissioner’s decision and the correct legal standards were applied. The

judgm ent of the district court is AFFIRMED.



                                                  Entered for the Court



                                                  Harris L Hartz
                                                  Circuit Judge




                                       -8-
