                                                                             FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                     August 6, 2009
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                      Clerk of Court
                             FOR THE TENTH CIRCUIT


    DAVID BARRETT,

                Plaintiff-Appellant,

    v.                                                    No. 08-2300
                                                  (D.C. No. 2:07-CV-01285-CG)
    MICHAEL J. ASTRUE,                                      (D. N.M.)
    Commissioner of the Social Security
    Administration,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before TACHA, PORFILIO, and ANDERSON, Circuit Judges.



         David Barrett appeals from a district court order 1 affirming the

Commissioner’s decision to deny his application for Social Security disability




*
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
1
      The parties consented to proceed before a United States Magistrate Judge in
this matter.
benefits. We have jurisdiction over this appeal under 42 U.S.C. § 405(g) and

28 U.S.C. § 1291, and we affirm.

                                    Background

      Mr. Barrett applied for Social Security disability benefits, claiming that a

congenital, degenerative hip condition interfered with his ability to work. His

application was initially denied without consideration of any other alleged

limitations. But by the time his application was again denied on reconsideration,

the Commissioner had acknowledged his additional claim of mental limitations.

Mr. Barrett sought a hearing before an Administrative Law Judge (ALJ). In

rendering his decision, the ALJ followed the standard five-step sequential

evaluation process to determine whether Mr. Barrett was disabled. See Williams

v. Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988) (detailing 20 C.F.R.

§ 404-1520’s five-step process).

      At step two the ALJ found that Mr. Barrett had one severe impairment,

degenerative joint disease of the bilateral hips, left greater than right. The ALJ

concluded that the record did not support a finding of a severe mental impairment.

At step four the ALJ determined that claimant could not perform his past relevant

work as a prep cook at Denny’s because he was unable to stand for six hours in an

eight-hour workday. But ultimately the ALJ found at step five that there were

jobs that exist in significant numbers in the national economy that the claimant

could perform given his age, education, work experience, and residual functional

                                         -2-
capacity (RFC). Therefore, in a decision dated May 24, 2007, the ALJ concluded

that Mr. Barrett was not disabled.

      The Appeals Council declined review, making the ALJ’s decision the final

decision of the Commissioner. See Diaz v. Sec’y of H.H.S., 898 F.2d 774, 776

(10th Cir. 1990). In November 2007, Mr. Barrett asked the Appeals Council to

reopen his claim based upon new and material evidence. He submitted a report

from a psychologist who evaluated claimant in September 2007, after the ALJ

issued his decision. The Appeals Council found no reason to reopen and change

the ALJ’s decision. Mr. Barrett then filed an action in the district court, which

issued an order denying his motion to reverse or remand, disposing of the claim.

                        Standard of Review and Discussion

      “[W]e review the ALJ’s decision only to determine whether the correct

legal standards were applied and whether the factual findings are supported by

substantial evidence in the record.” Madrid v. Barnhart, 447 F.3d 788, 790

(10th Cir. 2006).

      Substantial evidence is such relevant evidence as a reasonable mind
      might accept as adequate to support a conclusion. It requires more
      than a scintilla, but less than a preponderance. 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.

Cowan v. Astrue, 552 F.3d 1182, 1185 (10th Cir. 2008) (quotation omitted).




                                         -3-
      In this appeal, Mr. Barrett raises issues concerning only the ALJ’s

evaluation of his mental impairments, specifically depression and learning

disabilities. He argues that the ALJ committed legal error at step two in relying

solely upon an assessment by an in-house, non-examining physician to conclude

that claimant did not have a severe mental impairment. He argues, as well, that

the ALJ’s finding of no severe mental impairment is not supported by substantial

evidence. Mr. Barrett also contends that the ALJ committed legal error in failing

to develop the record with respect to claimant’s mental impairments.

Specifically, he asserts that the ALJ should have ordered a consultative

psychological examination. Finally, Mr. Barrett claims that the ALJ again

committed legal error in relying on testimony by a vocational expert (VE) at step

five because her testimony conflicted with the Dictionary of Occupational Titles

(DOT).

                           No Severe Mental Impairment

      The ALJ determined at step two that Mr. Barrett suffers from the severe

impairment of degenerative joint disease of the bilateral hips, left greater than

right. Claimant argues that the ALJ erred in failing to find at step two that his

mental impairment was severe. Claimant has not identified any error at step two.

Here the ALJ “made an explicit finding that [claimant] suffered from [a] severe

impairment[]. That was all the ALJ was required to do in that regard.” Oldham

v. Astrue, 509 F.3d 1254, 1256 (10th Cir. 2007). Under the regulations, once an

                                         -4-
ALJ finds that a claimant has at least one severe impairment, he does not err in

failing to designate other disorders as severe at step two, because at later steps the

agency “will consider the combined effect of all of [claimant’s] impairments

without regard to whether any such impairment, if considered separately, would

be of sufficient severity.” 20 C.F.R. § 404.1523; see also id. § 416.945(e) (“[W]e

will consider the limiting effects of all your impairment(s), even those that are not

severe, in determining your residual functional capacity.”) “After finding [a]

severe impairment[], the ALJ still had the task of determining the extent to which

[claimant’s] impairments . . . restricted [his] ability to work.” Oldham, 509 F.3d

at 1257.

      Because he alleged error only at step two, we could “easily dispose of”

Mr. Barrett’s first argument, id. at 1256. But even construing his argument as

asserting an error at a later step, for example at the ALJ’s step-four determination

of his RFC, we find no basis to reverse the agency’s determination. Claimant

first makes a legal argument that the ALJ improperly relied solely upon a

Psychiatric Review Technique assessment completed by Dr. Chiang, an in-house,

non-examining physician, in support of his finding regarding the severity of

claimant’s mental impairment. Claimant’s contention is without merit. Contrary

to his assertion, the ALJ did not rely solely on Dr. Chiang’s assessment in making

his finding. He initially noted that Mr. Barrett failed to mention that he suffered

from depression in two Disability Reports that he submitted to the agency. See

                                          -5-
Aplt. App., Vol. I at 78-83, 109-15. But the ALJ considered claimant’s own

testimony that he was depressed and his wife’s statement in a Function Report

that he “became slightly depressed over the last four years,” id. at 124. The ALJ

also reviewed records from Mr. Barrett’s primary care physician (PCP), indicating

that he had been prescribed anti-depressant medication. These records included a

report from claimant in September 2005 that the medication was beginning to

help his paranoia and his wife’s report that he was “less grumpy,” id. at 177

(quotation omitted). Finally, the ALJ considered Dr. Chiang’s assessment, which

concluded that Mr. Barrett had no more than mild limitations in activities of daily

living, in maintaining social functioning, in maintaining concentration,

persistence, or pace, and that he had no episodes of decompensation. The ALJ

concluded:

      I am in agreement with Dr. Chiang’s assessment that the claimant
      does not have a severe mental impairment, and her ratings. I assign
      the opinion great weight. I find that the claimant’s depression is
      controlled by his psychotropic medications,[ 2] and agree with his
      wife’s assessment that he is only “slightly depressed.” My finding
      that the claimant does not have a severe mental impairment is also
      consistent with the fact that he has not sought out any mental health


2
        Contrary to Mr. Barrett’s contention, this conclusion is supported by
substantial evidence in the record. Although there is evidence that claimant
discontinued two medications due to adverse side effects, as of March 2006 his
medical records indicated that his depression was somewhat better despite his
discontinuing medication. At that time he began taking a new medication. But he
then failed to see his PCP for a full year. In March 2007 he reported that his
depression had worsened after he ran out of his medication and he was given a
refill prescription.

                                         -6-
       treatments, and only established a primary care physician after an
       absence of 3-4 years.

Id. at 41.

       Moreover, to the extent that Mr. Barrett contends that the ALJ could not

rely at all on a PRT assessment by a non-examining physician in making his

finding regarding the severity of claimant’s mental impairment, we again

disagree. Contrary to claimant’s assertion, Dr. Chiang did provide a rationale for

her findings. In her assessment she made reference to Mr. Barrett’s diagnosis

with depression by his PCP, his treatment with an anti-depressant, and his report

that his condition had improved with medication. Nor is this a case where the

ALJ rejected the opinion of claimant’s treating physician in favor of the

conclusions of a non-examining doctor, because claimant’s PCP offered no

opinion on the severity of his depression.

       Mr. Barrett also asserts that there was clearly de minimis proof in the

record supporting a conclusion by the ALJ at step two that his mental

impairments were severe. If we construe this argument as a contention that the

ALJ’s finding regarding his RFC at step four was therefore not supported by

substantial evidence, his contention still lacks merit. 3 The ALJ found that

Mr. Barrett’s mental impairments were not severe and therefore included no



3
      We note that Mr. Barrett has not argued that the ALJ erred in failing to
assess the combined effect of his physical and mental impairments.

                                         -7-
mental limitation in his RFC. See Aplt. App., Vol. I at 44 (“I do not find that the

claimant has this additional [mental] limitation because I find that the claimant

does not have a severe mental impairment.”). We have already summarized the

evidence that the ALJ relied on in assessing the severity of claimant’s mental

impairments. In addition, in formulating his RFC at step four, the ALJ indicated

that he had carefully considered the entire record and all of claimant’s symptoms

to the extent that they were reasonably consistent with the evidence, including the

objective medical evidence. 4 We find no reversible error.

                           Failure to Develop the Record

      Mr. Barrett also contends that the ALJ failed in his duty to develop the

record regarding claimant’s mental impairments. Specifically, he argues that the

ALJ should have obtained a consultative psychological examination, as requested

by his counsel before the hearing. He maintains that, where the evidence in the

record establishes a “reasonable possibility of the existence of a disability and the


4
       Mr. Barrett attempts to bolster his argument regarding proof of a severe
mental impairment with references to the report by a psychologist who examined
him after the ALJ’s decision denying benefits. Claimant first presented this
report to the agency as new evidence in support of a motion to the Appeals
Council to reopen his claim. The Appeals Council denied the motion. Our
jurisdiction extends to the final decision of the Commissioner, following initial
review in the district court. See 42 U.S.C. § 405(g). In this appeal Mr. Barrett
does not seek review of the Appeals Council’s refusal to reopen his application,
nor would we have jurisdiction to review that decision. See Nelson v. Sec’y of
H.H.S., 927 F.2d 1109, 1111 (10th Cir. 1990) (holding district court has no
jurisdiction to review Secretary’s refusal to reopen an application absent a
colorable constitutional claim).

                                         -8-
result of the consultative exam could reasonably be expected to be of material

assistance in resolving the issue of disability,” Hawkins v. Chater, 113 F.3d 1162,

1169 (10th Cir. 1997), the ALJ is required to obtain a consultative examination.

      We emphasize that the Commissioner “has broad latitude in ordering

consultative examinations.” Id. at 1166. When a claimant contends that the ALJ

erred in failing to obtain a consultative examination, we are presented with the

difficult issue of “decid[ing] what quantum of evidence a claimant must establish

of a disabling impairment or combination of impairments before the ALJ will be

required to look further.” Id.

      The difficult cases are those where there is some evidence in the
      record or some allegation by a claimant of a possibly disabling
      condition, but that evidence, by itself, is less than compelling. . . .
      Our review of the cases and the regulations leads us to conclude that
      the starting place must be the presence of some objective evidence in
      the record suggesting the existence of a condition which could have a
      material impact on the disability decision requiring further
      investigation.

Id. at 1167. In Hawkins we identified three instances when such an examination

is often required: “where there is a direct conflict in the medical evidence”;

“where the medical evidence in the record is inconclusive”; and “where additional

tests are required to explain a diagnosis already contained in the record.”

Id. at 1166; see also 20 C.F.R. § 404.1519a (describing when a consultative

examination is appropriate).




                                         -9-
      Mr. Barrett contends that the medical evidence in the record in this case

was inconclusive. He points to the following evidence in support of his

argument: his allegation of disability based on a combination of physical and

mental impairments; his history of a suicide attempt and special education classes

20 years before the adjudicated period; his history of taking anti-depressant

medication; his testimony that his wife filled out agency forms on his

behalf―based on information he provided to her regarding his daily activities, his

medical and psychological impairments, and his work history―because he did not

understand the forms; his wife’s general comment in one of these forms that

claimant had difficultly following oral and written instructions; and his testimony

about having co-workers read written instructions to him at his job at Denny’s.

Mr. Barrett argues that “[a]ll of the foregoing facts triggered the ALJ’s duty to

develop the record in this case by obtaining a consultative psychological

examination . . . to clarify the extent of his mental impairments.” Aplt. Opening

Br. at 18.

      In response to claimant’s summary of the record, the Commissioner points

out that Mr. Barrett did not seek medical treatment for any impairment until after

he applied for disability benefits and did not initially report any symptoms of a

mental impairment; his medication was effective in controlling his depression

during the adjudicated period and his wife described him as only slightly

depressed; his PCP never referred him for a mental health evaluation; the

                                         -10-
consultative physician who examined claimant with respect to his physical

impairment did not observe any mental difficulties during the examination;

Dr. Chiang found in her PRT assessment that claimant’s depression resulted in

only mild ratings in mental function areas and was therefore not severe;

Mr. Barrett reported daily activities involving some level of concentration and

comprehension, including watching television, playing video games, reading

gaming magazines, and using the computer; he continued to work part time during

the adjudicated period; his wife indicated that he could pay bills, count change,

and handle bank accounts; and he testified that he was able to follow oral

instructions at work.

      The claimant in Cowan raised the same claim of error regarding the ALJ’s

failure to obtain a consultative examination. We held that “there was no need to

further develop the record because sufficient information existed for the ALJ to

make her disability determination.” 552 F.3d at 1187. We specifically noted the

record evidence regarding the claimant’s daily activities and physical abilities, the

medical consultant’s PRT assessment finding a mental impairment that resulted in

only mild restrictions and difficulties, and the lack of evidence suggesting that the

claimant’s mental impairment had any greater effect on his ability to work. Id.

Here, the evidence in the record is substantially similar and our conclusion is the

same as in Cowan. The evidence indicated that claimant’s depression was

controlled by his medication and resulted in only mild restrictions and difficulties

                                         -11-
related to his activities of daily living, social functioning, and maintaining

concentration, persistence, and pace. As to claimant’s testimony and his wife’s

comments in agency forms regarding his difficulties related to concentration and

following instructions, we note that “[i]solated and unsupported comments by the

claimant are insufficient, by themselves, to raise the suspicion of the existence of

a non-exertional impairment.” Hawkins, 113 F.3d at 1167. We hold that the ALJ

did not err in failing to obtain a consultative psychological examination of

Mr. Barrett. 5

                     Conflict Between VE Testimony and DOT

       Mr. Barrett contends that there is a conflict between the VE’s testimony

and the DOT, and that the ALJ erred in relying on the VE’s testimony without

first resolving the conflict. “If the ALJ concludes that the claimant cannot

perform any of his past work with his remaining RFC, the ALJ bears the burden at

step five to show that there are jobs in the regional or national economies that the

claimant can perform with the limitations the ALJ has found him to have.”

Haddock v. Apfel, 196 F.3d 1084, 1088 (10th Cir. 1999). Furthermore, “the ALJ

must investigate and elicit a reasonable explanation for any conflict between the



5
       Unlike Madrid, this case does not present an issue whether the ALJ erred in
failing to request existing medical records of which he was aware. See 447 F.3d
at 791; Hawkins, 113 F.3d at 1166 n.5 (“We are not confronted here with a
situation where evidence already exists, and the ALJ must simply take the
appropriate steps to acquire it.”).

                                         -12-
[DOT] and expert testimony before the ALJ may rely on the expert’s testimony as

substantial evidence to support a determination of nondisability.” Id. at 1091; see

also SSR 00-4p, 2000 WL 1898704, at *4 (“When vocational evidence provided

by a VE . . . is not consistent with information in the DOT, the adjudicator must

resolve this conflict before relying on the VE . . . evidence to support a

determination or decision that the individual is or is not disabled.”).

      At the hearing in this case the VE testified that, based upon the ALJ’s

limitation of Mr. Barrett to sedentary work, he would not be able to perform his

past relevant work. The ALJ then asked the VE one hypothetical question,

assuming an individual who is the same age as claimant, with the same

educational and vocational background, who could perform only sedentary work.

As relevant to the issue raised here by claimant, the ALJ also limited this

hypothetical individual to “simple tasks and only tasks that require him to

exercise occasional judgment.” Aplt. App., Vol. I at 233. The VE interpreted

this limitation to mean that the hypothetical individual could only perform work

that involved “simple one and two step tasks.” Id. at 234. She mentioned two

unskilled sedentary jobs that she believed the individual could not perform

because they “have more than one or two steps and there is judgment involved.”

Id. The VE testified that, with the additional limitation included by the ALJ, she

could identify only one occupation that this hypothetical individual could

perform, specifically the job of jewelry preparer.

                                         -13-
      Mr. Barrett asserts that the description of the jewelry preparer job in the

DOT indicates that it requires level-two reasoning, which is defined as: “Apply

commonsense understanding to carry out detailed but uninvolved written or oral

instructions. Deal with problems involving a few concrete variables in or from

standardized situations.” DOT 700.687-062 (4th ed., revised 1991), 1991 WL

678937(citing level-two reasoning as applicable to jewelry preparer job). He

argues that the requirement for a jewelry preparer to carry out detailed oral and

written instructions is inconsistent with the VE’s characterization of this

occupation. In response, the Commissioner cites Hackett v. Barnhart, 395 F.3d

1168 (10th Cir. 2005), in which we concluded that a limitation to “simple and

routine work tasks” appeared “more consistent” with level-two reasoning than

with a reasoning level of three. Id. at 1176 (quotation omitted).

      Mr. Barrett bases his argument entirely on the additional mental limitation

that the ALJ included in his hypothetical to the VE. But claimant ignores the

ALJ’s express finding that this limitation did not apply to Mr. Barrett. Contrary

to claimant’s assertions, the ALJ ultimately concluded that he had an RFC for

unskilled sedentary work, uneroded by any mental limitation:

      To determine the extent to which these limitations erode the
      unskilled sedentary occupational base, the Administrative Law Judge
      asked the vocational expert whether jobs exist in the national
      economy for an individual with the claimant’s age, education, work
      experience, and residual functional capacity that included the
      additional limitation of “only occasional use of judgment.” In fact,


                                         -14-
        I do not find that the claimant has this additional limitation because
        I find that the claimant does not have a severe mental impairment.

Aplt. App., Vol. I at 44 (emphasis added). The ALJ continued by concluding

that:

        Even with this added limitation, the vocational expert was still able
        to identify that an individual would be able to perform the
        requirements of [a] representative occupation such as a jewelry
        preparer. . . .

        ....

        Based on the testimony of the vocational expert, the undersigned
        concludes that, considering the claimant’s age, education, work
        experience, and residual functional capacity, the claimant has been
        capable of making a successful adjustment to other work that exists
        in significant numbers in the national economy.

Id. Thus, the ALJ found that, without a mental limitation, Mr. Barrett could

perform the jewelry preparer job with his unskilled sedentary RFC. Claimant

does not contend that there is any conflict between his RFC and the DOT

description of the jewelry preparer job. Nor has he identified any other basis for

finding error in the ALJ’s conclusion at step five.




                                          -15-
                           Conclusion

The judgment of the district court is AFFIRMED.

                                          Entered for the Court



                                          Stephen H. Anderson
                                          Circuit Judge




                               -16-
