                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           APR 3 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    EDNA FAY RAY,

                Plaintiff-Appellant,

    v.                                                   No. 99-7081
                                                   (D.C. No. CIV-97-619-B)
    KENNETH S. APFEL, Commissioner                       (E.D. Okla.)
    of Social Security,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before BALDOCK , BRISCOE , and LUCERO , Circuit Judges.




         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      This order and judgment is not binding precedent, except under the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.
       Plaintiff Edna Fay Ray appeals from an order of the district court affirming

the Commissioner’s determination that she was not entitled to Social Security

disability insurance benefits prior to October 27, 1995. We affirm.

       We review 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.    See Castellano v.

Secretary of Health & Human Servs.      , 26 F.3d 1027, 1028 (10th Cir. 1994).

“Substantial evidence is such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion.”    Id. (quotations omitted). In the course of

our review, we may “neither reweigh the evidence nor substitute our judgment for

that of the agency.”   Casias v. Secretary of Health & Human Servs.   , 933 F.2d 799,

800 (10th Cir. 1991).

       Ms. Ray was laid off from her job as a production worker on June 17, 1994,

and has not engaged in substantial gainful activity since that date. Although

her former employer told her that the layoff was attributable to a corporate

downsizing, she believes that it was related to her sustaining on-the-job injuries.

In filing for social security benefits, Ms. Ray alleged disability as of the layoff

date, due to carpal tunnel syndrome; back, neck, shoulder, and ankle conditions;

problems with her feet; and the mental impairment of depression. Her request

was denied initially and on reconsideration.


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      After conducting a hearing, the administrative law judge (ALJ) determined,

at step four of the five-step sequential evaluation process, that Ms. Ray was not

disabled from June 17, 1994 through October 26, 1995, in that her residual

functional capacity was sufficient during that period for her to perform her past

relevant work as a cashier/checker.   See Williams v. Bowen , 844 F.2d 748,

750-52 (10th Cir. 1988) (discussing the five-step process). He further determined

that her depression became disabling beginning October 27, 1995 and awarded

benefits beginning on that date. The ALJ’s decision, which became the final

decision of the Commissioner, was upheld on judicial review in the district court.

      At issue on appeal is the ALJ’s determination with regard to her mental

condition prior to October 27, 1995. Ms. Ray contends that the ALJ erred in

fixing the disability onset date by failing to: (1) comply with the requirements

of Social Security Ruling (SSR) 83-20, 1983 WL 31249, and (2) obtain adequate

information about the mental demands of her past relevant work, under the

dictates of Winfrey v. Chater , 92 F.3d 1017, 1024-25 (10th Cir. 1996).

      Social Security Ruling 83-20

      defines the onset date as “the first day an individual is disabled as
      defined in the Act and the regulations.” Factors relevant to the
      determination are the claimant’s allegation of an onset date, his work
      history, and the medical evidence, with medical evidence being the
      primary element in determining onset date.




                                         -3-
Reid v. Chater , 71 F.3d 372, 373 (10th Cir. 1995).   Id. “[T]he date alleged

by the individual should be used if it is consistent with all the evidence

available . . . . However, the established onset date must be fixed based on

the facts and can never be inconsistent with the medical evidence of record.”

SSR 83-20, 1983 WL 31249, at *3.

      Most of the medical records submitted in this case relate to Ms. Ray’s

physical condition. The first indication of a mental impairment is a September

14, 1994 psychiatric review technique form, prepared at the state level, finding

a mild affective mood disorder. An October 31, 1994 report of an orthopedic

examination mentions that Ms. Ray told the examiner that her reported

incontinence could be due to depression. On March 15, 1995, another orthopedist

recommended a psychological consultation based on his impression, reached at

a January 27, 1995 examination, that she had “[d]epression or psychological

overlay.” Appellant’s App., Vol. 2 at 170. In response to this recommendation,

the Commissioner requested a psychiatric evaluation for an affective disorder,

including depression and anxiety.

      Dr. Thomas A. Goodman, a psychiatrist, examined Ms. Ray on May 10,

1995. He related that Ms. Ray told him that “around November [1994] after

she was laid off work, she began feeling ‘lousy’ and read about depression.”

Id. at 174. She went to a mental center health center, where she was given her


                                           -4-
a screening test, told she was depressed, and placed on a waiting list for

treatment. See id. At the time of his examination, Dr. Goodman found “current

evidence of a mild depression which is probably situational, although it could

possibly be the beginning of a more severe major depression.”    Id. at 176.

“With treatment, [he] expecte[d] that she would probably receive considerable

relief.” Id. His diagnosis was “[d]epressive disorder, not otherwise specified,

mild to moderate, currently untreated.”   Id. Ms. Ray began treatment for

depression on October 27, 1995. The treating psychiatrist, Dr. James Fletcher,

arrived at a diagnosis of severe, major depression, recorded December 5, 1995.

Id. at 203.

      Thus, the medical evidence is inconsistent with the June 17, 1994 onset

date proposed by Ms. Ray and clearly supportive of the October 27, 1995 date

selected by the ALJ. Before the beginning of treatment, there was evidence of

mild to moderate depression, but not a mental impairment that kept Ms. Ray

from working. We conclude that the ALJ applied the correct legal standard in

establishing the disability onset date.

      We also reject Ms. Ray’s related claim, that the ALJ’s step-four

determination was flawed by a failure to develop the mental demands of her

past relevant work. A step-four analysis is

      comprised of three phases. In the first phase, the ALJ must evaluate
      a claimant’s physical and mental residual functional capacity, and in

                                          -5-
      the second phase, he must determine the physical and mental
      demands of the claimant’s past work. In the final phase, the ALJ
      determines whether the claimant has the ability to meet the job
      demands found in phase two despite the mental and/or physical
      limitations found in phase one.

Winfrey , 92 F.3d at 1023 (citations omitted).

      At phase one, the evaluation of a mental impairment that allegedly prevents

a claimant from working is documented by completing a psychiatric review form

(PRT). See id. at 1024. Here, the ALJ determined that until October 27, 1995,

Ms. Ray’s mental impairment only slightly restricted the activities of daily living

and social functioning; seldom affected concentration, persistence, or pace in

work settings; and never resulted in episodes of deterioration or decompensation.

The regulations provide that a finding of “no severe mental impairment” is proper

upon such ratings.   20 C.F.R. § 404.1520a(c)(1). A nonsevere mental impairment

“does not significantly limit [a claimant’s] mental ability to do basic work

activities.” 20 C.F.R. § 404.1521(a).

      Under these circumstances, the ALJ obtained adequate factual information

to determine the mental demands of Ms. Ray’s past work and to complete the

three phases of the step-four analysis. The brevity of his findings as to the

requirements of the cashier/checker job does not constitute legal error.




                                         -6-
    For the reasons stated above, the judgment of the district court is

AFFIRMED.


                                                  Entered for the Court



                                                  Mary Beck Briscoe
                                                  Circuit Judge




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