                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                         July 23, 2007
                            FO R TH E TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                         Clerk of Court

    PEA RL L. M C AN A LLY ,

                Plaintiff-Appellant,

    v.                                                    No. 07-7010
                                                  (D.C. No. CIV-05-302-RAW )
    M ICH AEL J. ASTRU E, *                               (E.D. Okla.)
    Commissioner of Social Security
    Administration,

                Defendant-Appellee.



                             OR D ER AND JUDGM ENT **


Before H E N RY and A ND ER SO N, Circuit Judges, and BROR BY, Senior Circuit
Judge.




         Pearl L. M cAnally appeals from an order of the district court affirming the

Commissioner’s denial of her applications for Social Security disability and

supplemental security income benefits. Exercising jurisdiction under 42 U.S.C.

*
     Pursuant to Fed. R. App. P. 43(c)(2), M ichael J. Astrue is substituted for
Jo Anne B. Barnhart as appellee in this appeal.
**
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
§ 405(g) and 28 U.S.C. § 1291, we affirm.

                                          I.

      Plaintiff was born on August 29, 1944. She completed the tenth grade and

one year of college and has prior work experience as a housekeeper. Plaintiff

alleges that she has been unable to work since October 15, 2002, due to pain in

her back, hips, and knees; arthritis; hypertension; vision problems; and skin

problems.

      After plaintiff’s applications for benefits were denied initially and on

reconsideration, a de novo hearing was held before an administrative law judge

(ALJ) in M ay 2004. At the hearing, the ALJ heard oral testimony from plaintiff

and a vocational expert (VE). Subsequently, in August 2004, the ALJ issued a

written decision denying plaintiff’s applications for benefits. In his decision, the

ALJ went through the five-step sequential evaluation process for determining

whether a claimant is disabled, see Fischer-Ross v. Barnhart, 431 F.3d 729, 731

(10th Cir. 2005) (describing five steps), and the ALJ made several findings that

are germane to the issues raised by plaintiff in this appeal.

      First, at step two of the evaluation process, the ALJ found that “[t]he

credible and objective evidence of record . . . establishes that the claimant has a

history of degenerative joint disease with pain in her back, hips, and knees;

hypertension, loss of vision, and skin problems that cause[] significant

vocationally relevant limitations and are considered ‘severe’ impairments.” Aplt.

                                         -2-
App. at 17. Second, for purposes of steps four and five of the evaluation process,

the ALJ found that, despite her severe impairments, plaintiff retained the residual

functional capacity (RFC) to perform “a significant range of light work.” Id. at

21. Consequently, the ALJ did not place any limitations on plaintiff’s ability to

perform light work. 1 Finally, given her RFC for light work and based on the

hearing testimony of the VE, the ALJ found at both steps four and five of the

evaluation process that plaintiff w as not disabled, concluding that plaintiff’s

“medically determinable impairments . . . do not prevent her from performing her

past relevant work as a Cleaner/Housekeeper and the other jobs listed by the

vocational expert.” Id. at 22-23. The A LJ explained his reasoning as follow s:

      The claimant’s past relevant work as a cleaner did not require the
      performance of work-related activities precluded by [her] residual
      functional capacity. She is able to perform the light jobs listed by
      the vocational expert such as her past relevant work as a
      Cleaner/Housekeeper. She could also perform other work in her
      residual functional capacity for light work such as a Short Order
      Cook. There are 1,300 in the region and 93,000 such jobs in the



1
      The controlling regulations define “light work” as follow s:

      Light work involves lifting no more than 20 pounds at a time with
      frequent lifting or carrying of objects weighing up to 10 pounds.
      Even though the weight lifted may be very little, a job is in this
      category when it requires a good deal of walking or standing, or
      when it involves sitting most of the time with some pushing and
      pulling of arm or leg controls. To be considered capable of
      performing a full or wide range of light work, you must have the
      ability to do substantially all of these activities.

20 C.F.R. §§ 404.1567(b) and 416.967(b).

                                         -3-
       national economy. She could perform work as a Pantry Goods
       M aker, which is considered light work, and there are 900 in the
       region and 111,000 in the national economy (20 CFR §§ 404.1565
       and 416.965).

Id. at 22.

       In M ay 2005, 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

December 2006, the magistrate judge entered a report and recommendation,

recommending that the district court affirm the A LJ’s denial of plaintiff’s

applications for social security benefits. In January 2007, the district court

entered an order adopting the magistrate judge’s recommendation and affirming

the ALJ’s decision. 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.




                                          -4-
                                          II.

      In this appeal, plaintiff argues that the ALJ erred by failing to formulate an

RFC assessment that included all of her functional limitations. Plaintiff also

argues that the A LJ erred by finding her capable of performing both her past

relevant work (step four) and other work that exists in significant numbers in the

national economy (step five). Having carefully considered plaintiff’s arguments,

we reject plaintiff’s contention that the ALJ comm itted reversible error at step

four when he assessed plaintiff’s RFC and determined that she could perform her

past relevant work as a housekeeper. W e therefore affirm the ALJ’s finding of

nondisability at step four of the evaluation process, and we do not need to

consider plaintiff’s step-five arguments. See M urrell v. Shalala, 43 F.3d 1388,

1389 (10th Cir. 1994) ( “[D]ue to the way the sequential analysis is structured, a

proper finding of disability (at step three) or nondisability (at steps two, four, or

five) is conclusive and, thus, cannot be overturned by consideration of a

subsequent step.”).

      To begin with, we agree with the magistrate judge that, “[w]ith regard to

[her] hypertension, loss of vision or skin problems, the claimant has shown no

error by the ALJ because she does not identify any functional limitations that

should have been included in the RFC [assessment] or discuss any evidence that

would support the inclusion of any limitations.” Aplt. App. at 245. In addition,

although the ALJ found that plaintiff’s degenerative joint disease is “an

                                          -5-
impairment that would produce a certain amount of pain,” id. at 21, the A LJ also

concluded that plaintiff’s pain is not “as severe as she indicates,” id. In this

appeal, plaintiff is not challenging the ALJ’s adverse credibility determination,

and, with the exception of the limitation discussed below pertaining to kneeling,

crouching, and crawling, she has not identified any additional physical limitations

that are associated w ith her degenerative joint disease and any related pain. Thus,

plaintiff’s challenge to the ALJ’s RFC assessment collapses into a single

argument, and that is her claim that the ALJ erred by failing to properly consider

the limitation pertaining to kneeling, crouching, and crawling.

      Carmen Bird-Pico, M .D. is the state agency medical consultant who

determ ined that plaintiff has a limited ability to kneel, crouch, and crawl. As

summarized by the magistrate judge:

              After reviewing the record, state agency physician Carmen
      Bird-Pico, M .D., completed a physical RFC assessment on the
      claimant in September 2003. Dr. Bird-Pico found that the claimant
      could lift and/or carry 50 pounds occasionally and 25 pounds
      frequently; stand and/or walk for six hours in an eight-hour workday;
      sit for six hours in an eight-hour workday; and had unlimited push
      and/or pull except for that shown for lift and/or carry. Dr. [Bird-
      Pico] also noted, however, that the claimant could only occasionally
      kneel, crouch, or craw l [Aplt. App. at 148-55].

Aplt. App. at 245. Although the ALJ discussed Dr. Bird-Pico’s RFC assessment

in his decision, the ALJ did not discuss the limitation she imposed for kneeling,

crouching, and crawling. Id. at 18-19.




                                          -6-
      Plaintiff argues that the ALJ committed reversible error by failing “to fully

discuss the RFC assessment provided by agency consultative physicians.” Aplt.

Br. at 11. According to plaintiff:

      The RFC promulgated by the agency experts limits M cAnally to
      medium work with only occasionally kneeling, crouching, or
      crawling. (Aplt. App. at 149-150). W hile the ALJ determines
      M cAnally is capable of light exertional work, not medium, he fails to
      even mention the additional non-exertional restrictions imposed by
      the agency physicians. Failing to consider the report of a State
      Agency consultant is contrary to established law including Social
      Security Ruling 96-6p. Social Security Ruling 96-6p states that the
      ALJ may not ignore the opinions of consultative examiners and must
      explain the weight given to the opinions in their decisions. . . . This
      assessment by agency experts demonstrates that further limitations
      should have been included in M cAnally’s RFC.

Id.

      Although “[a]dministrative law judges . . . are not bound by findings made

by State agency or other program physicians,” any such findings “must be treated

as expert opinion evidence of nonexamining sources,” and plaintiff is correct that

ALJs “may not ignore these opinions and must explain the weight given to these

opinions in their decisions.” SSR 96-6p, 1996 W L 374180 at *1, *2; see also

20 C.F.R. §§ 404.1527(f) and 416.927(f). W e agree with the magistrate judge,

however, that, even if the ALJ failed to comply with Social Security Ruling

96-6p, “any error in this regard was clearly harmless.” Aplt. App. at 246. As the

magistrate judge explained:

      A t the hearing [before the ALJ], the claimant’s attorney asked the VE
      a number of hypothetical question designed to determine what jobs

                                        -7-
      the claimant could perform with various medical conditions,
      including the limitation to only occasional kneeling, crouching, and
      crawling found by Dr. Bird-Pico. The VE indicated that none of the
      jobs claimant could perform (including her past work as a
      housekeeper) would be affected by such a limitation based on the
      [Dictionary] of Occupational Titles [Aplt. A pp. at 214-15]. See
      DICOT § 323.687-014 (cleaning/housekeeping) . . . . Thus, even if
      the claimant were limited to only occasional kneeling, crouching, and
      crawling, . . . that limitation would not affect any of the jobs the ALJ
      found she could perform. The failure by the ALJ to include the
      limitation found by Dr. Bird-Pico in the claimant’s RFC was
      therefore harmless.

Id. at 246-47.

      At step four of the evaluation process, “claimant bears the burden of

proving his inability to return to his particular former job and to his former

occupation as that occupation is generally performed throughout the national

econom y.” Andrade v. Sec’y of Health & H um an Servs., 985 F.2d 1045, 1051

(10th Cir. 1993) (emphasis added). Thus, as explained in Social Security Ruling

82-61, at step four,

      a claimant will be found to be “not disabled” when it is determined
      that he or she retains the RFC to perform:
             1. The actual functional demands and job duties of a particular
      past relevant job; or
             2. The functional demands and job duties of the occupation as
      generally required by employers throughout the national economy.

SSR 82-61, 1982 W L 31387 at *2. Further, it is well established that “the agency

accepts the [definitions in the Dictionary of Occupational Titles (4th ed. 1991)] as

reliable evidence at step four of ‘the functional demands and job duties’ of a

claimant’s past job ‘as it is usually performed in the national economy.’”

                                          -8-
Haddock v. Apfel, 196 F.3d 1084, 1090 (10th Cir. 1999) (quoting SSR 82-61,

1982 W L 31387 at *2); see also 20 C.F.R. §§ 404.1566(d)(1) and 416.966(d)(1)

(authorizing administrative notice of reliable job information found in the

Dictionary of Occupational Titles).

      As the VE testified at the hearing before the ALJ, see Aplt. App. at 212-15,

to be able to perform her past relevant “light” work as a cleaner/housekeeper

(DOT Code 323.687-014) as that job is generally performed in the national

economy, plaintiff is only required to have the ability to “occasionally” kneel and

crouch, and there is no requirement that plaintiff be able to crawl, see Selected

Characteristics of Occupations Defined in the Revised Dictionary of

Occupational Titles, at 132 (DOT Code 323.687-014) (1993). As a result, the

limitations imposed by Dr. Pico-Bird do not prevent plaintiff from performing her

past relevant work as that work is generally performed in the national economy,

and plaintiff has failed to offer any evidence or argument to rebut this conclusion.

Accordingly, we hold that: (1) no reasonable administrative factfinder, following

the correct analysis, could have resolved the step-four issues that are presented by

this case in any other way; and (2) any failure of the ALJ to comply with the

requirements of Social Security Ruling 96-6p was therefore harmless error. See

Allen v. Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004) (discussing principle of

harmless error in social security context).




                                         -9-
The judgment of the district court is AFFIRMED.


                                          Entered for the Court


                                          Stephen H. Anderson
                                          Circuit Judge




                               -10-
