                      UNITED STATES COURT OF APPEALS
Filed 9/24/96
                             FOR THE TENTH CIRCUIT



    KERRY V. HERD,

                Plaintiff-Appellant,

    v.                                                    No. 96-7022
                                                    (D.C. No. CV-95-125-B)
    SHIRLEY S. CHATER,                                    (E.D. Okla.)
    Commissioner, Social Security
    Administration,

                Defendant-Appellee.




                             ORDER AND JUDGMENT *



Before BRORBY, BARRETT, and EBEL, 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) and 10th Cir. R. 34.1.9. 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      This order and judgment is not binding precedent, except under the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 Kerry V. Herd appeals from an order of the district court affirming

the Secretary’s 1 determination that he is not entitled to disability benefits. We

affirm.

      "We review the Secretary's decision to determine whether her factual

findings are supported by substantial evidence in the record viewed as a whole

and whether she applied the correct legal standards. Substantial evidence is such

relevant evidence as a reasonable mind might accept as adequate to support a

conclusion." Castellano v. Secretary of Health & Human Servs., 26 F.3d 1027,

1028 (10th Cir. 1994)(citations and quotation omitted).

      The administrative law judge (ALJ) determined at step five of the five-step

sequential process, see Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir.

1988), that Mr. Herd could perform sedentary work. Mr. Herd asserts that

substantial evidence does not support this determination and that he cannot

perform a significant number of jobs existing in the national economy.

      Mr. Herd claimed disability due to pain in his back, an injury to his

shoulder, and mental impairments including depression. On appeal, he asserts




1
       Although, in the caption, the Commissioner of Social Security has been
substituted for the Secretary of Health and Human Services as the defendant in
this action, in the text we continue to refer to the Secretary because she was the
appropriate party at the time of the underlying decision.

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error only as to the ALJ’s determination that he is not disabled due to his mental

impairments.

      The ALJ found that while Mr. Herd had functional limitations due to a

mental impairment, his impairment was not so severe as to preclude the

performance of all substantial gainful activity at the sedentary unskilled level.

R. Vol. II at 67. The record shows that Mr. Herd has seen only two mental health

professionals: Dr. Smallwood, a psychologist, and Dr. Grubb, a psychiatrist.

      Dr. Smallwood completed the psychiatric review technique form by

checking boxes which indicated that while Mr. Herd had some mental

impairments, none of them met a listing. Id. at 190-98. Dr. Smallwood gave no

reasons to support his determination and the record contains no explanation of

whether he personally examined Mr. Herd or made his conclusions based on the

record alone.

      Dr. Grubb performed a psychiatric consultation. He noted that Mr. Herd

had never received psychiatric treatment and claimed he was not working due

only to physical problems. Dr. Grubb noted that Mr. Herd was clean, but

inappropriately dressed as “[h]e was wearing a ‘gimmie’ cap, a flannel shirt,

jeans, and dirty boots . . . .” Id. at 238. He observed that Mr. Herd appeared

distracted and anxious and had a depressed, flattened mood with slow speech. Dr.




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Grubb felt that Mr. Herd’s judgment was poor and he was suffering from major

depression and had a dependent personality. He concluded that Mr. Herd

      probably could not do adequately even in well structured tasks that
      would rely on a usual routine. If the patient had to concentrate on
      details more than at a minimal level, it is my opinion that the patient
      would not be able to do this at this time. This could be improved by
      psychiatric medication.

Id. 239-40.

      The ALJ rejected Dr. Grubb’s conclusions noting that “Dr. Grubb appears

to have given claimant’s subjective complaints rather significant credibility,

insofar as he noted that he considered claimant’s ‘multiple physical problems’ to

be making claimant’s symptoms worse.” Id. at 70. He also noted that Dr.

Grubb’s conclusion that Mr. Herd suffered from periods of deterioration was

unsupported by any evidence in the record.

      At the hearing, Mr. Herd did not present any evidence that he had a mental

impairment which would impact his ability to work. Indeed, when, after he had

testified as to his physical problems, he was asked if he had any further physical

or mental problems which would affect his ability to work, Mr. Herd responded

“Not that I know of.” See id. at 111.

      Mr. Herd’s claim of a mental impairment is supported only by Dr. Grubb’s

consultative examination. Dr. Grubb appears to have fully accepted Mr. Herd’s

statements as to the extent of his pain and physical limitations and concluded that


                                         -4-
those physical problems had exacerbated his mental impairments. The ALJ found

that Mr. Herd’s testimony as to his pain and physical impairments was not

credible, thus undermining the foundation upon which Dr. Grubb’s conclusions

rested. Just as the ALJ may reject a treating physician’s conclusions if they are

unsupported by the record, the ALJ may reject a consultative physician’s

conclusions for the same reasons. The ALJ articulated specific, legitimate

reasons for rejecting Dr. Grubb’s conclusions. Cf. Washington v. Shalala, 37

F.3d 1437, 1440 (10th Cir.1994).

      No error is present because the VE did not discuss how Mr. Herd’s mental

impairment might affect his ability to perform the identified jobs. Mr. Herd

testified that he had no mental impairment which would affect his ability to work

and the record supports his statement.

      We must affirm if substantial evidence supports the ALJ’s determination.

Castellano, 26 F.3d at 1028. The evidence in the record consists of the following:

(1) Dr. Smallwood’s statement that Mr. Herd does not meet a listing for a mental

impairment; (2) Mr. Herd’s own statement that he had no mental impairment that

would affect his ability to work despite his claim on his application to the

contrary; and (3) no evidence in the record that Mr. Herd has ever sought

psychiatric treatment or has ever experienced any difficulties at work due to a

mental impairment. Cf. Soc. Sec. Rul. 96-8p, 61 FR 34474, 1996 WL 374184


                                         -5-
(“When there is no allegation of a . . . mental limitation . . . and no information in

the case record that there is such a limitation . . ., the adjudicator must consider

the individual to have no limitation . . . with respect to that functional capacity.”).

We further note that Mr. Herd’s report of his daily activities including doing some

housework such as sweeping, washing dishes, and some laundry; getting his

children off to school; caring for the chickens; raking leaves, and some driving

suggests he functions at a level above a totally disabling mental impairment.

      We cannot agree that Dr. Grubb’s opinion offsets the evidence cited.

Dr. Grubb’s conclusions were not based on any psychiatric testing or examination

beyond a consultation. Further, the ALJ discredited the basis of Dr. Grubb’s

conclusion by finding Mr. Herd’s testimony as to the extent of his pain, to which

Dr. Grubb gave controlling weight, to be incredible. See id. n.8 (ALJ must

consider medical source opinion that an individual is disabled, but “will not give

any special significance to the opinion because of its source”).

      Based on the record before us, we conclude that substantial evidence

supports the ALJ’s determination. The judgment of the United States District

Court for the Eastern District of Oklahoma is AFFIRMED.

                                                      Entered for the Court


                                                      David M. Ebel
                                                      Circuit Judge


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