                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          NOV 29 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    ROBERT M. DANIELS,

                Plaintiff-Appellant,

    v.                                                   No. 00-5009
                                                   (D.C. No. 98-CV-897-M)
    KENNETH S. APFEL, Commissioner,                      (N.D. Okla.)
    Social Security Administration,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before BRORBY , KELLY , 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      This order and judgment is not binding precedent, except under the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-appellant Robert M. Daniels appeals from an order of the district

court affirming the Commissioner’s decision denying his application for Social

Security disability benefits. Appellant filed for these benefits in August 1995.

He alleged disability commencing January 2, 1992, based on carpal tunnel

syndrome, high blood pressure, ulcers and mental problems. The agency denied

his applications initially and on reconsideration.

      On November 14, 1996, appellant received a de novo hearing before an

administrative law judge (ALJ). The ALJ determined that appellant retained the

residual functional capacity (RFC) to perform light work, with the following

restrictions: no repetitive pushing or pulling of arm controls, marked temperature

extremes, vibration, repetitive hand motions with his left hand, or more than

occasional driving. After receiving testimony from a vocational expert (VE), the

ALJ found that appellant could not return to his past relevant work, but that there

were a significant number of other jobs that he could perform in the national or




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regional economy. 1 The Appeals Council denied review, making the ALJ’s

decision the Commissioner’s final decision.

      We review the Commissioner’s decision to determine whether the factual

findings are supported by substantial evidence in the record and whether the

correct legal standards were applied. Andrade v. Sec’y of Health & Human

Servs., 985 F.2d 1045, 1047 (10th Cir. 1993). Substantial evidence is “such

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

conclusion.” Fowler v. Bowen, 876 F.2d 1451, 1453 (10th Cir. 1989) (quotations

omitted).


      I. Severity of mental impairment

      Appellant argues that the ALJ’s conclusions concerning the severity of his

mental impairment were not supported by substantial evidence. The ALJ

concluded that appellant’s bipolar disorder was no more than mild and was well

controlled with medication, and that it would not more than minimally affect




1
       The Commissioner follows a five-step sequential evaluation process
to determine whether a claimant is disabled. Williams v. Bowen, 844 F.2d 748,
750-52 (10th Cir. 1988). The claimant bears the burden of establishing
a prima facie case of disability at steps one through four. Id. at 751 n.2. If the
claimant successfully meets this burden, the burden of proof shifts to the
Commissioner at step five to show that the claimant retains sufficient RFC to
perform work in the national economy, given his age, education and work
experience. See id. at 751. The ALJ decided this case at step five.

                                         -3-
appellant’s ability to engage in work-related activities. The record supports these

conclusions.

      Dr. Louis Hoogewind signed assessment forms concerning appellant’s

condition at the time of appellant’s admission to Parkside Hospital in August

1995. The forms noted that appellant’s speech was “angry” and that his mood

was “angry” and “depressed.” Appellant’s App., Vol. II at 334. Appellant’s

insight and judgment were rated as “poor.” Id. He was able to remember only

two of three objects after five minutes, had homicidal ideation, and could

remember only two previous presidents of the United States. Dr. Hoogewind

noted diagnoses of “Bipolar NOS” and “cocaine abuse” and assigned appellant a

functional level of 46. Id.

      Dr. Hoogewind saw appellant, however, before medication had been

prescribed for his bipolar disorder. Subsequent to Dr. Hoogewind’s evaluation,

appellant began taking prescribed medications including lithium and mellaril.

Less than three weeks later, treating physician Dr. Sue Storts reported that

appellant’s bipolar disorder was well-controlled with his medications. Id. at 320.

      Dr. Goodman, a consulting psychiatrist, saw appellant in August 1996, one

year after his admission to Parkside. Dr. Goodman stated, after examining

appellant: “At this time [appellant] admits that his psychological problems do not

prevent him from working. I tend to agree with him.” Id. at 398. He further


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stated that so long as appellant remained in treatment and abstained from using

alcohol or drugs, “I see no reason why [appellant] cannot return to the same level

of work that he has always done.” Id. at 399.

      Appellant raises several arguments in opposition to the ALJ’s conclusions

about the effect of his bipolar disorder on his ability to work. We consider each

of these in turn.

      1. ALJ’s (alleged) conclusion that appellant did not have bipolar disorder

      In his report, Dr. Goodman cast doubt on appellant’s diagnosis of bipolar

disorder. Among other things, he stated that the previous diagnosis had been

made “by a Bachelor’s level assistant counselor without any verification of his

psychiatric diagnoses.”   Id. at 397. The ALJ mentioned this statement in his

decision. Appellant argues from this that the ALJ incorrectly concluded, based on

Dr. Goodman’s report, that he did not have bipolar disorder. As noted, however,

the ALJ accepted the diagnosis of bipolar disorder after reviewing all the

evidence, but concluded that the condition was not severe. This issue therefore

lacks merit.

      2. ALJ’s failure to discuss Dr. Hoogewind’s findings

      Appellant next complains that the ALJ erred by failing to discuss

Dr. Hoogewind’s diagnosis and findings in his decision. Appellant characterizes

Dr. Hoogewind as a treating physician whose evidence and opinion could not be


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disregarded without adequate explanation. Washington v. Shalala, 37 F.3d 1437,

1440 (10th Cir. 1994); see also 20 C.F.R. § 404.1527(d)(2) (requiring that

controlling weight be given to treating physician’s opinion regarding the nature

and severity of a claimant’s condition, if well-supported and not inconsistent with

the other evidence). Although the assessment forms he signed indicate that he

diagnosed appellant and prescribed medication for him, there is no evidence Dr.

Hoogewind provided ongoing care for appellant. It is doubtful, therefore, that he

is a “treating source” within the meaning of the regulations. 20 C.F.R.

§ 404.1502.

      In any event, we do not agree that the ALJ’s failure to discuss

Dr. Hoogewind’s assessment was reversible error. As mentioned, Dr. Hoogewind

saw appellant before he began to take medication for his bipolar disorder. The

report of Dr. Hoogewind’s observations, prior to the time appellant began taking

his medications, does not in any way undermine, nor is it “significantly probative

evidence” in opposition to, the ALJ’s ultimate conclusions concerning the

seriousness of appellant’s bipolar disorder as controlled by medication. Clifton v.

Chater, 79 F.3d 1007, 1010 (10th Cir. 1996) (stating that ALJ must discuss

“significantly probative evidence he rejects”). The ALJ expressly stated that he

reached these conclusions after considering all the evidence in the record.




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      An ALJ is required to take into account the effects of treatment when

assessing a claimant’s RFC. SSR 96-8p, 1996 WL 374184, at *5. Given all the

medical evidence, nothing in Dr. Hoogewind’s reports is inconsistent with the

ALJ’s conclusions. Any error the ALJ committed by failing to discuss the reports

therefore cannot form the basis for reversal.

      3. ALJ’s PRT form lacking in substantial evidence

      Both Dr. Goodman and the ALJ completed psychiatric review technique

(PRT) forms concerning appellant. The ALJ reached conclusions on his PRT

form that were slightly less favorable to appellant than those reached by

Dr. Goodman. Appellant contends that the ALJ should have followed

Dr. Goodman’s conclusions.

      Dr. Goodman stated on the PRT form he completed that appellant “Often”

had “Deficiencies of Concentration, Persistence or Pace Resulting in Failure to

Complete Tasks in a Timely Manner” Appellant’s App., Vol. II at 412. The

ALJ’s PRT form, by contrast, indicated that appellant “Seldom” had such

deficiencies. Id. at 26. In other respects, the ALJ’s rating of the severity criteria

on his PRT form was nearly identical to that of Dr. Goodman. 2



2
      Dr. Goodman rated appellant’s “Difficulties in Maintaining Social
Function” at “Slight,” while the ALJ rated this factor at “None.” Appellant’s
App., Vol. II at 26, 412. Appellant does not make any argument concerning this
discrepancy.

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      Appellant argues that the ALJ improperly disregarded Dr. Goodman’s

medical opinion without comment and substituted his own opinion on the PRT

form. He contends that the ALJ’s stated reasons for his conclusions on his own

PRT do not outweigh Dr. Goodman’s opinion, and that the ALJ’s failure to

explain the discrepancy between his PRT form and Dr. Goodman’s requires

reversal.

             A. Failure to follow Dr. Goodman’s PRT form

      Appellant’s argument on the first point lacks merit, for at least two reasons.

First, the ALJ has sole responsibility for determining appellant’s RFC, including

his mental RFC, based upon the record as a whole. 20 C.F.R. § 404.1527(e)(2);

see also SSR 96-8p, 1996 WL 374184, at *4-5. Second, the PRT form is a

psychiatrist’s opinion, and the ALJ is not bound by conclusions expressed in such

an opinion to the extent those conclusions are inconsistent with the psychiatrist’s

own clinical findings. See 20 C.F.R. § 404.1527(d)(4) (“Generally, the more

consistent an opinion is with the record as a whole, the more weight we will give

to that opinion”); cf. Castellano v. Sec’y of Health & Human Servs., 26 F.3d

1027, 1029 (10th Cir. 1994) (stating even treating physician’s opinion may be

rejected if not supported by specific findings or the evidence).

      Dr. Goodman’s underlying findings concerning the lack of effect of

appellant’s bipolar disorder on his ability to work belie his conclusion that


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appellant “often” had deficiencies of concentration, persistence or pace that

would result in his inability to complete tasks in a timely manner. Because of this

inconsistency between Dr. Goodman’s PRT and his clinical findings, the ALJ

permissibly departed from the conclusions reached on Dr. Goodman’s PRT form.

              B. Failure to distinguish Dr. Goodman’s PRT results

      Even if the ALJ was free to disregard Dr. Goodman’s opinion, however,

appellant argues that he could do so only by providing a reasoned explanation.

Appellant asserts that he failed to provide such an explanation, requiring reversal.

      Where an ALJ’s conclusions concerning a claimant’s abilities, expressed on

the PRT form, differ dramatically from those reached by a treating physician, an

explanation is required. See Winfrey v. Chater, 92 F.3d 1017, 1024 (10th Cir.

1996). This is a corollary of the requirement that conclusions reached on the

PRT be supported by substantial evidence. See Washington, 37 F.3d at 1442. Dr.

Goodman was an examining, rather than a treating physician. This suggests that

the duty to explain any discrepancy was less serious in his case than in Winfrey or

Washington.

      Here, the ALJ’s conclusions on the PRT form did not differ dramatically

from those reached by Dr. Goodman. Although the ALJ did not state expressly

his reasons for rejecting Dr. Goodman’s conclusions, he did note appellant’s

statement to Dr. Goodman that his psychological problems did not prevent him


                                         -9-
from working. The ALJ also specifically noted three activities appellant was able

to do that were inconsistent with his alleged inability to concentrate: reading,

following television shows, and going to the library.

      Appellant argues, however, that the activities mentioned by the ALJ are

substantively insufficient to provide a reason for departing from Dr. Goodman’s

conclusion that he lacks the ability to concentrate. We disagree. First, as noted

above, Dr. Goodman’s conclusion about concentration on the PRT form lacks

support from confirmatory findings. Second, a claimant’s daily activities are

properly considered when evaluating the severity of his alleged nonexertional

impairments. 20 C.F.R. § 404.1529(c)(3)(i). Third, the ALJ stated that he had

considered all the evidence in this case when reaching the conclusions on his PRT

form, and we must presume that such evidence included Dr. Goodman’s

underlying findings concerning the lack of effect of appellant’s bipolar disorder

on his ability to go back to work. We conclude that the ALJ provided sufficient

rationale for departing from Dr. Goodman’s conclusion on the PRT form.


      II. Commissioner’s Step Five Finding

      Appellant next launches a number of attacks on the Commissioner’s finding

at step five that he could perform a significant number of alternative jobs. His

first challenge rests on his assertion that the ALJ erroneously concluded that he

did not have a severe mental impairment. He contends that the ALJ should have

                                         -10-
presented appellant’s mental impairments as part of the hypothetical question to

the vocational expert. As noted above, however, appellant’s attacks on the ALJ’s

conclusions concerning his bipolar disorder lack merit. Therefore, this derivative

attack on the ALJ’s hypothetical question also fails.

      Appellant also attacks the ALJ’s RFC finding as unsupported by the

vocational testimony. The VE testified that appellant’s past relevant work was

unskilled, with the exception of his telemarketing experience. She stated that

appellant could not do any unskilled jobs at the sedentary level because of his

hand problems. She identified a number of unskilled jobs at the light level,

however, that appellant could perform. Appellant contends that the VE later

withdrew this testimony in response to further questioning by the ALJ, leaving no

jobs that he could perform.

      Appellant’s argument misstates the record. The ALJ’s initial hypothetical

assumed a moderate to severe limitation on ability to grip and finger with the

(non-dominant) left hand, and a mild limitation on ability to grip and finger with

the right hand. Appellant’s App., Vol. II at 84. Given these limitations, the VE

testified that appellant could perform a number of unskilled, light jobs including

food service worker, unskilled production labor, and unskilled office cleaning.

Id. at 86. She also testified that appellant could perform the semi-skilled,

sedentary job of sedentary order clerk. Id. at 85.


                                         -11-
      For his second hypothetical, the ALJ added mental restrictions based upon

appellant’s bipolar disorder. Id. at 88. The VE testified that if appellant were

limited in his ability to interact with the general public, he could not do the

sedentary order clerk job. The ALJ then posed a third hypothetical, assuming the

mental limitation but also a moderate, rather than mild, limitation on ability to

finger and grip with the dominant right hand. Id. Under these circumstances, the

VE stated that approximately fifty percent of the light jobs would be eliminated.

Id. at 89. The ALJ then asked the VE whether there were any light or sedentary

jobs that appellant could perform if he couldn’t do much handling of objects at

all. At this point, the VE conceded, in language now cited by appellant, that there

were most likely no jobs that appellant could perform. Id. at 90.

      When it came to his decision, however, the ALJ did not accept the

limitations identified in his third and fourth hypotheticals. Rather, he concluded

that appellant had only a moderate limitation in his ability to grip and finger with

his left hand, and a mild limitation in his ability to grip and finger with his right

hand. Id. at 22. These limitations were not inconsistent with the VE’s testimony

that there were light, unskilled jobs that appellant could perform.

      The ALJ is not bound by the VE’s responses to hypothetical questions that

include assumed restrictions not ultimately found by the ALJ to be supported by

the record as a whole. See Gay v. Sullivan, 986 F.2d 1336, 1341 (10th Cir.


                                          -12-
1993). The fact that the VE testified (in response to hypothetical questions listing

impairments that the ALJ ultimately rejected) that appellant could not perform

any jobs is irrelevant to the outcome of this case. Appellant fails to show that the

ALJ’s conclusions about his ability to use his hands were lacking in substantial

evidence.

      Appellant also argues that the ALJ erred in concluding that he had

transferable skills from his work as a telemarketer. Since the ALJ’s conclusion

that appellant could perform unskilled, light jobs is supported by substantial

evidence, and the ALJ listed a sufficient number of jobs in the national economy

at that skill and exertional level, it is not strictly necessary to determine whether

appellant could perform skilled work. We note, however, that appellant errs in

arguing that he had only one month’s experience as a telemarketer. In fact, it

appears from the record that he had the requisite three to six months’ experience

as a telemarketer to have learned the job, which carries a specific vocational

preparation (SVP) level of 4. Appellant’s App., Vol. II at 44, 83, 154; see

generally United States Dep’t of Labor, Dictionary of Occupational Titles, Vol. II,

App. C (4th ed. Rev. 1991). Therefore, the ALJ did not err in determining that

appellant had transferable skills from his telemarketing work.

      The judgment of the United States District Court for the Northern District

of Oklahoma is AFFIRMED.


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       Entered for the Court



       Wade Brorby
       Circuit Judge




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