                       UNITED STATES COURT OF APPEALS

                              FOR THE TENTH CIRCUIT



 MARTIN GALLEGOS,

                 Plaintiff-Appellant,

 v.                                                         No. 03-2072

 JO ANNE B. BARNHART,
 Commissioner of Social Security,

                 Defendant-Appellee.


                                        ORDER
                                   Filed June 2, 2004


Before EBEL , HENRY , and MURPHY , Circuit Judge.


      This matter is before the court on appellant’s petition for rehearing.

Upon consideration, the petition for rehearing is denied, but the panel amends

its order and judgment filed on March 30, 2004, to clarify its discussion of the

terms “frequent” and “repetitive.” The March 30, 2004 order and judgment

is withdrawn and a copy of the panel’s amended order and judgment is attached

to this order.
                                               Entered for the Court
                                               PATRICK FISHER, Clerk


                                               By:
                                                        Deputy Clerk
                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           MAR 30 2004
                            FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk


    MARTIN GALLEGOS,

                Plaintiff-Appellant,
                                                          No. 03-2072
    v.                                             (D.C. No. CIV-02-116 JHG)
                                                           (D. N.M.)
    JO ANNE B. BARNHART,
    Commissioner of Social Security,

                Defendant-Appellee.


                             ORDER AND JUDGMENT           *




Before EBEL , HENRY , and MURPHY , Circuit Judges.



         Plaintiff-appellant Martin Gallegos appeals from an order of the district

court affirming the Commissioner’s decision denying his 1999 application for

supplemental security income benefits. Plaintiff, who is thirty-two-years old, has

a tenth grade education, and has never held a job. He alleges that he became

*
       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.
disabled when he was electrocuted at age thirteen; as a result, his right forearm

and hand, and two toes on his left foot had to be amputated. He also suffered

serious damage to his left hand, which was burned during the accident. He bases

his disability claim on the limitations caused by these injuries, including

extensive scarring on his left hand, which impairs his grip, and difficulty with

standing, walking, and balance, due to his missing toes. The agency denied his

application initially and on reconsideration.

       An administrative law judge (ALJ) held a de novo hearing on plaintiff’s

application in July 2001. Shortly thereafter he issued a decision finding plaintiff

not disabled within the meaning of 42 U.S.C. § 1382c(a)(3)(A) (defining

disability). The ALJ determined that plaintiff retained the residual functional

capacity (RFC) for a restricted range of light work of an unskilled nature, but

limited him from performing repetitive actions with his remaining hand, and from

lifting more than ten to fifteen pounds   . The ALJ found that plaintiff had no past

relevant work, but after eliciting testimony from a vocational expert (VE), the

ALJ concluded that several unskilled light jobs, which plaintiff is exertionally

capable of performing, exist in significant numbers in the regional and national

economies . When the Appeals Council later denied plaintiff’s request for review,

the ALJ’s decision became the final decision of the Commissioner.      The district




                                            -2-
court affirmed the Commissioner’s decision,        1
                                                       and plaintiff now appeals. We

exercise jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291, and affirm.

       Our review of the Commissioner’s decision is limited to determining

whether the correct legal standards were applied and whether the Commissioner’s

factual findings are supported by substantial evidence in the record.             Doyal v.

Barnhart , 331 F.3d 758, 760 (10th Cir. 2003). “Substantial evidence is such

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

a conclusion.”   Id. (internal quotation marks omitted). “A decision is not based

on substantial evidence if it is overwhelmed by other evidence in the record or if

there is a mere scintilla of evidence supporting it.”        Bernal v. Bowen , 851 F.2d

297, 299 (10th Cir. 1988). “In reviewing the Commissioner’s decision we

meticulously examine the record and view it in its entirety.”          Williams v. Bowen ,

844 F.2d 748, 750 (10th Cir. 1988).

       The Commissioner follows a five-step sequential evaluation process

to determine whether a claimant is disabled.           See 20 C.F.R. § 416.920;    Williams ,

844 F.2d at 750-52 (explaining sequential evaluation). Plaintiff’s claim was

denied at step five of the sequential process. He raises two issues on appeal:

(1) that the district court’s finding regarding plaintiff’s RFC is not supported by

substantial evidence and is contrary to law, and (2) that the district court

1
      The parties consented to proceed before a magistrate judge in accordance
with 28 U.S.C. § 636(c)(1) and (3).

                                             -3-
committed reversible error in affirming the ALJ’s reliance on the testimony of the

VE, which was contrary to the evidence and contrary to the       Dictionary of

Occupational Titles (4th ed. 1991) (DOT).

       In essence, the first issue raised by plaintiff is that the ALJ ignored

evidence regarding plaintiff’s left arm and lower extremity impairments. We first

address his left arm impairment. Plaintiff asserts that the district court’s approval

of the ALJ’s use of the opinion of the examining doctor, Dr. Davis, that plaintiff

is not precluded from frequent reaching, handling, or fingering is inconsistent

with the ALJ’s finding that plaintiff is restricted from    repetitive actions. Plaintiff

presumes the terms “frequent” and “repetitive” are synonymous, but they are not.

In identifying jobs the plaintiff could perform, the VE expressly construed the

term “repetitive” to mean “from two-thirds to 100 percent of the time.” Aplt.

App., Vol. II at 48. With that understanding, the ALJ found that the plaintiff

could perform jobs that require frequent reaching, handling, or fingering, even

with an RFC that precludes him from performing repetitive actions with his

remaining hand. Because reaching, handling, or fingering that is performed

“[f]requently” is performed only “1/3 to 2/3 of the time,” the ALJ’s findings

are not inconsistent.   Selected Characteristics of the Occupations Defined in

the Revised Dictionary of Occupational Titles       , App. C, Physical Demands at C-3

(1993).



                                             -4-
       Plaintiff also complains that the ALJ ignored Dr. Davis’s finding that

plaintiff’s left wrist “extension [i]s limited to 20 degrees” and that the scarring on

the palm of plaintiff’s left hand is “extensive.”   Id. , Vol. II at 126. He contends

that the ALJ viewed the evidence selectively, and ignored evidence that cast

doubt on his conclusions. Having closely reviewed the record, we see no

indication that the ALJ selectively viewed the evidence. Even though the ALJ did

not explicitly mention plaintiff’s limited left wrist extension and the extensive

scarring on his left hand, the ALJ clearly accommodated Dr. Davis’s observations

by concluding that plaintiff is restricted from performing repetitive actions with

his left hand.

       Plaintiff likewise contends that the ALJ erred by not acknowledging the

state agency’s nonexamining doctor’s Physical Residual Functional Capacity

Assessment, and that the district court improperly excused the ALJ’s failure to

mention the Assessment by holding that the opinions of specialists are entitled to

more weight than that of nonspecialists. In plaintiff’s view, the district court’s

holding is not supported by the record or by the regulations. He asserts that

because the nonexamining doctor’s name is omitted from the Assessment the

district court was precluded from comparing the physicians’ qualifications. In the

alternative, he suggests that the nonexamining doctor is, of course, a specialist in

disability determinations because the state would not retain a nonspecialist.



                                             -5-
       We agree with the district court that the ALJ’s failure to discuss the

nonexamining doctor’s Assessment was not error. Our agreement is, however,

based on different grounds.     See United States v. Sandoval , 29 F.3d 537, 542 n.6

(10th Cir. 1994) (“We may affirm a district court decision on any grounds for

which there is a record sufficient to permit conclusions of law, even grounds not

relied upon by the district court.”) (internal quotation marks omitted). Here, the

ALJ chose to accord Dr. Davis’s opinion more weight than that of the

nonexamining physician; so doing was not wrong. It is perfectly acceptable for

an ALJ to place more weight on the examining doctor’s opinion than on that of

the nonexamining physician.       See 20 C.F.R. § 416.927(d)(1) (more weight is

generally given to the opinion of an examining physician than a nonexamining

physician); 20 C.F.R. § 416.927(f)(2)(i) (although ALJs must consider findings of

a state agency nonexamining physician, ALJ is not bound by such findings).

       With regard to plaintiff’s lower extremity impairment, plaintiff asserts that

the ALJ erred by failing to include limitations on plaintiff’s ability to stand, walk,

and balance. But, as noted by the district court, the ALJ found plaintiff not

wholly credible and linked this factual finding to substantial evidence in the

record. Our careful review reveals no error in the ALJ’s assessment of plaintiff’s

credibility. The ALJ’s determination is supported by substantial evidence, and we

will therefore not disturb his finding.   See Diaz v. Sec’y of Health & Human



                                            -6-
Servs. , 898 F.2d 774, 777 (10th Cir. 1990) (observing that credibility

determinations are the province of the finder of fact, and that this court will not

upset such determinations when they are supported by substantial evidence).

        The second issue plaintiff raises on appeal is two-fold. He asserts the ALJ

manipulated the VE’s testimony, and that he is unable to perform any of the jobs

listed by the VE. Both of these arguments, like plaintiff’s preceding arguments,

fail.

        After confirming that the VE had heard plaintiff’s testimony and had

reviewed the record, the ALJ asked her the following:

        If we were to consider an individual the age, educational background,
        and experience of claimant, and we were to consider this individual
        is limited as follows: . . . he’s a one armed individual. The other
        hand can be used for most functions, but not repetitively. This
        individual is limited to unskilled work, work that does not require a
        lot of reading or writing, can only understand simple instructions,
        things of that nature. With those limitations would the
        individual–would there be any jobs in the economy that . . . an
        individual such as I described might do?

Aplt. App., Vol. II at 42. The VE opined that such an individual could only work

in a “selective placement” job, that is, a position developed specifically for the

individual. Id. Vol. II at 43. The ALJ then suggested several jobs that were

rejected by the VE. The ALJ next asked about the possibility of a parking lot

attendant job, to which the VE replied that the hypothetical was unclear regarding




                                          -7-
whether the individual could handle small objects such as coins. The ALJ

responded:

       [T]he individual is able to do most normal things with the hand like
       hold a knife, a fork, a spoon, a razor, a toothbrush, things like that,
       but not, not able to do repetitive things with the hand, like something
       that requires a repetitive motion, and opening and closing, stuff like
       that. In terms of just ordinary activities with the hand, I think my
       hypothetical would include that.

Id. Vol. II at 44. With this additional information the VE stated that plaintiff

could work as a parking lot attendant or laundry sorter. Both jobs are light and

unskilled, and neither would require plaintiff to engage in repetitive actions with

his left hand or lift more than ten to fifteen pounds.   2



       Plaintiff takes issue with the district court’s failure to quote the last

sentence of the ALJ’s description of the hypothetical individual’s dexterity with

small objects because “[his] left hand is not capable of ordinary activities.”

Aplt. Br. at 23. He again notes his left wrist’s limited extension and his left

hand’s extensive scarring. But, as we discussed in the context of the first issue

raised by plaintiff, the ALJ restricted plaintiff from performing repetitive actions

with his left hand, which is consistent with Dr. Davis’s observation that plaintiff

suffers some impairment with that hand.




2
      In the district court the Commissioner conceded that the job of gate guard,
another position that was identified by the VE, is semi-skilled and is therefore
beyond plaintiff’s abilities.

                                              -8-
       Finally, plaintiff argues that he is unable to perform the responsibilities of

a parking lot attendant or a laundry sorter. He bases this argument on what he

sees as a conflict between his abilities and the job requirements contained in the

DOT. This argument is meritless. Plaintiff returns to his contention that

“frequent” and “repetitive” are synonymous. As we already explained, these

terms have distinct legal definitions, and any argument regarding these two

positions requiring frequent reaching, handling, and fingering, fails. Plaintiff also

argues that the parking lot attendant job is incompatible with his abilities because

it may require him to park cars: “This task is difficult enough for the unimpaired

driver. To maneuver a car with but one hand, unable to grasp, flex, and bend

completely, would be next to impossible.”         Id. at 24. Plaintiff’s argument is not

based on evidence in the record. Moreover, it is contrary to plaintiff’s concession

that he has two DWIs, and inconsistent with record evidence that one of

plaintiff’s two jail sentences was the result of a friend committing a crime with

plaintiff’s car.

       The record in this case contains substantial evidence to support the ALJ’s

finding regarding plaintiff’s RFC, substantial evidence supports the ALJ’s

reliance on the VE’s testimony, and the correct legal standards were applied.




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


                                                  Entered for the Court


                                                  David M. Ebel
                                                  Circuit Judge




                                     -10-
