                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit

                                                                         August 14, 2007
                      UNITED STATES CO URT O F APPEALS
                                                                      Elisabeth A. Shumaker
                             FO R TH E TENTH CIRCUIT                      Clerk of Court




    JOHN V. BRENEISER, JR.,

                Plaintiff-Appellant,
                                                          No. 06-2284
    v.                                             (D.C. No. CIV-05-431 LAM )
                                                            (D . N.M .)
    M ICH AEL J. ASTRU E, *
    Commissioner of Social Security
    Administration,

                Defendant-Appellee.



                             OR D ER AND JUDGM ENT **


Before BR ISC OE, M cKA Y, and GORSUCH, Circuit Judges.


         Plaintiff John V. Breneiser, Jr. appeals the district court’s order upholding

the Commissioner’s denial of his application for social security disability

benefits. W e exercise jurisdiction under 42 U.S.C. § 405(g) and 28 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 that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
 § 1291. W e affirm in part, reverse in part, and remand for further proceedings

 before the agency.

                                    I. Background

      M r. Breneiser claimed disability since December 10, 2002, due to

post-traumatic stress disorder (PTSD), hypertension, and osteoarthritis. Due to his

PTSD , he isolated himself from others because he could not tolerate being around

people and he got angry easily. He lived with his mother, spending many hours

each day in his room, sometimes staying in his room all day. His past work was as

a night security guard, which permitted him to work alone and avoid people for the

most part. He testified that a security guard will occasionally confront someone,

and he was afraid he would punch someone and go to jail, leaving his aged mother

without anyone to take care of her. He changed jobs every couple of years because

he became angry at his supervisor and quit.

      Dr. Gzakow, a consulting psychologist, noted that M r. Breneiser had a

difficult time relating to others and could not withstand work stress, but that he

could follow directions and do simple tasks. Two state agency physicians,

Drs. Blacharch and Walker, reviewed M r. Breneiser’s records and opined that he

had mild or moderate limitations in various areas of functioning, especially social

functioning. An evaluation by the Veterans Administration (VA) resulted in a 70%

service-related disability and a 100% overall unemployability rating based on his

PTSD . Accordingly, he was granted VA benefits. He participated in a VA study

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for treatment of PTSD overseen by Dr. Hollifield in which he received acupuncture

treatments.

      In the agency proceedings, an administrative law judge (ALJ) held a hearing

at which M r. Breneiser and a vocational expert (VE) testified. The ALJ

determined that M r. Breneiser could perform his past relevant work (PRW ) as a

security guard, thus concluding at step four the five-step sequential evaluation

process. See 20 C.F.R. § 404.1520; Williams v. Bowen, 844 F.2d 748, 750-52

(10th Cir. 1988) (explaining five-step process). The Appeals Council denied

review, so the ALJ’s decision constitutes the final agency decision. Doyal v.

Barnhart, 331 F.3d 758, 759 (10th Cir. 2003). The district court affirmed.

      On appeal to this court, M r. Breneiser asserts that the ALJ erred in

determining that he retained the mental residual functional capacity (RFC) to

perform his PRW . He also argues that substantial evidence does not support the

ALJ’s finding that he could perform his PRW . W e agree with M r. Breneiser that

the ALJ’s conclusion that his vision was adequate for work as a security guard is

not supported by substantial evidence, and we remand on this issue. W e uphold the

Commissioner’s determination on the remaining issues.

                               II. Standards of Review

      W e review the Commissioner’s decision to ascertain whether it is supported

by substantial evidence and to evaluate whether he applied the correct legal

standards. Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005).

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“Substantial evidence is more than a mere scintilla and is such relevant evidence as

a reasonable mind might accept as adequate to support a conclusion.” Id. W e do

not reweigh the evidence or retry the case, but we “meticulously examine the

record as a w hole, including anything that may undercut or detract from the A LJ’s

findings in order to determine if the substantiality test has been met.” Id. at 1262.

                                     III. Discussion

                                       (A) Vision

      M r. Breneiser presented evidence indicating that his vision was inadequate to

perform the duties of a security guard. The VE identified section 372.667-034 of the

Dictionary of Occupational Titles (DOT) as the appropriate description of

M r. Breneiser’s PRW . The job’s vision requirements are “frequently” for field of

vision and far acuity, and “occasionally” for near acuity, depth perception,

accommodation, and color vision. DOT § 372.667-034.

      Records from Dr. Saxon, an optometrist, indicate that M r. Breneiser’s eyes had

sustained scarring “causing decreased acuity,” among other conditions, and Dr. Saxon

directed him to change from contact lenses to glasses to avoid further damage to his

eyes. R. Vol. II, at 200. The evidence concerning whether his vision could be

corrected was unclear. See id. at 273. M r. Breneiser testified that he could not

tolerate the glasses he was prescribed because he could not see with them,

particularly for depth perception, and that he could not see well at night so he could

not w ork as a night security guard. Id. at 261-62. Although the VE stated that the

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vision necessary for security-guard work was similar to that necessary to obtain a

driver’s license, id. at 274, M r. Breneiser testified that he feared he could not again

pass the vision test for a driver’s license, id. at 265. Therefore, the ALJ should have

resolved the evidence concerning M r. Breneiser’s vision problems before concluding

that he could perform his PRW as a security guard. See Winfrey v. Chater, 92 F.3d

1017, 1023 (10th Cir. 1996) (discussing three phases of step four, which ultimately

require ALJ to determine if claimant has ability to meet job demands of his PRW

despite the presence of mental and/or physical limitations). W e recognize that the

district court filled in the analysis on this point, but the court’s post-hoc

rationalizations are insufficient. Grogan, 399 F.3d at 1263. Therefore, because the

ALJ did not resolve the evidence relating to M r. Breneiser’s vision and the vision

requirements for a security guard, we conclude that substantial evidence does not

support the ALJ’s determination that M r. Breneiser could perform his PRW .

                                  (B) Social Functioning

      M r. Breneiser claims that the ALJ’s mental RFC determination was flawed

because it did not include the limitations found by Drs. Blacharch and Walker. Each

of those consultants indicated in the “social interaction” section of the M ental

Residual Functional Capacity Assessment form that M r. Breneiser was “moderately

limited” in “[t]he ability to interact appropriately with the general public.”




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R. Vol. II, at 139, 166. 1 However, neither consultant found that M r. Breneiser’s

limitations precluded his employment. Dr. Blacharch opined that he had “some

limitations in capacity for sustained concentration and social interactions [and]

[s]hould be able to do routine work with limited social contact.” R. Vol. II, at 141.

Similarly, Dr. W alker stated that M r. Breneiser could perform work not requiring

“inordinately high levels of concentration demands,” and entailing “brief and

superficial contact with the general public.” Id. at 167. The ALJ credited the

experts’ opinions, notwithstanding the limitations they found, that M r. Breneiser

could work, even though “he require[d] work where there is not extensive contact

with co-workers, supervisors, and the public.” Id. at 17. M r. Breneiser contends that

the ALJ disregarded critical limitations found by Drs. Blacharch and Walker and that

he erred in adopting the doctors’ conclusions about M r. Breneiser’s ability to work.

      In a related argument, M r. Breneiser claims that the ALJ’s analysis of his RFC

was flawed because the ALJ’s hypothetical question to the VE did not include the

mental impairments found by Drs. Blacharch and Walker. In addition, he asserts that

the ALJ improperly disregarded the VE’s response to his attorney’s questions stating

that the limitations noted by Drs. Blacharch and W alker would significantly interfere

 1
        Dr. Blacharch noted additional moderate limitations in M r. Breneiser’s
 social-functioning, including his ability to accept instructions, to respond
 appropriately to his supervisor’s criticism, and to get along with coworkers
 without “exhibiting behavioral extremes.” R. Vol. II, at 139. Dr. W alker stated
 that M r. Breneiser was “not significantly limited” in those areas, but that he was
 “moderately limited” in “[t]he ability to respond appropriately to changes in the
 work setting.” Id. at 166.

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with the ability to work.

      The record reflects that the ALJ considered the limitations found by

Drs. Blacharch and W alker and incorporated into his RFC determination their

opinions that M r. Breneiser required work involving limited contact with others. W e

reject M r. Breneiser’s argument that the A LJ erred in considering the doctors’

conclusions about his abilities. Although it would have been preferable for the ALJ

to explain in greater detail his reasons for determining that M r. Breneiser could w ork

as a security guard despite the evidence that he would have difficulty responding

appropriately to others, the ALJ’s treatment of the evidence does not rise to the level

of reversible error.

      The hypothetical question posed to the VE incorporated the conclusions quoted

above from Drs. Blacharch and W alker. Id. at 275-76. Therefore, we conclude that

the hypothetical posed to the VE was adequate in that it included the limitations

“found to exist by the ALJ.” Barnett v. Apfel, 231 F.3d 687, 690 (10th Cir. 2000).

                              (C) VA’s Disability Rating

      M r. Breneiser next argues that the ALJ committed reversible error by not

giving enough weight to the V A’s disability rating and by not discussing the V A’s

rating more fully. As noted above, the VA determined that M r. Breneiser’s PTSD

resulted in a 70% service-related disability and a 100% overall unemployability

rating. “A lthough findings by other agencies are not binding on the [Commissioner],

they are entitled to weight and must be considered.” Baca v. Dep’t of Health &

                                           -7-
Hum an Servs., 5 F.3d 476, 480 (10th Cir. 1993) (further quotation omitted); see also

20 C.F.R. § 404.1512(b)(5) (stating agency will consider “[d]ecisions by any

governmental or nongovernmental agency” concerning disability).

      There is no dispute that the ALJ considered the VA records and acknowledged

the V A’s 100% disability rating. He reviewed the V A’s reports of M r. Breneiser’s

mental and physical symptoms, as well as a psychiatric consultative evaluation from

M ay 2003. R. Vol. II, at 15. M r. Breneiser argues that the ALJ should have given

the VA’s rating more weight, but he “has not pointed to any specific factual finding

or evidence in the [VA’s] disability determination that should have changed the

[ALJ’s] decision.” Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005). The

ALJ was not required to adopt the VA’s conclusion. See id. Accordingly, we reject

this claim of error.

                          (D) Treating Psychiatrist’s Opinion

      W e turn to M r. Breneiser’s claim that the ALJ failed to give controlling weight

to the opinion of his treating psychiatrist, Dr. Hollifield, that he was “markedly

impaired in many or most of his social, work, and family responsibilities.” R. Vol.

II, at 189. “Under the ‘treating physician rule,’ the Commissioner will generally give

greater weight to the opinions of sources of information who have treated the

claimant than of those who have not.” Hackett, 395 F.3d at 1173. An ALJ may

decline to give controlling weight to a treating psychiatrist’s opinion, however, if

it is not “w ell-supported by medically acceptable clinical and laboratory diagnostic

                                           -8-
techniques,” or if it is inconsistent with other substantial evidence. Id. at 1174.

Assuming that Dr. Hollifield can be considered a treating psychiatrist, the ALJ

articulated adequate reasons for discounting his opinion: the opinion was

contradictory to all of the other psychiatric evidence and none of the documentation

supporting the opinion was submitted.

                                     IV. Conclusion

      The judgment of the district court is A FFIRM ED in part, REVERSED in part,

and the matter is REM ANDED with directions to remand to the Commissioner for

further proceedings consistent with this order and judgment. W hile we agree with the

district court’s rulings regarding the social functioning and VA disability rating

issues, and its consideration of Dr. Hollifield’s opinion, we reverse and remand for

further consideration of whether claimant’s vision is adequate to perform his PRW as

a security guard.


                                                      Entered for the Court



                                                      M ary Beck Briscoe
                                                      Circuit Judge




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