UNITED STATES CO URT O F APPEALS
FO R TH E TENTH CIRCUIT
JERRY L. PRITCHETT,
Plaintiff-Appellant,
v. No. 06-5130
(D.C. No. 05-CV-81-FHM )
M ICH AEL J. ASTRU E, * (N.D. Okla.)
Commissioner of the Social Security
Administration,
Defendant-Appellee.
OR DER
Filed M arch 23, 2007
Before PO RFILIO, B AL DOC K , and EBEL, Circuit Judges.
This matter comes before the court on appellant’s petition for panel
rehearing. In the petition, appellant contends the panel overlooked his argument
that the ALJ’s decision violated this court’s precepts in Hackett v. Barnhart,
395 F.3d 1168 (10th Cir. 2005).
Upon consideration thereof, we GRANT the petition for rehearing in part,
W ITHDRAW our order and judgment of January 17, 2007, and substitute a
*
Pursuant to Fed. R. App. P. 43(c)(2), M ichael J. Astrue is substituted for
JoAnn B. Barnhart as appellee in this action.
modified order and judgment filed this date. A ppellant’s motion to file reply to
appellee’s response is D EN IED .
Entered for the Court
ELISABETH A. SHUM AKER, Clerk
By:
Deputy Clerk
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F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
March 23, 2007
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
JERRY L. PRITCHETT,
Plaintiff-Appellant,
v. No. 06-5130
(D.C. No. 05-CV-81-FHM )
M ICH AEL J. ASTRU E, * (N.D. Okla.)
Commissioner of the Social Security
Administration,
Defendant-Appellee.
OR D ER AND JUDGM ENT **
Before PO RFILIO, B AL DOC K , and EBEL, Circuit Judges.
In June 2003, plaintiff applied for disability insurance benefits and
supplemental security income alleging disability due to chronic back pain.
After initial denials, plaintiff and his counsel appeared at a hearing before an
*
Pursuant to Fed. R. App. P. 43(c)(2), M ichael J. Astrue is substituted for
JoAnn B. Barnhart as appellee in this action.
**
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
administrative law judge (ALJ) who eventually ruled that plaintiff was not
disabled within the meaning of the Social Security Act. The Appeals Council
denied review, and plaintiff appealed to the district court which affirmed the
decision of the Commissioner.
Plaintiff now appeals to this court, arguing that the ALJ (1) erred at steps
two and three of the five-step sequential evaluation process; (2) failed to perform
a proper credibility determination; and (3) erred at step five when he found that
plaintiff could perform the job of self-service store attendant. Exercising
jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291, we reverse in part
and remand.
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 &
Hum an Servs., 933 F.2d 799, 800 (10th Cir. 1991). Instead, we review the A LJ’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 v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003).
Plaintiff argues that the ALJ erred by failing to consider that his diagnosed
pain disorder, a type of somatoform disorder, was severe at step two. 1 Plaintiff,
1
Contrary to the Commissioner’s position, the consulting psychologist,
Dr. V aught, made this diagnosis; it w as not concocted by plaintiff’s attorney.
See Aplt. App., Vol. II at 128. Dr. Vaught provisionally diagnosed “Pain
(continued...)
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however, failed to demonstrate that his pain disorder “significantly limits
[his] . . . ability to do basic work activities.” See 20 C.F.R. § 404.1520(c).
A claimant at step two “must show more than the mere presence of a condition or
ailment.” Hinkle v. Apfel, 132 F.3d 1349, 1352 (10th Cir. 1997).
Because plaintiff’s pain disorder was not a severe impairment, the ALJ
was not required to consider it at step three when he applied the listings.
Cf. 20 C.F.R. § 404.1525(a) (noting that listings describe only severe
impairments). As for the other impairments which the ALJ did recognize as
severe, we hold that, despite the ALJ’s failure to discuss the evidence or his
reasons for determining that plaintiff was not disabled at step three, “the ALJ’s
factually substantiated findings at steps four and five of the evaluation process
alleviates any concern that [plaintiff] might have been adjudged disabled at step
three.” Fischer-Ross v. Barnhart, 431 F.3d 729, 730 (10th Cir. 2005).
Turning to the ALJ’s credibility determination, we find it adequately linked
to and supported by specific evidence in the record. Specifically, we note that the
most remarkable aspect of plaintiff’s medical record is that there is so little of it.
The medical evidence in the record comes entirely from consultative examinations
1
(...continued)
Disorder Associated with Both Psychological Factors and a General M edical
Condition.” This disorder is a type of pain disorder w hich itself is a subcategory
of somatoform disorders. See Amer. Psychiatric Assn., Diagnostic & Statistical
M anual of Mental Disorders 445, 462 (4th ed. 1994).
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ordered by the Commissioner. Despite complaints of chronic and debilitating
back pain that has lasted for twenty years, plaintiff never sought treatment by any
private physician or used any pain medication other than over-the-counter
remedies. 2 In response to plaintiff’s explanation that he could not afford
treatment, the ALJ noted that free medical care was available, a finding plaintiff
does not dispute on appeal.
Plaintiff next argues that, because his RFC limits him to a low-noise work
environment, he cannot do the job of self-service store attendant. That job is
characterized as one with “moderate” noise, a level described in Selected
Characteristics of Occupations Defined in the Revised Dictionary of Occupational
Titles (U.S. Dep’t of Labor, 1993) (SCO), as that encountered in a “business
office where typewriters are used; department store; grocery store; light traffic;
fast food restaurant at off-hours.” Id. at 365, App. D. at D-2. Despite his use of
the term “low,” the ALJ characterized plaintiff’s noise tolerance as being that of
an “ordinary business commercial education type noise environment.” Aplt. App.
Vol. II at 185. The ALJ noted only that claimant “shouldn’t be on a foundry floor
or flagging trucks by or something like that because of the noise.” Id. Because
the level of noise described by the ALJ as “low” more properly lines up with the
2
There is some evidence that plaintiff would occasionally take pain
medications given him by friends. Aplt. App., Vol. II at 63.
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SCO definition of “moderate” noise, we find no conflict between plaintiff’s RFC
and the noise characteristics of a job as a self-service store attendant.
Plaintiff’s RFC, however, does not match up to the mental demands of a
self-service store attendant job. In Hackett v. Barnhart, 395 F.3d 1168, 1176
(10th Cir. 2005), this court reversed a portion of an ALJ’s decision and remanded
under circumstances indistinguishable from plaintiff’s. In Hackett, the ALJ found
the plaintiff restricted to “simple and routine work tasks.” Id. The jobs identified
for the plaintiff, however, required a reasoning level of three, defined as the
ability to “‘[a]pply commonsense understanding to carry out instructions
furnished in written, oral, or diagrammatic form[, and d]eal with problems
involving several concrete variables in or from standardized situations.’” Id.
(quoting Dictionary of Occupational Titles, Vol. II at 1011). This court noted
that the limitation to simple or routine work “seems inconsistent with the
demands of level-three reasoning.” Id.
Similarly, here, the ALJ found plaintiff limited to “simple, repetitive and
routine work.” Aplt. App. Vol. II at 23. The ALJ further found, however, that
plaintiff could work as a self-service store attendant, a job requiring a reasoning
level of three. As in Hackett, a level-three reasoning requirement seems
inconsistent with the ALJ’s conclusion that plaintiff can only do jobs which
present simple, repetitive and routine tasks. This case must therefore be reversed
in part and remanded to allow the ALJ to address the apparent conflict between
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plaintiff’s inability to perform more than simple and repetitive tasks and the
level-three reasoning required by the job identified for him by the vocational
expert.
The judgment of the district court is therefore REVERSED in part, and this
case is REM ANDED with instructions to remand to the Commissioner for further
proceedings consistent with this order and judgment.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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