* This order and judgment is not binding precedent, e xcept

under the doctrines of law of the case, res judicat a, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order andjudgment may be cited under the terms and conditions of the cour t’s General Order filed November 29, 1993. 151 F.R.D. 470. UNITED STATES COURT OF APPEALS Filed 11/2/95 TENTH CIRCUIT

MELVIN L. MILLS, ) ) Plaintiff-Appellant, ) ) No. 95-7071 v. ) (D.C. No. CV-94-287-B) ) (E. Dist. Okla.) SHIRLEY S. CHATER, Commissioner, ) Social Security Administration, ) ) Defendant-Appellee. )

ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, McKAY and HENRY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to honor the parties’ re quest for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefo re ordered submitted without oral argument. Melvin L. Mills appeals the district court’s order denying his claim for Supplemental Security Income and disa bility insurance benefits. He maintains that the Commissi oner’s decision is not supported by substantial evidence. We affirm.-2-

Mr. Mills is 44 years old. In the last fifteen yea rs, he has held a variety of jobs in oil field constructio n; he has also worked as a heavy equipment operator and in asbesto s removal. In May, 1985, Mr. Mills fractured his sixth vertebra i n a diving accident. He claims that ensuing pain in his neck and numbness in his right arm, as well as depression and anxiety , prevent him from engaging in substantial gainful activity. We may only set aside the ALJ’s findings if they ar e not supported by substantial evidence. Nieto v. Heckle r , 750 F.2d 59, 61 (10th Cir. 1984). A decision is subject to reversal if it is overwhelmed by other evidence, represents a mere conclusion, or is based on an improper legal standard. Ellisonv. Sullivan , 929 F.2d 534, 536 (10th Cir. 1990); Frey v. Bowen , 816 F.2d 508, 512 (10th Cir. 1987). “The Secretary uses a five-step process to evaluate disability claims for supplemental security income. ” Reyes v.
Bowen , 845 F.2d 242, 243 (10th Cir. 1988); see also20 C.F.R. § 404.1520 (disability); § 416.920 (Supplemental Secu rity Income disability). The ALJ found that Mr. Mills did not establish that he met or equaled one of the impairments listed in the regulations. 20 C.F.R. §§ 404.1520(d), 416.920(d). Applying the fifth step of the evaluation process, and consideri ng Mr. Mills’ age, education, part work experience, and residual functional capacity (RFC), the ALJ found that he could performother work.1Mr. Mills also suggests that his constitutional ri ght to

due process was violated by the ALJ’s reliance on areport of a medical examination after his hearing; he contends that he was denied effective cross-examination. SeeAllison v. Heckler , 711 F.2d 145, 147 (10th Cir. 1983). We need not reach this argument because Mr. Mills did not raise it below. SeeIn re Lynde , 922 F.2d 1448, 1455 (10th Cir. 1991). Moreover, the re cord reveals that Mr. Mills was notified of the ALJ’s intent to rely on this report, received a copy of the report, and was affo rded the opportunity to respond to it with a written stateme nt, additional evidence, and questions to be given to the author o f the report. Thus the ALJ’s compliance with the requirements of Allison renders Mr. Mills’ due process argument meritless. -3- Id. at §§ 404.1520(f), 416.920(f). The ALJ found that Mr. Mills “has the residual functional capacity to perform a full range of sedentary and light work . . . of an unskilled and semi-skilled nature . . . .” Rec., vol. II, at 18. On appeal, Mr. Mills offers two challenges to the ALJ’s application of the fifth step of this process. 1First, he contends that the ALJ’s assessment of his residual functional capacity (RFC) was not supported by substantial evi dence because the ALJ failed to properly consider evidence of his manipulative and mental impairments. Second, he contends that t he ALJ’s determination that alternative work was available w as not supported by substantial evidence because the ALJ i mproperly questioned the vocational expert. As Mr. Mills maintains, the record reflects conside rable evidence that Mr. Mills’ manual dexterity is impair ed. Mr. and Mrs. Mills both testified to this effect, and Mr. M ills also introduced compelling medical reports. However, th ere is also-4-

substantial support for the ALJ’s findings. Dr. Mc Govern observed that Mr. Mills had normal hand function an d dexterity. Dr. McGovern also stated that although Mr. Mills ex hibited weakness in a number of areas, in his opinion this was due to poor cooperation by Mr. Mills. Dr. McGovern’s repo rt generally supports the ALJ’s findings with regard to Mr. Mill s’ manipulative impairments. The ALJ also found that Mr. Mills “does not have a mental impairment which has had more than a minimal effect on his ability to engage in work activity and that he does not have a mental impairment which has reduced his functional capacity for sedentary and light work.” Id. at 17. Mr. Mills contends that this finding was without sufficient support and tha t the ALJ failed to point to legitimate reasons to reject his medical evidence. However, the ALJ completed a standard Ps ychiatric Review Technique Form, which was appended to his de cision. In the PRTF, the ALJ found that Mr. Mills’ activities of daily living were not restricted, and that he faced only slight difficulties in maintaining social functioning. Th ese findings are supported by Mr. Mills’ testimony. The ALJ als o found no evidence of deficiencies resulting in failure to complete tasks in a timely manner, and no episodes of deterioratio n or decompensation. These findings are congruent with the reports of Dr. Nguyen and Dr. Das. We must conclude that the ALJ’s findings-5-

with regard to Mr. Mills’ mental impairments are su bstantially supported by the evidence. Mr. Mills also challenges the ALJ’s questioning of the vocational expert. He contends that the ALJ posed hypothetical questions to the vocational expert which did not ac curately describe Mr. Mills’ characteristics, thus leading t he expert to supply inapposite testimony. Indeed, the ALJ did n ot include manipulative or mental impairments in the hypotheti cal questions. As a result, Mr. Mills argues that the ALJ’s findin gs concerning the availability of alternative work are not suppor ted by substantial evidence. Because the ALJ’s findings c oncerning Mr. Mills’ RFC were supported by substantial evidence, there is no need for the answers to the hypothetical questions which Mr. Mills now urges us to require. The testimony of th e vocational expert constitutes substantial support for the ALJ’ s finding that “there exist occupations in the national economy insignificant numbers that [Mr. Mills] can perform regardless of [his] impairments, and therefore [Mr. Mills] is not disab led.” Id. at 19. We AFFIRM the decision of the district court. The mandate shall issue forthwith.
ENTERED FOR THE COURT
Stephanie K. Seymour Chief Judge