*This order and judgment is not binding precedent, except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 the court’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, this panel

has determined unanimously to honor the parties’ request 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 therefore ordered

submitted without oral argument.

Melvin L. Mills appeals the district court’s order denying

his claim for Supplemental Security Income and disability

insurance benefits. He maintains that the Commissioner’s

decision is not supported by substantial evidence. We affirm.
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Mr. Mills is 44 years old. In the last fifteen years, he

has held a variety of jobs in oil field construction; he has also

worked as a heavy equipment operator and in asbestos removal. In

May, 1985, Mr. Mills fractured his sixth vertebra in 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 are not

supported by substantial evidence. Nieto v. Heckler, 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. Ellison v. 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 also 20 C.F.R. §

404.1520 (disability); § 416.920 (Supplemental Security 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 considering Mr. Mills’

age, education, part work experience, and residual functional

capacity (RFC), the ALJ found that he could perform other work. 
1 Mr. Mills also suggests that his constitutional right to

due process was violated by the ALJ’s reliance on a report of a

medical examination after his hearing; he contends that he was

denied effective cross-examination. See Allison v. Heckler, 711

F.2d 145, 147 (10th Cir. 1983). We need not reach this argument

because Mr. Mills did not raise it below. See In re Lynde, 922

F.2d 1448, 1455 (10th Cir. 1991). Moreover, the record reveals

that Mr. Mills was notified of the ALJ’s intent to rely on this

report, received a copy of the report, and was afforded the

opportunity to respond to it with a written statement, additional

evidence, and questions to be given to the author of 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.1 First, he

contends that the ALJ’s assessment of his residual functional

capacity (RFC) was not supported by substantial evidence because

the ALJ failed to properly consider evidence of his manipulative

and mental impairments. Second, he contends that the ALJ’s

determination that alternative work was available was not

supported by substantial evidence because the ALJ improperly

questioned the vocational expert.

As Mr. Mills maintains, the record reflects considerable

evidence that Mr. Mills’ manual dexterity is impaired. Mr. and

Mrs. Mills both testified to this effect, and Mr. Mills also

introduced compelling medical reports. However, there is also
-4-

substantial support for the ALJ’s findings. Dr. McGovern

observed that Mr. Mills had normal hand function and dexterity. 

Dr. McGovern also stated that although Mr. Mills exhibited

weakness in a number of areas, in his opinion this was due to

poor cooperation by Mr. Mills. Dr. McGovern’s report generally

supports the ALJ’s findings with regard to Mr. Mills’

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 that the ALJ

failed to point to legitimate reasons to reject his medical

evidence. However, the ALJ completed a standard Psychiatric

Review Technique Form, which was appended to his decision. 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. These findings

are supported by Mr. Mills’ testimony. The ALJ also found no

evidence of deficiencies resulting in failure to complete tasks

in a timely manner, and no episodes of deterioration 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 substantially

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 accurately

describe Mr. Mills’ characteristics, thus leading the expert to

supply inapposite testimony. Indeed, the ALJ did not include

manipulative or mental impairments in the hypothetical questions. 

As a result, Mr. Mills argues that the ALJ’s findings concerning

the availability of alternative work are not supported by

substantial evidence. Because the ALJ’s findings concerning 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 the vocational

expert constitutes substantial support for the ALJ’s finding that

“there exist occupations in the national economy in significant

numbers that [Mr. Mills] can perform regardless of [his]

impairments, and therefore [Mr. Mills] is not disabled.” 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