1 The Honorable Charles R. Wolle, United States District Judge for the Southern District of Iowa. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 05-4251

___________ Lorraine Lacroix, *
* Appellant, * * Appeal from the United States v. * District Court for the * Southern District of Iowa. Jo Anne B. Barnhart, Commissioner * of Social Security, *
* Appellee. *

___________ Submitted: May 17, 2006 Filed: October 20, 2006

___________ Before WOLLMAN, BRIGHT, and BOWMAN, Circuit Judges.

___________ BOWMAN, Circuit Judge. Lorraine Lacroix appeals the District Court's 1 affirmance of the Social Security Commissioner's decision denying her applications for disability insurance benefits (SSDI) and supplemental security income ( SSI) under the Social Security Act. We affirm.-2- I.

Lacroix is a fifty-one-year-old woman with a GED and past work experience as a construction worker and cashier. She claims that, beginning on July 22, 2001, she became disabled and unable to work as a result of combined physical impairments (hearing loss, hand problems, and painful bumps on her arms and legs) and mental impairments (impulse control diso rder, anxiety, and depression).

Lacroix was examined by three physicians in connection with her physical ailments. First, on September 5, 2002, Michael Tomek, M.D., evaluated her hearing loss. Dr. Tomek diagnosed Lacroix with bilateral hearing loss that was progressive in nature. Lacroix's discrimination was "very poor, being 44% in the right ear and 60% in the left ear." Admin. R. at 132. Dr. Tomek noted that it was very difficult to understand Lacroix's speech because she was unable to hear all of the consonants and vowels in spoken words. Dr. Tomek recommended a hearing-aid trial, but noted that hearing aids might not be effective given the extent of Lacroix's hearing loss. Finally, Dr. Tomek noted that Lacroix was a candidate for cochlear implants.

The next day, Lacroix was examined by James Putnam, M.D. Dr. Putnam opined that Lacroix had a full range of motion and was able to carry ten pounds on a frequent basis and twenty-five pounds on a rare basis. He noted that she had no limits to standing, walking, or sitting in an eight-hour day. While Dr. Putnam concluded that Lacroix had a moderate degree of hearing difficulty, he noted that she could adequately hear a sligh tly-above-normal tone of voice.

Jennifer Jones, M.D., examined Lacroix in January 2003. A hearing test revealed that Lacroix had "moderate to severe/profound sensorin eural hearing loss," for which Dr. Jones recommended hearing aids. Id. at 179. Dr. Jones also diagnosed Lacroix with depression and prescrib ed medication for its treatment.-3- With regard to her mental impairments, Lacroix was examined by Dr. Juan Aquino, a licensed psychologist, in September 2002 and May 2004. After the 2002 visit, Dr. Aquino concluded that Lacroix suffered from adjustment disorder with depression and anxiety, trichotillomania (hair pulling), and personality disorder. Lacroix's Global Assessment of Functioning (GAF) score was 64, which is indicative of "mild symptoms" or "some difficulty in social, occupational, or school functioning . . . but generally functioning pretty we ll." American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders Fourth Edition Text Revision 34 (2000) (DSM-IV-TR). Dr. Aquino opi ned that Lacroix's attention and concentration were adequate, that she s hould be able to remember and understand simple instructions and procedures, and that her "[j]udgment, reliability, and ability to interact with others may be compromise d by any return to regular use of cocaine [which is in remission,] and by underlying characterological difficulties." Admin. R. at 143.

During the May 2004 visit, Dr. Aquino administered two psychological tests: the Wechsler Adult Intelligence Scale– Third Edition (WAIS–III) and the Minnesota Multiphas ic Personality Inventory–2 (MMPI–2). On the WAIS– III, Lacroix achieved a full scale intelligence quotient (IQ) score of 80, which placed her in the low-average range of intellectual functioning. On th e MMPI–2, Lacroix endorsed a wide variety of rare symptoms and attitudes that sugge sted an invalid profile consistent with exaggeration and a strong tendency to ove r-endorse psychological problems. Dr. Aquino diagnosed Lacroix as having pers onality disorder and major depressive disorder with anxiety. Lacroix's GAF score was then 55, which is indicative of "[m]oderate symptoms" or "moderate diffi culty in social, occupational, or school functioning." DSM-IV-TR 34. Dr. Aquino concluded that Lacroix had no more than minimal limitations in understanding, reme mbering, and carrying out short and simple instructions and in making judgments on si mple work-related decisions. Lacroix had mild limitations—but could generally function well—in understanding, remembering, and carrying out detailed instructions; in in teracting with the public, supervisors and-4- coworkers; and in responding appropriately to changes in routine work settings. Finally, Dr. Aquino noted moderate limitations in Lacroix's ability to respond appropriately to work pressures in a usua l work setting, but opined that she would be able to function satisfactorily in this area.

Lacroix received treatment for her ment al disorders at the Gannon Center for Community Mental Health. Lacroix be gan going to the Gannon Center in March 2003, and a team of professionals was appoi nted to her care. Lacroix met regularly with Pat Everly, a licensed social worker, who provided psychotherapy; Tina Budreau, a nurse practitioner, who proscrib ed and monitored Lacroix's psychiatric medications; and Terri Spencer, who provided community support services. During Lacroix's first visit, Everly diagnosed L acroix with posttraumatic stress disorder and major depression. Lacroix's GAF score was 55.

In a March 4, 2004, letter, Budreau and Everly opined that Lacroix's symptoms of posttraumatic stress disorder would likely make it difficult for her to maintain focus, concentration, and ade quate pace in a job; that Lacr oix's fears of being attacked would cause her trouble inter acting appropriately with co -workers, supervisors, and the public; and that Lacroix's safety concerns and high anxiety would make it unlikely that she would be able to adapt in th e workforce. Budreau and Everly noted, however, that Lacroix "has the intellectual ability to understand, remember, and follow instructions." Admin. R. at 193.

In a June 2004 mental assessment, Budreau noted that Lacroix would be unable to maintain attention for two-hour periods, sustain an ordinary routine without special supervision, work in close coordination w ith or proximity to others without being unduly distracted, complete a normal workday and workweek without interruptions from psychologically based symptoms, accept instructions and respond appropriately to criticism from supervisors, deal with wo rk stress, use public transportation, travel in unfamiliar places, carry out detailed instru ctions, set realistic goals, or deal with-5- the stress of semi-skilled or skilled work . On the other hand, Budreau noted that Lacroix would be able to perform many other functions in a satisfactory manner, including understanding, remembering, and carrying out simple instructions, maintaining regular atte ndance and being punctual, responding appropriately to changes in routine work settings, getti ng along with coworkers and peers without unduly distracting them or exhibiting behavi oral extremes, and maintaining socially appropriate behavior.

The Commissioner denied Lacroix's applications for SSI and SSDI, initially and upon reconsideration. A hearing was then held before an administrative law judge (ALJ) on July 14, 2004. In considering Lacroix's claims, the ALJ followed the familiar five-step analysis mandated by 20 C.F.R. §§ 404.1520, 416.920. The ALJ determined that Lacroix's "sensorineural hearing loss, skin lesions, major depressive disorder with anxiety, posttraumatic stre ss disorder, trichotillomania, and personality disorder are considered 'sev ere.'" Admin. R. at 27. The ALJ concluded, however, that these impairments did not meet or me dically equal any of the listed impairments described in 20 C.F.R. Part 404, Subpart P, Appendix 1. Th e ALJ then found that Lacroix retained the residual functional capacity ("RFC") to perform unskilled light work with the following conditions: (1) "lift and carry 25 pounds occasionally and 10 pounds freque ntly with pushing and pulling commensurate to her lifting and carrying ability," (2) "sit, stand, and walk without restrictions," (3) "hearing limitations to the extent that [she] can understand conversations but should not have a job that requires excellent hearing, e.g. not a 911 operato r, receptionist or waitress," and (4) "mental limitations that preclude jobs requiring her to deal with the general public." Admin. R. at 25–26. The ALJ included these limitations in hypothetical questions, which he posed to a vocational expe rt (VE). The VE testified that a person with Lacroix's characteristics and limitations, while not able to perform the requirements of Lacroix's past relevant wo rk, could perform jobs that exist in the national economy, including "addressor," "f older working in a laundry," and "page, someone working in the library replacing materials back on to the shelving." Id. at-6- 286. Because the ability to perform jobs in the national economy precludes a claimant from being deemed disabled, 20 C.F.R. §§ 404.1520(g), 416.920(g), the ALJ determined that Lacroix was not entitled to SSDI benefits or SSI payments.

The administrative appeals council denied review of the ALJ's decision, resulting in a final decision of the Commissioner. Lacroix appealed to the District Court under 42 U.S.C. § 405(g), and the District Court affirmed the Commissioner's decision. Lacroix now appeals the District Court's decision.

II.

We review de novo the District Court's affirmance of the Commissioner's denial of SSDI and SSI benefits. Tindell v. Barnhart , 444 F.3d 1002, 1004 (8th Cir. 2006). In so doing, we must consider whethe r the ALJ's decision is free of legal error and whether the ALJ's findings of fact are supported by substantial evidence when viewing the record as a whole. Brown v. Barnhart , 390 F.3d 535, 538 (8th Cir. 2004). Substantial evidence is evidence that a reasonable mind would find adequate to support the ALJ's conclusi on. Shontos v. Barnhart , 328 F.3d 418, 423 (8th Cir. 2003). We must consider evidence that de tracts from the ALJ's decision, as well as evidence that supports the ALJ's decision, "but we may not reverse merely because substantial evidence exists for the opposite decision." Johnson v. Chater , 87 F.3d 1015, 1017 (8th Cir. 1996).

III.

Lacroix contends that the ALJ committed three errors that require reversal of the Commissioner's denial of benefits. We address each argument in turn.-7- A.

First, Lacroix argues that the ALJ committed legal error in reaching his decision by giving—according to Lacroix—"no we ight" to the opinions of the therapists and nurse practitioner who comp rised Lacroix's treatment team at the Gannon Center. Appellant's Br. at 20. Lacr oix asserts that the ALJ erroneously gave greater weight to the opinions of Dr. Aquino, who examined her only twice and did not treat her, than to the opinions of he r treating sources at the Gannon Center. The Social Security Regulations provide a de tailed explanation of how the Commissioner evaluates and weighs medical opinion evidence. See20 C.F.R. §§ 404.1527(d), 416.927(d). The medical opinions of "treati ng sources" on the nature and severity of a claimant's impairments are given "more weight" than non-treating sources and are even given "controlling weight" if certain conditions are met. Id. §§ 404.1527(d), 416.927(d). Nevertheless, L acroix's argument fails.

A "treating source" is defined as a " physician, psychologist, or other acceptable medical source" who treats the claimant. Id. §§ 404.1502, 416.902; see also Social Security Ruling 06- 03p, 71 Fed. Re g. 45,593, 45,594 (Aug. 9, 2006) ("[O]nly 'acceptable medical sources' can be consid ered treating sources, as defined in 20 C.F.R. 404.1502 and 416.902, whose medical opinions may be entitled to controlling weight."). Similarly, "medical opinions" are defined as "statements from physicians and psychologists or other acceptable medical sources." 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2); see also Social Security Ruling 06-03p, 71 Fed. Reg. at 45,594 ("[O]nly 'acceptable medical sources' can gi ve us medical opinions."). As Lacroix concedes, the nurse practitioner and th erapists at the Gannon Center are not physicians, psychologists, or other acceptable medical sources as defined by the Regulations. See 20 C.F.R. §§ 404.1513(a), 416.913(a) (excluding therapists and nurse practitioners from the list of acceptabl e medical sources); Raney v. Barnhart , 396 F.3d 1007, 1010 (8th Cir. 2005) ("A th erapist is not an 'acceptable medical source' to establish 'a medically determin able impairment.'"). Thus, Budreau, Everly2 We further note that Lacroix was repr esented by counsel in the proceedings before the ALJ. See Onstad , 999 F.2d at 1234 (noting that, when represented by a
-8- and Spencer were not treating sources and their opinions were not entitled to greater weight. See Tindell , 444 F.3d at 1005 (ruling that a licensed therapist is not a treating source as defined by the regulations).

Lacroix relies heavily on Shontos v. Barnhart , 328 F.3d 418 (8th Cir. 2003), for the proposition that the opinions of her providers at the Gannon Center should be given treating-source we ight. In Shontos , we ruled that a nurse practitioner and a counselor at the Gannon Center were not acceptable medical sources, but nonetheless considered them treating sources whose opi nions were entitled to greater weight than those of non-treating consultants. Id. at 426–27. This case is distinguishable from Shontos , however, in one critical aspect: the treatment team in Shontos included a psychologist whose participation in the cl aimant's care gave the entire treatment team treating-source status. Id. ; see also Tindell , 444 F.3d at 1005 (distinguishing Shontos and holding that the opinions of a therapist who was not "associated with a physician, psychologist, or other acceptable medical source that could potentially give him treating source status" were not entitled to greater weight). Indeed, the record in Shontos contained a "§ 245.7 Form: Medical Opinion Re: Ability to Do WorkRelated Activities (Mental)" completed by the psychologist and evaluated by the ALJ. Shontos , 328 F.3d at 421. In contrast, the record in this case does not contain a report by an acceptable medical source at the Ga nnon Center, nor do any of the reports by Budreau, Everly, or Spencer refer to a docto r's participation in Lacroix's care. While Lacroix argues that the ALJ should have fu rther developed the record to determine whether an acceptable medical source partic ipated in her care at the Gannon Center, she has presented no evidence suggesting thatsuch an inquiry would have yielded an affirmative answer. Accord ingly, Lacroix has failed to establish the prejudice necessary for a reversal due to fa ilure to develop the record. See Onstad v. Shalala , 999 F.2d 1232, 1234 (8th Cir. 1993). 2lawyer, whether the lawyer attempted to obtain the information "missing" from the record is relevant to the prejudice inquiry).
-9- While the opinions of Budreau, Ever ly and Spencer were not entitled to treating-source weight, they were entitled to consideration. The Regulations state that "[i]n addition to evidence from the acceptable medical sources listed in paragraph (a) of this section, we may use evidence from other sources to show the severity of your impairment(s) and how it affects your ability to work." 20 C.F.R. §§ 404.1513(d), 416.913(d). Therapists and nurse practitioners are specifically listed as "other" medical sources who may present eviden ce of the severity of the claimant's impairment and the effect of the impairment on the claimant's ability to work. Id. §§ 404.1513(d)(1), 416.913(d)(1). The ALJ correctly viewed the opinions of the Gannon treatment team as other-source evidence and gave them "much consideration." Admin. R. at 18. The AL J's decision discusses in careful detail the opinions of Budreau, Everly and Spencer. The ALJ ultimately determined, however, that the opinions were not supported by obj ective psychological tests, were inherently inconsistent, and were inconsistent w ith other evidence in the record. See Raney , 396 F.3d at 1010 ("In determining what weight to give 'other medical evidence,' the ALJ has more discretion and is permitted to cons ider any inconsistencies found within the record."); Cf. Social Security Ruling 06-03p, 71 Fed. Reg. at 45,596 (stating that more weight may be given to the opinion of a medical source who is not an acceptable medical source if "he or she has seen the individual more often than the treating source and has provi ded better supporting evidence and a better explanation for his or her opinion."). The ALJ therefor e accorded more weight to the opinions of Dr. Aquino, who, while not a treating physician, was an examining physician. The ALJ found Dr. Aquino's opinions "more consis tent with the claimant's prior reports concerning her day to day functioning a nd well supported by the objective evidence of record." Admin. R. at 22. After thoroughly reviewing the record, we find no error in this decision.-10- B.

Lacroix next argues that the ALJ's dete rmination of her RFC was not supported by the medical evidence in the record. "T he ALJ should determine a claimant's RFC based on all the relevant evidence, incl uding the medical records, observations of treating physicians and others, and an indi vidual's own description of his limitations." Strongson v. Barnhart , 361 F.3d 1066, 1070 (8th Cir. 2004) (internal quotation and citation omitted). The ALJ descri bed Lacroix's RFC as follows:

can lift and carry 25 pounds occasionally and 10 pounds frequently with pushing and pulling commensurate to her lifting and carrying ability . . . can sit, stand and walk without restrictions but she does have hearing limitations to the extent that she can understand conversations but should not have a job that requires excellent hearing, i.e. not a 911 operator, receptionist or waitress . . . [and] has mental limitations that preclude jobs requiring her to deal with the general public.

Admin. R. at 21. The ALJ also noted that, since "unskilled jobs ordinarily involve dealing primarily with objects, rather than with data or people . . . [t]he claimant's mental limitations . . . do not significantlyimpact the unskilled occupational base." Id.

Lacroix contends that the ALJ's RFC finding should have included additional limitations based on her mental status and h earing loss. With respect to her mental limitations, Lacroix initially asserts that the opinions of the Gannon Center staff should have been used in developing the RFC. As discussed above, the ALJ did not find the opinions of the Gannon Center sta ff supported by the evidence or entitled to enhanced weight. The ALJ therefore had no obligation to include in the RFC the mentally based limitations containe d in the Gannon Center reports. See Garza v. Barnhart , 397 F.3d 1087, 1088 (8th Cir. 2005) (upholding ALJ decision rejecting the-11- RFC findings of a treating social worker where those findings "conflicted with those of a consulting psychologist, whose findings were based on testing").

Lacroix also asserts that the ALJ di d not include in the RFC some mentally based limitations contained in the re ports of Dr. Aquino and the reviewing psychologist from the Iowa Disability Determination Services, Dr. Christiansen. Specifically, Lacroix makes much of the f act that in completing an evaluation form in May 2004, Dr. Aquino marked that Lacroix has "moderate" limitations in her ability to respond appropriately to work pre ssures in a usual work setting. Admin. R. at 204. Lacroix further notes that th e Residual Functional Capacity Assessment completed by Dr. Christiansen stated thatLacroix was "moderately limited" in her abilities to understand, remember, and carryout detailed instructions; maintain attention and concentration for extende d periods; and res pond appropriately to changes in work setting. Id. at 168–69.

We find that the ALJ's determination of Lacroix's RFC as it pertains to her mentally based limitations was supported by substantial evidence. As noted by the ALJ, "even though Dr. Aquino noted moderate limitations in the ability to respond appropriately to work pressures in a usual work setting, he still opined that the claimant would be able to function satisfactorily in this area." Id. at 18. Indeed, as noted on the evaluation form itself, a "mode rate" ranking means that "the individual is still able to function satisfactorily." Id. at 203. Moreover, in the narrative portion of his first report, Dr. Aquino stated that Lacroix had "adequate" attention and concentration, a nd that she "should be able to remember and understand simple instructions, procedures, and locations." Id. at 143. Finally, the ALJ was not required to accept the findings of Dr. Christia nsen to the extent, if any, they were inconsistent with Dr. Aquino's findings. Dr . Christiansen never examined (or treated) Lacroix, unlike Dr. Aquino who examined Lacroix on tw o occasions. The opinion of an acceptable medical source who has ex amined a claimant is entitled to more weight than the opinion of a source who has not examined a claimant. 20 C.F.R.3 Lacroix also contends thatthe ALJ's opinion is intern ally inconsistent because in finding "severe" impairments at step tw o of the five-step analysis, the ALJ stated that Lacroix's mental impairments "si gnificantly limit" her "abilities to understand, remember and carry out simple instructions , to respond appropriate ly to supervisors, coworkers, and unusual work situations, and to deal with changes in routine work settings," Admin. R. at 16, while these limitations were not included in the ALJ's RFC analysis at step four. We reject this contention. Each step in the disability determination entails a separate an alysis and legal standard. See20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
-12- §§ 404.1527(d)(1), 416.927(d)(1); Shontos , 328 F.3d. at 425. See also Kelley v. Callahan , 133 F.3d 583, 589 (8th Cir. 1998) ("The opinion of a consulting physician who examines a claimant once or not at a ll does not generally c onstitute substantial evidence."). 3

With regard to her hearing loss, Lacroix argues that the ALJ's determination of her RFC did not adequately account for the severity of the loss and the accompanying limits on her abilities. The ALJ found that Lacroix "can understand conversations but should not have a job th at requires excellent hearing." Admin R. at 21. Lacroix asserts that the medical evidence supports an RFC finding that she has "moderate to profound hearing loss, with a commensurate loss in communicative ability due to an inability to discriminate consonants and vowels." Appellant's Br. at 34.

While there is evidence in the record th at Lacroix's hearing loss is more severe than described in the ALJ's RFC determination, there is also evidence in the record that supports the ALJ's determination. As we noted above, "we may not reverse merely because substantial evidence exists for the opposite decision," so long as substantial evidence also supports the ALJ's decision when the record is viewed as a whole. Johnson , 87 F.3d at 1017. We conclude that the ALJ's determination of Lacroix's RFC pertaining to hearing loss is supported by substantial evidence.-13- On September 6, 2002, Dr. Putnam re ported that Lacroix had a moderate degree of hearing difficulty, but observed th at Lacroix could hear him when he used a "slightly above normal tone of voice." Admin. R. at 136. Tests performed by Doctors Tomak and Jones indicated that Lacr oix had moderate to severe hearing loss and poor hearing discrimination, and both doctors recommended that Lacroix wear hearing aids. At the admini strative hearing, Lacroix te stified that she had started wearing a hearing aid in her right ear. She reported that the hearing aid helps her hear, though there are certainenvironments in which she still has trouble hearing. She testified that, with the hearing aid, she could hear her attorney who was sitting about two feet from her. She also noted th at she is good at reading lips. The ALJ was in a position to evaluate Lacroix's heari ng limitations first hand, and there is no indication that Lacroix had difficultyhearing or understanding during the administrative proceeding . In determining Lacroix's RFC, the ALJ appropriately took Lacroix's hearing limitations into account, ev en giving examples of the types of jobs Lacroix could not perform, such as telephoneoperator and waitress. The RFC as it pertains to Lacroix's hearing loss was supported by substantial evidence.

C.

Finally, Lacroix argues, somewhat re dundantly, that the Commissioner failed to meet her burden of producing evidence th at there were jobs available in the national economy for persons with Lacroix's impairments. SeeYoung v. Apfel , 221 F.3d 1065, 1069 n.5 (8th Cir. 2000) ("If the Commissioner determines that, in light of a claimant's RFC, . . . she cannot perfo rm past work, . . . the burden of production shifts to the Commissioner to produce evid ence of jobs available in the national economy that can be performed by a person with the claimant's RFC and vocational skills."). Specifically, Lacroix argues that wh en the VE testified that such jobs were available, the VE was answering a hypothetical question that did not take into account all of Lacroix's impairments. "Testimony based on hypothetical questions that do not encompass all relevant impairments cannot constitute substantial evidence-14- to support the ALJ's decision." Hinchey v. Shalala , 29 F.3d 428, 432 (8th Cir. 1994). According to Lacroix, the hypothetical s hould have included the additional mentally based and hearing-loss limitations discussed above. We disagree.

"The ALJ's hypothetical question to the vocational expert needs to include only those impairments that the ALJ finds are substantially supported by the record as a whole." Id. Moreover, the hypothetical question need not frame the claimant's impairments in the specific diagnostic te rms used in medical reports, but instead should capture the "concrete consequences" of those impairments. Roe v. Chater , 92 F.3d 672, 676–77 (8th Cir. 1996). The ALJ' s hypothetical ques tion included all of Lacroix's limitations found to exist by the ALJ and set forth in the ALJ's description of Lacroix's RFC. As noted above, the AL J's findings of Lacroix's RFC are supported by substantial evidence. The hypothetical question was therefore proper, and the VE's answer constituted substantial ev idence supporting the Commissioner's denial of benefits.

IV.

Our review of the record convinces us that the ALJ's determination is both consistent with the legal standards app licable to Lacroix's case and supported by substantial evidence. A ccordingly, we affirm.

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