* Effective March 31, 1995, the functions of the Secr etary of Health and

Human Services in social security cases were transf erred to the Commissioner of Social Security. P.L. No. 103-296. Pursuant to Fe d. R. App. Proc. 43(c), Shirley S. Chater, Commissioner of Social Security, is subs tituted for Donna E. Shalala, Secretary of Health and Human Services, as the defe ndant in this action. Although we have substituted the Commissioner for the Secretary in the caption, in the text we continue to refer to the Secretary b ecause she was the appropriate party at the time of the underlying decision.

** This order and judgment is not binding precedent, e xcept under the doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

UNITED STATES COURT OF APPEALS Filed 10/28/96 FOR THE TENTH CIRCUIT

CECIL E. HICKS,

Plaintiff-Appellant,

v. SHIRLEY S. CHATER, Commissioner, Social Security Administration, *

Defendant-Appellee. No. 95-7151 (D.C. No. CV-94-506-S) (E.D. Okla.)

ORDER AND JUDGMENT ***** Honorable Ruggero J. Aldisert, Senior Circuit Judge , United States Court

of Appeals for the Third Circuit, sitting by design ation. -2- Before TACHA, ALDISERT, *** and BALDOCK, Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. Th e case is therefore ordered submitted without oral argument. Claimant Cecil E. Hicks appeals the district court’ s order affirming the decision of the Secretary of Health and Human Servi ces denying his applications for social security disability insurance and supple mental security income benefits. We exercise jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291 and affirm. Claimant’s applications were denied initially and o n reconsideration. Following a hearing, the administrative law judge ( ALJ) concluded the analysis at step four of the five-step evaluation sequence, see Williams v. Bowen , 844 F.2d 748, 750-51 (10th Cir. 1988)(discussing the five st eps in detail), determining that claimant had the residual functional capacity to re turn to his past relevant work as a janitor, grounds keeper, dishwasher, trash collec tor, packer, and grocery sacker. In addition, the ALJ determined that claimant’s imp airments did not prevent him-3-

from continuing with his employment as a toy assemb ler in a sheltered workshop. The Appeals Council accepted review, completed and appended a Psychiatric Review Technique form, and affirmed the ALJ’s decis ion. The district court adopted the findings and recommendation of the magi strate judge affirming the decision of the Secretary, claimant appeals, and we affirm. At step four, claimant bears the burden of establis hing that he is unable to return to his past relevant work. See Nielson v. Sullivan , 992 F.2d 1118, 1120 (10th Cir. 1993). We review the Secretary’s decisi on to determine whether the factual findings are supported by substantial evide nce and whether correct legal standards were applied. Castellano v. Secretary of Health & Human Servs. , 26 F.3d 1027, 1028 (10th Cir. 1994). Claimant is a thirty-year-old man with a high schoo l education in special education classes. At the time of the hearing, he was employed in a sheltered workshop assembling toys. Claimant alleged that he is unable to work in the competitive workplace because of his limited intell igence, inability to understand and follow directions, short attention span, and in ability to control his frustration and temper. At the hearing, claimant also complain ed of hip pain. The ALJ found that claimant was impaired by borderl ine intellectual functioning which was severe enough to impact claim ant’s ability to work. The ALJ further found, however, that claimant’s impairm ents did not prevent him1 This issue was not raised and ruled on in the distr ict court. Because there

are no “compelling reasons” to consider this waivedargument on appeal, we decline to do so. See Crow v. Shalala , 40 F.3d 323, 324 (10th Cir. 1994).

-4- from performing his past work and a full range of u nskilled, light to medium work, subject to his borderline intellectual functi oning. On appeal, claimant specifically argues that (1) th e ALJ erred in finding that claimant’s impairment does not meet the listin g of § 12.05; (2) the consultative testing relied on by the ALJ was incomplete and not supported by substantial evidence; 1 (3) the ALJ erred in not completing a Psychiatric Review Technique form; (4) the ALJ failed to develop the r ecord as to the particular demands of claimant’s past relevant work, and claim ant’s ability to meet those demands; and (5) the ALJ relied on the testimony of a vocational expert which was not based on a hypothetical question containing all of claimant’s true impairments. Claimant’s main argument is that the ALJ’s determin ation that his mental impairments did not meet listing § 12.05C of 20 C.F .R. Pt. 404, Subpt. P, App.1 is not supported by substantial evidence. To meet the listing, a claimant must have “[a] valid verbal, performance, or full scale IQ of 60 through 70 anda physical or other mental impairment,” § 12.05C (emp hasis added), which imposes-5-

“additional and significant work-related limitationof function,” Ellison v. Sullivan , 929 F.2d 534, 536 (10th Cir. 1990). Upon admission to work in the sheltered workshop, c laimant was tested by Dr. Roy T. Maxwell who ascertained claimant had a v erbal IQ of 68, a performance IQ of 79, and a full scale IQ of betwee n 68-76. R. Vol. II at 176. At the request of the Secretary, claimant was tested b y Dr. Randy L. Crittenden who ascertained that claimant had a verbal IQ of 74, a performance IQ of 84, and a full scale IQ of 76. Id. at 160. Claimant’s lowest score, a verbal IQ of 6 8 obtained by Dr. Maxwell’s testing, falls within the qualifying range. However, even if the ALJ had favored Dr. Maxwell’s results o ver those of Dr. Crittenden, as claimant asserts he should have, claimant fails to satisfy the second prong of the § 12.05C test, by showing an additional and sig nificant physical or mental impairment. See Ellison , 929 F.2d at 536. Although claimant testified that he had hip pain, h is subjective complaints were not supported by objective medical evidence, and after considering claimant’s complaints under Luna v. Bowen , 834 F.2d 161, 165 (10th Cir. 1987) and Soc. Sec. R. 88-13, the ALJ concluded that clai mant’s allegations of pain were not credible. This conclusion is supported bythe record. At the hearing, claimant testified that he was unab le to lift because of an injury to his shoulder in 1989, when he was hit with a baseball bat. In April-6-

1990, Dr. Wayne Flatt noted a “mild deformity” in c laimant’s shoulder which he opined was most likely “a projectional phenomenon.” R. Vol. II at 152. The record, however, is void of any indication that cla imant’s shoulder injury would prevent him from engaging in the light to medium wo rk activities the ALJ found him capable of performing. Insofar as claimant attempts to assert that the ALJ should have considered illiteracy as an additional limiting impairment, th e record is lacking in any indication that claimant asserted illiteracy as an impairment impacting his ability to work. Accordingly, even if claimant’s IQ fell i n the 60 to 70 range, claimant has no other physical or mental impairment which wo uld serve to satisfy the listing. See § 12.05C. Although 20 C.F.R. § 416.920a(d) directs the ALJ to complete a Psychiatric Review Technique form at the hearing stage, we agre e with the district court that the ALJ’s failure to do so here did not prejudice c laimant. The Appeals Council notified claimant of its intent to complete and app end a Psychiatric Review Technique form to the decision, giving claimant twe nty days to comment. R. Vol. II at 7. The Appeals Council noted that claimant f ailed to respond. Id. The Appeals Council completed the form in accordance wi th the ALJ’s findings. Id. at 8. Therefore, claimant was not prejudiced by th e omission, and there is no error. See, e.g. , Bernal v. Bowen , 851 F.2d 297, 302 (10th Cir. 1988)(no error-7-

exists where claimant not prejudiced by ALJ’s failu re to have mental health professional assist in completing the form). Moreo ver, the record contains an additional Psychiatric Review Technique form comple ted by C.M. Kampschaefer, Ph.D. R. Vol. II at 135-46. Claimant contends that the ALJ erred in his step-fo ur analysis by not comparing the requirements and demands of claimant’ s prior jobs to his limitations. See Henrie v. United States Dep’t of Health & Human Se rvs. , 13 F.3d 359, 361 (10th Cir. 1993)(ALJ has duty to cons ider the claimant’s residual functional capacity in relation to the physical andmental demands of claimant’s past work). Specifically, claimant asserts that th e ALJ failed to consider that claimant’s inability to follow orders and understan d directions prevents him from holding a competitive job on a sustained basis. Th e record belies this contention. The ALJ thoroughly considered the findings of Dr. C rittenden that claimant’s “[a]ttention span, concentration and cap acity to understand instructions was quite good,” and that he appeared friendly, coo perative, and showed no signs of anxiety or tension. R. Vol. II at 158. In addi tion, the evaluation done by the sheltered workshop director indicates that claimantwas capable of working with only limited supervision after receiving one-step i nstructions; had satisfactory interaction with his supervisor and coworkers; had satisfactory responses to pressure; was able to deal normally with changes inwork routine; and required-8-

minimal supervision throughout the day. Id. at 147. Therefore, contrary to claimant’s assertion, the record substantially supp orts the ALJ’s determination that claimant’s ability to do his past relevant work was not limited by an inability to follow orders and understand directions. The ALJ found that claimant did not have a physical impairment which would limit his ability to work and therefore was c apable of performing a full range of light and medium, unskilled work, limited only by his borderline intellect. See id. at 34. The ALJ found, however, that this limitati on did not prevent claimant from performing the entry grade le vel tasks involved in his past relevant work, including his work assembling toys i n the sheltered workshop, a job claimant has held successfully since 1992. See 20 C.F.R. § 404.1573(c)(providing that work done in a shelter ed workshop may show a claimant possesses “the necessary skills and ability to work at the substantial gainful activity level”). Accordingly, contrary to claimant’s assertion, the ALJ adequately developed the record and made the requis ite findings regarding claimant’s ability to do his past relevant work con sidering his limitations. Lastly, claimant contends that the ALJ erred in re lying on the testimony of a vocational expert based on a hypothetical questio n which did not contain all of claimant’s impairments. In a step-four determinati on, the ALJ is not required to obtain the testimony of a vocational expert. See Glenn v. Shalala , 21 F.3d 983,-9-

988 (10th Cir. 1994). Here, the ALJ obtained the t estimony of a vocational expert, but only relied on the expert’s testimony t o show that claimant could perform a significant number of other jobs existing in the national economy, a step-five determination. R. Vol. II at 33. Becaus e the ALJ ultimately decided this case at step-four, and did not make an alternate step-five determination, he did not improperly rely on the testimony of the voc ational expert. Contrary to claimant’s assertions, our review of th e record indicates that the ALJ properly and adequately considered and eval uated his mental impairment. He determined that claimant’s mental impairment didnot prevent him from performing his former work activities, and stated the reasons for his decision. We conclude that substantial evidence supports the Sec retary’s decision to deny claimant’s applications for disability benefits. The judgment of the United States District Court fo r the Eastern District of Oklahoma is AFFIRMED.

Entered for the Court

Deanell Reece Tacha Circuit Judge