* This order and judgment is not binding precedent, e xcept under the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

1 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); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 18 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

LAWANA R. MILLER,

Plaintiff-Appellant,

v. KENNETH S. APFEL, Commissioner of Social Security Administration,

Defendant-Appellee. No. 98-7038 (D.C. No. 96-CV-573-B) (E.D. Okla.)

ORDER AND JUDGMENT *

Before BRORBY , BRISCOE , and LUCERO , Circuit Judges.

This case is before us on review of the district co urt’s affirmance of the Commissioner’s denial of benefits. 1 We first review the many steps the case has taken en route here.-2-

Plaintiff applied for disability benefits on Decemb er 5, 1990, alleging disability because of mental problems and back pain . Her application was denied initially and upon reconsideration. Plaintiff requ ested a hearing before an administrative law judge (ALJ), and he, too, deniedbenefits. The Appeals Council denied review, and plaintiff appealed to th e United States District Court. The district court reversed the Commissioner’s fina l decision and remanded to the Commissioner for further proceedings. The ALJ held two more supplemental hearings and again denied benefits at step five of the sequential analysis, see Williams v. Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988), finding th at plaintiff had the residual functional capacity to perform a w ide range of light and sedentary jobs. The Appeals Council issued a lette r of conclusion on September 4, 1996, stating that the regulations pro vided no basis for it to assume jurisdiction. Thus, the ALJ’s August 15, 1995 deni al of benefits became the final decision of the Commissioner. Plaintiff again appe aled to the district court. A magistrate judge recommended that the Commissione r’s decision denying benefits be affirmed. The district court adopted the magistrate judge’s findings and recommendations, thereby affirming the Commissi oner’s decision. Plaintiff appeals. Plaintiff presents three arguments: (1) the ALJ ei ther ignored or failed to demonstrate that he properly considered much of the record evidence, and the2 The ALJ incorporated by reference all the testimonyand documented

evidence presented at the first administrative hear ing into his decision following the second hearing. See Appellant’s App., Vol. II at 210. -3- record does not contain substantial evidence supporting his finding that plaintiff retained the capacity to perform the exertional dem ands of light work; (2) the record does not contain substantial evidence in sup port of the ALJ’s findings concerning the severity of plaintiff’s mental impai rment for the period of time between 1990 and 1994; and (3) the vocational testi mony does not support the ALJ’s finding at step five. Like the district court, we review the record to determine whether it contains substantial evidence to support the ALJ’s findings and decision that plaintiff is not entitled to disability benefits. See James v. Chater , 96 F.3d 1341, 1342 (10th Cir. 1996). Substantial evidence is more than a scintilla; it is “such relevant evidence as a rea sonable mind might accept as adequate to support a conclusion.” Richardson v. Perales , 402 U.S. 389, 401 (1971). We also review the record to assure that the ALJ applied the correct legal standards. See James , 96 F.3d at 1342. Guided by these standards, we a ffirm. On August 15, 1995, 2the ALJ found that the medical evidence establishe d plaintiff’s scoliosis. The condition was character ized as moderate in severity with intermittent signs of neuroclaudication. Lifting w as limited to no more than 25 pounds with the right arm, and sweeping movement an d overhead activity on the right side was proscribed. The medical opinions es tablished that plaintiff’s stable-4-

scoliosis was not a source of plaintiff’s alleged p ain, concluding instead the pain was most probably secondary to muscle tenderness. In his evaluation pursuant
to Luna v. Bowen , 834 F.2d 161 (10th Cir. 1987), the ALJ found plai ntiff’s allegations of pain not credible. He cited the lac k of objective medical evidence to support the complaints, irregular medical treatm ent, lack of significant medical restrictions on activities, and response to medicat ions. Considering this evidence, the ALJ found that plaintiff’s subjective complaint s about this nonexertional limitation had no significant impact on plaintiff’s ability to perform a wide range of light and sedentary jobs. We find substantial e vidence in the record supporting these findings. The ALJ found that plaintiff did not have a severe mental impairment that continued after December 12, 1994. The consultativ e mental exam showed plaintiff should be able to sustain productivity inwork. Plaintiff was off prescription medication, she was attending college and receiving good grades, she reported feeling well, and she had completed he r out-patient mental health treatment with a good prognosis. The record contai ns substantial evidence to support these findings. The record contains substantial evidence, as well, that supports the findings that plaintiff had no nonexertional impairment after December 12, 1994; the ALJ correctly applied the Me dical Vocational Guidelines (grids) to determine that plaintiff was not disable d.-5-

Regarding the period between 1990 and 1994, when pl aintiff did have a severe mental impairment, the ALJ found that ment al condition limited her residual functional capacity during that time b ecause it required that she avoid extremely stressful situations. The hypothetical p osed to the vocational expert at the second hearing properly reflected the following limitations supported by the medical and other documented evidence: “limited to light or sedentary work. Requires a sit/stand option at 15 to 20 minute inte rvals. Must avoid extremely stressful situations. . . . [N]o working overhead. No sweeping. No exposure to the general public. . . . [N]o repetitive bending, twisting or stooping. . . . [C]apable of understanding, remembering and carryin g out simple instructions.” Appellant’s App. at 271-72. The record contains su bstantial evidence that supports the ALJ’s hypothetical question to the voc ational expert. We also find substantial evidence supporting the AL J’s determination that plaintiff could perform a wide range of light and s edentary work available in significant numbers in the national economy conside ring her exertional and nonexertional impairments. See Kepler v. Chater , 68 F.3d 387, 392 (10th Cir. 1995) (ALJ’s questions to vocational expert proper where questions addressed only impairments ALJ found to be supported by subst antial evidence). The fact that the vocational expert testimony was obtained b efore Dr. McGovern’s consultative physical exam does not render the expe rt’s testimony improper.-6-

Plaintiff does not suggest that Dr. McGovern’s cons ultative opinion conflicted with the medical evidence already in the record, an d, as noted, the record contains substantial evidence to support the ALJ’s questioni ng of the expert. Contrary to plaintiff’s assertion, the ALJ compliedwith the requirements of assessing plaintiff’s residual functional capaci ty in light of her severe mental impairment. See Washington v. Shalala , 37 F.3d 1437, 1440 (10th Cir. 1994). Finally, we are satisfied that the ALJ properly con sidered all the record evidence in reaching his decision; he discussed the evidence upon which he relied; he is not required to discuss every piece of evidence. See Clifton v. Chater , 79 F.3d 1007, 1009-10 (10th Cir. 1996).
AFFIRMED.

Entered for the Court

Carlos F. Lucero Circuit Judge