* On November 9, 2001, Jo Anne B. Barnhart became the Commissioner of

Social Security. In accordance with Rule 43(c)(2) of the Federal Rules of Appellate Procedure, Ms. Barnhart is substituted fo r Larry G. Massanari as the appellee in this action

** This order and judgment is not binding precedent, e xcept under the doctrines of law of the case, res judicata, and col lateral estoppel.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. 

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

### JUL 9 2002 

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

ANITA WISE,

Plaintiff - Appellant,

v. JO ANNE B. BARNHART, * Commissioner of Social Security Administration,

Defendant - Appellee. No. 01-3222 (D.C. No. 98-CV-4138-RDR) (D. Kansas)

ORDER AND JUDGMENT **

Before SEYMOUR , PORFILIO , 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-2-

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. Claimant Anita Wise appeals an order of the distric t court denying Social Security disability insurance benefits. She applie d for benefits in 1993, which application was denied initially and upon reconside ration. After a hearing, the administrative law judge (ALJ) concluded that she c ould return to her past work as a courtesy clerk/grocery sacker and janitor, denying benefits at step four of the applicable analysis. See Williams v. Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988) (detailing steps). The Appeals Council affirmed the ALJ’s decision and claimant then filed suit in federal court. The dis trict court affirmed the ALJ’s conclusion that claimant was not disabled during th e relevant period. This court has jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and 42 U.S.C. § 405(g). We review the agency’s dec ision on the whole record to determine only whether the factual findings are sup ported by substantial evidence and the correct legal standards were applied. Goatcher v. United States Dep’t of Health & Human Servs. , 52 F.3d 288, 289 (10th Cir. 1995). We may not re weigh the evidence or substitute our judgment for that of the agency. Casias v. Sec’y of Health & Human Servs. , 933 F.2d 799, 800 (10th Cir. 1991). On appeal, claimant first argues that the ALJ ignor ed repeated documentation about her alleged mental limitations, including opinions by1 Contrary to counsel’s assertion, the treating sourc es he discusses in making

this challenge were not psychologists, but therapis ts. The therapists were supervised by psychologists, who signed the therapyreports, but there is no evidence that the doctors ever treated claimant. -3- treating psychologists 1 and consulting psychiatrists and psychologists. C laimant notes that, in response to a hypothetical posed by the ALJ which contained these alleged limitations, the vocational expert opined s he would be unemployable. A review of the ALJ’s opinion leads us to reject th ese arguments. The ALJ properly evaluated claimant’s allegations o f mental limitations. His opinion summarized and discussed all of the med ical evidence regarding claimant’s diagnosed mental conditions and treatment. The ALJ gave specific, legitimate reasons for rejecting the opinions of tw o consulting sources, Dr. Frieman and Dr. Shelton, as inconsistent with the record as a whole, relying in part on the testimony of a medical expert at the he aring and in part on the opinion of another consulting source, Dr. Voth. Based on the consistent medical evidence in the record, and the medical expert’s opinions, t he ALJ filled out a Psychiatric Review Technique Form (PRT), concluding that, altho ugh claimant had an organic mental disorder (specific learning disabili ty) and an affective disorder (depression), those mental conditions did not resul t in limitations that substantially affected her ability to work. Furthe r, the ALJ found claimant’s complaints of mental limitations not wholly credibl e; noting that, in contradiction-4-

to claimant’s testimony that she had problems with people, there was evidence that claimant attended church several times each we ek, did religious visiting, and showed people around a mobile home court managed byher husband. The ALJ’s conclusions in the PRT are supported by substantial evidence in the record. Accordingly, the ALJ was not bound by the VE’s opin ion that claimant was unemployable in answer to a hypothetical question t hat included alleged mental limitations the ALJ concluded did not exist. See Bean v. Chater , 77 F.3d 1210, 1214 (10th Cir. 1995). Claimant asserts that the ALJ failed to make findin gs about the mental demands of her past work, as required by Social Sec urity Ruling 82-62 and applicable case law, specifically Winfrey v. Chater , 92 F.3d 1017 (10th Cir. 1996), and Henrie v. United States Department of Health & Human Services , 13 F.3d 359 (10th Cir. 1993). However, as noted ab ove, the ALJ concluded that claimant’s mental conditions did not significantly impair her ability to work. Because the ALJ is required to make findings “aboutthose work demands which have a bearing on the medically established limitations,” Winfrey , 92 F.3d at 1024 (quoting SSR 82-62), he did not err in failing to i nquire into the mental health demands of claimant’s past work where there were no such limitations. This argument also lacks merit.-5-

Claimant contends that her past employment as a cou rtesy clerk/grocery sacker and janitor does not qualify as past relevan t work because she performed those jobs only part-time. Counsel offers no legal authority for this proposition, and applicable authority leads us to conclude otherwise. “Past relevant work is defined as work that (1) occurred within the past f ifteen years . . . , (2) was of sufficient duration to enable the worker to learn t o do the job . . . , and (3) was substantial gainful employment.” Jozefowicz v. Heckler , 811 F.2d 1352, 1355 (10th Cir. 1987); see also 20 C.F.R. § 303.1565. Substantial gainful employme nt may include part time work. 20 C.F.R. §§ 404.1572( a). Claimant also argues that her past work as she perf ormed it required her to lift fifty pounds, in contradiction to the vocation al expert’s testimony that those jobs were classified at a light exertional level. However, the issue is not whether claimant can return to her actual past job, but to the type of work she performed in the past. See Andrade v. Sec’y of Health & Human Servs. , 985 F.2d 1045, 1051 (10th Cir. 1993). Finally, claimant contends that the vocational expert’s testimony that these jobs were performed at the lig ht exertional level conflicts with the opinion of a state disability examiner and the Dictionary of Occupational Titles. Counsel did not raise these arguments befo re the district court in challenging the agency’s decision, and therefore we decline to address them. See Crow v. Shalala , 40 F.3d 323, 324 (10th Cir. 1994).-6-

Claimant raises the following additional arguments on appeal: 1) the ALJ’s conclusions on the Psychiatric Review Technique Form attached to his opinion were not supported by the record; and 2) the ALJ vi olated the treating physician rule, see Goatcher , 52 F.3d at 289-90, by ignoring reports from treat ing psychologists. We decline to address these arguments because they were not presented to the district court. See Crow , 40 F.3d at 324. Claimant also challenges the district court’s decis ion. She contends that the district court improperly relied on the term “f air” when used by the consulting examiners in evaluating limitations caused by claim ant’s mental conditions. As noted above, the ALJ rejected the reports by Doctor s Frieman and Shelton. Claimant argues that the report by Dr. Voth, cited by the district court, cannot serve as substantial evidence because it was a chec klist. This argument is belied by the record, which contains, in addition to the m edical assessment form filled out by Dr. Voth, a narrative history containing his findings and conclusions about claimant’s mental status. Claimant’s complaint that Dr. Voth’s opinions, based on a single interview, cannot serve as substantial evidence, is meritless. The ALJ’s conclusions did not solely rely on Dr. Voth’s opinions, but on other substantial evidence in the record, as discussed ab ove.-7-

The judgment of the United States District Court fo r the District of Kansas is AFFIRMED.

Entered for the Court

Bobby R. Baldock Circuit Judge