* Pursuant to Fed. R. App. P. 43(c), Kenneth S. Apfel is substituted for

Shirley S. Chater, former Commissioner of the Socia l Security Administration, as the defendant-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** This order and judgment is not binding precedent, e xcept under the doctrines of law of the case, res judicata, and col lateral estoppel.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 

### DEC 11 1997 

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

MICHAEL BLACK,

Plaintiff-Appellant,

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

Defendant-Appellee. No. 97-5044 (D.C. No. 95-CV-633-M) (N.D. Okla.)

ORDER AND JUDGMENT **

Before KELLY, McKAY, and BRISCOE, 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 oral1 Pursuant to 28 U.S.C. § 636(c)(1), the parties cons ented to proceed before

the magistrate judge. Accordingly, our jurisdictio n arises under § 636(c)(3) and 28 U.S.C. § 1291. -2- argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Plaintiff appeals from an order of the magistrate j udge 1 affirming the denial of social security disability benefits at step fourof the controlling analysis. See generallyWilliams v. Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988). The administrative law judge found that degenerative di sc disease leaves plaintiff with a residual functional capacity (RFC) for medium work, limited by depression to simple tasks not involving the public. Assisted byexpert testimony on pertinent vocational requirements, the ALJ concluded plaintif f could return to past work as a foundry laborer. We review this decision to dete rmine whether it is supported by substantial evidence and adheres to applicable l egal standards. See Berna v. Chater , 101 F.3d 631, 632 (10th Cir. 1996). The scope of our review, however, is limited to the issues properly preserved and presented on appeal. See id. Plaintiff challenges the sufficiency of the evidenc e in several respects. We hold these objections lack merit and, accordingly, affir m. Citing medical records and his own testimony, plaintiff disputes the ALJ’s finding that he can satisfy the lifting demands of medium work. However, the medical evidence establishes only the existence of degenerative disc disease--a2 We note this is not a step-five case, where the Com missioner must show the

claimant’s RFC meets the level required for work pe rformance--and where, as a corollary, the ALJ cannot base a finding of nondisa bility “on the absence of contraindication in the medical records.” Thompson v. Sullivan , 987 F.2d 1482, 1491 (10th Cir. 1993) (“The ALJ’s reliance on [the absence of evidence] effectively shifts the [step-five] burden back to t he claimant.”). Rather, here it is plaintiff’s burden “to show that h[is] impairment r enders h[im] unable to perform [past] work,” Henrie v. United States Dep’t of Heal th & Human Servs. , 13 F.3d 359, 360 (10th Cir. 1993), i.e., to establish that his RFC is below the medium level required by his past work as a foundry labore r. -3- fact the ALJ accepted--it does not contradict the d ispositive conclusion that plaintiff’s consequent limitations are, at present, consistent with the ability to do medium work. 2 As for plaintiff’s assertions of back pain, the A LJ discounted his credibility for sufficient reasons adequately expla ined in his decision, see R. II at 20-21, to which we therefore defer. See Kepler v. Chater , 68 F.3d 387, 391 (10th Cir. 1995). Plaintiff’s associated objection that the ALJ incorrectly found no medicinal side effects is unsubstantiated; from the record, it appears that the cited medications are either no longer used, compare Appellant’s Br. at 28 withR. II at 114, or, as with the Elavil that makes plaintiff sl eepy at bedtime when he takes it,

see id. at 299, vocationally innocuous. We also see no reason to disturb the ALJ’s findings regarding plaintiff’s mental impairment. The ALJ completed a Psychiatric Review Technique (PRT) consistent with the record, in particular with a PR T prepared and reaffirmed by psychological professionals in September 1992 and April 1993, respectively. He3 In association with this difficulty in concentratio n, the PRTs acknowledge a

general loss of interest. To the extent this sympt om has a bearing on work capacity, it is properly accounted for in the same manner as the concentration problem discussed above. -4- then determined, through expert vocational testimony, that plaintiff’s past work as a foundry laborer would accommodate his identified need for simple tasks and isolation from the general public. Plaintiff notes these PRTs also recognized, as “oft en” present, a functional limitation designated “deficiencies of concentratio n, persistence, or pace resulting in failure to complete tasks in a timely manner,” i d. at 26, 77, and contends this inability to complete assigned tasks punctually is a significant impediment not accounted for by the ALJ. 3 Though facially compelling, this argument relies on a tacit assumption unsupported by the record. Specif ically, it assumes that the noted deficiency applies indiscriminately to all oc cupations, however complex or simple their demands on the worker--which is implau sible as a matter of common experience and, more importantly, inconsistent with the opinions of the same professionals who completed the operative PRT. The PRT form does not provide an informative breakd own of constituent work-related deficiencies encompassed within the br oad designation quoted above. Fortunately, the “Mental Residual Functiona l Capacity Assessment” (MRFC) accompanying the PRT prepared in this case d oes just that, specifying-5-

eight factors relating to “sustained concentration and persistence.” Id. at 66-67. This MRFC indicates that plaintiff’s only (moderate ) limitation in this regard is the ability to carry out detailed instructions. Id

. So long as the work remains fairly simple, plaintiff is notsignificantly limited with respect to his ability to maintain attention and concentration, perform routi ne or scheduled tasks in regular and timely fashion without special supervis ion, work in coordination with or alongside others, make simple work-related decis ions, or, most tellingly, “complete workday and workweek without interruption s from psychologically based symptoms and . . . perform at a consistent pa ce without an unreasonable number and length of rest periods.” Id. (also noting, consistent with low PRT assessment on plaintiff’s social functioning, marke dly limited ability to interact appropriately with general public). In light of th e elaboration provided by the MRFC, the ALJ properly confined his consideration o f psychological limitations to simple, nonpublic work. Plaintiff contends another PRT, prepared after the ALJ’s decision and submitted to the Appeals Council, sufficiently alte red the evidentiary balance that the case should have been remanded for further cons ideration by the ALJ. However, the Appeals Council discounted the new PRT because the preparing physician “did not provide sufficient objective doc umentation to support his findings,” and, accordingly, affirmed the denial of benefits on the basis of the-6-

existing record assessed by the ALJ. Id. at 6. Plaintiff, who misstates that the Appeals Council “ assented to [the new] P.R.T. in that the Appeals Council did not prepare it’s [sic] own P.R.T. form,” Appellant’ s Br. at 35 (emphasis added), fails to acknowledge, much less specifically challe nge, the stated basis for the Appeals Council’s determination. We discern no exc eptional circumstances compelling our sua sponte reconsideration of the matter. See Berna , 101 F.3d at 632-633 (following appellate waiver rule recognizedin Murrell v. Shalala , 43 F.3d 1388, 1389-90 (10th Cir. 1994)). Finally, plaintiff objects that the ALJ did not que stion the vocational expert specifically about the significance of his scores o n “global assessment of functioning” indices. The ALJ properly left the in terpretation and evaluation of such psychological data to the psychological profes sionals. The judgment of the district court is AFFIRMED.

Entered for the Court

Mary Beck Briscoe Circuit Judge