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

Shirley S. Chater, former Commissioner of the Social Security Administration, as

the defendant-appellee in this action. 

** This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions 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, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral
1 Pursuant to 28 U.S.C. § 636(c)(1), the parties consented to proceed before

the magistrate judge. Accordingly, our jurisdiction arises under § 636(c)(3) and

28 U.S.C. § 1291. 

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argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument. 

Plaintiff appeals from an order of the magistrate judge1 affirming the denial

of social security disability benefits at step four of the controlling analysis. See

generally Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988). The

administrative law judge found that degenerative disc disease leaves plaintiff with

a residual functional capacity (RFC) for medium work, limited by depression to

simple tasks not involving the public. Assisted by expert testimony on pertinent

vocational requirements, the ALJ concluded plaintiff could return to past work as

a foundry laborer. We review this decision to determine whether it is supported

by substantial evidence and adheres to applicable legal 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 evidence in several respects. We hold

these objections lack merit and, accordingly, affirm. 

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--a
2 We note this is not a step-five case, where the Commissioner must show the

claimant’s RFC meets the level required for work performance--and where, as a

corollary, the ALJ cannot base a finding of nondisability “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 the claimant.”). Rather, here it is

plaintiff’s burden “to show that h[is] impairment renders h[im] unable to perform

[past] work,” Henrie v. United States Dep’t of Health & 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 laborer.

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fact the ALJ accepted--it does not contradict the dispositive 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 ALJ discounted his

credibility for sufficient reasons adequately explained 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 with R. II at

114, or, as with the Elavil that makes plaintiff sleepy 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 PRT prepared and reaffirmed by

psychological professionals in September 1992 and April 1993, respectively. He
3

In association with this difficulty in concentration, the PRTs acknowledge a

general loss of interest. To the extent this symptom has a bearing on work

capacity, it is properly accounted for in the same manner as the concentration

problem discussed above.

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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 “often” present, a functional

limitation designated “deficiencies of concentration, persistence, or pace resulting

in failure to complete tasks in a timely manner,” id. 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. Specifically, it assumes that the

noted deficiency applies indiscriminately to all occupations, however complex or

simple their demands on the worker--which is implausible 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 breakdown of constituent

work-related deficiencies encompassed within the broad designation quoted

above. Fortunately, the “Mental Residual Functional Capacity Assessment”

(MRFC) accompanying the PRT prepared in this case does just that, specifying
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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 not significantly limited with respect to his ability to

maintain attention and concentration, perform routine or scheduled tasks in

regular and timely fashion without special supervision, work in coordination with

or alongside others, make simple work-related decisions, or, most tellingly,

“complete workday and workweek without interruptions from psychologically

based symptoms and . . . perform at a consistent pace without an unreasonable

number and length of rest periods.” Id. (also noting, consistent with low PRT

assessment on plaintiff’s social functioning, markedly limited ability to interact

appropriately with general public). In light of the elaboration provided by the

MRFC, the ALJ properly confined his consideration of psychological limitations

to simple, nonpublic work.

Plaintiff contends another PRT, prepared after the ALJ’s decision and

submitted to the Appeals Council, sufficiently altered the evidentiary balance that

the case should have been remanded for further consideration by the ALJ. 

However, the Appeals Council discounted the new PRT because the preparing

physician “did not provide sufficient objective documentation to support his

findings,” and, accordingly, affirmed the denial of benefits on the basis of the
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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 challenge, the stated basis for the

Appeals Council’s determination. We discern no exceptional circumstances

compelling our sua sponte reconsideration of the matter. See Berna, 101 F.3d at

632-633 (following appellate waiver rule recognized in Murrell v. Shalala, 43

F.3d 1388, 1389-90 (10th Cir. 1994)). 

Finally, plaintiff objects that the ALJ did not question the vocational expert

specifically about the significance of his scores on “global assessment of

functioning” indices. The ALJ properly left the interpretation and evaluation of

such psychological data to the psychological professionals. 

The judgment of the district court is AFFIRMED.

Entered for the Court

Mary Beck Briscoe 

Circuit Judge