UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

KITTY S. LULL, Plaintiff-Appellant,

v. CAROLYN W. COLVIN, Acting Commissioner, Social Security Administration, * Defendant-Appellee. No. 13-5017 (D.C. No. 4:11-CV-00403-PJC) (N.D. Okla.)

ORDER AND JUDGMENT **

Before BRISCOE , Chief Judge, ANDERSON , Circuit Judge, and BRORBY , Senior Circuit Judge.
Kitty S. Lull appeals from a district court order, i ssued by a magistrate judge under 28 U.S.C. § 636(c), affirming the Co mmissioner’s decision to deny her claims

* In accordance with Rule 43( c)(2) of the Federal Rules of Appellate Procedure, Carolyn W. Colvin is substituted for Michae l J. Astrue as the defendant-appellee in this action.

** After examining the briefs and appella te record, this pa nel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 a nd 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### September 11, 2013
Elisabeth A. Shumaker Clerk of Court- 2 - for social security disability and supplemental security inco me benefits. We exercise jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g) and affirm. 1
I. BACKGROUND Ms. Lull alleges disability since Ma rch 21, 2008, due to depression, post-traumatic stress disorder, hypertension, diabetes mellitus, gastroesophageal reflux disease, irritable bowel syndrome, a r uptured disc in her lower back, bilateral shoulder problems, a crush injury of the left foot, and heel spurs. The magistrate judge thoroughly described th e medical and psychological evidence; accordingly, we need not do so here. We discuss below th e evidence pertinent to the issues presented for our review. Ms. Lull requested and received a heari ng before an administrative law judge (ALJ) at which she was represented by coun sel. Ms. Lull and a vocational expert (VE) testified. The ALJ determined that Ms. Lull could not perform her past relevant work, but she could perform other work that existed in substantial numbers in the national economy. The ALJ found that Ms . Lull had the residual functional capacity (RFC) to perform light work as defined in the applicable regulations, “limited by no repetitious interaction with the general public or coworker s, and confined to simple, uncomplicated tasks with routine superv ision.” Aplt. App. Vol. 2 at 16. Consequently, he denied benefits at st ep five of the five-step sequence for

1 Counsel are reminded of the appellant ’s obligation to attach to the opening brief copies of the ALJ’s decision, the Ap peals Council’s decision, and the district court’s order. 10th Cir. R. 28.2(A)(1) & (3).- 3 - determining disability. See Wall v. Astrue , 561 F.3d 1048, 1052 (10th Cir. 2009) (summarizing steps). The Appeals Council denied review and the district court affirmed.
II. ANALYSIS “We independently review the Commissi oner’s decision to determine whether it is free from legal error and supporte d by substantial evidence . . . .” Krauser v.
Astrue , 638 F.3d 1324, 1326 (10th Cir. 2011). Ms. Lull advances two arguments on appeal. 2 First, she contends that the AL J failed to properly consider the medical-source evidence by disregarding an opi nion that she coul d sit for less than six hours in an eight-hour work day and by failing to account for inconsistencies in the psychological evaluation forms. Second, Ms. Lull argues that the ALJ disregarded the testimony of the VE. Medical-source evidence Brian Boggs, M.D., completed a P hysical Residual Functional Capacity Assessment form on which he indicated that Ms. Lull could “sit (with normal breaks) for a total of less than about 6 hours in an 8-hour workday.” Aplt. App. Vol. 3 at 404. Ms. Lull therefore argue s that she cannot perform li ght work because light work requires “sitting most of the time,” 20 C.F. R. §§ 404.1567(b), 4 16.967(b) (defining “light” work). But the VE testified that of the three “light” j obs she identified as

2 Ms. Lull’s opening brief lists three appe llate issues, but in her reply brief, she has withdrawn the third issue, as well as several pages of irrelevant material under the second issue.- 4 - appropriate for Ms. Lull, only one—office help er—required significant sitting. The other two jobs—merchandise marker (over one million in the national economy) and laundry classifier (506,000 in the nati onal economy)—would require “standing for typically longer periods [tha n] sitting [or] changing positi ons or lifting,” Aplt. App. Vol. 2 at 58. Ms. Lull does not challenge the VE’s evidence that the number of jobs for the two non-sitting classifications exis t in significant numbers in the national economy. Accordingly, the sitting limitatio n indicated by Dr. Boggs did not affect the ALJ’s determination at step five that Ms. Lull had the RFC to perform a significant number of j obs that existed in the national economy. Next, Ms. Lull asserts that the ALJ failed to account for the inconsistencies in the state agency reviewers’ opinions concerning her abilit ies to maintain concentration, persistence, or pace. Two parts of the psyc hological evaluation documents form the basis of this argument: the Psychiatric Review Technique (PRT) and the Mental Residual Functional Capacity Assessment (MRFCA). On the PRT, Ms. Lull’s ability to maintain concentration, persistence, or pace was indicated as “moderate,” Aplt. App. Vol. 3 at 382, wh ile on the MRFCA, several abilities were indicated as “markedly limite d:” “[t]he ability to unde rstand and remember detailed instructions, . . . [t]h e ability to carry out detailed in structions, [and] [t]he ability to interact appropriately w ith the general public,” id. at 386-87. Ms. Lull’s other abilities on the MRFCA were listed as “ not significantly limited,” including her “ability to maintain attention and concentrati on for extended periods.” Id. at 386.- 5 - Although Ms. Lull concedes that “the PRT form and the MRFCA form are two different forms for two different purposes,” she argues that the “l imitations should be the same on each form.” Ap lt. Opening Br. at 20. The PRT is used to assess mental impairments for purpos es of steps two (identifying severe impairme nts) and three (rating seve rity for the listings). See generally 20 C.F.R. §§ 404.1520a, 416.920a. It addresses the B and C criteria of the listings for mental impairment s, using four categories of limitation stated in the B criteria: restriction of act ivities of daily living; diffi culties in mainta ining social functioning; difficulties in maintaining c oncentration, persiste nce, or pace; and episodes of decompensation. See Aplt. App. Vol. 3 at 382. The MRFCA, on the other hand, addresse s twenty specific mental functions relevant to the vocational determinati ons required at steps four and five. See id. at 386-87. The adjudicator must re member that the limita tions identified in the “paragraph B” and “paragraph C” cr iteria are not an RFC assessment but are used to rate the severity of mental impairment(s ) at steps 2 and 3 of the sequential evaluation process. The mental RFC assessment used at steps 4 and 5 of the sequential evaluation process requires a more detailed assessment by itemizing va rious functions contained in the broad categories found in paragraphs B and C of the adult mental disorders listings . . . and summarized on the [PRT]. SSR 96-8p, 1996 WL 374184, at *4 (July 2, 1996). Therefore, the PRT has overall ratings for various categories, including maintaining concen tration, persistence, or pace, while the MRFCA has more focused categories for use in determining RFC.- 6 - Both the PRT and the MRFCA were co mpleted by the same medical source on the same date. Further, the medical sour ce opined in the MRFCA that Ms. Lull could “perform simple tasks with routine supervision[,] rela te to supervisors and peers on a superficial work basis, [and] adapt to a work situation, [ but could] not relate to the general public.” Aplt. App. Vol. 3 at 388. The ALJ’s RFC determination included the limitations in the MRFC A assessment. Ms. Lull’s cl aim that the ALJ erred in using the MRFCA because it was inconsistent with the PRT is without merit. Vocational expert’s testimony Ms. Lull also contends th at the ALJ erred at step five by failing to consider relevant VE testimony. She asserts that the ALJ disregarded th e VE’s testimony that her moderate limitations in social functioni ng and concentration, pe rsistence, or pace rendered her unable to work and therefore di sabled within the m eaning of the Social Security Act. She cites to the VE’s testimony th at a person who could not concentrate for 15 percent of the day would have significant problem s, and that if the person could not concentrate for 20 percent of the workday, she could not work at all. Relying on a chart in a non-agency ha ndbook, Ms. Lull then argues that her “moderate” impairment in concentration, persistence, or pace translates to an inability to concentrate 17 to 32 percent of the time. We decline to rely on a chart, provided without context, from a disability manual apparently published by a private institution rather than by the Soci al Security Administration. Cf. Via Christi Reg’l- 7 - Med. Ctr. v. Leavitt , 509 F.3d 1259, 1272 ( 10th Cir. 2007) (no ting that agency’s informal interpretations of an ambi guous regulation merit deference). More to the point, we have determined above that the “moderate” limitation on which Ms. Lull relies was rele vant to steps two and three, not step five. The ALJ’s hypothetical question posed to the VE was c onsistent with the lim itations found in the MRFCA, and the question was properly pa rt of the step-five determination. See
Krauser , 638 F.3d at 1333 (stating that the analysis at step five may include questioning the VE about jobs in the national economy that the claimant can perform). “[T]he ALJ’s hypothe tical [question] adequately reflected the impairments and limitations that were borne out by the evidentiary record.” Newbold v. Colvin , 718 F.3d 1257, 1268 (10th Ci r. 2013) (brackets and internal quotation marks omitted).
III. CONCLUSION The judgment of the dist rict court is affirmed.

Entered for the Court
Wade Brorby Senior Circuit Judge