UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

CHERYL ALVEY, Plaintiff-Appellant,

v. CAROLYN W. COLVIN, Acting Commissioner of Social Security Administration, * Defendant-Appellee. No. 12-5200 (D.C. No. 4:11-CV-00151-TCK-TLW) (N.D. Okla.)

ORDER AND JUDGMENT **

Before HARTZ , Circuit Judge, BRORBY , Senior Circuit Judge, and EBEL , Circuit Judge.
Cheryl Alvey appeals the denial of her applications for a period of disability, disability benefits, and suppl emental security income at step four of the five-step

* 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel.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 

### August 28, 2013
Elisabeth A. Shumaker Clerk of Court- 2 - sequential disability evaluation proces s. She argues that even though the administrative law judge (A LJ) recognized at step tw o that she suffers from medically determinable mental impairments, he did not properly apply the procedure at step four for determining whether she can perform her pa st relevant work (PRW). See Winfrey v. Chater , 92 F.3d 1017, 1023-26 (10t h Cir. 1996). Exercising jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g), we affirm. Although the ALJ erred at step four in analyzing the functional limitations resulting from Ms. Alvey’s mental impairment s, the error was harmless. At step two the ALJ found that Ms. Al vey had the severe physical impairments of “fracture of left ankle with residua ls and mild degene rative arthritis and spondylosis of the cervical spin e.” Aplt. App. Vol. II at 62. He also recognized that she suffered from depression and anxiety, but he concluded that those impairments did “not cause more than minimal limitation in the claimant’s abi lity to perform basic work activities.” Id. at 63. Consistent with a Ps ychiatric Review Technique (PRT) form in the record, th e ALJ, in evaluating the four br oad functional areas, found only mild limitations in daily living, in so cial functioning, and in concentration, persistence, and pace, and he found that Ms. Alvey had experienced no episodes of decompensation. Thus, the ALJ conclude d that the mental impairments were

nonsevere. See 20 C.F.R. §§ 404.1520a(d)(1), 416. 920a(d)(1) (mental impairments imposing mild limitations generally are deem ed nonsevere). He then stated, “[T]he- 3 - following residual functional cap acity assessment reflects the degree of limitation the undersigned has found.” Aplt. App. Vol. II at 64. When he reached step four, the AL J assessed Ms. Alvey with the residual functional capacity (RFC) to perform the fu ll range of sedentary work. He did not include any mental limitations in the RF C, nor did he explain why he was not including any such limitations. Base d on the testimony of Ms. Alvey and a vocational expert (VE), the ALJ determined that Ms. Alvey could perform her PRW as a customer service repres entative and buyer assistant in electronics as she actually had performed it, and therefore she was not disabled. The Appeals Council denied review and the district court affirmed. “We review the Commissioner’s deci sion to determine whether the ALJ’s factual findings are supported by substantial evidence in the record and whether the correct legal standards were applied.” Keyes-Zachary v. Astrue , 695 F.3d 1156, 1161 (10th Cir. 2012) (int ernal quotation marks omitted). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (internal quotation marks omitted). Winfrey set forth a three-part framework for establishing whether a claimant can return to her PRW. Fi rst, the ALJ must evaluate the claimant’s physical and mental RFC. See 92 F.3d at 1023. Second, “the ALJ must make findings regarding the physical and mental demands of the claimant’s past relevant work.” Id. at 1024. Finally, the ALJ must compare the claimant ’s RFC to the demands of her PRW to- 4 - determine whether she can st ill perform such work. See id. at 1023, 1024-25. “At each of these phases, the ALJ mu st make specific findings.” Id. at 1023. Ms. Alvey does not contend that the AL J erred at step two in assessing her mental impairments as nonsever e. Instead, she argues that at step four the ALJ did not comply with Winfrey because he did not include a ny mental limitations in her RFC and did not make any fi ndings about the mental requi rements of her PRW. This court very recently discussed the requirements for analyzing nonsevere mental impairments at steps two and four. See Wells v. Colvin , __ F.3d __, No. 12-6234, 2013 WL 4405723, at *1-2, *4-5 (10th Cir. Aug. 19, 2013). Wells held that, in light of the Commiss ioner’s regulations, “a conc lusion that the claimant’s mental impairments are non-severe at step two does not permit the ALJ simply to disregard those impairments when as sessing a claimant’s RFC and making conclusions at steps four and five.” Id. at *5. At step two in Wells , “the ALJ stated that [the] findings [of mild limitations] do not result in furt her limitations in work-related functions in the RFC assessment below,” and then reiterated that the mental impairments were nonsevere. Id. (brackets and internal quotation marks omitted). Concerned that this language implied that the ALJ “may have relied on his step-two findings to conclude that [the claimant] had no limitation based on her mental impairments,” Wells held that such analysis “was inadequate under the regulations and the Commissioner’s procedures.” Id. “[T]o the extent the ALJ relied on his findings of non-severity as a substitute for ad equate RFC analysis, the- 5 - Commissioner’s regulations demand a more thorough analysis.” Id. at *7. Wells further discussed the requirements for analys is of mental impairments at step four, noting that the step-four RFC assessment is more detailed than th e step-two severity assessment and listing various functions that may be re levant to a mental RFC

assessment. See id. at *5.
In Wells , however, the ALJ, in addition to hi s statement about the RFC at step two, separately discussed the claimant’s nonsevere mental impairments in his RFC analysis at step four. See id. at *5. We stated that “[h]is discussion, though far from systematic, may have been adeq uate to fulfill his duty at st ep four to determine [the claimant’s] mental RFC.” Id. at *2; see also id. at *5. Ultimately, the problem in Wells was that the discussion was not s upported by substantial evidence. See id. at *5-7. Similar to the step -two statement that Wells implied would be inadequate, at step two in this case the ALJ stated, “[T]he following residual functional capacity assessment reflects the degr ee of limitation the undersigne d has found.” Aplt. App. Vol. II at 64. And at step four the ALJ here, unlike the ALJ in Wells , did not engage in any analysis of mental functions and how they may be impacted (or not) by Ms. Alvey’s medically determinab le mental impairments. It appears, therefore, that the ALJ failed to employ the step-four analytical procedure prescribed by the regulations.- 6 - It does not necessarily follow, however, that a remand is required. We have recognized that “[i]n conduc ting our review, we should, indeed must, exercise common sense,” Keyes-Zachary , 695 F.3d at 1166, and that a determination of harmless error may be appropriate “where , based on material the ALJ did at least consider (just not properl y), we could confidently say that no reasonable administrative factfinder, following the co rrect analysis, could have resolved the factual matter in any other way,” Allen v. Barnhart , 357 F.3d 1140, 1145 (10th Cir. 2004). We may employ a harmless-error analysis sua sponte on appeal when, as here, the record is not overly long or comp lex, harmlessness is not fairly debatable, and reversal would result in fu tile and costly proceedings. See Wyoming v. Livingston , 443 F.3d 1211, 1226 (10t h Cir. 2006). Because th e evidence in this case does not support assessing a ny functional limitati ons from mental impairments, we believe it appropriate to assess harmless error and avoid a futile remand. As the ALJ noted, there are no reco rds indicating treatment by a mental practitioner. Ms. Alvey’s am ended onset date was January 9, 2007, but her medical records from 2007 and 2008 contain few men tions of mental issues. And medical opinions from shortly before the amende d onset date do not support any mental functional limitations. Based on a Septem ber 2006 exam, Ms. Alvey’s primary care physician opined in a Mental Status Form that she had no significant mental issues and that she had normal behavior and ab ility to relate to other people; could remember, comprehend, and carry out both simple and complex instructions; could- 7 - respond to supervision, cowo rkers, and work pressure ; and had a normal mental status, orientation, and ability to think, reas on, and respond. Although he noted that Ms. Alvey had experienced chest pains due to anxiety, the physician did not note any stress to be avoided. On December 18, 20 06, an examining phys ician opined that her “[r]ecent and remote memori es are intact” and her “[ t]hought processes appear normal.” Aplt. App. Vol. II at 312-13. This physician also noted her chest pains related to anxiety, but he too failed to diagnose any limitations. The ALJ’s assessment of mild limitations at step two was c onsistent with a January 3, 2007, PRT form apparently completed by an agen cy reviewer. The reviewer, however, gave little explanation fo r assessing mild limitations rather than no limitations, simply noting that Ms. Alve y “is on anxiolytics from her PCP due to chest pains attributed to anxi ety. He does not consider th at she has significant mental health issues.” Id. at 332. The reviewer conc luded by stating that Ms. Alvey “[a]ppears to have a very active life wi th only a few limitations due to physical impairments.” Id. That January assessment was re viewed and “affirmed as written” by another reviewer on May 22, 2007. Id. at 349. Accordingly, like Ms. Alvey’s treatment records, the PRT forms are not substantial ev idence supporting any specific functional limitations. Ms. Alvey points out that in her application for bene fits she complained of depression, the effects of her medications on her thought processes, and an inability to handle stress and changes in her routine. She testified about such issues at the- 8 - hearing. But the ALJ discounted her testimony to the extent it was inconsistent with the RFC, and she does not challenge his credibility evaluation on appeal. In light of this record, we can confiden tly say that the ALJ’ s failure to conduct a more particularized assessment of mental functions at step four was harmless error. There is no substantial evidence that would allow a reasonable administrative factfinder to include any mental li mitations in Ms. Alvey’s RFC. See Allen , 357 F.3d at 1140, 1145; see also Keyes-Zachary , 695 F.3d at 1163 (“There is no reason to believe that a further analys is or weighing of [the ev idence] could advance [the] claim of disability.”). Because Ms. Alvey’s RFC did not cont ain any mental functional limitations, the ALJ did not need to explore th e mental demands of her PRW. See Winfrey , 92 F.3d at 1024 (To make ade quate findings about a claimant’s PRW, “the ALJ must obtain adequate ‘factual informa tion about those work demands which have a bearing on the medically established limitations .’” (emphasis added) (q uoting Soc. Sec. Rul. 82-62, 1982 WL 31386, at *3 (1982)). Wh en questioned at the hearing about an RFC containing no restrictions on me ntal functions, the VE test ified that Ms. Alvey could perform her PRW as she actually performed it. Thus, the ALJ’s step-four denial of benefits was supported by s ubstantial evidence.- 9 - The judgment of the distri ct court is affirmed.

Entered for the Court

Harris L Hartz Circuit Judge