Pursuant to Fed. R. App. P. 43(c)(2), Michael J. Astrue is substituted for *

JoAnn B. Barnhart as appellee in this action.

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

JERRY L. PRITCHETT,

Plaintiff-Appellant,

v.

MICHAEL J. ASTRUE,*

Commissioner of the Social Security

Administration,

Defendant-Appellee.

No. 06-5130

(D.C. No. 05-CV-81-FHM)

(N.D. Okla.)

ORDER

Filed March 23, 2007

Before PORFILIO, BALDOCK, and EBEL, Circuit Judges.

This matter comes before the court on appellant’s petition for panel

rehearing. In the petition, appellant contends the panel overlooked his argument

that the ALJ’s decision violated this court’s precepts in Hackett v. Barnhart,

395 F.3d 1168 (10th Cir. 2005).

Upon consideration thereof, we GRANT the petition for rehearing in part,

WITHDRAW our order and judgment of January 17, 2007, and substitute a
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modified order and judgment filed this date. Appellant’s motion to file reply to

appellee’s response is DENIED.

Entered for the Court

ELISABETH A. SHUMAKER, Clerk

By:

Deputy Clerk
Pursuant to Fed. R. App. P. 43(c)(2), Michael J. Astrue is substituted for *

JoAnn B. Barnhart as appellee in this action.

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

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 doctrines of law of the case, res judicata, and

collateral estoppel. It may be cited, however, for its persuasive value consistent

with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

F I LED

United States Court of Appeals

Tenth Circuit

March 23, 2007

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

JERRY L. PRITCHETT,

Plaintiff-Appellant,

v.

MICHAEL J. ASTRUE,*

Commissioner of the Social Security

Administration,

Defendant-Appellee.

No. 06-5130

(D.C. No. 05-CV-81-FHM)

(N.D. Okla.)

ORDER AND JUDGMENT

**

Before PORFILIO, BALDOCK, and EBEL, Circuit Judges.

In June 2003, plaintiff applied for disability insurance benefits and

supplemental security income alleging disability due to chronic back pain. 

After initial denials, plaintiff and his counsel appeared at a hearing before an
Contrary to the Commissioner’s position, the consulting psychologist, 1

Dr. Vaught, made this diagnosis; it was not concocted by plaintiff’s attorney. 

See Aplt. App., Vol. II at 128. Dr. Vaught provisionally diagnosed “Pain

(continued...)

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administrative law judge (ALJ) who eventually ruled that plaintiff was not

disabled within the meaning of the Social Security Act. The Appeals Council

denied review, and plaintiff appealed to the district court which affirmed the

decision of the Commissioner. 

Plaintiff now appeals to this court, arguing that the ALJ (1) erred at steps

two and three of the five-step sequential evaluation process; (2) failed to perform

a proper credibility determination; and (3) erred at step five when he found that

plaintiff could perform the job of self-service store attendant. Exercising

jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291, we reverse in part

and remand. 

In reviewing the ALJ’s decision, “we neither reweigh the evidence nor

substitute our judgment for that of the agency.” Casias v. Sec’y of Health &

Human Servs., 933 F.2d 799, 800 (10th Cir. 1991). Instead, we review the ALJ’s

decision only “to determine whether the factual findings are supported by

substantial evidence in the record and whether the correct legal standards were

applied.” Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir. 2003).

Plaintiff argues that the ALJ erred by failing to consider that his diagnosed

pain disorder, a type of somatoform disorder, was severe at step two. Plaintiff, 1
(...continued) 1

Disorder Associated with Both Psychological Factors and a General Medical

Condition.” This disorder is a type of pain disorder which itself is a subcategory

of somatoform disorders. See Amer. Psychiatric Assn., Diagnostic & Statistical

Manual of Mental Disorders 445, 462 (4th ed. 1994). 

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however, failed to demonstrate that his pain disorder “significantly limits

[his] . . . ability to do basic work activities.” See 20 C.F.R. § 404.1520(c). 

A claimant at step two “must show more than the mere presence of a condition or

ailment.” Hinkle v. Apfel, 132 F.3d 1349, 1352 (10th Cir. 1997). 

Because plaintiff’s pain disorder was not a severe impairment, the ALJ

was not required to consider it at step three when he applied the listings. 

Cf. 20 C.F.R. § 404.1525(a) (noting that listings describe only severe

impairments). As for the other impairments which the ALJ did recognize as

severe, we hold that, despite the ALJ’s failure to discuss the evidence or his

reasons for determining that plaintiff was not disabled at step three, “the ALJ’s

factually substantiated findings at steps four and five of the evaluation process

alleviates any concern that [plaintiff] might have been adjudged disabled at step

three.” Fischer-Ross v. Barnhart, 431 F.3d 729, 730 (10th Cir. 2005). 

Turning to the ALJ’s credibility determination, we find it adequately linked

to and supported by specific evidence in the record. Specifically, we note that the

most remarkable aspect of plaintiff’s medical record is that there is so little of it. 

The medical evidence in the record comes entirely from consultative examinations
There is some evidence that plaintiff would occasionally take pain 2

medications given him by friends. Aplt. App., Vol. II at 63.

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ordered by the Commissioner. Despite complaints of chronic and debilitating

back pain that has lasted for twenty years, plaintiff never sought treatment by any

private physician or used any pain medication other than over-the-counter

remedies. In response to plaintiff’s explanation that he could not afford 2

treatment, the ALJ noted that free medical care was available, a finding plaintiff

does not dispute on appeal. 

Plaintiff next argues that, because his RFC limits him to a low-noise work

environment, he cannot do the job of self-service store attendant. That job is

characterized as one with “moderate” noise, a level described in Selected

Characteristics of Occupations Defined in the Revised Dictionary of Occupational

Titles (U.S. Dep’t of Labor, 1993) (SCO), as that encountered in a “business

office where typewriters are used; department store; grocery store; light traffic;

fast food restaurant at off-hours.” Id. at 365, App. D. at D-2. Despite his use of

the term “low,” the ALJ characterized plaintiff’s noise tolerance as being that of

an “ordinary business commercial education type noise environment.” Aplt. App.

Vol. II at 185. The ALJ noted only that claimant “shouldn’t be on a foundry floor

or flagging trucks by or something like that because of the noise.” Id. Because

the level of noise described by the ALJ as “low” more properly lines up with the
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SCO definition of “moderate” noise, we find no conflict between plaintiff’s RFC

and the noise characteristics of a job as a self-service store attendant.

Plaintiff’s RFC, however, does not match up to the mental demands of a

self-service store attendant job. In Hackett v. Barnhart, 395 F.3d 1168, 1176

(10th Cir. 2005), this court reversed a portion of an ALJ’s decision and remanded

under circumstances indistinguishable from plaintiff’s. In Hackett, the ALJ found

the plaintiff restricted to “simple and routine work tasks.” Id. The jobs identified

for the plaintiff, however, required a reasoning level of three, defined as the

ability to “‘[a]pply commonsense understanding to carry out instructions

furnished in written, oral, or diagrammatic form[, and d]eal with problems

involving several concrete variables in or from standardized situations.’” Id.

(quoting Dictionary of Occupational Titles, Vol. II at 1011). This court noted

that the limitation to simple or routine work “seems inconsistent with the

demands of level-three reasoning.” Id.

Similarly, here, the ALJ found plaintiff limited to “simple, repetitive and

routine work.” Aplt. App. Vol. II at 23. The ALJ further found, however, that

plaintiff could work as a self-service store attendant, a job requiring a reasoning

level of three. As in Hackett, a level-three reasoning requirement seems

inconsistent with the ALJ’s conclusion that plaintiff can only do jobs which

present simple, repetitive and routine tasks. This case must therefore be reversed

in part and remanded to allow the ALJ to address the apparent conflict between
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plaintiff’s inability to perform more than simple and repetitive tasks and the

level-three reasoning required by the job identified for him by the vocational

expert. 

The judgment of the district court is therefore REVERSED in part, and this

case is REMANDED with instructions to remand to the Commissioner for further

proceedings consistent with this order and judgment.

Entered for the Court

Bobby R. Baldock

Circuit Judge