* Effective March 31, 1995, the functions of the Secr etary of Health and

Human Services in social security cases were transf erred to the Commissioner of Social Security. P.L. No. 103-296. Pursuant to Fe d. R. App. P. 43(c), Kenneth S. Apfel, Commissioner of Social Security, is substituted for Donna E. Shalala, Secretary of Health and Human Services, as the defe ndant in this action. Although we have substituted the Commissioner for the Secretary in the caption, in the text we continue to refer to the Secretary b ecause she was the appropriate party at the time of the underlying decision.

** This order and judgment is not binding precedent, e xcept under the doctrines of law of the case, res judicata, and col lateral estoppel.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.

*** The Honorable J. Thomas Marten, District Judge, Uni ted States District Court for the District of Kansas, sitting by design ation. 

## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 31 1997 

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

JOHNNIE M. SLOAN,

Plaintiff-Appellant,

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

Defendant-Appellee. No. 97-5064 (D.C. No. 95-CV-604-W) (N.D. Okla.)

ORDER AND JUDGMENT **

Before PORFILIO and LUCERO, Circuit Judges, and MARTEN, *** District Judge.1 The parties consented to proceed before a magistrat e judge. See 28 U.S.C.

§ 636(c).

2 To be entitled to disability benefits, claimant mus t have become disabled on or before December 31, 1992, the date he was last i nsured for disability insurance benefits. -2- 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 oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. Th e case is therefore ordered submitted without oral argument. Claimant Johnnie M. Sloan appeals from the magistrate judge’s order 1 affirming the Secretary’s denial of his claim for d isability insurance benefits at step five of the five-part process for determining disability, see 20 C.F.R. § 404.1520. We review the Secretary’s decision to determine whether factual findings are supported by substantial evidence and whether correct legal standards were applied. We may not reweigh the evidence or s ubstitute our judgment for that of the Secretary. See Kelley v. Chater , 62 F.3d 335, 337 (10th Cir. 1995).
BACKGROUND Mr. Sloan alleges that he has been disabled since April 1987, 2due to degenerative disc disease, arthritis, high choleste rol, pain, numbness, depression, and nerves. At the hearing before the administrati ve law judge (ALJ), he-3-

explained his claimed physical impairments and prov ided additional information on his claimed mental impairments. The testimony revealed that Mr. Sloan had a severe schizophrenic reaction while serving in Vietnam in 1969. He was evacuated , treated, discharged from the military as undesirable, and awarded 50% servic e-connected disability pay. After his discharge, Mr. Sloan worked as a mechanic , truck driver, and electrical maintenance worker until April 1987, when his back problems allegedly prevented him from working at any job. Although he has received regular medical attention for physical problems, he has notsought mental health treatment in the last four or five years. He testi fied, however, that he has difficulty relating to the public, neighbors, co-wo rkers, and supervisors. He also stated that his medications sometimes make him drow sy and dizzy. In additional testimony relevant to the mental impa irment claim, Mr. Sloan stated that, during an orthopedic examination order ed by the Secretary, the consulting physician attempted to inject him with s odium pentothal to see if he was telling the truth. The ALJ observed, however, that the orthopedist’s report reflected a normal examination. In hypothetical questions to the vocational expert, the ALJ asked about the existence of jobs in the national economy for an in dividual with Mr. Sloan’s skills and experience, who can sit, stand, and walk up to six hours in an eight-hour day-4-

and able to reach, grasp, and lift up to ten pounds frequently. This individual was afflicted with chronic pain and taking medication, but could remain attentive, responsive, and reasonably alert. The proposed job s should be without excessive contact with the public and with only superficial c ontact with supervisors and coworkers. In response, the vocational expert named multiple jobs that the hypothetical individual could perform. After the hearing, the ALJ directed John W. Hickman , Ph.D., to perform a mental evaluation. Dr. Hickman reported that claim ant had somatoform pain disorder and undifferentiated schizophrenia in remi ssion. Although Dr. Hickman noted that claimant appeared to be having some delu sional thoughts, he concluded that claimant could perform work-related activities in a regular work setting, with limitations on using judgment with the public and b ehaving in an emotionally stable manner. In his written decision, the ALJ found that the cla imant had (1) a severe impairment consisting of a marked disc bulge at L4- 5, but no impairment or combination of impairments that met, or was equal t o, a social security listing; (2) limitations on lifting ability; and (3) mild depres sion that would not affect workrelated activities. The ALJ concluded that Mr. Slo an could not return to his past relevant work due to limited lifting ability, but c ould perform the full range of light work. Based on the vocational expert’s testi mony, the ALJ determined that-5-

a significant number of jobs existed in the nationa l economy that the claimant could perform, despite his impairment and limitatio ns on dealing with others. Accordingly, he ruled that claimant was not disable d.
DISCUSSION On appeal, Mr. Sloan raises three arguments: (1) the ALJ failed to develop the record, in that it did not contain medical reco rds from 1969 through 1976; (2) the ALJ should have found that claimant was disable d under the social security listings; and (3) the ALJ’s hypothetical questions to the vocational expert were improper and he failed to consider the vocational e xpert’s cross-examination testimony. We disagree. In evaluating a claim that the ALJ breached the duty to develop the record, the key inquiry is whether the record is sufficientto ascertain the nature of the claimant’s impairments, ongoing treatments and medi cations, and the impact of the impairments on the claimant’s daily activities. See Thompson v. Sullivan , 987 F.2d 1482, 1492 (10th Cir. 1993). At the time the ALJ issued his decision, the record contained documentation of Mr. Sloan’s medic al care from four years before the October 2, 1992 application date, to a y ear after that date. See 20 C.F.R. § 404.1512(d) (requiring ALJ to develop amedical record by obtaining medical evidence for at least the twelve months bef ore the application date). The record also included Dr. Hickman’s report of the po st-hearing mental evaluation.3 Section 12.04 sets out a two-part test that must be met before a

claimant may be found to suffer from a disabling me ntal disorder. The . . . first prong of the test . . . establishes a loss of specific cognitive abilities or affective changes: depressiv e syndrome characterized by sleep disturbance, decreased energy, feelings of guilt or worthlessness, and thoughts of suicide. T he second prong requires that the condition result in at least two of the following: 1. Marked restriction of activities of daily livin g; or 2. Marked difficulties in maintaining social funct ioning; or 3. Deficiencies of concentration, persistence or p ace resulting in frequent failure to complete tasks in a timely mann er (in work settings or elsewhere); or 4. Repeated episodes in work or work-like settings which cause the individual to withdraw from that situation or to experience exacerbation of signs and symptoms (which may inclu de deterioration of adaptive behaviors). (continued...) -6- SeeHawkins v. Chater , 113 F.3d 1162, 1168-69 (10th Cir. 1997) (discussi ng duty to order a consultative examination if hearing test imony raises an issue of plaintiff’s physical, mental, or psychological capa city). The record contained sufficient medical evidence to evaluate Mr. Sloan’s mental disorder without the twenty-year-old medical records. Mr. Sloan’s second contention is that the ALJ erredat step three in failing to find that, due to mental impairment and pain, he was disabled pursuant to social security listing 12.04 (affective disorders) , 20 C.F.R. Pt. 404, Subpt. P, App. 1. 3 The ALJ’s conclusion, however, is supported by Dr . Hickman’s report3 (...continued)

Hargis v. Sullivan , 945 F.2d 1482, 1487 (10th Cir. 1991) (quoting 12. 04 B) (footnote omitted).

4 In his appellate brief, Claimant focuses his argume nt on the theory that the ALJ failed to evaluate the mental impairment eviden ce under the standards of 20 C.F.R. § 404.1520. See Cruse v. United States Dep’t of Health & Human Servs. , 49 F.3d 614, 617 (10th Cir. 1995). Because claim ant raises this argument for the first time to this court, we do not address it. See Crow v. Shalala , 40 F.3d 323, 324 (10th Cir. 1994). -7- that, in spite of his earlier schizophrenic episode and current delusional thinking, “Mr. Sloan is quite competent in carrying out activ ities of daily living. . . . He is capable of doing simple or moderately complicated r outine jobs that do not stress social functioning or require heavy lifting.” II Appellant’s App. at 225-26. The contrary evidence was plaintiff’s testimony, which the ALJ considered and found inconsistent with the record as a whole. The ALJ’s determination is supported by substantial evidence. 4 Finally, Mr. Sloan argues that the ALJ’s hypothetic al questions to the vocational expert failed to include all of his limi tations, and that the ALJ failed to consider the vocational expert’s testimony on cross -examination. Our review of the record indicates that this argument is meritles s. The ALJ’s questions included the limitations that he found were supported by the record; the questions asked by Mr. Sloan’s representative assumed as true all his testimony about his mental and physical impairments. Accordingly, the testimony o f the vocational expert provided substantial evidence of a significant numb er of jobs in the national-8-

economy that Mr. Sloan could perform. See Decker v. Chater , 86 F.3d 953, 955 (10th Cir. 1996) (hypothetical questions need only reflect impairments and limitations borne out by the evidentiary record); T alley v. Sullivan , 908 F.2d 585, 588 (10th Cir. 1990) (the ALJ is not bound by the v ocational expert’s opinion in response to a hypothetical question which includes impairments that are not accepted as true by the ALJ). For the reasons stated above, the judgment of the d istrict court is
AFFIRMED.

Entered for the Court

Carlos F. Lucero Circuit Judge