FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                            FOR THE TENTH CIRCUIT                          October 1, 2012

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
LORI J. MITCHELL,

             Plaintiff-Appellant,

v.                                                         No. 12-6012
                                                   (D.C. No. 5:11-CV-00139-W)
MICHAEL J. ASTRUE, Commissioner                           (W.D. Okla.)
of the Social Security Administration,

             Defendant-Appellee.


                            ORDER AND JUDGMENT*


Before HOLMES, Circuit Judge, BRORBY, Senior Circuit Judge, and EBEL,
Circuit Judge.



      Lori J. Mitchell appeals from a district court order affirming the

Commissioner’s denial of Social Security disability and Supplemental Security

Income benefits. We affirm.




*
      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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
      Ms. Mitchell’s protected filing date was January 28, 2009. She alleged

disability due to diabetes, a bipolar condition, and difficulties with her ankle,

hearing, back, and thyroid. In her administrative hearing, the administrative law

judge (ALJ) applied the Medical-Vocational Guidelines—or “grids”—and found that

while Ms. Mitchell could not return to her previous work in a call center or as a pizza

delivery employee, she did retain the ability to perform work that was available in the

national economy and, accordingly, was not disabled at step five under the grids. See

generally Williams v. Bowen, 

, 750-52 (10th Cir. 1988) (explaining

five-step analysis in detail); see also 20 C.F.R. §§ 404.1520 – 416.920. The Appeals

Council denied Ms. Mitchell’s request for review, and she sought review of the

Commissioner’s final decision in the district court. The district court conducted a de

novo review, adopted the report and recommendation of the magistrate judge, and

affirmed the Commissioner’s denial of benefits. Ms. Mitchell appeals.

      “We review the Commissioner’s decision to determine whether the factual

findings are supported by substantial evidence in the record and whether the correct

legal standards were applied.” Wilson v. Astrue, 

, 1140 (10th Cir.

2010). “Substantial evidence is such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” 

marks omitted).

      Ms. Mitchell raises one issue on appeal: whether the Commissioner can

conclusively rely on the grids, without vocational expert testimony, where the ALJ

specifically found that Ms. Mitchell’s ability to perform light work was limited by


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severe mental impairments. Generally, the grids may not be used conclusively if the

claimant has nonexertional impairments that limit the ability to do the full range of

work within a classification. See Thompson v. Sullivan, 

, 1488

(10th Cir. 1993). “Moreover, resort to the grids is particularly inappropriate when

evaluating nonexertional limitations such as pain and mental impairments.” Hargis

v. Sullivan, 

, 1490 (10th Cir. 1991).

      However, it is equally clear in our circuit that “[t]he mere presence of a

nonexertional impairment does not preclude reliance on the grids.” 

. The nonexertional impairment “must interfere with the ability to

work.” 

the grids is foreclosed only where the “nonexertional impairments

are significant enough to limit [the claimant’s] ability to perform the full range of

jobs” available. Channel v. Heckler, 

, 583 (10th Cir. 1984). In fact, the

grids may be used for claimants with nonexertional impairments “whenever the

claimant can perform a substantial majority of the work in the designated [residual

functional capacity] category.” Evans v. Chater, 

, 532 (10th Cir. 1995).

While an ALJ may determine that a nonexertional impairment has only a negligible

effect on the range of jobs available, he “must back such a finding of negligible

effect with the evidence to substantiate it.” Talbot v. Heckler, 

, 1465

(10th Cir. 1987). And “once a mental impairment is considered to be severe, it must

be included in the residual functional capacity assessment, the fifth step in the

sequential evaluation process.” 

.


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      In this case, the ALJ found that Ms. Mitchell had the following severe

impairments: major depressive order and diabetes mellitus. However, the ALJ also

found that neither impairment met or was medically equal to a listed impairment in

20 C.F.R. Part 404, Subpart P, Appendix 1. The ALJ noted that, according to the

medical evidence, Ms. Mitchell has only “moderate difficulties” in social

functioning, concentration, persistence, and pace. Aplt. App. II at 21. The ALJ then

proceeded to step five and stated:

      After careful consideration of the entire record, the undersigned finds
      that the claimant has the residual functional capacity to perform light
      work as defined in 20 CFR 404.1567(b) and 416.967(b) except with
      nonexertional limits. Claimant can perform simple tasks with routine
      supervision; can relate to supervisors and peers on a superficial work
      basis; and cannot relate to the general public. Claimant can adapt to a
      work situation.

The ALJ specifically referenced Ms. Mitchell’s mental impairment in the

residual functional capacity (RFC) determination and noted it was based on the

opinions of the state agency psychologists, which were “consistent with the record

when viewed in its entirety, including the mental consultative examination.” 

Although he found Ms. Mitchell’s mental impairment was severe, he noted

the medical testimony supported the position that the impairment “[did] not prevent

her from performing light work with some nonexertional limitations.” 

      The ALJ then considered Ms. Mitchell’s age, education, work experience, and

RFC, and found there were jobs existing in significant numbers in the national

economy that Ms. Mitchell could perform. The ALJ cited Social Security Ruling


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85-15 for a definition of the basic mental demands of unskilled work: “the abilities

(on a sustained basis) to understand, carry out, and remember simple instructions; to

respond appropriately to supervision, coworkers, and usual work situations; and to

deal with changes in a routine work setting.” SSR 85-15, 

, at *4

(1985). The ALJ concluded that “[Ms. Mitchell] retains the mental skills for

unskilled work.” Aplt. App. at 24. The medical evidence and record supports the

ALJ’s finding that Ms. Mitchell could perform substantially all of the work available

in the unskilled light work category because Ms. Mitchell “retains the capacity for

work with routine supervision and work-related contact.” 

with the ALJ

that Ms. Mitchell is not disabled.

      The authority Ms. Mitchell cites to support her position that an ALJ’s use of

the grids is inappropriate where the claimant has severe mental impairments is

misplaced. In the cases Ms. Mitchell cites, many of which are unpublished, the ALJ

either failed to adequately consider the claimant’s nonexertional limitations, or failed

to support a grid-based decision in the record. See, e.g., 

(“The ALJ . . . ignored completely [claimant’s] pain throughout the rest of his

analysis.”); Allen v. Barnhart, 

, 1143 (10th Cir. 2004) (“[T]he ALJ

ignored the many additional physical and mental restrictions that he found qualified

[claimant’s] RFC and simply applied the grids . . . .”); Lopez v. Barnhart,

78 F. App’x 675, 679 (10th Cir. 2003) (unpublished opinion) (“The ALJ’s conclusion

that claimant could perform most light work jobs was not supported by the


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[vocational expert’s] testimony or any other source.” (emphasis added)); Wadford v.

Chater, No. 95-7147, 

, at *1 (10th Cir. July 26, 1996) (unpublished

opinion) (“Because there is nothing in the record to satisfy the Secretary’s burden . .

., we cannot say the ALJ’s grid-based decision is supported by the requisite

substantial evidence.”).

       In this case, though, the ALJ supported his use of the grids with a discussion

of Ms. Mitchell’s mental impairment, its effect on job performance under SSR 85-15,

and Ms. Mitchell’s continuing ability to perform a substantial majority of light

unskilled work. And while Ms. Mitchell is correct that the Eighth Circuit seems to

require vocational expert testimony at the mere existence of severe mental

impairments, see Brock v. Astrue, 

, 1065 (8th Cir. 2012), our precedent

differs.

       Accordingly, the judgment of the district court is AFFIRMED.


                                                Entered for the Court


                                                David M. Ebel
                                                Circuit Judge




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