Duncan v. Colvin

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

FOR THE TENTH CIRCUIT April 2, 2015

Elisabeth A. Shumaker
Clerk of Court
ELIZABETH DUNCAN,

Plaintiff - Appellant,

v. No. 14-5081
(D.C. No. 4:13-CV-00189-FHM)
CAROLYN W. COLVIN, Acting (N.D. Okla.)
Commissioner of the Social Security
Administration,

Defendant - Appellee.

ORDER AND JUDGMENT*

Before GORSUCH, O’BRIEN, and HOLMES, Circuit Judges.

Elizabeth Duncan appeals the district court’s order affirming the

Commissioner’s decision denying her application for disability benefits under the

Social Security Act. We exercise jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C.

§ 405(g), and 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
 I. Background

Ms. Duncan formerly worked for six years as a master teacher at a daycare

facility. In 2009, she was diagnosed with bilateral carpal tunnel syndrome. She

underwent right carpal tunnel surgery, involving decompression of the right median

nerve at the wrist, and right cubital tunnel surgery, involving decompression of the

right ulnar nerve at the elbow, in October 2009. She had left carpal and cubital

tunnel surgeries in November 2009. She filed for disability benefits in November

2009 alleging disability since October 18, 2009, due to diabetic neuropathy and post

carpal tunnel surgeries. The Commissioner denied benefits initially and on

reconsideration.

Following a de novo hearing and a supplemental hearing before an

Administrative Law Judge (“ALJ”), the ALJ issued his decision in November 2011,

finding Ms. Duncan not disabled at step five of the controlling five-step sequential

analysis. See Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (explaining

five-step process for evaluating claims for disability benefits). At step one the ALJ

found Ms. Duncan had not engaged in substantial gainful activity since the alleged

onset of her disability. The ALJ concluded at step two that Ms. Duncan had the

following severe impairments: diabetes mellitus with diabetic neuropathy, mild

carpal tunnel syndrome bilaterally, degenerative disc disease of the cervical spine,

osteoarthritis, hypertension, hyperlipidemia, and major depressive disorder. But he

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found that these impairments did not meet or equal the listings for presumptive

disability at step three.

The ALJ also found Ms. Duncan not credible and determined that her

impairments left her with a residual functional capacity (“RFC”) to perform a limited

range of sedentary work with certain restrictions. After considering Ms. Duncan’s

RFC and testimony from a vocational expert (“VE”), the ALJ determined at step four

that Ms. Duncan could not return to her past work, but found at step five that she

could perform other jobs existing in significant numbers in the national economy.

The Appeals Council denied review, making the ALJ’s decision the

Commissioner’s final decision for purposes of judicial review. Doyal v. Barnhart,

331 F.3d 758, 759 (10th Cir. 2003). Ms. Duncan sought judicial review and the

magistrate judge, sitting by consent of the parties, affirmed the Commissioner’s

decision. She now appeals.

II. Discussion

“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.” Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir.

2003). In doing so, “we neither reweigh the evidence nor substitute our judgment for

that of the agency.” Branum v. Barnhart, 385 F.3d 1268, 1270 (10th Cir. 2004)

(internal quotation marks omitted). “Substantial evidence is such relevant evidence

as a reasonable mind might accept as adequate to support a conclusion. It requires

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more than a scintilla, but less than a preponderance.” Lax, 489 F.3d at 1084 (citation

omitted) (internal quotation marks omitted).

Ms. Duncan raises the following challenges to the Commissioner’s decision:

the ALJ (1) deprived Ms. Duncan of her constitutional right to due process; (2) failed

to properly evaluate the medical evidence; (3) failed to find that Ms. Duncan met or

equaled Listing 1.04A (Disorders of the Spine); (4) erred at steps four and five of the

sequential analysis; and (5) failed to perform a proper credibility determination.

A. Due Process

Ms. Duncan contends the ALJ violated her due process rights by failing to

make a full and fair inquiry. Indeed, “[s]ocial security hearings are subject to

procedural due process considerations.” Yount v. Barnhart, 416 F.3d 1233, 1235

(10th Cir. 2005); see also Passmore v. Astrue, 533 F.3d 658, 663 (8th Cir. 2008)

(“Procedural due process under the Fifth Amendment requires that disability

claimants be provided a full and fair hearing.” (internal quotation marks omitted)).

But, as the district court observed, Ms. Duncan does not assert a colorable due

process constitutional claim. Instead, her argument is one that asserts that the ALJ

failed to develop the record by failing to order a consultative examination or obtain a

medical source statement. We disagree that the ALJ failed to develop the record.

“[T]he burden to prove disability in a social security case is on the claimant.”

Hawkins v. Chater, 113 F.3d 1162, 1164 (10th Cir. 1997). Nonetheless, an “ALJ

bears responsibility for ensuring that an adequate record is developed during the

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disability hearing consistent with the issues raised.” Branum, 385 F.3d at 1271

(internal quotation marks omitted). And this responsibility may require the ALJ to

order a consultative examination, see Hawkins, 113 F.3d at 1166, but the

determination to do so is given broad latitude, id. at 1169. Such examinations are

often required “where there is a direct conflict in the medical evidence”; “where the

medical evidence in the record is inconclusive”; and “where additional tests are

required to explain a diagnosis already contained in the record.” Id. at 1166; see also

20 C.F.R. § 404.1519a(b) (describing when a consultative examination may be

appropriate).

During Ms. Duncan’s first administrative hearing in March 2011, her attorney

requested, and the ALJ ordered, additional testing in the form of a bilateral

electromyography/nerve conduction study (EMG/NCS) of the upper and lower

extremities, and bilateral Tinel’s test and Phalen’s test.1 See Aplt. App., Vol. II at

83-86.2 Sri Reddy, M.D. performed a consultative EMG/NCS in May 2011. The

EMG/NCS of the upper limbs revealed “[r]ight mild median nerve entrapment at the

wrist (C[arpal]T[unnel]S[yndrome])” but “[n]o diffuse peripheral neuropathy” or

“any findings to indicate radiculopathy.” Id., Vol. III at 594. The testing of the

lower limbs revealed “[b]ilateral lower extremity sensory peripheral neuropathy” but
1
Tinel’s Sign and Phalen’s Sign are tests performed to diagnose carpal tunnel
syndrome.
2
The record reveals that Ms. Duncan’s attorney and the ALJ also discussed
Ms. Duncan’s need for a cervical magnetic resonance imaging (MRI) scan. See Aplt.
App., Vol. II at 85. This testing was done on September 7, 2011.

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no “findings to indicate radiculopathy.” Id. Dr. Reddy opined this finding was

probably the result of Ms. Duncan’s “long-standing diabetes.” Id.

After receiving the results of the study, Ms. Duncan’s counsel requested a

consultative examination and medical source statement to evaluate the “right upper

extremity median nerve entrapment and bilateral lower extremity sensory peripheral

neuropathy.” Id., Vol. II at 260. But the request was not granted. A second

administrative hearing was held in October 2011. At the time of the second hearing,

Ms. Duncan had recently undergone an MRI scan of the cervical spine that revealed

“marked degenerative disc disease” and a “syrinx formation extending from the

C4-C5 to the C6-C7 level.” Id., Vol. III at 696.3

Ms. Duncan argues that without obtaining more information concerning the

functional limitations caused by the conditions found by Dr. Reddy in the May 2011

EMG/NCS and the conditions revealed in the September 2011 MRI testing, the ALJ

could not make an informed RFC assessment. See Aplt. Opening Br. at 20-21. We

disagree. Regarding the EMG/NCS finding of “right median nerve entrapment at the

wrist (C[arpal]T[unnel]S[yndrome]),” the record already contained evidence of

3
“A syrinx is a fluid-filled cavity within the spinal cord (syringomyelia).”
Syrinx of the Spinal Cord or Brain Stem, Merck Manuals,
http://www.merckmanuals.com/professional/neurologic_disorders/spinal_cord_disord
ers/syrinx_of_the_spinal_cord_or_brain_stem.html (last visited March 18, 2015).
“Syringomyelia typically causes weakness, atrophy, and often fasciculations and
hyporeflexia of the hands and arms.” Id.

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Ms. Duncan’s bilateral carpal tunnel syndrome. The record also contained an

examining consultative examination, done in January 2010, that opined regarding

Ms. Duncan’s physical limitations concerning her carpal tunnel syndrome, see Aplt.

App., Vol. III at 385, as well as an opinion from another medical source in March

2010 that Ms. Duncan was limited to light duty jobs that did not require repetitive

work with the hands and arms. We conclude that the ALJ did not err by not

obtaining another consultative examination or medical source statement to evaluate

Dr. Reddy’s findings concerning Ms. Duncan’s carpal tunnel syndrome. The record

contained sufficient evidence from which the ALJ could assess Ms. Duncan’s RFC

with respect to her carpal tunnel syndrome. Regarding Dr. Reddy’s finding of

diabetic peripheral neuropathy, Ms. Duncan similarly fails to show that another

consultative examination was necessary.

Ms. Duncan further argues that recent testing “revealed more questions about

neuropathy, radiculopathy, carpal tunnel syndrome, syrengomyelia, and a syrinx” that

should have resulted in further investigation by the ALJ to determine the limitations

of Ms. Duncan’s extremities. Aplt. Opening Br. at 21 (citing Aplt. App., Vol. II at

41-46). Ms. Duncan’s citation to the record evidences that her counsel and the ALJ

discussed a September 2011 MRI scan of the cervical spine in the context of

counsel’s claim that the MRI scan was evidence of meeting Listing 1.04A. See Aplt.

App., Vol. II at 41-42. In this discussion, the ALJ observed that two, separate

EMG/NCS examinations, one performed by consultative examiner Dr. Reddy and the

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other performed at the request of Ms. Duncan’s physician, confirmed carpal tunnel

syndrome and did not evidence any radiculopathy. The ALJ further observed that

although a medical provider, Tulsa Pain Consultants, assessed cervical radiculopathy,

it did not place any work restrictions on Ms. Duncan. See id. at 43. We conclude the

ALJ sufficiently developed the record to determine Ms. Duncan’s RFC.4

B. Medical Source Opinions

Ms. Duncan next argues that the ALJ failed to properly evaluate the medical

opinions of Kenneth Trinidad, D.O., and Carl DePaula, M.D. We find no error.

1. Dr. Trinidad

Dr. Trinidad is an examining physician who evaluated Ms. Duncan in

connection with her worker’s compensation claim in March 2010 and again in April

2011. Ms. Duncan first asserts that the ALJ “ignored or rejected medical findings

without explanation” and ignored those portions of Dr. Trinidad’s reports that were

favorable to her claim. Aplt. Opening Br. at 24. Specifically, she states the ALJ

“failed to note” the following findings from the March 2010 report:

positive Tinel’s sign over the median nerves bilaterally,
crepitance in the wrists with range of motion (‘ROM’)
testing, weakness in flexion and extension of the wrists to
resistance testing, loss of fine motor movement in the
4
Ms. Duncan also points out that although the ALJ agreed at the March 2011
hearing to additional testing for Tinel’s Sign and Phalen’s Sign, there is no indication
that this was done. See Aplt. Opening Br. at 20. Although it appears Ms. Duncan is
correct, the record already contained medical evidence from October 2010 of positive
Tinel’s Sign and Phalen’s Sign testing, which is indicative of carpal tunnel syndrome.
Accordingly, we perceive no error.

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 digits, decreased sensation in the first three digits of the
right hand, dyesthesias in the first four digits of the left
hand, decreased sensation in the little finger of the left
hand, tenderness over the medial epicondyles bilaterally,
crepitance in the elbows with movement, positive Tinel’s
sign over the ulnar nerves at the elbows, decreased
sensation in an ulnar distribution into the forearms, and
weakness in forearm strength in supination and pronation
to resistance testing bilaterally.

Id. at 23-24.

But despite Ms. Duncan’s claim of error, while “[t]he record must demonstrate

that the ALJ considered all of the evidence,” there is no requirement that an ALJ

“discuss every piece of evidence.” Mays v. Colvin, 739 F.3d 569, 576 (10th Cir.

2014). The ALJ did not need to expressly discuss these specific findings of

Dr. Trinidad as they did not involve “uncontroverted evidence” that the ALJ was

choosing not to rely on, nor did they involve “significantly probative evidence” that

he was rejecting, see Clifton v. Chater, 79 F.3d 1007, 1010 (10th Cir. 1996). The

record confirms this.

In connection with the worker’s compensation claim, Dr. Trinidad concluded

that Ms. Duncan had work-related trauma injuries in the form of bilateral carpal

tunnel syndrome. The ALJ’s decision states that “a review of the medical record

indicates” a history of carpal tunnel syndrome and bilateral carpal tunnel syndrome

surgery. Aplt. App., Vol. II at 17. It further reflects that Dr. Trinidad’s March 2010

report was considered in the ALJ’s discussion of the medical evidence. See id. at 18.

And the ALJ found that the medical evidence in the record supported a diagnosis of

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carpal tunnel syndrome as he found mild carpal tunnel syndrome bilaterally as a

severe impairment. We perceive no error in the ALJ’s failure to expressly discuss

the foregoing findings of Dr. Trinidad.

Ms. Duncan also argues that the ALJ failed to adequately explain why he gave

Dr. Trinidad’s opinions provided in the worker’s compensation claim “only some

weight.” Aplt. Opening Br. at 26. We disagree. Dr. Trinidad opined that

Ms. Duncan was temporarily totally disabled. He also opined that “[w]ith her current

impairment [Ms. Duncan] is unable to return to her former position and, in my

opinion, will require vocational training to place her in a light duty job that does not

require repetitive work with her hands and arms.” Aplt. App., Vol. III at 533. The

ALJ explained that such statements, made in the context of a worker’s compensation

claim, are not dispositive of a social security claim. The ALJ also correctly observed

that certain opinions by medical providers, including opinions that a claimant is

disabled or opinions concerning residual functional capacity, are not medical

opinions but, instead, opinions on issues reserved to the Commissioner because they

are administrative findings. See 20 C.F.R. § 404.1527(d). Such opinions, even when

offered by a treating source, are never entitled to controlling weight or given special

significance. Soc. Sec. Ruling (SSR) 96-5p, 1996 WL 374183, at *1, *2, *5 (July 2,

1996).

But Ms. Duncan takes further issue with the ALJ’s handling of Dr. Trinidad’s

opinion that Ms. Duncan is limited to jobs that do not require repetitive use of the

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hands and arms. The record shows that Ms. Duncan specifically questioned the VE

regarding the vocational impact of a limitation to sedentary, unskilled work with no

repetitive use of the arms or hands as expressed in Dr. Trinidad’s report. The VE

testified that no repetitive use equated vocationally to constant use under the

Dictionary of Occupational Titles, but that frequent and occasional use was still

available. The ALJ noted this testimony in his decision. But Ms. Duncan now

contends that there is no evidence that Dr. Trinidad defines “repetitive” in the same

way as the VE and the ALJ therefore should have recontacted Dr. Trinidad.

We find Ms. Duncan’s argument unavailing. Assuming, without deciding this

is a substantial issue, Ms. Duncan did not further question the VE regarding the

meaning of repetitive use or challenge the VE’s interpretation of Dr. Trinidad’s use

of the term such that she raised it as an issue for the ALJ to resolve. See Wall v.

Astrue, 561 F.3d 1048, 1063 (10th Cir. 2009) (observing that claimant must raise any

substantial issue she seeks to develop). Nor did the ALJ deem Dr. Trinidad’s

evidence inadequate for him to determine whether Ms. Duncan was disabled.

See White v. Barnhart, 287 F.3d 903, 908 (10th Cir. 2001); see also Robinson v.

Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004) (noting ALJ’s duty to seek additional

evidence or clarification from treating source when evidence contains conflict or

ambiguity).

In sum, we conclude the ALJ sufficiently explained the weight he gave to

Dr. Trinidad’s opinions and properly considered his opinions.

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 2. Dr. DePaula

Dr. DePaula is Ms. Duncan’s treating orthopedic surgeon. Ms. Duncan argues

that the ALJ was “silent” as to the weight accorded Dr. DePaula’s opinions and failed

to follow the sequential two-step inquiry in determining the weight assigned to a

treating source’s medical opinion. Aplt. Opening Br. at 27-28; see also Krauser v.

Astrue, 638 F.3d 1324, 1330 (10th Cir. 2011) (discussing two-step analytical

framework for dealing with treating medical source opinions). In support,

Ms. Duncan states that Dr. DePaula found that she had peripheral neuropathy with

numbness at the wrist, bilateral carpal tunnel syndrome, diabetic neuropathy, and

cervical disc disease but that the ALJ “gave no credit to these assessments and

objective findings.” Aplt. Opening Br. at 28. Ms. Duncan is mistaken. The findings

of Dr. DePaula identified by Ms. Duncan constitute the medical opinion of

Dr. DePaula regarding medical diagnoses, which the ALJ properly considered and

did not reject. See 20 C.F.R. § 404.1527(a)(2) (providing that medical opinions are

statements from physicians that reflect judgments concerning a claimant’s symptoms

and diagnosis). Indeed, the ALJ found diabetes with diabetic neuropathy, mild carpal

tunnel syndrome bilaterally, and degenerative disc disease of the cervical spine to be

severe impairments.

Ms. Duncan does not point to medical opinions of Dr. DePaula regarding

work-related limitations attributed to the impairments he diagnosed or the placement

of any significant exertional restrictions. See, e.g., Watkins, 350 F.3d at 1299

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(assessing treating source medical opinion concerning nature and severity of

impairment that rendered claimant “unable to work an eight-hour day doing anything,

sitting or standing” (internal quotation marks omitted)); Krauser, 638 F.3d at 1330

(assessing treating source’s opinion regarding exertional restrictions); 20 C.F.R.

§ 404.1527(a)(2) (providing that physician’s medical opinion may include opinion on

what claimant can still do despite impairments and physical or mental restrictions).

Given that the ALJ did not reject the medical impairments found by Dr. DePaula and

there were no medical opinions regarding Ms. Duncan’s work-related functional

limitations, there was no opinion on such matters by Dr. DePaula for the ALJ to

weigh. Cf. Watkins, 350 F.3d at 1300-01 (reversing judgment of the district court

where ALJ failed to perform analysis regarding weight to assign treating source’s

opinion that claimant could not do anything sitting or standing in eight-hour

workday).

Ms. Duncan further faults the ALJ for failing to credit a parking placard

application in which Dr. DePaula indicated the basis for the application was

Ms. Duncan’s severely limited ability to walk due to her diabetic peripheral

neuropathy. Dr. DePaula did not, however, identify a similar work-related restriction

in his medical notes. In any event, the ALJ’s RFC limited Ms. Duncan to sedentary

work and standing and/or walking to two hours in an eight-hour workday. Finally,

Ms. Duncan’s claim of error regarding Dr. DePaula’s opinion that Ms. Duncan is

disabled and should get vocational rehabilitation is meritless. As the ALJ explained,

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that is an opinion on an issue reserved to the Commissioner and, therefore, is not

entitled to controlling weight or special significance. See 20 C.F.R.

§ 404.1527(d)(3).

C. Listing 1.04A

Ms. Duncan next claims error at step three. Specifically, she asserts that the

ALJ failed to conclude that she met or equaled Listing 1.04A (disorders of the spine)

and failed to properly consider Listing 1.04A at step three because the ALJ did not

mention or discuss it in the step three analysis.

At step three of the sequential analysis, the determination is made whether any

“medically severe impairment, alone or in combination with other impairments, is

equivalent to any of a number of listed impairments so severe as to preclude

substantial gainful employment.” Fischer-Ross v. Barnhart, 431 F.3d 729, 731

(10th Cir. 2005) (internal quotation marks omitted). If listed, the impairment is

conclusively presumed disabling and the claimant is entitled to benefits. See id. A

claimant will only be presumed disabled if an impairment, or a combination of

impairments, meets or equals all the requirements of a listing. Sullivan v. Zebley,

493 U.S. 521, 530-31 (1990). Further, a claimant has the burden to present evidence

establishing her impairments meet or equal listed impairments. Fischer-Ross,

431 F.3d at 733. But an ALJ bears the burden of identifying any relevant listings in

light of the evidence which a claimant has produced. Id. at 733 n.3.

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 Ms. Duncan was diagnosed with degenerative disc disease of the cervical

spine, an impairment that would fall under the listing for disorders of the spine,

Listing 1.04, where the impairment results in the compromise of a nerve root.

See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.04. In order for the ALJ to have found

Ms. Duncan’s physical limitation met the required level of severity under Listing

1.04A, Ms. Duncan had to satisfy the following requirements:

[e]vidence of nerve root compression characterized by
neuro-anatomic distribution of pain, limitation of motion
of the spine, motor loss (atrophy with associated muscle
weakness or muscle weakness) accompanied by sensory or
reflex loss and, if there is involvement of the lower back,
positive straight-leg raising test (sitting and supine).

20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.04A.

As Ms. Duncan argues, an ALJ is “required to discuss the evidence and

explain why he found that [a claimant] was not disabled at step three.” Clifton,

79 F.3d at 1009. Review of the ALJ’s decision reflects that he discussed and rejected

certain listings applicable to mental impairment in his step three analysis but did not

address or evaluate Listing 1.04A in this part of the decision. Instead, the ALJ’s

discussion of Listing 1.04A, although minimal, appears in his analysis and

determination of Ms. Duncan’s RFC at step four of the sequential analysis. See, e.g.,

Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir. 1996) (providing that step four is

comprised of three phases, the first of which determines a claimant’s RFC).

Specifically, the ALJ acknowledged that Ms. Duncan’s counsel argued at the

hearing that Ms. Duncan met or equaled Listing 1.04A based on MRI findings of the

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cervical spine done in September 2011. The ALJ explained, however, that two

EMG/NCS examinations revealed no evidence of radiculopathy or other upper

extremity neuropathy. Although the ALJ should have discussed this evidence and his

rationale in the step three analysis, we cannot say, as Ms. Duncan argues, that the

ALJ “wholly failed to analyze the evidence in light of the specific requirements of

[Listing 1.04A].” Aplt. Opening Br. at 32. Indeed, the Listing requires evidence of

nerve root compression and the ALJ expressly found no evidence of radiculopathy

indicated in the EMG/NCS.5 See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.00C(3)

(providing that “electrodiagnostic procedures may be useful in establishing a clinical

diagnosis but do not constitute alternative criteria to the requirements of 1.04”).

But even if the ALJ’s failure to properly consider and discuss the evidence in

support of Listing 1.04A at step three was erroneous, the error was harmless in light

of the ALJ’s findings at subsequent steps of the disability analysis. See

Fischer-Ross, 431 F.3d at 733 (“[A]n ALJ’s findings at other steps of the sequential

process may provide a proper basis for upholding a step three conclusion that a

claimant’s impairments do not meet or equal any listed impairment.”). Presumptive

disability at step three for Listing 1.04A requires nerve root compression resulting in

limited range of motion and motor loss with muscle weakness. The ALJ’s RFC

5
“Cervical radiculopathy is the damage or disturbance of nerve function that
results if one of the nerve roots near the cervical vertebrae is compressed.”
See Cervical Radiculopathy, http://www.webmd.com/pain-management/pain-
management-cervical-radiculopathy (last visited March 18, 2015).

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findings at step four provide, for example, that Ms. Duncan can occasionally lift

and/or carry ten pounds, and she can occasionally climb stairs, balance, bend or

stoop, kneel, crouch, and crawl. This RFC finding negates the possibility of any

finding that Ms. Duncan is conclusively disabled at step three, and, therefore, any

deficiency in the ALJ’s step three analysis is harmless error. See id. at 734-35.

Finally confirming the harmless nature of any error at step three, Ms. Duncan

presented no medically acceptable test showing nerve root compression, a

requirement of Listing 1.04A. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.00(C)(1)

(providing that diagnosis of musculoskeletal impairment should be supported by

medically acceptable imaging tests, such as x-ray or MRI scan). Because

Ms. Duncan has not satisfied all of the Listing’s criteria, she cannot prevail at step

three as a matter of law. See Sullivan, 493 U.S. at 530.

D. Hypothetical Question to the VE

Ms. Duncan next contends that the ALJ’s hypothetical questions to the VE at

steps four and five of the analysis failed to include all of the limitations established

by the record.6

6
In challenging the ALJ’s hypothetical questions, Ms. Duncan attempts to raise
a sub-issue concerning the ALJ’s step two analysis. Although she does not expressly
assert a step two error, she argues that the ALJ failed to state whether her middle and
ring finger trigger release and anxiety disorder were “severe, non-severe, or
medically non-determinable [impairments].” Aplt. Opening Br. at 33. To the extent
Ms. Duncan attempts to advance an independent challenge to the ALJ’s step two
findings within the context of her steps four and five argument, we decline to
(continued)
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 An ALJ’s hypothetical question to the VE must accurately reflect the

“impairments and limitations that were borne out by the evidentiary record.”

Newbold v. Colvin, 718 F.3d 1257, 1268 (10th Cir. 2013) (internal quotation marks

and brackets omitted); Evans v. Chater, 55 F.3d 530, 532 (10th Cir. 1995) (stating

that the ALJ’s hypothetical questions “must include all (and only) those impairments

borne out by the evidentiary record”). The ALJ’s RFC finding included a limitation

for “no prolonged overhead gazing.” Aplt. App., Vol. II at 16. Review of the record

shows that the ALJ posed three hypothetical questions to the VE – the first two of

which were limited to light work and the third to sedentary work. See 20 C.F.R.

§ 404.1567(a) and (b) (defining “sedentary work” and “light work”). In the second

hypothetical question to the VE, the ALJ asked the VE to take the same physical

restrictions from the first hypothetical question and add to them certain restrictions to

the hands and arms and “no prolonged overhead gazing.” Aplt. App., Vol. II at 62.

In the third hypothetical question, the ALJ stated that he was using the same

restrictions for the upper extremities but changed the exertional limitations.

Ms. Duncan argues that the “no prolonged overhead gazing” limitation is

missing from the third (and only sedentary) hypothetical question and, therefore, the

VE could have answered the hypothetical question differently. We disagree. Based

consider the issue. See Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir.
2012) (declining to consider poorly developed sub-issues).

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on our review, the third hypothetical question simply built upon the second, which

included the limitation for no prolonged overhead gazing. Additionally,

Ms. Duncan’s counsel questioned the VE regarding the impact of Ms. Duncan’s

limitations in her ability to look up and down and the VE testified in response that

she considered Ms. Duncan’s range of motion limitations in her testimony. We

therefore reject Ms. Duncan’s challenge to the hypothetical question to the VE and

find no error in the ALJ’s reliance on the VE’s opinion.

Ms. Duncan also argues that the ALJ’s RFC finding included a limitation to

superficial contact with coworkers, supervisors, and the public, but that the ALJ did

not include this limitation in the hypothetical question to the VE involving sedentary

work. She argues that the failure to include this limitation was erroneous because the

jobs in the national economy that the VE testified Ms. Duncan could perform in

response to the hypothetical – call-out operator, surveillance-system monitor, and

election clerk – require “significant” contact with people or the public according to

the DOT. Aplt. Opening Br. at 36; see DICOT 237.367-014 (call-out operator), 1991

WL 672186; DICOT 379.367-010 (surveillance-system monitor), 1991 WL 673244;

and DICOT 205.367-030 (election clerk), 1991 WL 671719.

“[E]ach job listed in the DOT is described by reference to various components.

One component [of the DOT occupational code] is ‘Worker Functions.’ The worker

function labeled ‘People’ expresses the degree of interaction with other people that

the job requires.” Hackett v. Barnhart, 395 F.3d 1168, 1175 (10th Cir. 2005). The

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three jobs identified by Ms. Duncan have a People rating of 6, indicating that the

worker will be involved in “Speaking-Signaling” which requires “[t]alking with

and/or signaling people to convey or exchange information [and]giving assignments

and/or directions to helpers or assistants.” DOT, Appendix B – Explanation of Data,

People, and Things, 1991 WL 688701 (4th ed. 1991). As Ms. Duncan notes, the

three jobs at issue also have an “S-Significant” People rating.

We agree that the sedentary hypothetical question to the VE did not include

the limitation to “superficial contact with coworkers, supervisors, and the public.”

We conclude the omission does not require reversal, however, because any error was

harmless. As we noted in Hackett, the full DOT job descriptions for the jobs of

call-out operator and surveillance system monitor “indicate that contact with people

is rather limited.” Hackett, 395 F.3d at 1175. Accordingly, at least two of the three

jobs identified by the VE are consistent with the restriction of “superficial contact

with coworkers, supervisors, and the public.” See, e.g., id. at 1175-76 (concluding

that there was no conflict between DOT’s job descriptions for call-out operator and

surveillance-system monitor stating that jobs required significant contact and VE’s

testimony that jobs were suitable for claimant with restriction of avoiding direct

contact with the general public and only occasional interaction with coworkers). Any

error was therefore harmless. See Allen v. Barnhart, 357 F.3d 1140, 1145 (10th Cir.

2004) (noting that improper reliance on two of three jobs identified by VE could have

been deemed harmless error “had the number of available jobs identified by the VE

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[in the one occupation consistent with the claimant’s RFC] not been one hundred but

considerably greater”).

E. Credibility

Finally, Ms. Duncan challenges the ALJ’s credibility determination. She

argues that the ALJ mischaracterized her activities of daily living, made non-specific

references to “other evidence” to support the credibility determination, and did not

properly evaluate two treating physicians’ opinions that she was disabled. Aplt.

Opening Br. at 39.

“Credibility determinations are peculiarly the province of the finder of fact,

and we will not upset such determinations when supported by substantial evidence.”

Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010) (internal quotation marks

omitted). Nevertheless, an ALJ’s credibility finding “should be closely and

affirmatively linked to substantial evidence and not just a conclusion in the guise of

findings.” Id. (internal quotation marks omitted).

When evaluating a claimant’s subjective statements regarding pain, an ALJ

should consider factors such as

the levels of medication and their effectiveness, the
extensiveness of the attempts (medical or nonmedical) to
obtain relief, the frequency of medical contacts, the nature
of daily activities, subjective measures of credibility that
are peculiarly within the judgment of the ALJ, the
motivation of and relationship between the claimant and
other witnesses, and the consistency or compatibility of
nonmedical testimony with objective medical evidence.

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Id. at 1145 (internal quotation marks omitted). But contrary to Ms. Duncan’s claims,

an ALJ is not required to address each factor in his decision. See Qualls v. Apfel,

206 F.3d 1368, 1372 (10th Cir. 2000) (observing that credibility assessment does not

require “formalistic factor-by-factor recitation of the evidence” but instead requires

reference to specific evidence the ALJ does rely on).

The ALJ found that Ms. Duncan’s statements concerning the limiting effects

of her disabling pain were not entirely credible in light of discrepancies between her

alleged symptoms and objective medical evidence in the record. In reaching this

credibility determination, the ALJ discussed the medical evidence and Ms. Duncan’s

testimony. In terms of daily activities, the ALJ noted that Ms. Duncan can perform

household chores with the help of her husband, has a driver’s license and is able to

go shopping, and carries above her head but that she needs help with bathing,

cooking, and tying her shoes. The ALJ found that Ms. Duncan’s medical care had

been routine and conservative in nature; that treatment for her degenerative disc

disease of the cervical spine included medication management; and that there were no

side effects from the use of medications. The ALJ also noted the absence of any

pathological clinical signs or significant medical findings of severe, disabling pain.

He further discussed a comprehensive medical examination in 2010 that found that

Ms. Duncan had a full, active range of motion of her hands and observation during

examination showed that she could use her hands. The ALJ further stated that

Ms. Duncan’s description of limitations was generally inconsistent and, further, that

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her credibility was eroded by a history of numerous violations of the law and

subsequent incarcerations.

We conclude the ALJ considered the appropriate factors in assessing

Ms. Duncan’s credibility and adequately tied his credibility findings to substantial

evidence in the record.

III. Conclusion

The judgment of the district court is affirmed.

Entered for the Court

Jerome A. Holmes
Circuit Judge

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