FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 14, 2015
_________________________________
Elisabeth A. Shumaker
Clerk of Court
SHARON M. SMITH,
Plaintiff - Appellant,
v. No. 15-6001
(D.C. No. 5:13-CV-01159-D)
CAROLYN W. COLVIN, Acting (W.D. Okla.)
Commissioner of Social Security
Administration,
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HARTZ, PHILLIPS, and McHUGH, Circuit Judges.
_________________________________
Sharon M. Smith appeals from the district court’s order denying her
application for Social Security disability benefits and supplemental security income
benefits. Exercising jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g), we
affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor 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
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 This order and judgment is not binding precedent,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. Smith’s April 2011 application for benefits alleged an onset date in March
2007, when she was 28 years old. She worked previously as a cashier and carhop.
After the administrative denial of her claims, Ms. Smith requested a hearing
before an administrative law judge (ALJ), but the ALJ concluded that she was not
disabled and the Appeals Council denied review. Represented by counsel, she then
sought relief from the district court, which adopted the magistrate judge’s report and
recommendation (R&R) that the Commissioner’s decision be affirmed.
At step two of the five-step sequential evaluation process, the ALJ found that
Ms. Smith had the following severe impairments: (1) degenerative disc disease of
the lumbar spine (post surgery); (2) degenerative joint disease of the right knee (post
surgery); (3) obesity; and (4) hypertension. The ALJ also evaluated Ms. Smith’s
affective disorder of depression and found that it was not severe because it resulted in
only mild functional limitations.
It is the ALJ’s findings at step four that are at issue on appeal. At step four the
ALJ found that Ms. Smith had the residual functional capacity (RFC) to perform
work at the light exertional level involving lifting or carrying 20 pounds occasionally
and 10 pounds frequently, standing or walking 6 hours in an 8-hour workday, sitting
for 6 hours in an 8-hour workday, and requiring no more than occasional crouching
or kneeling. The ALJ also considered Ms. Smith’s testimony about disabling pain
and found that it was not entirely credible. On the basis of the vocational expert’s
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testimony, the ALJ found at step five that Ms. Smith was capable of performing work
available in the economy and therefore was not disabled.
II. Discussion
Because we review de novo the district court’s ruling in a social security case,
“we independently determine whether the ALJ’s decision is free from legal error and
supported by substantial evidence.” Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir.
2009) (internal quotation marks omitted). “Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion. It
requires more than a scintilla, but less than a preponderance.” Id. (internal quotation
marks omitted). “[W]e 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).
Ms. Smith’s overarching argument is that the ALJ erred in formulating her
RFC. She contends that the ALJ did not properly evaluate her obesity, credibility,
and depression. We conclude (1) that the ALJ’s decisions on obesity and credibility
are free from legal error and supported by substantial evidence, and (2) that
Ms. Smith waived her arguments regarding depression.
A. Obesity
“The RFC assessment considers only functional limitations and restrictions
that result from an individual’s medically determinable impairment or combination of
impairments, including the impact of any related symptoms.” SSR 96-8p, 1996 WL
374184, at *1 (July 2, 1996). Although the ALJ is required to consider the effects of
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obesity when assessing the claimant’s RFC, see SSR 02-1p, 2002 WL 34686281,
at *1 (Sept. 12, 2002), the ALJ may “not make assumptions about the severity or
functional effects of obesity combined with other impairments” but instead must
“evaluate each case based on the information in the case record,” id. at *6.1
Ms. Smith acknowledges that the ALJ found her obesity to be a severe
impairment, but argues that he failed to properly consider its effects in formulating
her RFC. For example, she argues that the “synergistic effect [of obesity] can result
in a RFC for less than sedentary work.” Aplt. Opening Br. at 17 (emphasis added).
As noted above, however, an ALJ cannot assume a functional deficit.
Ms. Smith also says that “other than noting [her] obesity was a severe
impairment, the ALJ never analyzed or discussed [her] obesity, including in his RFC
analysis.” Id. at 13. We take this to mean that for each piece of evidence the ALJ
discussed in formulating her RFC (and there were several), he was also required to
note the absence of any evidence that her obesity resulted in additional functional
limitations or exacerbated any other impairment. We decline to impose such a
requirement on the ALJ.
Based on the record evidence, the ALJ limited Ms. Smith to light work with no
more than occasional crouching and kneeling. Ms. Smith has not shown that her
obesity alone, or in combination with other impairments, resulted in any further
1
Social security rulings do not carry the force of law; but they are generally
entitled to deference because “they constitute Social Security Administration
interpretations of its own regulations and the statute which it administers.” Walker v.
Sec’y of Health & Human Servs., 943 F.2d 1257, 1259-60 (10th Cir. 1991).
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limitations. The ALJ followed SSR 02-1p in formulating Ms. Smith’s RFC and his
findings are supported by substantial evidence.
B. Credibility
Ms. Smith contends that the ALJ erred in finding her complaints of disabling
pain not entirely credible. She points to her testimony of “debilitating migraines . . .
and pain in her low back and right knee that limited her ability to sit, stand, walk, and
lift.” Aplt. Opening Br. at 24-25. According to Ms. Smith, once the ALJ found that
her degenerative disc disease of the lumbar spine and degenerative joint disease of
her right knee were severe impairments, he was required to conclude that the pain she
associated with these ailments was disabling. She also attacks as improper
“boilerplate,” the ALJ’s conclusion that her “‘statements concerning the intensity,
persistence and limiting effects of these symptoms are not credible to the extent they
are inconsistent with the [RFC] assessment.’” Id. at 29. We disagree with these
contentions.
The framework for evaluating the intensity and persistence of symptoms and
their functional effects is provided in 20 C.F.R. §§ 404.1529(c) and 416.929(c).
See also SSR 96-7P, 1996 WL 374186, at *1 (“When the existence of a medically
determinable physical or mental impairment(s) that could reasonably be expected to
produce the symptoms has been established, the intensity, persistence, and
functionally limiting effects of the symptoms must be evaluated to determine the
extent to which the symptoms affect the individual’s ability to do basic work
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activities. This requires the adjudicator to make a finding about the credibility of the
individual’s statement about the symptom(s) and its functional effects”).
“Credibility determinations are peculiarly the province of the finder of fact,
and we will not upset such determination when supported by substantial evidence.”
Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995) (internal quotation marks
omitted). But “findings as to credibility should be closely and affirmatively linked to
substantial evidence and not just a conclusion in the guise of findings.” Id. (internal
quotation marks omitted). An ALJ must do more than simply “recite[] the general
factors he considered . . . [without] refer[ring] to any specific evidence.” Qualls v.
Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000). Kepler does not, however, “require a
formalistic factor-by-factor recitation of the evidence. So long as the ALJ sets forth
the specific evidence he relies on in evaluating the claimant’s credibility, the dictates
of Kepler are satisfied.” Id.
The ALJ’s analysis meets this test. Regarding Ms. Smith’s knee pain, the ALJ
reported that Ms. Smith underwent arthroscopic surgery and was treated with
epidural injections and therapy. The ALJ noted, however, that postoperative x-rays
“showed good alignment and no significant bony abnormality.” Aplt. App., Vol. I
at 21. And a later examination revealed “that she had a good range of motion of the
right knee [with] some small . . . effusion. However, she had good motor and sensory
function.” Id.
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As for Ms. Smith’s back, the ALJ stated that she “underwent a minimally
invasive [procedure] . . . [and] [p]ostoperatively, her pain improved and her incision
healed well with no redness or drainage. She was prescribed Lortab and Mobic.” Id.
The ALJ also found that Ms. Smith’s testimony about her daily activities was
inconsistent with her allegations of disabling pain. He said that Ms. Smith “indicated
dressing, bathing, caring for her hair, feeding herself [and] toileting without
assistance. . . . She is also able to prepare meals, wash laundry, clean, shop in stores
and drive.” Id. The ALJ’s credibility findings are closely and affirmatively linked to
substantial evidence and may not be disturbed.
C. Depression
“[W]aiver principles developed in other litigation contexts are equally
applicable to social security cases. Thus, waiver may result from the . . . claimant’s
failure to . . . object adequately to the magistrate judge’s recommendation[.]” Berna
v. Chater, 101 F.3d 631, 632-33 (10th Cir. 1996) (citation and internal quotation
marks omitted). “[A] party’s objections to the magistrate judge’s report and
recommendation must be both timely and specific to preserve an issue for appellate
review.” Soliz v. Chater, 82 F.3d 373, 375 (10th Cir. 1996) (ellipsis and internal
quotation marks omitted). Specificity is necessary because “only an objection that is
sufficiently specific to focus the district court’s attention on the factual and legal
issues that are truly in dispute will advance the policies behind the Magistrate’s Act
that led us to adopt a waiver rule in the first instance.” United States v. One Parcel
of Real Prop., 73 F.3d 1057, 1060 (10th Cir. 1996).
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The Commissioner contends that Ms. Smith waived her appellate arguments
concerning the ALJ’s analysis of her affective disorder (depression) because she
failed to make sufficiently specific objections to the magistrate judge’s R&R. We
agree.
In her brief to the magistrate judge, Ms. Smith’s entire argument concerning
the ALJ’s alleged failure to properly evaluate her depression was buried in part of a
single sentence toward the end of a six-page discussion focused on obesity:
“Because the ALJ failed to acknowledge or consider [her] obesity and did not
provide any meaningful analysis concerning the impact of her affective disorder, he
effectively did not evaluate these impairments at steps four and five of the sequential
analysis.” Aplt. App., Vol. II at 400 (emphasis added). The magistrate judge
nonetheless mentioned the “argument” about her depression in his R&R and
concluded that Ms. Smith failed to identify any error:
[T]he ALJ’s decision includes a discussion of the evidence related to
[Ms. Smith’s] depression, including reference to the report of the
consultative psychological examiner . . . and specific findings as to the
severity of functional limitations stemming from her depression based
on her subjective testimony and statements in the record and [the]
report. [Ms. Smith] does not point to evidence in the record that was
probative of the issue and was not discussed in the ALJ’s decision.
Id. at 424.
Ms. Smith’s objections to the R&R concerning her depression were as flawed
as her initial conclusory assertion. Instead of identifying any specific error, she
merely repeated the above-quoted statement from her earlier brief. Understandably
perceiving no objection, the district court did not even mention Ms. Smith’s affective
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disorder (depression) in its decision adopting the R&R. We hold that Ms. Smith did
not preserve the issue for appeal.2
The judgment of the district court is affirmed.
Entered for the Court
Harris L Hartz
Circuit Judge
2
Ms. Smith did not file a reply brief to argue that we should apply the
interests-of-justice exception to the firm waiver rule. See Soliz v. Chater, 82 F.3d
373, 376 (10th Cir. 1996) (recognizing the interests-of-justice exception to the firm
waiver rule). Therefore, we do not address the exception.
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