FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 15, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
KAREN JOHNSON,
Plaintiff - Appellant,
v. No. 16-1076
(D.C. No. 1:14-CV-03096-CMA)
NANCY A. BERRYHILL,* Acting (D. Colo.)
Commissioner of Social Security,
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before LUCERO, HOLMES, and MORITZ, Circuit Judges.
_________________________________
Karen Johnson appeals a district court order affirming the Commissioner’s
denial of disability insurance benefits. Exercising jurisdiction under 28 U.S.C.
§ 1291 and 42 U.S.C. § 405(g), we affirm.
*
Pursuant to Fed. R. App. P. 43(c)(2), Nancy A. Berryhill is substituted for
Carolyn Colvin as the Acting Commissioner of the Social Security Administration.
*
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 This order and judgment is not binding precedent,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
Johnson claims she was disabled from January 1, 2006, through December 31,
2009, the date she last met the insured status requirements (“date last insured” or
“DLI”). She suffers from rheumatoid arthritis (“RA”), deep vein thrombosis, obesity,
fibromyalgia, sciatica, sleep apnea, insomnia, day-time somnolence, anxiety, and
depression. After a hearing, an administrative law judge (“ALJ”) concluded at the
final step of the five-step evaluation process, see Wall v. Astrue, 561 F.3d 1048,
1052 (10th Cir. 2009) (explaining five-step process), that Johnson was not disabled
because she retained the residual functional capacity (“RFC”) to perform a limited
range of sedentary work. On judicial review, however, the district court reversed,
concluding that the ALJ failed to demonstrate that he considered all of her
impairments.
After a new hearing on remand, a different ALJ concluded that Johnson was
not disabled. The ALJ determined that RA, deep vein thrombosis, obesity, and
fibromyalgia were Johnson’s only severe impairments, and that her other, non-severe
impairments had no impact on the earlier RFC assessment; thus, Johnson still
retained the RFC for a limited range of sedentary work. The ALJ incorporated much
of the first ALJ’s analysis, including the finding that Johnson’s testimony was only
partially credible. Relying on previous testimony from a vocational expert, the ALJ
also concluded that Johnson could transition to other work in the national economy.
The Appeals Council denied review, and the district court affirmed.
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On appeal, Johnson contends the ALJ: (1) failed to consider all of her
impairments and their combined effect; (2) improperly evaluated her RFC and
credibility; and (3) relied on inaccurate hypothetical questions posed to the
vocational expert at her first administrative hearing.
II
“We review the Commissioner’s decision to determine whether the factual
findings are supported by substantial evidence and whether the correct legal
standards were applied.” Mays v. Colvin, 739 F.3d 569, 571 (10th Cir. 2014)
(quotation omitted). “[I]n making this determination, we cannot reweigh the
evidence or substitute our judgement for the [ALJ’s].” Smith v. Colvin, 821 F.3d
1264, 1266 (10th Cir. 2016).
A
Johnson argues that the ALJ failed to consider all of her impairments and their
combined effect. In particular, she contests the ALJ’s step-three finding that her
impairments, in combination, do not meet or equal the criteria for a per se disabling
impairment under the Social Security regulations. See Vigil v. Colvin, 805 F.3d
1199, 1203 (10th Cir. 2015) (observing that ALJ must determine at step three
whether claimant’s impairments meet or equal a listed impairment); 20 C.F.R.
§ 404.1520(a)(4)(iii) (same). “To show that an impairment or combination of
impairments meets the requirements of a listing, a claimant must provide specific
medical findings that support each of the various requisite criteria for the
impairment.” Lax v. Astrue, 489 F.3d 1080, 1085 (10th Cir. 2007). “An impairment
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that manifests only some of those criteria, no matter how severely, does not qualify.”
Sullivan v. Zebley, 493 U.S. 521, 530 (1990).
Johnson suggests that her impairments meet or equal listing 14.09D. That
listing requires:
Repeated manifestations of inflammatory arthritis, with at least two of
the constitutional symptoms or signs (severe fatigue, fever, malaise, or
involuntary weight loss) and one of the following at the marked level:
(1) Limitation of activities of daily living. (2) Limitation in maintaining
social functioning. (3) Limitation in completing tasks in a timely
manner due to deficiencies in concentration, persistence, or pace.
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 14.09D. Johnson does not cite any evidence
showing that she meets these criteria. Although there was evidence confirming that
she suffers from RA, a reviewing agency physician’s report indicated that there was
“[m]inimal da[ta] regarding RA aside from some synovitis” of the wrists. A physical
functional capacity assessment further noted that despite an elevated rheumatoid
factor, Johnson’s “[f]ilms ha[d] not shown any erosive changes or joint space
narrowing.” Finally, to the extent Johnson asserts that her other impairments meet
the requirements of a listing, the first ALJ considered evidence that her mental
impairments did not restrict her activities of daily living (“ADLs”) and imposed only
mild limitations on her ability to maintain social functioning, concentration,
persistence, or pace. The second ALJ incorporated the first ALJ’s discussion into his
analysis and expanded upon the combined impact of Johnson’s non-severe
impairments, including sciatica, sleep apnea, insomnia, and somnolence. Stating he
had considered all the evidence, he concluded Johnson did not meet the requirements
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for any listing. See Wall, 561 F.3d at 1070 (noting that if an ALJ indicates he has
considered all the evidence, we generally take him “at his word” (brackets and
quotation omitted)).
Nevertheless, Johnson asserts that the ALJ ignored evidence of her neck and
back problems, specifically her degenerative disc disease, which she says caused
marked limitations of her ADLs. Although there was evidence of minimal to
moderate degenerative disc disease that predated the period of disability, see Hamlin
v. Barnhart, 365 F.3d 1208, 1215 (10th Cir. 2004) (recognizing that evidence of
progressive condition from previously adjudicated periods of disability is relevant to
disability determination), Johnson complained only once of sciatica, toward the end
of her coverage period. The ALJ observed that this single complaint suggested only
a minimal impact on her ability to work. Moreover, Johnson was prescribed oral
medication and physical therapy for sciatic pain, and her physical exam showed her
“spine [was] normal without deformity or tenderness.” Johnson argues that this
discussion of sciatica did not account for her low back pain, but the first ALJ
recognized that she was experiencing generalized joint pain. To the extent Johnson
insists the ALJ should have separately discussed her low back pain, the omission
does not require reversal. See Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166
(10th Cir. 2012) (“[M]erely technical omissions in the ALJ’s reasoning do not dictate
reversal.”).
Johnson also complained of neck and upper back pain in May 2009. Although
an x-ray of her thoracic spine was normal, her doctor prescribed medication for neck
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pain, and her rheumatologist diagnosed her with acute cervical strain, which was
treated with injections. The ALJ did not discuss this evidence from Johnson’s
treating physicians, whose opinions generally are entitled to controlling weight.
See Hamlin, 365 F.3d at 1215. However, these particular findings are not probative
of any functional limitations—certainly not any at the “marked” severity level.
Johnson nevertheless insists she had marked limitations of ADLs, relying on her own
statements that she experienced fatigue and could walk no more than twenty steps
before needing to rest. But a claimant’s own statements of her symptoms cannot
satisfy a listing’s severity requirement. See 20 C.F.R. § 404.1529(d)(3). Thus, the
ALJ correctly determined that Johnson did not meet the criteria for a listing-level
impairment.
B
Johnson also contends the ALJ erred in assessing her RFC and credibility.
The first ALJ concluded that she had the RFC for sedentary work, subject to certain
restrictions. He further determined that Johnson’s statements concerning the
intensity, persistence, and limiting effects of her symptoms were not credible to the
extent they were inconsistent with her RFC. The second ALJ incorporated these
findings after concluding that Johnson’s non-severe impairments had no impact on
her RFC.
On appeal, Johnson argues that by incorporating a prior ALJ’s findings as to
RFC, the ALJ did not account for several of her impairments and their combined
effect. See 20 C.F.R. § 404.1545(a)(2) (providing that the agency “will consider all
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of [a claimant’s] medically determinable impairments . . . , including [those] that are
not ‘severe’”). Specifically, she insists the ALJ failed to account for her
degenerative disc disease. As explained above, however, he evaluated her complaint
of sciatica but found it had no impact on the previous RFC assessment, which already
accounted for her joint pain. Johnson suggests there was other evidence of sciatica,
but her citations either reference the ALJ’s decision or medical notes documenting
her own reports of pain in her left leg and decreased sensation in her right lower
extremity, neither of which were associated with degenerative disc disease or
sciatica.
Johnson further contends the ALJ failed to account for her fibromyalgia
because he found that it did not change her RFC, despite determining at step two that
it constituted a severe impairment. But this argument overstates the impact of the
agency’s summary step-two evaluation on the detailed RFC determination at step
four. At step two, the ALJ determines whether the claimant has a medically severe
impairment—that is, an impairment that “significantly limits a claimant’s physical or
mental ability to do basic work activities.” Allman v. Colvin, 813 F.3d 1326, 1330
(10th Cir. 2016) (brackets omitted) (quoting 20 C.F.R. § 404.1520(c)). But at that
point in the sequential evaluation process, the required showing is de minimis, id.,
and does not account for the ALJ’s assessment, at step four, of a claimant’s ability to
work at a given exertional level, see 20 C.F.R. § 404.1520(e) (explaining that if
claimant has an impairment that does not meet or equal a listing, the ALJ will assess
claimant’s RFC to determine disability at steps four and five of the evaluation
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process). Thus, a finding that an impairment is severe at step two is not
determinative of the claimant’s RFC and cannot substitute for a proper step-four
analysis. Cf. Oldham v. Astrue, 509 F.3d 1254, 1257 (10th Cir. 2007) (stating that “a
finding of severe impairments (which is made at step two) does not require the ALJ
to find at step five that the claimant did not have the residual functional capacity to
do any work,” as “the ALJ still had the task of determining the extent to which those
impairments . . . restricted her ability to work”).
Given this framework, although the ALJ found at step two that Johnson’s
fibromyalgia was a severe impairment, he was still required to assess whether it
presented additional functional limitations affecting her RFC. On that score, the ALJ
determined that Johnson’s fibromyalgia did not change her RFC because she was not
diagnosed until 2010, after her DLI. Johnson contends this “post-DLI diagnosis was
not a valid reason for discounting” the effects of her fibromyalgia. But “the
proffered evidence [must] relate to the time period for which the benefits were
denied.” Hargis v. Sullivan, 945 F.2d 1482, 1493 (10th Cir. 1991). Moreover, the
ALJ stated that he considered her symptoms to the extent they related back to the
period of disability, but he nevertheless determined there was no impact on her RFC.
Johnson disputes this conclusion, citing her sleep issues, fatigue, anxiety, and
depression; however, the ALJ found that those impairments imposed only minimal
limitations on her ability to work. And although Johnson’s fibromyalgia may have
manifested symptoms similar to these impairments, see Wilson v. Astrue, 602 F.3d
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1136, 1143 (10th Cir. 2010), she cites no evidence that any pre-DLI symptoms
impacted her RFC.
Johnson also asserts that her RFC was skewed because the ALJ improperly
discredited her testimony concerning her pain, her sleep habits, the side effects of her
medication, the frequency of her RA flares, and the limitations on her ADLs.
“Credibility determinations are peculiarly the province of the finder of fact, and [this
court] will not upset such determinations when supported by substantial evidence.”
Newbold v. Colvin, 718 F.3d 1257, 1267 (10th Cir. 2013) (quotation omitted).
Although an ALJ “need not make a formalistic factor-by-factor recitation of the
evidence” pertaining to a claimant’s credibility, he should consider such factors as
her daily activities, reactions to treatment, “persistent attempts to find relief for her
pain[,] . . . willingness to try any treatment prescribed, regular use of crutches or a
cane, [and] regular contact with a doctor.” Keyes-Zachary, 695 F.3d at 1167
(brackets and quotations omitted).
The first ALJ recited Johnson’s testimony about her severe pain and postural
limitations, as well as the side effects allegedly caused by her medications. He also
recalled her allegations of restricted ADLs, including her limited ability to grip, hold
a pen, and use a keyboard and mouse. Although he acknowledged that Johnson’s
impairments could be expected to cause the alleged symptoms, he found that her
testimony concerning their intensity, persistence, and limiting effects was not
credible to the extent it was inconsistent with her RFC. For example, he explained
that she claimed to need a cane for walking, yet she was not prescribed a cane, and
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there were consistent reports that she had a normal gait and station. Moreover,
despite her allegations of disabling arthritic pain, she was engaged in an exercise
weight-loss program, which she was told to continue. And he noted that her reports
of pain were generally accompanied by mild or normal findings. Based on this and
other evidence, the ALJ concluded that Johnson had “partially credible hearing
testimony”—a finding that the second ALJ determined was unchanged and that is
supported by the evidence.1
C
Johnson further asserts that the ALJ erred in relying on inaccurate hypothetical
questions posed to the vocational expert at her first administrative hearing. In
particular, she claims the questions did not reflect her degenerative disc disease or
postural limitations. But the questions accounted for both: they provided that the
claimant would experience “mild to moderate chronic pain and discomfort likely
noticeable at all times,” and “would need to change positions fairly frequently,” with
the ability “to stay seated up to a half an hour and stand a little while and be seated
again.”
Johnson also claims that the ALJ erred in finding that she had transferable
skills from her past relevant work as a reservationist. “When an ALJ makes a finding
1
Johnson’s RFC/credibility argument exemplifies a common theme throughout
her brief: by incorporating the first ALJ’s analyses, the second ALJ failed to
correctly evaluate the evidence. Although this approach may have created some
ambiguity, Johnson fails to identify any ground for reversal. The second ALJ
indicated that he conducted an independent assessment of all the evidence, and we
take him at his word. See Wall, 561 F.3d at 1070.
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that a claimant has transferable skills, he must identify the specific skills actually
acquired by the claimant and the specific occupations to which those skills are
transferable.” Dikeman v. Halter, 245 F.3d 1182, 1185 (10th Cir. 2001). Consistent
with these requirements, the ALJ indicated that Johnson had acquired customer
service, record-keeping, typing, and computer skills that were transferable to jobs
existing in significant numbers in the national economy, including order clerk,
information clerk, and general clerk. His finding is supported by Johnson’s own
testimony that she has a bachelor’s degree in behavioral science and early childhood
education and worked full time for a taxi/limousine company, taking high-volume
reservations and transferring skiers between the airport and ski resort.
III
For the foregoing reasons, the district court’s order is AFFIRMED.
Entered for the Court
Carlos F. Lucero
Circuit Judge
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