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

                      FOR THE TENTH CIRCUIT                   January 9, 2015

                                                            Elisabeth A. Shumaker
                                                                Clerk of Court
PAULINE CARTER,

           Plaintiff - Appellant,

v.                                                No. 14-1170
                                         (D.C. No. 1:13-CV-00504-REB)
CAROLYN W. COLVIN, Acting                          (D. Colo.)
Commissioner of Social Security,

           Defendant - Appellee.


                       ORDER AND JUDGMENT *


Before HOLMES, BACHARACH, and McHUGH, Circuit Judges.



     This appeal involves the Social Security Administration’s

termination of disability benefits. Ms. Carter challenges the termination of

benefits on procedural and substantive grounds. Her procedural challenge

is based on a mistaken interpretation of the agency’s earlier decision. She

*
      The parties requested a decision on the briefs, and oral argument
would not materially help in deciding the appeal. See Fed. R. App. P.
34(a)(2); 10th Cir. R. 34.1(G). Thus, we have declined to order oral
argument.
      This order and judgment does not constitute 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(a) and 10th Cir. R. 32.1(A).
asserts that the agency said in 2002 the disability was continuing. That

assertion is incorrect. Ms. Carter also makes a substantive challenge,

arguing that the agency mistakenly downplayed her limitations. In our

view, however, the agency did not err in applying legal standards or in

weighing the evidence. Thus, we affirm.

I.     The Administrative Proceedings

       Ms. Pauline Carter broke her hip in 2001 and obtained disability

benefits until June 5, 2002, based on satisfaction of a listing. After three

hearings, the agency found that Ms. Carter’s disability had terminated on

June 5, 2002, when an x-ray showed the hip had healed. In ordering

termination of benefits, the agency concluded that after June 5, 2002,

Ms. Carter could perform some “light” jobs such as a clerical checker, coin

machine collector, or vending machine operator. The federal district court

affirmed.

II.    Standard of Review

       On appeal, we must decide if the agency correctly applied legal

standards and made factual findings supported by substantial evidence.

Mays v. Colvin, 739 F.3d 569, 571 (10th Cir. 2014).

III.   Procedural Arguments

       Ms. Carter alleges violation of administrative regulations and

deprivation of due process. These allegations are invalid.


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      Ms. Carter argues that

      ●     the agency said in August 2002 that the disability was
            continuing, and

      ●     the agency lacked a basis to reopen that decision.

      This argument is inaccurate because the agency did not say in August

2002 that the disability was continuing. The agency said only that the

disability continued until her x-ray was taken (which was on June 5,

2002). 1 In finding that the disability continued until June 5, 2002, the

agency did not violate any of its regulations.

      Nor did it deprive Ms. Carter of due process. According to Ms.

Carter, the agency confused the termination date, impeding her ability to

develop a record in 2002 and 2003. We cannot entertain this allegation

because it was not made in district court. See Lyons v. Jefferson Bank &

Trust, 994 F.2d 716, 721-22 (10th Cir. 1993).

      Even if we were to address the argument on the merits, it would fail.

Ms. Carter must show that the agency’s decision was fundamentally unfair.

Mays, 739 F.3d at 573. Under this standard, the claim fails because

Ms. Carter has not said what she would have done differently to develop a

record of disability in 2002 and 2003.



1
      The agency mistakenly continued to pay disability benefits until
2007, but has not required Ms. Carter to repay these benefits.


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IV.   Physical Assessment

      Ms. Carter argues that the agency should not have found an ability to

perform light work, pointing to physical impairments, limited ability to

perform daily activities, and three medical opinions (Goodwin, Wilkins,

and Taylor). Physically, Ms. Carter relies on her need for narcotics, the

impact of her trochanteric bursitis and knee impairment, the screw

protruding into her fibula, and drowsiness from her medications. In

addition, she complains that she often has to rest and needs help with daily

chores.

      The agency adequately addressed this evidence. For example, the

agency noted that Ms. Carter had acknowledged the ability to conduct daily

physical therapy exercises and a variety of daily chores, including laundry,

making the bed, watering flowers, driving a truck, and seeing friends. In

addition, the agency analyzed the minimal medical records after June 5,

2002. These records reflected improvement after hip surgery in the Fall of

2002 and surgery on the left knee in the Summer of 2003.

      Ms. Carter relies in part on opinions by Dr. Taylor and Ms. Goodwin.

The agency justifiably declined to give weight to Dr. Taylor’s opinion

because it did not cover the pertinent time-period. Though the agency

failed to discuss the statement of Ms. Goodwin, the omission was




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immaterial because the agency found Ms. Carter disabled during the time-

period covered by Ms. Goodwin’s opinion.

     Accordingly, we conclude that the agency correctly applied legal

standards and that the findings are supported by substantial evidence.

V.   Credibility Findings

     Ms. Carter also challenges the agency’s credibility findings, such as

fatigue from pain, loss of sleep, and side effects from medication. These

challenges are based on evidence of ineffective ambulation, testimony by a

friend, and evidence of an insurer’s payment of benefits for a disability.

We reject these challenges.

     The agency is ideally suited to assess credibility, and we will not

disturb the agency’s credibility findings when they are supported by

substantial evidence. Wilson v. Astrue, 602 F.3d 1136, 1144 (10th Cir.

2010). We conclude that the agency correctly applied legal standards and

that the credibility findings are supported by substantial evidence.

     Ms. Carter did present evidence of ineffective ambulation. But, the

agency could reasonably reject this evidence based on two medical

assessments that would have allowed considerable ambulation. In the first

assessment (August 2002), a doctor said only that Ms. Carter should

remain cautious when moving about. In the second assessment (October

2003), a doctor provided minimum limits (no participation in bowling or


                                    -5-
sports requiring lateral motion). Based on these two assessments, the

agency could reasonably discount Ms. Carter’s evidence of ineffective

ambulation.

      According to Ms. Carter, the agency should have credited the

testimony of her friend and the disability determination by an insurer. We

reject these arguments. The agency stated that it had considered all the

evidence. Thus, we assume that the agency considered both the friend’s

testimony and the insurer’s disability determination. See Wall v. Astrue,

561 F.3d 1048, 1070 (10th Cir. 2009).

      In addition, both pieces of evidence appear immaterial. Ms. Carter

does not identify anything in the friend’s testimony that would affect the

outcome. And, there is no evidence about the circumstances surrounding

the insurer’s award of benefits (other than Ms. Carter’s testimony that she

obtained disability benefits from the insurer). In these circumstances, the

agency did not err by overlooking the friend’s testimony or the insurer’s

disability determination.

VI.   Hypothetical Question

      Ms. Carter also contends the agency should have incorporated her

self-described limitations when questioning the vocational expert. We

reject this contention.




                                    -6-
      In asking hypothetical questions, the administrative law judge needs

only to include impairments supported in the record. Shepherd v. Apfel,

184 F.3d 1196, 1203 (10th Cir. 1999). The administrative law judge

included the impairments that he had found. And, as noted above, the

administrative law judge’s assessment was supported by the record.

Accordingly, the administrative law judge did not err in declining to ask

the vocational expert about the effect of greater limitations.

VII. Disposition

      We reject any other arguments made by Ms. Carter as not properly

preserved for appellate review. With these conclusions, we affirm.


                                    Entered for the Court



                                    Robert E. Bacharach
                                    Circuit Judge




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