                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  January 4, 2016
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                          FOR THE TENTH CIRCUIT
                      _________________________________

GREGGORY A. LYNN,

       Plaintiff - Appellant,

v.                                                       No. 15-5031
                                            (D.C. No. 4:13-CV-00596-GKF-TLW)
CAROLYN W. COLVIN, Acting                                (N.D. Okla.)
Commissioner of Social Security
Administration,

       Defendant - Appellee.
                    _________________________________

                          ORDER AND JUDGMENT *
                      _________________________________

Before KELLY, BACHARACH, and MORITZ, Circuit Judges.
                _________________________________

      This appeal grew out of the Social Security Administration determination

that the plaintiff, Mr. Greggory A. Lynn, was not disabled. This determination

was initially made by an administrative law judge after hearing Mr. Lynn’s

evidence. Dissatisfied with the administrative law judge’s determination, Mr.

Lynn sought review by the Social Security Administration’s Appeals Council and


*
       The parties have not requested oral argument, and the Court concludes that
oral argument would not materially aid our consideration of the appeal. See Fed.
R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G). Thus, we have decided the appeal
based on the briefs.

      Our order and judgment does not constitute binding precedent except under
the doctrines of law of the case, res judicata, and collateral estoppel. Fed. R. App.
P. 32.1(a); 10th Cir. R. 32.1(A).
presented new evidence. The Appeals Council considered the evidence, but

declined to review the administrative law judge’s determination. Mr. Lynn sought

further review in federal district court. The court affirmed the denial of benefits

and Mr. Lynn appeals, arguing that

      !      the Appeals Council and the district court failed to properly consider
             the new evidence and

      !      the administrative law judge erroneously failed to consider some of
             Mr. Lynn’s impairments, to properly evaluate Mr. Lynn’s ability to
             reach, to find that the number of available jobs was insignificant, and
             to make proper credibility findings.

We reject these arguments and affirm.

I.    Standard of Review

      We exercise de novo review over the district court’s ruling, considering the

same question presented in district court. Fischer v. Barnhart, 431 F.3d 729, 731

(10th Cir. 2005). That question is whether the Social Security Administration

applied the correct legal standards and made factual findings supported by

substantial evidence. Nguyen v. Shalala, 43 F.3d 1400, 1402 (10th Cir. 1994).

II.   The Appeals Council properly considered the newly submitted
      evidence.

      When seeking review by the Appeals Council, Mr. Lynn submitted an

evaluation form completed by a treating physician (Dr. Joshua Livingston). In the

form, Dr. Livingston opined that Mr. Lynn could not work full-time because of

severe, ongoing pain. According to Mr. Lynn, both the Appeals Council and


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district court failed to properly consider the evaluation form. We reject this

argument.

      Mr. Lynn first argues that the Appeals Council inadequately discussed the

newly submitted evidence. This challenge is invalid.

      The Appeals Council said that it had considered the new evidence and

determined that it did not provide a basis for changing the administrative law

judge’s decision. Appellant’s App’x, vol. II at 1-2. This statement sufficiently

addressed the new evidence, for we held in Martinez v. Barnhart, 444 F.3d 1201

(10th Cir. 2006), that the Appeals Council had no obligation to explain how it

analyzed new evidence. Id. at 1208. There we held that the Appeals Council

satisfied its obligation by stating that it had considered the additional evidence

and that it did not provide a basis for changing the administrative law judge’s

decision. Id. at 1207-08.

      Mr. Lynn attempts to distinguish Martinez on the basis that the new

evidence in Martinez involved only treatment records and that the new evidence

here relates to functional limitations. But Martinez does not turn on the nature of

the new evidence. Instead, the opinion turns on the absence of any legal

requirement for the Appeals Council to discuss the effect of the newly submitted

evidence: “While an express analysis of the Appeals Council’s determination

would have been helpful for purposes of judicial review, [the plaintiff] points to




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nothing in the statutes or regulations that would require such an analysis where

new evidence is submitted and the Appeals Council denies review.” Id. at

1207-08.

       Mr. Lynn also challenges the review in federal district court. According to

Mr. Lynn, the district court failed to properly weigh Dr. Livingston’s opinion

given the pertinent regulatory factors. This argument reflects confusion over what

we are reviewing. Though we are ostensibly reviewing the district court’s ruling,

our review is de novo. See p. 2, above. In exercising de novo review, we

independently determine whether the agency erred. Briggs ex rel. Briggs v.

Massanari, 248 F.3d 1235, 1237 (10th Cir. 2001). Because we are independently

reviewing the agency’s determination, not the district court’s, any alleged error

on the part of the district court would not require reversal.

III.   The administrative law judge did not fail to consider Mr. Lynn’s
       impairments.

       Mr. Lynn argues that the administrative law judge failed to consider

impairments involving vision, finger numbness, and walking. We reject these

arguments.

       A.    The Legal Requirement

       As Mr. Lynn argues, the administrative law judge had an obligation to

consider all of the medically determinable impairments. Salazar v. Barnhart, 468




                                           4
F.3d 615, 621 (10th Cir. 2006). The sole question here is whether the

administrative law judge complied with this requirement.

      B.    The administrative law judge properly considered the alleged
            vision impairment.

      Mr. Lynn testified that he experienced vision problems involving blurriness

and double vision. The administrative law judge accurately recounted this

testimony, noting that Mr. Lynn had two conditions which diminished his vision:

nuclear sclerosis (cataracts) and background diabetic retinopathy.

      The administrative law judge did not ignore the vision problems. Instead,

the judge acknowledged that nuclear sclerosis and background diabetic

retinopathy could reasonably cause the alleged vision problems. The judge then

did what the federal regulations require: he assessed Mr. Lynn’s credibility about

the extent of his vision problems based on these conditions.

      In making this assessment, the administrative law judge referred to four

aspects of the medical evidence:

      1.    A consultative opthalmologist, Dr. Hanson, noted that Mr. Lynn was
            able to navigate throughout the office without assistance.

      2.    An external examination of the eyes was normal.

      3.    A funduscopic examination was normal except for background
            diabetic retinopathy.

      4.    One vision test showed a normal field of vision.




                                         5
In discussing these four aspects of the medical record, the administrative law

judge satisfied his obligation to consider the alleged vision impairment.

      C.      The administrative law judge properly considered numbness in
              the fingers.

      According to Mr. Lynn, the administrative law judge also failed to consider

finger numbness. We disagree.

      Mr. Lynn testified that the numbness prevented him from frequently using

his hands. The administrative law judge questioned this testimony, reasoning that

the medical record did not reflect a cause for the numbness. Mr. Lynn challenges

this reasoning, arguing that the numbness could be traced to diabetic neuropathy

and osteoarthritis. But the record does not tie the finger numbness to diabetic

neuropathy or osteoarthritis. As a result, we reject Mr. Lynn’s argument involving

a failure to discuss the finger numbness.

      D.      The administrative law judge properly considered the difficulty
              in walking.

      Mr. Lynn testified that he needed a cane to walk and argued that this

testimony was improperly discounted. We disagree, for the administrative law

judge did account for the need to use a cane, finding that Mr. Lynn was limited to

work that allowed him to sit most of the day. The difficulty in walking was not

ignored; to the contrary, it was included in the administrative law judge’s

assessment.




                                            6
IV.   The administrative law judge did not err in assessing the ability to
      reach.

      In assessing what Mr. Lynn could do with his impairments, the

administrative law judge found that Mr. Lynn could work so long as he did not

work above the shoulder level. Mr. Lynn argues that this assessment was not

strict enough because medical evidence demonstrated a reduced range of motion

in his right shoulder.

      Dr. Hopper found that Mr. Lynn could reach with his shoulder up to 120

degrees, had a normal ability to adduct and rotate his right shoulder, and could

elevate the right shoulder up to 120 degrees. The administrative law judge

adequately accounted for this evidence in finding that Mr. Lynn could work so

long as he did not work above the shoulder level.

V.    The administrative law judge did not err in finding that the number of
      available jobs was significant.

      The administrative law judge found that there were 700 jobs available in

Mr. Lynn’s region and 24,900 jobs available throughout the nation, concluding

that these numbers were significant. Mr. Lynn argues that with only 700 available

jobs in the region, the administrative law judge should have conducted a more

thorough analysis before characterizing the number of available jobs as

significant.

      Mr. Lynn’s argument erroneously focuses solely on the number of available

regional jobs. “The relevant test is either jobs in the regional economy or jobs in

                                         7
the national economy.” Raymond v. Astrue, 621 F.3d 1269, 1274 n.2 (10th Cir.

2009) (emphasis in original). Thus, the number of available jobs can be

significant even if few of the jobs are in the plaintiff’s region. Id. at 1274. In

these circumstances, we reject Mr. Lynn’s challenge.

VI.   The administrative law judge did not err in assessing Mr. Lynn’s
      credibility.

      Mr. Lynn testified that he could not cook, clean, walk, bathe, or read. But

the administrative law judge concluded that Mr. Lynn’s testimony was not fully

credible based on discrepancies with the medical record. Mr. Lynn argues that

this conclusion was not closely linked to the evidence, ignored the need for a

cane, vaguely referred to undisclosed reasons to discount Mr. Lynn’s symptoms,

mischaracterized the record, disregarded the need for medication, and failed to

account for Mr. Lynn’s inability to afford treatment. These arguments are

rejected.

      The administrative law judge is best suited to assess credibility, and we

will not disturb credibility findings that are supported by substantial evidence.

Wilson v. Astrue, 602 F.3d 1136, 1144 (10th Cir. 2010).

      The administrative law judge discussed the relevant factors and grounded

the findings in the medical evidence. For example, the administrative law judge

cited evidence that Mr. Lynn cared for his own needs, cared for his children while

his wife worked, drove during the day, and paid bills. In addition, the


                                            8
administrative law judge described Mr. Lynn’s conservative level of treatment,

evidence that Mr. Lynn responded well to medication, and the absence of medical

opinions supporting a restrictive physical assessment.

      According to Mr. Lynn, the administrative law judge disregarded the need

for a cane. The judge did not improperly disregard that evidence; instead, the

judge relied on the fact that there was no evidence stating that the use of a cane

was medically necessary.

      Mr. Lynn argues that the judge not only disregarded the need for a cane,

but also vaguely referred to other undisclosed reasons for discounting Mr. Lynn’s

complaints. We disagree. This argument is based on a misinterpretation of the

administrative law judge’s opinion. The judge started his discussion of credibility

by stating: “[I]t is difficult to attribute [Mr. Lynn’s claimed limitations] to [his]

medical conditions, as opposed to other reasons, in view of the relatively weak

medical evidence and other forms discussed in this decision.” Appellant’s App’x

vol. II, at 26 (emphasis added). The judge then discussed the specific evidence,

explaining why he discounted Mr. Lynn’s credibility.

      According to Mr. Lynn, that explanation mischaracterized the evidence

because the administrative law judge erroneously found no evidence of diabetic

retinopathy or finger numbness. But Mr. Lynn misstates what the administrative

law judge found. The judge acknowledged the existence of evidence of trace

diabetic retinopathy, but concluded that this evidence did not support Mr. Lynn’s

                                           9
assertion about the impact on his ability to read. In addition, the judge

acknowledged evidence of joint pain, but remarked that this evidence did not

support the complaint of numbness in Mr. Lynn’s fingers. Thus, the

administrative law judge’s analysis was consistent with the medical evidence.

      Mr. Lynn also argues that the administrative law judge failed to properly

consider the need for medication and the presence of side effects. We disagree.

The administrative law judge remarked that the medications had been

discontinued or adjusted. Mr. Lynn does not question that remark. Instead, Mr.

Lynn challenges the judge’s conclusion that Mr. Lynn had not complained of any

side effects, pointing out that he reported drowsiness and a feeling of heaviness in

his chest. But Mr. Lynn did not attribute these conditions to his medications. He

repeatedly said his medications worked “great.” R. vol. III, at 448, 456, 459. The

judge’s statement was factually correct.

      In addition, Mr. Lynn contends that the administrative law judge

improperly discounted Mr. Lynn’s credibility because he did not seek greater

medical treatment. Mr. Lynn explains that he cannot afford greater treatment.

Under federal regulations, an administrative law judge cannot draw inferences

from a claimant’s failure to seek medical treatment without considering the

claimant’s explanations, such as an inability to afford treatment. Social Security

Regulation 96-7p, 1996 WL 374186, at *7-8 (1996). But here the administrative

law judge did not draw inferences from Mr. Lynn’s failure to seek more extensive

                                           10
treatment. Instead, the judge simply pointed out that Mr. Lynn’s doctors had

recommended and provided treatment that was routine and conservative. That

explanation was permissible under the evidence and federal regulations.

VII. Disposition

      We affirm.

                                      Entered for the Court



                                      Robert E. Bacharach
                                      Circuit Judge




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