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

                            FOR THE TENTH CIRCUIT                       January 23, 2013

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
JUDY LUANNE POLSON,

             Plaintiff-Appellant,

v.                                                         No. 12-7039
                                                 (D.C. No. 6:10-CV-00463-KEW)
MICHAEL J. ASTRUE, Commissioner                            (E.D. Okla.)
of Social Security Administration,

             Defendant-Appellee.


                            ORDER AND JUDGMENT*


Before KELLY, McKAY, and O’BRIEN, Circuit Judges.



      Judy Luanne Polson appeals from a judgment of the magistrate judge1

affirming the Social Security Commissioner’s denial of her application for disability



*
      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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
1
     Upon the parties’ consent, the case was referred to the magistrate judge to
conduct all proceedings and to order entry of final judgment. See 28 U.S.C. § 636(c).
benefits under Title II of the Social Security Act. Exercising jurisdiction under

42 U.S.C. § 405(g) and 28 U.S.C. § 1291, we affirm.

      Polson was born in 1962, has a high school education, and has prior work

experience as a home health aide, teacher’s aide, cashier, and sales clerk. Her right

leg was surgically repaired after a 1983 motorcycle accident, and she was diagnosed

with degenerative joint disease in her knees and right hip in 2002. The magistrate

judge’s decision thoroughly describes the medical evidence in the record, thus we do

not repeat it here. Polson applied for benefits in December 2006, claiming disability

due to aching and swelling in her right leg and right hip. Her application was denied

initially and on reconsideration. She then received a de novo hearing before an

administrative law judge (ALJ), at which she and a vocational expert (VE) testified.

      The ALJ found that Polson (1) had not engaged in substantial gainful activity

since September 2004; (2) had severe impairments of degenerative joint disease,

degenerative disc disease, and a prior right leg fracture; (3) did not have an

impairment, or combination of impairments, that met the criteria for presumptive

disability; (4) had the residual functional capacity (RFC) to perform a full range of

sedentary work, and could not return to her past relevant work; but (5) could perform

other work that exists in significant number in the economy, applying the

medical-vocational guidelines (Grids). Based on the above the ALJ concluded

Polson was not disabled. See Wilson v. Astrue, 602 F.3d 1136, 1139 (10th Cir. 2010)




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(describing five-step evaluation process). The Appeals Council denied review, and

the magistrate judge, sitting by consent, affirmed.

      Polson raises two issues on appeal, arguing that the ALJ (1) did not perform a

proper step-five determination, and (2) failed to perform a proper credibility

determination. “We review the [magistrate judge’s] decision de novo and

independently determine whether the ALJ’s decision is free from legal error and

supported by substantial evidence.” Fischer-Ross v. Barnhart, 431 F.3d 729, 731

(10th Cir. 2005).

      We first address the ALJ’s credibility determination. Polson contends the ALJ

failed to discuss and properly apply the factors for assessing credibility when he

found her subjective complaints of disabling pain not to be credible. A disability

claimant’s complaints of disabling pain are evaluated using the three-step analysis set

out in Luna v. Bowen, 834 F.2d 161 (10th Cir. 1987). Under Luna, an ALJ faced

with a claim of disabling pain is required to consider and determine (1) whether the

claimant established a pain-producing impairment by objective medical evidence;

(2) if so, whether the impairment is reasonably expected to produce some pain of the

sort alleged; and (3) if so, whether, considering all the evidence, both objective and

subjective, the claimant’s pain was in fact disabling. Id. at 163-64.

      The ALJ did discuss a number of the Luna factors and tied them to evidence in

the record. In evaluating Polson’s subjective complaints of disabling pain the ALJ

compared them to objective factors: there is no medical evidence that Polson sought


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treatment for, or complained of, leg or hip pain until four to five years after her

degenerative joint disease was diagnosed, and radiographic studies showed no

worsening of her condition since 2000. Moreover, her treating physicians did not

place functional limitations on her activities precluding sedentary work, and

according to two consultative medical experts she could perform more than sedentary

work. Finally, Polson described restricted daily activities but, as the ALJ noted,

there was no evidence of her medical providers placing these restrictions on her. So

long as the ALJ “sets forth the specific evidence he relies on in evaluating the

claimant’s credibility,” he need not make a “formalistic factor-by-factor recitation of

the evidence.” Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000). Objective

evidence does not support her subject complaints.

      Polson complains of the boilerplate language used by the ALJ, to wit: her

“statements concerning the intensity, persistence and limiting effects of [her]

symptoms [were] . . . not credible to the extent they [were] inconsistent with [his

RFC] assessment.” Aplt. App., Vol. 2, at 13. The use of boilerplate language, “in

the absence of a more thorough analysis” is insufficient to support an ALJ’s

credibility determination. Hardman v. Barnhart, 362 F.3d 676, 679 (10th Cir. 2004).

But here, the ALJ did more than merely recite boilerplate. As noted above, he

provided specific reasons for his credibility determination, and he linked his

credibility determination to the evidence, as required. We fully concur with the

magistrate judge’s discussion and analysis of the record: the ALJ properly evaluated


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Polson’s credibility and his findings are supported by substantial evidence in the

record.

      We now turn to the ALJ’s use of the Grids. At step five the ALJ has the

burden to show there are other jobs a claimant can adjust to that exist in significant

numbers in the national economy. See Daniels v. Apfel, 154 F.3d 1129, 1132

(10th Cir. 1998). This burden can be met either by (1) the testimony of a VE, or

(2) by reference to the Grids. Id. “The [G]rids are matrices of the four factors

identified by Congress—physical ability, age, education, and work experience—and

set forth rules that identify whether jobs requiring specific combinations of these

factors exist in significant numbers in the national economy.” Id. (internal quotation

marks omitted). Generally, the Grids may not be used conclusively if the claimant

has nonexertional impairments, such as pain or mental impairments, limiting the

ability to do the full range of work within a classification. See Thompson v. Sullivan,

987 F.2d 1482, 1488 (10th Cir. 1993). Polson contends the ALJ’s use of the Grids

was error because she has nonexertional limitations of pain and a mild mental

impairment of anxiety.

      As the magistrate judge correctly noted, use of the Grids is foreclosed only

where the “nonexertional impairments are significant enough to limit the range of

jobs available in a given work category.” Glass v. Shalala, 43 F.3d 1392, 1396

(10th Cir. 1994). As discussed above, the ALJ found Polson’s pain not to be limiting

in her ability to perform a full range of sedentary work. Further, after discussing the


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evidence, the ALJ found her anxiety to be mild and treatable, not imposing more than

a slight effect on her ability to work. See Evans v. Chater, 55 F.3d 530, 532

(10th Cir. 1995) (ability to perform “substantial majority” of work in RFC assessment

suffices for purposes of Grids). These findings are supported by substantial evidence

in the record.

      Substantial evidence supported the ALJ’s conclusion that Polson’s

nonexertional impairments did not limit her RFC to perform a full range of sedentary

work. Although Polson has some pain and anxiety, the evidence does not indicate

that these impairments prevent her from working. Thus, the ALJ did not err in

applying the Grids. See Castellano v. Sec’y of Health & Human Servs., 26 F.3d

1027, 1030 (10th Cir. 1994) (“[t]he mere presence of a nonexertional impairment

does not preclude reliance on the grids”; it “must interfere with the ability to work.”).

      Polson also complains about the ALJ’s step-five determination, claiming it

was flawed because his hypothetical question to the VE did not contain any

limitations due to her alleged anxiety. This argument is without merit. The ALJ only

questioned the VE at step four, and his only question was to confirm Polson’s

inability to return to her past relevant work. Because the ALJ found that Polson had

the RFC to perform a full range of sedentary work, he relied upon the Grids only to

make his step-five determination, without need of consultation with the VE. Thus,

there was no error in the ALJ’s step-five determination.




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The judgment of the magistrate judge is affirmed.


                                       Entered for the Court


                                       Terrence L. O’Brien
                                       Circuit Judge




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