                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 November 3, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                            FOR THE TENTH CIRCUIT


    KAREN L. KORUM,

                Plaintiff-Appellant,

    v.                                                    No. 09-1111
                                                (D.C. No. 1:08-CV-00926-ZLW)
    MICHAEL J. ASTRUE,                                     (D. Colo.)
    Commissioner of Social Security,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before TACHA, ANDERSON, and EBEL, Circuit Judges.



         Karen L. Korum appeals the district court’s order affirming the

Commissioner’s denial of her application for a period of disability and disability

insurance benefits. We have jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C.

§ 405(g). Because the Commissioner’s decision is supported by substantial

evidence and demonstrates no reversible legal error, we affirm.


*
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
                                    Background

      In February 2002, Ms. Korum filed her application for benefits, alleging

disability since September 8, 2000, due to multiple impairments including chronic

pain in her lower back and coccyx (tailbone). The Appeals Council remanded the

ALJ’s denial of her application, directing the ALJ to obtain additional evidence,

to consider further the medical opinions, to determine whether Ms. Korum has a

severe mental impairment, and to consider further her residual functional capacity

(RFC). Issuing a second decision, the ALJ again denied benefits. When the case

reached the district court, however, the Commissioner filed an unopposed motion

to remand for further proceedings. The district court granted the motion, so

Ms. Korum’s application was remanded to the Appeals Council, and in turn to a

different ALJ, for a third determination.

      After holding another hearing, the new ALJ applied the five-step benefits

determination process. See generally Wall v. Astrue, 561 F.3d 1048, 1052

(10th Cir. 2009). At step one, he found that Ms. Korum had not engaged in

substantial gainful activity between her onset date and December 31, 2006, her

date last insured. At step two, he determined that she had several severe

impairments (mild arthritis of the lumbar spine, mild arthritis of the sacroiliac

joints vs. sacroiliac joint dysfunction, coccydynia, pyriformis syndrome, lumbar

myofascial pain syndrome, and a pain disorder). At step three, he found that none

of the impairments or a combination of impairments met or equaled any of the

                                            -2-
listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. The ALJ then

assessed Ms. Korum’s RFC, and, at step four, determined that she could not

perform her past relevant work as an order clerk. Concluding that her RFC

allowed her to perform a limited range of light work and that she could perform a

significant number of jobs in the national economy, the ALJ found her not

disabled at step five and denied her application for benefits. The Appeals Council

denied review, making the ALJ’s decision the final agency decision. The district

court affirmed, and Ms. Korum now appeals to this court.

                                     Analysis

      “We review the Commissioner’s decision to determine whether the factual

findings are supported by substantial evidence in the record and whether the

correct legal standards were applied.” Doyal v. Barnhart, 331 F.3d 758, 760

(10th Cir. 2003). “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.” Wall, 561 F.3d at 1052 (quotation

omitted). “Although we will not reweigh the evidence or retry the case, we

meticulously examine the record as a whole, including anything that may

undercut or detract from the ALJ’s findings in order to determine if the

substantiality test has been met.” Id. (quotations omitted). Ms. Korum’s date last

insured was December 31, 2006, so she had to be disabled on or before that date

to obtain disability benefits.

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                    The ALJ Did Not Reversibly Err at Step Two

      Ms. Korum first argues that the ALJ erred at step two by failing to assess

some of her impairments as severe and failing to take into consideration all her

impairments, singly or in combination. She contends that (1) she was diagnosed

with thoracic outlet syndrome and/or brachial plexus compression that restricted

her ability to use her right upper extremity, (2) the ALJ failed to consider her

diagnosed mental impairments, and (3) the ALJ ignored the combined effect of

other impairments that he did not find to be severe.

      This court has held that it is not necessarily reversible error for an ALJ to

fail to assess an impairment as “severe” at step two. See Carpenter v. Astrue,

537 F.3d 1264, 1266 (10th Cir. 2008) (“[A]ny error here became harmless when

the ALJ reached the proper conclusion that [claimant] could not be denied

benefits conclusively at step two and proceeded to the next step of the evaluation

sequence.”); Oldham v. Astrue, 509 F.3d 1254, 1256-57 (10th Cir. 2007) (“We

can easily dispose of . . . arguments[] which relate to the severity of [claimant’s]

impairments. The ALJ . . . made an explicit finding that [claimant] suffered from

severe impairments. That was all the ALJ was required to do in that regard.

[Claimant’s] real complaint is with how the ALJ ruled at step five.”). To the

extent that some of the arguments in this section really dispute the ALJ’s RFC

assessment, we address them below in connection with Ms. Korum’s third

argument, which specifically challenges the RFC determination.

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              The ALJ Did Not Err in Weighing the Medical Opinions

      Ms. Korum next argues that the ALJ did not properly weigh the medical

opinions in the record. First, she complains that the decision is not sufficiently

specific enough to permit this court to review the weight given to the opinions of

her treating physician Dr. Higgins, see Watkins v. Barnhart, 350 F.3d 1297, 1300

(10th Cir. 2003), and that the ALJ gave contradictory explanations about the

weight he gave to Dr. Higgins’s opinion.

      “Under the regulations, the agency rulings, and our case law, an ALJ must

give good reasons in the notice of determination or decision for the weight

assigned to a treating physician’s opinion.” Id. (quotation omitted). We conclude

that the ALJ met this standard. He explained that the opinions he chose to reject

were “not well supported by acceptable clinical and laboratory findings,” that

“Dr. Higgins’ observations [were] vague,” that they were not consistent with the

record as a whole, and that they were “disproportionate to the objective

evidence” and to the doctor’s own findings. Admin. R. at 326-27. The fact that

the ALJ gave no weight to Dr. Higgins’ earlier opinions but partial weight to

some of his later opinions does not result in an impermissible contradiction, given

that the ALJ explained the reasons for his determination. Finally, it was not

reversible error for the ALJ to discount Dr. Higgins’ opinions that Ms. Korum

was unable to work full-time and unable to work at a customer service position.

Not only were those findings not supported by acceptable clinical and laboratory

                                         -5-
findings, but also they infringed upon issues reserved to the Commissioner. See

20 C.F.R. § 404.1527(e) (“Opinions on some issues . . . are not medical opinions .

. . but are, instead, opinions on issues reserved to the Commissioner because they

are administrative findings that are dispositive of a case[.]”); id. § 404.1527(e)(1)

(“A statement by a medical source that you are ‘disabled’ or ‘unable to work’

does not mean that we will determine that you are disabled.”); Castellano v. Sec’y

of Health & Human Servs., 26 F.3d 1027, 1029 (10th Cir. 1994).

      Second, Ms. Korum complains that ALJ improperly picked and chose those

portions of the medical opinions that favored a finding of no disability while

ignoring the portions that favored disability. See Robinson v. Barnhart, 366 F.3d

1078, 1083 (10th Cir. 2004) (per curiam) (“The ALJ is not entitled to pick and

choose from a medical opinion, using only those parts that are favorable to a

finding of nondisability.”). But the ALJ’s failure specifically to discuss the

pieces of evidence Ms. Korum identifies is not reversible error.

      The record must demonstrate that the ALJ considered all of the
      evidence, but an ALJ is not required to discuss every piece of
      evidence. Rather, in addition to discussing the evidence supporting
      his decision, the ALJ also must discuss the uncontroverted evidence
      he chooses not to rely upon, as well as significantly probative
      evidence he rejects.

Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996) (citation omitted). The

eight single-spaced pages devoted to discussing Ms. Korum’s impairments, the

various medical opinions, and the reasons for the ALJ’s RFC assessment


                                          -6-
demonstrate that the ALJ adequately considered the evidence. The evidence that

the ALJ did not mention was not of such quality as to require discussion under

Clifton.

               The ALJ Did Not Err in Assessing Ms. Korum’s RFC

      For her third argument, Ms. Korum contends that the ALJ failed to properly

determine her RFC because he did not consider several of her diagnosed

impairments and restrictions or the combined effect of all her impairments.

Specifically, Ms. Korum argues that the ALJ did not take account of thoracic

outlet syndrome and/or brachial plexus compression, which restricted her to

lifting no more than five pounds with her right upper extremity; her psychological

impairments of major depression, pain disorder with physical and psychological

features, somatoform disorder, and personality disorder; and a learning

impairment diagnosed by Dr. Neufeld. She also contends that the ALJ ignored

the combined effect of her other assessed impairments (scoliosis, sciatica, a sleep

disorder causing fatigue and drowsiness, urinary incontinence, and headaches).

Further, she argues that the ALJ did not take account of her limitation to only

part-time work, the pain medications she would have to take to be able to work,

and the side effects from such medications.

      Our review indicates that the ALJ properly took account of the conditions

and restrictions that were supported in the record. The ALJ adequately addressed,

and gave sufficient reasons for rejecting, many of the impairments and

                                         -7-
restrictions that Ms. Korum identifies. Also, the ALJ included some of the

identified restrictions and impairments in the RFC and/or hypothetical questions

to the vocational expert (VE). For example, he included a learning disability in a

hypothetical, and limited her to unskilled work in her RFC due to her

preoccupation with her pain. The RFC also included moderate limitations in

interacting with coworkers, in responding appropriately to usual work situations

and changes in routine work settings, and in her ability to make judgments on

simple, work-related decisions. Such restrictions are consistent with the opinions

of the medical practitioners who identified the mental impairments to which

Ms. Korum points.

      Ms. Korum also challenges the ALJ’s findings of symptom magnification,

arguing that the ALJ erred by relying on certain medical opinions because those

opinions were based, at least in part, on Waddell signs. (Waddell signs are

physical signs grouped into categories which apparently have been used to help

clinicians determine whether a patient is malingering or whether chronic pain

complaints may be of psychological origin.) Ms. Korum’s Waddell signs

argument is difficult to follow, but it appears to rest on the premise that the ALJ

should have determined that the medical opinions were not valid because Waddell

signs are difficult to interpret and are not reliable. Essentially, then, Ms. Korum

requests that the ALJ substitute his own medical opinion for that of a physician,

which an ALJ cannot do. See Hamlin v. Barnhart, 365 F.3d 1208, 1221 (10th Cir.

                                          -8-
2004). Further, Ms. Korum asserts that the ALJ failed to resolve the conflict

between his finding of symptom magnification and medical opinions that she was

not malingering. But the ALJ’s determination was supported by substantial

evidence in the record, and we do not reweigh the evidence. See Wall, 561 F.3d

at 1069.

                 The Commissioner Satisfied His Step-Five Burden

       Finally, Ms. Korum argues that the Commissioner did not satisfy his burden

at step five of the analysis, because the ALJ’s hypotheticals to the VE did not

“relate with precision” all of Ms. Korum’s impairments. Hargis v. Sullivan,

945 F.2d 1482, 1492 (10th Cir. 1991) (quotation omitted). She argues that the

hypothetical failed to include her pain, limitations in the use of her right upper

extremity, the drowsiness she feels from pain medications, and her intellectual

limitations. 1

       This court has held that a hypothetical question to the VE “must reflect

with precision all of [the claimant’s] impairments, but [it] need only reflect

impairments and limitations that are borne out by the evidentiary record.” Decker


1
      Ms. Korum also asserts that she argued before the district court that “the
[ALJ’s] hypothetical failed to include 13 specific impairments borne out by the
record, incorporated herein.” Aplt. Br. at 17. “This court is under no obligation
to consider arguments not fully set forth in a party’s appellate brief, including
arguments incorporated by reference to prior pleadings or other materials.”
Concrete Works of Colo, Inc. v. City and County of Denver, 321 F.3d 950, 979
n.14 (10th Cir. 2003). Accordingly, we consider only those impairments
Ms. Korum’s appellate brief specifically identifies.

                                         -9-
v. Chater, 86 F.3d 953, 955 (10th Cir. 1996) (citation omitted); see also Evans v.

Chater, 55 F.3d 530, 532 (10th Cir.1995) (stating that the ALJ’s hypothetical

questions “must include all (and only) those impairments borne out by the

evidentiary record”).

      Our review of the record indicates that the ALJ’s question adequately

included the limitations that he found were supported by the record. To the

extent that the hypothetical omitted any explicit mention of Ms. Korum’s pain and

drowsiness from pain medications, “[t]he fact that the vocational expert was

present and heard testimony concluding [the claimant’s] alleged impairments

suggests that the effect of the error, if any, in the administrative law judge’s

(ALJ) hypothetical, was minimal.” Diaz v. Sec’y of Health & Human Servs.,

898 F.2d 774, 777 (10th Cir. 1990). Thus, the VE’s testimony provided

substantial evidence to support the ALJ’s step-five determination.

                                     Conclusion

      The judgment of the district court is AFFIRMED.


                                                      Entered for the Court



                                                      Stephen H. Anderson
                                                      Circuit Judge




                                          -10-
