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

                             FOR THE TENTH CIRCUIT                          October 20, 2015
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
ANITA RIVERA,

      Plaintiff - Appellant,

v.                                                          No. 14-1516
                                                  (D.C. No. 1:13-CV-01890-WJM)
CAROLYN W. COLVIN, Acting                                    (D. Colo.)
Commissioner of Social Security,

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before HARTZ, PORFILIO, and PHILLIPS, Circuit Judges.
                  _________________________________

      Anita Rivera appeals the district court’s order upholding the decision of an

administrative law judge (ALJ) to deny her application for social security benefits.

We affirm.

                                    I. Background

      Rivera applied for disability insurance benefits and supplemental security

income. She claimed that, beginning June 1, 2007, she became unable to work due to


      *
        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 This order and judgment is not binding precedent,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.
anxiety, depression, social phobia, and mental distress. Following a hearing, the ALJ

found that Rivera was not disabled within the meaning of the Social Security Act and

denied her application. The district court affirmed the ALJ’s decision.

      On appeal, Rivera argues the ALJ erred when he denied her application.

Specifically, she claims the ALJ improperly weighed the opinions of two

psychiatrists and posed inadequate hypothetical questions to a vocational expert

(VE). We reject these claims in turn.

                               II. Standard of Review

      The applicant in a social security case bears the burden to prove a qualifying

disability. Maes v. Astrue, 522 F.3d 1093, 1096 (10th Cir. 2008). While we review

the district court’s ruling de novo, Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir.

2009), our review of the ALJ’s decision is limited to determining whether the ALJ

correctly applied the law and whether substantial evidence supports the ALJ’s

findings, see Knight ex rel. P.K. v. Colvin, 756 F.3d 1171, 1175 (10th Cir. 2014).

Evidence is substantial if a reasonable mind might accept it as adequate to support a

conclusion. Wall, 561 F.3d at 1052. “It requires more than a scintilla, but less than a

preponderance.” Id. (internal quotation marks omitted). “[E]vidence is not

substantial if it is overwhelmed by other evidence in the record.” Id. (internal

quotation marks omitted).

      We do not reweigh the evidence before the ALJ or substitute our judgment for

the ALJ’s. Knight, 756 F.3d at 1175. Likewise, where the evidence supports

contrary findings, we will not disturb the ALJ’s choice between them even if we

                                           2
would have made a different decision. Oldham v. Astrue, 509 F.3d 1254, 1257-58

(10th Cir. 2007).

      Finally, we review only issues that were properly preserved in the district

court and adequately presented on appeal. Krauser v. Astrue, 638 F.3d 1324, 1326

(10th Cir. 2011).

           III. The ALJ Properly Weighed the Psychiatrists’ Opinions

      After Rivera applied for social security benefits, she met with psychiatrist

Stuart Kutz, who conducted a mental status examination. Dr. Kutz diagnosed Rivera

with panic disorder with agoraphobia, post-traumatic stress disorder, depressive

disorder, a history of alcohol dependence, and cannabis abuse. He concluded that

“[r]elative to a competitive work setting throughout the day, [Rivera’s]

attention/concentration, persistence and pace in task completion, and social

adaptation all would be moderately to markedly impaired. Her understanding and

memory seem perhaps mildly to moderately impaired.” Aplt. App., Vol. 2 at 359.

      A few weeks later, Dr. Arthur Lewy, a psychiatrist with Disability

Determination Services (DDS), reviewed Dr. Kutz’s report and the rest of Rivera’s

available records. He concluded that, despite her impairments, Rivera could

understand and remember simple instructions, tolerate brief interactions with the

public, “accept supervision d[el]ivered in a normative fashion,” and get along with

coworkers. Id., Vol. 1 at 79-80.

      In assessing Rivera’s residual functional capacity (RFC), the ALJ accepted

Dr. Kutz’s diagnosis, but gave more weight to Dr. Lewy’s opinion of Rivera’s mental

                                          3
limitations. Consistent with Dr. Lewy’s opinion, the ALJ found that Rivera could

understand, remember, and carry out simple instructions and that she could

occasionally interact with supervisors and coworkers, but not the public.1 Rivera

claims the ALJ erred by giving more weight to Dr. Lewy’s opinion than to Dr. Kutz’s

opinion. Because the ALJ correctly applied the law and substantial evidence

supports his findings, we disagree.

       An ALJ must consider six factors to determine what weight to give a medical

opinion: (1) the examining relationship between the physician and the applicant;

(2) the length, nature, and extent of their treatment relationship; (3) the strength of

the evidence supporting the opinion; (4) the consistency of the opinion with the

record as a whole; (5) the physician’s specialty; and (6) any other factors, such as the

physician’s familiarity with disability programs and the extent of his familiarity with

other information in the record, that tend to support or contradict the opinion.

See 20 C.F.R. §§ 404.1527(c), 416.927(c); Goatcher v. U.S. Dep’t of Health &

Human Servs., 52 F.3d 288, 290 (10th Cir. 1995).

       Here, the ALJ did not discuss all the factors, but he cited them, and his

decision was specific enough for us to determine what weight he gave the opinions

and why. See Oldham, 509 F.3d at 1258 (stating that the ALJ need not explicitly

discuss all the factors if his decision is “sufficiently specific to make clear to any


       1
        The ALJ also found that Rivera had the residual functional capacity to
perform light exertional work. Specifically, she could lift and carry up to twenty
pounds, sit for two hours, stand for three hours, and walk for thirty minutes. Rivera
does not challenge these conclusions.
                                            4
subsequent reviewers the weight [he] gave to the . . . medical opinion and the reasons

for that weight” (internal quotation marks and citations omitted)). The ALJ gave

Dr. Lewy’s opinion more weight because he found it was most consistent with the

record as a whole and because Dr. Lewy reviewed the available medical records,

whereas Dr. Kutz relied at least in part on Rivera’s subjective description of her

symptoms, which the ALJ found unreliable. The ALJ also noted that DDS

psychiatrists like Dr. Lewy are “highly qualified experts in Social Security disability

evaluation.” Aplt. App., Vol. 1 at 15. Substantial evidence supports these findings.

      The ALJ identified several ways in which Dr. Lewy’s opinion was consistent

with other evidence. Rivera acknowledged in her disability application and

testimony that she stopped working in June 2007 not because of any physical or

mental limitations, but because her contract expired. According to her medical

records, doctors first suspected she may have an anxiety disorder nearly two years

later. In response to questions in her disability application, Rivera said she cooks her

own meals, cleans her house, does laundry, mows her lawn, and pulls weeds. She

said she shops for groceries, clothes, and medication about once a month, and

explained that she generally takes public transportation even though crowds make her

uncomfortable. When asked about her hobbies, Rivera said she reads, crochets,

walks in the park, goes to movies, and talks to her family on the phone. Rivera also

noted that she helps her sister-in-law by shopping for her and cleaning her house. In

short, the ALJ properly determined that the record as a whole supports Dr. Lewy’s



                                           5
conclusion that that Rivera’s mental health problems, while not insignificant, were

not debilitating.

       Rivera argues the ALJ should have given Dr. Kutz’s opinion greater weight

because, unlike Dr. Lewy, Dr. Kutz personally examined her. While it is true that an

ALJ should generally give more weight to the opinion of an examining physician,

see 20 C.F.R. §§ 404.1527(c)(1), 416.927(c)(1), the ALJ may also consider whether a

given physician is more familiar with other information in the record, see id. §§

404.1527(c)(6), 416.927(c)(6). Here, the ALJ explained that he gave less weight to

Dr. Kutz’s opinion because Dr. Kutz examined Rivera only once and relied on her

subjective complaints, which the ALJ found were incredible,2 rather than the more

objective information contained in Rivera’s medical records. Although it appears

Dr. Kutz did, in fact, review some of Rivera’s records, he made numerous references

to Rivera’s description of her symptoms in his report, suggesting he also relied on her

statements. In contrast, Dr. Lewy’s report shows that he based his opinion solely on

the information contained in Rivera’s records.3 In weighing their opinions, it was

entirely appropriate for the ALJ to consider where Dr. Lewy and Dr. Kutz got their

information. See Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007)


       2
           Rivera does not challenge the ALJ’s credibility determination.
       3
         Rivera suggests Dr. Lewy did not review all records that existed at the time
of his report. Exactly which records Dr. Lewy examined is beyond the scope of our
review. For our purposes, it is sufficient that substantial evidence supports the ALJ’s
determination that Dr. Lewy reviewed Rivera’s records (which is clear from his
report) and based his opinion on the information therein rather than on Rivera’s
subjective complaints.
                                             6
(concluding the ALJ properly gave no weight to a physician’s opinion because he

met with the claimant only once, he relied on her subjective report, and his opinion

was not supported by the evidence). To the extent Rivera asks us to reweigh the

evidence, we cannot do so. See Knight, 756 F.3d at 1175.

      Additionally, the ALJ properly considered Dr. Lewy’s expertise in evaluating

social security claims as a DDS psychologist. See 20 C.F.R. §§ 404.1527(c)(6),

416.927(c)(6) (providing that, when weighing opinions, an ALJ may consider “the

amount of understanding of [the Social Security Administration’s] disability

programs and their evidentiary requirements that an acceptable medical source has”);

id. §§ 404.1527(e)(2)(i), 416.927(e)(2)(i) (stating that agency psychologists are

“highly qualified” psychologists “who are also experts in Social Security disability

evaluation”).

      In sum, the ALJ correctly applied the law, and substantial evidence supports

his decision to give the greatest weight to Dr. Lewy’s opinion.

         IV. The ALJ Posed Sufficient Hypothetical Questions to the VE

      In finding Rivera was not disabled, the ALJ relied on the VE’s opinion that

someone with Rivera’s RFC was capable of performing her past work. Rivera argues

that the VE’s opinion was insufficient to support the ALJ’s finding because the ALJ




                                           7
failed to advise the VE of all of Rivera’s work-related limitations.4 Assuming this

claim is sufficient to warrant appellate review,5 we see no error.

      The ALJ elicited the VE’s opinion on Rivera’s ability to perform her past work

by asking hypothetical questions. In general, hypothetical questions are sufficient if

they include all of the limitations the ALJ found in his assessment of the claimant’s

RFC. See Qualls v. Apfel, 206 F.3d 1368, 1373 (10th Cir. 2000). Here, the ALJ

found that Rivera had the RFC to perform light exertional work, and that she could

lift and carry up to twenty pounds, sit for two hours, stand for three hours, and walk

for thirty minutes. He also found that Rivera could understand, remember, and carry

out simple instructions, and that she could occasionally interact with supervisors and

coworkers, but should have no contact with the public. The ALJ included all of these

limitations in his hypothetical questions to the VE. Aplt. App., Vol. 1 at 63. The

VE’s answer was therefore sufficient to support the ALJ’s disability decision.

See Qualls, 206 F.3d at 1373.




      4
        Rivera challenges only the sufficiency of the ALJ’s hypothetical questions,
not the extent of the ALJ’s reliance on the VE’s testimony. See Winfrey v. Chater,
92 F.3d 1017, 1024-25 (10th Cir. 1996).
      5
        Rivera failed to identify the additional limitations she believes should have
been included in the ALJ’s questions. “Perfunctory complaints that fail to frame and
develop an issue are not sufficient to invoke appellate review.” Femedeer v. Haun,
227 F.3d 1244, 1255 (10th Cir. 2000) (brackets omitted). Nevertheless, the district
court assumed Rivera referred to limitations contained in medical opinions other than
Dr. Lewy’s and ruled on Rivera’s claim. We do the same.
                                           8
                             V. Conclusion

We affirm the district court’s order.


                                        Entered for the Court


                                        Gregory A. Phillips
                                        Circuit Judge




                                        9
