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

                         FOR THE TENTH CIRCUIT                       May 13, 2019
                         _________________________________
                                                                  Elisabeth A. Shumaker
                                                                      Clerk of Court
    ERIC BERENSEN,

          Plaintiff - Appellant,

    v.                                                  No. 18-4105
                                               (D.C. No. 2:17-CV-00081-DBP)
    COMMISSIONER, SSA,                                    (D. Utah)

          Defendant - Appellee.
                        _________________________________

                          ORDER AND JUDGMENT *
                          _________________________________

Before BRISCOE, BALDOCK, and BACHARACH, Circuit Judges.
                  _________________________________

         This appeal grows out of the Social Security Administration’s denial

of disability insurance benefits and Supplemental Security Income

benefits. The administrative law judge found no disability, and

Mr. Eric Berensen sought review by the Appeals Council, presenting

additional medical records in support. The Appeals Council declined


*
      The parties do not request oral argument, and it would not materially
help us to decide this appeal. We have thus decided the appeal based on the
appellate briefs and the record on appeal. See Fed. R. App. P. 34(a)(2);
10th Cir. R. 34.1(G).

      This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value if
otherwise appropriate. Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
review, and Mr. Berensen appealed in federal district court, again

presenting new medical records and requesting (in the alternative) a

remand to the agency. There he argued that

          the administrative law judge had lacked substantial evidence
           for some of her findings and

          the Appeals Council and district court had failed to properly
           consider the new medical records.

We reject these arguments and affirm.

1.   The administrative law judge assesses Mr. Berensen’s residual
     functional capacity.

     The administrative process includes an assessment of the claimant’s

“residual functional capacity,” which refers to what the claimant can do

with his or her physical and mental limitations. 20 C.F.R.

§§ 404.1545(a)(1), 416.945(a)(1). In determining the residual functional

capacity, the administrative law judge considers all of the claimant’s

impairments, including those that are and aren’t severe, and determines

whether the claimant can perform either past relevant work or other jobs in

the national economy. 20 C.F.R. §§ 404.1545(a), 416.945(a).

     Through this process, the administrative law judge found in February

2016 that Mr. Berensen could perform light work subject to restrictions on

(1) various activities, including balancing, stooping, crouching, kneeling,

crawling, climbing, reaching, handling, fingering, feeling, and pedaling,

(2) exposure to noise, heat, cold, concentrated airborne irritants, extreme


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vibrations, and hazards, and (3) work pace. Given the ability to perform

light work with these restrictions, the administrative law judge found that

Mr. Berensen was not disabled because he could perform a significant

number of jobs existing in the national economy.

     Mr. Berensen sought review by the Appeals Council and submitted

more medical evidence. But the Appeals Council declined to consider the

new evidence or to review the administrative law judge’s decision.

     Mr. Berensen then appealed to the federal district court and

requested a remand, in the alternative, based on additional medical records.

The district court affirmed and denied Mr. Berensen’s request for a

remand.

2.   The assessment of residual functional capacity is supported by
     substantial evidence.

     The threshold issue involves the administrative law judge’s findings

as to residual functional capacity. Mr. Berensen challenges these findings,

arguing that the administrative law judge failed to consider non-severe

impairments and misevaluated the vocational testimony. We reject both

challenges.

     In evaluating these challenges, we consider whether the

administrative law judge applied correct legal standards and had

substantial evidence to support the findings as to residual functional

capacity. Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003). In


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determining whether substantial evidence existed, we cannot reweigh the

evidence or substitute our judgment for the administrative law judge’s.

Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). We conclude

that the administrative law judge had substantial evidence for her findings.

     We first reject Mr. Berensen’s argument that the administrative law

judge failed to consider non-severe impairments. The judge said that she

had considered all of the non-severe impairments, and we have no reason

to question her statement. See Flaherty v. Astrue, 515 F.3d 1067, 1071

(10th Cir. 2007) (stating that we generally take the Social Security

Administration at its word when it states that it has considered a particular

matter). Indeed, the administrative law judge appeared to rely on

non-severe impairments when imposing postural and exertional restrictions

on Mr. Berensen’s residual functional capacity.

     We also conclude that the administrative law judge did not overlook

the vocational testimony. Mr. Berensen points out that the judge asked the

vocational expert a series of hypothetical questions on the availability of

jobs based on a variety of possible limitations. But the vocational expert’s

expertise involves vocational opportunities, not a claimant’s residual

functional capacity. The administrative law judge ultimately assessed the

residual functional capacity and matched that capacity to the vocational

expert’s testimony on the available jobs that Mr. Berensen could perform.

Mr. Berensen does not identify any mismatch between the findings on

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residual functional capacity and the vocational expert’s testimony. We thus

have no reason to disturb the administrative law judge’s consideration of

the vocational testimony.

3.    The Appeals Council and district court did not err in declining to
      consider the additional medical records.

      Mr. Berensen submitted additional records to both the Appeals

Council and the district court. For the Appeals Council, Mr. Berensen had

to show that the records were new, material, and related to the period

preceding the administrative law judge’s decision. Chambers v. Barnhart,

389 F.3d 1139, 1142 (10th Cir. 2004). And for the district court,

Mr. Berensen had to show (1) that the records were new and material and

(2) that good cause existed for the failure to present the records in the

administrative proceedings. Wilson v. Astrue, 602 F.3d 1136, 1148-49

(10th Cir. 2010).

      The Appeals Council declined to consider the additional records.

Some of them involved treatment from 1991 to 2013. Other records

pertained to treatment and laboratory findings beginning roughly a month

after the administrative law judge’s decision. For the records from 1991 to

2013, the Appeals Council stated that the new records did not provide a

basis to disturb the administrative law judge’s decision. For the records

post-dating the administrative law judge’s decision, the Appeals Council




                                      5
stated that the records did not pertain to Mr. Berensen’s condition during

the relevant time-period.

     We conduct de novo review over these reasons for declining to

consider the new medical evidence. Chambers v. Barnhart, 389 F.3d 1139,

1142 (10th Cir. 2004). Applying de novo review, we conclude that the

Appeals Council did not err. Mr. Berensen has not identified any additional

functional limitations shown in the 1991-2013 medical records. And the

records post-dating the administrative law judge’s decision do not address

what Mr. Berensen’s condition had been prior to that decision. Indeed,

even for these records, Mr. Berensen has not identified any functional

limitations overlooked by the administrative law judge.

     Mr. Berensen also submitted more medical evidence to the district

court, seeking a remand to the agency. The district court declined to order

a remand, and we review that decision for an abuse of discretion. Wilson v.

Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010). In applying the

abuse-of-discretion standard, we consider whether the district court’s

determination fell within the realm of rational choices. Madron v. Astrue,

646 F.3d 1255, 1257 (10th Cir. 2011).

     In our view, the district court acted within its discretion in

determining that the new records were immaterial. Here too Mr. Berensen

has not identified any diagnoses or opinions involving (1) his condition

prior to the administrative law judge’s decision or (2) functional

                                      6
limitations overlooked by the administrative law judge. Mr. Berensen also

failed to explain why he could not have presented the medical evidence to

the Appeals Council. As a result, the district court acted within its

discretion in determining that Mr. Berensen had failed to show good cause

for failing to submit the evidence to the Appeals Council.

4.    Conclusion

      We conclude that Mr. Berensen has not shown any errors in the

administrative law judge’s assessment of residual functional capacity, in

the Appeals Council’s refusal to consider the new medical evidence, or in

the district court’s refusal to remand the matter based on new medical

evidence. We thus affirm.

                                       Entered for the Court


                                       Robert E. Bacharach
                                       Circuit Judge




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