                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                   January 14, 2010
                           FOR THE TENTH CIRCUIT
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court

    WAYMAN W. TIMMONS,

               Plaintiff-Appellant,

    v.                                                 No. 09-6081
                                               (D.C. No. 5:08-CV-00097-M)
    MICHAEL J. ASTRUE,                                (W.D. Okla.)

               Defendant-Appellee.


                            ORDER AND JUDGMENT *


Before TACHA, ANDERSON, and EBEL, Circuit Judges.



         Wayman W. Timmons appeals from an order affirming the Commissioner’s

decision that he is not entitled to supplemental security income benefits under the

Social Security Act. Exercising our jurisdiction under 42 U.S.C. § 405(g) and

28 U.S.C. § 1291, 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
                                  I. Background

      Mr. Timmons is currently 26 years old. His intellectual functioning is in

the mildly retarded range and he has suffered from asthma since childhood. In

1991 he was granted supplemental security income benefits based on his asthma

and mental deficiency. Shortly after his eighteenth birthday, however, the

Commissioner determined that Mr. Timmons was not disabled under the relevant

adult standards and notified him that his benefits would terminate in March 2002.

Thereafter, Mr. Timmons requested and was granted a hearing before an

Administrative Law Judge (ALJ). In an opinion dated June 18, 2003, the ALJ

concluded that although Mr. Timmons’s asthma and mental retardation were

severe impairments, he did not have an impairment that met or medically equaled

one of the listed impairments in the appendix to the relevant disability regulation.

The ALJ went on to conclude at step five of the sequential evaluation process, see

Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (explaining the five-step

framework for determining disability), that Mr. Timmons could perform light

work and was therefore not disabled.

      In an appeal to the United States District Court for the Western District of

Oklahoma, Mr. Timmons argued that the ALJ had overlooked the listing for

mental retardation in section 12.05(C) of the appendix. That listing is met if the

claimant has an IQ score of 60 through 70, which Mr. Timmons indisputably

does, as well as another physical or mental impairment that imposes “an

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additional and significant work-related limitation of function.” 20 C.F.R. Pt. 404,

Subpt. P, App. 1, § 12.05(C). Mr. Timmons argued, as he does here, that his

asthma imposes such additional and significant limitations on his ability to

perform work-related tasks that he satisfies the requirements for listing 12.05(C).

The district court declined to answer that precise question but agreed with

Mr. Timmons that the ALJ had failed to sufficiently explain his adverse finding at

step 3 given the apparent fit of listing 12.05(C). The court therefore reversed the

ALJ’s denial of benefits and remanded the case for further proceedings at step 3.

      At that point, Mr. Timmons’s case apparently fell through the cracks within

the agency and sat idle for over two years. Finally, at the urging of his attorney,

the agency took up Mr. Timmons’s case on remand, and on November 27, 2007,

the Appeals Council issued a final decision denying benefits, concluding that

Mr. Timmons was not disabled under the relevant adult standards as of January

2002. With respect to listing 12.05(C), the Appeals Council accepted that

Mr. Timmons’s intellectual functioning satisfied the first prong of the listing, but

concluded that since he reached adulthood, his asthma had not been shown to

significantly limit his ability to do work-related tasks. It therefore concluded at

step 3 that Mr. Timmons did not have a listed impairment. Nonetheless, in

formulating Mr. Timmons’s residual functional capacity (RFC), the Appeals

Council concluded that because of his asthma, he should avoid work that would

expose him to excessive amounts of dust, fumes, or gases. It therefore concluded

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at step 5 that he could perform a reduced range of heavy work and that there are a

significant number of such jobs in the national economy.

      Mr. Timmons again sought review in the district court, which upheld the

Appeals Council’s decision. In his appeal to this court, he argues the

Commissioner’s findings concerning the severity of his asthma are not supported

by substantial evidence. Contrary to the Appeals Council’s findings,

Mr. Timmons claims that his asthma imposes more than minimal limitations on

his ability to work. And he argues the Appeals Council made this very point in

acknowledging that he should avoid jobs that would expose him to environmental

triggers for asthma. In short, he argues that the Appeals Council’s recognition

that he should avoid certain types of jobs cannot be reconciled with its finding,

for purposes of listing 12.05(C), that his asthma imposes only minimal

limitations.

                                   II. Discussion

      The Appeals Council’s decision is the Commissioner’s final decision for

purposes of our review. Cf. 42 U.S.C. § 405(g) (stating that this court is limited

to review the Commissioner’s final decision); Fierro v. Bowen, 798 F.2d 1351,

1353 n.1 (10th Cir. 1986) (noting that the Appeals Council is the agency’s final

decision-making body). In reviewing its decision, “we neither reweigh the

evidence nor substitute our judgment for that of the agency.” Bowman v. Astrue,

511 F.3d 1270, 1272 (10th Cir. 2008) (internal quotation marks omitted). We are

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limited to determining “whether the factual findings are supported by substantial

evidence in the record and whether the correct legal standards were applied.” Id.

(internal quotation marks omitted).

      Applying this framework, we conclude that the Commissioner considered

Mr. Timmons’s claim under the correct legal standards and supported its decision

with substantial evidence. As noted above, to satisfy the listing for mental

retardation in section 12.05(C), the claimant must demonstrate, in addition to a

reduced mental capacity, a physical impairment “imposing an additional and

significant work-related limitation of function.” This second-prong impairment,

here asthma, need not be independently disabling, but it must have “more than a

slight or minimal effect on the claimant’s ability to perform basic work.” Hinkle

v. Apfel, 132 F.3d 1349, 1352 (10th Cir. 1997); see also id. at 1353. In Hinkle,

we held that a “§ 12.05C limitation is significant if the claimant suffers from a

severe physical . . . impairment, as defined at step two of the disability analysis,

apart from the decreased intellectual function.” Id. at 1352.

      Therefore, the Appeals Council was tasked with determining whether

Mr. Timmons’s asthma, scrutinized under step-2 standards, constituted “an

impairment . . . which significantly limit[ed] his ability to do basic work

activities.” Id. (internal quotation marks and alterations omitted). While this

requires only a de minimis showing of impairment, the Commissioner correctly

argues that a mere diagnosis is patently insufficient. As we explained in Hinkle,

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“the claimant must show more than the mere presence of a condition or ailment.”

Id.

      The Appeals Council in this case, having exhaustively summarized the

medical evidence, concluded that Mr. Timmons’s asthma did not impose any

limitations on a consistent basis. Our own review of the medical evidence leads

us to concur in this finding. Mr. Timmons’s asthma obviously plagued him quite

severely during his childhood and early adolescence. Even his incomplete

medical records establish that he visited his pediatrician and the emergency room

repeatedly for asthmatic episodes, during which doctors noted bilateral wheezing

in his lungs and “croupy” coughs. But it is also obvious that his asthma improved

with age. The condition is scarcely mentioned in his medical records after 1995,

and by the time Mr. Timmons graduated from high school, it appears to have

hardly factored into his daily life. To the contrary, there are several references to

Mr. Timmons’s daily after-school basketball games, and his school records reveal

that he attended regular P.E. classes and all other school events without requiring

any accommodations.

      Mr. Timmons correctly notes that as recently as 2002, he continued to

exhibit “scattered wheezes,” Aplt. App. at 366, but this alone only indicates “the

presence of a condition or ailment.” Hinkle, 132 F.3d at 1352. There is no

evidence to suggest, and indeed Mr. Timmons fails to explain, how these

scattered wheezes or any other asthmatic symptoms imposed any physical

                                          -6-
limitations on him whatsoever, a failing that is particularly troubling in light of

the contrary evidence. Not only did Mr. Timmons play ball nearly every day after

school during the relevant time period, see Aplt. App. at 211 & 347, but he also

told the state disability examiner in January 2002 that his asthma was “not

terribly severe” and did “not prevent him from exercising, running or walking,”

id. at 365. According to the examiner’s notes, Mr. Timmons reported having

sporadic asthmatic episodes for which he took medication. We, of course, are not

at liberty to weigh this evidence against Mr. Timmons’s hearing testimony and

assertions elsewhere that his asthma is more debilitating. But on the record

before us, we cannot say that the Commissioner’s decision falls short of the

substantiality test.

       The balance of Mr. Timmons’s argument rests on the Appeals Council’s

determination at step 5 that he should avoid work that would expose him to

excessive amounts of fumes, gases, or dust. We agree with the district court,

however, that in taking this prophylactic measure, the Commissioner was merely

meeting its obligation under Social Security Ruling 96-8p to formulate an RFC

with due consideration to all of Mr. Timmons’s impairments, including those that

are not severe. See SSR 96-8p, 1996 WL 374184, at *5. In short, we have no

difficulty reconciling the Appeals Council’s decision at step 3 with its RFC

determination at step 5.




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                                III. Conclusion

      We conclude that the Commissioner’s final decision followed appropriate

legal standards and was supported by substantial evidence. The judgment of the

district court is, therefore, AFFIRMED.



                                                Entered for the Court



                                                Stephen H. Anderson
                                                Circuit Judge




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