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

                             FOR THE TENTH CIRCUIT                         December 21, 2017
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
DARRELL L. JONES,

      Plaintiff - Appellant,

v.                                                          No. 17-1107
                                                   (D.C. No. 1:16-CV-00553-RBJ)
NANCY A. BERRYHILL, Acting                                   (D. Colo.)
Commissioner of the Social Security
Administration,

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before LUCERO, BACHARACH, and MORITZ, Circuit Judges.
                  _________________________________

      Darrell Jones appeals the district court’s judgment affirming a decision of the

Commissioner of the Social Security Administration denying his applications for

disability insurance benefits and supplemental security income. Exercising

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 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 This order and judgment is not binding precedent,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.
                                    BACKGROUND

         Jones applied for benefits, claiming he was disabled due to post-traumatic

stress disorder, psychosis, arthritis, gout, lower back pain, and type II diabetes. After

his applications were initially denied, he had a hearing before an administrative law

judge (ALJ). The ALJ evaluated the evidence under the agency’s standard five-step

sequential evaluation set forth in 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4).

The ALJ determined that although Jones had several severe impairments, including

“history of right leg fracture” and “mild cataracts and refractive amblyopia,” Aplt.

App., Vol. I at 13, none met or equaled an impairment listed in 20 C.F.R. Part 404,

Subpart P, Appendix 1, that are so severe as to preclude employment. The ALJ then

found that Jones had the residual functional capacity (RFC) to work in the medium

exertional category subject to a number of limitations, one of which is relevant to the

issues in this appeal—that Jones “has the capacity for frequent vision in the areas of

far acuity, near acuity, accommodation and depth perception.” Aplt. App., Vol. I

at 16.

         At step four of the analysis, the ALJ determined that Jones’s RFC permitted

him to return to his prior relevant work as a warehouse worker. Alternatively, the

ALJ found at step five that Jones could perform several other jobs that exist in

significant numbers in the national economy, including, as relevant to this appeal, the

job of dishwasher. Accordingly, the ALJ concluded that Jones wasn’t disabled and

denied his applications. The district court affirmed, and Jones appeals.



                                            2
                                    DISCUSSION

      Our task in this appeal is limited to determining whether substantial evidence

supports the agency’s factual findings and whether the agency applied the correct

legal standards. Barnett v. Apfel, 231 F.3d 687, 689 (10th Cir. 2000). “Substantial

evidence is such relevant evidence as a reasonable mind might accept as adequate to

support a conclusion.” Id. (internal quotation marks omitted). We can’t “reweigh the

evidence” or “substitute our judgment for that of the agency.” Id. (internal quotation

marks omitted).

A.    Vision capacity

      Jones first contends that the ALJ erred in finding he “has the capacity for

frequent vision in the areas of far acuity, near acuity, accommodation and depth

perception.” Aplt. App., Vol. I at 16. He claims the medical evidence shows that his

limitations in these areas prevent him from returning to his past relevant work as a

warehouse worker. But we need not resolve this issue. Instead, we can assume that

the ALJ’s RFC was mistaken as to Jones’s vision and that Jones can’t work as a

warehouse worker. Then, based on that assumption, we must decide whether the error

was harmless. To deem an error harmless in the social-security context, we must be

able to say with confidence that “no reasonable administrative factfinder, following

the correct analysis, could have resolved the factual matter in any other way.” Allen

v. Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004).

      We conclude that any error in the ALJ’s step-four finding was harmless given

the ALJ’s alternative finding at step five that Jones could work as a dishwasher.

                                           3
See Murrell v. Shalala, 43 F.3d 1388, 1389–90 (10th Cir. 1994) (affirming step-five

finding despite alleged errors at step four). The dishwasher job the ALJ relied on at

step five requires no near acuity, far acuity, depth perception, or accommodation.

See Dictionary of Occupational Titles (DOT) No. 318.687-010, available at 1991 WL

672755 (indicating that such abilities are “Not Present” in the position of “kitchen

helper”1). Jones hasn’t argued that his vision impairment prevents him from

performing the dishwasher job, and the ALJ found that there were 550,000 such jobs

available in the national economy. Jones isn’t under a disability if he can perform

other kinds of work that exists in the national economy “in significant numbers.”

42 U.S.C. § 423(d)(2)(A) (emphasis added). 550,000 jobs is significant.

See Raymond v. Astrue, 621 F.3d 1269, 1274 (10th Cir. 2009) (noting that this court

has found “only 152,000 jobs in the national economy” to be “significant” (internal

quotation marks omitted)). The only remaining question for harmless error purposes

is whether the ALJ erred in finding that Jones could perform work at the medium

exertional level, which the dishwasher job requires.

B.    Exertional capacity

      Work at the medium exertional level “involves lifting no more than 50 pounds

at a time with frequent lifting or carrying of objects weighing up to 25 pounds.”

20 C.F.R. §§ 404.1567(c), 416.967(c). To meet the requirement to lift and carry up

      1
       Although the ALJ described the position as “dishwasher,” she referred to
DOT No. 318.687-010, which is titled “Kitchen Helper” and includes washing dishes
among a variety of tasks. See 1991 WL 672755.


                                           4
to 25 pounds, “[a] full range of medium work requires standing or walking, off and

on, for a total of approximately 6 hours in an 8-hour workday.” SSR 83-10,

1983 WL 31251, at *6 (1983). The ALJ gave significant weight to the opinion of a

state agency nonexamining consultant, Dr. Gawo, who opined that Jones could

perform at such a level,2 and gave little weight to the opinions of four other

consulting physicians who said he couldn’t. The ALJ reasoned that Dr. Gawo was

familiar with the disability regulations; his opinion was the most consistent with the

medical evidence; the opinions of three consultants who examined Jones

(Drs. Amundson, Mitchell, and Traister) were largely inconsistent with their own

relatively benign objective findings; and the opinion of the fourth consultant,

Dr. Clark, who testified as an expert before the ALJ based on the three examining

consultant’s reports, was also inconsistent with their relatively benign objective

findings.3


      2
        Jones complains that the ALJ said Dr. Gawo found him capable of light
work, and he suggests that we should question whether the ALJ even understood the
substance of Dr. Gawo’s opinion. But we agree with the Commissioner that the
reference was a scrivener’s error given that the ALJ gave significant weight to
Dr. Gawo’s opinion and concluded that Jones had the RFC for medium work.
      3
        In 2010, Dr. Amundson thought Jones could stand and walk about six hours
in a workday but required breaks every 30 to 60 minutes and could carry only 20
pounds frequently or occasionally. In 2012, Dr. Mitchell said Jones could stand or
walk for four hours in a workday, required positional changes every 15 to 30
minutes, and could lift or carry 20 pounds frequently and 40 pounds occasionally.
Also in 2012, Dr. Traister opined that Jones could stand and walk only 90 minutes in
a workday and could lift and carry 50 and 30 pounds respectively. At the hearing in
2014, Dr. Clark posited that Jones could stand and walk a total of four hours per
workday and had no lifting limitation.

                                           5
      Jones argues that the four other doctors’ opinions overwhelmed Dr. Gawo’s

opinion. Thus, he reasons that Dr. Gawo’s opinion doesn’t constitute substantial

evidence. See Grogan v. Barnhart, 399 F.3d 1257, 1261–62 (10th Cir. 2005)

(“Evidence is not substantial if it is overwhelmed by other evidence in the record

. . . .” (internal quotation marks omitted)). But the ALJ explained why she

discounted the four physicians’ opinions, and Jones hasn’t challenged those

explanations. And although he contends that the ALJ didn’t properly consider the six

regulatory factors used to evaluate medical opinions set forth in 20 C.F.R.

§§ 404.1527(c) and 416.927(c), the substance of his argument is limited to the fact

that Dr. Gawo didn’t examine him but three of the other four doctors did, and two of

their opinions were largely consistent. That might implicate the second factor’s

“[n]ature and extent of the treatment relationship,” including “the kinds and extent of

examinations and testing the [medical] source has performed or ordered,” 20 C.F.R.

§§ 404.1527(c)(2)(ii), 416.927(c)(2)(ii). The ALJ, however, was well aware of

whether each of the five doctors examined Jones, and the ALJ was entitled, indeed

required, to consider Dr. Gawo’s opinion even though he didn’t examine Jones. See

Flaherty v. Astrue, 515 F.3d 1067, 1071 (10th Cir. 2007) (explaining that an ALJ is

entitled to consider the opinions of nonexamining physicians); 20 C.F.R.

§§ 1513a(b)(1), 416.913a(b)(1) (requiring ALJs to consider evidence supplied by

agency medical consultants according to §§ 404.1527 and 416.927 because such

“consultants are highly qualified experts in Social Security disability evaluation”); cf.

20 C.F.R. §§ 404.1527(c)(6) 416.927(c)(6) (directing ALJs to consider how much

                                            6
understanding a medical source has of “disability programs and their evidentiary

requirements”).

      The ALJ was only required to give “good reasons” for the relative weight she

gave to the five physicians. Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007).

Jones hasn’t shown that the ALJ’s reasons weren’t “good.” But he does present one

more attack on the validity of Dr. Gawo’s opinion—that it merely endorsed the

opinion of a single decision-maker (SDM) who initially denied Jones’s applications

and assessed him with an RFC consistent with medium work. Jones contends that

because the SDM was a non-expert, his opinion may not be a proper medical opinion

under agency regulations, and Jones points out that the SDM did not examine him.

But the ALJ did not merely rely on the SDM’s opinion of Jones’s exertional capacity,

which is impermissible under the agency’s own regulations, see Program Operations

Manual System DI 24510.050 C. (“SDM-completed forms are not opinion evidence at

the appeal levels.”).4 Rather, the ALJ relied on the opinion of Dr. Gawo, who did not

summarily endorse the SDM’s opinion as to exertional capacity but reviewed and

evaluated the medical evidence, explained that the medical evidence didn’t support

Dr. Traister’s standing and walking limitations, and affirmed the SDM’s view

because it was “reasonable,” Aplt. App., Vol. 6 at 768.


      4
        The POMS is a set of Social Security Administration polices used in claim
processing to which we defer “unless we determine they are arbitrary, capricious, or
contrary to law.” Ramey v. Reinertson, 268 F.3d 955, 964 & n.2 (10th Cir. 2001)
(internal quotation marks omitted).


                                          7
      Jones provides no authority for the proposition that the ALJ acted

impermissibly under these circumstances. Moreover, the scant nonprecedential

authority the Commissioner cites or that we have found suggests the opposite, at least

where, as here, substantial evidence supports the consulting physician’s opinion

endorsing or adopting the SDM’s assessment. See, e.g., Quinn v. Colvin,

No. 6:15-cv-03203-NKL, 2015 WL 9460144, at *5 (W.D. Mo. Dec. 24, 2015)

(unpublished) (concluding that substantial evidence supported ALJ’s decision to

accord great weight to opinion of state agency medical consultant who reviewed and

adopted an SDM’s opinion); Long v. Colvin, No. CIV-14-402-F, 2015 WL 5692318,

at *10 (W.D. Okla. Sept. 11, 2015) (unpublished) (affirming ALJ’s reliance on

consultant’s opinion that affirmed SDM’s assessment, and collecting cases)5; Keel v.

Colvin, No. 13-1458-SAC, 2015 WL 1034419, at *6, n.1 (D. Kan. Mar. 10, 2015)

(unpublished) (“An ALJ does not err by relying on an [SDM’s] opinion affirmed by

an acceptable medial source after reviewing the evidence in the file.”); Holley v.

Colvin, No. 12-4057-JWL, 2014 WL 172183, at *8 (D. Kan. Jan. 15, 2014)

(unpublished) (concluding that SDM’s assessment became a nonexamining

consultant’s “medical findings and analysis as surely as if he had written it himself”

after consultant reviewed all the medical evidence and affirmed the assessment “as

written”).

      5
        Although Long concerns a magistrate judge’s report and recommendation,
that report was adopted and affirmed in full by the district judge, see Long v. Colvin,
No. CIV-14-402-F, 2015 WL 5708388, at *1 (W.D. Okla. Sept. 28, 2015)
(unpublished).

                                           8
      Because the ALJ did not err in finding that Jones could perform work at the

medium exertional level, the ALJ properly found at step 5 that Jones could perform

work as a dishwasher. Thus, we conclude that any step-four error was harmless.

                                  CONCLUSION

      We affirm the district court’s judgment.


                                          Entered for the Court


                                          Nancy L. Moritz
                                          Circuit Judge




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