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

                             FOR THE TENTH CIRCUIT                          March 7, 2016
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
DANNY R. FERNANDEZ,

      Plaintiff - Appellant,

v.                                                          No. 15-1376
                                                  (D.C. No. 1:13-CV-03385-MSK)
CAROLYN W. COLVIN, Acting                                    (D. Colo.)
Commissioner of Social Security,

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BRISCOE, LUCERO, and McHUGH, Circuit Judges.
                   _________________________________

      Danny R. Fernandez, proceeding on appeal pro se, seeks reversal of the district

court’s judgment upholding the decision of an administrative law judge (ALJ) to

deny his application for social security disability benefits. He seeks leave to proceed

on appeal in forma pauperis (IFP). We have jurisdiction under 28 U.S.C. § 1291 and

42 U.S.C. § 405(g). We grant the IFP request and affirm the judgment.



      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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
ed. R. App. P. 32.1 and 10th Cir. R. 32.1.
       I.        Background

       Mr. Fernandez, who was born in 1966, filed for disability insurance benefits in

1994, claiming he became disabled on February 7, 1991. His first hearing before an

ALJ was held on February 27, 1996, and the ALJ issued an unfavorable decision.

Shortly thereafter, Mr. Fernandez submitted a 1996 functional capacity evaluation

and a mental assessment, but the agency declined to consider them. He appealed to

the district court, which remanded for consideration of those documents. Three

additional administrative hearings were held on April 18, 2002, February 8, 2006,

and April 3, 2008, all resulting in unfavorable decisions and all remanded by the

district court to ensure that the 1996 functional capacity evaluation and mental

assessment had been considered. Following an unfavorable decision issued June 2,

2008, the district court again remanded with specific instructions to the ALJ. Those

instructions, issued on January 12, 2011, set the stage for this appeal, so we set them

out at length.

       1. Upon remand, the case shall be assigned to an [ALJ] who has not
          previously been assigned the Plaintiff’s claim and who has no
          familiarity with the facts of that claim.
       2. The record to be considered upon remand shall consist solely of
          evidence regarding the Plaintiff’s condition and treatment occurring
          during or prior to December 1997. No evidence of conditions or
          treatment arising after December 1997 shall be considered, except as set
          forth below.
       3. The [ALJ] shall treat the following facts as established:
            a. The Plaintiff’s onset date was March 13, 1996 and his last date of
               insurance was December 31, 1996.



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          b. The Plaintiff did not engage in any substantial gainful employment
             between those dates.
          c. Through December 31, 1996, the Plaintiff had the following severe
             impairments: back pain; right knee instability, status post multiple
             surgeries; depression; and left shoulder instability.
          d. As of December 31, 1996, the Plaintiff did not have an impairment
             or combination of impairments that met or exceeded any of the listed
             impairments found in 20 C.F.R. 404, Subpart P, Appendix 1.
          e. Absent consideration of his subjective symptoms between March 13,
             1996 and December 31st, 1997, the Plaintiff’s residual functional
             capacity would be that prescribed by the [ALJ] in the June 2, 2008
             decision . . . .
      4. Upon remand, the [ALJ’s] review shall be limited to the following
         questions:
          a. Whether, in light of the Luna and [Kepler] standards, the residual
             functional capacity assessment should be modified in light of the
             Plaintiff’s subjective complaints during the time period at issue?
          b. If the residual functional capacity assessment is not modified by
             those complaints, whether the Plaintiff was disabled consistent with
             the [Social Security] Act during the relevant period?
          c. If the residual functional capacity assessment is modified by the
             Plaintiff’s subjective complaints, whether the Plaintiff, during the
             time period at issue, was able to do his past relevant work or whether
             there were a significant number of jobs in the national and regional
             economy that he could perform?
      If the [ALJ] is required to address the issue [in] (c) above, the [ALJ] may
      receive such additional evidence as is necessary to resolve that issue.
Admin. R. at 896-98.

      Meanwhile, on February 25, 2010, Mr. Fernandez filed an application for

supplemental security income (SSI) benefits. The ALJ assigned to hear the case

pursuant to the January 12, 2011 remand order (Remand Order) considered the new

SSI application together with the remanded issues pertinent to the application for


                                            3
disability benefits. After a hearing on December 5, 2011, the ALJ issued a decision

that was unfavorable as to Mr. Fernandez’s claim for disability benefits and favorable

as to his application for SSI benefits. Mr. Fernandez sought review in the district

court of only the unfavorable disability-benefits decision. The district court affirmed

the agency’s denial of disability benefits. Mr. Fernandez now appeals to this court,

alleging he was erroneously denied disability insurance benefits.

      II.    Discussion

      “We review the district court’s decision de novo and independently determine

whether the ALJ’s decision is free from legal error and supported by substantial

evidence.” Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005).

“Substantial evidence is more than a mere scintilla and is such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.” Flaherty v.

Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007) (internal quotation marks omitted). We

examine the record as a whole, but we do not reweigh the evidence. Id. We also do

not “substitute our judgment for that of the agency.” Bowman v. Astrue, 511 F.3d

1270, 1272 (10th Cir. 2008) (internal quotation marks omitted).

      We have liberally construed Mr. Fernandez’s pro se filings. See Erickson v.

Pardus, 551 U.S. 89, 94 (2007) (per curiam); Garrett v. Selby Connor Maddux &

Janer, 425 F.3d 836, 840 (10th Cir. 2005). We do not, however, “take on the

responsibility of serving as the litigant’s attorney in constructing arguments and

searching the record.” Garrett, 425 F.3d at 840. Moreover, “pro se parties [must]



                                           4
follow the same rules of procedure that govern other litigants.” Id. (internal

quotation marks omitted).

      On appeal Mr. Fernandez asserts the time period for which he is claiming

disability benefits was not limited to the period of March 13, 1996 through

December 31, 1997. He apparently argues that the applicable time period began in

1994, when he filed his initial application for disability benefits, and continued

beyond December 31, 1997. Mr. Fernandez does not claim that the ALJ failed to

follow the Remand Order when he limited his review to the time period of March 13,

1996 through December 31, 1997. To the extent Mr. Fernandez challenges the

Remand Order, we do not have jurisdiction to review that order because the time for

appealing it has long passed. See Fed. R. App. P. 4(a)(1)(B) (providing that notice of

appeal from district court’s order was due within 60 days); Coll v. First Am. Title Ins.

Co., 642 F.3d 876, 886 (10th Cir. 2011) (holding litigant’s failure to file a timely

notice of appeal from district court order deprived appellate court of jurisdiction to

review the order).

      Mr. Fernandez also argues that the ALJ should have considered the testimony

of the vocational expert (VE) who testified at his most recent hearing on December 5,

2011, rather than rely on the VE testimony from the April 3, 2008 hearing. The

Remand Order directed the ALJ to determine whether Mr. Fernandez’s residual

functional capacity (RFC) should be modified in light of his subjective complaints.

The ALJ conducted a thorough analysis of Mr. Fernandez’s complaints of pain and

depression. The ALJ determined, pursuant to Luna v. Bowen, 834 F.2d 161, 163-64

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(10th Cir. 1987), and Kepler v. Chater, 68 F.3d 387, 390 (10th Cir. 1995), that

Mr. Fernandez had established a pain-producing impairment by objective medical

evidence and that there was a loose nexus between the impairment and his subjective

allegations of pain. But the ALJ concluded that Mr. Fernandez had not established

the third requirement—to establish that his pain and depression were disabling.

Therefore, the ALJ determined that Mr. Fernandez’s RFC established at the April 3,

2008 hearing did not need to be modified. Consequently, the VE’s testimony at the

December 5, 2011 hearing concerning Mr. Fernandez’s abilities as of February 25,

2010, when he filed for SSI, was irrelevant to his condition before his insured status

expired on December 31, 1996. To be entitled to disability benefits, he was required

to establish his disability as of December 31, 1996. See Flaherty, 515 F.3d at 1069.

      We also construe Mr. Fernandez’s brief as including a challenge to the ALJ’s

determination that his subjective complaints were not disabling. The ALJ was

instructed on remand to accept the RFC assessment from 2008, but to evaluate

whether the RFC should be modified after considering Mr. Fernandez’s subjective

complaints. As noted, the ALJ determined that the subjective complaints were not

disabling and did not warrant modifying the RFC.

      The Remand Order directed the ALJ to consider only evidence dated before

December 31, 1997. The evidence pertaining to Mr. Fernandez’s subjective

complaints was as follows:

      Mr. Fernandez had shoulder surgery in 1991 due to a work-related injury, with

good results. In a 1994 personal pain questionnaire, Mr. Fernandez said he had pain

                                           6
in his left shoulder and right knee that restricted his activities. He did not take

medication, but treated the pain with sports cream, hot baths, and ice packs. In spite

of his pain, he continued to ride a bike, hike, fish, play pool, and do housework. In

1996, he testified that his shoulder and knee pain did not respond to medication and

he spent most of the day lying down or sitting, but he was able to do yard work, play

pool, ride a bike, and walk for a couple of hours with intermittent resting.

       In 1994, David Crosson, M.D., assessed Mr. Fernandez, concluding that

although he had an unstable right knee and some non-severe shoulder pain, he was

capable of performing sedentary work. Mr. Fernandez also reported low-back pain in

1994 and after treatment, his physicians reported significant improvement. In March

1996, Jolene Daulton, a physical therapist, evaluated Mr. Fernandez’s physical work

restrictions, opining that he was limited in his abilities to lift, walk, stand, sit, climb,

and bend. She did not attempt to evaluate his pain except to state that he reported

shoulder and back pain.

       Mr. Fernandez underwent several surgeries to his right knee and made good

recovery following each surgery, although in February 1997, his treating physician,

Stewart Weinerman, M.D., indicated that Mr. Fernandez would probably have future

problems with his knee.1 In a March 1997 assessment, Dr. Weinerman noted no

shoulder restrictions and indicated that Mr. Fernandez could perform sedentary work.


       1
       As noted above, to be eligible for disability insurance benefits,
Mr. Fernandez had to establish that he was disabled before December 31, 1996. See
Flaherty, 515 F.3d at 1069. Dr. Weinerman’s 1997 prediction of future knee
                                                                         (continued)
                                              7
      As for psychological limitations, in July 1996, Steve Martin, M.D., completed

a consultative psychological evaluation. He diagnosed Mr. Fernandez with major

depression, moderate, and pain syndrome with psychological factors. Dr. Martin

recommended an antidepressant, which Mr. Fernandez refused, psychotherapy, and a

reduction in alcohol consumption. In 1997, Mr. Fernandez received treatment from

Jose G. Vega, Ph. D., whose treatment notes indicated that Mr. Fernandez’s

depression was situational and that Mr. Fernandez intended to return to the

workforce.

      The ALJ found Mr. Fernandez’s claims of disabling pain not credible.

“Credibility determinations are peculiarly the province of the finder of fact, and we

will not upset such determinations when supported by substantial evidence.

However, findings as to credibility should be closely and affirmatively linked to

substantial evidence and not just a conclusion in the guise of findings.” Newbold v.

Colvin, 718 F.3d 1257, 1267 (10th Cir. 2013) (internal quotation marks omitted).

“[D]isability requires more than mere inability to work without pain.” Brown v.

Bowen, 801 F.2d 361, 362 (10th Cir. 1986).

      The ALJ’s determination that Mr. Fernandez’s pain and depression were not

disabling is affirmatively linked to substantial evidence in the record, including the

medical and psychological reports, the opinions stating that he could perform

sedentary work, the ALJ’s observation that many of the medical reports did not

problems did not establish that Mr. Fernandez was disabled before December 31,
1996.

                                           8
indicate that Mr. Fernandez complained of severe pain, and Mr. Fernandez’s own

reports of daily activities. Thus, we will not upset this determination.

       III.   Conclusion

       Mr. Fernandez’s request to proceed IFP is granted. The judgment of the

district court is affirmed.


                                            Entered for the Court


                                            Mary Beck Briscoe
                                            Circuit Judge




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