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

                             FOR THE TENTH CIRCUIT                         February 15, 2017
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
KAREN JOHNSON,

      Plaintiff - Appellant,

v.                                                          No. 16-1076
                                                  (D.C. No. 1:14-CV-03096-CMA)
NANCY A. BERRYHILL,* Acting                                  (D. Colo.)
Commissioner of Social Security,

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

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

      Karen Johnson appeals a district court order affirming the Commissioner’s

denial of disability insurance benefits. Exercising jurisdiction under 28 U.S.C.

§ 1291 and 42 U.S.C. § 405(g), we affirm.




      *
       Pursuant to Fed. R. App. P. 43(c)(2), Nancy A. Berryhill is substituted for
Carolyn Colvin as the Acting Commissioner of the Social Security Administration.
      *
        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 This order and judgment is not binding precedent,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.
                                           I

      Johnson claims she was disabled from January 1, 2006, through December 31,

2009, the date she last met the insured status requirements (“date last insured” or

“DLI”). She suffers from rheumatoid arthritis (“RA”), deep vein thrombosis, obesity,

fibromyalgia, sciatica, sleep apnea, insomnia, day-time somnolence, anxiety, and

depression. After a hearing, an administrative law judge (“ALJ”) concluded at the

final step of the five-step evaluation process, see Wall v. Astrue, 561 F.3d 1048,

1052 (10th Cir. 2009) (explaining five-step process), that Johnson was not disabled

because she retained the residual functional capacity (“RFC”) to perform a limited

range of sedentary work. On judicial review, however, the district court reversed,

concluding that the ALJ failed to demonstrate that he considered all of her

impairments.

      After a new hearing on remand, a different ALJ concluded that Johnson was

not disabled. The ALJ determined that RA, deep vein thrombosis, obesity, and

fibromyalgia were Johnson’s only severe impairments, and that her other, non-severe

impairments had no impact on the earlier RFC assessment; thus, Johnson still

retained the RFC for a limited range of sedentary work. The ALJ incorporated much

of the first ALJ’s analysis, including the finding that Johnson’s testimony was only

partially credible. Relying on previous testimony from a vocational expert, the ALJ

also concluded that Johnson could transition to other work in the national economy.

The Appeals Council denied review, and the district court affirmed.



                                           2
      On appeal, Johnson contends the ALJ: (1) failed to consider all of her

impairments and their combined effect; (2) improperly evaluated her RFC and

credibility; and (3) relied on inaccurate hypothetical questions posed to the

vocational expert at her first administrative hearing.

                                           II

      “We review the Commissioner’s decision to determine whether the factual

findings are supported by substantial evidence and whether the correct legal

standards were applied.” Mays v. Colvin, 739 F.3d 569, 571 (10th Cir. 2014)

(quotation omitted). “[I]n making this determination, we cannot reweigh the

evidence or substitute our judgement for the [ALJ’s].” Smith v. Colvin, 821 F.3d

1264, 1266 (10th Cir. 2016).

                                           A

      Johnson argues that the ALJ failed to consider all of her impairments and their

combined effect. In particular, she contests the ALJ’s step-three finding that her

impairments, in combination, do not meet or equal the criteria for a per se disabling

impairment under the Social Security regulations. See Vigil v. Colvin, 805 F.3d

1199, 1203 (10th Cir. 2015) (observing that ALJ must determine at step three

whether claimant’s impairments meet or equal a listed impairment); 20 C.F.R.

§ 404.1520(a)(4)(iii) (same). “To show that an impairment or combination of

impairments meets the requirements of a listing, a claimant must provide specific

medical findings that support each of the various requisite criteria for the

impairment.” Lax v. Astrue, 489 F.3d 1080, 1085 (10th Cir. 2007). “An impairment

                                            3
that manifests only some of those criteria, no matter how severely, does not qualify.”

Sullivan v. Zebley, 493 U.S. 521, 530 (1990).

       Johnson suggests that her impairments meet or equal listing 14.09D. That

listing requires:

       Repeated manifestations of inflammatory arthritis, with at least two of
       the constitutional symptoms or signs (severe fatigue, fever, malaise, or
       involuntary weight loss) and one of the following at the marked level:
       (1) Limitation of activities of daily living. (2) Limitation in maintaining
       social functioning. (3) Limitation in completing tasks in a timely
       manner due to deficiencies in concentration, persistence, or pace.

20 C.F.R. Pt. 404, Subpt. P, App. 1, § 14.09D. Johnson does not cite any evidence

showing that she meets these criteria. Although there was evidence confirming that

she suffers from RA, a reviewing agency physician’s report indicated that there was

“[m]inimal da[ta] regarding RA aside from some synovitis” of the wrists. A physical

functional capacity assessment further noted that despite an elevated rheumatoid

factor, Johnson’s “[f]ilms ha[d] not shown any erosive changes or joint space

narrowing.” Finally, to the extent Johnson asserts that her other impairments meet

the requirements of a listing, the first ALJ considered evidence that her mental

impairments did not restrict her activities of daily living (“ADLs”) and imposed only

mild limitations on her ability to maintain social functioning, concentration,

persistence, or pace. The second ALJ incorporated the first ALJ’s discussion into his

analysis and expanded upon the combined impact of Johnson’s non-severe

impairments, including sciatica, sleep apnea, insomnia, and somnolence. Stating he

had considered all the evidence, he concluded Johnson did not meet the requirements


                                           4
for any listing. See Wall, 561 F.3d at 1070 (noting that if an ALJ indicates he has

considered all the evidence, we generally take him “at his word” (brackets and

quotation omitted)).

       Nevertheless, Johnson asserts that the ALJ ignored evidence of her neck and

back problems, specifically her degenerative disc disease, which she says caused

marked limitations of her ADLs. Although there was evidence of minimal to

moderate degenerative disc disease that predated the period of disability, see Hamlin

v. Barnhart, 365 F.3d 1208, 1215 (10th Cir. 2004) (recognizing that evidence of

progressive condition from previously adjudicated periods of disability is relevant to

disability determination), Johnson complained only once of sciatica, toward the end

of her coverage period. The ALJ observed that this single complaint suggested only

a minimal impact on her ability to work. Moreover, Johnson was prescribed oral

medication and physical therapy for sciatic pain, and her physical exam showed her

“spine [was] normal without deformity or tenderness.” Johnson argues that this

discussion of sciatica did not account for her low back pain, but the first ALJ

recognized that she was experiencing generalized joint pain. To the extent Johnson

insists the ALJ should have separately discussed her low back pain, the omission

does not require reversal. See Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166

(10th Cir. 2012) (“[M]erely technical omissions in the ALJ’s reasoning do not dictate

reversal.”).

       Johnson also complained of neck and upper back pain in May 2009. Although

an x-ray of her thoracic spine was normal, her doctor prescribed medication for neck

                                           5
pain, and her rheumatologist diagnosed her with acute cervical strain, which was

treated with injections. The ALJ did not discuss this evidence from Johnson’s

treating physicians, whose opinions generally are entitled to controlling weight.

See Hamlin, 365 F.3d at 1215. However, these particular findings are not probative

of any functional limitations—certainly not any at the “marked” severity level.

Johnson nevertheless insists she had marked limitations of ADLs, relying on her own

statements that she experienced fatigue and could walk no more than twenty steps

before needing to rest. But a claimant’s own statements of her symptoms cannot

satisfy a listing’s severity requirement. See 20 C.F.R. § 404.1529(d)(3). Thus, the

ALJ correctly determined that Johnson did not meet the criteria for a listing-level

impairment.

                                           B

      Johnson also contends the ALJ erred in assessing her RFC and credibility.

The first ALJ concluded that she had the RFC for sedentary work, subject to certain

restrictions. He further determined that Johnson’s statements concerning the

intensity, persistence, and limiting effects of her symptoms were not credible to the

extent they were inconsistent with her RFC. The second ALJ incorporated these

findings after concluding that Johnson’s non-severe impairments had no impact on

her RFC.

      On appeal, Johnson argues that by incorporating a prior ALJ’s findings as to

RFC, the ALJ did not account for several of her impairments and their combined

effect. See 20 C.F.R. § 404.1545(a)(2) (providing that the agency “will consider all

                                           6
of [a claimant’s] medically determinable impairments . . . , including [those] that are

not ‘severe’”). Specifically, she insists the ALJ failed to account for her

degenerative disc disease. As explained above, however, he evaluated her complaint

of sciatica but found it had no impact on the previous RFC assessment, which already

accounted for her joint pain. Johnson suggests there was other evidence of sciatica,

but her citations either reference the ALJ’s decision or medical notes documenting

her own reports of pain in her left leg and decreased sensation in her right lower

extremity, neither of which were associated with degenerative disc disease or

sciatica.

        Johnson further contends the ALJ failed to account for her fibromyalgia

because he found that it did not change her RFC, despite determining at step two that

it constituted a severe impairment. But this argument overstates the impact of the

agency’s summary step-two evaluation on the detailed RFC determination at step

four. At step two, the ALJ determines whether the claimant has a medically severe

impairment—that is, an impairment that “significantly limits a claimant’s physical or

mental ability to do basic work activities.” Allman v. Colvin, 813 F.3d 1326, 1330

(10th Cir. 2016) (brackets omitted) (quoting 20 C.F.R. § 404.1520(c)). But at that

point in the sequential evaluation process, the required showing is de minimis, id.,

and does not account for the ALJ’s assessment, at step four, of a claimant’s ability to

work at a given exertional level, see 20 C.F.R. § 404.1520(e) (explaining that if

claimant has an impairment that does not meet or equal a listing, the ALJ will assess

claimant’s RFC to determine disability at steps four and five of the evaluation

                                           7
process). Thus, a finding that an impairment is severe at step two is not

determinative of the claimant’s RFC and cannot substitute for a proper step-four

analysis. Cf. Oldham v. Astrue, 509 F.3d 1254, 1257 (10th Cir. 2007) (stating that “a

finding of severe impairments (which is made at step two) does not require the ALJ

to find at step five that the claimant did not have the residual functional capacity to

do any work,” as “the ALJ still had the task of determining the extent to which those

impairments . . . restricted her ability to work”).

       Given this framework, although the ALJ found at step two that Johnson’s

fibromyalgia was a severe impairment, he was still required to assess whether it

presented additional functional limitations affecting her RFC. On that score, the ALJ

determined that Johnson’s fibromyalgia did not change her RFC because she was not

diagnosed until 2010, after her DLI. Johnson contends this “post-DLI diagnosis was

not a valid reason for discounting” the effects of her fibromyalgia. But “the

proffered evidence [must] relate to the time period for which the benefits were

denied.” Hargis v. Sullivan, 945 F.2d 1482, 1493 (10th Cir. 1991). Moreover, the

ALJ stated that he considered her symptoms to the extent they related back to the

period of disability, but he nevertheless determined there was no impact on her RFC.

Johnson disputes this conclusion, citing her sleep issues, fatigue, anxiety, and

depression; however, the ALJ found that those impairments imposed only minimal

limitations on her ability to work. And although Johnson’s fibromyalgia may have

manifested symptoms similar to these impairments, see Wilson v. Astrue, 602 F.3d



                                            8
1136, 1143 (10th Cir. 2010), she cites no evidence that any pre-DLI symptoms

impacted her RFC.

       Johnson also asserts that her RFC was skewed because the ALJ improperly

discredited her testimony concerning her pain, her sleep habits, the side effects of her

medication, the frequency of her RA flares, and the limitations on her ADLs.

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

court] will not upset such determinations when supported by substantial evidence.”

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

Although an ALJ “need not make a formalistic factor-by-factor recitation of the

evidence” pertaining to a claimant’s credibility, he should consider such factors as

her daily activities, reactions to treatment, “persistent attempts to find relief for her

pain[,] . . . willingness to try any treatment prescribed, regular use of crutches or a

cane, [and] regular contact with a doctor.” Keyes-Zachary, 695 F.3d at 1167

(brackets and quotations omitted).

       The first ALJ recited Johnson’s testimony about her severe pain and postural

limitations, as well as the side effects allegedly caused by her medications. He also

recalled her allegations of restricted ADLs, including her limited ability to grip, hold

a pen, and use a keyboard and mouse. Although he acknowledged that Johnson’s

impairments could be expected to cause the alleged symptoms, he found that her

testimony concerning their intensity, persistence, and limiting effects was not

credible to the extent it was inconsistent with her RFC. For example, he explained

that she claimed to need a cane for walking, yet she was not prescribed a cane, and

                                             9
there were consistent reports that she had a normal gait and station. Moreover,

despite her allegations of disabling arthritic pain, she was engaged in an exercise

weight-loss program, which she was told to continue. And he noted that her reports

of pain were generally accompanied by mild or normal findings. Based on this and

other evidence, the ALJ concluded that Johnson had “partially credible hearing

testimony”—a finding that the second ALJ determined was unchanged and that is

supported by the evidence.1

                                            C

      Johnson further asserts that the ALJ erred in relying on inaccurate hypothetical

questions posed to the vocational expert at her first administrative hearing. In

particular, she claims the questions did not reflect her degenerative disc disease or

postural limitations. But the questions accounted for both: they provided that the

claimant would experience “mild to moderate chronic pain and discomfort likely

noticeable at all times,” and “would need to change positions fairly frequently,” with

the ability “to stay seated up to a half an hour and stand a little while and be seated

again.”

      Johnson also claims that the ALJ erred in finding that she had transferable

skills from her past relevant work as a reservationist. “When an ALJ makes a finding

      1
        Johnson’s RFC/credibility argument exemplifies a common theme throughout
her brief: by incorporating the first ALJ’s analyses, the second ALJ failed to
correctly evaluate the evidence. Although this approach may have created some
ambiguity, Johnson fails to identify any ground for reversal. The second ALJ
indicated that he conducted an independent assessment of all the evidence, and we
take him at his word. See Wall, 561 F.3d at 1070.

                                           10
that a claimant has transferable skills, he must identify the specific skills actually

acquired by the claimant and the specific occupations to which those skills are

transferable.” Dikeman v. Halter, 245 F.3d 1182, 1185 (10th Cir. 2001). Consistent

with these requirements, the ALJ indicated that Johnson had acquired customer

service, record-keeping, typing, and computer skills that were transferable to jobs

existing in significant numbers in the national economy, including order clerk,

information clerk, and general clerk. His finding is supported by Johnson’s own

testimony that she has a bachelor’s degree in behavioral science and early childhood

education and worked full time for a taxi/limousine company, taking high-volume

reservations and transferring skiers between the airport and ski resort.

                                           III

      For the foregoing reasons, the district court’s order is AFFIRMED.

                                             Entered for the Court


                                             Carlos F. Lucero
                                             Circuit Judge




                                            11
