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

                            FOR THE TENTH CIRCUIT                         April 12, 2013

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
JUDE R. GONZALES,

             Plaintiff-Appellant,

v.                                                         No. 12-2166
                                                  (D.C. No. 1:11-CV-01087-LFG)
CAROLYN W. COLVIN, Acting                                    (D. N.M.)
Commissioner of the Social Security
Administration,*

             Defendant-Appellee.


                            ORDER AND JUDGMENT**


Before O’BRIEN, McKAY, and BALDOCK, Circuit Judges.


      Jude R. Gonzales appeals from a judgment of the district court affirming the

Commissioner’s denial of his application for social security disability benefits.

Exercising jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g), we affirm.

*
       In accordance with Rule 43(c)(2) of the Federal Rules of Appellate Procedure,
Carolyn W. Colvin is substituted for Michael J. Astrue as the defendant-appellee in
this action.
**
      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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
      Mr. Gonzales claimed he had been unable to engage in substantial gainful

employment since February 15, 2008, due to arthritis in the knees, diabetes, hearing

loss, and memory loss. His claim was denied initially and on reconsideration. A

hearing was held before an Administrative Law Judge (ALJ) on January 26, 2010.

After reviewing the evidence and hearing testimony from Mr. Gonzales and a

vocational expert (VE), the ALJ found that Mr. Gonzales suffered from the severe

impairments of “[d]egenerative joint disease of the knees, flexion tendon contractions

of the right ring and middle fingers, and diabetes mellitus.” Aplt. App. Vol. II at 15.

The ALJ then determined that Mr. Gonzales had the residual functional capacity

(RFC) to perform his past relevant work as a legislative senior analyst and a highway

department senior analyst. The ALJ therefore determined at step four of the

controlling five-step sequential evaluation process, see Fischer-Ross v. Barnhart,

431 F.3d 729, 731 (10th Cir. 2005), that Mr. Gonzales was not disabled under the

Social Security Act. The Appeals Council denied review. In the district court, the

parties consented to have a magistrate judge conduct all proceedings and enter a final

judgment. See 28 U.S.C. § 636(c)(1). The magistrate judge affirmed.

      The magistrate judge provided a detailed summary of this case’s procedural

history, and we need not restate that material here. On appeal, Mr. Gonzales asserts

(1) the ALJ erred in his step-three evaluation by failing to evaluate whether his knee

condition met Listing 1.02 for major dysfunction of a joint; (2) the ALJ did not

obtain an expert opinion to determine whether Mr. Gonzales’s knee condition was


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medically equivalent to Listing 1.02; (3) the magistrate judge’s determination that

these alleged step-three errors were harmless is reversible error; (4) the ALJ

improperly discounted the opinion of the consulting radiologist, improperly used

credibility factors to do so, and the error was not harmless; (5) the ALJ did not

address evidence that was significantly probative of disability; (6) the ALJ erred in

relying on the RFC assessments of the consulting physicians; (7) although the ALJ

determined that Mr. Gonzales’s diabetes was a severe impairment, he failed to

impose any work restrictions due to his diabetes; (8) the ALJ erred in finding that

Mr. Gonzales’s diabetes was under control; (9) the ALJ’s RFC findings are not

supported by substantial evidence; and (10) the ALJ erred in discounting

Mr. Gonzales’s credibility.

      We review the Commissioner’s decision to ascertain whether it is supported by

substantial evidence in the record and to evaluate whether she applied the correct

legal standards. Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010).

“Substantial evidence is such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion. It requires more than a scintilla, but less than a

preponderance.” Raymond v. Astrue, 621 F.3d 1269, 1271-72 (10th Cir. 2009)

(internal quotation marks omitted).

      In his thorough and well-reasoned memorandum opinion and order, the

magistrate judge analyzed each of Mr. Gonzales’s claims using the same standard

that governs our review. We have reviewed the briefs, the record, and the applicable


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law. We conclude that the magistrate judge’s analysis is correct and we see no

reason to repeat that analysis here. In particular, we observe that the magistrate

judge determined the error in the ALJ’s step-three consideration of Mr. Gonzales’s

knee condition to be harmless. We have carefully reviewed that determination and

conclude that the magistrate judge’s analysis comports with this circuit’s law on

harmless error in social security cases. See Fischer-Ross, 431 F.3d at 733-34 (stating

remand to agency not required “when confirmed or unchallenged findings made

elsewhere in the ALJ’s decision confirm the step three determination under review”).

Accordingly, the judgment is affirmed for substantially the same reasons articulated

in the magistrate judge’s memorandum opinion and order dated August 7, 2012.



                                                Entered for the Court


                                                Monroe G. McKay
                                                Circuit Judge




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