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

                            FOR THE TENTH CIRCUIT                       October 21, 2014

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
MARTIN MENDEZ,

             Plaintiff-Appellant,

v.                                                         No. 14-1052
                                                  (D.C. No. 1:12-CV-02823-LTB)
CAROLYN W. COLVIN, Acting                                    (D. Colo.)
Commissioner of Social Security,

             Defendant-Appellee.


                            ORDER AND JUDGMENT*


Before GORSUCH, O’BRIEN, and PHILLIPS, Circuit Judges.


      Martin Mendez appeals a district court order affirming the Commissioner’s

denial of disability and supplemental security income benefits. Mr. Mendez contends

an administrative law judge (ALJ) erred in 1) assessing his credibility and residual

functional capacity (RFC); 2) discounting his treating physician’s opinion; and

3) finding that he could perform other work. For the following reasons, 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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

      Mr. Mendez is a high school graduate with experience working as a general

foreman and installer in the heating, ventilation, and air conditioning industry. In

2009, he stopped working and applied for benefits, claiming he was disabled by a bad

knee, gout, and back problems. He also suffered from hyperthyroidism and later was

diagnosed with diabetes. Despite these ailments, Mr. Mendez was looking for work

and collecting unemployment benefits throughout the pendency of his application.

Yet in conjunction with his disability application, Mr. Mendez reported that he was

completely unable to work. He also testified at a hearing with the ALJ that the most

he could walk was one block with the use of a cane and that pain prevented him from

doing much when he experienced a flare-up of gout.

      After the hearing, the ALJ concluded at step five of the five-step sequential

evaluation process, see 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); Lax v. Astrue,

489 F.3d 1080, 1084 (10th Cir. 2007) (explaining the process), that Mr. Mendez was

not disabled. The ALJ determined that Mr. Mendez had severe impairments of

osteoarthritis in both of his knees, gout, and diabetes mellitus with neuropathy. But

the ALJ observed that Mr. Mendez’s hyperthyroidism was well-controlled and his

back problems were mild with no resulting limitations. With these conditions, the

ALJ found that Mr. Mendez retained the RFC to perform a restricted range of light

work. The ALJ also found that Mr. Mendez was not credible and that his treating

physician’s opinion was not entitled to controlling weight. Additionally, relying on


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the testimony of a vocational expert (VE), the ALJ determined that Mr. Mendez

could transition to other jobs, including a gate guard, a furniture rental clerk, and a

telemarketer. Thus, the ALJ concluded that Mr. Mendez was not entitled to benefits.

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

                                            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)

(internal quotation marks omitted). “We consider whether the ALJ followed the

specific rules of law that must be followed in weighing particular types of evidence

in disability cases, but we will not reweigh the evidence or substitute our judgment

for the Commissioner’s.” Lax, 489 F.3d at 1084 (internal quotation marks omitted).

      A. ALJ’s RFC Assessment and Adverse Credibility Finding

      We first consider the ALJ’s RFC assessment and adverse credibility finding.

See Poppa v. Astrue, 569 F.3d 1167, 1171 (10th Cir. 2009) (“Since the purpose of the

credibility evaluation is to help the ALJ assess a claimant’s RFC, the ALJ’s

credibility and RFC determinations are inherently intertwined.”). The ALJ

determined that Mr. Mendez retained the RFC to perform light work with the

following restrictions:

           lifting or carrying ten pounds frequently and twenty pounds
            occasionally,

           standing and/or walking for a total of two hours with normal breaks,
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           sitting for a total of six hours with normal breaks,

           pushing and pulling with his arms within his allowed weight restrictions
            but avoiding pushing and pulling with his legs,

           avoiding unprotected heights and moving machinery,

           occasional climbing, stooping, crouching, kneeling, and crawling,

           avoiding climbing ladders, ropes or scaffolds, and

           avoiding repetitive bending and squatting.

Aplt. App. at 23. In assessing this RFC, the ALJ recognized that Mr. Mendez’s

impairments could cause his alleged symptoms, but she discredited his statements

concerning the intensity, persistence, and limiting effects of those symptoms. On

appeal, Mr. Mendez argues that the ALJ’s RFC assessment fails to account for his

complaints of fatigue and pain, as well as his obesity. He says the ALJ wrongly

discredited him simply because he was collecting unemployment benefits.

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

and we will not upset such determinations when supported by substantial evidence.”

Wilson v. Astrue, 602 F.3d 1136, 1144 (10th Cir. 2010) (internal quotation marks

omitted). Nevertheless, an ALJ’s adverse credibility finding “should be closely and

affirmatively linked to substantial evidence and not just a conclusion in the guise of

findings.” Id. (internal quotation marks omitted).

      Initially, Mr. Mendez seemingly stipulates that his receipt of unemployment

benefits was an appropriate factor that the ALJ could consider with the rest of the

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evidence in evaluating his credibility. He contends, however, that the ALJ erred in

relying almost exclusively on that factor. But the ALJ cited other substantial

evidence supporting her adverse credibility finding, including that Mr. Mendez was

looking for work as a foreman while claiming to be disabled, which was a legitimate

ground for discounting his credibility, see Newbold v. Colvin, 718 F.3d 1257, 1267

(10th Cir. 2013) (observing that claimant’s interest in returning to work supported

adverse credibility finding). Although Mr. Mendez doubted he could actually do the

work, we have no authority to reweigh his testimony, which still supports the ALJ’s

finding. See Lax, 489 F.3d 1084 (“The possibility of drawing two inconsistent

conclusions from the evidence does not prevent an administrative agency’s findings

from being supported by substantial evidence.” (internal quotation marks omitted)).

      The ALJ also cited inconsistencies between Mr. Mendez’s testimony and the

record, including the frequency of his gout flare-ups and the limiting effects of his

symptoms. More specifically, the ALJ observed that Mr. Mendez had stated that he

experienced a gout flare-up every two to three months, though there was no evidence

of any flare-ups or use of gout medication since his amended onset date. The ALJ

also observed that while Mr. Mendez complained of pain in his legs and feet, his

diabetes was well-controlled and physical examinations indicated that he retained full

strength and a normal gait, despite his osteoarthritis. Moreover, Mr. Mendez claimed

that he could stand for only five to ten minutes and could walk for only one block

with a cane, but the ALJ cited evidence indicating that he had lost a significant


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amount of weight through diet and exercise, including riding an exercise bike and

lifting weights. The ALJ found that “[t]hese activities called into question the

validity of [Mr. Mendez’s] allegations that he required a cane and experienced

symptoms of such severity as to preclude work.” Aplt. App. at 25. This substantial

evidence supports the ALJ’s finding that Mr. Mendez was not fully credible.

      Nevertheless, and notwithstanding the ALJ’s adverse credibility finding,

Mr. Mendez contends the ALJ’s RFC assessment fails to account for his complaints

of fatigue. He says there was evidence of fatigue that the ALJ should have expressly

discussed. This argument is unavailing, however, because although an ALJ must

consider all the evidence, she “is not required to discuss every piece of evidence.”

Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996). “Rather, in addition to

discussing the evidence supporting [her] decision, the ALJ also must discuss the

uncontroverted evidence [she] chooses not to rely upon, as well as significantly

probative evidence [she] rejects.” Id. at 1010.

      In 2008, Mr. Mendez reported experiencing fatigue to his doctor, who assessed

mild hypothyroidism. Aplt. App. at 232-33. His doctor increased his thyroid

medication to address his fatigue, id. at 230-31, and by February 2009, she noted that

Mr. Mendez was “not having symptoms of hyp[o]thyroidism,” id. at 211. Citing

these records, the ALJ observed that Mr. Mendez’s medication had “been effective in

managing his hypothyroidism and has not caused any side effects.” Id. at 23. She

therefore concluded that “[his] hypothyroidism has been controlled via conservative


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measures without any side effects.” Id. Although the ALJ did not expressly discuss

Mr. Mendez’s interim claims of fatigue, those claims were not significantly probative

because his symptoms had resolved.

      Mr. Mendez also testified that he experienced fatigue caused by neuropathic

pain, which kept him awake at night. Contrary to Mr. Mendez’s assertion, however,

the ALJ considered these symptoms, noting that Mr. Mendez was “prescribed

gabapentin for management of his neuropathic pain and later amitryptiline as it was

thought some of [his] alleged nighttime pain might be attributable [to] restless leg

syndrome.” Id. at 25. Although the ALJ did not explicitly discuss his claims of

fatigue as an independent, residual effect of his neuropathic pain, again, she was not

obligated to because those claims were not significantly probative in light of the

ALJ’s adverse credibility finding. See Clifton, 79 F.3d at 1009-10. The ALJ stated

she had “considered all symptoms and the extent to which these symptoms can

reasonably be accepted as consistent with the objective medical evidence and other

evidence.” Aplt. App. at 23. When an “ALJ indicates [she] has considered all the

evidence[,] our practice is to take the ALJ at [her] word.” Wall v. Astrue, 561 F.3d

1048, 1070 (10th Cir. 2009) (internal quotation marks omitted).1



1
       Mr. Mendez also insists the ALJ failed to consider his sleep apnea, despite the
fact that “[t]he diagnosis of ‘sleep apnea’ appears in the record six times.” Aplt. Br.
at 27. This argument is meritless because each of Mr. Mendez’s six record citations
indicates that he denied a history of sleep apnea. See Aplt. App. at 278, 282, 286,
299, 304, 308.


                                         -7-
      We are also unpersuaded that the ALJ failed to account for Mr. Mendez’s pain.

As we have explained,

      [t]he framework for the proper analysis of Claimant’s evidence of pain
      is set out in Luna v. Bowen, 834 F.2d 161 (10th Cir. 1987). We must
      consider (1) whether Claimant established a pain-producing impairment
      by objective medical evidence; (2) if so, whether there is a ‘loose
      nexus’ between the proven impairment and the Claimant’s subjective
      allegations of pain; and (3) if so, whether, considering all the evidence,
      both objective and subjective, Claimant’s pain is in fact disabling.

Wilson, 602 F.3d at 1144 (internal quotation marks omitted). In assessing the

credibility of a claimant’s complaints of pain, the ALJ should consider

      [t]he levels of medication and their effectiveness, the extensiveness of
      the attempts (medical and nonmedical) to obtain relief, the frequency of
      medical contacts, the nature of daily activities, subjective measures of
      credibility that are peculiarly with the judgment of the ALJ, the
      motivation of and relationship between the claimant and other
      witnesses, and the consistency or compatibility of nonmedical testimony
      with objective medical evidence.

Id. at 1145 (internal quotation marks omitted).

      In addition to his neuropathic pain, Mr. Mendez complained of gout in his

hands, elbows, wrists, knees, and toes. He said he experienced pain when he had a

gout flare-up and that his knees were “pretty severe” and hurt even when he did not

have a flare-up. Aplt. App. at 52. Mr. Mendez also testified that the most he could

sit was fifteen minutes, the most he could stand was five to ten minutes, and the most

he could walk was one block using a cane.

      The ALJ acknowledged that Mr. Mendez’s impairments could cause the

symptoms he alleged, but she refused to credit his testimony concerning the limiting


                                         -8-
effects of his pain, in part because his allegations were not corroborated by objective

medical evidence. Regarding his neuropathic pain, the ALJ noted that it was treated

with medication and his “physical examination revealed normal reflexes and gait,

along with only mild sensory abnormalities in the feet.” Id. at 25. The ALJ cited

treatment records indicating that Mr. Mendez’s diabetes was well-controlled, id. at

288, while another doctor had prescribed new medication because he suspected that

Mr. Mendez’s pain could have been attributable to restless leg syndrome, id. at 305.

Regarding his gout, the ALJ observed that treatment notes as of the amended onset

date (June 19, 2009) reflected no “significant reports of flares or acute treatment.”

Id. at 24. Although Mr. Mendez had previously experienced an episode of gout in

January 2009, by February of that year he reported that his symptoms had “nearly

resolved completely.” Id. at 211. Moreover, the ALJ pointed out that this absence of

any acute gout flare-ups or treatment since the June 2009 onset date was consistent

with an October 2009 consultative examination report, which was “essentially

normal” and indicated that Mr. Mendez did not require or use any assistive devices.

Id. at 24. Also, the ALJ noted that his knee pain had been treated conservatively with

two injections and ibuprofen and he declined an MRI because he was “feeling

better,” id. at 25 (internal quotation marks omitted). Last, regarding Mr. Mendez’s

back pain, although the ALJ overlooked two specific complaints of back pain, she

considered the treatment records documenting those complaints and observed that

they had “not resulted in any vocationally relevant limitations.” Id. at 23.


                                          -9-
Additionally, the ALJ noted that “diagnostic imaging of [Mr. Mendez’s] back . . .

revealed mild degenerative changes,” id., which Mr. Mendez concedes the ALJ

accounted for by incorporating stooping limitations into her RFC finding.

      Apart from the objective evidence, the ALJ also found that Mr. Mendez’s

allegations of disabling pain were inconsistent with his activities, which included

lifting weights and riding an exercise bike. Indeed, as the ALJ observed, one

progress note described Mr. Mendez as “a highly motivated individual who ha[d]

changed his diet radically, started losing weight, [and was] exercising significantly.”

Id. at 290. Another note indicated he had purchased an exercise bike, which was

alleviating his knee pain and improving his range of motion and blood sugar levels.

Again, Mr. Mendez elected to forgo an MRI of his knees because he was “overall

feeling pretty good.” Id. at 298. This all demonstrates that the ALJ properly

evaluated Mr. Mendez’s allegations of pain in light of the relevant credibility factors

and supported her credibility finding with substantial evidence.

      As for Mr. Mendez’s obesity, the ALJ recognized that Mr. Mendez was “an

obese individual.” Id. at 23. She determined, however, that his obesity was not a

severe impairment because it “did not require treatment or result in vocationally

relevant limitations.” Id.; see also 20 C.F.R. §§ 404.1520(c), 416.920(c) (requiring

that an impairment or combination of impairments significantly limit the claimant’s

ability to do work activities). Mr. Mendez correctly contends that the ALJ still was

required to consider the combined effects of his obesity and other impairments, see


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Wells v. Colvin, 727 F.3d 1061, 1065 (10th Cir. 2013), but the ALJ’s finding that his

obesity posed no vocational limitations obviated the need for further analysis of

Mr. Mendez’s obesity in assessing his RFC, see id. at 1065 n.3 (explaining that an

ALJ’s finding at step two that an impairment poses no restriction to the claimant’s

work activities obviates the need for further analysis at step four); see also Burch v.

Barnhart, 400 F.3d 676, 683-84 (9th Cir. 2005) (holding that obesity without

attending functional limitations was adequately considered by ALJ even though it

was not expressly incorporated into RFC). Moreover, the ALJ stated that she had

“careful[ly] consider[ed] . . . all the evidence,” Aplt. App. at 20, recognizing that she

was required to consider all impairments, “including impairments that are not

severe,” id. at 21. Given these statements, we have no reason to doubt that the ALJ

failed to consider Mr. Mendez’s obesity, particularly since she recognized that it

decreased in correlation to his increase in exercise. Thus, the ALJ properly evaluated

Mr. Mendez’s impairments and credibility in assessing his RFC.

      B. Treating Physician’s Opinion

      We next consider Mr. Mendez’s claim that the ALJ erred in discounting the

opinion of his treating physician, Dr. Teresa Jarmul. Dr. Jarmul treated Mr. Mendez

from April 2008 through his amended onset date, June 19, 2009. On that date,

Dr. Jarmul completed a functional capacity questionnaire indicating that she first

treated Mr. Mendez on February 6, 2009. On the questionnaire, Dr. Jarmul

diagnosed Mr. Mendez with “[g]out, chronic foot pain,” and she stated that his


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prognosis was “[g]ood but gout is a recurrent problem[.]” Aplt. App. at 267.

Dr. Jarmul did not expect his impairment to last at least twelve months, and she

wrote, “I have not seen him to know if his [symptoms] are ongoing now. He could

have recurrent episodes for years.” Id. She also believed he could not wear work

boots, he could stand and walk for no more than two hours in an eight-hour work day,

he could sit no more than four hours, and he frequently experienced “pain severe

enough to interfere with attention and concentration needed to perform even simple

work tasks.” Id. The ALJ gave these opinions “little, and certainly not controlling,

weight,” reasoning that Dr. Jarmul had seen Mr. Mendez on only “isolated

incidences” briefly before his amended onset date, her notes conflicted with records

from another health care provider, and her opinions were inconsistent with her own

prognosis and Mr. Mendez’s activities. Id. at 25. On appeal, Mr. Mendez insists that

the ALJ improperly discounted the doctor’s opinion, but we disagree.

      “Where, as here, the ALJ decides not to give controlling weight to a treating

physician’s opinion, the ALJ must decide whether the opinion should be rejected

altogether or assigned some lesser weight.” Newbold, 718 F.3d at 1265 (internal

quotation marks omitted). Even if an opinion is not entitled to controlling weight,

the ALJ must still weigh the opinion in light of the factors set forth at 20 C.F.R.

§§ 404.1527 and 416.927. Id.

      The ALJ discounted Dr. Jarmul’s opinion in part because her “treatment was

limited to a brief period of time prior to the alleged onset date.” Aplt. App. at 25.


                                         - 12 -
Although Mr. Mendez points out that this period was ten months, between April 2008

and February 2009, Dr. Jarmul indicated on the questionnaire that she first treated

Mr. Mendez in February 2009. Moreover, the ALJ recognized that Dr. Jarmul had

not seen Mr. Mendez for four months before completing the questionnaire, which is

presumably why the doctor wrote, “I have not seen him to know if his [symptoms]

are ongoing now.” Id. at 267. Thus, the ALJ observed that “Dr. Jarmul, by her own

statement, saw [Mr. Mendez] on isolated incidences in early 2009 relative to an acute

gout flare.” Id. at 25. Because the ALJ was obliged to consider both the length and

frequency of the treatment relationship, see 20 C.F.R. §§ 404.1527(c)(2)(i),

416.927(c)(2)(i), this was an appropriate basis for discounting the doctor’s opinion.

      The ALJ also discounted Dr. Jarmul’s opinion in part because it conflicted

with records from Southern Colorado Family Medicine. Mr. Mendez contends that

these records are not necessarily conflicting, but he does not elaborate on his

argument or provide any record citations to support it. See Aplt. Br. at 33. This fails

to adequately present the issue. See Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161

(10th Cir. 2012) (“We will consider and discuss only those . . . contentions that have

been adequately briefed for our review.”). He similarly argues that Dr. Jarmul’s

opinion did not significantly differ from the opinion of a consultative examiner, but

the ALJ did not discount Dr. Jarmul’s opinion on that basis. Rather, the ALJ’s other

grounds for discounting Dr. Jarmul’s opinion were because it was inconsistent with




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Mr. Mendez’s activities and the doctor’s admission that his prognosis was good—

rationales that Mr. Mendez does not challenge and we need not consider. See id.

      C. Step Five Determination

      Mr. Mendez also contends that the ALJ erred in concluding at step five that he

could transition to other work. He first says that according to the Dictionary of

Occupational Titles (DOT) and the Selected Characteristics of Occupations Defined

in the Revised Dictionary of Occupational Titles (1993) (SCO), two jobs identified

by the VE—gate guard and furniture rental clerk—are inconsistent with his RFC.

Nothing in the DOT suggests these jobs are inconsistent with his RFC, however, and

the record clearly indicates that the ALJ confirmed that the VE’s testimony was

consistent with the DOT, see Aplt. App. at 59; see also SSR 00-4p, 2000 WL

1898704, at *2 (Dec. 4, 2000) (requiring ALJ to elicit a reasonable explanation for

any conflict between VE’s testimony and DOT). Although the SCO describes

additional characteristics for occupational groups that encompass these jobs, the ALJ

was entitled to rely on the VE’s testimony to clarify what the DOT indicated—that

those characteristics did not apply in this particular case. See Carey v. Apfel,

230 F.3d 131, 146 (5th Cir. 2000) (holding that ALJ can rely on VE’s testimony if

there is adequate record support for doing so because “all kinds of implicit conflicts

are possible and the categorical requirements listed in the DOT do not and cannot

satisfactorily answer every such situation”).




                                         - 14 -
         Finally, Mr. Mendez asserts that the ALJ improperly relied on the VE’s

testimony that he could perform the sedentary job of a telemarketer. As we

understand his argument, the ALJ could not consider sedentary jobs because the

medical-vocational guidelines (grids) indicate that a person of Mr. Mendez’s age,

education, and experience would be disabled. See 20 C.F.R. Pt. 404, Subpt. P, App.

2 § 201.06. Mr. Mendez’s reliance on the grids is misplaced, however, because the

grids should not be used where, as here, the claimant lacks the ability to perform the

full range of work in a particular RFC category. See Thompson v. Sullivan, 987 F.2d

1482, 1488 (10th Cir. 1993). Recognizing that Mr. Mendez lacked this ability, the

ALJ correctly consulted the VE to determine the extent to which his limitations

eroded his occupational base, and the VE testified that he could still perform the job

of a telemarketer. See SSR 83-12, 1983 WL 31253, at *2 (1983). There was no

error.

                                            III

         The district court’s judgment is affirmed.



                                                      Entered for the Court


                                                      Gregory A. Phillips
                                                      Circuit Judge




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