                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 August 19, 2011
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                  Clerk of Court
                            FOR THE TENTH CIRCUIT


    DEBRA L. KRUSE,

                Plaintiff-Appellant,

    v.                                                   No. 10-5168
                                               (D.C. No. 4:09-CV-00395-TLW)
    MICHAEL J. ASTRUE, Commissioner                      (N.D. Okla.)
    of Social Security,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before HOLMES and ANDERSON, Circuit Judges, and BRORBY, Senior
Circuit Judge.



         Debra L. Kruse appeals the Commissioner’s denial of benefits, claiming an

Administrative Law Judge (ALJ) erred in considering her medical source

evidence and her credibility. We exercise jurisdiction under 28 U.S.C. § 1291

and 42 U.S.C. § 405(g) and 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.    BACKGROUND

      Ms. Kruse claimed she was disabled by panic disorder, depression, joint

disease, and foot edema. She applied for Supplemental Security Income, but the

ALJ concluded she was not disabled at step five of the five-step sequential

evaluation process. See 20 C.F.R. § 416.920; Wall v. Astrue, 561 F.3d 1048, 1052

(10th Cir. 2009) (explaining the five-step process). The ALJ found she had a

number of severe impairments—restrictive lung disease, panic disorder,

depression, degenerative disc disease at L3-L4, osteoarthritis, and rheumatoid

arthritis—but reasoned Ms. Kruse possessed the residual functional capacity

(RFC) to perform light work limited by her inability to perform forceful gripping,

power torquing, or twisting with her hands. The ALJ further limited her to simple

work that does not require safety operations or hypervigilence and that has only

limited public contact. Relying on the testimony of a vocational expert, the ALJ

found that although this RFC precluded Ms. Kruse from returning to her prior

work as a cashier, other work existed in significant numbers in the national

economy that Ms. Kruse could perform. He identified three representative

occupations: bench assembler, poultry processor, and electronic assembler. The

Appeals Council denied review, and a magistrate judge, acting on the parties’

consent, affirmed. Ms. Kruse then appealed to this court.




                                        -2-
II.   DISCUSSION

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

findings are supported by substantial evidence in the record and whether the

correct legal standards were applied.” Bowman v. Astrue, 511 F.3d 1270, 1272

(10th Cir. 2008) (quotation omitted). In conducting our review, “[w]e consider

whether the ALJ followed the specific rules of law that must be followed in

weighing particular types of evidence . . . , but we [do] not reweigh the evidence

or substitute our judgment for the Commissioner’s.” Cowan v. Astrue, 552 F.3d

1182, 1185 (10th Cir. 2008) (quotation omitted).

      A.     Medical Source Evidence

      Ms. Kruse raises a multitude of points regarding the ALJ’s evaluation of

the medical source evidence. We begin with her contention that the ALJ erred in

his analysis of a treating physician’s opinion issued by Dr. Sarah Hall on

October 30, 2007. Dr. Hall stated that Ms. Kruse’s rheumatoid arthritis “affects

the small joints of her hands primarily,” causes “daily pain,” and precludes “even

the simplest activities of daily living . . . . This condition is permanent and will

only be controlled with a regimen of medications. She will have difficulty

maintaining a job secondary to her chronic pain and inability to use her hands

effectively.” Aplt. App., Vol. 3 at 437. In evaluating this opinion, the ALJ noted

that later records from the clinic where Dr. Hall worked showed that by the end of

November 2008, Ms. Kruse had shown improvement due to new medications, and

                                          -3-
that the sole x-ray of her hands, taken in July 2007, showed only “mild arthritic

changes.” Id. Vol. 2 at 21. The ALJ further stated that Dr. Hall’s opinion was

“not supported by the whole record due to [Ms. Kruse’s] improved status,” id.,

and noted that his RFC, which specified no forceful gripping, took account of

Ms. Kruse’s grip limitations.

      Ms. Kruse admits that the ALJ properly did not afford controlling weight to

Dr. Hall’s opinion. Her primary argument is that Dr. Hall’s opinion was entitled

to some weight, and the ALJ erred in not explaining what weight he gave to the

opinion. We disagree.

      A treating physician’s medical opinion is subject to a two-step inquiry.

First, an ALJ must give such an opinion “controlling weight” if it is

“‘well-supported by medically acceptable clinical or laboratory diagnostic

techniques’” and is not “‘inconsistent with the other substantial evidence in the

case record.’” Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003)

(quoting SSR 96-2p, 1996 WL 374188, at *2); see also 20 C.F.R. § 416.927(d)(2)

(listing same criteria). If a treating physician’s medical opinion is not entitled to

“controlling weight, it is still entitled to deference; at the second step of the

analysis, the ALJ must make clear how much weight the opinion is being given

(including whether it is being rejected outright) and give good reasons, tied to the

factors specified in the [applicable] regulations,” here 20 C.F.R. § 416.927(d)(2).




                                           -4-
Krauser v. Astrue, 638 F.3d 1324, 1330 (10th Cir. 2011). We have summarized

those factors as

      (1) the length of the treatment relationship and the frequency of
      examination; (2) the nature and extent of the treatment relationship,
      including the treatment provided and the kind of examination or
      testing performed; (3) the degree to which the physician’s opinion is
      supported by relevant evidence; (4) consistency between the opinion
      and the record as a whole; (5) whether or not the physician is a
      specialist in the area upon which an opinion is rendered; and
      (6) other factors brought to the ALJ’s attention which tend to support
      or contradict the opinion.

Id. at 1331 (quotation omitted). When applying these factors, the ALJ’s findings

must be “sufficiently specific to make clear to any subsequent reviewers the

weight he gave to the treating source’s medical opinion and the reason for that

weight.” Id. (alteration omitted) (quotation omitted). However, an ALJ need not

explicitly discuss every factor because “not every factor for weighing opinion

evidence will apply in every case.” Oldham v. Astrue, 509 F.3d 1254, 1258

(10th Cir. 2007) (alteration omitted) (quotation omitted).

      Although the ALJ did not state a specific weight he attached to Dr. Hall’s

opinion, it is readily apparent from the ALJ’s rationale—the later improvement in

Ms. Kruse’s condition—that he afforded the opinion little weight. As to the first

two Watkins factors, the ALJ recognized that Dr. Hall was a treating source and

was well aware of the treatment records generated after Dr. Hall issued her

opinion. As Ms. Kruse points out, those records show continued joint pain,

rheumatoid arthritis, joint warmth or swelling, synovitis of the hand joints,

                                         -5-
numbness or decreased sensation of hands, tenderness and limited range of

motion, abnormal tissue texture, asymmetry, decreased range of motion, pain of

both the hands and feet, observations that her hands and feet were deformed, and

decreased grip strength. But ultimately, they do not contradict the evidence that

Ms. Kruse’s rheumatoid arthritis was improved with medication by November

2008. In addition, an October 2008 note states that her rheumatoid arthritis was

“controlled.” Aplt. App., Vol. 3 at 485. Moreover, there is no indication that the

medication ceased to be effective in alleviating or controlling her rheumatoid

arthritis; one later treatment record states her rheumatoid arthritis was improving,

see id. at 522, and other later records simply note “RA” (short for rheumatoid

arthritis) as one impression without further comment, see id. at 512, 516, 518.

Thus, Ms. Kruse’s argument that the fact her rheumatoid arthritis improved on

one occasion does not mean it was permanently improved is unsupported by the

record.

      Further, it is clear the ALJ considered factors three and four under

Watkins because he found Dr. Hall’s opinion was inconsistent with the only x-ray

test of Ms. Kruse’s hands, which was taken some three months before Dr. Hall

issued her opinion and showed “minimal arthritic changes,” id. at 431. It does

not appear factor five has any special relevance here because there is no

suggestion Dr. Hall was a specialist. As to factor six of Watkins, it appears the




                                         -6-
only “other factors” were the later notes showing that Ms. Kruse’s rheumatoid

arthritis was controlled with medications.

      Ms. Kruse raises several other arguments with regard to the ALJ’s

treatment of Dr. Hall’s opinion. In the credibility portion of her opening brief,

she relies on the existence of Dr. Hall’s opinion to argue it was wrong for the ALJ

to state there was no opinion from a treating physician indicating Ms. Kruse was

“‘disabled or has greater limitations than those determined in this decision.’”

Aplt. Opening Br. at 31 (quoting Aplt. App., Vol. 2 at 21). However, the ALJ’s

statement was based on his negative evaluation of Dr. Hall’s opinion. Ms. Kruse

further claims the ALJ ignored that Dr. Hall did not write another opinion letter

stating that Ms. Kruse’s improvement meant she was capable of full time work,

but she has provided no authority, nor are we aware of any, requiring a later,

contrary opinion in order to afford little weight to a prior opinion. Moreover,

Dr. Hall did not say that Ms. Kruse could not work, only that she would “have

difficulty maintaining a job secondary to her chronic pain and inability to use her

hands effectively.” Aplt. App., Vol. 3 at 437 (emphasis added). Thus, the

statement itself, taken at face value, does not indicate an inability to work.

      Ms. Kruse also faults the ALJ for failing to recontact Dr. Hall “to obtain an

update on her condition.” Aplt. Opening Br. at 22. The duty to contact a medical

source arises when “the evidence . . . receive[d] from [a claimant’s] treating

physician or psychologist or other medical source is inadequate [for]

                                          -7-
determin[ing] whether [the claimant] is disabled.” 20 C.F.R. § 416.912(e). There

was ample record evidence in this case for the ALJ to use in determining what

weight to give Dr. Hall’s October 2007 opinion. Hence, he had no duty to

recontact Dr. Hall for an updated report on Ms. Kruse’s condition. 1

      Ms. Kruse further contends the ALJ failed to explain how much weight he

afforded to the opinion of a consulting examiner, Dr. Tre’ Landrum, or to the

opinions of non-examining state agency examiners. She also argues that the ALJ

failed to explain why those opinions outweighed Dr. Hall’s opinion. We disagree.

      As to Dr. Landrum, the ALJ recounted that his objective examination

results stood in contrast to Ms. Kruse’s subjective reporting, citing Dr. Landrum’s

findings that Ms. Kruse had no neurological deficits, normal fine manipulation of

objects with her hands, “a stable gait at slow speed,” and normal ranges of

motion. Aplt. App., Vol. 2 at 17 (discussing id. at 279-83); see also id. at 20

(discussing Dr. Landrum’s findings as part of credibility discussion). It is evident

the ALJ found the medical evidence consistent with Dr. Landrum’s findings and

inconsistent with Dr. Hall’s opinion. As detailed in his decision, the objective

medical evidence showed “mild degenerative joint disease of the hip,”



1
       We note in passing that, after the ALJ issued his decision, Ms. Kruse
submitted to the Appeals Council additional medical records from Dr. Hall’s
clinic, some of which post-dated the ALJ hearing. The Appeals Council made
those records part of the record on which it based its decision that review was not
warranted.

                                        -8-
“degenerative disc disease with mild disk space narrowing at L3-4,” “minimal

arthritic changes in both hands,” and “mild to moderate spondylosis deformans

and mild disk space narrowing at L3-L4 level.” Id. at 20.

      Ms. Kruse claims the ALJ erred in finding Dr. Landrum did not

demonstrate a neurological abnormality because Dr. Landrum noted she had

difficulty with heel and toe walking bilaterally. Quoting § 1.00E1 of 20 C.F.R.

Part 404, Subpart P, Appendix 1, she says this difficulty “‘may be considered

evidence of a significant motor loss.’” Aplt. Opening Br. at 24. However,

§ 1.00E1 states that an “inability” to toe or heel walk, not mere difficulty, “may

be considered evidence of a significant motor loss.” Thus, we see no error in the

ALJ’s finding.

      Ms. Kruse further posits that Dr. Landrum’s finding that her gait was

“fairly stable” means it was unstable. She offers no support for this reading of

“fairly stable,” and we consider it untenable. Along these same lines, Ms. Kruse

contends the ALJ erred in failing to address the observation of psychologist David

Hansen, a mental consulting examiner tasked with performing a mental status

evaluation, that she walked with a slow, shuffling gait. In view of Dr. Landrum’s

later physical examination findings that Ms. Kruse walked with a fairly stable but

slow gait, we see no error in the ALJ’s failure to discuss Dr. Hansen’s

observation, which in any event appears largely consistent with Dr. Landrum’s

finding.

                                         -9-
      Regarding the non-examining physician opinions, the ALJ recognized that

they “do not as a general matter deserve as much weight as those of examining or

treating physicians,” but concluded that those opinions “deserve[d] some weight,

particularly in a case like this in which there exist a number of other reasons to

reach similar conclusions.” Aplt. App., Vol. 2 at 21. The non-examining

physician who addressed Ms. Kruse’s physical limitations concluded that she had

the physical RFC for light work, noting that the record indicated she had full

range of motion, negative straight-leg raising test, and walked with a “fairly

stable gait at an appropriate to slow speed without use of assistive devices.” Id.

at 304-05. The ALJ stated that this opinion was consistent with the medical

evidence of record. Ms. Kruse faults the opinion, and the ALJ’s reliance on it,

because it did not take account of (1) Dr. Landrum’s observation that her grip

strength and great toe strength were “rated at 4/5,” id. at 280; (2) an indication

that she has decreased tendon reflexes and motor function, id., Vol. 3 at 578; or

(3) any manipulative limitations. We see no error. As to Dr. Landrum, the ALJ

included a concession to decreased grip strength in his RFC, and Dr. Landrum

observed Ms. Kruse walk with a fairly stable but slow gait even with the

decreased great toe strength. The indication of decreased tendon reflexes and

motor function is described simply as “DTR ” and “Motor .” Id. These findings

are summary, lacking any explanation of the degree of limitation, and therefore

not significantly probative such that the ALJ was required to address them.

                                         -10-
Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996). Regarding

manipulative limitations, Dr. Landrum found none. Ms. Kruse has not pointed us

to, nor have we found, any such limitations in the medical records that existed

when the non-examining physicians reviewed them in September 2006. 2

      B.     Credibility Finding

      Ms. Kruse also takes issue with the ALJ’s finding that she was not credible

regarding the extent of her physical limitations. 3 The ALJ based this finding on

inconsistency between her activities of daily living (ADLs) and her claimed

limitations; the lack of objective medical record support; Dr. Landrum’s

evaluation; and her non-compliance with physician recommendations that she quit

smoking, which the ALJ deemed inconsistent with the claimed severity of her

restrictive lung disease.

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

and we will not upset such determinations when supported by substantial

evidence.” Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995) (quotation


2
       Ms. Kruse also claims the magistrate judge committed several errors in his
disposition of her arguments concerning the ALJ’s evaluation of the medical
evidence. Because we have concluded that the ALJ did not err in this regard, we
need not address whether the magistrate judge erred. Additionally, in her reply
brief, she raises several new points that are not responsive to the Commissioner’s
brief. Arguments presented for the first time in a reply brief are waived. See
State Farm Fire & Cas. Co. v. Mhoon, 31 F.3d 979, 984 n.7 (10th Cir. 1994).
3
      Ms. Kruse does not appear to take issue with the ALJ’s findings regarding
her mental limitations. Accordingly, we will not discuss them.

                                        -11-
omitted). An ALJ’s credibility determination “should be closely and

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

of findings.” Id. (quotation omitted).

      In attacking the ALJ’s credibility finding, Ms. Kruse argues that the ALJ

improperly relied on her ADLs, did not consider limiting aspects of her ADLs,

and failed to state which ADLs he found inconsistent with her claimed

limitations. It is proper for an ALJ to consider ADLs when evaluating credibility,

Hamlin v. Barnhart, 365 F.3d 1208, 1220 (10th Cir. 2004), but minimal ADLs do

not constitute “substantial evidence that a claimant does not suffer disabling

pain,” id. at 1221 (quotation omitted). The ALJ did not solely rely on

Ms. Kruse’s ADLs, and they were not minimal. The ALJ noted that she looks

after her four young grandchildren three days a week, cleans her house and cooks

“easier items” for her grandchildren, Aplt. App., Vol. 2 at 16, “is able to go to

stores, restaurants, and movies,” id. at 19, and “is able to visit family and

friends,” id. He considered these activities inconsistent with Ms. Kruse’s

allegations that “she has difficulty handling objects and opening jars, has two

hours of stiffness each morning, can stand only five minutes, sit 45 minutes, and

walk one-half block,” and that “she must be seated to take a shower, and must use

a scooter to shop.” Id. Thus, it is clear the ALJ considered limiting aspects of

her ADLs and stated which ADLs he considered inconsistent with her claimed




                                         -12-
limitations. We see no error in the ALJ’s consideration of Ms. Kruse’s ADLs as

one aspect of his credibility finding.

      Ms. Kruse next takes issue with the ALJ’s observation regarding the lack of

objective medical evidence supporting the severity of her claimed limitations.

She argues that although diagnostic tests showed “mild degenerative joint

disease,” “mild disc space narrowing,” and “minimal arthritic changes” to her

hands, those tests were taken early in her treatment for rheumatoid arthritis, a

progressive disease. Apparently in support of the notion that her rheumatoid

arthritis worsened into disabling pain, she points to medical records showing that

doctors “often prescribed strong pain medications, including . . . narcotic[s].”

Aplt. Opening Br. at 29. She also claims it was “improper to expect the objective

medical evidence to demonstrate the severity of her symptoms because only a

loose nexus is required” under Luna v. Bowen, 834 F.2d 161, 164 (10th Cir.

1987), and she implies the ALJ’s adverse credibility finding was based solely on

the lack of corroborating objective medical evidence.

      We see no merit in these arguments. First, the ALJ did not solely rely on

the lack of corroborating objective medical evidence. Second, even though only a

loose nexus between pain complaints and an impairment is required under Luna to

trigger the duty to conduct a credibility analysis regarding pain, see id.,

inconsistency between the objective medical evidence and nonmedical testimony

is a proper consideration in the credibility analysis, Kepler, 68 F.3d at 391.

                                         -13-
Third, as the ALJ made clear in evaluating Dr. Hall’s opinion, Ms. Kruse’s

rheumatoid arthritis was later reported to be improved (and even controlled) with

medications. Accordingly, we see no error in the ALJ’s consideration of the lack

of objective medical evidence supporting Ms. Kruse’s subjective allegations of

disabling pain.

       Ms. Kruse also argues the ALJ “miscasts the evidence of record” in

finding her “foot edema to be nonsevere because he could find no laboratory signs

of foot edema.” Aplt. Opening Br. at 32-33. She then cites to numerous medical

records documenting foot edema. Overlooking that this argument has a tenuous

relationship to the ALJ’s credibility finding, it is based on an incomplete reading

of the ALJ’s finding regarding her foot edema. The ALJ stated that “[a] review

of the record does not reveal any laboratory signs, symptoms or laboratory

findings of an impairment which would impose more than a minimal limitation on

the claimant’s ability to perform basic work activities and therefore her foot

edema is considered a non-severe impairment.” Aplt. App., Vol. 2 at 12.

      Ms. Kruse further claims the ALJ was biased against her, as evidenced by

the “harangue” he subjected her to at the hearing with regard to her failure to quit

smoking. Aplt. Opening Br. at 30. She also claims the ALJ “implied that [she]

was somehow not credible or was negligent in continuing to smoke, but never

supported his statements with substantial evidence.” Id. We are not persuaded.

At the hearing, the ALJ pressed Ms. Kruse about why she continued to smoke

                                         -14-
despite her doctors’ repeated recommendations that she quit. In his decision, he

relied on her failure to follow her physicians’ recommendations for the limited

purpose of finding that her behavior was inconsistent with her allegations

regarding the severity of her restrictive lung disease. We decline to read into the

ALJ’s written finding an implied statement that Ms. Kruse’s continued smoking

rendered her less credible with regard to her subjective allegations of pain or that

she was “negligent” in her conduct. Thus, we conclude she has not demonstrated

the ALJ was biased against her because of her smoking.

       Ms. Kruse also complains about the ALJ’s use of boilerplate language

regarding her credibility. However, boilerplate language is insufficient to support

a credibility determination only “in the absence of a more thorough analysis.”

Hardman v. Barnhart, 362 F.3d 676, 679 (10th Cir. 2004). As we have detailed,

the ALJ provided a thorough analysis affirmatively linked to substantial evidence.

III.   CONCLUSION

       The judgment of the district court is AFFIRMED.


                                                     Entered for the Court



                                                     Wade Brorby
                                                     Senior Circuit Judge




                                         -15-
