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

                             FOR THE TENTH CIRCUIT                         November 1, 2016
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
STACY C. PAULSEN,

      Plaintiff - Appellant,

v.                                                          No. 15-1277
                                                   (D.C. No. 1:12-CV-01675-RM)
CAROLYN W. COLVIN, Acting                                    (D. Colo.)
Commissioner of Social Security,

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before TYMKOVICH, Chief Judge, HARTZ and PHILLIPS, Circuit Judges.
                 _________________________________

      Stacy C. Paulsen appeals from a judgment of the district court affirming the

Commissioner’s denial of her application for Social Security disability benefits and

supplemental security income benefits. She alleged disability in August 2009, at age

43, based on degenerative disc disease, chronic back pain, anxiety, and depression.

The ALJ found that she could perform light work involving no complex tasks and

with limited social interaction, and that she could perform work that exists in


      *
        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 This order and judgment is not binding precedent,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.
significant numbers in the national economy. The Appeals Council denied Ms.

Paulsen’s request for review. She then filed a complaint in the district court, which

affirmed the Commissioner’s decision.

      The arguments in Ms. Paulsen’s briefs on appeal are somewhat jumbled. We

see three challenges: (1) The ALJ failed to properly evaluate her credibility; (2) the

ALJ failed to properly weigh the medical evidence; and (3) the ALJ improperly

denied her motion to strike the testimony of the vocational expert (VE). Exercising

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

                            I. STANDARD OF REVIEW

      “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.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007)

(internal quotation marks omitted). “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.” Id. (citation and internal

quotation marks omitted). Even where inconsistent conclusions can be drawn from

the evidence, we must affirm the agency if the conclusion it drew is supported by

substantial evidence. See id. In other words, “[w]e may not displace the agency’s

choice between two fairly conflicting views, even though the court would justifiably

have made a different choice had the matter been before it de novo.” (brackets and

internal quotation marks omitted). When we review the ALJ’s decision, “[t]he more

comprehensive [his] explanation, the easier our task . . . .” Keyes-Zachary v. Astrue,

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695 F.3d 1156, 1166 (10th Cir. 2012). But “[w]here . . . we can follow the

adjudicator’s reasoning in conducting our review, and can determine that correct

legal standards have been applied, merely technical omissions in the ALJ’s reasoning

do not dictate reversal.” Id.

                      II. CREDIBILITY DETERMINATION

      Ms. Paulsen argues that the ALJ erred when he concluded that “her statements

may not be entirely credible.” Aplt. App. at 37. We disagree.

      The framework for evaluating the intensity and persistence of symptoms and

their functional effects is provided in 20 C.F.R. §§ 404.1529(c) and 416.929(c).

See also SSR 96-7, 1996 WL 374186, at *1 (July 2, 1996) (“When the existence of a

medically determinable physical or mental impairment(s) that could reasonably be

expected to produce the symptoms has been established, the intensity, persistence,

and functionally limiting effects of the symptoms must be evaluated to determine the

extent to which the symptoms affect the individual’s ability to do basic work

activities. This requires the adjudicator to make a finding about the credibility of the

individual’s statements about the symptom(s) and its functional effects”), superseded

by SSR 16-3p, 2016 WL 1119029 (effective Mar. 28, 2016).

      “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) (internal quotation marks

omitted). “[F]indings as to credibility, [however,] should be closely and

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

                                           3
findings.” Id. (internal quotation marks omitted). An ALJ is required to do more

than simply “recite[] the general factors [he] considered . . . [without] refer[ing] to

any specific evidence.” Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000). But

no specific format is required. “So long as the ALJ sets forth the specific evidence

he relies on in evaluating the claimant’s credibility, the dictates of Kepler are

satisfied.” Id.

       The ALJ’s analysis meets this test. He spent two pages discussing factors such

as Ms. Paulsen’s daily activities, conflicting statements she gave to medical

providers, the record of conservative medical treatment, her ability to work with the

same allegedly disabling impairments, and evidence that she exaggerated her

symptoms. The ALJ’s credibility findings are closely and affirmatively linked to

substantial evidence and may not be disturbed.

            III. EVALUATION OF MEDICAL-SOURCE EVIDENCE

       The ALJ is required to assess the claimant’s residual functional capacity

(RFC), which is the most she can do despite her limitations. See 20 C.F.R.

§§ 404.1545(a), 416.945(a). In doing so, the ALJ must give consideration to all the

medical opinions in the record. See id. §§ 404.1527(c), 416.927(c). He must also

discuss the weight he assigns to opinions of treating sources. See id. The RFC must

be based on the record as a whole, which includes not only the medical evidence but

also the claimant’s subjective allegations. Id. §§ 1545(a), 416.945(a).




                                            4
A. Dr. Hess

      Ms. Paulsen argues that the ALJ did not properly weigh a January 2011

statement by Douglas Hess, M.D. concerning her lumbar-spine impairment. Dr. Hess

opined that because of that impairment she (1) needed frequent breaks between

sitting, standing, and walking; (2) could lift and carry less than ten pounds; and

(3) would miss more than four days of work a month. He also prepared a statement

on Ms. Paulsen’s cervicalgia, noting that she had headaches approximately two times

a week but medication helped.

      The ALJ evaluated Dr. Hess’s opinion as being from “an apparent treating

physician,” Aplt. App. at 39; but after applying the relevant factors, he found that

Dr. Hess’s opinion was “not entitled to any weight,” id. at 40. According to

Ms. Paulsen, the ALJ erred when he declined to afford Dr. Hess’s statement either

controlling weight or any deference. We are not persuaded.

      A treating-source opinion concerning the nature and severity of a claimant’s

impairment is entitled to controlling weight provided it “is well-supported by

medically acceptable clinical and laboratory diagnostic techniques and is not

inconsistent with the other substantial evidence in [the] record.” 20 C.F.R.

§§ 404.1527(c)(2), 416.927(c)(2). Because the ALJ applied this law, we turn to

whether his finding was supported by substantial evidence. It was.

      The ALJ provided a comprehensive discussion and explanation of the medical

evidence, including Dr. Hess’s opinion itself. Dr. Hess’s statement does not mention

a single clinical or laboratory diagnostic technique as the basis for his opinion. And,

                                           5
as the ALJ noted, Dr. Hess’s opinion was “disproportionate to the objective medical

evidence overall,” Aplt. App. at 39, which amounts to saying that it was inconsistent

with the other evidence. Ms. Paulsen faults the ALJ for failing to use the exact words

used in the regulations when he declined to give Dr. Hess’s opinion controlling

weight. But we have rejected a requirement for technical perfection; instead, it is

enough if “we can follow the adjudicator’s reasoning in conducting our review, and

can determine that correct legal standards have been applied . . . .” Keyes-Zachary,

695 F.3d at 1166.

      It is not enough, however, for the ALJ just to decline to give a treating-source

opinion controlling weight; he must go on to determine what weight to give the

opinion using the factors in § 404.1527(c)(2)(i), (c)(2)(ii), and (c)(3) through (c)(6),

and in § 416.927(c)(2)(i), (c)(2)(ii), and (c)(3) through (c)(6). The ALJ did that.

Among other things, he considered (1) Dr. Hess’s limited longitudinal treating

relationship with Ms. Paulsen; (2) the conclusory nature of the opinion; (3) internal

inconsistencies in the opinion; (4) the conflict between the opinion and the findings

from Dr. Hess’s May 2010 examination; and (5) the conflicts between the opinion

and the other medical evidence. The ALJ’s finding that Dr. Hess’s opinion was not

entitled to any weight is supported by substantial evidence.

      Ms. Paulsen specifically takes issue with the ALJ’s analysis of her alleged

migraine headaches. She contends that the ALJ ignored Dr. Hess’s January 2011

statement that she suffered from severe headaches “approximately two times a

week,” accompanied by nausea and vomiting. Aplt. App. at 419. But as the ALJ

                                            6
explained, “[T]here is insufficient medical evidence to establish that [the headaches]

are a medically determinable physical impairment.” Id. at 24 (emphasis added).

Dr. Hess’s statement mentions no supporting medical evidence and, apparently, was

based on Ms. Paulsen’s word. The sole mention of migraines in the medical records

was Ms. Paulsen’s self-reporting of them to Caroline S. Guillebaud, M.D., the

physician who completed a consultative physical examination in March 2010, two

months before Dr. Hess saw her. (She told Dr. Guillebaud that “she also has

migraines that she is not on any controller medications for. She says that she has

migraines every day. She lays down and they eventually go away. She does not have

any . . . nausea or vomiting with the migraines.” Id. at 327.) The record contains no

medical diagnosis of migraines, and the ALJ found that “the record is devoid of any

evidence that [Ms. Paulsen] ever sought treatment for migraines.” Id. at 24.

When, as here, the only evidence of migraines is self-reporting, the ALJ can also

consider the claimant’s lack of credibility; and as discussed above, the ALJ found

that Ms. Paulsen’s credibility was doubtful (note that she told Dr. Guillebaud that she

experienced no nausea or vomiting with migraines, contrary to Dr. Hess’s report).

Under these circumstances, the ALJ did not err in affording no weight to Dr. Hess’s

statement. See Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2008) (if a

physician’s opinion regarding the claimant’s migraines was not supported by the

evidence of record, “the ALJ’s reasons for not crediting [his opinion] are in

accordance with the governing regulation[s] and case law”).



                                           7
      Ms. Paulsen also faults the ALJ for noting that Dr. Hess’s opinion was

prepared, in part, “for the purpose of . . . achieving a positive outcome in her

applications.” Aplt. App. at 39. She argues that it was error for the ALJ to reject the

treating physician’s opinion simply because it advocated Ms. Paulsen’s claim. To be

sure, “an ALJ’s assertion that a family doctor naturally advocates his patient’s cause

is not a good reason to reject his opinion as a treating physician.” McGoffin v.

Barnhart, 288 F.3d 1248, 1253 (10th Cir. 2002). But the ALJ provided ample

additional reasons for discounting Dr. Hess’s opinion.

B. Nurse Moss

      Ms. Paulsen also asserts that the ALJ improperly weighed the opinion of

Mallory Moss, a nurse practitioner who had seen Ms. Paulsen regularly. In January

2011, Ms. Mallory completed a “Form Mental Residual Capacity Questionnaire,”

also signed by a therapist, in which she opined that Ms. Paulsen was “[u]nable to

meet competitive standards” in several areas of mental functioning, and had “[n]o

useful ability to function” in several others. Aplt. App. at 422-23.

      The ALJ provided a comprehensive discussion of Ms. Moss’s opinion,

observing that several of the limitations found by Ms. Moss were supported

exclusively by Ms. Paulsen’s own reports. He then proceeded to analyze Ms. Moss’s

opinion under the regulations that apply to nonacceptable medical sources.

See 20 C.F.R. §§ 404.1513(d)(1), 416.913(d)(1) (“In addition to evidence from the

acceptable medical sources listed in paragraph (a) of this section, we may also use

evidence from other sources to show the severity of your impairment(s) and how it

                                            8
affects your ability to work. . . .”). The ALJ found that “[g]iven the lack of objective

support or clinical findings for these statements, . . . [Ms. Moss’s] opinion is not

entitled to any weight.” Aplt. App. at 41.

      Ms. Paulsen argues that “[t]he ALJ was not entitled to disregard the serious

problems set out in Ms. Moss’s opinion simply because she is a [nurse].” Aplt.

Opening Br. at 28 (parentheticals and internal quotation marks omitted). But “[i]n

the case of a nonacceptable medical source like [Ms. Moss], the ALJ’s decision is

sufficient if it permits us to ‘follow the adjudicator’s reasoning.’” Keyes-Zachary,

695 F.3d at 1164 (quoting SSR 06-03p, 2006 WL 2329939, at *6 (Aug. 9, 2006)).

The ALJ’s analysis sufficed in this regard. He explained that Ms. Moss’s “responses

on the form are conclusory in nature and disproportionate to the objective medical

evidence overall.” Aplt. App. at 41. He noted that Ms. Moss’s responses were

inconsistent with “her own treatment notes, [which] reflect that with medication [Ms.

Paulsen’s] symptoms improved and she was doing well, and was more social and

active than alleged,” and in particular “her most recent notes reflect[ed] that [Ms.

Paulsen] was doing well.” Id. The ALJ further noted that the “form consists of

‘check the box’ type answers, . . . with [the] accompanying narration indicating that

this is what [Ms. Paulsen] reported, rather than what was found on exam [or]

supported by the evidence of record.” Id.

C. Dr. Valette

      The third opinion that Ms. Paulsen argues was improperly weighed was from

Brett Valette, Ph.D., who completed a consultative psychological examination in

                                             9
March 2010. She argues that the ALJ erred by not assigning a specific weight to the

opinion. We disagree.

      Dr. Valette noted that Ms. Paulsen suffered from some psychological

conditions. The ALJ discussed Dr. Valette’s findings in detail, including his opinion

that she had “major depression, post-traumatic stress disorder, attention deficit

hyperactivity disorder, and polysubstance abuse.” Id. at 36. But Dr. Valette did not

assign any functional limitations to Ms. Paulsen other than to mention that

Ms. Paulsen “probably has difficulty with concentration and remembering because of

attention problems.” Id. at 337 (emphasis added.) Accordingly, the ALJ was not

required to consider Dr. Valette’s opinion in formulating Ms. Paulsen’s RFC.

“[T]he mere presence of [a condition] is not necessarily disabling. Rather, [the

condition], alone or in combination with other impairments, must render claimant

unable to engage in any substantial gainful employment.” Coleman v. Chater,

58 F.3d 577, 579 (10th Cir. 1995) (citations, brackets and internal quotation marks

omitted). The mere diagnosis of a condition does not establish its severity or any

resulting work limitations.

      In any event, Dr. Valette’s opinion was taken into account by the ALJ when he

accepted the assessment of Sara Sexton, Psy. D., a state agency psychological

consultant, who based her opinion on the record, including Dr. Valette’s report, and

noted Ms. Paulsen’s problems with attention, concentration, and memory but did not

find them disabling.



                                          10
D. Dr. Sexton

        Next, Ms. Paulsen faults the ALJ for failing to specifically include the

moderate limitations noted by Dr. Sexton in her mental-residual-functional-capacity

assessment. But there was no need for the ALJ to repeat the moderate limitations

assessed by Dr. Sexton because the effects of the limitations were explained in

Dr. Sexton’s narrative, which limited Ms. Paulsen to unskilled work with limited

social interaction. See Smith v. Colvin, 821 F.3d 1264, 1269 (10th Cir. 2016) (ALJ

can account for moderate nonexertional impairments by limiting the claimant to

particular types of work activity).

        Ms. Paulsen further argues that the ALJ failed to include Dr. Sexton’s

limitations on her ability to work with coworkers and supervisors in formulating her

RFC. But this argument was forfeited. We have examined Ms. Paulsen’s opening

brief in district court and find no argument about the ALJ’s failure to include this

particular limitation in formulating Ms. Paulsen’s RFC. Although her reply brief in

district court mentioned that the ALJ failed to consider the limitations regarding

coworkers and supervisors, a brief mention in a reply brief, without development of

the argument, will not preserve an issue. We therefore will not consider her

argument on appeal. See Berna v. Chater, 101 F.3d 631, 632 (10th Cir. 1996) (“The

scope of our review . . . is limited to the issues the claimant properly preserves in the

district court . . . .”).




                                           11
E. Dr. Snodgrass

      The final allegedly ignored physician is David Snodgrass, M.D. On

October 12, 2009, he completed a Colorado Department of Human Services Med-9

Form, used to determine medical eligibility for the Aid to the Needy and Disabled

program. He checked a box stating that Ms. Paulsen “has been or will be totally and

permanently disabled to the extent [she is] unable to work at any job due to a

physical or mental impairment,” citing her back pain and mental-health issues. Aplt.

App. at 271.

      Ms. Paulsen appears to argue that Dr. Snodgrass’s opinion was entitled to

great weight on the issue of whether she was disabled. We are not persuaded. In

support of his conclusion that Dr. Snodgrass’s opinion was not entitled to any weight,

the ALJ explained, among other things, that Dr. Snodgrass had a limited longitudinal

treatment relationship with Ms. Paulsen, his statement was conclusory in nature, and

it was disproportionate to the objective medical evidence overall. And on the

ultimate issue of whether Ms. Paulsen was disabled, the ALJ correctly stated the law

when he said that “the determination of whether [Ms. Paulsen] is disabled is an issue

reserved to the Commissioner.” Id. at 39; see Castellano v. Sec’y of Health & Human

Servs., 26 F.3d 1027, 1029 (10th Cir. 1994) (“[F]inal responsibility for determining

the ultimate issue of disability is reserved to the [Commissioner].”); 20 C.F.R. §§

404.1527(d)(2), 416.927(d)(2).




                                          12
F. Overall evaluation of the medical evidence

          Ms. Paulsen argues generally that the ALJ examined the opinions of Dr. Hess

and Ms. Moss to see if they outweighed the other medical evidence, instead of “the

other way around,” as required by Goatcher v. United States v. Dep’t of Health &

Human Servs., 52 F.3d 288, 290 (10th Cir. 1995). And she complains that the ALJ

did not follow Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004), and Frey

v. Bowen, 816 F.2d 508, 515 (10th Cir. 1987), because he “gave more weight to

[non-treating medical sources] than to [Ms. Paulsen’s] treating healthcare providers,”

Aplt. Opening Br. at 29. But this argument overlooks the view expressed in

Goatcher that the ALJ can “disregard[] the treating physician’s opinion that a

claimant is disabled” if he “give[s] specific, legitimate reasons.” Id. Neither

Robinson nor Frey command that an ALJ defer to a treating medical provider’s

opinion in all instances. The ALJ may discount the opinions of a treating medical

source when, as here, the ALJ provides good reasons for doing so. See Robinson,

366 F.3d at 1082, Frey, 816 F.2d at 514; see also 20 C.F.R. §§ 404.1527(c)(2)(i),

(c)(2)(ii), and (c)(3) through (c)(6), 416.927(c)(2)(i), (c)(2)(ii), and (c)(3) through

(c)(6).

          Ms. Paulsen also argues that the ALJ failed to consider her obesity, asthma,

chronic-pain syndrome, and left-knee impairment. We see no error. The ALJ did

discuss the alleged left-knee impairment, and found no “medically determinable

physical impairment, or [one] that has resulted in more than minimal functional

limitations.” Aplt. App. at 24. As to the other impairments, the ALJ said that he

                                             13
considered “the entire record.” Id. at 23. We take him at his word. See Flaherty,

515 F.3d at 1071. And there is no evidence that Ms. Paulsen’s obesity, asthma, or

chronic-pain syndrome, separately or in combination with her other impairments,

resulted in any work-related limitations beyond those found by the ALJ. Diagnosis

of a condition does not automatically mean that the claimant is disabled; what

matters is whether the condition results in work-related limitations. See Bernal v.

Bowen, 851 F.2d 297, 301 (10th Cir. 1988).

               IV. MOTION TO STRIKE THE VE’S TESTIMONY

      Once he determined Ms. Paulsen’s RFC, the ALJ proceeded to determine

whether she could work. The VE testified that someone with an RFC that limited her

to “a full range of light [work and] [n]on-exertional limitations of no complex tasks,

defined as SVP 2 or less[,] [and] no dealing with the general public,” Aplt. App. at

70, could perform several jobs in the national economy.

      Ms. Paulsen’s attorney asked the VE a series of hypothetical questions based

on the “moderate” limitations noted in Dr. Sexton’s report. The VE testified that

based on the definition of moderate in the Social Security training manual, there

would be work that Ms. Paulsen could perform. The ALJ denied the attorney’s

request for the VE to produce the manual to show the definition of moderate or, in

the alternative, to strike the VE’s testimony.

      The ALJ’s rulings were correct. Neither the RFC nor the relevant hypothetical

posed to the VE contained the term moderate. Although the hypotheticals posed by

Ms. Paulsen’s attorney used the term, the term is irrelevant. General terms or

                                           14
severity ratings such as moderate should not be used in the RFC or hypotheticals

because they “do not describe function and do not usefully convey the extent of

capacity limitations.” SSA, Program Operations Manual (POMS) DI §

24510.065.B.1.c, available at https://secure.ssa.gov/poms.nsf/lnx/0424510065.

                                V. CONCLUSION

      The judgment of the district court is affirmed.


                                                        Entered for the Court


                                                        Harris L Hartz
                                                        Circuit Judge




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