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

                             FOR THE TENTH CIRCUIT                          October 22, 2019
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 KARL J. PUTNAM,

       Plaintiff - Appellant,

 v.                                                          No. 18-1379
                                                   (D.C. No. 1:17-CV-01821-CMA)
 COMMISSIONER, SSA,                                           (D. Colo.)

       Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

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

      Karl J. Putnam appeals from the district court’s order affirming the

Commissioner’s decision denying his application for Social Security disability

benefits. He filed for these benefits in August 2015, alleging a disability onset date

of June 23, 2015. After the agency denied his application he requested a de novo

hearing before an administrative law judge (ALJ).




      *
        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 This order and judgment is not binding precedent,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.
       The ALJ held hearings in August and December 2016. He then entered a

decision in which he applied the agency’s five-step sequential evaluation process and

concluded Mr. Putnam was not disabled.1 At step one of the process the ALJ

determined Mr. Putnam had not engaged in substantial gainful activity since the

alleged onset date. At step two he found Mr. Putnam had the severe impairments of

bipolar I disorder; cognitive disorder; post-traumatic stress disorder (PTSD);

personality disorder; degenerative disc disease, lumbar spine; and tendonitis, left

shoulder. But he further concluded at step three that his impairments did not meet or

medically equal a listed impairment.

       The ALJ evaluated Mr. Putnam’s mental impairments and concluded he had

mild restriction in his activities of daily living; marked difficulties in his social

functioning; mild limitations with regard to concentration, persistence or pace; and

had experienced no episodes of decompensation of extended duration. After

considering the entire record, the ALJ determined at step four that Mr. Putnam

retained the residual functional capacity (RFC)

       to perform light work as defined in 20 CFR 404.1567(b) except the
       Claimant is able to climb ladder, ropes, and scaffolds occasionally, and is
       able to climb ramps and stairs frequently. He is able to balance constantly.

       1
         The Commissioner follows a five-step sequential evaluation process
to determine whether a claimant is disabled. See Williams v. Bowen, 844 F.2d 748,
750-52 (10th Cir. 1988) (describing process). The claimant bears the burden
of establishing a prima facie case of disability at steps one through four. See id.
at 751 n.2. If the claimant successfully meets this burden, the burden of proof shifts
to the Commissioner at step five to show that the claimant retains a sufficient
residual functional capacity (RFC) to perform work in the national economy, given
his age, education and work experience. See id. at 751.

                                             2
      He is able to stoop occasionally. He is able to crouch, kneel, and crawl
      frequently. The claimant is further limited to occasional overhead reaching
      with his left upper extremity. The claimant is further limited in that he
      must avoid even occasional use of moving and/or dangerous machinery,
      and even occasional exposure to unprotected heights. The claimant is
      further limited to work that consists of only simple, routine, and repetitive
      tasks. He is able to maintain sufficient attention and concentration for
      extended periods of two-hour segments during a normal workday with
      normal breaks. The claimant is further limited to work that requires no
      more than brief (defined as “of short duration”), and superficial (defined as
      “occurring at or on the surface”), interaction with the public, and to work
      that can be around co-workers throughout the workday, but with only
      occasional interaction with co-workers. He is further limited to work that
      requires no more than brief and superficial supervision, defined as requiring
      a supervisor’s critical checking of his work.
Admin. R. at 22.2

      The ALJ further found Mr. Putnam could not return to his past relevant work.

But considering his age, education, work experience and RFC, jobs existed in

significant numbers in the national economy that he could perform. The ALJ cited

testimony from a vocational expert (VE) that an individual with Mr. Putnam’s

characteristics would be able to perform representative occupations including

housekeeper-cleaner, marketing clerk, and routing clerk. Applying the

Medical-Vocational Guidelines, 20 C.F.R. pt. 404, Subpt. P, App. 2, rule 202.14 as a

framework, the ALJ concluded at step five of the sequential analysis that Mr. Putnam

was not disabled within the meaning of the Social Security Act. He therefore denied

his application. The Appeals Council denied review, making the ALJ’s decision

the Commissioner’s final decision.


      2
        When citing the administrative record, we have used the numbers the agency
assigned rather than the numbering system used in the appellant’s appendix.
                                           3
      I. Appellate jurisdiction

      The district court entered final judgment on July 16, 2018. Mr. Putnam’s

notice of appeal (NOA) was due on or before September 14, 2018. See Fed. R. App.

P. 4(a)(1)(B). He filed the NOA two days late, on September 16. But on October 13,

2018, within 30 days of the deadline to appeal, see id. 4(a)(5)(A)(i), he filed a timely

motion for extension of time to file the notice of appeal. The district court granted

the motion, making this appeal timely.

      II. Issues and 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.” 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.” Id. (internal quotation marks omitted).

In conducting this review we address only those arguments properly preserved in

district court and presented on appeal. See Chambers v. Barnhart, 389 F.3d 1139,

1142 (10th Cir. 2004).

      Mr. Putnam raises four issues. He argues (1) the ALJ did not apply the correct

legal standard or specifically articulate the weight he gave to certain medical

opinions; (2) the ALJ improperly attempted to assert Listing 12.09, involving

substance addiction, into the proceedings; (3) the ALJ improperly excluded the VE’s

testimony that there were no jobs available in the economy that he could perform;

and (4) the ALJ’s decision is not based on substantial evidence.

                                           4
      III. ALJ’s evaluation of medical opinions

      The record contains several medical opinions concerning Mr. Putnam’s mental

impairments. MaryAnn Wharry, Psy.D., prepared an evaluation as part of the

administrative processing of his claim. But the ALJ assigned little weight to her

assessment, noting that Dr. Wharry did not examine Mr. Putnam and had not

reviewed the subsequently submitted evidence.

      Prior to the August 2016 hearing, Richard B. Madsen, Ph.D., performed a

consultative psychological examination. Dr. Madsen opined that Mr. Putnam’s

short-term auditory memory was impaired. He found Mr. Putnam was moderately to

markedly impaired in a variety of mental-related abilities.3 He further stated that

Mr. Putnam would “require additional supervision because of his difficulty relating

to authority figures.” Admin. R. at 538.

      At the August hearing Ronald Houston, Ph.D., testified as an impartial medical

expert. Dr. Houston opined that Dr. Madsen’s report had “very, very limited value,”

noting his conclusions were inconsistent with those of a mini-mental status exam



      3
        He rated Mr. Putnam moderately impaired in maintaining acceptable
attendance in the workplace; markedly impaired in performing work activities on a
consistent basis and accepting instructions from supervisors; and
moderately-to-markedly impaired in completing a normal workday or workweek
without interruptions resulting from his psychiatric conditions, interacting with
coworkers and the public, and dealing with the usual stresses encountered in a
competitive work environment. He also stated his “ability to perform detailed and
complex tasks [on a] consistent basis over an extended period of time is impaired [at
a] remarkable level” and that “[h]is ability to perform simple and repetitive tasks on a
consistent basis over an extended period of time is impaired at a moderate level.”
Admin. R. at 537.
                                           5
performed by the consultative physical examiner, Rosemary Greenslade, M.D. Id. at

74. Dr. Houston stated “for me this record is entirely confounded, complicated and

conflicted, and my suggestion here is that we’re going to need another [consultative

examination].” Id. The ALJ took his suggestion and ordered an additional

consultative examination, postponing the hearing to receive the results.

         R. Terry Jones, M.D., performed the supplemental consultative examination of

Mr. Putnam and submitted a report of his findings. He found only mild impairments

in Mr. Putnam’s ability to understand, remember, and carry out instructions, noting

that although Mr. Putnam had “subjective concerns about memory,” these were

unsupported by objective findings on the formal mental status examination. Id. at

725. Dr. Jones found moderate-to-marked limitations on Mr. Putnam’s ability to

deal with the public, supervisors, and co-workers, noting his “[h]istory of difficulty

with anger management issues.” Id. at 727. The ALJ assigned great weight to

Dr. Jones’ assessment, finding it “consistent with the medical record describing [his]

difficulty interacting with others.” Id. at 26.

         The ALJ then held a second hearing. At the hearing Dr. Houston further

discussed Mr. Putnam’s mental restrictions. Based on this testimony and the other

evidence, the ALJ concluded that Mr. Putnam’s mental RFC limited him to “simple,

routine, and repetitive tasks,” to concentration for two-hour segments, and to limited

contact with the public and co-workers and limited interaction with supervisors. Id.

at 22.



                                            6
      In reaching his decision, the ALJ was required to “give consideration to all the

medical opinions in the record [and] . . . discuss the weight he assign[ed] to such

opinions.” Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012) (citations

omitted). Although the ALJ discussed and evaluated each medical opinion,

see Admin. R. at 24-27, Mr. Putnam contends his discussion was deficient.

      He argues, first, that the ALJ provided an inadequate reason for the weight he

assigned to Dr. Madsen’s assessment. Although he accepted Dr. Madsen’s opinion

that Mr. Putnam had marked limitations in social functioning—an impairment

highlighted by the other consultants as well as Dr. Madsen4—the ALJ assigned little

weight to the remainder of his opinion, finding it “inconsistent with other

contemporaneous medical evidence showing improvement in his symptoms and intact

memory.” Admin. R. at 24. The ALJ cited three medical exhibits in support of this

conclusion, including Dr. Greenslade’s mental status exam. See id.

      Mr. Putnam argues these exhibits merely showed isolated instances of

improvement and that the ALJ ignored other consistent evidence of his ongoing

difficulties with memory and with completing work responsibilities. Although the


      4
        Dr. Jones, for example, noted that Mr. Putnam had been “diagnosed with
multiple other diagnoses including bipolar disorder, seasonal affective disorder,
OCD, ADHD, and posttraumatic stress disorder,” but concluded that his symptoms
were “best explained by his borderline personality disorder.” Admin. R. at 719. The
principal work-related issue Dr. Jones identified related to his borderline personality
disorder was that he had “anger control” issues, which surfaced in his conflicts with
supervisors, coworkers, and the public. Id. at 723. At the hearing, Mr. Putnam’s
attorney asked Dr. Houston about Mr. Putnam’s history of job loss. Dr. Houston
explained that he thought these problems related to “the social interaction aspect of
work.” Id. at 100.
                                           7
ALJ specifically cited these three exhibits, the record contains other evidence

supporting his conclusions. Although Mr. Putnam complained of memory

difficulties, see e.g., id. at 581, 659, 765, 858, his treatment providers repeatedly

noted that his memory was intact, see id. at 428, 582, 588, 594, 660, 715, 717, 899.

Various medical records note improvement of his symptoms with treatment. See id.

at 586, 788, 815, 863. Dr. Jones, who examined Mr. Putnam, also concluded that his

concentration and memory were within normal limits. See id. at 721. The ALJ

further cited Dr. Houston’s testimony that Dr. Madsen’s opinion was inconsistent

with the medical record. In sum, the ALJ adequately discussed Dr. Madsen’s opinion

and his conclusions were supported by substantial evidence.

      Mr. Putnam also argues that Dr. Madsen’s opinion, as an examining source,

was presumptively entitled to greater weight than Dr. Houston’s opinion, which was

based only on a review of the medical record. But an examining source’s

medical-source opinion “may be dismissed or discounted” if the ALJ properly

evaluates it and provides “specific, legitimate reasons for rejecting it.” Chapo v.

Astrue, 682 F.3d 1285, 1291 (10th Cir. 2012) (internal quotation marks omitted). As

noted, the ALJ provided such reasons here.

      Finally, Mr. Putnam contends the ALJ failed to explain how he resolved

conflicts between the consultants’ opinions concerning specific work-related mental

functions. See Aplt. Opening Br. at 29-31.5 The ALJ’s reasons for rejecting


      5
       He complains the ALJ did not sufficiently discuss Dr. Jones’ assignment of a
moderate limitation in social interaction as opposed to Dr. Houston’s assignment of a
                                            8
Dr. Madsen’s opinion sufficiently addressed the specific work-related functions

Mr. Putnam has identified.6 To the extent Mr. Putnam argues that the ALJ was

required to further explain how he resolved conflicts between Dr. Madsen’s rejected

opinion and the other medical opinions concerning each specific mental function, we

disagree. Cf. Chapo, 682 F.3d at 1288 (“[T]here is no requirement in the regulations

for a direct correspondence between an RFC finding and a specific medical opinion

on the functional capacity in question. The ALJ, not a physician, is charged with

determining a claimant’s RFC from the medical record.” (alterations and internal

quotation marks omitted)). In sum, Mr. Putnam has failed to show reversible error in

the ALJ’s evaluation of the medical evidence.

      IV. Substance Addiction Issues

      Mr. Putnam complains that “[t]he ALJ repeatedly attempted to assert substance

addiction as a diagnosis” in his case. Aplt. Opening Br. at 32. He asserts the ALJ

improperly (1) discounted Dr. Madsen’s opinion because it did not include substance


marked limitation in this area. But because the ALJ adopted Dr. Houston’s more
severe limitation, any error in this regard was harmless.
      6
         Mr. Putnam’s citation to an unpublished case, Trujillo v. Colvin, 626 F.
App’x 749 (10th Cir. 2015), is unavailing. There, a medical expert provided separate
medical opinions concerning different work-related abilities during portions of his
hearing testimony. See id. at 751 (“The opinions expressed in direct-examination and
cross-examination were distinct.”). In his decision, the ALJ addressed only one of
the opinions, while ignoring an opinion about different abilities that had been elicited
on cross-examination. See id. Because we could not say the ALJ’s failure to discuss
the separate opinion was harmless error, we remanded for further consideration.
See id. at 752-53. Here, Dr. Madsen rendered a single opinion. The ALJ gave
acceptable reasons for assigning little weight to the entire opinion (except for its
conclusion about social limitations, which he accepted).
                                           9
abuse, (2) discussed substance abuse at the hearings in his case, (3) adjourned the

first hearing due to concerns about substance abuse, and (4) included references to

drug use in his decision. He argues these actions were improper because (a) his

alcohol use was in remission, (b) Dr. Houston testified that the symptoms relative to

his personality disorder would be the same with or without marijuana use, (c) listing

12.09 concerning drug and alcohol abuse has been removed from the Listings, (d) he

has a medical marijuana license, and (e) his doctors have told him that his marijuana

use is effective for his pain and mania.

      Mr. Putnam’s arguments fail for several reasons. First, at the time of the

ALJ’s decision, substance addiction disorders continued to be addressed under listing

12.09. The new rules for mental listings, including the deletion of Rule 12.09 as a

substance addiction listing, did not begin to apply until January 17, 2017, after the

ALJ had issued his decision. See Revised Mental Criteria for Evaluating Mental

Disorders, 81 Fed. Reg. 66138 & n.1 (Sept. 26, 2016) (stating the new rules are

effective January 17, 2017, and that federal courts should review agency decisions

using the rules in effect at the time of the agency’s decision); id. at 66152 (discussing

removal of listing 12.09).

      Second, the ALJ properly raised an issue about marijuana and alcohol abuse

based on evidence concerning these issues in the record. In addition to Listing 12.09,

the applicable statutes and regulations required him to consider whether drug

addiction or alcoholism was a contributing factor material to the determination of

disability. See 42 U.S.C. § 423(d)(2)(C); 20 C.F.R. § 404.1535.

                                           10
      Finally, as the district court noted, the ALJ did not conclude that Mr. Putnam

had a severe substance abuse impairment. We conclude that the ALJ’s references to

substance abuse do not require reversal.7

      V. Hypothetical Question to Vocational Expert

      The ALJ posed three hypothetical questions to the VE. In the third

hypothetical, he asked the VE to assume that “due to a combination of medical

conditions [including] . . . mental impairments this individual will require on average

two additional breaks each workday of a duration of between 10 and 15 minutes each

in addition to regularly scheduled breaks, and will require more than one or two

unscheduled or unexcused absences per month.” Admin. R. at 106-07. The VE

replied there were no unskilled occupations such an individual could perform.

      The ALJ ultimately relied on the VE’s answer to a different hypothetical

question, which did not include the need for additional breaks or unscheduled

absences. Mr. Putnam argues the ALJ should instead have used the VE’s answer to

the third hypothetical question. But an ALJ is not required to rely on a hypothetical

question that includes limitations that go beyond those in his ultimate RFC

assessment. See, e.g., Smith v. Colvin, 821 F.3d 1264, 1270 (10th Cir. 2016).

Because the ALJ’s RFC assessment did not include the need for additional breaks or




      7
       Although Dr. Houston expressed doubt concerning Dr. Madsen’s opinion
because he did not factor use of alcohol into his conclusions and recommendations,
see Admin. R. at 74, the ALJ did not rely on this factor when assigning weight to
Dr. Madsen’s opinion in his written decision.
                                            11
unscheduled absences, he did not err in failing to rely on the VE’s answer to his third

hypothetical question.

      Although Mr. Putnam further claims that his conditions do require the

additional daily breaks and unscheduled absences—implicitly contending they should

have been included in his RFC—the only evidence he cites for this is his testimony

about his need to attend weekly counseling sessions. This is insufficient to show the

ALJ erred in omitting the proposed restrictions from his RFC assessment.

Cf. Barnett v. Apfel, 231 F.3d 687, 691 (10th Cir. 2000) (holding ALJ did not err by

failing to consider claimant’s absenteeism where no evidence concerning it was

presented during the hearing).

      In addition, although Mr. Putnam claims the third question provided “an

adequate reflection of [his] situation,” Aplt. Opening Br. at 35, he makes an

alternative argument. He argues that even the third hypothetical he prefers was

deficient, because it was insufficiently specific about his mental health impairments.

See id. This objection appears to be irrelevant, given that the ALJ did not rely on the

answer to the third hypothetical. In any event, the ALJ’s second hypothetical

question included, nearly word for word, those mental limitations he recognized in

his RFC. We discern no reversible error.

      VI. Substantial Evidence

      Finally, Mr. Putnam argues that the ALJ’s decision is unsupported by

substantial evidence. Substantial evidence requires “more than a scintilla, but less

than a preponderance.” Knight ex rel. P.K. v. Colvin, 756 F.3d 1171, 1175 (10th Cir.

                                           12
2014) (internal quotation marks omitted). “A decision is not based on substantial

evidence if it is overwhelmed by other evidence in the record.” Id. (internal

quotation marks omitted). But to the extent Mr. Putnam urges us to reweigh the

evidence, we cannot. See Smith, 821 F.3d at 1266 (“[I]n making [the

substantial-evidence] determination, we cannot reweigh the evidence or substitute

our judgment for the administrative law judge’s.”).

      Mr. Putnam raises several specific challenges to the ALJ’s RFC assessment.

He complains that the ALJ improperly concluded he has only mild difficulties with

concentration, persistence, or pace. He cites his subjective complaints about memory

problems. But as previously noted Dr. Jones found these concerns unsupported by

objective findings on a formal mental status examination.

      Mr. Putnam complains of difficulties he experienced on the job due to making

mistakes. From the examples he cites, it appears he encountered these difficulties

during time periods when he performed his past relevant work. The ALJ found he

could not perform any of his past relevant work and limited him instead to jobs that

required only simple, routine, and repetitive tasks. Mr. Putnam fails to show that his

tendency to make mistakes during his previous employment fatally undermined the

ALJ’s RFC assessment.

      Mr. Putnam cites his symptoms such as frustration and agitation, difficulty

staying organized and completing tasks, and difficulty beginning tasks. He argues

that his ability to perform activities of daily living is more nuanced than the ALJ’s

findings suggest. He also refers us to observations about his mental condition that

                                           13
were made by a health-care provider during an initial assessment, before he received

treatment. None of this evidence undermines the substantial evidence supporting the

ALJ’s conclusions, which included his evaluation of both the medical evidence and

the expert medical opinions in the record.

      The ALJ could not simply ignore contrary evidence. See Haga v. Astrue,

482 F.3d 1205, 1207 (10th Cir. 2007) (although “the ALJ is not required to discuss

every piece of evidence,” he “must discuss the uncontroverted evidence he chooses

not to rely upon, as well as significantly probative evidence he rejects” (internal

quotation marks omitted)). But the ALJ analyzed the evidence at length. See Admin.

R. at 23-24. We cannot reverse simply because we might have reached a different

result based on this record. See Ellison v. Sullivan, 929 F.2d 534, 536 (10th Cir.

1990). In sum, the ALJ’s conclusions were supported by substantial evidence and

must be affirmed.

      VII. Conclusion

      The district court’s order affirming the Commissioner’s denial of benefits is

affirmed. Mr. Putnam’s motion to proceed in forma pauperis is granted.


                                              Entered for the Court


                                              Bobby R. Baldock
                                              Circuit Judge




                                             14
