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

                             FOR THE TENTH CIRCUIT                        September 29, 2016
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
ROBERT ORSO,

      Plaintiff - Appellant,

v.                                                           No. 15-7077
                                                (D.C. No. 6:14-CV-00408-FHS-KEW)
CAROLYN W. COLVIN, Acting                                    (E.D. Okla.)
Commissioner of the Social Security
Administration,

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before HOLMES, BALDOCK, and MORITZ, Circuit Judges.
                  _________________________________

      Robert Orso appeals from the district court’s judgment affirming the denial of

his application for disability insurance and supplemental security income benefits.

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

I. Background

      Mr. Orso sought benefits due to his major depression disorder, post-traumatic

stress disorder, bipolar disorder, paranoia, anxiety, memory problems, congestive

      *
        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 This order and judgment is not binding precedent,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.
heart failure, chronic obstructive pulmonary disease, and heart attacks. After his

application was denied initially and on reconsideration, he received a video hearing

before an administrative law judge (“ALJ”), at which Mr. Orso and a vocational

expert (“VE”) testified.

      The ALJ found at step two of the five-step evaluation process used to assess

social security claims, see Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007), that

Mr. Orso had five severe impairments: “personality disorder, bipolar disorder,

coronary artery disease, hypertension, and generalized anxiety,” Aplt. App., Vol. 1 at

30. At step three of the evaluation process, the ALJ applied the special technique for

evaluating the severity of mental impairments by rating Mr. Orso’s level of

impairment in four functional areas. See 20 C.F.R. §§ 404.1520a, 416.920a

(describing special technique). The ALJ determined Mr. Orso had no extreme or

marked limitations but did have moderate difficulties in both the areas of social

functioning and of concentration, persistence, and pace; a mild restriction in

activities of daily living; and no episodes of decompensation.

      Based on those determinations and the other evidence in the record, the ALJ

found that Mr. Orso had the residual functional capacity (“RFC”) “to perform

medium work . . . except limited to simple tasks with some detail and occasional

contact with coworkers, supervisors and the general public.” Aplt. App., Vol. 1 at

32. The ALJ then determined Mr. Orso was not disabled at steps four and five of the

evaluation process because he could perform his past relevant work as a dry cleaner

helper and there were also other jobs in the national economy he was able to perform

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such as press machine operator and janitor. In making these findings, the ALJ relied

in part on the testimony of the VE, who answered the ALJ’s hypothetical questions

about the types of jobs Mr. Orso could perform.

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

appeal, Mr. Orso argues the RFC is not supported by substantial evidence because it

fails to account for his anxiety and is not expressed in terms of work-related

functions. He also argues the ALJ erred in assessing his credibility.

II. Analysis

      We review de novo the district court’s ruling in a social security case and

“independently determine whether the ALJ’s decision is free from legal error and

supported by substantial evidence.” Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir.

2009) (internal quotation marks omitted). “Substantial evidence is such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.”

Wilson v. Astrue, 602 F.3d 1136, 1140 (10th Cir. 2010) (internal quotation marks

omitted). “In reviewing the ALJ’s decision, we neither reweigh the evidence nor

substitute our judgment for that of the agency.” Vigil v. Colvin, 805 F.3d 1199, 1201

(10th Cir. 2015) (internal quotation marks omitted).

A. RFC Assessment

      Mr. Orso argues that the RFC does not include appropriate limitations to

account for his anxiety, and that the hypothetical questions posed to the VE were

erroneous. However, the limitations incorporated into Mr. Orso’s RFC assessment

directly address the areas in which the ALJ found he had moderate difficulties. His

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moderate difficulty with social functioning is encompassed by the limitation of

“occasional contact with coworkers, supervisors and the general public.” Aplt. App.,

Vol. 1 at 32. His moderate difficulty with concentration, persistence, and pace is

encompassed by the limitation of work involving “simple tasks with some detail.”

Id. Moreover, an “ALJ’s finding of a moderate limitation in concentration,

persistence, or pace at step three does not necessarily translate to a work-related

functional limitation for the purposes of the RFC assessment.” Vigil, 805 F.3d at

1203.

        Mr. Orso’s contention that his RFC is not expressed in work-related functions

lacks merit. He fails to explain specifically what additional limitations were needed

based on his anxiety or any other impairment. To the extent he argues that the RFC

should have included limitations to account “for the reality of anxiety attacks

occurring on the job,” Aplt. Opening Br. at 9, this argument is misplaced given the

absence of any evidence that Mr. Orso actually suffered from anxiety attacks. He did

not mention anxiety attacks at all in the paperwork he submitted to the agency or at

his hearing before the ALJ. He points to no evidence that he ever had such an attack

or even that he received a diagnosis that he was likely to suffer from such an attack.

Indeed, at least one medical report in the record strongly suggests his anxiety was not

a significant issue: “The anxiety remains stable. The patient denies any panic

episodes, loss of concentration, or loss of coping ability. No complications noted

from the medication presently being used.” Aplt. App., Vol. 2 at 311.



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      “The burden to prove disability in a social security case is on the claimant, and

to meet this burden, the claimant must furnish medical and other evidence of the

existence of the disability.” Branum v. Barnhart, 385 F.3d 1268, 1271 (10th Cir.

2004). Not only does Mr. Orso fail to make any showing that he actually suffered

from anxiety attacks, he also makes no showing or argument as to how the RFC

limitations would need to be changed to address symptoms stemming from his

anxiety or any of his other impairments.

      Mr. Orso’s contention that the ALJ’s hypothetical questions to the VE were

improper is unpersuasive. The hypothetical questions were appropriately based on

the RFC assessment, which we have already concluded was not erroneous. Although

Mr. Orso seems to argue that the limitations the ALJ propounded to the VE were

inadequate to address his impairments found to be moderate by the ALJ, he fails to

describe any functions he could not perform which would preclude him from the jobs

identified by the VE. After the VE summarized four jobs Mr. Orso previously held,

the ALJ’s first hypothetical question asked her to consider an individual who had

performed that past work and could perform medium work but would be “limited to

simple tasks with some detail [and] to just occasional contact with co-workers and

supervisors.” Aplt. App., Vol. 1 at 58. The VE responded that the individual would

be able to perform past work as a dry cleaner helper. The ALJ’s second hypothetical

question asked the VE to assume all of the same limitations in the first hypothetical,

adding that the individual would be able to have “only occasional contact with the

general public.” Id. The VE responded that the individual would be able to work as

                                           5
a dry cleaner helper, press machine operator, or janitor. Mr. Orso offers no

explanation as to why an individual with only moderate difficulties in social

functioning and concentration, persistence, and pace would be precluded from

performing these jobs. As discussed above, Mr. Orso presented no evidence that he

suffers from anxiety attacks. Consequently, his argument that a person suffering

from such attacks would be precluded from performing these jobs is unavailing.

       Mr. Orso’s citation to unpublished cases and cases from other jurisdictions is

unpersuasive. For the reasons given above, we conclude the RFC is supported by

substantial evidence in the record and find no error.

B. Credibility Determination

       The ALJ found Mr. Orso’s statements about the severity of his symptoms only

partially credible, stating:

       After careful consideration of the evidence, the undersigned finds that
       [Mr. Orso’s] medically determinable impairments could reasonably be
       expected to cause the alleged symptoms; however, [his] statements
       concerning the intensity, persistence and limiting effects of these
       symptoms are not entirely credible for the reasons explained in this
       decision.

Aplt. App., Vol. 1 at 33. Mr. Orso argues that the ALJ erred in how it assessed his

credibility. We disagree.

       “[An] ALJ’s credibility findings warrant particular deference.” White v.

Barnhart, 287 F.3d 903, 910 (10th Cir. 2001). Although the portion the ALJ’s

decision cited above relies on boilerplate language, “use of such boilerplate is

problematic only when it appears in the absence of a more thorough analysis.”


                                           6
Keyes-Zachary v. Astrue, 695 F.3d 1156, 1170 (10th Cir. 2012) (internal quotation

marks omitted). “[S]o long as the ALJ sets forth the specific evidence he relies on in

evaluating the claimant’s credibility, he need not make a formalistic factor-by-factor

recitation of the evidence.” Id. at 1167 (internal quotation marks omitted).

      Here, the ALJ evaluated Mr. Orso’s claims of disabling limitations in the

context of the entire record, noting his “wide range of activities of daily living, his

relatively conservative medical treatment with outpatient counseling and medication,

his mild medical signs of physical limitations, his moderate medical signs of mental

limitations, and the four opinions of the State agency medical consultants.” Aplt.

App., Vol. 1 at 34-35. At the hearing, the ALJ asked Mr. Orso to explain the primary

reason he was unable to work full time. He responded that he had trouble “[d]ealing

with people” and “fitting into the cultures of the jobs that [he’d] had.” Id. at 47. He

also testified that he had problems with losing his temper too easily and “[n]ot

smiling and being bubbly.” Id. at 48. We conclude there is sufficient evidence in the

record to support the ALJ’s determination that Mr. Orso overstated the limiting

effects of his symptoms, and “we neither reweigh the evidence nor substitute our

judgment for that of the agency.” Casias v. Sec’y of Health & Human Servs.,

933 F.2d 799, 800 (10th Cir. 1991).




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III. Conclusion

     The judgment of the district court is affirmed.


                                          Entered for the Court


                                          Bobby R. Baldock
                                          Circuit Judge




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