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

                             FOR THE TENTH CIRCUIT                            July 30, 2019
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 SHANNON CHRISTINA GOLDEN-
 SCHUBERT,

       Plaintiff - Appellant,

 v.                                                          No. 18-1415
                                                   (D.C. No. 1:17-CV-01318-KMT)
 COMMISSIONER, SSA,                                           (D. Colo.)

       Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before HOLMES, BACHARACH, and McHUGH, Circuit Judges.
                  _________________________________

      Claimant Shannon Christina Golden-Schubert appeals from an order of a

magistrate judge1 affirming the Commissioner’s decision denying her application for

disability insurance benefits (DIB) and supplemental security income (SSI).

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




      *
        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 This order and judgment is not binding precedent,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.
      1
        The parties agreed to proceed before the magistrate judge under 28 U.S.C.
§ 636(c).
                                           I.

      Claimant alleges disability due to fibromyalgia and bipolar disorder. She

applied for DIB and SSI on May 18, 2016 alleging an onset date of March 15, 2015.

The agency initially denied her application on September 21, 2016. On January 10,

2017, claimant received a de novo hearing before an administrative law judge (ALJ).

The ALJ determined claimant was not disabled within the meaning of the Social

Security Act. The Appeals Council denied review, making the ALJ’s decision the

Commissioner’s final decision for purposes of our review.

                                          II.

      To determine disability, the Commissioner employs a five-step sequential

evaluation process. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); see also

Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988) (explaining the five steps

in detail). In this case, the ALJ determined that claimant was not disabled at step

five. At step four, the ALJ found that claimant had the residual functional capacity

(RFC) to perform unskilled or semi-skilled sedentary work involving no contact with

the general public and no more than occasional contact with coworkers and

supervisors. With this RFC, the ALJ determined that claimant could not perform her

past work as an attorney. But, proceeding to step five, the ALJ concluded claimant

was not disabled because she could perform other jobs available in significant

numbers in the national economy, such as document preparer, collator operator, and

general office clerk.



                                           2
      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.” Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir.

2004) (internal quotation marks omitted). “Substantial evidence is such relevant

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

Id. (internal quotation marks omitted). In determining whether substantial evidence

supports the Commissioner’s findings, we meticulously examine the record as a

whole, but “we may neither reweigh the evidence nor substitute our discretion for

that of the Commissioner.” Id. (alterations and internal quotation marks omitted).

      In this appeal, claimant argues that the ALJ erred in formulating her RFC at

step four in two respects. First, she argues the ALJ did not properly weigh the

medical opinion evidence. Second, she argues the ALJ failed to consider the

limitations of all of her severe and non-severe medically determinable impairments in

formulating her RFC.

      A. Weight of Opinion Evidence

      An ALJ must evaluate every medical opinion in the record. See 20 C.F.R.

§§ 404.1527(c), 416.927(c). In deciding what weight to give a medical opinion, the

ALJ must consider all of the factors set forth in §§ 404.1527(c) and 416.927(c).2 The

weight the ALJ gives to each opinion depends, in part, on the relationship between



      2
        Those factors are: (1) examining relationship; (2) treatment relationship;
(3) supportability; (4) consistency; (5) specialization; and (6) other factors.
20 C.F.R. §§ 404.1527(c), 416.927(c).
                                           3
the claimant and the medical professional. Generally, a treating physician’s opinion

is given more weight because treating physicians “are likely to be the medical

professionals most able to provide a detailed, longitudinal picture of [the claimant’s]

medical impairment(s) and may bring a unique perspective to the medical evidence

that cannot be obtained from the objective medical findings alone or from reports of

individual examinations, such as consultative examinations.” 20 C.F.R.

§ 404.1527(c)(2); see also § 416.927(c)(2) (same).

      The ALJ must give a treating physician’s opinion controlling weight if it is

“supported by medically acceptable clinical and laboratory diagnostic techniques and

is not inconsistent with other substantial evidence in the record.” Knight ex rel. P.K.

v. Colvin, 756 F.3d 1171, 1176 (10th Cir. 2014). If an ALJ does not give controlling

weight to a treating physician’s opinion, “the ALJ must explain what weight, if any,

was assigned to the opinion using all of the factors provided in 20 C.F.R.

§§ 404.1527 and 416.927.” Knight, 756 F.3d at 1176-77 (internal quotation marks

omitted). “Specifically, the ALJ must give good reasons in the notice of

determination or decision for the weight he ultimately assigns the opinion, and if he

rejects the opinion completely, he must then give specific, legitimate reasons for

doing so.” Id. at 1177 (internal quotation marks omitted).

      Claimant argues the ALJ (1) failed to give controlling weight to the opinion of

her treating psychiatrist, Dr. Richard Suddath; (2) did not articulate sufficient reasons

for giving significant weight to the state’s nonexamining psychological consultant,



                                            4
Dr. Douglas Hanze; and (3) failed to give any weight to her treating physician,

Dr. Jill Siegfried.

       1. Dr. Suddath

       Dr. Suddath began treating claimant in July 2016. He provided an assessment

of claimant’s functional limitations in a mental RFC form and a written narrative.3

According to Dr. Suddath, claimant is suffering from a “prolonged episode of rapid

cycling, mixed state bipolar disorder.” Aplt. App. Vol. 6 at 1352. In the mental RFC

form, Dr. Suddath indicated that claimant could perform the following activities only

five to 20 percent of the time: work in coordination with others without undue

distraction, interact appropriately with the general public, perform repetitive or short

cycle work, sustain an ordinary routine without special supervision, maintain

attention for two-hour periods, maintain regular attendance, set realistic goals, and

carry out short and simple instructions. He indicated that she could accept

instructions and criticism from supervisors 50 percent of the time, maintain socially

appropriate behavior 40 percent of the time, and get along with coworkers 30 percent

of the time, but he also indicated she could tolerate interactions with supervisors and

coworkers “frequently.” Id. at 1350. In addition, Dr. Suddath indicated that

claimant’s functional limitations would cause her to miss work more than four days

per month. In his written narrative, Dr. Suddath opined that claimant is “unable to do


       3
        The mental RFC form is dated November 20, 2016. The accompanying
narrative is dated November 18, 2018, long after the ALJ issued his decision. As
claimant notes in her opening brief, the date on the narrative should be November 18,
2016.
                                           5
any job” due to “excessive emotionality that includes frequent bouts of tearfulness

alternating with bouts of irritability and loss of temper.” Id. at 1356.

       Dr. Suddath also testified at the hearing before the ALJ on January 10, 2017.

He testified that in his opinion claimant met Listing 12.04 because she met the

criteria in both (A)(1) and (A)(2) of that listing as well as the criteria in (B).4

Specifically, Dr. Suddath stated that claimant exhibits symptoms of depression set

forth in (A)(1) including excessive sleep, social withdrawal, sadness, cheerfulness,

suicidal ideation and thoughts, hopelessness, worthlessness, psychomotor agitation,

slowing retardation, decreased energy, feelings of guilt and worthlessness, problems

concentrating, and mild reappearing paranoia. He had also observed classic

symptoms of mania in (A)(2) including all the symptoms set forth in (A)(2)(a)

through (g).5 Dr. Suddath opined that claimant’s category (A) limitations, especially




       4
         A claimant can meet Listing 12.04 by satisfying the criteria in either (A) and
(B) or (A) and (C). See 20 C.F.R. Part 404, Subpart P, App. 1, § 12.04. With regard
to the (A) criteria, a claimant must satisfy the requirements of either (A)(1) or (A)(2).
Id. § 12.04(A).
       5
         These are:
       a. Pressured speech;
       b. Flight of ideas;
       c. Inflated self-esteem;
       d. Decreased need for sleep;
       e. Distractibility;
       f. Involvement in activities that have a high probability of painful
          consequences that are not recognized; or
       g. Increase in goal-directed activity or psychomotor agitation.

20 C.F.R. Part 404, Subpart P, App. 1, § 12.04(A)(2)(a)-(g).

                                             6
her impulsiveness, impair her daily living activities and occupational and social

functioning.

       Dr. Suddath further testified that claimant suffers marked limitation in all of

the category (B) criteria,6 and these are “pretty close to [] severe in terms of activities

of daily living and social functioning.” Id. Vol. 1 at 44. He noted that her problems

of concentration and persistence fit with her repeated episodes of decompensation

during which “[s]he might have two or three good days . . .[a]nd then go into a major

depression and not be able to show up for appointment[s], or be late to things, or, you

know, follow up on just almost anything.” Id. at 44-45.

       The ALJ expressly gave Dr. Suddath’s opinion little weight, notwithstanding

his treatment relationship with claimant, because he found it inconsistent with mental

health treatment records, inconsistent with a neuropsychological evaluation by

psychologist Dr. Holly Brown,7 inconsistent with claimant’s admitted abilities, and

internally inconsistent. Specifically, the ALJ found that Dr. Suddath’s opinion was

“inconsistent with mental-health treatment records showing that the claimant

consistently demonstrates logical thought processes, unremarkable thought content,



       6
        These are:
       1. Understand, remember, or apply information.
       2. Interact with others.
       3. Concentrate, persist, or maintain pace.
       4. Adapt or manage oneself.

20 C.F.R. Part 404, Subpart P, App. 1, § 12.04(B)(1)-(4).
      7
        Claimant was referred to Dr. Brown in December 2015 by her family for an
evaluation of her mental status.
                                             7
good attention and memory, cooperative behavior, and a good fund of knowledge.”

Id. Vol. 1 at 26. He found it “inconsistent with the results of Dr. Brown’s

neuropsychological testing, which demonstrated that the claimant has a superior IQ, a

high average working memory, and the ability to persist at tasks without distraction.”

Id. He found it inconsistent with claimant’s admitted abilities to “live[]

independently, maintain[] her residence, help[] care for her children, keep[] track of

and shop[] for necessities, manage[] her finances, drive[] and cycle[] from place to

place, and manage[] her medications and appointments.” Id. at 25. And he found the

opinion internally inconsistent with regard to the social limitations Dr. Suddath

assessed. As support for these findings, the ALJ pointed to mental health treatment

records from Dr. Brian Anderson, a psychiatrist who treated claimant between

October 2015 and March 2016, mental health treatment records from various

providers at Mental Health Partners, who treated claimant between April and July

2016, Dr. Brown’s report, claimant’s hearing testimony, and a function report

completed by claimant in August 2016.

      Claimant disputes the inconsistencies identified by the ALJ. She asserts that

the ALJ cherrypicked from a voluminous record to choose moments of functioning

while ignoring evidence of nonfunctioning within the same documents,

mischaracterized Dr. Brown’s report, improperly relied on her daily activities, and

misread internal inconsistencies into Dr. Suddath’s opinion.

      We have thoroughly reviewed the record and we are not persuaded. Mental

status examinations by Dr. Anderson and the providers at Mental Health Partners

                                           8
consistently reflect normal attention and concentration, intact memory, good fund of

knowledge and generally cooperative behavior. Throughout her testing of claimant,

Dr. Brown observed that claimant “persisted on all of the tasks” and “was engaged

and did not appear distracted.” Id. Vol. 2 at 425-26. In addition, Dr. Brown’s test of

intellectual functioning revealed that claimant’s working memory—“ability to sustain

attention, concentrate, and exert mental control[—]is in the high average range.”8

Id. at 428. Claimant described her daily activities9 as “try to look for job, care for

children, run errands, catch up on the news, volunteer, struggle with my teenagers,

grocery shop, fix meals, care for house and lawn as best as I can.” Id. at 269. She

also managed her finances and medications, occasionally practiced yoga with friends,

and drove and cycled from place to place.

      Even if we might have viewed some of the evidence differently, it is not our

task to reweigh the evidence. See White v. Barnhart, 287 F.3d 903, 908 (10th Cir.

2001). Claimant’s mental health treatment records, the objective observations in



      8
         Claimant points to portions of Dr. Brown’s report describing her “as having
substantial difficulty holding an appropriate amount of information in mind or in
‘active memory’ for further processing, encoding, and/or mental manipulation,” Aplt.
App. Vol. 2 at 430, and as having “marked difficulties [with] attention and moderate
difficulties with hyperactivity and impulsivity,” id. at 431. But these descriptions
were based on self-reporting by claimant and reporting by her mother, respectively.
       9
         Claimant contends the ALJ improperly relied on her daily activities. “[An]
ALJ may not rely on minimal daily activities as substantial evidence that a claimant
does not suffer disabling pain.” Thompson v. Sullivan, 987 F.2d 1482, 1490
(10th Cir. 1993). But that was not the purpose of the ALJ’s reference to her daily
activities here. Rather, the ALJ properly considered claimant’s admitted abilities
with regard to her daily activities for purposes of evaluating the consistency of
Dr. Suddath’s opinion with the evidence in the record.
                                            9
Dr. Brown’s report, claimant’s admitted abilities to live independently and manage

daily activities, and Dr. Suddath’s inconsistent assessment with regard to claimant’s

tolerance for interaction with coworkers all support the ALJ’s determination that

Dr. Suddath’s opinion was inconsistent with substantial evidence in the record.

      Claimant also contends that even if Dr. Suddath’s opinion was not entitled to

controlling weight, the ALJ failed to adequately apply the factors set forth in

20 C.F.R. §§ 404.1527(c)(2) and 416.927(c)(2) because he relied only on consistency

and did not address the other five factors. An ALJ is not required to expressly

discuss each factor in deciding what weight to give a medical opinion. See Oldham

v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007). Here, the ALJ acknowledged that

Dr. Suddath was a treating psychiatrist and expressly gave Dr. Suddath’s opinion

little weight due to the inconsistencies described above. This, along with the ALJ’s

citation to the inconsistent evidence, “satisfies the requirement that the ALJ’s

decision be sufficiently specific to make clear to any subsequent reviewers the weight

the adjudicator gave to the treating source’s medical opinion and the reasons for that

weight.” Id. (internal quotation marks omitted). The ALJ thus applied the correct

legal standard in weighing Dr. Suddath’s opinion.

      In sum, the ALJ’s decision to give Dr. Suddath’s opinion little weight was not

contrary to the law and was supported by substantial evidence.

      2. Dr. Hanze

      Dr. Hanze, the State agency’s nonexamining psychological consultant, opined

that claimant’s “[s]ymptoms may interfere with completion of a normal workday or

                                           10
workweek or may cause inconsistent pace. However, when work does not involve

tasks of more than limited complexity and attention to detail, limitations of

attendance and pace will not prevent the completion of a normal workday/workweek

or significantly reduce pace.” Aplt. App. Vol. 1 at 97. Dr. Hanze further opined that

“[c]laimant can perform at a consistent pace without an unreasonable number and

length of rest periods when work demands are within [mental RFC] restrictions.” Id.

The ALJ gave significant weight to Dr. Hanze’s opinion because it was “consistent

with the claimant’s generally unremarkable mental-status, with her superior

intelligence and intact cognition, with her daily activities, with her reported

symptomology, and with evidence that her mood-stabilizing medications are

effective.” Id. at 26-27. In support, the ALJ cited Dr. Brown’s report,

Dr. Anderson’s medication management records, treatment records from Mental

Health Partners, and claimant’s function report.

      As with Dr. Suddath, claimant argues that the ALJ did not adequately apply

the factors set forth in 20 C.F.R. §§ 404.1527(c)(2) and 416.927(c)(2) because he

relied only on consistency and did not address the other five factors. However, the

ALJ implicitly acknowledged that Dr. Hanze was neither an examining source nor a

treating source when he noted that Dr. Hanze was a psychological consultant who

had reviewed the record. As with Dr. Suddath, the ALJ specified the weight he gave

to Dr. Hanze’s opinion, articulated the reason for that weight, and cited those

portions of the record that supported that reason. Accordingly, we again conclude

that the ALJ applied the correct legal standard in weighing Dr. Hanze’s opinion.

                                           11
      Claimant also argues that the evidence the ALJ cited as consistent with

Dr. Hanze’s opinion either did “not support nondisability or [was], in fact,

inconsistent with Dr. Hanze’s opinion.” Opening Br. at 30-31. But claimant does

not specify which evidence was inconsistent with Dr. Hanze’s opinion. See

Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012) (noting that we

consider only those contentions that have been adequately briefed). Moreover, for

the reasons described above, we conclude that substantial evidence in the record

supports the ALJ’s decision to afford Dr. Hanze’s opinion significant weight.

      3. Dr. Siegfried

      An ALJ must consider every medical opinion in the record. 20 C.F.R.

§§ 404.1527(c), 416.927(c). Even if a treating physician’s opinion is not entitled to

controlling weight, “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 [20 C.F.R. §§ 404.1527(c) and 416.927(c)], for the weight

assigned.” Krauser v. Astrue, 638 F.3d 1324, 1330 (10th Cir. 2011).

      Claimant argues that the ALJ failed to give any weight at all to Dr. Siegfried’s

opinion. She contends that her attorney identified Dr. Siegfried as a treating

physician in his pre-hearing brief and his opening statement during the hearing, and

that the ALJ’s failure to weigh Dr. Siegfried’s opinion is reversible error.

      We agree with the Commissioner that claimant forfeited this argument by not

raising it in the district court. See Berna v. Chater, 101 F.3d 631, 632 (10th Cir.

1996) (noting that “waiver principles developed in other litigation contexts are

                                           12
equally applicable to social security cases”). Claimant insists that she did raise this

argument in the district court when she argued:

      The findings of the administrative law judge (alj) regarding the weight to
      be afforded the opinion evidence did not comply with the regulations
      regarding the opinion of a treating physician, are not based on substantial
      evidence, and do not address the relevant factors set forth in the
      regulations.

Reply Br. at 5. But claimant did not identify Dr. Siegfried as the treating physician

whose opinion the ALJ improperly weighed,10 and the magistrate judge clearly

understood this argument as pertaining only to Dr. Suddath and Dr. Hanze. See Aplt.

App. Vol. 8 at 1989. Accordingly, we decline to consider this argument for the first

time on appeal.

      B. Consideration of Severe and Non-Severe Impairments in Formulating
         Claimant’s RFC

      “[I]n assessing the claimant’s RFC, the ALJ must consider the combined effect

of all of the claimant’s medically determinable impairments, whether severe or not

severe.” Wells v. Colvin, 727 F.3d 1061, 1065 (10th Cir. 2013) (emphasis omitted);

see also 20 C.F.R. § 404.1545(a)(2) (“We will consider all of your medically


      10
          Claimant cites our unpublished decision in Williams v. Berryhill,
682 F. App’x 665 (10th Cir. 2017), to suggest that she was not obligated to identify
in the district court a specific opinion that the ALJ failed to correctly evaluate. In
Williams, we construed the claimant’s argument that the ALJ’s physical RFC finding
was not supported by substantial evidence as fairly encompassing a challenge to the
only source on which that RFC finding was based. Id. at 669 n.2. In this case, with
extensive medical records from multiple treating physicians, the generic reference to
“a treating physician” cannot be construed as encompassing a particular physician.
Accordingly, we find Williams distinguishable and, therefore, not persuasive. See
10th Cir. R. 32.1(A) (permitting the use of unpublished dispositions for their
persuasive value).
                                           13
determinable impairments of which we are aware, including your medically

determinable impairments that are not ‘severe’ . . . when we assess your residual

functional capacity.”); 20 C.F.R. § 416.945(a)(2) (same).

       Claimant argues that the ALJ failed to consider all of her severe and

non-severe physical impairments in formulating her RFC. In particular, claimant

contends that the ALJ failed to consider her lumbar spine condition beyond

determining, at step two, that it was not severe, and did not consider her elbow or

shoulder conditions anywhere in his assessment. Claimant points to notes from two

physical therapy sessions, which, she contends, reveal that her elbow and shoulder

conditions rendered her unable to work at a computer for two hours without pain and

her lumbar condition rendered her unable to sit for more than an hour without an

increase in pain.11

       The record reveals that claimant had numerous physical therapy sessions,

including the two identified by claimant, to address pain in her elbows, shoulders,

and back related to her fibromyalgia. The physical therapy notes mostly contain

claimant’s subjective reports of limitations due to pain. Even assuming that the notes

contained functional limitations assessed by a medical source, the ALJ did consider



       11
         Claimant also argues that the ALJ’s failure to consider her shoulder
impairment and its limitations is particularly significant because the ALJ limited her
to sedentary work and most sedentary jobs require good use of the hands and fingers.
We fail to see the legal connection between claimant’s shoulder impairment and the
use of her hands and fingers: she does not identify evidence from any medical source
assessing a limitation in the use of her hands and fingers due to her elbow, shoulder,
or back condition or due to any other medically determinable impairment.
                                          14
claimant’s elbow, shoulder and back pain in formulating her RFC.12 The ALJ

acknowledged that the medical records document claimant’s complaints of pain in

her “feet, elbows, shoulder, back, hips, gluteal muscles, and thighs.” Aplt. App.

Vol. 1 at 24. And the ALJ stated that her “symptoms and objective findings

demonstrate limitations in the claimant’s physical capabilities.” Id. However,

considering the record as a whole, the ALJ concluded that her physical impairments

were not as limiting as claimant alleged and treatment had afforded her greater pain

relief than she alleged. In short, the ALJ did not fail to consider all of claimant’s

medically determinable impairments in formulating her RFC, and we will not

reweigh the evidence.13

                                           III.

      For the foregoing reasons, the judgment of the district court is affirmed.


                                             Entered for the Court


                                             Carolyn B. McHugh
                                             Circuit Judge




      12
          We note that claimant argues only that the ALJ did not consider these
impairments at all; she does not argue that the ALJ erred in weighing a physical
therapist’s opinion with respect to her functional limitations.
       13
          Claimant has not challenged the ALJ’s credibility assessment that her
“statements concerning the intensity, persistence and limiting effects of these
symptoms are not entirely consistent with the medical evidence and other evidence in
the record.” Aplt. App. Vol. 1 at 23-24.
                                           15
