                                                                         FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                     UNITED STATES COURT OF APPEALS                   July 7, 2009
                                                                 Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                    Clerk of Court


    TAMMY A. HARJO,

                Plaintiff-Appellant,

    v.                                                   No. 08-7114
                                             (D.C. No. 6:07-CV-131-RAW-KEW)
    MICHAEL J. ASTRUE, Commissioner,                     (E.D. Okla.)
    Social Security Administration,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before HARTZ, Circuit Judge, BRORBY, Senior Circuit Judge, and
TYMKOVICH, Circuit Judge.



         Tammy A. Harjo 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 payments. 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 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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. Harjo claims she has been disabled since January 2003 due to a

combination of impairments. Most significantly, she suffers from plantar fasciitis

in both feet, which results in chronic heel pain. She first sought treatment for this

condition in April 2003, and has had several steroid injections. Unfortunately,

neither the injections nor the stretching exercises prescribed by her podiatrist

have yielded sustained pain relief. Ms. Harjo also suffers from Type II diabetes,

which, despite her testimony to the contrary, her medical records indicate she has

had difficulty controlling. But her health does not appear to have suffered

permanently as a result of this disease. She also claims to have arthritis in all of

her joints and sporadic numbness of her arms and hands as well as tingling in her

shoulders. Lastly, she complains of a hearing problem in one ear, near-

sightedness, headaches, and fatigue.

      After a hearing, an administrative law judge (ALJ) concluded that despite

this combination of impairments, which he found to be severe, Ms. Harjo had the

residual functional capacity (RFC) to perform a range of sedentary work. He

went on to conclude at step 4 of the sequential evaluation process, see 20 C.F.R.

§ 404.1520 (a)(4); Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009)

(describing five steps), that she was not disabled because she could perform her

past relevant work as an elections board clerk as she had actually performed that

job. Alternatively, the ALJ found there were other jobs in Oklahoma that

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Ms. Harjo could perform, thereby negating her claim of disability at step 5. The

Appeals Council denied Ms. Harjo’s request for review, making the ALJ’s denial

of benefits the agency’s final decision. Wall, 561 F.3d at 1051. Ms. Harjo then

sought judicial review in the district court, which, after an obviously thorough

review of the administrative record, affirmed the ALJ’s decision. This appeal

followed.

                                  II. Discussion

      In reviewing the ALJ’s decision, we ask only whether it “is supported by

substantial evidence” and “whether the correct legal standards were applied.”

Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008) (quotation omitted). In

making these determinations, “we will not reweigh the evidence or retry the

case.” Wall, 561 F.3d at 1052 (quotation omitted). Our role is to “meticulously

examine the record as a whole, including anything that may undercut or detract

from the ALJ’s findings[,] in order to determine if the substantiality test has been

met.” Id. (quotation 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. (quotation omitted).

      Ms. Harjo challenges the ALJ’s decision on two grounds. First, she

contends that his analysis contained a fatal inconsistency because he stated she

could perform her past job as an elections board clerk, but ultimately concluded

she was incapable of performing her past relevant work.

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      This argument is a non-starter. While the ALJ did misstate the vocational

expert’s (VE) opinion, which was that Ms. Harjo could perform her past job with

the elections board even if limited to sedentary work, see Aplt. App. Vol. 2 at

418, the mistake ultimately redounded to her benefit because the ALJ proceeded

to the fifth step of the analysis, which may have been unnecessary given the VE’s

testimony. See Williams v. Bowen, 844 F.2d 748, 751 (10th Cir. 1988)

(explaining that if the ALJ concludes at step 4 that a claimant can perform her

previous work, she is not disabled). We therefore reject this argument for

substantially the same reasons articulated by the district court. See Aplt. App.

Vol. 1 at 90.

      Ms. Harjo’s second challenge concerns the ALJ’s determination, at step 5,

that a significant number of jobs exist in Oklahoma that she is capable of

performing. She asserts a litany of errors in this regard, from the VE’s alleged

failure to reduce the number of food order clerk jobs to account for her

environmental limitations, to the finding that she can work as a fishing reel

assembler. These arguments are based on her cross examination of the VE

concerning whether certain limitations, some of which were not included in the

ALJ’s hypotheticals, would restrict Ms. Harjo’s functional abilities beyond that

found by the ALJ. As the ALJ conceded at the hearing, however, if Ms. Harjo’s

account of her impairments is fully credited, there are no jobs that she can




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perform. See Aplt. App. Vol. 2 at 421. Accordingly, we interpret this line of

attack as a challenge to the ALJ’s credibility determination.

      Specifically, the ALJ found that Ms. Harjo’s “medically determinable

impairments could reasonably be expected to produce the alleged symptoms, but

that [her] statements concerning the intensity, persistence and limiting effects of

these symptoms [were] not entirely credible.” Id. at 18. Ms. Harjo not only

disagrees with this determination, but also takes issue with the ALJ’s credibility

analysis, arguing he failed to tie his findings to substantial evidence in the record.

We agree that the ALJ’s analysis was somewhat lacking. He could have done a

better job of tying his impressions of Ms. Harjo’s testimony to contrary or

supporting evidence in the record. See Kepler v. Chater, 68 F.3d 387, 391

(10th Cir. 1995) (holding that “findings as to credibility should be closely and

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

of findings”) (quotation omitted). And we have consistently urged ALJs to do so

in order to make our review meaningful. Howard v. Barnhart, 379 F.3d 945, 947

(10th Cir. 2004). But we also agree with the district court that the ALJ’s manner

of addressing Ms. Harjo’s complaints was effective “because he discusse[d] in

some detail the statements which he believed to be supported by the evidence.”

Aplt. App. Vol. 1 at 96. For example, the ALJ specifically credited Ms. Harjo’s

complaints of chronic pain, finding that her pain was “sufficiently severe as to be




                                          -5-
noticeable to her at all times.” Id. Vol. 2 at 18. But he found nothing in her

medical records to support her claim that arthritis afflicts every joint in her body.

      The ALJ also noted that Ms. Harjo’s daily life restrictions appeared to be

self-imposed, rather than recommended by her doctors. She challenges this

finding, arguing that she was not seeking advice from her physicians, but

treatment for her ailments. This may be so, but it was nonetheless reasonable for

the ALJ to assume that five years of medical records might somewhere reflect the

degree of alleged debilitation caused by her impairments. This is particularly true

given her testimony that she spends up to half of every day lying down and that

her pain renders her house-bound anywhere from five to ten days out of the

month. See id. at 408, 411. We have long held, of course, that “[t]he absence of

evidence is not evidence.” Thompson v. Sullivan, 987 F.2d 1482, 1491 (10th Cir.

1993). And we recognize that Ms. Harjo may have made such complaints to her

treating physicians, who may have neglected to write the information down. But

the ALJ, not this court, is charged with making credibility determinations based

on the record as a whole. See Kepler, 68 F.3d at 391 (noting that “[c]redibility

determinations are peculiarly the province of the finder of fact”) (quotation

omitted). It is clear in this case that the ALJ’s decision was not based solely, or

even primarily, on Ms. Harjo’s failure to produce a physician’s recommendation

that she be restricted from working. Such a narrow construction of his opinion is

simply not supportable when read in its entirety.

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                                III. Conclusion

      Based on our review of the record on appeal in light of the deferential

standard of review, we conclude that substantial evidence supports the ALJ’s

decision in this case and that he applied the correct legal standards. See Howard,

379 F.3d at 947 (upholding ALJ’s RFC assessment despite flaws in analysis).

The judgment of the district court is therefore AFFIRMED.


                                                   Entered for the Court



                                                   Timothy M. Tymkovich
                                                   Circuit Judge




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