                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                       UNITED STATES CO URT O F APPEALS
                                                                          April 11, 2007
                             FO R TH E TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                          Clerk of Court

    SUSAN M . GILBERT,

              Plaintiff-Appellant,

     v.                                                    No. 06-1137
                                                    (D.C. No. 05-CV -407-PSF)
    M ICH AEL J. ASTRU E, *                                 (D . Colo.)
    Commissioner of Social Security,

              Defendant-Appellee.



                              OR D ER AND JUDGM ENT **


Before KELLY, L UC ER O, and HA RTZ, Circuit Judges.




          Claimant Susan M . Gilbert appeals a district court order affirming the

denial of her two applications for Social Security disability benefits. W e have

jurisdiction under 28 U.S.C. § 1291, and we reverse and remand for further

proceedings.

*
     Pursuant to Fed. R. App. P. 43(c)(2), M ichael J. Astrue is substituted for
Jo Anne B. Barnhart as appellee in this matter.
**
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
      On appeal M s. Gilbert argues that (1) the administrative law judge (ALJ)

did not properly consider her treating physician’s opinions, resulting in a residual

functional capacity (RFC) that was not supported by substantial evidence, (2) the

ALJ did not properly evaluate her credibility, and (3) the ALJ’s determinations

that she could do her past relevant work, as well as other work in the national

economy, were not supported by substantial evidence and are contrary to

applicable law. W e review the Commissioner’s decision to determine whether his

“factual findings are supported by substantial evidence in the record viewed as a

whole and whether [he] applied the correct legal standards.” Castellano v. Sec’y

of Health & Hum an Servs., 26 F.3d 1027, 1028 (10th Cir. 1994). Substantial

evidence is “more than a mere scintilla. It means such relevant evidence as a

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

v. Perales, 402 U.S. 389, 401 (1971) (quotation omitted).

      Evidence is not substantial if it is overwhelmed by other evidence in
      the record or constitutes mere conclusion. In order to determine
      whether the Secretary’s decision is supported by substantial
      evidence, w e must meticulously examine the record. However, we
      may neither reweigh the evidence nor substitute our discretion for
      that of the Secretary.

M usgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992) (citation omitted).




                                         -2-
                            Treating Physician Opinions

      The ALJ found that M s. Gilbert had four severe impairments: obesity,

fibromyalgia, peripheral neuropathy and status-post left knee arthroplasty. 1 The

ALJ concluded that she had an RFC for sedentary work, with specified limitations

including the ability to stand and stretch each hour, but no restrictions on using

her hands. The ALJ’s RFC also indicated that she had several slight mental

deficits and a moderate limitation in responding appropriately to work pressure.

In making these findings regarding her RFC, the ALJ gave minimal weight to the

opinions of her treating physicians and considered her not fully credible.

      M s. Gilbert argues specifically that in formulating her RFC, the ALJ did

not give adequate weight to the opinions of Dr. Stuart Kassan, her treating

rheumatologist. She contends that the limitations in his opinions pertaining to

sitting, standing and walking, lifting and carrying, and use of her hands and arms

would have precluded her from being able to perform any substantial gainful

activity. She asserts that the ALJ failed to adequately consider any of the

required factors in assessing the weight to be given to Dr. Kassan’s opinions and

that the A LJ failed to consider her fibromyalgia in evaluating those opinions.




1
       For a description of fibromyalgia, see discussion infra p. 10. Peripheral
neuropathy is “a disease involving . . . the peripheral . . . nervous systems.”
Stedman’s M edical Dictionary 1204 (26th ed. 1995). Arthroplasty is the
“[c]reation of an artificial joint” or “[a]n operation to restore as far as possible the
integrity and functional power of a joint.” Id. at 150.

                                          -3-
      A treating physician’s opinion qualifies for “controlling weight” if it is

“well supported by medically acceptable clinical and laboratory diagnostic

techniques. . . . If the ALJ finds that the opinion is well-supported, he must then

confirm that the opinion is consistent with other substantial evidence in the

record.” Langley v. Barnhart, 373 F.3d 1116, 1119 (10th Cir. 2004) (quotations

omitted). “Even if a treating physician’s opinion is not entitled to controlling

weight, treating source medical opinions are still entitled to deference and must

be weighed using all of the factors provided in [20 C.F.R.] § 404.1527.” Id.

(quotation and brackets omitted). Those relevant factors are:

      (1) the length of the treatment relationship and the frequency of
      examination; (2) the nature and extent of the treatment relationship,
      including the treatment provided and the kind of examination or
      testing performed; (3) the degree to which the physician’s opinion is
      supported by relevant evidence; (4) the consistency between the
      opinion and the record as a whole; (5) whether or not the physician is
      a specialist in the area upon which an opinion is rendered; and (6)
      other factors brought to the ALJ’s attention which tend to support or
      contradict the opinion.

Id. (quotation omitted); see also § 404.1527(d). “[A]n ALJ must give good

reasons for the w eight assigned to a treating physician’s opinion, that are

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

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

weight.” Langley, 373 F.3d at 1119 (quotations and alterations omitted).

      As the ALJ acknowleged, Dr. Kassan began treating M s. Gilbert in January

2000. Her medical records indicate that she continued to see him at the time of

                                          -4-
the hearing before the ALJ in 2004. Dr. Kassan completed two work capacity

evaluation forms, the first in A pril 2001 and another in A pril 2003. In each case

he concluded that she was not capable of performing work activity on a regular

and sustained basis. In 2001 he opined, in relevant part, that she could lift ten to

fifteen pounds occasionally and less than ten pounds frequently; she could stand

and walk less than one hour each in an eight-hour work day and without

interruption for only ten minutes; she could sit for only two hours and without

interruption for only one-half hour; and she could never climb, stoop, crouch,

kneel, or crawl. He also indicated that reaching, handling, fingering, feeling, and

pushing/pulling were all affected by her impairment, specifically stating that she

could only occasionally handle, finger or feel. Dr. Kassan’s 2003 opinion

differed significantly only to the extent that he stated she could never handle,

finger or feel.

       In affording minimal weight to Dr. Kassan’s 2001 opinion, the ALJ

specifically relied on a lack of objective test findings in the record, for instance:

“an assessment of mild axonal peripheral neuropathy . . . based on EM G testing,”

Aplt. App., Vol. 3 at 1004; “X-ray and M RI findings [failing] to reveal more than

mild degenerative changes of the . . . spine,” id.; “straight-leg raise testing

negative,” id. at 1006; and “X-rays . . . [showing] mild degenerative changes of

the knees bilaterally,” id. The ALJ also noted M s. Gilbert’s positive response to

physical therapy in 1999 for complaints of cervical and shoulder pain, as well as

                                          -5-
her regular exercise regimen, which at that time included sw imming one-half to

one mile three times a week, riding a stationary bike, walking, and

weight-training. W hile acknowledging that later findings regarding her knees did

support a restriction to sedentary work, the ALJ determined that “no objective

findings [suggested a] restriction to less than 6 hours of sitting per day so long the

claimant has the opportunity to stand and stretch once per hour.” Id. (emphasis

added). The ALJ ultimately concluded that “none of these findings support the

degree of impairment indicated by Dr. Kassan in April 2001. Accordingly, this

assessment is afforded minimal weight.” Id.

      The ALJ likewise gave little weight to Dr. Kassan’s 2003 opinion. In doing

so, she focused on treatment reports for M s. Gilbert’s hands, knees and back. A s

to her hands, the ALJ acknowledged M s. Gilbert’s reports of increased pain in her

thumbs in 2002 and her two thumb arthroplasty surgeries, but noted the positive

results of each surgery, as described by her surgeon, Dr. Fry: she was “doing

well . . . with good stability and no grinding or pain in her left thumb” and she

“demonstrated good position and motion of the right thumb, with no sharp pain as

previously reported.” Id. The ALJ also noted that Dr. Fry told M s. Gilbert she

could resume crocheting, “an activity presumably inconsistent with any

significant manipulative limitations.” Id. The ALJ found no ongoing, specific

hand or thumb complaints, or manipulative restrictions placed upon her by any of




                                          -6-
her treating physicians, in subsequent treatment records. 2 Ultimately, the ALJ

concluded that her treatment records were inconsistent with Dr. Kassan’s 2003

opinion that she could never handle, finger, or feel.

      As noted above, the ALJ concluded that the findings regarding

M s. Gilbert’s knees, which eventually required left knee arthroplasty in A ugust

2003, were consistent with a restriction to sedentary work. The ALJ relied on

treatment records from her surgeon indicating that she was “doing well following

surgery” and that he “observed dramatically improved gait the following day and

released [her] from formalized therapy.” Id. at 1007. The ALJ found absent in

the treatment records any ongoing complaints by M s. Gilbert regarding losing her

balance or needing a cane to keep from falling.

      Regarding her back pain, the ALJ found that a month before Dr. Kassan

issued his April 2003 opinion, M s. Gilbert complained of knee tenderness, but

there was “no indication of any low back complaints or findings that would

significantly affect [her] capacity for sitting.” Id. She also denied any cervical

spine pain two months later and a cervical M RI again showed only mild

narrowing. The ALJ also observed that M s. Gilbert’s neurological examinations

remained mostly normal.




2
       Additionally, the ALJ found that, although the medical records showed that
M s. Gilbert complained of shoulder pain in early 2004, a later record from
Dr. K assan indicated it w as getting better a short time later.

                                         -7-
      As w ith the earlier opinion, the ALJ gave Dr. Kassan’s 2003 opinion little

weight, concluding that,

      [Dr. Kassan’s] clinical findings and those of the other treating and
      examining sources cited above not only support an ability to engage
      in sedentary exertional activity, consistent with the residual
      functional capacity found in this decision, they fail to establish any
      ongoing manipulative limitations due to the claimant’s previous
      thumb surgeries or to her recent complaints of left shoulder
      impingement. Accordingly, little weight is given to the assessment .
      . . as it pertains to the claimant’s current capacity for work-related
      physical functioning.

Id.

      W e disagree with M s. Gilbert’s contention that the ALJ failed to adequately

consider any of the required factors in assessing the weight to be given to

Dr. Kassan’s opinions. It is clear from the ALJ’s decision that she properly

considered Dr. Kassan’s area of specialty and the length, nature, and extent of the

treatment relationship. To the extent M s. Gilbert contests the weight given by the

ALJ to these particular factors, she is asking us to reweigh the evidence, which

we cannot do. See M usgrave, 966 F.2d at 1374. Regarding the other factors,

although M s. Gilbert argues that Dr. Kassan’s opinions w ere consistent with his

own treatment records and those of her other physicians, she fails to address any

of the ALJ’s specific conclusions with respect to inconsistencies between the

treatment records and his opinions. Further, in support of this argument that

Dr. Kassan’s opinions are consistent with her medical records, she neither cites to

nor discusses the voluminous appendix in this case. See United States v.

                                         -8-
Rodriguez-Aguirre, 108 F.3d 1228, 1237 n.8 (10th Cir. 1997) (“In the absence of

essential references to the record in a party’s brief, the court will not ‘sift

through’ the record to find support for the claimant’s arguments.”). 3

      Instead, she argues that the only evidence in the record that could be

considered contrary to Dr. Kassan’s opinions regarding her functional abilities is

contained in two RFC forms completed by the state agency at the commencement

of her two applications, and that those forms cannot constitute substantial

evidence. But the ALJ did not rely solely on either of the state agency RFC forms

in formulating her RFC. The ALJ did note that the state agency assessments

generally supported a greater capacity for work functioning than she alleged and

therefore provided further support of a capacity for at least sedentary work

activity. In determining her RFC, however, the ALJ expressly considered her

subjective complaints and the history she provided to her physicians, written

information she provided to the Social Security Administration, medical signs and

findings, and the opinions of her treating and examining sources. The

Commissioner has the final responsibility to determine a claimant’s RFC by




3
        M s. Gilbert does assert that Dr. Fry’s records are consistent with
Dr. Kassan’s opinions, despite D r. Fry’s indication that she was capable of “light”
work, because there is no indication that he understood the m eaning of that term
as it is used in the disability context. But she does not address the ALJ’s finding
that Dr. Fry’s records failed to document any ongoing, specific hand or thumb
complaints or manipulative restrictions follow ing her surgeries.

                                           -9-
making an administrative decision based upon all the relevant medical and other

evidence in the record. See 20 C.F.R. §§ 404.1527(e)(2), 404.1545(a)(3).

      W e agree, however, with M s. Gilbert’s final claim of error regarding the

ALJ’s treatment of Dr. Kassan’s opinions. She argues that, having determined

that her fibromyalgia w as a severe impairment, the ALJ failed to sufficiently

consider that condition, and the functional limitations that can be caused by it.

See Salazar v. Barnhart, 468 F.3d 615, 621 (10th Cir. 2006) (“It is beyond

dispute that an ALJ is required to consider all of the claimant’s medically

determinable impairments, singly and in combination. . . .”). She asserts that the

ALJ seems to have misperceived the nature of the condition. The Commissioner

does not address this argument in his brief.

      This court has recognized that “[b]ecause proving the disease is difficult,

fibromyalgia presents a conundrum for insurers and courts evaluating disability

claims.” Welch v. U NU M Life Ins. Co. of Am., 382 F.3d 1078, 1087 (10th Cir.

2004) (quotation and alteration omitted). As described by the Seventh Circuit:

      Its cause or causes are unknow n, there is no cure, and, of greatest
      importance to disability law, its symptoms are entirely subjective.
      There are no laboratory tests for the presence or severity of
      fibromyalgia. The principal symptoms are “pain all over,” fatigue,
      disturbed sleep, stiffness, and–the only symptom that discriminates
      between it and other diseases of a rheumatic character–multiple
      tender spots, more precisely 18 fixed locations on the body (and the
      rule of thumb is that the patient must have at least 11 of them to be
      diagnosed as having fibromyalgia) that when pressed firmly cause
      the patient to flinch.



                                         -10-
Sarchet v. Chater, 78 F.3d 305, 306 (7th Cir. 1996).

      Here, although the ALJ acknowledged Dr. Kassan’s conclusion in 2000 that

M s. Gilbert probably had a fibromyalgia-type syndrome, as well as his initial,

clinical examination finding “multiple tender points over the spine, hips, knees and

ankles,” Aplt. App., Vol. 3 at 1005, the ALJ did not otherwise address that

impairment, or the limitations it may cause, in determining to give the 2001

opinion minimal weight. Instead, the ALJ relied expressly on objective test results

showing only mild degeneration in her back and knees and other test results

indicating her peripheral neuropathy was also mild. The only other reasons cited

by the ALJ for giving minimal weight to the 2001 opinion included one instance of

successful physical therapy for cervical and shoulder pain in 1999 and the extent

of her exercise, which she testified she w as doing on her doctors’

recommendations. Regarding the 2003 opinion, the ALJ again relied on a lack of

objective findings with respect to her back, as well as two instances where she

failed to complain to Dr. Kassan about back pain. W hile it was appropriate for the

ALJ to assess the objective findings w ith respect to M s. Gilbert’s individual joints

when considering her claims of disability based on arthritis and disc disease, the

lack of objective test findings noted by the ALJ is not determinative of the severity

of her fibromyalgia. See Sarchet, 78 F.3d at 306; Green-Younger v. Barnhart,

335 F.3d 99, 108 (2d Cir. 2003) (reversing where ALJ failed to give controlling

weight to treating physician opinion of disability based on fibromyalgia and

                                          -11-
“effectively required ‘objective’ evidence for a disease that eludes such

measurement”).

      W here later objective findings did indicate severe degeneration of

M s. Gilbert’s hand and knee joints, the ALJ focused instead on the positive results

of her joint replacement surgeries and a lack of specific complaints regarding those

particular joints. Again, while it was proper for the ALJ to consider her lack of

complaints regarding pain in specific joints, the ALJ failed to address whether

there were reports in the medical records of symptoms of fibromyalgia, i.e., diffuse

pain, stiffness and/or fatigue, that supported D r. Kassan’s opinions.

      In evaluating Dr. Kassan’s 2003 opinion the ALJ did mention two treatment

notes referencing her fibromyalgia. Dr. Kassan had found mild paraspinal

tenderness in M ay 2003 and the ALJ construed that same record as indicating her

fibromyalgia was considered “stable and without flares.” Aplt. App., Vol. 2 at

627, Vol. 3 at 1007. 4 The ALJ also referenced the final record from Dr. Kassan in

M arch 2004, in which he opined that she was “overall doing somewhat better,” and

interpreted it to indicate that her fibromyalgia was “improved.” Id., Vol. 2 at 621,

Vol. 3 at 1007. But the ALJ failed to address the existence of numerous other

treatment records from Dr. Kassan noting M s. Gilbert’s fibromyalgia, as well as



4
       The ALJ also mentioned another treatment note by Dr. Kassan nine months
later that indicated she was “doing well,” but that comm ent does not reference
fibromyalgia and the ALJ failed to mention that Dr. Kassan found paraspinal
tenderness at that visit. Aplt. App., Vol. 2 at 622, Vol. 3 at 1007.

                                         -12-
findings of “tender points” in various places. See Baker v. Bowen, 886 F.2d 289,

291 (10th Cir. 1989) (“[T]he Act makes clear that the Secretary must consider all

relevant medical evidence of record in reaching a conclusion as to disability.”).

Although an ALJ need not discuss every piece of evidence, the record here fails to

demonstrate that the ALJ considered all of the evidence with respect to

M s. Gilbert’s fibromyalgia. See Clifton v. Chater, 79 F.3d 1007, 1009-1010

(10th Cir. 1996).

      In light of the A LJ’s failure to sufficiently address M s. Gilbert’s

fibromyalgia in assigning weight to Dr. Kassan’s opinions regarding her physical

functional capabilities, we reverse the denial of benefits and remand for further

proceedings. W e express no opinion, however, as to what weight the ALJ may

assign those opinions on remand after giving appropriate consideration to her

fibromyalgia.

                                Other Claim s of Error

      M s. Gilbert’s testimony regarding her physical abilities was generally

consistent with Dr. Kassan’s opinions. She also testified to daily disabling pain in

various parts of her body, including her hands, neck, shoulder, elbow, wrists, hips,

legs, feet, and low er back, and she stated that she needed to rest several times a

day–and sometimes the entire day–due to her pain. The ALJ did not consider her

fully credible. Because the ALJ’s assessment of Dr. Kassan’s opinions and




                                          -13-
M s. Gilbert’s credibility were substantially intertwined, on remand w e direct the

ALJ also to consider her fibromyalgia in reevaluating her credibility.

      In light of the remand of this case, we do not reach the remainder of

M s. Gilbert’s claims on appeal, except to hold that she has w aived appellate

review of certain of these arguments. Specifically, she failed to argue in the

district court that there was not substantial evidence to support the A LJ’s

determination that her previous work was as a “nurse consultant,” based upon

material differences between the DOT description of that job and her actual prior

work as a telephone triage nurse. Nor did she argue below that she could do

neither her past relevant work, nor the other work identified by the vocational

expert, based on her moderate limitation in responding to work pressure. 5 See

Crow v. Shalala, 40 F.3d 323, 324 (10th Cir. 1994) (declining to consider

arguments not presented to the district court). Finally, she also failed to present to



5
       M s. Gilbert’s counsel represented that the issues in her appellate brief were
raised below, and in an attempt to comply with 10th Cir. R. 28.2(b), she referred
us to specific pages of her district court complaint. But nowhere on those pages
did she raise either of these issues. See Lopez v. Behles (In re Am . Ready Mix,
Inc.), 14 F.3d 1497, 1502 (10th Cir. 1994) (finding issue not properly before the
court when appellant failed to demonstrate where in the record it was raised
below). Although she did not include copies of her district court briefs in the
Appellant’s Appendix, we can take judicial notice of those filings in the District
Court for the District of Colorado, Case No. 05-CV-407. Cf. Van Woudenberg ex
rel. Foor v. Gibson, 211 F.3d 560, 568 (10th Cir. 2000) (observing that “the court
is permitted to take judicial notice of its own files and records, as w ell as facts
which are a matter of public record”), abrogated on other grounds by M cGregor
v. Gibson, 248 F.3d 946 (10th Cir. 2001). A review of her district court briefs
confirms that she never made these arguments to the district court.

                                         -14-
the district court–and also failed to raise on appeal until her reply brief–her

argument that the ALJ did not make the required findings of fact regarding the

physical and mental demands of her past work. See Lantec, Inc. v. Novell, Inc.,

306 F.3d 1003, 1015 n.5 (10th Cir. 2002) (“W e are not obligated to address an

argument which was not made in the district court, nor even in this court until the

reply brief.”) (quotation and alteration omitted). Because of her failure to raise

these issues below and the lack of a district court ruling on them, we deem them

w aived for purposes of appellate review.

      The judgment of the district court is V ACATED and the case is

REM ANDED to the district court with directions to remand to the Commissioner

for further proceedings consistent with this order and judgment.



                                                     Entered for the Court



                                                     Paul J. Kelly, Jr.
                                                     Circuit Judge




                                          -15-
