                                                                FILED
                      UNITED STATES COURT OF APPEALSUnited States Court of Appeals
                                                            Tenth Circuit
                             FOR THE TENTH CIRCUIT
                         _________________________________                April 27, 2016

                                                                       Elisabeth A. Shumaker
CHARLES E. ADKINS,                                                         Clerk of Court
      Plaintiff - Appellant,

v.                                                          No. 15-1330
                                                   (D.C. No. 1:14-CV-01043-LTB)
CAROLYN W. COLVIN, Acting                                     (D. Colo.)
Commissioner of Social Security,

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before KELLY, O’BRIEN, and GORSUCH, Circuit Judges.
                   _________________________________

      Charles E. Adkins appeals the district court’s judgment affirming the

Commissioner’s decision denying his application for disability benefits. Exercising

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

      I. Background

      Mr. Adkins applied for disability insurance benefits and supplemental security

income benefits, alleging his disability commenced February 1, 2010, when he was

      *
        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 This order and judgment is not binding precedent,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.
46 years old. The agency denied his application initially. Following a de novo

hearing, an administrative law judge (ALJ) conducted the required five-step

sequential evaluation process, see Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir.

2007), and concluded that Mr. Adkins was not disabled.

      At step one, the ALJ noted Mr. Adkins had not engaged in substantial gainful

activity since the alleged onset date of his disability. At step two, the ALJ found

Mr. Adkins had the following severe impairments: “chronic obstructive pulmonary

disease, asthma, degenerative disc disease, epilepsy, [and] affective disorder[.]”

Aplt. App., Vol. I Admin. R. at 14. At step three, the ALJ found Mr. Adkins did not

have an impairment or combination of impairments that met or equaled a listed

impairment.

      The ALJ then assessed Mr. Adkins’s residual functional capacity (RFC),

concluding that he could perform light work, with some additional limitations,

including that the work should be unskilled. At step four, the ALJ determined

Mr. Adkins could not perform his past relevant work, but the ALJ found at step five

that Mr. Adkins was capable of performing other available work.

      The Appeals Council denied review of the ALJ’s decision. Mr. Adkins sought

review in the district court. That court affirmed the ALJ’s decision and dismissed the

case with prejudice. This appeal followed.




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      II. Discussion

      When the Appeals Council denies review, the ALJ’s decision is the

Commissioner’s final decision. See Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir.

2003). “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.” Id. at 760. “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.” Lax, 489 F.3d at 1084

(citation and 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).

      Although Mr. Adkins claimed disability based on both physical and mental

impairments, he appeals only the ALJ’s decision related to his mental impairment. In

his opening brief, he initially raised two issues. First, he argued that the ALJ

improperly accounted for his moderate limitations in concentration, persistence and

pace by limiting him to unskilled work. But he subsequently conceded that issue in

his reply brief based on our recent decisions in Vigil and Berumen v. Colvin,

No. 15-1150, 2016 WL 519381, *3 (10th Cir. Feb. 10, 2016) (unpublished). Aplt.

Reply Br. at 1.



                                               3
      Second, he argued that “[t]he ALJ did not state any reason for assigning partial

weight . . . to the opinion of the State agency physician.” Aplt. Br. at 2. He further

asserted that “[t]he ALJ’s failure to assess the credibility of the agency

psychologist’s opinion prevents that opinion from constituting substantial evidence to

support the ALJ’s decision.” Aplt. Br. at 26-27. He therefore requested that the

agency’s decision be reversed. This is the only issue now before us on appeal. For

the following reasons, we see no basis to reverse the ALJ’s decision.

      The first problem with Mr. Adkins’s argument is that it depends on the faulty

premise that the ALJ relied solely on the opinion of the state agency psychologist,

Dr. MaryAnn Wharry, in concluding that Mr. Adkins should be limited to unskilled

work. See Aplt. Br. at 27 (“[I]t is clear that the ALJ believed his finding of ability to

perform unskilled work . . . was based on Dr. Wharry’s opinion.”). But Mr. Adkins

does not provide any citation to the record to support his position and, in fact, the

record directly contradicts his position. The ALJ expressly explained why he

included the restriction to unskilled work in Mr. Adkins’s RFC, stating: “Due to the

claimant’s moderate limitations in concentration, persistence and pace as observed by

several providers and testified to by the claimant, he could perform work at the

unskilled level.”1 Aplt. App., Vol. I Admin. R. at 21 (emphasis added).


      1
       Dr. Richard B. Madsen was one of the other providers. He performed a
psychological consultative examination of Mr. Adkins. The ALJ explained that
“based on [Dr. Madsen’s] findings that [Mr. Adkins’s] short-term memory and
                                                                       (continued)
                                             4
      Mr. Adkins does not offer any other basis to challenge the ALJ’s RFC limiting

him to unskilled work. Nicholas Rodriguez, a licensed clinical social worker, was

the only provider who found that Mr. Adkins had marked to extreme limitations in

functional areas that would have precluded him from unskilled work. But the ALJ

noted that he gave very little weight to Mr. Rodriguez’s opinion because “his opinion

grossly exaggerated the claimant’s functioning.” Id. at 20. Mr. Adkins does not

challenge the ALJ’s evaluation of Mr. Rodriguez’s opinion. Under these

circumstances, Mr. Adkins has failed to show how the ALJ’s alleged error in

evaluating Dr. Wharry’s opinion prejudiced him. See St. Anthony Hosp. v. U.S. Dep’t

of Health and Human Services, 309 F.3d 680, 691 (10th Cir. 2002) (explaining that a

party challenging agency action “bears the burden of establishing that the error

prejudiced that party”). Even if Dr. Wharry’s opinion could not be considered in

support of the ALJ’s decision, as Mr. Adkins contends, there is substantial evidence

in the record to support the ALJ’s decision that Mr. Adkins could perform unskilled

work (i.e., the observations of the other providers and Mr. Adkins’s own testimony).

      Moreover, we conclude that the ALJ did not err in evaluating Dr. Wharry’s

opinion. An ALJ must explain the weight he gives to the opinion of a non-treating

physician, see Hamlin v. Barnhart, 365 F.3d 1208, 1215 (10th Cir. 2004), and the



abilities to do arithmetic functions in his head were impaired,” Mr. Adkins would be
limited to unskilled work. Aplt. App., Vol. I Admin. R at 20.


                                              5
ALJ did so here. The ALJ stated that he gave Dr. Wharry’s opinion “partial weight.”

Aplt. App., Vol. I Admin. R. at 21. He agreed with Dr. Wharry that Mr. Adkins

could perform unskilled work and further explained that he did not accept

Dr. Wharry’s conclusion that Mr. Adkins should have limited public contact, because

“[t]he claimant’s reports of his social activities with family and friends and

socializing in general as well as his reports that he gets along well with others does

not support a limitation on his ability to work with the general public.” Id.

      Mr. Adkins complains that the ALJ did not explicitly state why he agreed with

Dr. Wharry that Mr. Adkins could perform unskilled work. But we conclude that the

ALJ’s discussion of Dr. Wharry’s opinion is sufficient for our review.

See Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166 (10th Cir. 2012) (explaining that

we must “exercise common sense” and if “we can follow the adjudicator’s reasoning

in conducting our review, and can determine that correct legal standards have been

applied, merely technical omissions in the ALJ’s reasoning do not dictate reversal”).

From the ALJ’s rejection of Dr. Wharry’s opinion that Mr. Adkins should have only

limited contact with the public because that limitation was inconsistent with

Mr. Adkins’s statements, we can reasonably discern that the ALJ agreed that

Mr. Adkins could perform unskilled work because Mr. Adkins’s statements were

consistent with such a finding. See Davis v. Erdmann, 607 F.2d 917, 918 n.1 (10th

Cir. 1979) (“While we may not supply a reasoned basis for the agency’s action that

the agency itself has not given . . . , we will uphold a decision of less than ideal

                                                6
clarity if the agency’s path may reasonably be discerned.” (internal quotation marks

omitted)).

      Mr. Adkins further contends that the ALJ needed to explain why he gave more

weight to Dr. Wharry’s opinion than to the opinion of Mr. Rodriguez. We disagree.

There is nothing that Mr. Adkins has cited to in cases or the regulations that required

the ALJ to weigh these two opinions relative to each other. The ALJ weighed

Mr. Rodriguez’s decision, explained that he was giving it little weight, and gave

reasons for the weight he assigned. As noted above, Mr. Adkins has not challenged

the ALJ’s evaluation of Mr. Rodriguez’s opinion. The ALJ then weighed

Dr. Wharry’s opinion, explained he was giving it partial weight, and gave his reasons

for doing so.

      III. Conclusion

      For the foregoing reasons, we affirm the judgment of the district court

affirming the ALJ’s decision.


                                            Entered for the Court


                                            Paul J. Kelly, Jr.
                                            Circuit Judge




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