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

                             FOR THE TENTH CIRCUIT                          October 11, 2016
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
MIKE KIRKPATRICK,

      Plaintiff - Appellant,

v.                                                          No. 15-6223
                                                     (D.C. No. 5:14-CV-00349-F)
CAROLYN W. COLVIN, Acting                                   (W.D. Okla.)
Commissioner of Social Security,

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

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

      Mike Kirkpatrick appeals from a district court order affirming the Commissioner’s

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

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

                                     BACKGROUND

      Kirkpatrick has a twelfth-grade education and has worked as a tree trimmer and

lawn mower. He suffers from left-eye blindness, chronic obstructive pulmonary disease

*
 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 This order and judgment is not binding precedent,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.
(COPD), depression, and substance abuse. He has also suffered from bladder cancer,

which required a surgical procedure known as a radical cystectomy with ileal conduit

formation. During that procedure, surgeons removed his bladder and used a piece of his

intestine to create a tube running from his kidneys to his abdominal wall. A pouch worn

on his abdomen collects excreted urine.

       In 2010, Kirkpatrick applied for DIB and SSI, claiming disability since 2004,

when he was forty-two. Unsuccessful, he obtained a hearing before an administrative

law judge (ALJ). There, he described his difficulty working: “Having . . . a pouch

greatly limits any kind of work I’ve done before, and I’m blind in the left eye, and COPD

makes it . . . where I can’t really do anything very strenuous [be]cause of . . . shortness of

breath.” Aplt. App., Vol. I at 59. He also cited problems with arthritis and depression.

       Regarding his left-eye blindness, he explained that he has little peripheral vision or

depth perception. And while he is presently “clear of cancer,” the pouch, which must be

worn all the time, makes it hard for him to bend over or “have anything in contact . . .

with [his] waist.” Id. at 61. Nevertheless, he has been able to do “a few odd jobs,”

id. at 64, such as “sweeping[ ] and picking up[ ] . . . small items and putting them in the

trash” and “[m]owing a few yards,” id. at 65.

       A vocational expert (VE) also testified at the hearing. The ALJ queried whether

Kirkpatrick’s past work could be performed by a hypothetical claimant (1) who could

perform a wide range of light work without exposure to unprotected heights or dangerous

machinery; (2) who “wear[s] a bag[ ] . . . to accommodate some physical problems” and

thus can only occasionally stoop, kneel, and crouch; and (3) whose left-eye blindness

                                              2
precludes “occupations that require peripheral vision[ ] and . . . extended reading of fine

print.” Id. at 68-69. The VE ruled out Kirkpatrick’s past work, but he identified “some

entry-level light work,” such as a cleaner, packing-line worker, and small-products

assembler, that the hypothetical claimant could perform. Id. at 69.

       Afterward, the ALJ found Kirkpatrick not disabled. In doing so, the ALJ

concluded that Kirkpatrick has the residual functional capacity (RFC)1 to perform light

work, so long as it does’nt involve “extended reading of fine print[,] . . . extended

exposure to unprotected heights or dangerous machinery,” or anything more than

occasional stooping, kneeling, and crouching. Id. at 42. The ALJ noted that no treating

or examining physician had placed any permanent limitations on Kirkpatrick’s ability to

perform basic work. Further, the ALJ observed that Kirkpatrick had, at times throughout

the disability proceedings, described activities of daily living—driving a car, shopping,

“help[ing] a friend around his house,” id. at 213, doing laundry, preparing meals—“that

are not limited to the extent one would expect, given the complaints of disabling

symptoms and limitations,” id. at 47. The ALJ finally noted that while Kirkpatrick’s

RFC precluded his past relevant work, the VE had testified that other jobs existed in the

national economy consistent with Kirkpatrick’s RFC. The Appeals Council denied

review, making the ALJ’s determination the Commissioner’s final decision.


       1
         “The RFC assessment is a function-by-function assessment based upon all of
the relevant evidence of an individual’s ability to do work-related activities.” SSR
96–8p, 1996 WL 374184, at *3 (July 2, 1996). It “considers only functional
limitations and restrictions that result from an individual’s medically determinable
impairment or combination of impairments, including the impact of any related
symptoms.” Id. at *1.
                                              3
       Kirkpatrick challenged the denial of benefits in district court. Unsuccessful, he

now appeals.

                                       DISCUSSION

       We review the Commissioner’s decision to determine whether substantial

evidence supports the agency’s factual findings and whether the agency applied the

correct legal standards. But in reviewing the administrative 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).

       Kirkpatrick first argues his RFC is flawed because, despite finding that his COPD

is a severe impairment, the ALJ did not consider his “inability to be exposed to

environmental pollutants such as fumes, cleaning fluids, dusts, odors, gases, extreme heat

or cold and/or poor ventilation.” Aplt. Opening Br. at 4. But Kirkpatrick doesn’t

identify, nor have we found, any evidence suggesting such pollutants and conditions

affected his capacity to perform the physical and mental activities associated with light

work. Indeed, at his disability hearing, Kirkpatrick described his COPD as precluding

“strenuous” work due to “shortness of breath.” Aplt. App., Vol. I at 59. The ALJ

accounted for this limitation by fashioning an RFC for light work, which involves only

minimally strenuous activities, see 20 C.F.R. §§ 404.1567(b), 416.967(b). Because

Kirkpatrick has not shown that environmental pollutants or other conditions degrade his

functioning beyond that necessary for light work, we will not disturb the ALJ’s RFC

determination. See Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000) (stating that in

assessing claimant’s RFC, an ALJ isn’t required to account for limitation belied by the

                                             4
record); 20 C.F.R. § 404.1512(c) (explaining, in context of DIB, that claimant bears

responsibility for identifying or submitting evidence that relates to finding of disability);

id. § 416.912(c) (same as to SSI).

       Relatedly, we reject Kirkpatrick’s assertion that the hypothetical the ALJ

presented to the VE failed to precisely relate limitations caused by environmental

conditions. Again, the limitations he complains of aren’t borne out by the record.

See Decker v. Chater, 86 F.3d 953, 955 (10th Cir. 1996) (holding that hypothetical

question to VE need only include impairments supported by evidentiary record).

Moreover, none of the jobs identified by the VE require exposure to temperature

extremes, atmospheric conditions, or toxic caustic chemicals. See Dictionary of

Occupational Titles 323.687-014, 1991 WL 672783 (4th rev. ed. 1991) (cleaner); id.

739.687-030, 1991 WL 680180 (small-products assembler); id. 753.687-038, 1991

WL 680354 (packing-line worker). Thus, the alleged limitations are not relevant.

       Citing his “limited depth perception and extreme loss of peripheral vision,”

Kirkpatrick next complains that his RFC doesn’t fully account for his visual problems.

Aplt. Opening Br. at 5. But in assessing Kirkpatrick’s RFC, the ALJ noted that “his

peripheral [vision] and depth perception is limited.” Aplt. App., Vol. I at 43. Thus, the

ALJ fashioned an RFC with limited fine-print reading and limited exposure to

unprotected heights and dangerous machinery. Further, the ALJ presented a hypothetical

to the VE that precluded jobs that involved “exposure to unprotected heights[ ] or

dangerous machinery” and that “require[d] peripheral vision[ ] and . . . extended reading

of fine print.” Aplt. App., Vol. I at 68-69. Kirkpatrick doesn’t explain how these

                                              5
restrictions fail to account for his depth-perception and peripheral-vision deficits. And it

isn’t our obligation to search the record and construct a party’s arguments. See Garrett v.

Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).

       In any event, Kirkpatrick contends that only two of the jobs identified by the VE

(assembler and packing-line worker) exceed his vision limitations. See Aplt. Opening Br.

at 8. Thus, the third job identified by the VE, the cleaner job, is not precluded by his

vision limitations. See Dictionary of Occupational Titles 323.687-014, 1991 WL 672783

(4th rev. ed. 1991) (stating that depth perception and field of vision limitations aren’t

present in cleaner job). Thus, even if the ALJ failed to fully account for Kirkpatrick’s

depth-perception and peripheral-vision limitations, that error is harmless. Cf. Raymond v.

Astrue, 621 F.3d 1269, 1273-74 (10th Cir. 2009) (declining to consider claimant’s

argument that ALJ erroneously relied on VE’s testimony “that he was physically able to

work as a sales attendant or an office helper” because “substantial record evidence

support[ed] the ALJ’s conclusion that [claimant] [could] work as a rental clerk” (internal

quotation marks omitted)).

       Kirkpatrick further suggests that anyone with vision in only one eye would have

“difficulty with production or pace” and “see[ing] things quickly or avoid[ing] fast

moving people.” Aplt. Opening Br. at 5. He argues that these limitations “should have

been accounted for in the ALJ’s RFC” and that he “even testified to his problems in his

hearing before this ALJ.” Id. But the citation to the record he provides is not supportive.

See Aplt. App., Vol. I at 60 (stating only, “I still don’t have much peripheral or depth

perception really, but I’ve kind [of] learned to cope as best I can”). Clearly, an ALJ

                                              6
doesn’t commit error by omitting limitations not supported by the record. See Qualls,

206 F.3d at 1372.

       Additionally, Kirkpatrick takes issue with the ALJ’s use of the word “extended” in

his RFC assessment. See Aplt. App., Vol. I at 42 (“[T]he claimant has the [RFC] to

perform light work[,] . . . except due to left eye blindness he is not able to perform

extended reading of fine print . . . [and] should avoid extended exposure to unprotected

heights or dangerous machinery.” (emphasis added)). Kirkpatrick asserts that the word

“extended” “is not defined in vocational terms and it is not a proper social security term.”

Aplt. Opening Br. at 6. He doesn’t explain, however, how the ALJ’s use of this term has

any bearing on whether his RFC is supported by substantial evidence. We don’t consider

“issues adverted to in a perfunctory manner, unaccompanied by some effort at developed

argumentation.” Murrell v. Shalala, 43 F.3d 1388, 1389 n.2 (10th Cir. 1994) (internal

quotation marks omitted).

       Finally, Kirkpatrick complains that the only urinary limitation included in his RFC

is that he can only “occasionally stoop, kneel, and crouch due to [the] bag he wears to

capture urine.” Aplt. App., Vol. I at 42. He argues that the ALJ should have assessed a

more restrictive RFC, claiming that he suffers from (1) “chronic frequency dysuria and

urgency” due to urothelial carcinoma; (2) “pain, urinary incontinence, constipation, or

leaks inside his body” due to “the persistence of the cancer and tumors”; and (3)

“continually recurring bladder cancer.” Aplt. Opening Br. at 9. But as he did in the

district court, Kirkpatrick misleadingly supports these claims with citations to medical

records that originated before the removal of his bladder. As the district court noted, “it

                                              7
is disingenuous to present” these claims as current or ongoing despite Kirpatrick’s

successful cystectomy, which has rendered him cancer free. Aplt. App., Vol. III at 674.

Kirkpatrick also claims that his doctors “failed to repair” a urinoma (an encapsulated

collection of urine) that resulted from his cystectomy. Aplt. Opening Br. at 9. Yet the

record shows that his doctors “managed [the problem] conservatively,” and it resolved.

Aplt. App., Vol. III at 425.2

       Kirkpatrick also argues his RFC should have accounted for his use of a urinary

catheter and catheter bag. But he cites no evidence showing he actually uses a catheter or

catheter bag. Indeed, the record shows that Kirkpatrick wears a urostomy pouch on the

outside of his abdomen to collect urine. And significantly, in regard to the limitations

posed by that pouch, Kirkpatrick testified only that it makes it difficult for him to bend

over or to have items come in contact with his waist. The ALJ accounted for those

difficulties by fashioning an RFC permitting only occasional stooping, kneeling, and

crouching “due to [the] bag he wears to capture urine.” Id., Vol. I at 42. Kirkpatrick has

failed to show his RFC is unsupported by substantial evidence.




2
  This court doesn’t favorably view arguments based on misrepresentations of the record.
Qualls, 206 F.3d at 1371. That seems particularly true where, as here, the appellant
repeats on appeal certain misrepresentations made below without even recognizing the
district court’s (not insignificant) rejection of those misrepresentations. We caution
Kirkpatrick’s counsel, Miles L. Mitzner, that similar misrepresentations in future cases
may result in his referral to a disciplinary panel. See 10th Cir. R. 46.5, 46.6.
                                             8
                               CONCLUSION

The judgment of the district court is affirmed.


                                       Entered for the Court


                                       Nancy L. Moritz
                                       Circuit Judge




                                      9
