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

                            FOR THE TENTH CIRCUIT                          June 6, 2013

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
NORMA E. TIETJEN,

             Plaintiff–Appellant,

v.                                                         No. 12-5163
                                                  (D.C. No. 4:11-CV-00182-PJC)
CAROLYN W. COLVIN, Acting                                  (N.D. Okla.)
Commissioner, Social Security
Administration,*

             Defendant–Appellee.


                            ORDER AND JUDGMENT**


Before LUCERO, ANDERSON, and BALDOCK, Circuit Judges.



      Norma E. Tietjen appeals from a magistrate judge’s order upholding the

Commissioner’s denial of her application for Supplemental Security Income (“SSI”)


      *
        In accordance with Rule 43(c)(2) of the Federal Rules of Appellate
Procedure, Carolyn W. Colvin is substituted for Michael J. Astrue as the defendant-
appellee in this action.
      **
         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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
benefits. We have jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291

and affirm.

                                           I

      Tietjen filed for SSI benefits in 2007. The administrative law judge (“ALJ”)

denied benefits at step five of the sequential evaluation process. See Wilson v.

Astrue, 602 F.3d 1136, 1139 (10th Cir. 2010) (describing five-step process).

      The ALJ found at steps one through three that Tietjen has severe impairments

of right shoulder pain, fibromyalgia, major depressive disorder, generalized anxiety

disorder, and post-traumatic stress disorder. Nonetheless, he concluded that her

impairments, singly or in combination, do not meet the criteria to be considered

presumptively disabled.

      The ALJ determined that Tietjen has the residual functional capacity (“RFC”)

to perform sedentary work, finding that she can understand, remember, and carry out

non-complex work instructions and make non-complex work-related decisions; can

interact appropriately with co-workers and supervisors in at least a superficial

manner; and can be expected to adapt to most routine work-related changes.

However, the ALJ concluded that she is moderately limited in her ability to

understand and remember detailed instructions, carry out detailed instructions, and

accept instructions and respond appropriately to criticism from supervisors.

Furthermore, he found that she is markedly limited in her ability to interact with the

public. Given this RFC, the ALJ concluded at step four that Tietjen is unable to


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return to any of her past work. However, he found at step five that she can perform

work that is available in significant numbers in the national economy, identifying the

positions of sedentary, unskilled assembly worker or sedentary machine operator.

Thus, the ALJ ruled that Tietjen is not disabled. The Appeals Council denied review,

and a magistrate judge, presiding pursuant to 28 U.S.C. § 636(c)(1), affirmed the

Commissioner’s decision.

                                          II

      On appeal, Tietjen contends the ALJ failed to correctly evaluate the medical

source evidence and failed to perform a proper step-five evaluation. “We review the

Commissioner’s decision to determine whether the [ALJ’s] factual findings are

supported by substantial evidence in the record and whether the correct legal

standards were applied.” Wilson, 602 F.3d at 1140. “Substantial evidence is such

relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” Id. (quotation omitted).

                                          A

       “An ALJ must evaluate every medical opinion in the record, although the

weight given each opinion will vary according to the relationship between the

disability claimant and the medical professional.” Hamlin v. Barnhart, 365 F.3d

1208, 1215 (10th Cir. 2004) (citation omitted). Generally the opinion of a treating

physician is given more weight than that of an examining consultant, and the opinion

of a non-examining consultant is given the least weight. Robinson v. Barnhart, 366


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F.3d 1078, 1084 (10th Cir. 2004). A treating physician’s opinion must be given

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.” Hamlin, 365 F.3d at 1215.

      Tietjen alleges that the ALJ failed to properly evaluate the medical report of

Dr. Trinidad, D.O., who examined her in connection with her workers’ compensation

claim and concluded that she was unable to perform any work-related activity

because of her shoulder injury. Tietjen asserts the ALJ “did not definitively

determine Dr. Trinidad’s status” and failed to mention “controlling weight.” Both

arguments fail. The ALJ twice described Dr. Trinidad as one of Tietjen’s treating

physicians who expressed an opinion as to her shoulder injury. The ALJ also gave

specific reasons for not giving Dr. Trinidad’s opinion controlling weight. The ALJ

noted that two of Tietjen’s treating physicians, Drs. Snider and Nonweiler, provided

complete medical records, including x-rays and MRIs, and found that her shoulder

injury was not disabling. In contrast, Dr. Trinidad did not supply objective evidence

to support his finding that Tietjen was unable to do any work. The ALJ explained

that he gave “little weight” to Dr. Trinidad’s report for this reason, and also because

he did not provide any longitudinal medical record and his findings deviated

substantially from those of Drs. Snider and Nonweiler, whose opinions the ALJ gave

“great weight.” The ALJ properly evaluated Dr. Trinidad’s opinion and gave good

reasons for the weight he assigned that opinion.


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      Tietjen argues that the ALJ improperly rejected Dr. Trinidad’s opinion based

on a speculative remark in his decision that Dr. Trinidad might have been assisting a

patient with whom he sympathized. We have held that an ALJ may not simply reject

a treating physician’s opinion based on “his or her own credibility judgments,

speculation or lay opinion.” Langley v. Barnhart, 373 F.3d 1116, 1121 (10th Cir.

2004) (quotation and emphasis omitted). In this case, the ALJ did not reject Dr.

Trinidad’s opinion, but discounted it. Moreover, he did so based on record evidence

that Dr. Trinidad’s opinion was not supported by any objective evidence and was

inconsistent with other substantial evidence in the record from treating physicians.

The ALJ did not err in giving Dr. Trinidad’s opinion less than controlling weight.

      Tietjen also claims that the ALJ failed to properly evaluate the mental

evaluation of Lori McGraw, a licensed professional counselor. McGraw reported

that Tietjen had severe or marked limitations in eleven of sixteen mental functions.

Tietjen argues that the ALJ erred in giving more weight to the state consultative

physicians, Drs. Craig and Smith, than to McGraw. But McGraw was not an

acceptable medical source. See 20 C.F.R. § 416.913(a). The ALJ appropriately

evaluated McGraw’s report as “other” medical evidence that could be used to show

the severity of her impairments, 20 C.F.R. § 416.913(d)(1), but had no obligation to

give her assessment the same weight as a “medical opinion,” 20 C.F.R.

§ 416.927(a)(2).




                                          -5-
      Contrary to Tietjen’s assertion, the ALJ did not fail to weigh McGraw’s

assessment of her mental limitations. Rather, the ALJ assigned “little weight” to her

report because it gave no information about when or how often McGraw saw or

treated Tietjen, or even if McGraw treated her as a patient, and it gave no indication

that there was any factual basis for her opinion. We find no error in the ALJ’s

consideration of McGraw’s report.

      Tietjen further contends that the ALJ’s evaluation of her mental functioning

does not accurately reflect the report of Dr. Craig, an agency consulting psychologist,

who described her as “severely impaired” with respect to socially interacting with

co-workers or the public. Dr. Smith, a state agency reviewing psychologist, prepared

a psychiatric review technique (“PRT”) form in which she reviewed the medical

evidence and described Tietjen, in relevant part, as able “to interact appropriately

with coworkers and supervisors in at least a superficial manner.” We concur with the

magistrate judge’s analysis and conclusion that the ALJ’s RFC determination that

Tietjen is “markedly impaired” in her ability to interact with the public and could

interact with co-workers only in a superficial manner is consistent with the reports of

Drs. Craig and Smith.

      Tietjen argues the ALJ failed to explain alleged discrepancies between his

mental impairment evaluation and that of Dr. Smith’s. The magistrate judge ruled

that this issue was waived because Tietjen’s argument consisted solely of an

unspecific, undeveloped, and unsupported single sentence that the ALJ’s PRT


                                          -6-
findings were discordant with his experts. We agree this issue was waived. See

United States v. Hardman, 297 F.3d 1116, 1131 (10th Cir. 2002) (“Arguments raised

in a perfunctory manner . . . are waived.”).

      Finally, Tietjen argues the ALJ failed “to faithfully capture the essence” of a

report from consulting examining physician Dr. Gourd stating that she had difficulty

picking up paper clips, had a hand tremor, and dropped objects frequently. A state

agency physician, Dr. Woodcock, determined that manipulative limitations had not

been established after reviewing all of the medical evidence and noting Dr. Gourd’s

report, but also considering additional medical evidence, including negative x-rays of

Tietjen’s hands and wrists. We find no error in the ALJ’s consideration of Drs.

Gourd’s and Woodcock’s evidence, or his reliance on Dr. Woodcock’s report in his

RFC determination.

                                           B

      Tietjen argues the ALJ’s step five determination was flawed because he failed

to pose a precise hypothetical question to the vocational expert (“VE”) at the

administrative hearing. In order for a VE’s response to a hypothetical question to

constitute substantial evidence supporting an ALJ’s disability determination, the

question must “relate with precision all of [the] claimant’s impairments.” Hargis v.

Sullivan, 945 F.2d 1482, 1492 (10th Cir. 1991) (quotation omitted).

      The ALJ asked the VE about available jobs, assuming a hypothetical claimant

having the physical capacity to perform work consistent with Dr. Woodcock’s


                                          -7-
physical RFC assessment in Exhibit 9F and mental limitations consistent with those

described in Dr. Craig’s mental RFC assessment in Exhibit 7F. Tietjen argues that

simply referencing exhibits failed to ensure the accuracy of the hypothetical question

posed to the VE.

      Tietjen does not contend that the VE’s testimony failed to take into account

any of the limitations described in these exhibits,1 or otherwise created any

misinterpretation. The VE testified that she had studied the record, which included

Dr. Woodcock’s and Dr. Craig’s RFC assessments, and had listened to Tietjen’s

testimony. Cf. Diaz v. Sec’y of Health & Human Servs., 898 F.2d 774, 777

(10th Cir. 1990) (“The fact the vocational expert was present and heard testimony

concerning [the claimant’s] alleged impairments suggests that the effect of the error,

if any, in the [ALJ’s] hypothetical, was minimal.”). Both Dr. Woodcock’s physical

RFC assessment and Dr. Craig’s mental RFC assessment are specific and

unambiguous, and the ALJ relied upon these assessments in making his RFC

determination. Nothing in the record suggests the hypothetical failed to reflect

Tietjen’s physical and mental limitations. Although the court does not favor this




      1
        She does argue that the hypothetical should have included the limitations
described by Drs. Gourd and Trinidad, but we concluded in Part II that the ALJ
properly evaluated these medical reports.


                                          -8-
method of posing a hypothetical,2 in this case, we find no error in the ALJ’s reliance

on these exhibits in formulating his question.

                                          III

      The judgment of the magistrate judge is AFFIRMED.

                                                 Entered for the Court


                                                 Carlos F. Lucero
                                                 Circuit Judge




      2
         A panel of this court has observed that “[a] complete question paired with a
complete answer in the transcript is highly desirable [because the shortcut of using
forms] too often leaves the reviewing court with difficulty in determining if the
people sitting in the hearing room all were asking questions, giving testimony, and
listening to testimony regarding the same hypothetical RFC.” Sitsler v. Astrue,
410 F. App’x 112, 120 n.4 (10th Cir. 2011) (unpublished) (quotation omitted).



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