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

                             FOR THE TENTH CIRCUIT                           August 4, 2016
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
STARR ROSE OCEGUERA,

      Plaintiff - Appellant,

v.                                                          No. 15-2211
                                                   (D.C. No. 1:14-CV-00574-SCY)
CAROLYN W. COLVIN, Acting                                     (D. N.M.)
Commissioner of the Social Security
Administration,

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before HARTZ, HOLMES, and McHUGH, Circuit Judges.
                  _________________________________

      Starr Rose Oceguera appeals from a decision of the district court affirming the

Commissioner’s denial of disability insurance benefits and supplemental security

income. Ms. Oceguera argues that the administrative law judge (ALJ) erred in

(1) discounting the opinion of her treating physician and (2) incorporating the

limitations found by an examining physician into her residual functional capacity



      *
        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 This order and judgment is not binding precedent,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.
(RFC). Exercising jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g),

we affirm.

                                          I

      Ms. Oceguera applied for disability insurance benefits and supplemental

security income in May 2012, claiming she was disabled by epilepsy, lupus, and a

high risk pregnancy. She began seeing Dr. Timothy Klein that October. In the

course of her treatment, Dr. Klein completed a “Long Term Care Medical

Assessment” form to be used to obtain state personal care services. Aplt. App. vol. 6

at 719. On the form, Dr. Klein indicated Ms. Oceguera suffered from seizure

disorder and checked boxes denoting that (1) her status was unstable (a 3 on a 6-point

scale); (2) she “needs help” with ambulation, transfer, personal hygiene, and control

safety; and (3) she was “mostly disoriented” mentally, behaved inappropriately,

avoided others, and attended few planned activities. Id. He also indicated she was

anxious. Based on this form and another that Ms. Oceguera completed herself, she

was approved for seven and a half hours of personal caregiver services per week.

      In February 2013, Ms. Oceguera underwent a consultative examination by

Dr. Richard Reed, a psychologist. Dr. Reed observed that she was oriented but had a

low level of energy. “She had a ‘poor me’ attitude throughout the evaluation and her

effort varied considerably from reasonable to no effort given.” Aplt. App. vol. 4 at

478. Dr. Reed found “no evidence of anxiety during the evaluation,” but did note

that she was mildly depressed because, according to her, chronic pain prevents her

from caring for herself independently. Id. He observed her thought processes to be

                                          2
“logical and coherent when she put forth the effort to elaborate an answer.” Id. He

found no evidence of delusions or hallucinations and stated that her judgment and

insight appeared fair. After a series of intelligence exercises, Dr. Reed estimated her

“level of cognitive functioning to be within the low average range of intelligence.”

Id. On this basis, he diagnosed Ms. Oceguera with mood disorder due to general

medical condition and dependent traits, and assessed a global assessment of

functioning (GAF) score of 58. He then concluded she was mildly limited in her

(1) ability to understand and remember simple instructions, (2) ability to maintain

attention and concentration, (3) ability to interact appropriately with the general

public, (4) ability to interact with co-workers, and (5) ability to be aware of normal

hazards and react appropriately. Dr. Reed also concluded she was moderately limited

in her (1) ability to understand and remember detailed instructions, (2) ability to

carry out instructions, (3) ability to concentrate and persist at basic work tasks,

(4) ability to interact with supervisors, (5) ability to adapt appropriately to workplace

changes, and (6) ability to use public transportation or travel to unfamiliar places.

      After considering this and other evidence, the ALJ issued an unfavorable

decision. At step two of the five-step sequential evaluation, she found that

Ms. Oceguera suffered from the following severe impairments: seizure disorder,

mood disorder, and dependent traits. See Wall v. Astrue, 561 F.3d 1048, 1052

(10th Cir. 2009) (explaining the five-step process). Finding no impairment to meet

the severity of a listed impairment at step three, the ALJ proceeded to determine



                                            3
Ms. Oceguera has the RFC to perform a full range of work at all exertional levels

with the following non-exertional limitations:

      she must never climb ladders, ropes, or scaffolds; she must completely
      avoid unprotected heights and hazardous machinery; she is limited to
      understanding, remembering, and carrying out simple instructions; she
      is able to maintain attention and concentration to perform only simple
      tasks for two hours at a time without requiring redirection to task; she
      requires work involving no more than occasional change in the routine
      work setting; and, she is able to interact with supervisors and
      co-workers on a superficial level.

Aplt. App. vol. 1, Adm. R. at 13. The ALJ determined Ms. Oceguera could not

perform any past relevant work at step four and, relying on testimony from a

vocational expert, concluded there are jobs that exist in significant numbers in the

national economy that she can perform.

      In discussing the relevant medical evidence, the ALJ found Ms. Oceguera’s

allegations were not fully credible because, generally speaking, her seizures were not

medically documented, she maintains a “somewhat normal level of daily activity and

interaction,” she drives despite alleging frequent seizures and barely being able to

feed and dress herself, and there was evidence she stopped working for reasons

unrelated to her impairments. Id. at 16–17. The ALJ discounted Dr. Klein’s form

responses, finding:

      Dr. Klein apparently relied quite heavily on the subjective report of
      symptoms and limitations provided by the claimant and seemed to
      accept uncritically as true most, if not all, of what the claimant reported.
      Yet, as explained elsewhere in this decision, there exist good reasons for
      questioning the reliability of the claimant’s subjective complaints. This
      opinion is also inconsistent with the claimant’s admitted activities of
      daily living, which have already been described in this decision.


                                           4
Id. at 16. The ALJ gave great weight to Dr. Reed’s report. “He assessed functional

limitations that are essentially the same as those included in the [RFC] assessment

herein and Dr. Reed personally observed and examined the claimant.” Id. at 15.

      Before the district court, Ms. Oceguera challenged the ALJ’s handling of both

Dr. Klein’s and Dr. Reed’s opinions. Though the court found the ALJ erred in

evaluating Dr. Klein’s opinion, it affirmed. The court held that the ALJ did not

specifically weigh the evidence and state which of Dr. Klein’s opinions she was

accepting or rejecting. It noted that Dr. Klein’s uncritical reliance on Ms. Oceguera’s

representations, standing alone, was not a sufficient basis for disregarding his

opinion. Nevertheless, the court concluded this error was harmless because the

opinion was consistent with the RFC assessment, and Ms. Oceguera did not argue

that impairments not accounted for by the RFC affected her functioning. The district

court also found that the connection between Dr. Reed’s findings and the RFC were

“readily apparent.” Aplt. App. vo1. 1 at DNM 56.

                                           II

      On appeal, Ms. Oceguera states that the district court was correct in

concluding the ALJ improperly applied the treating physician rule, but argues that

this error was not harmless. She contends there was a significant inconsistency

between Dr. Klein’s opinion and the ALJ’s RFC findings. She also argues the ALJ

failed to incorporate all of the limitations noted in Dr. Reed’s opinion into the RFC

determination.



                                           5
      We review the Commissioner’s decision to determine “whether substantial

evidence supports the factual findings and whether the ALJ applied the correct legal

standards.” Allman v. Colvin, 813 F.3d 1326, 1330 (10th Cir. 2016). In doing so,

“we neither reweigh the evidence nor substitute our judgment for that of the agency.”

Newbold v. Colvin, 718 F.3d 1257, 1262 (10th Cir. 2013) (internal quotation marks

omitted).

                                           A

      In analyzing the opinion of a treating physician, “an ALJ first considers

whether the opinion is well supported by medically acceptable clinical and laboratory

diagnostic techniques and is consistent with the other substantial evidence in the

record.” Allman, 813 F.3d at 1331 (internal quotation marks omitted). “If so, the

ALJ must give the opinion controlling weight.” Id. If the ALJ decides, however,

that “the treating physician’s opinion is not entitled to controlling weight, the ALJ

must then consider whether the opinion should be rejected altogether or assigned

some lesser weight.” Pisciotta v. Astrue, 500 F.3d 1074, 1077 (10th Cir. 2007).

Relevant factors for the ALJ to consider include:

      (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) 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.




                                           6
Watkins v. Barnhart, 350 F.3d 1297, 1301 (10th Cir. 2003) (internal quotation marks

omitted).

      Under the regulations and our precedent, the ALJ must state reasons for the

weight given to a treating physician’s opinion that are “sufficiently specific to make

clear to any subsequent reviewers the weight” given and the underlying support for

that weight. Langley v. Barnhart, 373 F.3d 1116, 1119 (10th Cir. 2004) (internal

quotation marks omitted). “If the ALJ rejects the opinion completely, he must then

give specific, legitimate reasons for doing so.” Id. (brackets and internal quotation

marks omitted).

      We affirm but do so on other grounds. Though the ALJ did not expressly state

the weight she gave to Dr. Klein’s opinion, her language makes clear that she

accorded it little to no weight. In dismissing the opinion, she touched on multiple

factors enumerated in Watkins. Specifically, she noted the apparent reliance on

Ms. Oceguera’s allegations and squared that with the unfavorable credibility

determination she made elsewhere in the decision. She also contrasted Dr. Klein’s

findings with Ms. Oceguera’s admitted activities of daily living. The ALJ thus

considered “the degree to which the physician’s opinion is supported by relevant

evidence” and “consistency between the opinion and the record as a whole.” See

Watkins, 350 F.3d at 1301. While the ALJ must consider all six factors, id. at 1300,

we have held that she need not explicitly discuss each of the six factors, Oldham v.

Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007). Because we can ascertain the weight

given and the reasons for that weight, we think the ALJ was “sufficiently specific” in

                                           7
her discussion of Dr. Klein’s opinion. See id. We affirm the district court’s ultimate

conclusion but not its holding that the ALJ erred in evaluating the opinion.

Accordingly, we do not address the district court’s harmless-error analysis.

                                            B

      Ms. Oceguera’s second claim fares no better. “The ALJ is not entitled to pick

and choose from a medical opinion, using only those parts that are favorable to a

finding of nondisability.” Robinson v. Barnhart, 366 F.3d 1078, 1083 (10th Cir.

2004). Ms. Oceguera argues that the ALJ “did not link her RFC finding to evidence

of record as required by SSR 96-8p,” Opening Br. at 16, and, more specifically, that

the ALJ’s limitation to understanding, remembering, and carrying out simple

instructions does not account for her mental impairment as observed by Dr. Reed.

But we can easily see the parallels between Dr. Reed’s assessment and the RFC.

While it is true that we have expressed doubt whether a restriction to simple work is

“sufficient to capture . . . various functionally distinct mental limitations,” Chapo v.

Astrue, 682 F.3d 1285, 1290–91 n.3 (10th Cir. 2012), the ALJ did much more than

merely limit Ms. Oceguera to simple work. In accordance with Dr. Reed’s opinion,

the ALJ also limited Ms. Oceguera’s necessary attention and concentration, both

temporally and substantively, reduced the amount of change in work routine, and

accounted for interpersonal difficulties. Ms. Oceguera does not point us to any other

way in which her impairments are not reflected in the RFC finding. We therefore

discern no mild or moderate limitation found by Dr. Reed that the ALJ did not

incorporate into her RFC determination.

                                            8
                                   III

The judgment of the district court is affirmed.


                                     Entered for the Court


                                     Jerome A. Holmes
                                     Circuit Judge




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