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

                            FOR THE TENTH CIRCUIT                      December 26, 2012

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
MISTY M. ENDRISS,

             Plaintiff-Appellant,

v.                                                        No. 12-6126
                                                   (D.C. No. 5:10-CV-01401-L)
MICHAEL J. ASTRUE, Commissioner,                          (W.D. Okla.)
Social Security Administration,

             Defendant-Appellee.


                            ORDER AND JUDGMENT*


Before KELLY, O’BRIEN, and MATHESON, Circuit Judges.



      Misty M. Endriss appeals from an order of the district court affirming the

Commissioner’s decision denying her application for social security disability

benefits. We have jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g) and

we affirm.



*
      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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
                                           I.

      Ms. Endriss injured her neck in 2001 and had a two-level cervical fusion. She

returned to work in 2003 and worked until she injured her neck again in August 2006.

She underwent a second surgery for a one-level cervical fusion in July 2007. She

returned to work following her surgery but resigned her position in October 2007.

      Ms. Endriss filed her application for benefits on July 23, 2008, alleging

disability beginning October 30, 2007, when she was thirty-six years old. The

agency denied Ms. Endriss’ application initially and on reconsideration. Ms. Endriss

then received a de novo hearing before an administrative law judge (ALJ).

      The ALJ found that Ms. Endriss had the following severe impairments:

cervical degenerative disc disease with bilateral upper extremity radiculopathy, status

post two cervical fusions; and lumbago. The ALJ determined, however, that

Ms. Endriss retained the residual functional capacity (RFC) for light work. He

denied her application for benefits, concluding that she was not disabled at step four

of the analysis because she could perform her past relevant work as a credit card

clerk (sedentary), a loan supervisor (sedentary), a security manager (light), and a

receiving manager (light). See Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007)

(explaining five-step process for evaluating claims for disability benefits). The

Appeals Council denied review and Ms. Endriss appealed to the district court. The

district court upheld the ALJ’s decision. This appeal followed.




                                         -2-
                                           II.

      “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.” Doyal v. Barnhart, 331 F.3d 758, 760 (10th Cir.

2003). On appeal, Ms. Endriss argues that the ALJ failed to apply the correct legal

standards to his evaluation of her medical source opinions. She also asserts that the

ALJ’s RFC assessment is not supported by substantial evidence.

      A. Treating Physician Opinions

      In Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003), we explained

that an ALJ should follow a sequential analysis when considering the opinion of a

treating physician. First, the ALJ determines whether the opinion is entitled to

controlling weight. Id. If the opinion is not entitled to controlling weight, the ALJ

should next weigh the opinion considering the six factors in 20 C.F.R. § 404.1527.

Watkins, 350 F.3d at 1300-01. Finally, the ALJ “must give good reasons in [the]

notice of determination or decision for the weight he ultimately assigns the opinion.”

Id. at 1301 (internal quotation marks omitted). In Watkins, we remanded for further

proceedings because we could not “meaningfully review the ALJ’s determination

absent findings explaining the weight assigned to the treating physician’s opinion.”

Id.

      In Oldham v. Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007), the claimant

argued that the ALJ erred by failing to provide an analysis of the six factors


                                          -3-
identified in § 404.1527 for evaluating medical source opinions. As we explained,

however, “[t]hat the ALJ did not explicitly discuss all the § 404.1527(d) factors for

each of the medical opinions before him does not prevent this court from according

his decision meaningful review.” Oldham, 509 F.3d at 1258. We further noted that

the claimant “cites no law, and we have found none, requiring an ALJ’s decision to

apply expressly each of the six relevant factors in deciding what weight to give a

medical opinion.” Id. We concluded that the ALJ had provided good reasons for the

weight he gave to the medical source opinions and that nothing more was required.

Id.

             1. Dr. Munneke

      Dr. Munneke treated Ms. Endriss for pain management from July 2008 to July

2009. The ALJ gave controlling weight to Dr. Munneke’s opinion that Ms. Endriss

can stand and/or walk for six of eight hours, that she can only occasionally kneel,

crouch, and crawl and that she must limit her exposure to moving machinery. But the

ALJ did not give controlling weight to the remainder of Dr. Munneke’s opinion,

including his opinion that Ms. Endriss could lift only ten to fifteen pounds; that she

could only sit or stand for one hour at a time without changing positions; that she had

limitations in reaching, pushing, and pulling; and that she should not be exposed to

temperature extremes. The ALJ concluded that this portion of the opinion was

entitled to “little weight” because it was “inconsistent with objective medical

evidence of record, showing improvement in the claimant’s overall condition since


                                          -4-
her second neck surgery in July 2007,” citing to numerous exhibits. Aplt. App., Vol.

II at 20.

       Ms. Endriss argues that the ALJ’s reason for rejecting these additional

limitations is too vague for judicial review because the ALJ did not indicate what

objective evidence contradicts Dr. Munneke’s opinion. She further argues that the

ALJ did not consider the factors he was required to consider, and the record actually

shows that Dr. Munneke’s opinion is well-supported by his treatment records. We

disagree with these contentions.

       In support of his statement that portions of Dr. Munneke’s opinion are

inconsistent with the objective medical evidence, the ALJ cited to a number of

exhibits in the record including exhibits 4F3, 6F1, 13F1, 13F3, 25F5, and 25F8.

See id. Although the ALJ did not provide a contemporaneous discussion of those

records, just a few pages earlier, the ALJ made the following observations about the

evidence in those exhibits:

       By the end of physical therapy, the claimant was described as fifty
       percent improved from her pre-operative condition. Indeed, she
       reported only occasional numbness and tingling in her hands, she had a
       normal motor examination in her upper extremities, her cervical spine
       had fifty percent preserved range of motion, and she had a normal
       heel-toe gait (Exhibit 4F3). By July 2008, the claimant continued to do
       “reasonably well” and it was noted that she had a “good outcome” from
       the surgical procedure (Exhibit 6F1). After undergoing some
       medication changes in August and October 2008, the claimant reported
       doing “reasonably well” in January and February 2009 (Exhibits 13F1,
       3). As of June 2009, the claimant classified her pain as only level four
       on a one-to-ten scale. At that time, she reported some burning and
       tingling in her face secondary to neck pain. Though her cervical range
       of motion was restricted, her shoulder strength and grip strength were

                                         -5-
       good, and she was noted as “doing well” (Exhibit 25F5). By July 2009,
       the claimant continued to do “well” and she reported that she was
       pleased with her current level of functioning. (Exhibit 25F8).

Id. at 16.

       Reading the ALJ’s decision as a whole, the ALJ adequately explained how the

objective medical evidence showed improvement in Ms. Endriss’ condition after her

surgery. For example, after she completed physical therapy following her surgery,

Dr. Wright’s treatment records reflect that she had a normal motor examination in her

upper extremities, her cervical spine had a fifty percent preserved range of motion,

and she had a normal heel-toe gait. See id.

       Ms. Endriss argues that “[t]he cervical problems documented in the record

support Dr. Munneke’s opinion regarding restrictions in lifting, reaching, pushing

and pulling, and the need to alternate between sitting and standing due to pain.”

Aplt. Br. at 25. But the ALJ’s discussion of the record evidence indicates that

although Ms. Endriss’ “cervical range of motion was restricted, her shoulder strength

and grip strength were good.” Aplt. App., Vol. II at 16. Dr. Munneke’s treatment

notes reflecting good shoulder and grip strength are inconsistent with his

recommended restrictions in lifting, reaching, pushing and pulling. Further, the ALJ

noted that Ms. Endriss reported her pain to be a level four of ten in June 2009 and

there is nothing in the treatment notes indicating that Ms. Endriss needed to alternate

between sitting and standing due to pain. The ALJ correctly observed that the




                                         -6-
objective medical evidence is inconsistent with the restrictions suggested by

Dr. Munneke.

      Finally, we reject Ms. Endriss’ argument that the ALJ erred by failing to

“provid[e] an analysis of the relevant factors, as required by law.” Aplt. Br. at 24.

As we noted above, there is no authority “requiring an ALJ’s decision to apply

expressly each of the six relevant factors in deciding what weight to give a medical

opinion.” Oldham, 509 F.3d at 1258. The ALJ stated in his decision that he

“considered [the] opinion evidence in accordance with the requirements of 20 CFR

404.1527 and SSRs 96-2p, 96-5p, 96-6p and 06-3p.” Aplt. App., Vol. II at 17. He

then summarized Dr. Munneke’s opinion, determined that a portion of the opinion

was entitled to controlling weight but that the remainder of the opinion was entitled

to little weight, and gave a good reason for the weight he ultimately assigned the

opinion. Nothing more is required. See Oldham, 509 F.3d at 1258; Watkins, 350

F.3d at 1300-01.

             2. Dr. Wright

      Dr. Wright performed Ms. Endriss’ cervical fusion surgery in July 2007. He

saw her for several post-surgical visits and, in January 2008, he opined that

Ms. Endriss “be released to work with permanent restrictions of lifting no more than

10 pounds, no pushing or pulling more than 10 pounds, limited overhead work.”

Aplt. App., Vol. II at 228. In considering Dr. Wright’s opinion, the ALJ stated that

he “concurs with Dr. Wright’s opinion that the claimant is not disabled. However,


                                          -7-
considering the objective medical evidence of record, the undersigned finds the

claimant’s residual functional capacity more consistent with less than the full range

of light work.” Id. at 20. Ms. Endriss argues that the ALJ failed to perform a proper

analysis of Dr. Wright’s opinion.

      Although the ALJ was not as detailed in his treatment of Dr. Wright’s opinion

as he was with his treatment of Dr. Munneke’s opinion, it is readily apparent from

the ALJ’s rationale that he gave controlling weight to Dr. Wright’s opinion that

Ms. Endriss could be released to work, but that he gave little weight to Dr. Wright’s

opinion of Ms. Endriss’ functional restrictions. Dr. Wright’s opinion of Ms. Endriss’

functional restrictions was virtually identical to the restrictions that the ALJ had just

assigned “little weight” to from Dr. Munneke’s opinion. And we understand the

ALJ’s reference to “objective medical evidence” to mean the same evidence from the

same exhibits he relied on as being inconsistent with the similar restrictions proposed

by Dr. Munneke. The ALJ set forth a summary of the relevant objective medical

evidence earlier in his decision and he is not required to continue to recite the same

evidence again in rejecting Dr. Wright’s opinion. The ALJ’s discussion of

Dr. Wright’s opinion is “sufficiently specific to make clear to any subsequent

reviewers the weight the adjudicator gave to the treating source’s medical opinion

and the reasons for that weight.” Oldham, 509 F.3d at 1258. We see no reversible

error in the ALJ’s treatment of Dr. Wright’s opinion.




                                           -8-
      B. Evidence from “other sources”

      An ALJ may consider evidence from “other sources” that are not considered to

be “acceptable medical sources.” SSR 06-03p, 71 Fed. Reg. 45593, 45594 (2006).

Only “acceptable medical sources” can be considered a treating source, establish the

existence of a medically determinable impairment, and give a medical opinion. Id.

Evidence from other sources like chiropractors and physical therapists, however, may

be used “to show the severity of the individual’s impairment(s) and how it affects the

individual’s ability to function.” Id.

      The Social Security Administration has explained that the factors from

§ 404.1527, which are used to weigh opinions from “acceptable medical sources,”

“represent basic principles that apply to the consideration of all opinions from

medical sources.” SSR 06-03P, 71 Fed. Reg. at 45595. But the ruling also notes that

“[n]ot every factor for weighing opinion evidence will apply in every case.” Id.

Moreover, the ruling explains that “there is a distinction between what an adjudicator

must consider and what the adjudicator must explain in the disability determination

or decision.” Id. at 45596 (emphasis added). The ruling notes that “the adjudicator

generally should explain the weight given to opinions from these ‘other sources,’ or

otherwise ensure that the discussion of the evidence in the determination or decision

allows a claimant or subsequent reviewer to follow the adjudicator’s reasoning.” Id.




                                         -9-
              1. Chiropractor McClure

       Dr. McClure is a chiropractor who examined Ms. Endriss in connection with

her worker’s compensation claim in January 2007 and again in March 2008.

Dr. McClure opined that Ms. Endriss “has a forty-six permanent partial impairment

to the body as a whole (Exhibit 23F7) and that her ‘ability . . . to earn wages at the

same level as before the injury has been permanently impaired’ (Exhibit 23F6).”

Aplt. App., Vol. II at 20. The ALJ determined that this opinion was entitled to “little

weight . . . because it fails to set forth specific functional limitations resulting from

the claimant’s physical impairments.” Id.

       Ms. Endriss asserts that the ALJ erred in his evaluation of Dr. McClure’s

opinion. The ALJ, however, complied with our case law and SSR 06-03p by

explaining the weight he assigned to Dr. McClure’s opinion and the reason for that

weight. Ms. Endriss argues that the ALJ’s reason for assigning the opinion little

weight is flawed because Dr. McClure “did opine to specific limitations in [the]

range of motion of her cervical spine.” Aplt. Br. at 28. She asserts that these

limitations “would most certainly affect [her] ability to work.” Id. But the main

purpose for using evidence from “other sources” is “to show the severity of the

individual’s impairment(s) and how it affects the individual’s ability to function.”

SSR 06-03p, 71 Fed. Reg. at 45594 (emphasis added). We agree with the ALJ that

Dr. McClure’s opinion is of little value when it fails to explain how a limited range

of motion in the cervical spine would affect Ms. Endriss’ ability to function. We


                                           - 10 -
decline to accept Ms. Endriss’ non-medical opinion that her limitations “would most

certainly affect [her] ability to work.” Aplt. Br. at 28. The ALJ did not err in his

treatment of Dr. McClure’s opinion.

             2. Physical Therapists Cone, Mathe and Wallace

      Ms. Endriss argues that the ALJ erred by failing to discuss and weigh the

findings from Ms. Cone, who was Ms. Endriss’ physical therapist from October 2007

to December 2007. Ms. Endriss asserts that her treatment records from Ms. Cone

confirm that she “had a significantly reduced range of motion of the cervical spine.”

Id. She contends the ALJ erred by not evaluating the weight to be given to those

findings and that the ALJ erred by failing to discuss this “significantly probative

evidence.” Id. at 29. We disagree.

      First, Ms. Cone did not give an opinion based on her treatment of Ms. Endriss

that could be evaluated by the ALJ. Although Ms. Cone made notes in her treatment

records about the limitations in Ms. Endriss’ cervical range of motion, she did not

opine as to how those limitations would affect Ms. Endriss’ ability to function. As

for Ms. Endriss’ allegation that the ALJ failed to discuss probative evidence, the

treatment records from Ms. Cone showing limited range of motion in Ms. Endriss’

cervical spine are consistent with other medical evidence of record that the ALJ did

mention. See, e.g., Aplt. App., Vol. II at 16 (discussing treatment record showing

that Ms. Endriss’ “cervical range of motion was restricted”). The ALJ was not

required to discuss Ms. Cone’s treatment records. See Clifton v. Chater, 79 F.3d


                                         - 11 -
1007, 1009-10 (10th Cir. 1996) (“[A]n ALJ is not required to discuss every piece of

evidence.”).

      As for Ms. Mathe and Mr. Wallace, these physical therapists conducted a

functional capacity evaluation of Ms. Endriss in January 2008 and then opined that

Ms. Endriss “is capable of safely performing work up to and including the sedentary

physical demand category.” Aplt. App., Vol. II at 20. The ALJ “concur[red] with

their opinion that the claimant is not disabled. However, considering the objective

medical evidence of record, the undersigned finds the claimant’s residual functional

capacity more consistent with less than the full range of light work.” Id.

      Again, Ms. Endriss argues that the ALJ erred in its treatment of this opinion by

not discussing all of the factors for weighing medical source evidence. The ALJ

agreed with the physical therapists that Ms. Endriss could return to work and

therefore she was not disabled. But the ALJ disagreed with the portion of their

opinion limiting Ms. Endriss to sedentary work. The sedentary-work limitation

proposed by the therapists was essentially the same as the limitations proposed by

Drs. Wright and Munneke and afforded little weight by the ALJ. As we have

discussed, our case law and SSR 06-03p do not require an explicit discussion of the

§ 404.1527 factors in the ALJ’s decision. We conclude the ALJ did not err because

there is sufficient information here for “a subsequent reviewer to follow the

adjudicator’s reasoning,” SSR 06-03p, 71 Fed. Reg. at 44596.




                                         - 12 -
      C. RFC Assessment
      The ALJ determined that Ms. Endriss could perform light work (lift and carry

twenty pounds occasionally; lift and carry ten pounds frequently; sit, stand and/or

walk six hours in an eight-hour work day with ordinary work breaks) with the further

limitations that she could only occasionally climb ramps and stairs, balance, kneel, or

crouch; and she could never climb ladders, ropes or scaffolds. The ALJ also

determined that Ms. Endriss must avoid concentrated exposure to machinery and

heights. Ms. Endriss asserts that the ALJ’s RFC assessment for light work is not

supported by substantial evidence because the ALJ improperly rejected medical

opinion evidence and otherwise failed to include her established lack of cervical

mobility in his RFC assessment.

      Although Ms. Endriss challenges the ALJ’s RFC determination for light work,

we note that the VE characterized two of her previous jobs as sedentary-level

positions. Ms. Endriss bears the burden of showing at step four that she is incapable

of performing her past relevant work. See Andrade v. Sec’y of Health & Human

Servs., 985 F.2d 1045, 1051 (10th Cir. 1993). If Ms. Endriss’ past relevant work can

be performed at a sedentary level, then she arguably has failed to show prejudice

from any alleged error in the ALJ’s RFC determination for light work. See Shinseki

v. Sanders, 556 U.S. 396, 409 (2009) (“[T]he party that seeks to have a judgment set

aside because of an erroneous ruling carries the burden of showing that prejudice

resulted.” (internal quotation marks omitted)); id. ([T]he burden of showing that an

error is harmful normally falls upon the party attacking the agency’s
                                         - 13 -
determination.”). Nevertheless, we reach the merits of her challenge and conclude

that the ALJ’s RFC assessment is supported by substantial evidence.

      As discussed above, the ALJ properly considered the opinions from

Ms. Endriss’ treating physicians and other medical sources, but accorded little weight

to the opinions that were inconsistent with the objective medical evidence. That

evidence shows that Ms. Endriss did improve after her surgery and that she did not

have functional limitations greater than those necessary to perform light work.

      In September 2007, two months after her surgery, Dr. Wright’s notes reflect

that Ms. Endriss’ neck pain was significantly improved from her pre-operative

condition as she rated her overall pain as three out of ten. He released her to light

work at that time with a twenty-five-pound lifting restriction. In October and

December, he noted her symptoms were fifty percent improved from her

pre-operative condition, she had a normal motor examination of the upper

extremities, and a normal heel/toe gait. He continued to note she could be released to

light work with a twenty-five-pound lifting restriction. In January 2008,

Dr. Wright’s treatment notes reflect the same findings in terms of her physical

examination, but he modified her work restrictions to a ten-pound lifting restriction,

which would place her in the sedentary category. There is no explanation in his notes

for the change in her restrictions. Moreover, he noted that Ms. Endriss’ functional

capacity evaluation, which suggested a sedentary-work restriction, was “remarkable

for an unreliable result.” Aplt. App., Vol. II at 228.


                                         - 14 -
      In July 2008, Dr. Munneke examined Ms. Endriss. His treatment notes are

consistent with those of Dr. Wright. He noted no neurosensory loss in the upper

extremities and reflexes in the upper extremities were brisk and equal. He found her

shoulder strength and upper extremity strength to be 5/5. In November 2008,

Dr. Woodcock, an agency physician, reviewed the medical records and relied on

Dr. Munneke’s examination findings to support his opinion that Ms. Endriss could

perform light work. Dr. Woodcock acknowledged that Dr. Wright had reached a

different conclusion about Ms. Endriss’ restrictions, but Dr. Woodcock explained that

Dr. Wright’s restrictions were not supported by the objective medical evidence from

Dr. Munneke’s July 2008 examination. Dr. Munneke’s treatment notes continued to

show adequate or good shoulder strength and good grip strength in January, February

and June of 2009. Given the objective evidence showing normal motor functioning

in her upper extremities, good shoulder and grip strength, and normal heel/toe gait,

we conclude there is substantial evidence in the record to support the ALJ’s RFC

assessment for light work.

      As for including limitations in the RFC related to cervical mobility, although

the treatment notes reflect findings of restricted range of cervical motion, which the

ALJ acknowledged in his decision, none of the physicians or other medical sources

tied the lack of cervical mobility to specific functional limitations. Even with the

restrictions in Ms. Endriss’ cervical range of motion, the treatment notes continued to

reflect a normal examination in the upper extremities with good shoulder and grip


                                         - 15 -
strength. Ms. Endriss’ own statements to Dr. Munneke do not reflect severe cervical

limitations, and Ms. Endriss testified that she could do the laundry, vacuum, and

dust. Although Ms. Endriss argues that “[t]he limitations in the range of motion of

her cervical spine would most certainly affect [her] ability to work,” she does not cite

to an opinion from a medical source showing how this restricted range of cervical

motion would result in specific functional limitations. Aplt. Br. at 28.1 The ALJ did

not err in failing to include additional limitations in the RFC concerning a lack of

cervical mobility.

                                          III.

      We affirm the judgment of the district court upholding the Commissioner’s

decision denying disability benefits.

                                                  Entered for the Court

                                                  Paul J. Kelly, Jr.
                                                  Circuit Judge


1
       Ms. Endriss also argues that this court’s decision in Cason v. Sullivan, 1993
WL 128878, at *1-*3 (10th Cir. April 21, 2003) (unpublished), supports her position
that her cervical limitations must be included in her RFC. The Cason case is
factually distinguishable as it involved a claimant with significant limitations to his
daily activities that are not present in this case. See id. at *1 (explaining that
claimant was unable to sit or stand for long periods of time, use his arm or hands to
open doors, hold objects, or write). In addition, there is no overarching legal
principle from Cason that supports Ms. Endriss’ position as the case involved a
fact-specific step five error involving a problem with the ALJ’s hypothetical to and
treatment of the Vocational Expert’s testimony. Id. at *3. Accordingly, we do not
find Cason to be persuasive authority. See 10th Cir. R. 32.1 (explaining that
“[u]npublished decisions are not precedential, but may be cited for their persuasive
value.”).


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