                                                                         FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                      July 8, 2008
                     UNITED STATES COURT OF APPEALS
                                                                  Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                     Clerk of Court



    LYDIA G. BRESCIA,

                Plaintiff-Appellant,

    v.                                                  No. 07-4234
                                                (D.C. No. 2:06-CV-00793-DN)
    MICHAEL J. ASTRUE, Commissioner                       (D. Utah)
    of the Social Security Administration,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before BRISCOE, PORFILIO, and BALDOCK, Circuit Judges.



         The administrative law judge (ALJ) denied Lydia Brescia’s applications for

Social Security disabled widow’s benefits and supplemental security income

payments. The Appeals Council denied review, making the ALJ’s decision the

final agency decision, and the district court affirmed. Ms. Brescia now appeals to




*
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
this court, which has jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291.

Applying our limited standard of review in Social Security cases, we affirm.

      In order to obtain disabled widow’s benefits and/or supplemental security

income payments, Ms. Brescia must establish that she is “disabled” as that term is

defined for Social Security purposes. See 20 C.F.R. §§ 404.1501, 404.1505(a),

416.901, 416.905(a). After holding a hearing and applying the five-step

sequential evaluation process, the ALJ determined that: (1) Ms. Brescia was not

engaging in any substantial gainful activity; (2) she suffered from some severe

impairments and a number of non-severe impairments; (3) none of her

impairments met or equaled any impairment in the listing of impairments; (4) she

retained the residual functional capacity (RFC) “to perform a significant range of

light work, occasionally climbing, balancing, stooping, kneeling, crouching or

crawling, having limited communication with [] others in loud places due to

hearing loss and avoiding respiratory irritants due to her respiratory

impairments,” Aplt. App. at 26, but that she had no past relevant work to which

she could return; and (5) based on testimony by a vocational expert (VE), she

could perform other work that exists in significant numbers in the national

economy. Consequently, the ALJ determined that she was not disabled and not

entitled to benefits.

      On appeal, Ms. Brescia argues that the ALJ improperly determined several

of her impairments did not qualify as “severe” impairments, improperly rejected

                                         -2-
the opinion of her treating physician, improperly evaluated her credibility, failed

to consider lay witness statements in the record, and failed to identify specific

jobs available in the economy in significant numbers that she could perform.

“We review the Commissioner’s decision to determine whether the factual

findings are supported by substantial evidence and whether correct legal standards

were applied.” Barnett v. Apfel, 231 F.3d 687, 689 (10th Cir. 2000). In our

review, “[w]e may neither reweigh the evidence nor substitute our judgment for

that of the agency.” Id. (quotation omitted).

                                    Impairments

      The ALJ concluded that Ms. Brescia suffers from the severe impairments of

asthma/chronic obstructive pulmonary disease (COPD) and a hearing loss. He

also acknowledged that she suffers from “a disorder of the spine, diabetes

mellitus, a personality disorder, vision problems, intermittent uticaria, obesity and

sleep apnea,” but stated that those impairments “are considered non-severe for our

purposes here.” Aplt. App. at 23. He further stated that the alleged depression,

attention deficit hyperactivity disorder, Lyme disease, and thoracic outlet

syndrome “are not clearly medically determinable and are therefore not further

considered as part of this decision.” Id. Ms. Brescia argues that the ALJ

committed reversible error by not accepting her sleep apnea, obesity, degenerative

disk disease, and hand and arm pain and numbness as severe impairments.




                                          -3-
      “We can easily dispose of” an argument that the ALJ should have found

additional impairments to be severe because “[t]he ALJ . . . made an explicit

finding that [the claimant] suffered from severe impairments. That was all the

ALJ was required to do in that regard.” Oldham v. Astrue, 509 F.3d 1254, 1256

(10th Cir. 2007). Once an ALJ has found that a claimant has at least one severe

impairment, a failure to designate another disorder as “severe” at step two does

not constitute reversible error because, under the regulations, the agency at later

steps “consider[s] the combined effect of all of [the claimant’s] impairments

without regard to whether any such impairment, if considered separately, would

be of sufficient severity.” 20 C.F.R. §§ 404.1523, 416.923; see also id.

§§ 404.1525(e), 416.945(e); Maziarz v. Sec’y of Health & Human Servs.,

837 F.2d 240, 244 (6th Cir. 1987).

      As in Oldham, Ms. Brescia’s true quarrel is not with the step-two findings

concerning which of her impairments are severe, but with the step-four and step-

five findings concerning her RFC and her ability to do any work. See Oldham,

509 F.3d at 1256-57. Notwithstanding the ALJ’s earlier statement that her

thoracic outlet syndrome was “not further considered,” Aplt. App. at 23, in

determining her RFC, he considered those effects of Ms. Brescia’s sleep apnea,

obesity, degenerative disk disease, and hand and arm pain that were supported in

the medical record, in conjunction with the impairments that he deemed severe.

See id. at 24-26. We find no reversible error.

                                         -4-
                          Opinion of Treating Physician

      Ms. Brescia also argues that the ALJ improperly rejected the opinion of her

treating physician, Dr. Ellen Gardner. The doctor indicated that Ms. Brescia

suffers, among other symptoms, chronic neck and back pain, fatigue, and

shortness of breath, and stated that she could walk one-third to one-half of a block

without resting, sit for sixty minutes at a time, and stand for ten minutes at a time,

but she had to lie down for several hours a day. In declining to accept these

functional limitations, the ALJ stated that “the doctor’s progress notes do not

support the need for such functional limitations and appeared to accept the

claimant’s subjective allegations as fact.” Id. at 27.

      Generally, the ALJ should give greater weight to the opinions of doctors

who have treated the claimant than those who have not. Watkins v. Barnhart,

350 F.3d 1297, 1300 (10th Cir. 2003). “The ALJ is required to give controlling

weight to the opinion of a treating physician as long as the opinion is supported

by medically acceptable clinical and laboratory diagnostic techniques and is not

inconsistent with other substantial evidence in the record.” Hamlin v. Barnhart,

365 F.3d 1208, 1215 (10th Cir. 2004); see also Social Security Ruling (SSR)

96-2p, 1996 WL 374188, at *2. But if either of these requirements is not met, the

ALJ is not required to give the opinion controlling weight; in fact, it may be an

error to do so. Watkins, 350 F.3d at 1300; SSR 96-2p, 1996 WL 374188, at *2.

Instead, the ALJ must decide whether to reject the opinion altogether or assign it

                                         -5-
some lesser weight. Watkins, 350 F.3d at 1300-01. “[T]he ALJ must ‘give good

reasons in the notice of determination or decision’ for the weight he ultimately

assigns the opinion.” Id. at 1301 (quoting 20 C.F.R. § 404.1527(d)(2)) (alteration

omitted).

      It does not appear that the ALJ entirely rejected Dr. Gardner’s opinion

regarding Ms. Brescia’s fatigue and back pain. For example, he “[gave] the

claimant the benefit of the doubt that sleep apnea is a valid diagnosis,” Aplt. App.

at 25, and he acknowledged that she “has a chronic degenerative disc disease that

causes only intermittent discomfort rather than persistent pain requiring ongoing

treatment,” id. at 26. But he did reject the functional limitations that Dr. Gardner

set forth. In doing so, he indicated that Dr. Gardner’s opinion was based on

Ms. Brescia’s subjective allegations, not medically acceptable clinical and

laboratory diagnostic techniques. Thus, he gave a reason supported by the law,

see Watkins, 350 F.3d at 1300, SSR 96-2p, 1996 WL 374188, at *2, and the

record, see Aplt. App. at 142-46. This issue is not a basis for reversal.

                                     Credibility

      Ms. Brescia also challenges the ALJ’s evaluation of her credibility. She

contends that the ALJ’s evaluation was not linked to substantial evidence in the

record and that the ALJ did not specifically address her allegations, instead

“engag[ing] in a wholesale rejection of all of her testimony based on an assertion




                                         -6-
that her daily activities were inconsistent with a disabled individual.” Aplt. Br. at 30.

      We have held that an ALJ’s “[f]indings as to credibility should be closely

and affirmatively linked to substantial evidence and not just a conclusion in the

guise of findings.” Kepler v. Chater, 68 F.3d 387, 391 (10th Cir.1995) (quotation

omitted; alteration in original). In making a credibility assessment, the ALJ

should consider such factors as:

      the levels of medication and their effectiveness, the extensiveness of
      the attempts (medical or nonmedical) to obtain relief, the frequency
      of medical contacts, the nature of daily activities, subjective
      measures of credibility that are peculiarly within the judgment of the
      ALJ, the motivation of and the relationship between the claimant and
      other witnesses, and the consistency or compatibility of nonmedical
      testimony with objective medical evidence.

Id. (quotation omitted).

      The ALJ sufficiently explained the link between the evidence and his

determination that Ms. Brescia’s testimony was not entirely credible. After

thoroughly reviewing Ms. Brescia’s medial history, he explained that the medical

evidence, her own description of her activities, and the fact that she quit her last

job because of transportation issues, not disability, simply were incompatible with

her claim that she is not able to perform any work. Having carefully reviewed the

record, we see no basis to reverse the ALJ’s adverse credibility determination.




                                          -7-
                              Lay Witness Testimony

      Ms. Brescia notes that her sister and a friend provided written descriptions

of her limitations to the ALJ and contends that he ignored this evidence. While

the ALJ did not explicitly discuss the statements of Ms. Brescia’s sister and

friend, we do not believe this omission is grounds for remand given the nature of

their evidence, which was largely cumulative of Ms. Brescia’s testimony and

written statements. See Adams v. Chater, 93 F.3d 712, 715 (10th Cir. 1996)

(rejecting a rule requiring an ALJ to make specific written findings concerning

each witness’s credibility); Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir.

1996) (holding that an ALJ is not required to discuss every piece of evidence).

Further, where, as here, the ALJ’s decision states that he considered all of the

evidence, “our general practice, which we see no reason to depart from here, is to

take a lower tribunal at its word when it declares that it has considered a matter.”

Hackett v. Barnhart, 395 F.3d 1168, 1173 (10th Cir. 2005).

                          Jobs Available in the Economy

      Finally, Ms. Brescia contends that the ALJ failed to identify specific jobs

that she could perform because the VE’s testimony was not based on an accurate

hypothetical question that included all of her limitations. She points out that the

VE testified that a need to lie down for several hours each day “‘would rule out

all jobs.’” Aplt. Br. at 36 (quoting Aplt. App. at 391).




                                         -8-
      The limitations that Ms. Brescia argues should have been included in the

hypothetical were limitations that the ALJ did not accept to be true. A

hypothetical is sufficient when it contains “all of the limitations found to exist by

the ALJ.” Barnett, 231 F.3d at 690. The ALJ was not required to accept the

VE’s opinion regarding the availability of jobs to a person required to lie down

for several hours each day, as he concluded that this limitation did not exist.

See id.; Bean v. Chater, 77 F.3d 1210, 1214 (10th Cir. 1995). The VE’s

testimony that at least three jobs would be available to a hypothetical person of

Ms. Brescia’s age, education, and work history, with the RFC determined by the

ALJ, provides substantial evidence for the ALJ’s step-five determination.

      The judgment of the district court is AFFIRMED.


                                                     Entered for the Court


                                                     Mary Beck Briscoe
                                                     Circuit Judge




                                          -9-
