UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ RICKY M. JOHNSON, Plaintiff - Appellant,

v. COMMISSIONER, SSA, Defendant - Appellee. No. 18-5058 (D.C. No. 4:17- CV-00152-FHM) (N.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before BRISCOE , MORITZ , and EID , Circuit Judges.

________________ _________________ Ricky M. Johnson appeals from th e district court’s order denyin g his application for Social Security disability benefits and supplem ental security income benefits. Exercising jurisdictio n under 28 U.S.C. § 1291 and 4 2 U.S.C. § 405(g), we affirm. I. BACKGROUND Johnson, who had previously worke d as a pipeline equipment oile r, a newspaper carrier, and a homebu ilder and building contractor, f iled for benefits in

* After examining the briefs and appellate record, this panel ha s 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 ther efore submitted without oral argument. T his order and judgment is no t binding precedent, except under the doctrines of la w of the case, res judicata, an d 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. FILED United States Court of Appeals Tenth Circuit 

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Elisabeth A. Shumaker Clerk of Court2 July 2014. According to Johnson, h e became disabled in January 2014, due to shortness of breath, various pulmonary and cardiac concerns, an d arthritic-type knee pain. Following the administrative de nial of his claims, Johnson req uested a hearing before an administrative law j udge (ALJ). The ALJ concluded th at he was not disabled and the Appeals Council denied review. On appeal to t he district court, the parties consented to the jurisdi ction of a magistrate judge, wh o affirmed the Commissioner’s decision. A. Medical Evidence From January to March 2014, Joh nson made several trips to urge nt care with complaints of joint pain, a cough and shor tness of breath due t o acute bronchitis and asthma. The diagnoses included congestive heart failure, short ness of breath, arthritis, and edema. Johnson to ok ibuprofen for pain and useda nebulizer for his acute bronchitis. In April 2014, Johnson was diagnos ed with sleep apnea. His re sponse to treatment—a CPAP machine—“was nothing less than spectacular,” A plt. App., Vol. 4 at 332, and resulted in i mproved quality o f sleep and da ytime energy. In May 2014, Johnson was evaluat ed at the Oklahoma Heart Insti tute. He had some edema in his legs, but his breathing was normal and his lu ngs were clear. He demonstrated normal muscle stre ngth and all cardiac tests were normal or negative. He was advised to continue tak ing his medicati ons, including di uretics for edema, and using his sleep apnea machine.3 May 2014 is also when Johnson w ent to James Rutter, M.D., “to establish care.” Id . at 366. Dr. Rutter noted that Johnson had “mild” chronic obs tructive pulmonary disease (COPD), and “s eem[ed] to be doing ok[ay] on” his medication. Id. Dr. Rutter’s examinations in May and June 2014, showed normal b reathing rhythm and depth, normal heart and lung sounds, and no edema. Chest x-rays showed clear lungs and a normal heart size. A pulmonary functi on test performed on June 26, 2014, showed “ moderate” obstruction, id . at 389, with Johnson maintaining oxygen levels of 94% to 97% on r oom air while walking for six m inutes at a “continuous, moderate pace,” id . at 390. When Johnson saw Dr. Rutter in J uly 2014, Johnson said that ib uprofen helped his joint pain, and reported ex ercising once or twice a week. Dr. Rutter encouraged him do “mild to moderate walking to help with [his] pulmonary s tatus.” Id . at 362. Just a week later, however, Dr. Rutter filled out a form in con nection with Johnson’s disability proceedings titled “M EDICAL SOURCE OPINION OF RESIDU AL FUNCTIONAL CAPACITY.” Id . at 387. Dr. Rutter checked off and/or circled several items concerning Johns on’s purported work limitations i n an eight-hour work day. Specifically, Dr. Rutter said Johnson could not stand and /or walk for more than two to three hours, and could lift only 15 pounds frequently. Dr. Rutter explicitly excluded pain as the reason for the standing, walking, and lift ing restrictions. He also said that Johnson needed to avoid dust, chemicals, and hig h humidity. Although he noted that Johnson’s obesity exacerbated his physical condit ions, he did not add4 any detail. Significantly, even though Dr. Rutter was asked to describe the medical findings to support his assessment , he left that section of the form blank. On July 29, 2014, Dr. Rutter si gned a “Handicapped Parking Pla card Application” for Johnson. Id . at 399. As grounds, Dr. Ru tter checked a box stating that Johnson “[c]annot walk 200 feet without stopping to rest.” Id

. At a check-up in August 2014, Joh nson reported knee pain, but Dr. Rutter did not prescribe any pain medicat ions. Johnson’s exhaling was pro longed with decreased force, but his breathi ng rhythm and dept h were normal , and his heart and lung sounds were also normal. Dr. Rutter continued Johnson’s m edications. X-rays taken of Johnson’s knees on October 1, 2014, were prima rily normal and a pulmonary function test on October 2, 2014, showed “minim al” obstruction, id . at 415. Nevertheless, Johnson told David Wiegman M.D., who performed a consultative physical e xamination on October 11, 2014, that he could walk only about 100 yards due to “shortness of breath and knee pain,” and his knee pain limited him to standing for no “mo re than about 20 minutes.” Id . at 422. Further, Johnson estimated that he could “lift [n o] more than about 50 pounds.” Id

. Dr. Wiegman found that Johnson had full strength in his arms, l egs, and grip, and a normal range of motion of h is arms and legs. “Back and n eck exams were normal with normal range of moti on and no significant pain.” Id . at 423. “There is no edema.” Id . Dr. Wiegman also observed th at Johnson “had a normal symmetr ic5 steady gait. He did not have a ny problems walking in and out [ of] the office today, [although] [h]e did have difficu lty walking on his toes and hee ls separately.” Id

. The state agency medical consu ltant, James Metcalf, M.D., revie wed the medical evidence and issued a r eport on October 22, 2014. He o pined that Johnson had the physical ability to lif t and/or carry 50 pounds occasio nally and 25 pounds frequently, stand and/or walk aboutsix hours in an eight-hour workday, and sit about six hours in an eight-hour work day. Essentially , Dr. Metcalf o pined that Johnson could perform “medium work,” whic h “involves lifting no more th an 50 pounds at a time with frequent lifting or car rying of objects weighing up t o 25 pounds.” 20 C.F.R. § 404.1567(c). 1 Dr. Metcalf further opine d that Johnson should avoid concentrated exposure to various environmental conditions such as fumes, odors, dusts, gases, poor ventila tion, and humidity. At an office visit in December 2 014, Dr. Rutter told Johnson t o continue his medications and come back in six months. Later that month, sta te agency medical consultant William Oehlert, M.D., r eviewed the updated medical evidence and reaffirmed that Johnson could pe rform “medium work,” but should avoid prolonged exposure to various pulmonary i rritants and humidity. Dr. Oehl ert expressly considered and rejected Dr. Rut ter’s July 21, 2014, opinion tha t contained the severe

1 Citations to 20 C.F.R. part 404, w hich cover disability income benefits, have parallel citations at 20 C.F.R . part 416, which cover supplemen tal security income benefits. This order and judgme nt does not cite the parallel s upplemental security income regulations.6 restrictions because “[t]he opi nion is without s ubstantial supp ort from other evidence of record, which renders it le ss persuasive.” Aplt. App., Vol. 2 at 119. The relevant medical evidence ends with Dr. Rutter’s notes fro m Johnson’s June 9, 2015, office visit durin g which he told Johnson to cont inue his medications and come back in six months. B. Johnson’s Testimony According to Johnson, he stopped wo rking as a pipeline equipme nt oiler, where he had to stand, walk, cli mb, and/or crouch for at least nine hours a day, because his knees bothered him, and he “couldn’t breathe,” id ., Vol. 2 at 42. He said that he could only stand or wal k for only about 15 minutes befo re his right leg started to ache. High humidity was a pr oblem for him as well, along wi th dust and grass clippings. He spent m ost days sitting down , doing some walking around the yard, and said “I piddle around in my workshop a little bit if I feel like doing that.” Id

. at 49. C. The ALJ’s Decision The ALJ found that Johnson had th e severe impairments of COPD, hypertension, obesity, and a hist ory of knee pain, and could pe rform “less than the full range of medium work,” id . at 26. Specifically, the A LJ found that Johnson had the residual functional capacity (RFC) to “occasionally lift an d/or carry 50 pounds, frequently lift and/or carry 25 pounds, stand and/or walk at le ast 6 hours in an 8-hour workday, and sit at least 6 hour s in an 8-hour workday. [He] s hould avoid concentrated exposure to such th ings as fumes, odors, dust and gases.” Id . In his7 hypothetical question to the voca tional expert (VE), the ALJ ac knowledged that Johnson also could not perform w ork involving “concentrated exp osure to humidity.” Id . at 54. The ALJ discounted Johnson’s s ubjective complaints of disabili ty because his testimony was inconsistent with the evidence. Also, the ALJ ga ve “little weight” to Dr. Rutter’s July 24, 2014, opi nion, primarily b ecause it was u nsupported and inconsistent with the evidence. Id . at 29. At step five, and based on the VE’s testimony, the ALJ foun d that there were j obs existing in signi ficant numbers in the national economy, namely janitor and machine packager, that Joh nson could perform, and he therefore was not disabled. II. STANDARD OF REVIEW “We review the Commissioner’s d ecision to determine whether th e factual findings are supported by substantial eviden ce in the record an d whether the correct legal standards were applied.” Lax v. Astrue , 489 F.3d 1080, 10 84 (10th Cir. 2007) (internal quotation marks omitted). Substantial evidence is such re levant evidence as a reasonable mind might accept as adequate to support a conclusion. It requires more than a scintilla, but less than a preponderance. W e consider whether the ALJ fol lowed the specific rules of law that must b e followed in weighing particu lar types of evidence in disability cases, but we will not reweigh the evide nce or substitute our judgment for the Commissioner’s. Id . (citations and internal quotation marks omitted). Moreover, “[t]he possibility of dr awing two inconsistent conclu sions from the evidence does not prevent an admi nistrative agency’s findings f rom being supported8 by substantial evidence.” Id . (internal quotation mark s omitted). “We may not displace the agency’s choice betw een two fairly conflicting vie ws, even though the court would justifiably have mad e a different choice had the ma tter been before it de novo.” Id . (brackets and internal quotation marks omitted). III. ANALYSIS A. Obesity As his first assignment of error , Johnson argues that the ALJ failed to properly consider his obesity in formula ting his RFC, particularly its e ffects in combination with his COPD. We disagree. Social Security Ruling 02-1p, 200 2 WL 34686281 (Sept. 12, 2002 ), provides guidance on how an ALJ should ev aluate a claimant’s obesity. I t does not mandate any additional restrictions or a finding of disability; rather, it provides that in assessing RFC, an ALJ should c onsider “any functional limitatio ns resulting from the [claimant’s] obesity,” in add ition to any limitations resulting from any other impairments. Id . at *7. The ALJ did just that. In the present case, [Johnson’s] obesity is not such as to prev ent ambulation, reaching, or postura l maneuvers. It does, though, in combination with [his] other imp airments, somewhat reduce [his] ability to stand, walk, lift and carry. A re duction in capacity to work at the medium exertional range with some furthe r appropriate work restriction s is therefore warranted. These limitations are accounted for in the residual functional capacity as determ ined herein. Aplt. App., Vol. 2 at 26. Those “f urther appropriate work restrictions” preclude work environments where Johnson would have “concentrated exposure to such things as9 fumes, odors, dust and gases,” id ., and “humidity,” as explained by the ALJ in his hypothetical question to the VE, id . at 54. Second, Drs. Metcalf and Oehlert , to whose opini ons the ALJ in some instances afforded “great weight,” id . at 29, noted Johnson’s height, weight, and body mass index in reaching their c onclusions that he could perform “medium work.”
In Howard v. Barnhart , 379 F.3d 945, 948 (10th Cir. 2004), we held that there was no error where, among other things, the ALJ discussed the “ possible ramifications” of the claimant’ s obesity. Further, there was n o error where, among other things, the ALJ’s RFC de termination was supported by an e xamining physician’s report that consider ed the claimant’s obesity. See id. Those circumstances pertain here, and as such, there was no error. B. Treating Physician In determining Johnson’s RFC, t he ALJ afforded “little weight” to the July 21, 2014, form filled out by Dr. Rut ter that contained the severe l imitations previously discussed. Johnson argues that t he ALJ failed to give this opi nion from his treating physician the “deference to which it is entitled.” Aplt. Openi ng Br. at 18. This is another way of saying that the ALJ should have afforded Dr. Rut ter’s opinion controlling weight. 2 Again, we disagree. Generally, an ALJ gives more we ight to the opinion of the clai mant’s treating physician. 20 C.F.R. § 404.152 7(c)(2) (“If . . . a treating so urce’s opinion on the

2 Based on the unanimous opinion s of Drs. Rutter, Metcalf, and O ehlert that Johnson should avoid concentrated exposure to various pulmonary irritants and humidity, the ALJ placed this li mitation on his work environmen t.10 issue(s) of the nature and severi ty of your impairments(s) is w ell-supported by medically acceptable clinical and laboratory diagnostic techniq ues and is not inconsistent with the other subs tantial evidence in your case r ecord, we will give it controlling weight.”). When, how ever, an ALJ gives something l ess than controlling weight to a treating physician’s opinion, he is required to app ly certain factors “in determining the weight t o give the opinion.” Id . These factors inc lude (1) the length of the treatment relationship a nd (2) the nature and extent of the treatment relationship. See id . § 404.1527(c)(2)(i),(ii). “T he more a medical source present s relevant evidence to support an opinion, particularly medical s igns and laboratory findings, the more weight we w ill give that medical opinion. T he better an explanation a source provides fo r an opinion, the more weight w e will give that opinion.” Id . § 404.1527(c)(3). The ALJ gave Dr. Rutter’s opini on “little weight” primarily be cause he did not “provide any objective findings o r identify any specific medica l evidence upon which he based his opinion.” Aplt . App., Vol. 2 at 29. This finding is supported by substantial evidence. First, Dr. Rutter and Johnson d id not have a lengthy relations hip. Second, on the form that Dr. Rutter complet ed that contained the checkmark s and circles noting Johnson’s limitations, h e failed to answer the question about w hat medical findings supported his assessment. Thi rd, Dr. Rutter did nothing more t han check a box on an application for a handicapped pl acard. This is not the type of evidence on which to11 base a disability finding, particul arly in light of the fact th at it is inconsistent with the medical evidence. Also, Dr. Rutter’s opinion is notcorroborated by his own treat ment notes or the other medical evidence. In this regard, we note that “[g]e nerally, the more consistent an opinion is with the record as a whole, the more w eight we will give to that opinion.” § 404.1527(c)(4). As a preliminary matter, the lim itations Dr. Rutter noted on J ohnson’s ability to stand, walk, lift, and carry were necessarily based on breat hing problems, because he specifically stated they wer e not due to pain. But as the A LJ explained, the “extreme exertional lim itations [noted by Dr. Rutter] are not s upported by [Johnson’s] moderate pul monary defects.” A plt. App., Vol. 2 at 29. For example, Dr. Rutter’s notes characterized Johnson’s COPD a s “mild.” Id ., Vol. 4 at 366. Further, the tests ordered by Dr. Rutter showed Johnson’s lungs were clear, his pulmonary function wa s only “moderate[ly]” obstructe d, id ., at 389, and he was able to maintain oxygen sa turation levels of 94% to 97% on room air while walking at a “continuous, modera te pace” for six minutes,” id . at 390. Likewise, the ALJ reasonably discounted Dr. Rutter’s opinion t o the extent that it limited Johnson to freque ntly lifting and/or carrying 1 5 pounds. Johnson himself told Dr. Wiegman that he could lift up to 50 pounds and there is no objective evidence to support the 15-pound limitation. We have concluded that it is reasonable for an ALJ to discount a trea ting physician’s opinion about how much a claimant can lift where the opinion is not s upported by any objective clinic al findings and the12 claimant reported that he could lift more. See Williamson v. Barnhart , 350 F.3d 1097, 1099 (10th Cir. 2003). According to the Commissioner , Johnson’s remaining arguments “ suggest[] the ALJ should have discussed va rious other potentially relevan t factors in evaluating Dr. Rutter’s opinion.” Aplee. Res p. Br. at 27. As to this iss ue, the ALJ did not need to expressly discuss every releva nt factor. Like the claimant in Oldham v. Astrue , 509 F.3d 1254, 1258 ( 10th Cir. 2007), Johns on “cites no law, an d we have found none, requiring an ALJ’s decision to apply expressly each of th e six relevant factors in deciding what weight to gi ve a medical opinion.” Last, we agree with the Commi ssioner that we must reject Johns on’s alternative interpre tations of the eviden ce, because this would require us to reweigh the evidence and substitute ourjudgment for the Commissioner’s , which is something we cannot do. See Lax , 489 F.3d at 1084. C. Subjective Complaints According to Johnson, the ALJ u nreasonably discounted his testi mony about how his COPD impacted his ability to walk and stand and about t he severity of his pain. We conclude that the ALJ applied the correct law and his decision is supported by substantial evidence. At the hearing, Johnson testified that his knees “just have a l ot of pain in them. And I’ve got a dead nerve in my right leg that burns and stings and feels like I’m getting poked with needles all th e time. I just can’t stand on it very long.” Aplt. App., Vol. 2 at 43. More specifica lly, he said that he could s tand or walk without13 significant pain only fo r “[a]bout 15 minutes.” Id . The only way to ease the pain was to “sit down and get off of i t for a little while,” which w as “[a]bout 30 minutes at a time.” Id. The pain also caused problems w ith balance, and Johnson describ ed falling in his yard about a mont h before his hearing. As to hi s COPD, Johnson said “I just can’t breathe real good . It takes a lot out of me to t ry to breathe,” especially in high humidity and cold weather. Id . at 45. Evaluation of subjective symptoms is “peculiarly the province o f the [ALJ], and [we] will not upset such dete rminations when supported by s ubstantial evidence.” Hackett v. Barnhart , 395 F.3d 1168, 1173 (10th Cir. 2005) (internal quotation mark s omitted). Still, there are sever al factors the ALJ should cons ider in making such determinations. Under 20 C.F.R . § 404.1529(c)(4), an ALJ consi ders the claimant’s “statements about the intensity , persistence, and limiting effe cts of [his] symptoms, and . . . will evaluate [his] sta tements in relation to the obj ective medical evidence and other evidence in reaching a conclusion as to whether [he i s] disabled.” With respect to Johnson’s breathi ng problems, the objective med ical evidence established that he had “mild” to “moderate” symptoms, and seve ral clinical examination findings were normal with respect to his heart soun ds, lung sounds, breathing rhythm, and deep breathing. Other factors that the ALJ can c onsider in evaluating a claiman t’s subjective complaints include treatment, medication, and the frequency, du ration, and intensity of symptoms. See id . § 404.1529(c)(3)(ii),(iv)-(v). The record demonstrates, and the ALJ noted, that Johnson had only one acute pulmonary event, whi ch improved after14 out-patient treatment with a ne bulizer, and his cardio-pulmonar y status improved with medications and an apnea machine. The record similarly supports t he ALJ’s finding that Johnson’s knee pain and leg pain were less limiting than he claimed. Treatment records established that Johnson took ibuprofen intermitte ntly for joint pain. Several clinical examination findings were normal with resp ect to Johnson’s gait and strengt h, and he was able to walk at a “continuous moderate pace” during a six-minute walkin g test with no reported difficulties. Ap lt. App., Vol. 4 at 390. Last, Johnson either ignores the ALJ’s record-ba sed reasons fordiscounting Johnson’s subjective complaints, o r urges this court to reweigh the evidence and substitute our judgment for th e Commissioner’s, which we cannotdo. See Lax , 489 F.3d at 1084. D. Jobs At the final step in his disabi lity evaluation, the ALJ determi ned that Johnson was not disabled because althou gh he could not perform his past relevant work, there were two jobs existing in signi ficant numbers in the national e conomy that he could perform: janitor and machine p ackager. Johnson argues that th is conclusion is wrong for several re asons, and the case must remanded for furth er findings. We disagree. First, we reject Johnson’s hyper-t echnical reading of the trans cript and concomitant contention that the A LJ’s hypothetical to the VE di d not contain all of the limitations assessed by the ALJ—it did.15 Second, the jobs of janitor and machine packager do not involve concentrated exposure to pulmonary irritants or humidity. As to both jobs, the Dictionary of Occupational Titles (DOT) says t hat humid conditions are either not present or only present occasionally , and neither job involves concen trated exposure to such things as fumes, odors, dus t and gases. Although an ALJ must address “an apparent unresolved conflict between [voca tional expert] . . . evidence and the DOT” before relying on the VE’s expert testi mony, SSR 00-4p, 2000 WL 189870 4, at *2 (Dec. 4, 2000), there was no conflict betw een the VE’s testimony and the DOT. Third, giving Johnson the benefi t of any doubt that the janitorjob might involve concentrated exposure to humidity, there were still a s ignificant number of machine packager jobs in the n ational economy—17 8,000—that John son could perform. Relatedly, Johnson ar gues that the ALJ failed to cons ider a downward adjustment to the number of mach ine packager jobs available due to his advanced age, citing 20 C.F.R. Pt. 404, S ubpt. P, App. 2, § 202.06. Sec tion 202.06, however, applies only to light work. Andthe grids governing medium wor k would dictate “not disabled” for someone of Johnson’ s age and educational and voca tional background. Moreover, because Johnson had bot h strength limitations (medium work) and nonexertional limitations (pollu tants and humidity), and a find ing of “disabled” could not be made on his strength limita tions alone, “the rule(s) ref lecting the individual’s maximum residual strength capab ilities, age, education, and work experience provide a framework for consideration of how much the individual’s work capability is further diminished in terms of a ny types of jobs that would be contraindicated by the16 nonexertional limitations.” Id . § 200.00(e)(2). The ALJ followed § 200.00(E)(2) when he asked the VE whether j obs existed in the national econo my for an individual of Johnson’s age, education, wor k experience, and residual func tional capacity. We conclude that the ALJ properl y relied on the testimony of th e VE to conclude that there were a si gnificant number of jobs in the na tional economy that Johnson could perform w ith his limitations. IV. CONCLUSION We affirm the district court’s order upholding the Commissioner ’s denial of benefits.

Entered for the Court
Mary Beck Briscoe Circuit Judge