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 the district court’s order denying his 

application for Social Security disability benefits and supplemental security income 

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

we affirm. 

I. BACKGROUND 

Johnson, who had previously worked as a pipeline equipment oiler, a 

newspaper carrier, and a homebuilder and building contractor, filed for benefits in 

 * 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 This order and judgment is not binding precedent, 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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

March 1, 2019

Elisabeth A. Shumaker 

Clerk of Court
2 

July 2014. According to Johnson, he became disabled in January 2014, due to 

shortness of breath, various pulmonary and cardiac concerns, and arthritic-type knee 

pain. 

 Following the administrative denial of his claims, Johnson requested a hearing 

before an administrative law judge (ALJ). The ALJ concluded that he was not 

disabled and the Appeals Council denied review. On appeal to the district court, the 

parties consented to the jurisdiction of a magistrate judge, who affirmed the 

Commissioner’s decision. 

A. Medical Evidence 

 From January to March 2014, Johnson made several trips to urgent care with 

complaints of joint pain, a cough and shortness of breath due to acute bronchitis and 

asthma. The diagnoses included congestive heart failure, shortness of breath, 

arthritis, and edema. Johnson took ibuprofen for pain and used a nebulizer for his 

acute bronchitis. 

 In April 2014, Johnson was diagnosed with sleep apnea. His response to 

treatment—a CPAP machine—“was nothing less than spectacular,” Aplt. App., 

Vol. 4 at 332, and resulted in improved quality of sleep and daytime energy. 

 In May 2014, Johnson was evaluated at the Oklahoma Heart Institute. He had 

some edema in his legs, but his breathing was normal and his lungs were clear. He 

demonstrated normal muscle strength and all cardiac tests were normal or negative. 

He was advised to continue taking his medications, including diuretics for edema, 

and using his sleep apnea machine. 
3 

 May 2014 is also when Johnson went to James Rutter, M.D., “to establish 

care.” Id. at 366. Dr. Rutter noted that Johnson had “mild” chronic obstructive 

pulmonary disease (COPD), and “seem[ed] to be doing ok[ay] on” his medication. 

Id. Dr. Rutter’s examinations in May and June 2014, showed normal breathing 

rhythm and depth, normal heart and lung sounds, and no edema. Chest x-rays 

showed clear lungs and a normal heart size. A pulmonary function test performed on 

June 26, 2014, showed “moderate” obstruction, id. at 389, with Johnson maintaining 

oxygen levels of 94% to 97% on room air while walking for six minutes at a 

“continuous, moderate pace,” id. at 390. 

 When Johnson saw Dr. Rutter in July 2014, Johnson said that ibuprofen helped 

his joint pain, and reported exercising once or twice a week. Dr. Rutter encouraged 

him do “mild to moderate walking to help with [his] pulmonary status.” Id. at 362. 

Just a week later, however, Dr. Rutter filled out a form in connection with Johnson’s 

disability proceedings titled “MEDICAL SOURCE OPINION OF RESIDUAL 

FUNCTIONAL CAPACITY.” Id. at 387. Dr. Rutter checked off and/or circled 

several items concerning Johnson’s purported work limitations in 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 lifting restrictions. He 

also said that Johnson needed to avoid dust, chemicals, and high humidity. Although 

he noted that Johnson’s obesity exacerbated his physical conditions, he did not add 
4 

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 signed a “Handicapped Parking Placard 

Application” for Johnson. Id. at 399. As grounds, Dr. Rutter checked a box stating 

that Johnson “[c]annot walk 200 feet without stopping to rest.” Id. 

 At a check-up in August 2014, Johnson reported knee pain, but Dr. Rutter did 

not prescribe any pain medications. Johnson’s exhaling was prolonged with 

decreased force, but his breathing rhythm and depth were normal, and his heart and 

lung sounds were also normal. Dr. Rutter continued Johnson’s medications. 

 X-rays taken of Johnson’s knees on October 1, 2014, were primarily normal 

and a pulmonary function test on October 2, 2014, showed “minimal” obstruction, 

id. at 415. 

Nevertheless, Johnson told David Wiegman M.D., who performed a 

consultative physical examination 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 “more than about 20 minutes.” Id. at 422. Further, Johnson 

estimated that he could “lift [no] more than about 50 pounds.” Id. 

Dr. Wiegman found that Johnson had full strength in his arms, legs, and grip, 

and a normal range of motion of his arms and legs. “Back and neck exams were 

normal with normal range of motion and no significant pain.” Id. at 423. “There is 

no edema.” Id. Dr. Wiegman also observed that Johnson “had a normal symmetric 
5 

steady gait. He did not have any problems walking in and out [of] the office today, 

[although] [h]e did have difficulty walking on his toes and heels separately.” Id. 

The state agency medical consultant, James Metcalf, M.D., reviewed the 

medical evidence and issued a report on October 22, 2014. He opined that Johnson 

had the physical ability to lift and/or carry 50 pounds occasionally and 25 pounds 

frequently, stand and/or walk about six hours in an eight-hour workday, and sit about 

six hours in an eight-hour workday. Essentially, Dr. Metcalf opined that Johnson 

could perform “medium work,” which “involves lifting no more than 50 pounds at a 

time with frequent lifting or carrying of objects weighing up to 25 pounds.” 

20 C.F.R. § 404.1567(c).1

 Dr. Metcalf further opined that Johnson should avoid 

concentrated exposure to various environmental conditions such as fumes, odors, 

dusts, gases, poor ventilation, and humidity. 

 At an office visit in December 2014, Dr. Rutter told Johnson to continue his 

medications and come back in six months. Later that month, state agency medical 

consultant William Oehlert, M.D., reviewed the updated medical evidence and 

reaffirmed that Johnson could perform “medium work,” but should avoid prolonged 

exposure to various pulmonary irritants and humidity. Dr. Oehlert expressly 

considered and rejected Dr. Rutter’s July 21, 2014, opinion that contained the severe 

 1

 Citations to 20 C.F.R. part 404, which cover disability income benefits, have 

parallel citations at 20 C.F.R. part 416, which cover supplemental security income 

benefits. This order and judgment does not cite the parallel supplemental security 

income regulations. 
6 

restrictions because “[t]he opinion is without substantial support from other evidence 

of record, which renders it less persuasive.” Aplt. App., Vol. 2 at 119. 

 The relevant medical evidence ends with Dr. Rutter’s notes from Johnson’s 

June 9, 2015, office visit during which he told Johnson to continue his medications 

and come back in six months. 

B. Johnson’s Testimony 

 According to Johnson, he stopped working as a pipeline equipment oiler, 

where he had to stand, walk, climb, 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 walk for only about 15 minutes before his right leg started 

to ache. High humidity was a problem for him as well, along with dust and grass 

clippings. He spent most 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 the severe impairments of COPD,

hypertension, obesity, and a history of knee pain, and could perform “less than the 

full range of medium work,” id. at 26. Specifically, the ALJ found that Johnson had 

the residual functional capacity (RFC) to “occasionally lift and/or carry 50 pounds, 

frequently lift and/or carry 25 pounds, stand and/or walk at least 6 hours in an 8-hour 

workday, and sit at least 6 hours in an 8-hour workday. [He] should avoid 

concentrated exposure to such things as fumes, odors, dust and gases.” Id. In his 
7 

hypothetical question to the vocational expert (VE), the ALJ acknowledged that 

Johnson also could not perform work involving “concentrated exposure to humidity.” 

Id. at 54. 

 The ALJ discounted Johnson’s subjective complaints of disability because his 

testimony was inconsistent with the evidence. Also, the ALJ gave “little weight” to 

Dr. Rutter’s July 24, 2014, opinion, primarily because it was unsupported and 

inconsistent with the evidence. Id. at 29. At step five, and based on the VE’s 

testimony, the ALJ found that there were jobs existing in significant numbers in the 

national economy, namely janitor and machine packager, that Johnson could perform, 

and he therefore was not disabled. 

II. STANDARD OF REVIEW 

 “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.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) 

(internal quotation marks omitted). 

Substantial evidence is such relevant evidence as a reasonable mind might 

accept as adequate to support a conclusion. It requires more than a scintilla, 

but less than a preponderance. We consider whether the ALJ followed the 

specific rules of law that must be followed in weighing particular types of 

evidence in disability cases, but we will not reweigh the evidence or 

substitute our judgment for the Commissioner’s. 

Id. (citations and internal quotation marks omitted). 

Moreover, “[t]he possibility of drawing two inconsistent conclusions from the 

evidence does not prevent an administrative agency’s findings from being supported 
8 

by substantial evidence.” Id. (internal quotation marks omitted). “We may not 

displace the agency’s choice between two fairly conflicting views, even though the 

court would justifiably have made a different choice had the matter 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 formulating his RFC, particularly its effects in combination 

with his COPD. We disagree. 

 Social Security Ruling 02-1p, 2002 WL 34686281 (Sept. 12, 2002), provides 

guidance on how an ALJ should evaluate a claimant’s obesity. It does not mandate 

any additional restrictions or a finding of disability; rather, it provides that in 

assessing RFC, an ALJ should consider “any functional limitations resulting from the 

[claimant’s] obesity,” in addition 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 prevent 

ambulation, reaching, or postural maneuvers. It does, though, in 

combination with [his] other impairments, somewhat reduce [his] ability to 

stand, walk, lift and carry. A reduction in capacity to work at the medium 

exertional range with some further appropriate work restrictions is therefore 

warranted. These limitations are accounted for in the residual functional 

capacity as determined herein. 

Aplt. App., Vol. 2 at 26. Those “further appropriate work restrictions” preclude work 

environments where Johnson would have “concentrated exposure to such things as 
9 

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 opinions the ALJ in some 

instances afforded “great weight,” id. at 29, noted Johnson’s height, weight, and body 

mass index in reaching their conclusions 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 no error where, among 

other things, the ALJ’s RFC determination was supported by an examining 

physician’s report that considered 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, the ALJ afforded “little weight” to the July 21, 

2014, form filled out by Dr. Rutter that contained the severe limitations previously 

discussed. Johnson argues that the ALJ failed to give this opinion from his treating 

physician the “deference to which it is entitled.” Aplt. Opening Br. at 18. This is 

another way of saying that the ALJ should have afforded Dr. Rutter’s opinion 

controlling weight.2

 Again, we disagree. 

 Generally, an ALJ gives more weight to the opinion of the claimant’s treating 

physician. 20 C.F.R. § 404.1527(c)(2) (“If . . . a treating source’s opinion on the 

 2

 Based on the unanimous opinions of Drs. Rutter, Metcalf, and Oehlert that 

Johnson should avoid concentrated exposure to various pulmonary irritants and 

humidity, the ALJ placed this limitation on his work environment. 
10 

issue(s) of the nature and severity of your impairments(s) is well-supported by 

medically acceptable clinical and laboratory diagnostic techniques and is not 

inconsistent with the other substantial evidence in your case record, we will give it 

controlling weight.”). When, however, an ALJ gives something less than controlling 

weight to a treating physician’s opinion, he is required to apply certain factors “in 

determining the weight to give the opinion.” Id. These factors include (1) the length 

of the treatment relationship and (2) the nature and extent of the treatment 

relationship. See id. § 404.1527(c)(2)(i),(ii). “The more a medical source presents 

relevant evidence to support an opinion, particularly medical signs and laboratory 

findings, the more weight we will give that medical opinion. The better an 

explanation a source provides for an opinion, the more weight we will give that 

opinion.” Id. § 404.1527(c)(3). 

 The ALJ gave Dr. Rutter’s opinion “little weight” primarily because he did not 

“provide any objective findings or identify any specific medical 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 did not have a lengthy relationship. Second, on 

the form that Dr. Rutter completed that contained the checkmarks and circles noting 

Johnson’s limitations, he failed to answer the question about what medical findings 

supported his assessment. Third, Dr. Rutter did nothing more than check a box on an 

application for a handicapped placard. This is not the type of evidence on which to 
11 

base a disability finding, particularly in light of the fact that it is inconsistent with the 

medical evidence. 

Also, Dr. Rutter’s opinion is not corroborated by his own treatment notes or 

the other medical evidence. In this regard, we note that “[g]enerally, the more 

consistent an opinion is with the record as a whole, the more weight we will give to 

that opinion.” § 404.1527(c)(4). 

 As a preliminary matter, the limitations Dr. Rutter noted on Johnson’s ability 

to stand, walk, lift, and carry were necessarily based on breathing problems, because 

he specifically stated they were not due to pain. But as the ALJ explained, the 

“extreme exertional limitations [noted by Dr. Rutter] are not supported by 

[Johnson’s] moderate pulmonary defects.” Aplt. App., Vol. 2 at 29. 

 For example, Dr. Rutter’s notes characterized Johnson’s COPD as “mild.” Id., 

Vol. 4 at 366. Further, the tests ordered by Dr. Rutter showed Johnson’s lungs were 

clear, his pulmonary function was only “moderate[ly]” obstructed, id., at 389, and he 

was able to maintain oxygen saturation levels of 94% to 97% on room air while 

walking at a “continuous, moderate pace” for six minutes,” id. at 390. 

 Likewise, the ALJ reasonably discounted Dr. Rutter’s opinion to the extent 

that it limited Johnson to frequently lifting and/or carrying 15 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 treating physician’s opinion about how much a claimant can 

lift where the opinion is not supported by any objective clinical findings and the 
12 

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 various other potentially relevant factors in evaluating 

Dr. Rutter’s opinion.” Aplee. Resp. Br. at 27. As to this issue, the ALJ did not need 

to expressly discuss every relevant factor. Like the claimant in Oldham v. Astrue, 

509 F.3d 1254, 1258 (10th Cir. 2007), Johnson “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.” 

 Last, we agree with the Commissioner that we must reject Johnson’s 

alternative interpretations of the evidence, because this would require us to reweigh 

the evidence and substitute our judgment 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 unreasonably discounted his testimony about 

how his COPD impacted his ability to walk and stand and about the 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 lot 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 the time. I just can’t stand on it very long.” Aplt. 

App., Vol. 2 at 43. More specifically, he said that he could stand or walk without 
13 

significant pain only for “[a]bout 15 minutes.” Id. The only way to ease the pain 

was to “sit down and get off of it for a little while,” which was “[a]bout 30 minutes at 

a time.” Id. The pain also caused problems with balance, and Johnson described 

falling in his yard about a month before his hearing. As to his COPD, Johnson said 

“I just can’t breathe real good. It takes a lot out of me to try to breathe,” especially 

in high humidity and cold weather. Id. at 45. 

Evaluation of subjective symptoms is “peculiarly the province of the [ALJ], 

and [we] will not upset such determinations when supported by substantial evidence.” 

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

omitted). Still, there are several factors the ALJ should consider in making such 

determinations. Under 20 C.F.R. § 404.1529(c)(4), an ALJ considers the claimant’s 

“statements about the intensity, persistence, and limiting effects of [his] symptoms, 

and . . . will evaluate [his] statements in relation to the objective medical evidence 

and other evidence in reaching a conclusion as to whether [he is] disabled.” 

With respect to Johnson’s breathing problems, the objective medical evidence 

established that he had “mild” to “moderate” symptoms, and several clinical 

examination findings were normal with respect to his heart sounds, lung sounds, 

breathing rhythm, and deep breathing. 

Other factors that the ALJ can consider in evaluating a claimant’s subjective 

complaints include treatment, medication, and the frequency, duration, 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, which improved after 
14 

out-patient treatment with a nebulizer, and his cardio-pulmonary status improved 

with medications and an apnea machine. 

The record similarly supports the ALJ’s finding that Johnson’s knee pain and 

leg pain were less limiting than he claimed. Treatment records established that 

Johnson took ibuprofen intermittently for joint pain. Several clinical examination 

findings were normal with respect to Johnson’s gait and strength, and he was able to 

walk at a “continuous moderate pace” during a six-minute walking test with no 

reported difficulties. Aplt. App., Vol. 4 at 390. 

Last, Johnson either ignores the ALJ’s record-based reasons for discounting 

Johnson’s subjective complaints, or urges this court to reweigh the evidence and 

substitute our judgment for the Commissioner’s, which we cannot do. See Lax, 

489 F.3d at 1084. 

D. Jobs 

At the final step in his disability evaluation, the ALJ determined that Johnson 

was not disabled because although he could not perform his past relevant work, there 

were two jobs existing in significant numbers in the national economy that he could 

perform: janitor and machine packager. Johnson argues that this conclusion is 

wrong for several reasons, and the case must remanded for further findings. We 

disagree. 

First, we reject Johnson’s hyper-technical reading of the transcript and 

concomitant contention that the ALJ’s hypothetical to the VE did 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 that humid conditions are either not present or only 

present occasionally, and neither job involves concentrated exposure to such things

as fumes, odors, dust and gases. Although an ALJ must address “an apparent 

unresolved conflict between [vocational expert] . . . evidence and the DOT” before 

relying on the VE’s expert testimony, SSR 00-4p, 2000 WL 1898704, at *2 (Dec. 4, 

2000), there was no conflict between the VE’s testimony and the DOT. 

Third, giving Johnson the benefit of any doubt that the janitor job might 

involve concentrated exposure to humidity, there were still a significant number of 

machine packager jobs in the national economy—178,000—that Johnson could 

perform. Relatedly, Johnson argues that the ALJ failed to consider a downward 

adjustment to the number of machine packager jobs available due to his advanced 

age, citing 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 202.06. Section 202.06, however, 

applies only to light work. And the grids governing medium work would dictate “not 

disabled” for someone of Johnson’s age and educational and vocational background. 

Moreover, because Johnson had both strength limitations (medium work) and 

nonexertional limitations (pollutants and humidity), and a finding of “disabled” could 

not be made on his strength limitations alone, “the rule(s) reflecting the individual’s 

maximum residual strength capabilities, age, education, and work experience provide 

a framework for consideration of how much the individual’s work capability is 

further diminished in terms of any types of jobs that would be contraindicated by the 
16 

nonexertional limitations.” Id. § 200.00(e)(2). The ALJ followed § 200.00(E)(2) 

when he asked the VE whether jobs existed in the national economy for an individual 

of Johnson’s age, education, work experience, and residual functional capacity. 

We conclude that the ALJ properly relied on the testimony of the VE to 

conclude that there were a significant number of jobs in the national economy that 

Johnson could perform with 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