UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ HERBERT GERARD JONES, Plaintiff - Appellant,

v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant - Appellee. No. 15-3193 (D.C. No. 6:14- CV-01311-JWL) (D. Kan.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before BRISCOE , BACHARACH , and McHUGH , Circuit Judges.

________________ _________________ Herbert Gerard Jones appeals from the district court’s or der affirming the Commissioner’s decision denying his appli cation for Social Security disability benefits. Mr. Jones applie d for these benefits with a protected filing date of July 12, 2011 and a date last insured of December 31, 201 1. He alleged that he became disabled on June 9, 2010 due to hi s need for a pacemake r, sleep apnea, and

* After examining the briefs and appella te record, this panel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### May 20, 2016
Elisabeth A. Shumaker Clerk of Court2 swelling in his legs. The agency de nied his application initially and on reconsideration. On November 30, 2012, Mr. Jones re ceived a de novo hearing before an administrative law judge (A LJ). The ALJ determined that he had the severe impairments of obesity, peripheral artery di sease, and cardiac dysrhythmias but that his impairments, considered singly or in combination, did not meet or medically equal a listed impairment. The ALJ asse ssed his residual functional capacity (RFC) as follows: [T]hrough the date last insured, the claimant had the residual functional capacity to perform light work as defi ned in 20 CFR 404.1567(b) in that he can lift 20 pounds occasionally and 10 pounds frequently; can stand and/or walk about 6 hours out of an 8 hour workday, with normal breaks; can sit for about 6 hours out of an 8 hour wo rkday, with normal breaks; and push and/or pull the same weights; except the claimant must alternate between sitting, standing, and walking every 20 minutes; cannot use foot controls; and cannot reach overhead with the left arm. R. at 36 (boldface omitted). The ALJ found that Mr. Jones could retu rn to his past relevant work as a program worker and was therefore not un der a disability. The Appeals Council denied review, making the ALJ’s deci sion the Commissioner’s final decision. “We review the Commissioner’s decision to determine whether the factual findings are supported by substa ntial evidence in the record and wh ether the correct legal standards were applied.” Wilson v. Astrue , 602 F.3d 1136, 1140 (10th Cir. 2010). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (internal quotation marks omitted).3 The Commissioner follows a five-ste p sequential evaluation process to determine whether a clai mant is disabled. See Williams v. Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988) (describing proce ss). The claimant bears the burden of establishing a prima facie case of disability at steps one through four. See id. at 751 n.2. This case was decided at step four, and the burden of proving that he could not perform his past relevant work therefore remained with Mr. Jones. Because he is proceeding pro se in this appeal we liberally construe Mr. Jones’s filings but do not serve as his advocate. See Hall v. Bellmon , 935 F.2d 1106, 1110 (10th Ci r. 1991). We consider only those arguments adequately presented for our review, Chambers v. Barnhart , 389 F.3d 1139, 1142 (10th Cir. 2004), and do not consider is sues raised for the firs t time in a reply brief, Cordova v. City of Albuquerque , 816 F.3d 645, 650 n. 1 (10th Cir. 2016). 1. RFC Assessment Mr. Jones argues that the AL J failed to link her RFC a ssessment to the medical evidence and failed to show how the evidence supported he r findings. An “ALJ is charged with carefully considering all the relevant evidence and linking [her] findings to specific evidence.” Barnett v. Apfel , 231 F.3d 687, 689 (10th Cir. 2000). Her “RFC assessment must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts . . . and nonmedical evidence.” SSR 96-8p, 1996 WL 37 4184, at *7 (July 2, 1996). The ALJ’s narrative discussion of her RF C assessment appears on pages five through eight of her decision. See R. at 36-39. In this narr ative, the ALJ thoroughly4 discussed the medical evidence, Mr. J ones’s testimony, and the medical and non-medical opinions. She explained how specific record evidence supported individual elements of her RFC assessment. The ALJ also gave reasons for rejecting both lesser and greater limita tions on specific functions th an those she adopted as part of the assessment. She sufficien tly articulated the reasons supporting her decision and adequately tied the findings in her RFC assessment to the record evidence. Mr. Jones’s argument on th is point therefor e lacks merit. 2. Evaluation of Christie Yourdon’s Medical Opinion The ALJ gave “only some weight” to th e medical opinion of Christie Yourdon, PAC, a physician’s assistan t who treated Mr. Jones. Id. at 38. Mr. Jones argues the ALJ should have (1) accepted Ms. Yourdon’s c onclusion that he needed to frequently elevate his legs during the workday; (2 ) considered and addressed the required factors for assessing a physician’s assi stant’s opinion; and (3) re-contacted Ms. Yourdon for clarific ation of her opinion. The ALJ rejected Ms. Yourdon’s requireme nt that Mr. Jones must frequently elevate his legs during the workday. She noted that Mr. Jones’s edema was generally described as mild or minimal in the me dical record, had improved with treatment, and appeared to be well-cont rolled with medication and the use of medical stockings. See id. at 37-38. She thus adequately e xplained her rejection of the purported limitation. Our record revi ew reveals that the reasons she gave were supported by substantial evidence.5 As a physician’s assistant, Ms. Your don was not an “acceptable medical source” under the Social Security regulations. See 20 C.F.R. § 404.1513(d)(1) (identifying physician’s assistants as “oth er sources” rather than “acceptable medical sources”). Although the ALJ should evaluate opinions fro m medical sources who are not acceptable medical sources by using the applicable fact ors for weighing opinion evidence, see SSR 06-03p, 2006 WL 2329939, at *4 (Aug. 9, 2006), not every factor will apply in each case, id. at 5, and “the ALJ’s decision is sufficient if it permits us to follow the adjudi cator’s reasoning,” Keyes-Zachary v. Astrue , 695 F.3d 1156, 1164 (10th Cir. 2012) (internal quotation marks omitted). Th e ALJ essentially accepted Ms. Yourdon’s limitations on lifting, sitting, and standing, finding them “generally consistent or less restrictiv e than the limitations” in her RFC assessment. R. at 38. But she rejected Ms. Yourdon’ s requirement that Mr. Jone s must frequently elevate his legs. As we have explained, the ALJ gave adequate reasons for rejecting that limitation, based on substantial evidence in the record. Thus, the ALJ adequately addressed Ms. Yourdon’s opinion. Nor was the ALJ required to re-contact Ms. Yourdon for clarification of her opinion. Under the regulations in eff ect at the time of the ALJ’s decision, 1 if the ALJ determined that the evidence was inconsiste nt or insufficient to permit her to determine whether Mr. Jones was disabled, she could have taken several different actions to enhance the record, includi ng re-contacting his medical sources. See

1 Mr. Jones cites an outda ted regulation, which provided the agency with less discretion than the currently applicable regulation to reso lve conflicts, ambiguities, or deficiencies in the record. See Aplt. Opening Br. at 4.6 20 C.F.R. § 404.1520b(c) (2012). But Mr. Jones fails to show that inconsistent or insufficient evidence pr evented the ALJ from determini ng whether he was disabled. The ALJ therefore did not err by fa iling to re-contact Ms. Yourdon. 3. Step-Four Determination Mr. Jones next argues that the ALJ failed to make pr oper findings of fact at step four of the analysis concerning his ability to return to his past relevant work. He contends that the ALJ merely adopted the analysis of these issues provided by the vocational expert (VE), without ma king her own requi red findings. “Step four of the sequential analysis . . . is comprised of three phases.” Winfrey v. Chater , 92 F.3d 1017, 1023 (10t h Cir. 1996). “In the first phase, the ALJ must evaluate a claimant’s physical and mental . . . RFC . . . and in the second phase, [she] must determine the physi cal and mental demands of th e claimant’s past relevant work.” Id. “In the final phase, the ALJ determ ines whether the claimant has the ability to meet the job demands found in phas e two despite the . . . limitations found in phase one.” Id. “At each of these phases, the AL J must make specific findings.” Id. Mr. Jones contends that the ALJ failed to make proper findings at phases two and three of the analysis. Concer ning these phases, the ALJ stated: In comparing [Mr. Jones’s RFC] with the physical and mental demands of [his past relevant] work, the undersigned finds that [he] was able to perform it as actually and generally performed . The [VE] indicated [he] could perform this job under the [RFC] found in this case. This corresponds with the Dictionary of Occupational Titles [(DOT)], which indica tes this job is performed at the light exertional level, with no overhead reaching [or] use of foot controls. Although the [DOT ] does not provide specific information7 on alternation of positions, nothing in the [DOT] contradicts the [VE’s] testimony on this issue. Furthermore, the requirements of this job, both as indicated in the [DOT] and as describe d in [Mr. Jones’s] testimony, appear compatible with said limitation on alte rnation. Therefore, the undersigned finds the [VE’s] testimony on this issue credible. Based on this information, the undersigned finds [M r. Jones] can return to past relevant work under this [RFC]. R. at 40. The ALJ made adequate findings at pha se two, concluding that Mr. Jones’s past relevant work required the ability to wo rk at the light exertional level, with no overhead reaching or use of f oot controls, and with the ab ility to alternate positions. These phase-two findings tracked the specifi cs of the ALJ’s RFC assessment, which included the limitations relevant to pha se one of the step-four analysis. See id. at 36. Because the ALJ’s analysis a nd conclusion addressed Mr. Jones’s ability to satisfy the job demands found in phase two, given hi s phase-one limitations, it also satisfied her responsibility at phase th ree. In addition, the ALJ did not merely delegate her analytical duties to the VE but permissibly “quoted th e VE’s testimony approvingly, in support of [her] own findings at phase s two and three of the analysis.” Doyal v. Barnhart , 331 F.3d 758, 761 (10th Ci r. 2003). In sum, Mr. J ones fails to show that the ALJ erred in her step-four analysis. 4. Credibility Determination Mr. Jones argues that the ALJ improperl y assessed his credibility. His only specific complaint about her cr edibility analysis appears to be that she disregarded his testimony concerning the limitations im posed by his use of a pacemaker and his sleep apnea. In her decisi on, the ALJ listed the regulat ory factors used to assess8 credibility, then stated that Mr. Jones “generally reports symptoms, such as swelling, in excess of those described in [his] treatm ent records. He al so reports problems, such as falling asleep when sitting for too long, which he does not report to his providers.” R. at 37. Ba sed on these discrepancies and the medical r ecord, the ALJ found Mr. Jones’s allegations “only partially credible.” Id. The ALJ then thoroughly analyzed the medical record , comparing Mr. Jones’s subj ective complaints to his statements to his treatment providers and the objective medical evidence. Id. at 37-38. The ALJ addressed Mr. Jones’s sl eep apnea complaint as follows: [Mr. Jones] has been diagnosed with sl eep apnea. [He] alleges he cannot stay awake. However, he was starte d on a CPAP machine in July 2010, around the time of his alleged onset da te. He reported feeling much better after beginning treatment, has no compla ints of snoring or nasal patency, falls asleep more easily and does no t awaken during the night for any reason. He indicated he felt rested in the morning without headaches or congestion, and his provider fe lt [he] was adequately treated. R. at 34 (citations omitted). Mr. Jones does not identify any error in this analysis of his sleep apnea complaint. Nor does he point to any sp ecific statements he made concerning his pacemaker that the ALJ ignored . Instead, he refers us to a medical record from 1997 that was not before the ALJ or presented to the Appeals Council, but was attached to his district-court brief. In this record, dated December 11, 1997, Dr. Alvin Wolfe considered Mr. Jones’s request for a “release to work ” after implantation of his pacemaker. Id. at 550. He described Mr. Jones as “feeli ng good,” with “no sym[ptoms] now,” which9 made him “happy.” Id. But he noted that a differe nt doctor “called & he indicated that [Mr. Jones] can work at no [height s], restricted stooping and bending, lifting & working overhead.” Id. The record concluded that Mr. Jones was “[r]eleased to work.” Id. The ALJ could not have “ignored” this re cord because it was not part of the medical record submitted to her. But we construe Mr. Jones’s argument as seeking reversal of the district cour t’s refusal to remand to the Commissioner to consider the 1997 record. A reviewing court “may at any time order additional evidence to be taken before the Commissioner of Social S ecurity, but only upon a showing that there is new evidence which is material and th at there is good cause for the failure to incorporate such evidence into the record in a prior proceeding.” 42 U.S.C. § 405(g). The district court denied a remand unde r this provision because it determined Mr. Jones had not shown good cause for failing to obtain a nd present the record at the ALJ hearing. We review this d ecision for an abuse of discretion. See Wilson , 602 F.3d at 1140. The district court did not abuse its discretion by denying a remand to the Commissioner. In an effort to explain hi s failure to submit the record to the ALJ, Mr. Jones complains that the ALJ surprised him and his counsel by unexpectedly discounting some of his limita tions in her written decision. Until he received that decision, he argues, he was unaware that he needed to submit additional documentation in support of his claim. But even after receiving the ALJ’s decision, he did not submit the 1997 record, or a ny other new evidence, to the Appeals10 Council. See id. at 1149-50 (stating claimant must show good cause for failing to submit new evidence to the ALJ and the App eals Council). Thus, he did not satisfy the “good cause” requirement for a remand. 2
5. Motion to Alter or Amend Mr. Jones argues that the district c ourt erred by denying his “Motion to Alter or Amend Judgment and/or to Amend or Make Additional Findings and/or to Set Aside Finding(s) and For New Trial.” See R. at 593-98, 607-09. His only argument on this point in his opening brief refers us to what is “argued in said pleading” or “set out [in] said pleading.” Aplt. Opening Br. at 5. This is not adequate appellate argument, particularly wher e Mr. Jones’s motion raised eight claims of error, supplemented by a separate reply brief in district court. See, e.g. , Fulghum v. Embarq Corp. , 785 F.3d 395, 410 (10th Cir.) (deeming appellate argument concerning denial of moti on for reconsideration waived , where appellants merely incorporated by reference arguments made a nd documents filed in the district court

2 The district court found that the 1997 record was “material” within the meaning of § 405(g). “Eviden ce is material if the [Com missioner’s] decision might reasonably have been different had the new evidence been be fore him when his decision was rendered.” Wilson , 602 F.3d at 1148 (brackets and internal quotation marks omitted). We have some doubt th e 1997 record was material within this definition. First, it predat ed Mr. Jones’s alleged onset date by over a decade. Second, it is unclear from the record whether the post- surgical restrictions on stooping, bending, lifting, a nd working overhead, which were expressed only in a hearsay report about what another doctor said over the telephone, were intended to be permanent. Finally, as th e Commissioner points out, Mr . Jones actually performed his past relevant work as a program worker in 2001 to 2003, after the 1997 restrictions were imposed.11 and did not specifically explain how de nial was an abuse of discretion), cert. denied , 136 S. Ct. 537, and 136 S. Ct. 538 (2015). We therefore deem this argument waived. 6. Mrs. Jones’s Statement Mr. Jones’s wife submitted a third- party function report in support of his claim. R. at 210-17. Among other things, she stated that he “[f]alls asleep often during the day,” that he cannot “reach, squat, kneel or lif t without difficulty,” and that his “pacemaker limi ts physical activity.” Id. at 211. Mr. Jone s complains that the ALJ “arbitrarily discounted” this evidence. Ap lt. Opening Br. at 7. But the ALJ considered and thoroughly discussed the statement, finding among other things that Mrs. Jones’s lay opinions based on casual observati on did not outweigh the accumulated medical evidence. See R. at 39. The ALJ pe rmissibly assigned little weight to the third-pa rty function report. 7. Postural Limitations in Dr. Alvarez’s Opinion Mr. Jones complains in summary fash ion that his “physic ian, Dr. Alvarez submitted his opinion that I could do certain tasks occasiona lly” and then opines that “[y]ou cannot obtain and maintain subs tantial employment when you can only perform tasks occasionally.” Ap lt. Opening Br. at 7. He a ppears to have raised this issue in district court for the first time in his repl y brief in support of his reconsideration motion. See R. at 608. The district cour t did not specifically discuss the argument, but elsewhere in its decision cited the ge neral rule that arguments raised for the first time in a reply brief are waived. Id. at 615. Thus, the argument12 was not adequately preserved and ruled up on in district court, and we need not consider it. See Cordova , 816 F.3d at 650 n.1. But even if we were to c onsider it, he fails to show reversible error. The ALJ discussed this aspect of Dr. Alvarez’s opinion, reasoning as follows: Dr. Alvarez also indicated postural, manipulative, and environmental limitations, as well as lim itations on hearing, seei ng, and speaking. The “frequent” limitations have no support in the reco rd and do not correspond to any of his impairments or reported symptoms. The “occasional” limitations, on climbing, stooping, crouc hing, and crawling, also do not correspond to [Mr. Jones’s] impai rments or his related symptoms. Likewise, the environmental limi tations do not correspond to his impairments or reported symptoms. On this basis, the undersigned gives this opinion only some weight in assessing [his] limitations. R. at 39 (citation omitted) (emphasis added). Mr. Jones fails to demonstrate th at this analysis was erroneous. 3
8. Conclusion We affirm the judgment of the district court.

Entered for the Court
Carolyn B. McHugh Circuit Judge

3 Dr. Alvarez stated that Mr. Jones could only occasionally kneel, a limitation the ALJ did not address in the paragraph we have cited. But Mr. Jones does not make any specific argument th at he needed to kneel to perform his past relevant work. We note also that Mr . Jones also admitted in a Work History Report filed at the agency level that his past relevant wo rk as a program worker did not require him to climb, stoop, kneel , crouch, or crawl. See R. at 228, 232. Thus, any error concerning his ability to perfo rm those functions as part of his past relevant work as he actually performed it, likely was harmless.