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 order affirming the 

Commissioner’s decision denying his application for Social Security disability 

benefits. Mr. Jones applied for these benefits with a protected filing date of 

July 12, 2011 and a date last insured of December 31, 2011. He alleged that he 

became disabled on June 9, 2010 due to his need for a pacemaker, sleep apnea, and 

 *

 After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially 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 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 

May 20, 2016

Elisabeth A. Shumaker 

Clerk of Court
2 

swelling in his legs. The agency denied his application initially and on 

reconsideration. 

On November 30, 2012, Mr. Jones received a de novo hearing before an 

administrative law judge (ALJ). The ALJ determined that he had the severe 

impairments of obesity, peripheral artery disease, and cardiac dysrhythmias but that 

his impairments, considered singly or in combination, did not meet or medically 

equal a listed impairment. The ALJ assessed 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 defined 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 workday, 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 return to his past relevant work as a 

program worker and was therefore not under a disability. The Appeals Council 

denied review, making the ALJ’s decision the Commissioner’s final decision. 

“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.” 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-step sequential evaluation process to 

determine whether a claimant is disabled. See Williams v. Bowen, 844 F.2d 748, 

750-52 (10th Cir. 1988) (describing process). 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 Cir. 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 issues raised for the first 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 ALJ failed to link her RFC assessment to the medical 

evidence and failed to show how the evidence supported her 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 374184, at *7 (July 2, 1996). 

The ALJ’s narrative discussion of her RFC assessment appears on pages five 

through eight of her decision. See R. at 36-39. In this narrative, the ALJ thoroughly 
4 

discussed the medical evidence, Mr. Jones’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 limitations on specific functions than those she adopted as 

part of the assessment. She sufficiently articulated the reasons supporting her 

decision and adequately tied the findings in her RFC assessment to the record 

evidence. Mr. Jones’s argument on this point therefore lacks merit. 

2. Evaluation of Christie Yourdon’s Medical Opinion

The ALJ gave “only some weight” to the medical opinion of Christie Yourdon, 

PAC, a physician’s assistant who treated Mr. Jones. Id. at 38. Mr. Jones argues the 

ALJ should have (1) accepted Ms. Yourdon’s conclusion that he needed to frequently 

elevate his legs during the workday; (2) considered and addressed the required 

factors for assessing a physician’s assistant’s opinion; and (3) re-contacted 

Ms. Yourdon for clarification of her opinion. 

The ALJ rejected Ms. Yourdon’s requirement 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 medical record, had improved with treatment, 

and appeared to be well-controlled with medication and the use of medical stockings. 

See id. at 37-38. She thus adequately explained her rejection of the purported 

limitation. Our record review reveals that the reasons she gave were supported by 

substantial evidence. 
5 

As a physician’s assistant, Ms. Yourdon 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 “other sources” rather than “acceptable medical 

sources”). Although the ALJ should evaluate opinions from medical sources who are 

not acceptable medical sources by using the applicable factors 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 adjudicator’s reasoning,” Keyes-Zachary v. Astrue, 695 F.3d 1156, 1164 

(10th Cir. 2012) (internal quotation marks omitted). The ALJ essentially accepted 

Ms. Yourdon’s limitations on lifting, sitting, and standing, finding them “generally 

consistent or less restrictive than the limitations” in her RFC assessment. R. at 38. 

But she rejected Ms. Yourdon’s requirement that Mr. Jones 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 effect at the time of the ALJ’s decision,1

 if the ALJ 

determined that the evidence was inconsistent or insufficient to permit her to 

determine whether Mr. Jones was disabled, she could have taken several different 

actions to enhance the record, including re-contacting his medical sources. See 

 1

 Mr. Jones cites an outdated regulation, which provided the agency with less 

discretion than the currently applicable regulation to resolve 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 prevented the ALJ from determining whether he was disabled. 

The ALJ therefore did not err by failing to re-contact Ms. Yourdon. 

3. Step-Four Determination

Mr. Jones next argues that the ALJ failed to make proper 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 making her own required findings. 

“Step four of the sequential analysis . . . is comprised of three phases.” 

Winfrey v. Chater, 92 F.3d 1017, 1023 (10th 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 physical and mental demands of the claimant’s past relevant 

work.” Id. “In the final phase, the ALJ determines whether the claimant has the 

ability to meet the job demands found in phase two despite the . . . limitations found 

in phase one.” Id. “At each of these phases, the ALJ must make specific findings.” 

Id. 

Mr. Jones contends that the ALJ failed to make proper findings at phases two 

and three of the analysis. Concerning 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 indicates 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 information 
7 

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 described in [Mr. Jones’s] testimony, appear 

compatible with said limitation on alternation. Therefore, the undersigned 

finds the [VE’s] testimony on this issue credible. 

Based on this information, the undersigned finds [Mr. Jones] can return to 

past relevant work under this [RFC]. 

R. at 40. 

 The ALJ made adequate findings at phase two, concluding that Mr. Jones’s 

past relevant work required the ability to work at the light exertional level, with no 

overhead reaching or use of foot controls, and with the ability to alternate positions. 

These phase-two findings tracked the specifics of the ALJ’s RFC assessment, which 

included the limitations relevant to phase one of the step-four analysis. See id. at 36. 

Because the ALJ’s analysis and conclusion addressed Mr. Jones’s ability to satisfy 

the job demands found in phase two, given his phase-one limitations, it also satisfied 

her responsibility at phase three. In addition, the ALJ did not merely delegate her 

analytical duties to the VE but permissibly “quoted the VE’s testimony approvingly, 

in support of [her] own findings at phases two and three of the analysis.” Doyal v. 

Barnhart, 331 F.3d 758, 761 (10th Cir. 2003). In sum, Mr. Jones fails to show that 

the ALJ erred in her step-four analysis. 

4. Credibility Determination

 Mr. Jones argues that the ALJ improperly assessed his credibility. His only 

specific complaint about her credibility analysis appears to be that she disregarded 

his testimony concerning the limitations imposed by his use of a pacemaker and his 

sleep apnea. In her decision, the ALJ listed the regulatory factors used to assess 
8 

credibility, then stated that Mr. Jones “generally reports symptoms, such as swelling, 

in excess of those described in [his] treatment records. He also reports problems, 

such as falling asleep when sitting for too long, which he does not report to his 

providers.” R. at 37. Based on these discrepancies and the medical record, the ALJ 

found Mr. Jones’s allegations “only partially credible.” Id. The ALJ then thoroughly 

analyzed the medical record, comparing Mr. Jones’s subjective complaints to his 

statements to his treatment providers and the objective medical evidence. Id. at 

37-38. 

 The ALJ addressed Mr. Jones’s sleep apnea complaint as follows: 

[Mr. Jones] has been diagnosed with sleep apnea. [He] alleges he cannot 

stay awake. However, he was started on a CPAP machine in July 2010, 

around the time of his alleged onset date. He reported feeling much better 

after beginning treatment, has no complaints of snoring or nasal patency, 

falls asleep more easily and does not awaken during the night for any 

reason. He indicated he felt rested in the morning without headaches or 

congestion, and his provider felt [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 specific 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 “feeling good,” with “no sym[ptoms] now,” which 
9 

made him “happy.” Id. But he noted that a different doctor “called & he indicated 

that [Mr. Jones] can work at no [heights], 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 record 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 court’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 Security, but only upon a showing that there 

is new evidence which is material and that 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 under this provision because it determined 

Mr. Jones had not shown good cause for failing to obtain and present the record at 

the ALJ hearing. We review this decision 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 his 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 limitations 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 any other new evidence, to the Appeals 
10 

Council. See id. at 1149-50 (stating claimant must show good cause for failing to 

submit new evidence to the ALJ and the Appeals 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 court 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 where 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 motion for reconsideration waived, where appellants merely 

incorporated by reference arguments made and documents filed in the district court 

 2

 The district court found that the 1997 record was “material” within the 

meaning of § 405(g). “Evidence is material if the [Commissioner’s] decision might 

reasonably have been different had the new evidence been before him when his 

decision was rendered.” Wilson, 602 F.3d at 1148 (brackets and internal quotation 

marks omitted). We have some doubt the 1997 record was material within this 

definition. First, it predated 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, and 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 the 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 denial 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 lift without difficulty,” and 

that his “pacemaker limits physical activity.” Id. at 211. Mr. Jones complains that 

the ALJ “arbitrarily discounted” this evidence. Aplt. 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 observation did not outweigh the 

accumulated medical evidence. See R. at 39. The ALJ permissibly assigned little 

weight to the third-party function report. 

7. Postural Limitations in Dr. Alvarez’s Opinion

 Mr. Jones complains in summary fashion that his “physician, Dr. Alvarez 

submitted his opinion that I could do certain tasks occasionally” and then opines that 

“[y]ou cannot obtain and maintain substantial employment when you can only 

perform tasks occasionally.” Aplt. Opening Br. at 7. He appears to have raised this 

issue in district court for the first time in his reply brief in support of his 

reconsideration motion. See R. at 608. The district court did not specifically discuss 

the argument, but elsewhere in its decision cited the general rule that arguments 

raised for the first time in a reply brief are waived. Id. at 615. Thus, the argument 
12 

was not adequately preserved and ruled upon in district court, and we need not 

consider it. See Cordova, 816 F.3d at 650 n.1. 

 But even if we were to consider 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 limitations on hearing, seeing, and speaking. The 

“frequent” limitations have no support in the record and do not correspond 

to any of his impairments or reported symptoms. The “occasional” 

limitations, on climbing, stooping, crouching, and crawling, also do not 

correspond to [Mr. Jones’s] impairments or his related symptoms. 

Likewise, the environmental limitations 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 that 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 that 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 work 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 perform those functions as part of his past relevant work as 

he actually performed it, likely was harmless.