FILED

United States Court of Appeals

Tenth Circuit

December 2, 2011

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

AMBY ELKINS,

Plaintiff-Appellant,

v.

MICHAEL J. ASTRUE,

Commissioner, Social Security

Administration,

Defendant-Appellee.

No. 11-7037

(D.C. No. 6:09-CV-00431-FHS-KEW)

(E.D. Okla.)

ORDER AND JUDGMENT*

Before LUCERO, ANDERSON, and GORSUCH, Circuit Judges.

Amby Elkins seeks social security disability benefits. She says she suffers

from degenerative disc disease, rheumatoid arthritis, tendinitis, and depression. 

The combination of these conditions, she argues, renders her essentially incapable

of performing any work. An administrative law judge, however, rejected

Ms. Elkins’s petition. On the basis of medical evaluations by independent

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

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument. This order and judgment is not binding

precedent, except under the doctrines of law of the case, res judicata, and

collateral estoppel. It may be cited, however, for its persuasive value consistent

with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 
physicians, he concluded that Ms. Elkins’s testimony regarding the severity of her

impairments was not credible. Ms. Elkins appealed but the Social Security

Administration’s Appeals Council denied review, and a district court later

affirmed. Now before us, Ms. Elkins says there are four reasons why we must

reverse.

First, she argues that the ALJ erred in failing to find her disabled at step

three of the five-step disability evaluation process prescribed by 20 C.F.R.

§ 416.920. At step three, the ALJ must consider all of the potentially applicable

listed impairments and explain whether the claimant’s condition satisfies the

listing. See Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996). Ms. Elkins

claims that the ALJ erred because he didn’t consider Listing 1.04(A), which

concerns certain disorders of the spine. 20 C.F.R. Pt. 404, Subpt. P, App. 1,

Pt. A. § 1.04 A. But even if the ALJ’s failure to consider Listing 1.04(A) was

error, it was harmless error in light of the ALJ’s findings at subsequent steps in

the disability evaluation process where he expressly addressed Ms. Elkins’s

claimed spinal disorders. See Fischer-Ross v. Barnhart, 431 F.3d 729, 734

(10th Cir. 2005). At step five, for example, the ALJ found that Ms. Elkins’s back

pain was not severe, that any degeneration of the spine may be a “normal variant”

for a woman of Ms. Elkins’s age, and that there was no evidence of “neurological

deficits” — findings that suffice to negate the existence of a spinal impairment

under Listing 1.04(A). Confirming the harmless nature of any error here,

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Ms. Elkins presented no evidence of nerve-root compression, one of the

requirements of Listing 1.04(A). Her failure to satisfy all of the listing’s criteria

means that she cannot prevail at step three as a matter of law. See Sullivan v.

Zebley, 493 U.S. 521, 530 (1990). 

Second, Ms. Elkins argues that the ALJ erred by failing to give controlling

weight to the opinions of her treating physician, Thomas Osborn, D.O. An ALJ,

however, does not have to give controlling weight to the testimony of a treating

physician if that testimony is “not well-supported by medically acceptable clinical

and laboratory diagnostic techniques or if it is inconsistent with the other

substantial evidence in the case record.” Watkins v. Barnhart, 350 F.3d 1297,

1300 (10th Cir. 2003) (quotation omitted). That is the case here. The ALJ

assigned Dr. Osborn’s opinion “little weight” because it was contradicted by the

objective physical evidence in the case and by his own prescribed treatment

regimen. Dr. Osborn testified that Ms. Elkins could sit, stand and walk less than

one hour per work day, could barely use her arms and legs, and would never work

again. But as the ALJ noted, a patient with such severe debilitations would

require 24 hour home care, a far more drastic remedy that Dr. Osborn’s prescribed

treatment — painkillers. And although x-ray evidence showed some spinal

degeneration, other experts testified that the damage was not severe and that

Ms. Elkins’s pain was partially psychosomatic. 

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Third, Ms. Elkins says the ALJ erred in finding that her testimony

concerning her impairments wasn’t credible. But we grant significant deference

to the ALJ’s credibility findings so long as the ALJ explains the basis of his

decision. See White v. Barnhart, 287 F.3d 903, 910 (10th Cir. 2001). The ALJ

did that here. He concluded that her complaints were exaggerated and he

supported his decision with substantial medical evidence, including x-rays

showing only moderate degeneration, the absence of observable manifestations

such as weight loss or muscular atrophy, and expert testimony that Ms. Elkins’s

condition could be addressed through physical therapy. Likewise, the ALJ noted

that Ms. Elkins’s demeanor at the hearing suggested an absence of extreme pain. 

Certainly, the record also contains evidence that might support a different

conclusion, but it is primarily the ALJ’s task, not ours, to weigh it. Cowan v.

Astrue, 552 F.3d 1182, 1185 (10th Cir. 2008). 

Finally, Ms. Elkins challenges the ALJ’s residual functional capacity

assessment because it failed to account for the fact that she uses a cane. But

though Ms. Elkins on occasion uses a cane, she presented no evidence that the

cane was medically necessary. And without such evidence, the ALJ had no

obligation to address the cane in his residual functional capacity assessment. See

Evans v. Chater, 55 F.3d 530, 532 (10th Cir. 1995) (holding that inquiries to the

vocations expert to make a residual functional capacity assessment “must include

all (and only) those impairments borne out by the evidentiary record”).

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The judgment of the district court is affirmed.

Entered for the Court

Neil M. Gorsuch

Circuit Judge

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