UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_________________________________

STEVEN ALAN GUILLAR, 

 Plaintiff - Appellant,

v.

COMMISSIONER, SSA, 

 Defendant - Appellee.

No. 20-1169

(D.C. No. 1:19-CV-00542-KLM)

(D. Colo.)

_________________________________

ORDER AND JUDGMENT*

_________________________________

Before HARTZ, KELLY, and EID, Circuit Judges.

_________________________________

Steven Guillar appeals from an order of the district court affirming the Social 

Security Commissioner’s denial of his application for supplemental security income 

and disability insurance benefits under the Social Security Act (the “Act”). 

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

judgment of the district court.

* 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 This order and judgment is not binding precedent, 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

January 28, 2021

Christopher M. Wolpert

Clerk of Court
2

I. BACKGROUND

Guillar has multiple sclerosis (“MS”). He worked as a self-employed sales

distributor of safety equipment, but he quit working and closed his business around 

2013. Guillar filed applications for supplemental security income and disability 

insurance benefits. The Commissioner denied Guillar’s claim, so Guillar requested a 

hearing before an administrative law judge (“ALJ”). The ALJ took testimony from 

Guillar. She also reviewed medical records from Dr. Stanley Ginsburg, a neurologist

who examined Guillar at the request of Colorado Disability Determination Services, 

and from Dr. Beverley Gilder, Guillar’s treating neurologist.

Dr. Ginsburg and Dr. Gilder differed in their assessments of Guillar’s level of 

impairment. Dr. Ginsburg opined that Guillar could continuously lift and carry up to 

ten pounds, frequently lift and carry eleven to twenty pounds, and occasionally lift 

and carry twenty-one to fifty pounds; sit for two hours, stand for one hour, and walk 

for one hour without interruption; frequently reach, handle, finger, feel, and 

push/pull; frequently use foot controls; frequently stoop, kneel, crouch, and crawl; 

and tolerate frequent exposure to humidity, dust, extreme cold, extreme heat, 

vibration; and could tolerate loud noise. Aplt. App. Vol. 2 at 307–12. 

Dr. Gilder opined that Guillar’s capacity was considerably more limited. In a 

September 2017 Residual Functional Capacity (“RFC”) Questionnaire, she opined

that Guillar’s MS symptoms made him “[i]ncapable of even ‘low stress’ jobs.” Id. at 

367. She further opined that Guillar could walk less than two city blocks without 

needing rest; sit for no more than thirty minutes and stand for no more than ten 
3

minutes at one time; rarely lift and carry less than ten pounds and never lift or carry 

more than ten pounds in a competitive work situation; never twist, bend, crouch, 

climb ladders, or climb stairs; and could not grasp, turn objects, or engage in fine 

manipulation with his fingers or reach with his arms during an eight-hour workday. 

Id. at 367–70. Dr. Gilder stated that Guillar was likely to be absent from work more 

than four days per month due to his MS. Id. at 370. 

In her written decision, the ALJ underwent the five-step sequential evaluation 

process used by the Social Security Administration to review disability claims.

1

 

Between steps three and four, the ALJ concluded Guillar maintained the RFC to 

perform certain sedentary, unskilled work, subject to restrictions: 

[Guillar] is limited to being able to stand or walk for one 

hour at a time for a total of two hours out of an eight hour 

work day. [Guillar] can occasionally climb ramps or 

stairs, but never climb ladders, ropes or scaffolds. He can 

1 We have previously described the five-step process as follows:

Social Security Regulations mandate that the ALJ 

who determines a claim for benefits under the Social 

Security Act follow a five-step evaluation: (1) whether the 

claimant is currently working; (2) whether the claimant has 

a severe impairment; (3) whether the claimant’s 

impairment meets an impairment listed in appendix 1 of 

the relevant regulation; (4) whether the impairment 

precludes the claimant from doing his past relevant work; 

and (5) whether the impairment precludes the claimant 

from doing any work. If at any point in the process the 

Secretary finds that a person is disabled or not disabled, 

the review ends.” 

Trimiar v. Sullivan, 966 F.2d 1326, 1329 (10th Cir. 1992) (citation, footnote, and 

internal quotation marks omitted). 
4

occasionally stoop, kneel, crouch, and crawl. He can 

frequently reach, handle, finger, feel, push and pull, and 

operate foot controls. He can occasionally operate a motor 

vehicle. He can never be exposed to extreme heat or 

extreme cold; cannot operate vibrating equipment; and can 

never be exposed to hazards, such as unprotected heights,

heavy machinery or moving mechanical parts. [Guillar]

can carry out simple and routine tasks, make simple workrelated decisions, tolerate occasional changes in routine

work duties and tasks, and occasional interaction with the 

public.

Aplt. App. Vol. 1 at 26. Because there existed jobs in significant numbers in the 

national economy that Guillar could perform subject to these restrictions, the ALJ 

concluded he was not disabled and therefore not entitled to benefits under the Act.2

After exhausting his administrative remedies, Guillar filed a civil action with 

the District of Colorado, seeking review pursuant to 42 U.S.C. §§ 405(g) and 

1383(c)(3). The district court affirmed the ALJ decision, and Guillar appeals. 

II. DISCUSSION

We review the district court’s decision de novo, applying the same standards 

as the district court. See Hendron v. Colvin, 767 F.3d 951, 954 (10th Cir. 2014). We 

therefore review the decision of the ALJ to determine whether substantial evidence 

supports her factual findings and whether she applied the correct legal standards. See 

id. “[T]he threshold for such evidentiary sufficiency is not high.” Biestek v. 

2 Under the Act, an individual shall be deemed disabled “only if his physical or 

mental impairment or impairments are of such severity that he is not only unable to 

do his previous work but cannot, considering his age, education, and work 

experience, engage in any other kind of substantial gainful work which exists in the 

national economy.” 42 U.S.C. § 423(d)(2)(A); id. § 1382c(a)(3)(B). 
5

Berryhill, 139 S. Ct. 1148, 1154 (2019). Substantial evidence is “more than a 

scintilla.” Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994). “We do not 

reweigh the evidence or retry the case, but we meticulously examine the record as a 

whole, including anything that may undercut or detract from the ALJ’s findings in 

order to determine if the substantiality test has been met.” Flaherty v. Astrue, 

515 F.3d 1067, 1070 (10th Cir. 2007) (internal quotation marks omitted). “A finding 

of no substantial evidence will be found only where there is a conspicuous absence of 

credible choices or no contrary medical evidence.” Trimiar v. Sullivan, 966 F.2d 

1326, 1329 (10th Cir. 1992) (internal quotation marks omitted).

Guillar challenges the ALJ’s decision in two respects. First, he asserts the 

ALJ erred by not providing sufficient reasons to depart from the conclusions of 

Dr. Gilder regarding his RFC. Second, he asserts the ALJ failed at step four to make 

adequate findings regarding the functional effects of his subjective symptoms such as 

pain. We reject each argument.

1. Weight Afforded to Treating Physician

While a treating physician’s opinion “is entitled to ‘controlling weight’ when 

it is ‘well-supported by medically acceptable clinical and laboratory diagnostic 

techniques’ and is ‘not inconsistent with the other substantial evidence in the 

claimant’s case record[,]’ [a]n ALJ may disregard a treating physician’s opinion, . . . 

if it is not so supported.” Doyal v. Barnhart, 331 F.3d 758, 762 (10th Cir. 2003)

(brackets omitted) (quoting 20 C.F.R. § 416.927(d)(2)). Here, the ALJ found the 
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RFC limitations described by Dr. Gilder were entitled to partial weight, but not full 

weight in light of the record as a whole:

The undersigned gives [Dr. Gilder’s] opinion partial 

weight in that it is partially supported by the record as a 

whole, which shows that [Guillar’s] impairments limit him 

to performing less than sedentary exertional work.

However, Dr. Gilder’s limitations are too extreme. For 

example, in August of 2017, [Guillar] was found to stand 

and walk without hesitation. Furthermore, [Guillar’s]

multiple sclerosis was found to be stable in July of 2016 

and January of 2017. Diagnostic testing from December of

2016 indicates no progression of the disease. Therefore, 

the undersigned gives this opinion partial weight.

Aplt. App. Vol. 1 at 29 (citations omitted). Guillar argues that treatment notes the 

ALJ cited showing his ability to stand and walk without hesitation, and the stable 

progression of his MS, were not inconsistent with Dr. Gilder’s ultimate conclusion 

regarding his RFC because he has “relaxing-remitting” MS, such that sometimes his 

symptoms are worse than other times. But while these arguments may show that the 

ALJ might have justifiably reached a different conclusion than the one she did, they 

do not establish her findings lack substantial evidentiary support. Guillar also argues 

the ALJ “failed to address” the factors set forth in 20 C.F.R. § 404.1527(c) when she 

determined how much weight to give to Dr. Gilder’s opinion, Aplt. Opening Br. at 

24, but the ALJ need not explicitly discuss each of these factors for this court to 

meaningfully review her decision, see Oldham v. Astrue, 509 F.3d 1254, 1258

(10th Cir. 2007). 

Confronted with conflicting medical opinions from Dr. Gilder and 
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Dr. Ginsburg, the ALJ adopted a middle ground that did not fully embrace either one 

by finding that, while Guillar was no longer capable of performing his previous work

as a salesman and small business owner, he could still perform some low-skill, 

sedentary work. We have affirmed such an approach as consistent with the ALJ’s 

prerogative to weigh the medical evidence before her. See Smith v. Colvin, 821 F.3d 

1264, 1268 (10th Cir. 2016) (upholding approach of ALJ who “arrived at an 

assessment between the two medical opinions without fully embracing either one”); 

Chapo v. Astrue, 682 F.3d 1285, 1288 (10th Cir. 2012) (“[W]e hold . . . if a medical 

opinion adverse to the claimant has properly been given substantial weight, the ALJ 

does not commit reversible error by electing to temper its extremes for the claimant’s 

benefit.”). Because the ALJ’s decision to only partially credit the opinion of 

Dr. Gilder is supported by more than a scintilla of evidence, we will not disturb her 

findings on this basis.

2. Findings as to Functional Effects of Subjective Symptoms

Guillar argues the ALJ failed to adequately consider the disabling effects of 

his subjective pain, fatigue, and cognitive deficits in arriving at her RFC 

determination. He supports this argument by citation to the agency ruling that

governs the evaluation of subjective symptoms in connection with disability claims, 

Social Security Ruling 16-3p, which states:

In addition to using all of the evidence to evaluate the 

intensity, persistence, and limiting effects of an 

individual’s symptoms, we will also use the factors set 

forth in 20 CFR 404.1529(c)(3) and 416.929(c)(3). These 

factors include:
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1. Daily activities;

2. The location, duration, frequency, and intensity of pain 

or other symptoms;

3. Factors that precipitate and aggravate the symptoms;

4. The type, dosage, effectiveness, and side effects of any 

medication an individual takes or has taken to alleviate 

pain or other symptoms;

5. Treatment, other than medication, an individual receives 

or has received for relief of pain or other symptoms;

6. Any measures other than treatment an individual uses or 

has used to relieve pain or other symptoms (e.g., lying flat 

on his or her back, standing for 15 to 20 minutes every 

hour, or sleeping on a board); and

7. Any other factors concerning an individual’s functional 

limitations and restrictions due to pain or other symptoms.

We will consider other evidence to evaluate only the 

factors that are relevant to assessing the intensity, 

persistence, and limiting effects of the individual’s 

symptoms. 

2017 WL 5180304, at *7–8 (Oct. 25, 2017). 

Guillar asserts the ALJ evaluated only one of the enumerated factors (his daily 

activities), and that her conclusions in connection with that factor lack substantial 

evidentiary support. But this assertion is flawed in three respects. First, the 

regulations do not require the ALJ to discuss every factor listed in 20 C.F.R. §§

404.1529(c)(3) and 416.929(c)(3); they expressly provide that she does not need to

do so. See SSR 16-3P, 2017 WL 5180304, at *8 (“If there is no information in the 

evidence of record regarding one of the factors, we will not discuss that specific 
9

factor in the determination or decision because it is not relevant to the case.”). And 

we have held that an ALJ need not engage in a “formalistic factor-by-factor recitation 

of the evidence” when evaluating the functional effects of a claimant’s subjective 

symptoms. Qualls v. Apfel, 206 F.3d 1368, 1372 (10th Cir. 2000). 

Second, the ALJ did not limit her analysis to the daily activity factor. She

acknowledged Guillar’s complaints that his MS was worsening, causing pain, muscle 

spasms, fatigue, brain fog, and concentration issues. She thus considered “[t]he 

location, duration, frequency, and intensity of [his] pain or other symptoms.” SSR 

16-3P, 2017 WL 5180304, at *7. She discussed the medical records where Guillar 

reported to Dr. Gilder that his energy level varied from day to day and his hearing 

testimony that “any type of stress shuts down his whole system, mostly his brain and

he gets double and triple vision.” Aplt. App. Vol. 1 at 27. She thus discussed and 

considered “[f]actors that precipitate and aggravate the symptoms.” SSR 16-3P, 

2017 WL 5180304, at *7. She also considered Guillar’s medication treatment, 

including Rebif injections, Gabapentin, Baclofen, and Cymbalta, and discussed the 

effects of those medications on his symptoms. Aplt. App. at 27–28, thus considering

the “type, dosage, effectiveness, and side effects of any medication [Guillar] takes or 

has taken to alleviate pain or other symptoms.” SSR 16-3P, 2017 WL 5180304, at *8. 

Third, Guillar does not identify any record evidence that the ALJ overlooked

when she considered his subjective symptoms. He instead cites to his hearing 

testimony where he described the disabling effects of his MS and explained how

stress worsened his condition, Aplt. Opening Br. at 28 (citing Aplt. App. Vol. 1 at 
10

46–47), and he faults the ALJ for concluding that the objective medical evidence did 

not support the degree of impairment he claimed. But the ALJ discussed Guillar’s 

testimony in her opinion, Aplt. App. Vol. 1 at 27, and she accounted for his 

subjective symptoms when she made an RFC determination that restricted him to 

unskilled, sedentary work. While the ALJ might have arrived at a different 

conclusion when considering the same evidence, her decision has more than a 

scintilla of evidentiary support and therefore withstands substantial-evidence review. 

We therefore reject Guillar’s argument that the ALJ did not adequately 

consider the disabling effects of his subjective symptoms in arriving at her disability 

determination. 

III. CONCLUSION

We affirm the judgment of the district court.

Entered for the Court

Allison H. Eid

Circuit Judge