UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

PAULINE CARTER, Plaintiff - Appellant,

v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant - Appellee. No. 14-1170 (D.C. No. 1:13- CV-00504-REB) (D. Colo.)

ORDER AND JUDGMENT *

Before HOLMES , BACHARACH , and McHUGH , Circuit Judges.

This appeal involves the So cial Security Administration’s termination of disability benefits. Ms . Carter challenges the termination of benefits on procedural and substantive grounds. Her procedural challenge is based on a mistaken in terpretation of th e agency’s earlier decision. She

* The parties requested a decision on the briefs, and oral argument would not materially help in deciding the appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). Thus, we have declined to order oral argument. This order and judg ment does not constitut e binding precedent, except under the doctrines 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 (a) and 10th Cir. R. 32.1(A). FILED United States Court of Appeals Tenth Circuit 

### January 9, 2015
Elisabeth A. Shumaker Clerk of Court- 2 - asserts that the ag ency said in 2002 the disability wa s continuing. That assertion is incorrect. Ms. Carter also makes a substantive challenge, arguing that the ag ency mistakenly downplayed her limit ations. In our view, however, the agency did not err in applying legal standards or in weighing the evidence. Thus, we affirm. I. The Administrative Proceedings Ms. Pauline Carter br oke her hip in 2001 a nd obtained disability benefits until June 5, 2002, based on sa tisfaction of a lis ting. After three hearings, the agency found that Ms. Carter’s disa bility had terminated on June 5, 2002, when an x-ray showed the hip ha d healed. In ordering termination of benefits, the agency concluded that after June 5, 2002, Ms. Carter could perform some “light” j obs such as a clerical checker, coin machine collector, or vend ing machine operator. Th e federal district court affirmed. II. Standard of Review On appeal, we must decide if the agency correc tly applied legal standards and made factual findings supported by substa ntial evidence. Mays v. Colvin , 739 F.3d 569, 571 (10th Cir. 2014).
III. Procedural Arguments Ms. Carter alleges violation of administrative regulations and deprivation of due process. These allegations are invalid.- 3 - Ms. Carter argues that

● the agency said in August 2002 that the disa bility was continuing, and

● the agency lacked a basis to reopen th at decision. This argument is inaccurate because the agency did not say in August 2002 that the disability wa s continuing. Th e agency said only that the disability continued until her x-ray was taken (which was on June 5, 2002). 1 In finding that th e disability continued until June 5, 2002, the agency did not violate any of its regulations. Nor did it deprive Ms . Carter of due proce ss. According to Ms. Carter, the agency confused the termin ation date, impeding her ability to develop a record in 2002 and 2003. We cannot en tertain this allegation because it was not made in district court. See Lyons v. Jefferson Bank &
Trust , 994 F.2d 716, 721- 22 (10th Cir. 1993). Even if we were to ad dress the argument on the merits, it would fail. Ms. Carter must show that the agency’s decision was fund amentally unfair. Mays , 739 F.3d at 573. U nder this standard, the claim fails because Ms. Carter has not said what she woul d have done differently to develop a record of disability in 2002 and 2003.

1 The agency mistakenly continued to pay di sability benefits until 2007, but has not requir ed Ms. Carter to re pay these benefits.- 4 - IV. Physical Assessment Ms. Carter argues that the agency should not ha ve found an ability to perform light work, pointi ng to physical impairment s, limited ability to perform daily activities, and three me dical opinions (G oodwin, Wilkins, and Taylor). Physically, Ms. Carter relies on her need for narcotics, the impact of her trochanteric bursit is and knee impairment, the screw protruding into her fibula, and dr owsiness from her medications. In addition, she complains that she often ha s to rest and needs help with daily chores. The agency adequately addressed this evidence. For example, the agency noted that Ms. Ca rter had acknowledged the ability to c onduct daily physical therapy exercises and a variet y of daily chores, including laundry, making the bed, watering flowers, driving a truck, and seeing friends. In addition, the agency analyzed the mi nimal medical records after June 5, 2002. These records reflect ed improvement after hip surgery in the Fall of 2002 and surgery on the left knee in the Summer of 2003. Ms. Carter relies in pa rt on opinions by Dr. Taylor and Ms. Goodwin. The agency justifiably declined to gi ve weight to Dr. Taylor’s opinion because it did not cove r the pertinent time-peri od. Though the agency failed to discuss the statement of Ms. Goodwin, th e omission was- 5 - immaterial because the ag ency found Ms. Carter disa bled during the timeperiod covered by Ms . Goodwin’s opinion. Accordingly, we conclude that the agency correctly applied legal standards and that the findings are supported by subs tantial evidence. V. Credibility Findings Ms. Carter also challenges the agency ’s credibility findings, such as fatigue from pain, loss of sleep, and side effects from medication. These challenges are based on ev idence of ineffective am bulation, testimony by a friend, and evidence of an insurer’s paymen t of benefits fo r a disability. We reject these challenges. The agency is id eally suited to assess cred ibility, and we will not disturb the agency’s cred ibility findings when they ar e supported by substantial evidence. Wilson v. Astrue , 602 F.3d 1136, 1144 (10th Cir. 2010). We conclude that the agency corr ectly applied legal standards and that the credibility fi ndings are supported by substantial evidence. Ms. Carter did present evidence of ineffective ambulation. But, the agency could reasonably reject th is evidence based on two medical assessments that would have allowed considerable am bulation. In the first assessment (August 2002), a doctor said only that Ms. Carter should remain cautious when moving about. In the second assessment (October 2003), a doctor prov ided minimum limits (no pa rticipation in bowling or- 6 - sports requiring lateral motion). Based on these two assessments, the agency could reasonably discount Ms . Carter’s eviden ce of ineffective ambulation. According to Ms. Carter, the ag ency should have credited the testimony of her friend and the disability determinati on by an insu rer. We reject these arguments. The agency stated that it had considered all the evidence. Thus, we assume that the agency considered both the friend’s testimony and the insurer’s di sability determination. See Wall v. Astrue , 561 F.3d 1048, 1070 (10th Cir. 2009). In addition, both pieces of evidence appear im material. Ms. Carter does not identi fy anything in the friend’s testimony that would affect the outcome. And, there is no evid ence about the circumstances surrounding the insurer’s award of bene fits (other than Ms. Cart er’s testimony that she obtained disability benef its from the insurer). In these circumstances, the agency did not err by ov erlooking the friend’s te stimony or the insurer’s disability determination. VI. Hypothetical Question Ms. Carter also contends the agen cy should have incorporated her self-described limitations when quest ioning the vocational expert. We reject this contention.- 7 - In asking hypothetical questions, th e administrative law judge needs only to include impairments supported in the record. Shepherd v. Apfel , 184 F.3d 1196, 1203 (10th Cir. 1999). The admi nistrative law judge included the impairments that he had found. And, as noted above, the administrative law judge’ s assessment was support ed by the record. Accordingly, the administrative law judge did not err in declining to ask the vocational expert about the effect of greater limitations. VII. Disposition We reject any other arguments made by Ms. Carter as not properly preserved for appellate review. Wi th these conclusi ons, we affirm.

Entered for the Court

Robert E. Bacharach Circuit Judge