UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ JAPETH PAULEK, Plaintiff - Appellant,

v. CAROLYN W. COLVIN, Acting Commissioner of Social Security Administration, Defendant - Appellee. No. 16-1007 (D.C. No. 1:13- CV-03264-LTB) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before HOLMES , BALDOCK , and MORITZ , Circuit Judges.

________________ _________________ Japeth Paulek appeals from a decision of the district court affirming the Commissioner’s denial of disability insura nce benefits and s upplemental security income. Mr. Paulek argues that the administrative law judge (ALJ) erred in (1) relying on a medical expe rt and interpreting the asse ssment of a consultative examining physician; (2) accounting for his al legations of pain; a nd (3) concluding at

* After examining the briefs and appellate record, th is 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 This or der and judgment is not binding precedent, except under the doctrines of la w of the case, res judicata, and collateral estoppel.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 

### October 3, 2016
Elisabeth A. Shumaker Clerk of Court2 step four that he could return to hi s past work. Exercising jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g), we affirm in part and reverse in part.
I Mr. Paulek applied for disability insura nce benefits and s upplemental security income in January 2011, claiming he was disabled by Type I di abetes mellitus with neuropathy in his lower extr emities, lower back pain, depression, arthritis, and fibromyalgia. Dr. Michelle Warfield, a consultative examining physician, submitted an evaluation of Mr. Paulek’s mental impairments. She observed that his depression began six months prior to the exam when “h e became less motivated ‘because of [his] pain.’” Aplt. App. Vol. 3 at 777. She also found that he had difficulty with concentration; he was unable to perform se rial 7s, spell Denver backwards, identify the number of weeks in a year, and name what continent Brazil is on. She ultimately diagnosed him with adjustment disorder w ith a chronically depressed mood and gave him a global assessment of functioning (GAF) score of 60. Dr. Warfield concluded that his cognitive abilities appear lim ited and though he “should be able to understand, remember, and carry out simple one-step instructions,” he “would likely have marked difficulty in understanding an d carrying out complex instructions.” Id . at 778. At the hearing, Dr. Alan Coleman testified as a medi cal expert. He testified that he had “done an awful lot of endocrinology.” Id . at 848. Dr. Coleman identified the following complications root ed in Mr. Paulek’s diabet es: neuropathy in his lower3 extremities, retinopathy, and nephropathy. Of these complications, Dr. Coleman opined that only the neuropat hy could constitute a severe impairment. Recounting an examination of Mr. Paulek that found his le gs to have normal sens ation with bilateral strength and with deep tendon reflexes bila terally equal, Dr. Co leman observed that these “are not the findings that we see in somebody who’s got nerve damage because the nerve damage affects the . . . strength, and generally eliminat es the reflexes.” Id . at 854. Calling it “a litt le bit vexing,” Dr. Coleman noted that Mr. Paulek has “had bad uncontrolled diabetes for a long ti me, [so] it’s not surp rising that he would have some nerve damage.” Id . at 854–55. “On the other hand, it’s not documented by anything in the medical record. . . . I don’t think I can say that he’s got severe neuropathy.” Id . at 855. On this basis, Dr. Coleman testifie d that he would impose the following limitations: Mr. Paulek could be up on hi s feet for four hours in an eight-hour workday and sit for six hours; lift 20 po unds occasionally and 10 pounds frequently; and occasionally climb stai rs, climb a ladder, bend, stoop, kneel, and crawl. Regarding Mr. Paulek’s back pain, Dr. Cole man observed the lack of a herniated disk or sciatica, noting that hi s “examinations have been normal” and “[t]here’s no evidence that it’s a severe ly limiting back pain.” Id . at 859. Regarding his fibromyalgia, Dr. Coleman acknowledged that Mr. Paulek was in pain but opined that such pain did not constitute a seve re impairment becau se “[a]ll of the examinations that we have here are that his strengt h is good [and] [h]e can do things.” Id . at 859–60.4 After considering this and other evid ence, the ALJ issued an unfavorable decision. At step two of th e five-step sequential evaluation, he found that Mr. Paulek suffered from the following se vere impairments: insulin- dependent diabetes mellitus type I with neuropathy and mild reti nopathy and nephropathy, gastroesophageal reflux disease, chronic lower back pa in, fibromyalgia, and depression. See Wall v.
Astrue , 561 F.3d 1048, 1052 (10th Cir. 2009) (e xplaining the five-step process). Finding no impairment to meet the severity of a listed impairment at step three, the ALJ proceeded to determine Mr. Paulek ha s the residual functional capacity (RFC) to perform light work with the following limitations: he is limited to 30 minutes of sitt ing per episode for 6 hours in an 8-hour day. He can stand for 30 minutes at a time and walk for 15 minutes at a time for a total of 6 hours standing and/or walking in an 8-hour day. The claimant can occas ionally use foot controls, climb, stoop and crouch. He can never be expos[ed] to unprot ected heights, moving mechanical parts, extreme cold and vibratio n. The claimant can tolerate occasional expo sure to extreme heat, dusts, odors, fumes and pulmonary irritants, and he can occasionally drive as part of his work duties. Mentally, the cl aimant is able to understand, remember and carry out simple instructions. Aplt. App. Vol. 1 at 31. At step four, the ALJ determined Mr. Paulek could perform his past relevant work as a service station attendant , relying on the vocational expert’s (VE) testimony. 1

1 The VE also testified at the hearing th at Mr. Paulek could return to his past work as a cashier.5 In discussing the relevant medical evidence, the ALJ relied heavily on Dr. Coleman’s testimony. He cited Dr . Coleman’s analysis of Mr. Paulek’s neuropathy, recounting: [T]here are no significant objective fi ndings to support a diagnosis of diabetic neuropathy. Dr. Coleman not ed several instances in the record where despite the claimant’s alle ged pain he had normal neurologic findings of the lower extremities, including normal se nsation, strength and reflexes. He opined that such fi ndings were not cons istent with true nerve damage and that indeed at least one examini ng doctor described the claimant’s pain as “muscular” in nature. Dr. Coleman conceded that the claimant has had consistent comp laints of neuropathic pain, but in the absence of substantiating objectiv e findings he did not think this was a severe condition. Id . at 33 (citations omitted). The ALJ al so noted Dr. Coleman’s analysis of Mr. Paulek’s lower back pain — “he has co nsistently had normal examinations of the spine and lower extremities, failing to s upport any significant li mitations caused by this complaint.” Id . at 33. The Appeals Council deni ed review and the district court affirmed.
II On appeal, Mr. Paulek argues that the ALJ should not have relied on Dr. Coleman’s expert assessment and misi nterpreted Dr. Warfield’s mental RFC assessment. He also contends that the ALJ failed to properly consider his allegations of pain in determining his RFC. Finally, he insists the ALJ erred at step four because his past relevant work requires skills re stricted by his RFC. We review the Commissioner’s decision to determine “whe ther substantial ev idence supports the factual findings and whether the ALJ a pplied the correct legal standards.” Allman v.6 Colvin , 813 F.3d 1326, 1330 (10th Cir. 2016). In doing so, “we neither reweigh the evidence nor substitute our judgment for that of the agency.” Newbold v. Colvin , 718 F.3d 1257, 1262 (10th Cir. 2013) (internal quot ation marks omitted). A Mr. Paulek frames his argument about Dr. Coleman’s testimony like an issue of weight applied by the ALJ, but in ma intaining that Dr. Coleman was simply incorrect in his medical assessment by vi rtue of overlooking certain evidence of record, this claim amounts to nothing mo re than a challenge to the ALJ’s RFC determination as unsupported by substantial evidence. An ALJ must determine a claimant’s RFC “based on all of the relevant medical and other evidence.” 20 C.F.R. § 404.1545(a)(3). While the “record must demonstrate that the ALJ considered all of the evidence,” there is no requirement that an ALJ “discuss ever y piece of evidence.” Mays v. Colvin , 739 F.3d 569, 576 (10th Cir. 2014) (internal quotation marks omitted). Mr. Paulek points to multip le pieces of evidence in th e record that he thinks undermine Dr. Coleman’s, and thus the ALJ’s, assessment of his impairments. But we fail to see a meaningful di stinction, or any for that matt er. Mr. Paulek asserts that the ALJ ignored a nerve conduction test that “produced abnormal re sults in [his] left and right lower extremities, and hi s right upper extremity, establishing polyneuropathy.” Opening Br. at 23. The doctor performing that test, however, noted twice that it showed evidence of “mild” neuropat hy, Aplt. App. Vol. 3 at 629, 630, which comports with Dr. Coleman’ s conclusion that Mr. Paulek likely has7 “some nerve damage” but not severe neuropathy, id . at 855 (testifying “I don’t think we have anything that str ongly corroborates a diagnosis of severe neuropathy.”); see also Aplt. App. Vol. 2 at 572 (consulta tive examiner observing mild sensory neuropathy). There is no requirement th at the ALJ, in adopting Dr. Coleman’s analysis, “reference everything in the administra tive record,” Wilson v. Astrue , 602 F.3d 1136, 1148 (10th Ci r. 2010), especially when the evidence supports the ALJ’s conclusion, Howard v. Barnhart , 379 F.3d 945, 947 (10th Cir. 2004). In any event, Mr. Paulek was found to have norma l sensation and stre ngth in his legs on other occasions. E.g ., Aplt. App. Vol. 3 at 691, 748. Thus, even if Mr. Paulek was right about the nerve conduction test, th e ALJ was “entitled to resolve [such] conflicts in the record.” Haga v. Astrue , 482 F.3d 1205, 1208 (10th Cir. 2007). Mr. Paulek also avers that the ALJ’s de cision is in direct conflict with lumbar and cervical MRIs performed in March 2010, “which showed disc dessication and disc space narrowing,” among other things. Opening Br. at 23–24. But Mr. Paulek again cherry picks words in th is evidence to the exclusion of the relevant findings. The cervical MRI revealed “mild disc dessicat ion throughout the ce rvical spine with mild disc bulges, and thus “[ n]o significant findings .” Aplt. App. Vol. 2 at 412. The lumbar MRI likewise revealed “[d]isc dessication at T12- L1 with mild disc space narrowing.” Id . The radiologist therefore concl uded that the exam was “overall unremarkable” but for the mild narrowing. Id . at 413. These findings are entirely consistent with the ALJ’s conclusion that Mr. Paulek’s examin ations were normal and failed to support any signifi cant limitations, especially in light of other evidence8 that shows he had a normal gait, full or cl ose-to-full range of motion in his back. Id . at 572; see Haga , 482 F.3d at 1208.
B Mr. Paulek argues that the ALJ misint erpreted the eviden ce by characterizing his GAF scores of 60 and 50 as “mild” a nd “moderate,” respectively, when such scores are actually “moderate” a nd “serious” according to the Diagnostic and Statistical Manual of Mental Disorders . However, Mr. Paulek concedes in his reply brief that he is “not arguing that serious or moderate GAF scores necessitate a finding of disability.” Reply Br. at 3. “Rathe r, Mr. Paulek contends that this mistake represents another example of the ALJ’s fa ilure to adequately review and understand the medical evidence in the record.” Id . Our task is not to ta ke alleged mistakes of the ALJ as exemplary of larger, more f undamental mistakes and call it a day, especially when we have found the other “mis takes” he alleges to be anything but. It is Mr. Paulek’s obligation to put forth speci fic points of error for our consideration. See Howard v. Barnhart , 379 F.3d 945, 948 (10th Cir. 2004) (“But [claimant] identifies no factual or legal errors compelled by the ALJ’s use of the word “mild” to describe her obesity.”); see also Garrett v. Selby Connor Maddox & Janer , 425 F.3d 836, 840 (10th Cir. 2005) (“[T]he court ca nnot take on the responsibility of . . . constructing arguments and searching the reco rd.”). Mr. Paulek fails to “identify how the ALJ’s [characterization] affected his RFC determination or his ultimate conclusion of nondisability.” Howard , 379 F.3d at 947. In any event, the ALJ’s RFC determination is consistent w ith Dr. Warfield’s RFC assessment9 notwithstanding the GAF inconsistency, as he adopted the limitations therein. Mr. Paulek has thus failed to iden tify any error by the ALJ as to his mental impairment. C “A claimant’s subjective allegation of pain is not sufficie nt in itself to establish disability.” Thompson v. Sullivan , 987 F.2d 1482, 1488 (10th Cir. 1993). In evaluating whether a claimant has di sabling pain, we consider whether the claimant has proffered objec tive medical evidence of a pain-producing impairment, and if so, whether there is a loose nexus between the clai mant’s subjective allegations of pain and the impairment, and if so, whether the claimant’s pain is in fact disabling, considering both objective and subjective evidence. Id . (citing Luna v. Bowen , 834 F.2d 161, 163–64 ( 10th Cir. 1987)). Mr. Paulek contends that, considering his subjective cl aims of pain resulting from his diabetes, the ALJ was require d to “make findings regarding the Luna factors.” Opening Br. at 27. But we di scern no omission by the ALJ. He expressly found that the objective evidence showed impairments that could reasonably be expected to produce the symp toms alleged. Aplt. App. Vol. 1 at 32. In finding Mr. Paulek’s allegations not credible, howev er, the ALJ specifically noted that he “is without significant objective findings, failing to support an inability to engage in all sustained employment as alleged at the hearing.” Id . at 32–33. Not only that, the ALJ pointed out that Mr. Paulek’s testimony regarding his activities of daily living is “not consistent with a totally disab[ ling] level of physi cal impairment.” Id . at 33.10 The ALJ thus considered the degree to wh ich Mr. Paulek’s subj ective claims were consistent with th e medical evidence, see SSR 16-3p, 2016 WL 1119029 at *5–6, which comports with Luna

. D Mr. Paulek argues that his limitation to understanding, remembering, and carrying out simple instructi ons renders him unable to perform the work of a service station attendant because that work re quires a reasoning level of three under the Dictionary of Occupational Titles (DOT)

. 2 DOT level-three reasoning requires the ability to “[a]pply commonsense understanding to carry out instructions furnished in written, oral, or diagramm atic form [and d]eal with problems involving several concrete variables in or from standardized situations.” DOT Vol. 2 at 1011. In contrast, level-two reasoning requires enoug h understanding to carry out “detailed but uninvolved instructions,” and level- one reasoning requires only the ability to carry out “simple one- or two-step instructions.” Id

. As Mr. Paulek notes, we have previously held that a limita tion to “simple and routine work tasks . . . se ems inconsistent with th e demands of level-three reasoning.” Hackett v. Barnhart , 395 F.3d 1168, 1176 ( 10th Cir. 2005) (internal quotation marks and citation omitted). While we have not spoken to whether a limitation to simple and routine work task s is analogous to a li mitation to carrying out simple instructions, th e Eighth Circuit has held th at a limitation to simple

2 Incidentally, though the ALJ did not make any findings about Mr. Paulek’s past work as a cashier, that job al so has a reasoning level of three. DOT Vol. 1 at 183.11 instructions is inconsiste nt with both level-two a nd level-three reasoning. See Lucy v. Chater , 113 F.3d 905, 909 (8th Ci r. 1997). An “ALJ must investigate and elicit a reasonable explanation for any conflict between the [ DOT ] and expert testimony before the ALJ may rely on the expert’s testimony as substantial evidence to support a determination of nondisability.” Haddock v. Apfel , 196 F.3d 1084, 1091 (10th Cir. 1999) (emphasis added); see also Poppa v. Astrue , 569 F.3d 1167, 1173 (10th Cir. 2009) (noting that SSR 00-4p “requires that an ALJ must inquire about and resolve any conflicts between a [VE’s] testimony regarding a job a nd the description of that job in the [ DOT .]”). Though the ALJ asked the VE whether hi s testimony was consistent with the
DOT , it clearly was not, and the ALJ did not ma ke alternative findings at step five. Thus, there is a conflict between the VE’s testimony and the job descriptions in the
DOT for service station attenda nt and cashier. The ALJ failed to have the VE reconcile this conflict and therefore commi tted reversible error. On remand, to comply with Haddock , the Commissioner will need to elicit a re asonable explanation as to how Mr. Paulek can perform two leve l-three-reasoning jobs with a limitation to carrying out simple instructions or proceed to step five.
III We affirm the ALJ’s decisi on as to the first three is sues, reverse in part the judgment of the district court, and rema nd the case to the district court with12 instructions to remand the case to th e Commissioner for fu rther proceedings consistent with this order and judgment.

Entered for the Court
Bobby R. Baldock Circuit Judge