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 insurance benefits and supplemental security 

income. Mr. Paulek argues that the administrative law judge (ALJ) erred in 

(1) relying on a medical expert and interpreting the assessment of a consultative 

examining physician; (2) accounting for his allegations of pain; and (3) concluding at 

 *

 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 This order and judgment is not binding precedent, 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 

October 3, 2016

Elisabeth A. Shumaker 

Clerk of Court
2 

step four that he could return to his 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 insurance benefits and supplemental security 

income in January 2011, claiming he was disabled by Type I diabetes mellitus with 

neuropathy in his lower extremities, 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 “he 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 serial 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 with a chronically depressed mood and gave 

him a global assessment of functioning (GAF) score of 60. Dr. Warfield concluded 

that his cognitive abilities appear limited and though he “should be able to 

understand, remember, and carry out simple one-step instructions,” he “would likely 

have marked difficulty in understanding and carrying out complex instructions.” 

Id. at 778. 

 At the hearing, Dr. Alan Coleman testified as a medical expert. He testified 

that he had “done an awful lot of endocrinology.” Id. at 848. Dr. Coleman identified 

the following complications rooted in Mr. Paulek’s diabetes: neuropathy in his lower 
3 

extremities, retinopathy, and nephropathy. Of these complications, Dr. Coleman 

opined that only the neuropathy could constitute a severe impairment. Recounting an 

examination of Mr. Paulek that found his legs to have normal sensation with bilateral 

strength and with deep tendon reflexes bilaterally equal, Dr. Coleman 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 eliminates the reflexes.” 

Id. at 854. Calling it “a little bit vexing,” Dr. Coleman noted that Mr. Paulek has 

“had bad uncontrolled diabetes for a long time, [so] it’s not surprising 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 testified that he would impose the following 

limitations: Mr. Paulek could be up on his feet for four hours in an eight-hour 

workday and sit for six hours; lift 20 pounds occasionally and 10 pounds frequently; 

and occasionally climb stairs, climb a ladder, bend, stoop, kneel, and crawl. 

Regarding Mr. Paulek’s back pain, Dr. Coleman observed the lack of a herniated disk 

or sciatica, noting that his “examinations have been normal” and “[t]here’s no 

evidence that it’s a severely 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 severe impairment because “[a]ll of the 

examinations that we have here are that his strength is good [and] [h]e can do 

things.” Id. at 859–60. 
4 

After considering this and other evidence, the ALJ issued an unfavorable 

decision. At step two of the five-step sequential evaluation, he found that Mr. Paulek 

suffered from the following severe impairments: insulin-dependent diabetes mellitus 

type I with neuropathy and mild retinopathy and nephropathy, gastroesophageal 

reflux disease, chronic lower back pain, fibromyalgia, and depression. See Wall v. 

Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (explaining 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 has the residual functional capacity (RFC) to 

perform light work with the following limitations: 

he is limited to 30 minutes of sitting 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 occasionally use foot controls, climb, 

stoop and crouch. He can never be expos[ed] to unprotected heights, 

moving mechanical parts, extreme cold and vibration. The claimant can 

tolerate occasional exposure to extreme heat, dusts, odors, fumes and 

pulmonary irritants, and he can occasionally drive as part of his work 

duties. Mentally, the claimant 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 that 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 findings to support a diagnosis of 

diabetic neuropathy. Dr. Coleman noted several instances in the record 

where despite the claimant’s alleged pain he had normal neurologic 

findings of the lower extremities, including normal sensation, strength 

and reflexes. He opined that such findings were not consistent with true 

nerve damage and that indeed at least one examining doctor described 

the claimant’s pain as “muscular” in nature. Dr. Coleman conceded that 

the claimant has had consistent complaints of neuropathic pain, but in 

the absence of substantiating objective findings he did not think this was 

a severe condition. 

Id. at 33 (citations omitted). The ALJ also noted Dr. Coleman’s analysis of 

Mr. Paulek’s lower back pain — “he has consistently had normal examinations of the 

spine and lower extremities, failing to support any significant limitations caused by 

this complaint.” Id. at 33. The Appeals Council denied 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 misinterpreted 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 restricted by his RFC. We review the 

Commissioner’s decision to determine “whether substantial evidence supports the 

factual findings and whether the ALJ applied 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 quotation marks omitted). 

A 

 Mr. Paulek frames his argument about Dr. Coleman’s testimony like an issue 

of weight applied by the ALJ, but in maintaining that Dr. Coleman was simply 

incorrect in his medical assessment by virtue of overlooking certain evidence of 

record, this claim amounts to nothing more 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 every piece of evidence.” 

Mays v. Colvin, 739 F.3d 569, 576 (10th Cir. 2014) (internal quotation marks 

omitted). 

 Mr. Paulek points to multiple pieces of evidence in the record that he thinks 

undermine Dr. Coleman’s, and thus the ALJ’s, assessment of his impairments. But 

we fail to see a meaningful distinction, or any for that matter. Mr. Paulek asserts that 

the ALJ ignored a nerve conduction test that “produced abnormal results in [his] left 

and right lower extremities, and his right upper extremity, establishing 

polyneuropathy.” Opening Br. at 23. The doctor performing that test, however, 

noted twice that it showed evidence of “mild” neuropathy, Aplt. App. Vol. 3 at 629, 

630, which comports with Dr. Coleman’s conclusion that Mr. Paulek likely has 
7 

“some nerve damage” but not severe neuropathy, id. at 855 (testifying “I don’t think 

we have anything that strongly corroborates a diagnosis of severe neuropathy.”); 

see also Aplt. App. Vol. 2 at 572 (consultative examiner observing mild sensory 

neuropathy). There is no requirement that the ALJ, in adopting Dr. Coleman’s 

analysis, “reference everything in the administrative record,” Wilson v. Astrue, 

602 F.3d 1136, 1148 (10th Cir. 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 normal sensation and strength 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, the 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 decision 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 this evidence to the exclusion of the relevant findings. 

The cervical MRI revealed “mild disc dessication throughout the cervical 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 concluded 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 examinations were normal 

and failed to support any significant limitations, especially in light of other evidence 
8 

that shows he had a normal gait, full or close-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 misinterpreted the evidence by characterizing 

his GAF scores of 60 and 50 as “mild” and “moderate,” respectively, when such 

scores are actually “moderate” and “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. “Rather, Mr. Paulek contends that this mistake 

represents another example of the ALJ’s failure to adequately review and understand 

the medical evidence in the record.” Id. Our task is not to take alleged mistakes of 

the ALJ as exemplary of larger, more fundamental mistakes and call it a day, 

especially when we have found the other “mistakes” he alleges to be anything but. It 

is Mr. Paulek’s obligation to put forth specific 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 cannot take on the responsibility of . . . 

constructing arguments and searching the record.”). 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 with Dr. Warfield’s RFC assessment 
9 

notwithstanding the GAF inconsistency, as he adopted the limitations therein. 

Mr. Paulek has thus failed to identify any error by the ALJ as to his 

mental impairment. 

C 

 “A claimant’s subjective allegation of pain is not sufficient in itself to 

establish disability.” Thompson v. Sullivan, 987 F.2d 1482, 1488 (10th Cir. 1993). 

In evaluating whether a claimant has disabling pain, we consider whether the 

claimant has proffered objective medical evidence of a pain-producing impairment, 

and if so, whether there is a loose nexus between the claimant’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 claims of pain resulting 

from his diabetes, the ALJ was required to “make findings regarding the Luna

factors.” Opening Br. at 27. But we discern no omission by the ALJ. He expressly 

found that the objective evidence showed impairments that could reasonably be 

expected to produce the symptoms alleged. Aplt. App. Vol. 1 at 32. In finding 

Mr. Paulek’s allegations not credible, however, 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 physical impairment.” Id. at 33. 
10 

The ALJ thus considered the degree to which Mr. Paulek’s subjective claims were 

consistent with the 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 instructions renders him unable to perform the work of a service 

station attendant because that work requires 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 diagrammatic 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 enough 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 limitation to “simple and 

routine work tasks . . . seems inconsistent with the 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 tasks is analogous to a limitation to carrying 

out simple instructions, the Eighth Circuit has held that 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 also has a reasoning level of three. DOT Vol. 1 

at 183. 
11 

instructions is inconsistent with both level-two and level-three reasoning. See Lucy 

v. Chater, 113 F.3d 905, 909 (8th Cir. 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 and the description of that 

job in the [DOT.]”). 

Though the ALJ asked the VE whether his testimony was consistent with the 

DOT, it clearly was not, and the ALJ did not make 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 attendant and cashier. The ALJ failed to have the VE 

reconcile this conflict and therefore committed reversible error. On remand, to 

comply with Haddock, the Commissioner will need to elicit a reasonable explanation 

as to how Mr. Paulek can perform two level-three-reasoning jobs with a limitation to 

carrying out simple instructions or proceed to step five. 

III 

 We affirm the ALJ’s decision as to the first three issues, reverse in part the 

judgment of the district court, and remand the case to the district court with 

 
12 

instructions to remand the case to the Commissioner for further proceedings 

consistent with this order and judgment. 

Entered for the Court 

Bobby R. Baldock 

Circuit Judge