UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

DELMAR JEROME SUTTLES, Plaintiff - Appellant,

v. CAROLYN W. COLVIN, Acting Commissioner of Social Security Administration, * Defendant - Appellee. No. 13-5041 (D.C. No. 4:11-CV-00532-PJC) (N.D. Okla.)

ORDER AND JUDGMENT **

Before BRISCOE , Chief Judge, ANDERSON , Circuit Judge, and BRORBY , Senior Circuit Judge.

Plaintiff Delmar Jerome Su ttles appeals from a district court order, issued by a magistrate judge under 28 U. S.C. § 636(c), affirming th e Commissioner’s decision to

* In accordance with Rule 43( c)(2) of the Federal Rules of Appellate Procedure, Carolyn W. Colvin is substituted for Michae l J. Astrue as the defendant-appellee in this action.

** After examining the briefs and appella te record, this pa nel 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel.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 nd 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### October 31, 2013
Elisabeth A. Shumaker Clerk of Court- 2 - deny social security disability and suppl emental security inco me benefits. We independently review the Commissioner’s deci sion to determine whether it is free of legal error and supported by substantial evidence, Krauser v. Astrue , 638 F.3d 1324, 1326 (10th Cir. 2011), and affirm fo r the reasons explained below. I. THE AGENCY DECISION The Administrative Law Judge (ALJ) deni ed benefits at step four of the five-step sequence for determining disability. See Wall v. Astrue , 561 F.3d 1048, 1052 (10th Cir. 2009) (summarizing steps). At step one the ALJ confirmed that Mr. Suttles had not engaged in substantia l gainful activity since October 26, 2008, the alleged onset date. At step two the ALJ found Mr. Suttles “has the following severe impairments: right knee pain; diab etes mellitus; hypertension and history of lacunar stroke.” App. Vol. 2 at 16. Th e ALJ also noted “a me dically determinable impairment[] of depressi on,” but found it did “not cau se more than a minimal limitation in the claimant’s ability to perfo rm basic mental work activities and [is] therefore nonsevere.” Id. at 17. At step three th e ALJ held that Mr. Suttles’ condition did not meet or equa l any of the presumptively di sabling impairments listed in 20 C.F.R. Pt. 404, Subpart P, App. 1. The ALJ then found Mr. Suttles has the residual functional capacity (RFC) for a fu ll range of sedent ary work. Based on testimony from a vocational expe rt (VE), the ALJ conclude d that Mr. Suttles could return to his past relevant work as a computer customer-s ervice representative and, accordingly, denied disabi lity at step four.- 3 - II. CHALLENGES TO THE AGENCY DECISION Mr. Suttles raises two issues relating to the analysis of his depression at step four. First, he contends the ALJ’s consid eration of this impair ment improperly ended at the step-two finding of non-severity, leading the ALJ to disregard its potential effect on RFC and omit if from the VE inquiry underlying th e denial of disability at step four. He also notes in this regard that th e ALJ himself found at step two that the impairment posed a demonstrable, albeit mi ld, limitation in the “functional area [of] concentration, persistence or pace,” App. Vol. 2 at 17, yet did not include this limitation at step four. Second, he contends the ALJ failed to delineate the relevant mental demands of his past work and comp are them to the limitation imposed by his depression, relying instead on the concluso ry opinion of the VE that he could perform the work, contrary to Winfrey v. Chater , 92 F.3d 1017, 1023-25 (10th Cir. 1996). As explained below, we reject Mr. Suttles’ obj ections to the ALJ’s RFC determination, which in turn undercuts hi s objection to the ALJ’s use of the VE.
In Wells v. Colvin , 727 F.3d 1061 (10th Cir. 2013), this court discussed the regulatory directives that require an i ndependent step-four as sessment of mental impairments found medically determinable but non-severe at step two. We noted that at step two the ALJ rates the degree of limitation resulti ng from all medically determinable mental impairments in four broad functional areas, including, as relevant here, “concentration, persistence, or pace.” Id. at 1068 (quoting 20 C.F.R. §§ 404.1520a(c)(3), 416.920a(c)(3)). Ratings that fall short of specified levels- 4 - dictate a finding of “not severe.” Id. (quoting 20 C.F.R. §§ 404.1520a(d)(1), 416.920a(d)(1)). But “[a] conclusion that the claimant ’s mental impairments are non-severe at step two does not permit the ALJ simply to disregard those impairments when assessing a claimant’s RFC and making conclusi ons at steps four and five.” Id. at 1068-69. Rather, “[i]n his RFC assessment, the ALJ must consider the combined effect of all medically determinable im pairments, whether severe or
not.” Id. at 1069 (citing 20 C.F.R. §§ 404.1545( a)(2), 416.945(a)(2)). Mr. Suttles contends that, as in Wells , the ALJ here improperly disregarded his mental impairment at step four after finding it non -severe at step two. We disagree. After finding Mr. Suttles’ depression non-severe at step two, the ALJ recognized that a distinct me ntal RFC assessment was st ill required at step four: The limitations identified . . . [at step two] ar e not a residual functional capacity assessment, but are used to rate the severity of mental impairments at steps 2 a nd 3 of the sequential ev aluation process. The mental residual functional capacity asse ssment used at steps 4 and 5 of the sequential evaluation process requi res a more detailed assessment by itemizing functions contained in the broad categories . . . [previously considered at steps two and three]. App. Vol. 2 at 17. At step four, the ALJ discussed evidence relating to depression and then pointedly omitted a ny limitation associated with that mental impairment on the RFC (a full range of sedentary work), though the ALJ admittedly could have been more explicit in tying the former discussion to the latter conclusion. Significantly, the ALJ did not make any ancillary stat ement, like that made by the ALJ in Wells , affirmatively suggesting an improper conf lation of the step-two and step-four- 5 - assessments. See 727 F.3d at 1069 (noting “language used [that] suggests that the ALJ may have relied on his st ep-two findings to conclude that [the claimant] had no [RFC] limitation based on her mental impa irments”). Taking “common sense, not technical perfection, [a]s our guide,” Keyes-Zachary v. Astrue , 695 F.3d 1156, 1167 (10th Cir. 2012), we hold that the ALJ conducted a mental RFC assessment separate from the non-severity determina tion made at step two. Of course, that is not to say the step -four assessment was necessarily supported by substantial evidence, but Mr. Suttles has not presented an adequately developed challenge to that aspect of the ALJ’s de cision. Save for two patently meritless objections, 1 he does not challenge particular as pects of the ALJ’s discussion of the evidence, nor cite to specifi c evidence in the r ecord that the ALJ should have but did not address. Rather, he obj ects only in conclusory terms that his non-severe mental impairment was “not considered in the hypothe tical to the VE or in the ALJ’s RFC.” Aplt. Br. at 18. As explained above, the ALJ did consider the im pairment at the RFC stage, and its omission from the hypothetical to the VE is a proper consequence of the ALJ’s determination that it di d not have an effect on RFC.

1 One is that the ALJ improperly relied solely on his opinion that the objective medical evidence did not support depres sion—an objection based on a purported quotation from the ALJ’s decision th at actually never appears there. See Aplt. Br. at 18-19. In any event, the ALJ’s RFC disc ussion clearly addresses both medical and nonmedical evidence. The other objection re fers to a statement from a State agency reviewer reciting that Mr. Suttles had suicidal thoughts and other symptoms attributed to a major depressive disorder. See id. at 19 (citing App. Vol. 3 at 341). The citation is actually to a treatment note reciting that Mr. Suttles denied suicidal thoughts and reported only that he felt depressed due to financial stress.- 6 - Mr. Suttles also objects that the ALJ omitted from the RFC assessment a mild limitation found at step two regarding concentr ation, persistence, or pace. However, this court has repeatedly held, albeit in unpublished decisions, that mental limitations noted in the threshold inquiry at steps two and three do not apply at later steps. Beasley v. Colvin , 520 F. App’x 748, 754 (10th Cir 2013); DeFalco-Miller v. Colvin , 520 F. App’x 741, 747-48 (10th Cir. 2013). While these decisions are not binding, they are persuasive and we fo llow the same reasoning here. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1(A). In sum, the ALJ’s RFC determination th at Mr. Suttles can pe rform a full range of sedentary work has not been successfu lly challenged. That conclusion fatally undercuts Mr. Suttles’ objection to the VE inquiry underlying the denial of disability at step four. Such an inquiry is sufficient if “it contain[s] all of the limitations found to exist by the ALJ.” Barnett v. Apfel , 231 F.3d 687, 690 (10th Cir. 2000). That was the case here. And since there was no recognized limi tation regarding Mr. Suttles’ mental functioning, there could be no error in failing to flesh out the mental demands of his past work to compare with such a limitation under the Winfrey process. The order of the district court uphol ding the Commissioner’s decision to deny benefits is affirmed.

Entered for the Court

Mary Beck Briscoe Chief Judge