UNITED STATES COURT 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 Suttles appeals from a district court order, issued by a 

magistrate judge under 28 U.S.C. § 636(c), affirming the Commissioner’s decision to 

 

*

 In accordance with Rule 43(c)(2) of the Federal Rules of Appellate Procedure, 

Carolyn W. Colvin is substituted for Michael J. Astrue as the defendant-appellee in 

this action. 

** After examining the briefs and appellate record, this panel 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 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 31, 2013

Elisabeth A. Shumaker 

Clerk of Court
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deny social security disability and supplemental security income benefits. We 

independently review the Commissioner’s decision 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 for the reasons explained below. 

I. THE AGENCY DECISION 

 The Administrative Law Judge (ALJ) denied 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 substantial 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; diabetes mellitus; hypertension and history of 

lacunar stroke.” App. Vol. 2 at 16. The ALJ also noted “a medically determinable 

impairment[] of depression,” but found it did “not cause more than a minimal 

limitation in the claimant’s ability to perform basic mental work activities and [is] 

therefore nonsevere.” Id. at 17. At step three the ALJ held that Mr. Suttles’ 

condition did not meet or equal any of the presumptively disabling 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 full range of sedentary work. Based on 

testimony from a vocational expert (VE), the ALJ concluded that Mr. Suttles could 

return to his past relevant work as a computer customer-service representative and, 

accordingly, denied disability at step four. 
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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 consideration of this impairment 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 the denial of disability at 

step four. He also notes in this regard that the ALJ himself found at step two that the 

impairment posed a demonstrable, albeit mild, 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 compare them to the limitation imposed by his 

depression, relying instead on the conclusory 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’ objections to the ALJ’s RFC 

determination, which in turn undercuts his 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 independent step-four assessment 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 resulting 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 
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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 conclusions 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 impairments, 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 mental RFC assessment was still required at step four: 

The limitations identified . . . [at step two] are not a residual functional 

capacity assessment, but are used to rate the severity of mental 

impairments at steps 2 and 3 of the sequential evaluation process. The 

mental residual functional capacity assessment used at steps 4 and 5 of 

the sequential evaluation process requires 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 any 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 statement, like that made by the ALJ in Wells, 

affirmatively suggesting an improper conflation of the step-two and step-four 
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assessments. See 727 F.3d at 1069 (noting “language used [that] suggests that the 

ALJ may have relied on his step-two findings to conclude that [the claimant] had no 

[RFC] limitation based on her mental impairments”). 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 determination 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 decision. Save for two patently meritless 

objections,1

 he does not challenge particular aspects of the ALJ’s discussion of the 

evidence, nor cite to specific evidence in the record that the ALJ should have but did 

not address. Rather, he objects only in conclusory terms that his non-severe mental 

impairment was “not considered in the hypothetical to the VE or in the ALJ’s RFC.” 

Aplt. Br. at 18. As explained above, the ALJ did consider the impairment at the RFC 

stage, and its omission from the hypothetical to the VE is a proper consequence of 

the ALJ’s determination that it did 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 depression—an objection based on a purported 

quotation from the ALJ’s decision that actually never appears there. See Aplt. Br. at 

18-19. In any event, the ALJ’s RFC discussion clearly addresses both medical and 

nonmedical evidence. The other objection refers 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. 
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Mr. Suttles also objects that the ALJ omitted from the RFC assessment a mild 

limitation found at step two regarding concentration, 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 follow the same reasoning here. See Fed. R. App. P. 

32.1; 10th Cir. R. 32.1(A). 

In sum, the ALJ’s RFC determination that Mr. Suttles can perform a full range 

of sedentary work has not been successfully 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 limitation 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 upholding the Commissioner’s decision to deny 

benefits is affirmed. 

 Entered for the Court 

 Mary Beck Briscoe 

 Chief Judge