UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

THELMA ANDERSEN, o/b/o Terry D. Andersen, deceased, Plaintiff-Appellant,

v. CAROLYN W. COLVIN, Acting Commissioner of Social Security Administration, * Defendant-Appellee. No. 12-4181 (D.C. No. 2:10-CV-00872-CW) (D. Utah)

ORDER AND JUDGMENT **

Before HOLMES , HOLLOWAY , and BACHARACH , Circuit Judges.
Thelma Andersen, as surviving spouse of Terry D. Anders en, appeals from the order entered by the district court affirm ing the Social Secu rity Commissioner’s

* 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel.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 3, 2013
Elisabeth A. Shumaker Clerk of Court- 2 - decision to deny her husband’s applicati on for disability insurance benefits. Exercising jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291, we affirm. I. BACKGROUND The administrative record indicates that Mr. Andersen suffered from significant heart and lung c onditions prior to his date la st insured of December 31, 1998. Mr. Andersen claimed that he was unable to work since May 4, 1993, as a result of these conditions, primarily due to fatigue and shortness of breath. But in April 2002, the administrative law judge (ALJ) denied Mr. Andersen’s application for disability insurance benefits. Followi ng unsuccessful appeals to the Appeals Council and the United States District Cour t for the District of Utah, Mr. Andersen challenged the ALJ’s adverse decision in th is court. In that prior appeal, we concluded that “the ALJ erre d in failing to properly dete rmine the weight ultimately assigned to Mr. Andersen’s tr eating physicians’ opinions.” Andersen v. Astrue , 319 F. App’x 712, 718 (10th Cir. 2009). We therefore remanded th e case so that the ALJ could reevaluate the opinions of Mr. Andersen’s treating physicians (Dr. Wren, Dr. Woods, Dr. Hodges, and Dr. Mackie 1 ) and perform a proper sequential evaluation of their opinions in accordan ce with the controlling regulati ons and this court’s case law. On January 27, 2010, after receiv ing additional medical evidence and conducting another hearing at which Mr. A ndersen’s wife testified (Mr. Andersen

1 The first three doctors are internis ts; Dr. Mackie is a cardiologist.- 3 - died in January 2007 as a result of end stag e congestive heart failu re), the ALJ issued a decision in which he again denied Mr. Andersen’s application for disability insurance benefits. In his decision, the ALJ followed the five-step sequential evaluation process for determining wh ether an individual is disabled. See Fischer-Ross v. Barnhart , 431 F.3d 729, 731 (10th Cir. 2005) (summarizing five-step process). First, at step one, the ALJ f ound that Mr. Andersen had not engaged in substantial gainful activity fro m his alleged onset date thr ough his date last insured. The ALJ then found, at st ep two, that Mr. Andersen suffered from the following severe impairments through his date last insured: history of mitral valve disease with history of rheumatic heart disease; an enlarged heart; open heart mitral valve repa irs in 1970 and 1976; mitral stenosis, status post mitral valve replacement with prosthetic St. Judge mitral valve in 1984; aortic sclerosis with moderate aortic stenosis and moderately severe aor tic regurgitation; moderately severe tricuspid regurgitation with pulmona ry artery hypertension; atrial fibrillation; chronic congestive hear t failure with progressive dyspnea on exertion; chronic obstructive pulm onary disease; diffuse pulmonary fibrosis, secondary to a long hi story of smoking cigarettes; and mononuclear vision (blindness in le ft eye) due to stroke. Admin. R. at 337. 2 The ALJ found, at step three, however , that Mr. Andersen did not have an impairment or combination of impairments that met or equaled one of the per se disabling impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Turning to steps four and five, and after reevaluating the opinions of Dr. Wren, Dr. Woods,

2 The administrative record is contained in Volumes I and II of the Appendix to Appellant’s Opening Brief.- 4 - Dr. Hodges, and Dr. Mackie, the ALJ next found that Mr. Andersen had the residual functional capacity (RFC) to perform a lim ited range of light, unskilled work from his alleged onset date through his date last insured. Given this RFC, the ALJ then found, at step four, that Mr. Andersen di d not have the RFC to perform any of his past relevant work. However, at step five, the ALJ determ ined that there were light jobs that existed in significant numbers in the national economy that Mr. Andersen could have performed through his date last insured. The ALJ therefore determined that Mr. Andersen was not under a disability during the relevant time period of May 4, 1993, through D ecember 31, 1998. In June 2010, the Appeals Council deni ed Mrs. Andersen’s request for review, rendering the ALJ’s decision the fina l decision of the Commissioner. See Bowman v.
Astrue , 511 F.3d 1270, 1272 (10th Cir. 2008). Mrs. Andersen then filed this action in federal court on behalf of he r husband, and, in August 2012, the district court entered an order affirming the ALJ’s deci sion. This appeal followed. II. DISCUSSION On appeal, Mrs. Andersen argues that the ALJ committed f our errors in his decision on remand. First, she claims th e ALJ erred in assessing Mr. Andersen’s RFC because: (a) the ALJ failed to take into account his left ventricular hypokinesis; and (b) the ALJ failed to accord the opi nions of his treating physicians controlling weight or, in the alternative, greater weight than the opinion of the nonexamining state agency physician. Second, she clai ms the ALJ erred in posing an inadequate- 5 - hypothetical question to the vocational e xpert at the heari ng conducted during the remand proceedings. Third, she claims the ALJ erred by failing to find that Mr. Andersen met or equaled the listing fo r chronic heart failure, Listing 4.02. And finally, she claims the ALJ erred in asse ssing her and her husband’s credibility. We will address these contentions in the order presented. A. Standard of Review In our review of the ALJ’s decision, we must determine if the ALJ has “applied the correct legal st andards” and also if the ALJ’s “factual findings are supported by substantial evidence in the record viewed as a whole.” Frantz v.
Astrue , 509 F.3d 1299, 1300 (10th Cir. 2007) (i nternal quotation marks omitted). “Substantial evidence is such relevant ev idence as a reasonable mind might accept as adequate to support a conclusi on. It requires more than a scintilla, but less than a preponderance.” Lax v. Astrue , 489 F.3d 1080, 1084 (10th Cir. 2007) (citation and internal quotation marks omitted). A decisi on is not based on subs tantial evidence “if it is overwhelmed by other ev idence in the record.” Wall v. Astrue , 561 F.3d 1048, 1052 (10th Cir. 2009) (internal quotation marks omitted). But in reviewing the ALJ’s decision, “we may neither reweigh the evidence nor substitute our judgment fo r that of the agency.” Frantz , 509 F.3d at 1300 (internal quotation marks omitte d). As a result, “[t]he possibility of drawing two inconsistent conclusions from the evid ence does not prevent an administrative agency’s findings from being suppor ted by substantial evidence.” Lax , 489 F.3d at- 6 - 1084 (internal quotation marks omitted). In other words, “[w]e may not displace the agenc[y’s] choice between two fairly confli cting views, even though the court would justifiably have made a different choice had the matter been before it de novo.” Id. (second alteration in original) (internal quotation marks omitte d). Instead, where substantial evidence supports an ALJ’s decision, “we ma y not reweigh the evidence or try the issues de novo in orde r to advance a different view.” Wall , 561 F.3d at 1069 (internal quotation marks omitted). B. Left Ventricular Hypokinesis Mrs. Andersen claims the ALJ committed reversible error because, “[i]n spite of the Commissioner’s mandate that the ALJ consider all of a claimant’s medically determinable impairments, . . . there is no indication in the ALJ’s decision that he took into account Plaintiff’s left vent ricular hypokinesis in ruling upon his disability.” Aplt. Opening Br. at 10-11. According to Mrs. Andersen: Such an oversight was not only in contravention of the Commissioner’s regulations but ignored a significant impairment that, when combined with the damage to two other chambe rs of Plaintiff’s heart, rendered him unable to function in the workplace. There is no question that when the left ventricle of an individua l’s heart is compromised, it has a significant impact upon a person’s ab ility to engage in normal daily activities for the left ventricle pumps oxygenated blood to the rest of the body. Said left ventricle dysfuncti on was noted throug hout Plaintiff’s medical records and was the obvious cause of his progressive fatigue and weakness and dyspnea (shortness of breath) with d ecreased exercise tolerance. Id. at 11 (record citations omitted).- 7 - We agree with th e Commissioner that Mrs. Ande rsen’s argument is belied by the ALJ’s decision. As the Comm issioner has succinctly explained: Although the ALJ did not explic itly discuss left ventricular hypokinesis, the ALJ adequately accounted for its limiting effects by finding Andersen had as a severe impairment “ch ronic congestive heart failure with progressive dyspnea [s hortness of breath] on exertion.” (App. 337). Congestive heart failure “means that your heart can’t pump enough blood to meet your body’s needs.” MayoClinic.com, Heart failure, http://www.mayoclinic.com/hea lth/heart-failure/DS00061 (last visited Mar. 5, 2013). It can be cause d by the fact that the left ventricle cannot contract vigorously, and sympto ms include shortness of breath, fatigue, and weakness. See id. (follow “Symptoms” hyperlink and “Causes” hyperlink). Thus, by finding congestive heart failure to be severe, and considering its effects on Andersen’s ability to work, the ALJ adequately accounted for Ande rsen’s ventricular dysfunction. Id. at 33-34 (alteration in original). We also note that the ALJ discusse d evidence of Mr. Andersen’s left ventricular dysfunction when determin ing his residual functional capacity. See Admin. R. at 342 (noting “m oderate global left ventricu lar hypokinesis”), 343 (noting “progressive left ventricular dysf unction”), 353 (noting “moderate global hypokinesis”). The ALJ also discussed the limitations that Mr . Andersen alleged were caused by his left ventricular dys function, including fatigue, weakness, and shortness of breath. Finally, at step two of the sequential ev aluation process, the ALJ stated that he “carefully reviewed and considered all the evid ence, regardless of whether it is cited specifically” in his deci sion. Admin. R. at 337. This court’s “general practice . . . is to take a lower tribunal at its word when it declares that it has co nsidered a matter.”- 8 - Flaherty v. Astrue , 515 F.3d 1067, 1071 (10th Cir. 2007) (internal quotation marks omitted). C. Evaluation of Treating Physician Opinions “Treating source medical opinions are [] entitled to deference,” and must either be given controlling weight or assi gned some lessor weight “using all of the factors provided in 20 C.F. R. 404.1527.” SSR 96-2p, 19 96 WL 374188, at *4 (July 2, 1996). To ensure that these opinions receive proper deference, an ALJ reviewing the opinions of treating sources must engage in a sequential analysis. Watkins v. Barnhart , 350 F.3d 1297, 1300 (10th Cir. 2003). First, an ALJ must determine whether the opinion deserves controlling weight. Id. Controlling weight must be given if the opinion is both su pported by medically acceptable clinical and laborator y diagnostic techniques and not inconsistent with the other substantial evidence in the record. 20 C.F.R. § 404.1527(c)(2 ). If both of these conditions are met, no other factors need be considered and the inqui ry is at an end. See id. ; Watkins , 350 F.3d at 1300. If one or both of these conditions is l acking, an ALJ is not free to simply disregard the opinion or pick and choose wh ich portions to adopt. Instead, the ALJ must proceed to a second determination, where the ALJ must both: (1) weigh the opinion “using all of the fa ctors provided in 20 C.F.R. § 404.1527”; and (2) “give good reasons in the . . . decision for the we ight [the ALJ] ultimately assigns the opinion.” Watkins , 350 F.3d at 1300-01 (interna l quotation marks and alteration- 9 - omitted). Further, if the ALJ rejects a treating physic ian’s opinion completely, he must give specific and legiti mate reasons for doing so. Id. at 1301. To support his finding that Mr. Anders en could perform a limited range of light work during the relevant time period, the ALJ found that: (1) neither Dr. Wren, Dr. Woods, Dr. Hodges nor Dr. Mackie was Mr. Andersen’s treating physician during the relevant time period; (2) even if any of them were treating physicians, none of their opinions to the effect that Mr. Andersen was unable to work at any exertional level during the relevant time period was entitled to controlling weight; and (3) after considering the factors set forth in 20 C.F.R. § 404.1527(c), each of their opinions was entitled to less weight than the opinion of the nonexamining state agency physician who reviewed Mr. Anders en’s medical records and determined in November 2000 that he had the RFC to perfo rm light work activity through his date last insured. See Admin. R. at 347-58. We ag ree with the Commissioner that the ALJ articulated numerous specific and legiti mate reasons in hi s extremely thorough decision for giving less weight to the opini ons of Dr. Wren, Dr. Woods, Dr. Hodges, and Dr. Mackie, and we see no reason to re iterate the ALJ’s extensive analysis of those opinions here. Havi ng concluded that the AL J properly discounted the opinions of these doctors and properly gave more weight to the opinion of the state agency physician, we also do not need to address the treating physician/controlling weight issues.- 10 - D. Hypothetical Questi on to Vocational Expert Mrs. Andersen claims the ALJ erre d by posing an inadequate hypothetical question to the vocational expert at the h earing held before the ALJ in November 2009. We disagree. As the Comm issioner has correctly explained: [Mrs. Andersen’s] argument . . . is simply a reiteration of her previous arguments: That the ALJ’s hypothetical question was incomplete because it di d not consider his vent ricular hypokinesis and did not contain the limitations iden tified by several phys icians . . . . Because the ALJ reasonably consid ered Andersen’s ventricular dysfunction and reasonabl y discounted the doctors’ opinions, the ALJ was entitled to rely on the vocational expert’s testimo ny at step five. Aplee. Br. at 56. E. Listing 4.02 Mrs. Andersen claims the ALJ erred at step three of the sequential evaluation process by finding that her husband did not meet or equal the listing for “chronic heart failure,” Listing 4.02, a nd she relies on the version of Listing 4.02 that was in effect in 1998. But the version of Lis ting 4.02 that was in effect in 1998 is not applicable to this case. Instead, the current version of Listing 4.02, which was enacted in 2006, app lies to this case. See Revised Medical Criteria for Evaluating Cardiovascular Impairments, 71 Fed. Reg. 2312, 2313 (Jan. 13, 2006) (“In those cases decided by a court after the effective da te of [these revised] rules, where the court reverses the Commissi oner’s final decision and rema nds the case for further administrative proceedings, on remand, we will apply the provisions of these final rules to the entire period at issue in the claim.”).- 11 - In his decision, the ALJ found that Mr . Andersen did not meet or equal the current version of Listing 4.02, and Mrs. Andersen has failed to challenge that ruling. Moreover, as the Commissi oner has pointed out, because Mr. Andersen was not bedridden during the rele vant time period, he could not meet or equal the version of Listing 4.02 that was in effe ct in 1998 in any event. See Aplee. Br. at 29-30. F. The ALJ’s Adverse Cr edibility Determination “ Credibility determinations are peculiarl y the province of the finder of fact, and we will not upset such de terminations when supported by substantial evidence.” Kepler v. Chater , 68 F.3d 387, 391 (10th Cir. 1995) (internal quotation marks omitted). In his decision, the ALJ found th at Mr. and Mrs. Andersen’s allegations concerning the fatigue and breathing problem s related to Mr. A ndersen’s heart and lung problems were not credible in terms of the limiting effects of those symptoms. We conclude that the ALJ’s adverse credibility determination is supported by substantial evidence in the record on wh ich the ALJ relied, specifically: (1) the paucity of medical treatment that Mr. A ndersen received from Dr. Mackie and his other doctors during the relevant time peri od; (2) the vague nature of much of Mr. and Mrs. Andersen’s hearing testimony; (3) the fact that Mr . Andersen continued to smoke despite his doctors’ recommendations that he quit smoking; and (4) the fact that Mr. Andersen was not always complia nt with his doctors’ recommendations.- 12 - The judgment of the dist rict court is affirmed. Entered for the Court

Jerome A. Holmes Circuit Judge