UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

ANITA RIVERA, 

 Plaintiff - Appellant, 

v. 

CAROLYN W. COLVIN, Acting 

Commissioner of Social Security, 

 Defendant - Appellee. 

No. 14-1516 

(D.C. No. 1:13-CV-01890-WJM) 

(D. Colo.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before HARTZ, PORFILIO, and PHILLIPS, Circuit Judges. 

_________________________________ 

Anita Rivera appeals the district court’s order upholding the decision of an 

administrative law judge (ALJ) to deny her application for social security benefits. 

We affirm. 

I. Background 

Rivera applied for disability insurance benefits and supplemental security 

income. She claimed that, beginning June 1, 2007, she became unable to work due to 

 *

 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 This order and judgment is not binding precedent, 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 20, 2015

Elisabeth A. Shumaker 

Clerk of Court

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anxiety, depression, social phobia, and mental distress. Following a hearing, the ALJ 

found that Rivera was not disabled within the meaning of the Social Security Act and 

denied her application. The district court affirmed the ALJ’s decision. 

On appeal, Rivera argues the ALJ erred when he denied her application. 

Specifically, she claims the ALJ improperly weighed the opinions of two 

psychiatrists and posed inadequate hypothetical questions to a vocational expert 

(VE). We reject these claims in turn. 

II. Standard of Review 

The applicant in a social security case bears the burden to prove a qualifying 

disability. Maes v. Astrue, 522 F.3d 1093, 1096 (10th Cir. 2008). While we review 

the district court’s ruling de novo, Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 

2009), our review of the ALJ’s decision is limited to determining whether the ALJ 

correctly applied the law and whether substantial evidence supports the ALJ’s 

findings, see Knight ex rel. P.K. v. Colvin, 756 F.3d 1171, 1175 (10th Cir. 2014). 

Evidence is substantial if a reasonable mind might accept it as adequate to support a 

conclusion. Wall, 561 F.3d at 1052. “It requires more than a scintilla, but less than a 

preponderance.” Id. (internal quotation marks omitted). “[E]vidence is not 

substantial if it is overwhelmed by other evidence in the record.” Id. (internal 

quotation marks omitted). 

We do not reweigh the evidence before the ALJ or substitute our judgment for 

the ALJ’s. Knight, 756 F.3d at 1175. Likewise, where the evidence supports 

contrary findings, we will not disturb the ALJ’s choice between them even if we 

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would have made a different decision. Oldham v. Astrue, 509 F.3d 1254, 1257-58 

(10th Cir. 2007). 

Finally, we review only issues that were properly preserved in the district 

court and adequately presented on appeal. Krauser v. Astrue, 638 F.3d 1324, 1326 

(10th Cir. 2011). 

III. The ALJ Properly Weighed the Psychiatrists’ Opinions 

After Rivera applied for social security benefits, she met with psychiatrist 

Stuart Kutz, who conducted a mental status examination. Dr. Kutz diagnosed Rivera 

with panic disorder with agoraphobia, post-traumatic stress disorder, depressive 

disorder, a history of alcohol dependence, and cannabis abuse. He concluded that 

“[r]elative to a competitive work setting throughout the day, [Rivera’s] 

attention/concentration, persistence and pace in task completion, and social 

adaptation all would be moderately to markedly impaired. Her understanding and 

memory seem perhaps mildly to moderately impaired.” Aplt. App., Vol. 2 at 359. 

A few weeks later, Dr. Arthur Lewy, a psychiatrist with Disability 

Determination Services (DDS), reviewed Dr. Kutz’s report and the rest of Rivera’s 

available records. He concluded that, despite her impairments, Rivera could 

understand and remember simple instructions, tolerate brief interactions with the 

public, “accept supervision d[el]ivered in a normative fashion,” and get along with 

coworkers. Id., Vol. 1 at 79-80. 

In assessing Rivera’s residual functional capacity (RFC), the ALJ accepted 

Dr. Kutz’s diagnosis, but gave more weight to Dr. Lewy’s opinion of Rivera’s mental 

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limitations. Consistent with Dr. Lewy’s opinion, the ALJ found that Rivera could 

understand, remember, and carry out simple instructions and that she could 

occasionally interact with supervisors and coworkers, but not the public.1

 Rivera 

claims the ALJ erred by giving more weight to Dr. Lewy’s opinion than to Dr. Kutz’s 

opinion. Because the ALJ correctly applied the law and substantial evidence 

supports his findings, we disagree. 

An ALJ must consider six factors to determine what weight to give a medical 

opinion: (1) the examining relationship between the physician and the applicant; 

(2) the length, nature, and extent of their treatment relationship; (3) the strength of 

the evidence supporting the opinion; (4) the consistency of the opinion with the 

record as a whole; (5) the physician’s specialty; and (6) any other factors, such as the 

physician’s familiarity with disability programs and the extent of his familiarity with 

other information in the record, that tend to support or contradict the opinion. 

See 20 C.F.R. §§ 404.1527(c), 416.927(c); Goatcher v. U.S. Dep’t of Health & 

Human Servs., 52 F.3d 288, 290 (10th Cir. 1995). 

Here, the ALJ did not discuss all the factors, but he cited them, and his 

decision was specific enough for us to determine what weight he gave the opinions 

and why. See Oldham, 509 F.3d at 1258 (stating that the ALJ need not explicitly 

discuss all the factors if his decision is “sufficiently specific to make clear to any 

 1

 The ALJ also found that Rivera had the residual functional capacity to 

perform light exertional work. Specifically, she could lift and carry up to twenty 

pounds, sit for two hours, stand for three hours, and walk for thirty minutes. Rivera 

does not challenge these conclusions. 

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subsequent reviewers the weight [he] gave to the . . . medical opinion and the reasons 

for that weight” (internal quotation marks and citations omitted)). The ALJ gave 

Dr. Lewy’s opinion more weight because he found it was most consistent with the 

record as a whole and because Dr. Lewy reviewed the available medical records, 

whereas Dr. Kutz relied at least in part on Rivera’s subjective description of her 

symptoms, which the ALJ found unreliable. The ALJ also noted that DDS 

psychiatrists like Dr. Lewy are “highly qualified experts in Social Security disability 

evaluation.” Aplt. App., Vol. 1 at 15. Substantial evidence supports these findings. 

The ALJ identified several ways in which Dr. Lewy’s opinion was consistent 

with other evidence. Rivera acknowledged in her disability application and 

testimony that she stopped working in June 2007 not because of any physical or 

mental limitations, but because her contract expired. According to her medical 

records, doctors first suspected she may have an anxiety disorder nearly two years 

later. In response to questions in her disability application, Rivera said she cooks her 

own meals, cleans her house, does laundry, mows her lawn, and pulls weeds. She 

said she shops for groceries, clothes, and medication about once a month, and 

explained that she generally takes public transportation even though crowds make her 

uncomfortable. When asked about her hobbies, Rivera said she reads, crochets, 

walks in the park, goes to movies, and talks to her family on the phone. Rivera also 

noted that she helps her sister-in-law by shopping for her and cleaning her house. In 

short, the ALJ properly determined that the record as a whole supports Dr. Lewy’s 

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conclusion that that Rivera’s mental health problems, while not insignificant, were 

not debilitating. 

Rivera argues the ALJ should have given Dr. Kutz’s opinion greater weight 

because, unlike Dr. Lewy, Dr. Kutz personally examined her. While it is true that an 

ALJ should generally give more weight to the opinion of an examining physician, 

see 20 C.F.R. §§ 404.1527(c)(1), 416.927(c)(1), the ALJ may also consider whether a 

given physician is more familiar with other information in the record, see id. §§ 

404.1527(c)(6), 416.927(c)(6). Here, the ALJ explained that he gave less weight to 

Dr. Kutz’s opinion because Dr. Kutz examined Rivera only once and relied on her 

subjective complaints, which the ALJ found were incredible,2

 rather than the more 

objective information contained in Rivera’s medical records. Although it appears 

Dr. Kutz did, in fact, review some of Rivera’s records, he made numerous references 

to Rivera’s description of her symptoms in his report, suggesting he also relied on her 

statements. In contrast, Dr. Lewy’s report shows that he based his opinion solely on 

the information contained in Rivera’s records.3

 In weighing their opinions, it was 

entirely appropriate for the ALJ to consider where Dr. Lewy and Dr. Kutz got their 

information. See Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007) 

 2

 Rivera does not challenge the ALJ’s credibility determination. 

3

 Rivera suggests Dr. Lewy did not review all records that existed at the time 

of his report. Exactly which records Dr. Lewy examined is beyond the scope of our 

review. For our purposes, it is sufficient that substantial evidence supports the ALJ’s 

determination that Dr. Lewy reviewed Rivera’s records (which is clear from his 

report) and based his opinion on the information therein rather than on Rivera’s 

subjective complaints. 

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(concluding the ALJ properly gave no weight to a physician’s opinion because he 

met with the claimant only once, he relied on her subjective report, and his opinion 

was not supported by the evidence). To the extent Rivera asks us to reweigh the 

evidence, we cannot do so. See Knight, 756 F.3d at 1175. 

Additionally, the ALJ properly considered Dr. Lewy’s expertise in evaluating 

social security claims as a DDS psychologist. See 20 C.F.R. §§ 404.1527(c)(6), 

416.927(c)(6) (providing that, when weighing opinions, an ALJ may consider “the 

amount of understanding of [the Social Security Administration’s] disability 

programs and their evidentiary requirements that an acceptable medical source has”); 

id. §§ 404.1527(e)(2)(i), 416.927(e)(2)(i) (stating that agency psychologists are 

“highly qualified” psychologists “who are also experts in Social Security disability 

evaluation”). 

In sum, the ALJ correctly applied the law, and substantial evidence supports 

his decision to give the greatest weight to Dr. Lewy’s opinion. 

IV. The ALJ Posed Sufficient Hypothetical Questions to the VE 

In finding Rivera was not disabled, the ALJ relied on the VE’s opinion that 

someone with Rivera’s RFC was capable of performing her past work. Rivera argues 

that the VE’s opinion was insufficient to support the ALJ’s finding because the ALJ 

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failed to advise the VE of all of Rivera’s work-related limitations.4

 Assuming this 

claim is sufficient to warrant appellate review,5

 we see no error. 

The ALJ elicited the VE’s opinion on Rivera’s ability to perform her past work 

by asking hypothetical questions. In general, hypothetical questions are sufficient if 

they include all of the limitations the ALJ found in his assessment of the claimant’s 

RFC. See Qualls v. Apfel, 206 F.3d 1368, 1373 (10th Cir. 2000). Here, the ALJ 

found that Rivera had the RFC to perform light exertional work, and that she could 

lift and carry up to twenty pounds, sit for two hours, stand for three hours, and walk 

for thirty minutes. He also found that Rivera could understand, remember, and carry 

out simple instructions, and that she could occasionally interact with supervisors and 

coworkers, but should have no contact with the public. The ALJ included all of these 

limitations in his hypothetical questions to the VE. Aplt. App., Vol. 1 at 63. The 

VE’s answer was therefore sufficient to support the ALJ’s disability decision. 

See Qualls, 206 F.3d at 1373. 

 4

 Rivera challenges only the sufficiency of the ALJ’s hypothetical questions, 

not the extent of the ALJ’s reliance on the VE’s testimony. See Winfrey v. Chater, 

92 F.3d 1017, 1024-25 (10th Cir. 1996). 

5

 Rivera failed to identify the additional limitations she believes should have 

been included in the ALJ’s questions. “Perfunctory complaints that fail to frame and 

develop an issue are not sufficient to invoke appellate review.” Femedeer v. Haun, 

227 F.3d 1244, 1255 (10th Cir. 2000) (brackets omitted). Nevertheless, the district 

court assumed Rivera referred to limitations contained in medical opinions other than 

Dr. Lewy’s and ruled on Rivera’s claim. We do the same. 

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V. Conclusion 

 We affirm the district court’s order. 

Entered for the Court 

Gregory A. Phillips 

Circuit Judge 

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