UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ MIKE ALLEN, Plaintiff - Appellant,

v. NANCY A. BERRYHILL,  Acting Commissioner of Social Security, Defendant - Appellee. No. 16-3316 (D.C. No. 5:16-CV-04028-JTM) (D. Kan.)

________________ _________________ ORDER AND JUDGMENT **

________________ _________________ Before BRISCOE , HOLMES , and PHILLIPS , Circuit Judges.

________________ _________________ Mike Allen appeals pro se from the di strict court’s judgment affirming the Commissioner’s denial of his applicati on for supplemental security income. Exercising jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291, we affirm.

 In accordance with Rule 43(c)(2) of the Federal Rules of Appellate Procedure, Nancy A. Berryhill is substitu ted for Carolyn W. Colvin as the Acting Commissioner of the Social Security Administration.

** After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel.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 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### May 1, 2017
Elisabeth A. Shumaker Clerk of Court2 I. BACKGROUND Mr. Allen alleged in his application that as of October 9, 2013, he was disabled due to a back injury. His claim was ultimately denied by an administrative law judge (ALJ) at steps four and five of the five-s tep sequential evaluation process set forth in 20 C.F.R. § 416.920(a)(4). The ALJ f ound that although Mr. Allen had several severe impairments (lumbar spine degenerativ e disc disease, bila teral degenerative joint disease, obesity), they did not meet or medically equal the severity of one of the impairments listed in 20 C.F.R. Pt. 404, Subpart P, Appendix 1, that are so severe as to preclude employment. The ALJ then found that Mr. Allen had the residual functional capacity (RFC) to perform a lim ited range of work in the medium exertional category. Specifica lly, the ALJ determined that Mr. Allen could lift, carry, push, or pull 50 pounds occasionally and 25 po unds frequently; stand and walk or sit about 6 hours in an 8-hour workday with normal breaks; occasi onally climb ramps, stairs, ladders, ropes, and s caffolds; and occasionally stoop, kneel, crouch, and crawl. The ALJ also found that Mr. Allen should a void concentrated exposure to jerking or bouncing motions, and that he would need to shift between standing and sitting as frequently as every half-hour but could do so without loss of productivity. With these limitations, the ALJ dete rmined Mr. Allen could retu rn to his past relevant work as a security guard. In the alternative, the ALJ concluded that Mr. Allen could perform other work existing in signifi cant numbers in the national economy, including arcade attendant, storage facility rental clerk, and parking lot cashier. Accordingly, the ALJ denied Mr. Allen’s application.3 Mr. Allen submitted additional evidence to the Appeals Council, including a spinal MRI performed after th e ALJ had issued his decisi on. The Council determined the evidence would not have changed the outco me and denied his request for review. The district court affirmed , and Mr. Allen appeals. II. DISCUSSION Our task in this appeal is limited to determining whether substantial evidence supports the agency’s fact ual findings and whether the agency applied the correct legal standards. Barnett v. Apfel , 231 F.3d 687, 689 (10th Cir. 2000). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (internal quotation marks om itted). We cannot “reweigh the evidence” or “substitute our judgm ent for that of the agency.” Id. (internal quotation marks omitted). A. Substantiality of the evidence Mr. Allen raises only general challenges to the substantiali ty of the evidence supporting the ALJ’s decision, claiming that “[t]he medical reco rd speaks volumes” and he has “no confidence in the [ALJ’s] deci sion.” Aplt. Opening Br. at 2, 3. He also points to the MRI report and claims “t here is no argument in presenting the facts to the court[:]” he cannot walk for more than 20 minutes, and he cannot sit in one position or stand for more th an an hour. Reply at 1–2. 1 He summarily claims that he cannot climb ropes or scaffolds, as the AL J found, and he newly complains that he

1 We have construed Mr. Allen’s “Moti on to Approve Plaintiff’s Request for SSDI” as his reply brief.4 lacks flexibility in his right hand. He al so states that he cannot afford regular epidural injections or physi cal therapy because he has no in come or health insurance. Mr. Allen fails to support these arguments with any citation to the record or legal authority. Even pr o se litigants are requi red to do this much. Garrett v. Selby Connor Maddux & Janer , 425 F.3d 836, 840–41 (10th Cir. 2005). Nonetheless, we have reviewed the medical evidence. Our review confirms that the ALJ accurately recounted the medical evidence in his decision, and we ha ve uncovered nothing suggesting that there was not substantial evidence to supp ort the ALJ’s determination of Mr. Allen’s RFC or the ALJ’s findings concerning the jobs Mr. Allen could perform despite his limitations. Mr. Allen testified that his low-back in jury resulted from moving more than 20 heavy bags of concrete. 2 He received chiropractic treatment soon after, which afforded him some relief, a nd he was given a lumbar sup port, which he did not wear during the day because it was too hot. He wa s also advised to stretch and use ice at home. R. at 397. A few weeks later he wa s seen at the Hunter Health Clinic for severe back pain. Id. at 491. He had a normal gait, no focal deficits, intact sensation, and symmetric reflexes. Id. at 492. He was assessed with lumbago, prescribed

2 Mr. Allen faults the AL J for stating the injury occurred after moving only three heavy bags. But the number of bags Mr. Allen moved is immaterial to the disability issue, which c oncerns what he can still do despite his limitations. See 20 C.F.R. § 416.945(a)(1) (RFC “is the most [a claimant] can still do despite [his] limitations”). Hence, any error by th e ALJ regarding the number of bags was harmless. See Poppa v. Astrue , 569 F.3d 1167, 1172 n.5 (10th Cir. 2009) (recognizing that “a mere scrivener’s error” doe s “not affect the out come of [a social security] case”).5 prednisone and baclofen, and a dvised to stretch, re st, and use ice or heat as needed. Id. Mr. Allen next met with a consultative examiner, James Henderson, M.D., in March 2014, at the Commissioner’s request. Id. at 506–09. On examination, Mr. Allen’s walking was unimpaired, but he had limited range of motion in the lumbar spine, and crepitation in both knees with full range of motion. Id. at 508. Dr. Henderson found no evidence of inflam matory change, erythema, hyperthermia, or paraspinous muscle spasm. Id. at 507–08. Mr. Allen’s motor and sensory functions were intact, his re flexes were symmetrical, a nd his gait and station were stable. Id. at 508. He had no difficulty getti ng on and off the examination table, no difficulty with heel and toe walking, and mild difficulty squatting and arising from the sitting position. Id. A radiologist’s report made the following observations: Mr. Allen’s right knee had no acute abnor malities; the join t spaces appeared adequately maintained with no discernible marginal spurring, eburnation, or erosive change; there was no indication of “a joint effusion or intra-ar ticular loose body”; and the surrounding soft tissues were intact. Id. at 509. Regarding his lumbar spine, there was minimal spondylosis between T12 and L2 and at L3–4, but the vertebral height and alignment were satisfactory, and the remaining disc spaces appeared adequately maintained. Id. There were no abnormalitie s affecting the posterior elements or sacroiliac joints. Id. Mr. Allen returned to the Hunter Health Clinic in June 2014 complaining that his back was “killing” him. Id. at 514. He rated his pain at 6/10 and reported that6 ibuprofen and muscle relaxers ef fectively relieved his symptoms. Id. He was in no acute distress, and his gait was normal, but he had impaired range of motion bending forward and backward. Id. at 515. He was tender to palpitation over the paraspinal muscles bilaterally but not over the spinous pr ocesses, and a straight-leg raising test was negative. Id. Other findings were essentially unremarkable. He was diagnosed with low back pain, muscle spasm, and ob esity. He was prescribed ibuprofen for pain and inflammation, and tizanidine for muscle spasms, both as needed. Id. He was told to lose weight, stre tch, exercise lightly , use ice or heat as needed, and use a supportive pillow and mattress. Id. Mr. Allen’s next follow-up for back pa in occurred in March 2015, when he had a lumbar-spine x-ray for what he said was increa sing back pain. Id. at 524. The x-ray showed normal verteb ral body height and alignm ent; well-maintained disc spaces; and some anterior osteophyte formation. Id. The impression was spondylosis deformans without fractures or acute abnormalities. Id. A few weeks later, Mr. Allen followed up with his primary care provider at the clinic. Id. at 526–29. He reported that if he wakes up around 6:00 or 7:00 a.m., his lower back hurts and he is fa tigued, but he is better if he sleeps until 10:00 a.m. Id. at 526. He said if he lifts objects more than 25 or 30 pounds, his back pain worsens for three or four days. Id. He was using ibuprofen three or four times a week and tizanidine even less unless he exacerbates his sympto ms, in which case a few days on tizanidine retu rns him to baseline. Id. He complained of some numbness in his pelvis but denied any sciati ca, radiculopathy, or loss of bowel or7 bladder control. Id. Except for decreased range of mo tion with forward flexion and extension due to pain, the examination of his back was unremarka ble: his range of motion was normal with right and left latera l rotation and flexion, there was no pain with palpation to spinal pr ocesses, and a straight-leg-r aise test was negative. Id. The assessment was lumbar spondyl osis, low-back pain, and lo w-back muscle spasm. Id. at 529. He was referred to physical therapy, received a refill on his medications, and encouraged to do light stre tching and exercises, to use ic e or heat, and to rest his back. Id. In April, Mr. Allen went for a ph ysical therapy evaluation, where it was noted that he had minimal or no loss of movement in his lumbar spine, his upper-extremity range of motion was within functional limits, a nd he had complete independence in mobility. Id. at 571–72. He was given exercises to perform, id. at 553, and a suggestion to join a YMCA for exercise, id. at 574, but in May he decided that the exercises were not effective and that he would return to his medical doctor for an orthopedic referral, id. at 569. In June 2015, Mr. Allen went to the emergency room for his back pain. Id. at 537–50. He thought his me dications (“Motrin, Flexeril , and aspirin”) were causing chest pain and palpitations. Id. at 537. He asked for an MRI and a referral to a specialist. Examination rev ealed midline tenderness to th e lower lumbar area without skin changes. Id. at 538. He was released to home, referred to a neurological surgeon, and prescribed hydrocodone with acetaminophen. Id. at 544, 546–47. At the hearing, Mr. Allen said he coul d probably do an office job now using his education, id. at 136, could probably do a securi ty job that involved only sitting8 and watching a monitor, id. at 137, and could sit for two hours if he was able to move around in his seat, but then he woul d have to get out of the chair, id. at 149. He was taking hydrocodone and acet aminophen twice a week on average, but he was concerned about side effects, in particular the chest pain he had experienced while on other medication. Id. at 138. He said he used a knee brace sometimes, but it was not prescribed for him, id. at 139, and he was not using a ny assistive devices at time of hearing, id. at 140. He also said he uses a back support he got from his chiropractor, id. , and he had not used cold therapy because “there’s too much to it,” id. at 141. He reported an ability to attend to a variety of activities of daily livi ng, albeit with some limitations. As noted, the ALJ accurately described this medical evidence and Mr. Allen’s testimony. In reaching his decision, the AL J also considered the April 2014 report of a non-examining consulting physi cian, CA Parsons, M.D. Dr. Parsons reviewed the medical evidence and opined that due to hi s back injury, Mr. Allen could perform work at the medium exertional level; could stand and/or walk with normal breaks for 6 hours in an 8-hour workda y; could sit with normal break s for 6 hours in an 8-hour workday; could frequently climb stairs, stoop, and kneel; a nd could occasionally crouch and crawl. Id. at 192–93. The ALJ gave Dr. Parsons’s opinion substantial weight for the exertional findings because they were supported by the record, but found other limitations where Dr. Pars ons had found none: Mr. Allen’s knee condition limited him to only occasional st air climbing, kneeli ng, and stooping; he9 needed to avoid bouncing and jerking; and he needed to be able to shift positions as frequently as every half hour. In September 2015, after the ALJ had is sued his decision, Mr. Allen had an MRI of his lumbar spine. Id. at 582–83. The MRI conf irmed multilevel degenerative disc disease most pronounced at the L1-L2 level; a diffuse L1-L2 disc bulge with a disc spur causing mild central canal narrowing and mild le ft neuroforaminal narrowing; and mild to modera te neuroforaminal narrowin g bilaterally at L4-L5 due to disc bulge and spurs. Id. at 583. Mr. Allen submi tted the MRI results to the Appeals Council along with an undated lett er from a Doctor Roy stating that Mr. Allen was a good candidate for spinal decompression therapy. Id. at 587. Given the generally mild or moderate medical findi ngs, the effectiveness of medications used only as needed, the wei ght afforded to Dr. Parson’s opinion, and Mr. Allen’s testimony, there was substan tial evidence for the ALJ’s decision. See White v. Barnhart , 287 F.3d 903, 909–1 0 (10th Cir. 2002) (effectiveness of medications is appropriate c onsideration in evaluating clai mant’s claim of disabling pain); 20 C.F.R. § 416.929(c)(3)(iv) (sam e). Mr. Allen appears to be under the impression that evidence confirming the mere existence of his impairments, coupled with his allegation that pain has prevente d him from working since the injury, is sufficient to entitle hi m to a favorable decision on his application. It is not.
See 20 C.F.R. § 416.929(a) (“[S ]tatements about your pain or other symptoms will not alone establish that you ar e disabled.”). The disability inquiry turns on what he can still do despite his impairme nts and the pain they cause. See Brown v. Bowen ,10 801 F.2d 361, 362–63 (10th Cir. 1986) (“[D]isabi lity requires more than mere inability to work without pain. To be disab ling, pain must be so severe, by itself or in conjunction with other impairments, as to preclude any substantial gainful employment.” (internal quota tion marks omitted)). No one doubts that Mr. Allen has severe impairments that cause him pain. The ALJ said as much. And while the MRI re port is consistent with those findings, nothing in it suggests that Mr . Allen’s back impairment li mits him more than the ALJ found. Nor does his claimed inability to pay for epidural injections or physical therapy alter our conclusion. Mr. Allen ha s not argued that he cannot afford the medication that was prescribed for, and eff ectively controlled, his pain, and a lack of funds was not the reason he gave for disc ontinuing physical ther apy such that we might question any reliance the ALJ may ha ve placed on Mr. Allen’s decision to do

so. See Threet v. Barnhart , 353 F.3d 1185, 1190–91 n.7 (10th Cir. 2003) (“[I]nability to pay may provide a justifi cation for a claimant’s failure to seek treatment.”). Finally, Mr. Allen did not ba se his benefits claim on any problems with his right hand, and no such pr oblem is evident in the record the ag ency considered. In sum, we cannot say the evidence supporti ng the ALJ’s decision was insubstantial. B. Asserted procedural errors Mr. Allen does advance specific challenges to the handling of his case. In one, he claims that at an initial hearing, th e ALJ asked him to wa ive his right to an attorney. The ALJ did no such thing. At the first hearing, Mr. Allen appeared without counsel and asked fo r a continuance in order to obtain representation.11 See R. at 154. The ALJ granted that request but said it was “a onetime thing. . . . [A]t the next hearing if you’re without represen tation, we can go ahead and go forward at that time.” Id. at 154–55. The ALJ then summa rized Mr. Allen’s “right to be represented by an attorney or a non-attorn ey” and his “right to proceed without a representative.” Id. at 155. The ALJ then said, “N ow prior to proceeding with the hearing, I’ll ask you to sign a form indicat ing that you understand your rights and in this instant, since you’ve indicated that you would like a continuance, the form indicates that you understand that this is a onetime thing . . . and the next time we go ahead and go forward.” Id. at 155–56. The ALJ advised Mr. Allen that “it would be in [his] best interest to obtain repr esentation sooner rather than later.” Id. at 161. We see nothing improper in the ALJ’ s handling of the withdrawal of Mr. Allen’s first attorney. First, we emphasize that, c ontrary to what Mr. Allen appears to think, he did not have a c onstitutional right to counsel, but only an administrative right to appoint a representative, attorney or not. See 20 C.F.R. § 416.1505(a)–(b) (stating that a claimant “may appoint as [his] representative . . . any attorney in good standing” or “any person who is not an attorney” who is qualified under the regulation); Banta v. Chater , No. 95-6457, 19 96 WL 477298, at *1 (10th Cir. Aug. 22, 1996) (unpublished 3 ) (“There is no constitutional or statutory right to competent counsel in Social Security proceedings[.]”); cf. MacCuish v. United States , 844 F.2d 733, 735 (10th Cir. 1988) (Sixth

3 Consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1, we cite to our unpublished decision in Banta only for its pers uasive value.12 Amendment right to counsel do es not apply to civil matter s.) Second, even if the ALJ’s remarks were somehow improper or mi sleading, Mr. Allen was able to obtain counsel to represent him at the second and final he aring before the ALJ. Accordingly, any impropriety or misinfor mation in the ALJ’s remarks ultimately caused Mr. Allen no harm. Mr. Allen also questions the ALJ’s qua lifications, stating that the agency “promotes ordinary staffs to ALJ positions without scholar[ly] credentials.” Aplt. Opening Br. at 3. But we are not empower ed to judge whether the agency has hired qualified ALJs; our jurisdiction is limite d to reviewing the ALJ’s decision.
See 42 U.S.C. 405(g) (providing for judicial review of “final decisions of the Commissioner”); Brandtner v. Dep’t of Health & Human Servs. , 150 F.3d 1306, 1307 (10th Cir. 1998) (§ 405(g) is “sole jurisdictional basis in social securi ty cases”). Third, in his docketing statement, Mr. Allen suggests the Commissioner had his district court case improperly transferre d from Topeka, Kansas, where he filed it, to Wichita, Kansas. Our review of the di strict court’s docket indicates that although Mr. Allen designated Topeka as the place fo r trial, the Commissi oner filed nothing to affect whether the case wa s assigned to a judge in Wichita, and no trial ever occurred. Consequently, we are ha rd pressed to find any impropriety. Finally, we note that Mr. Allen filed with this court a “Summary Judgment Motion,” asking that we grant him summar y judgment in this matter. Requesting summary judgment is not appropriate in an a ppeal from the denial of social security benefits. In any event, we have concluded that the de nial of benefi ts should be13 affirmed. Therefore, alt hough we have considered the arguments set forth in the motion, we deny it as moot. C. Ancillary matter Mr. Allen has filed a “Motion on Patient’s Constitutional Rights to Confidential Medical Care” (Motion) allegi ng “that a Social Secu rity affiliate is making contact with [his] healthcare provide rs to influence the quality of medical care [he] receive[s] and to alte r the language of [his] medica l reports.” Motion at 1. He asks us to “stop this s ource of distraction both with [h is] care providers as well as [his] representatives.” Id. at 3. As noted above, our ju risdiction in this appeal is limited to reviewing the ALJ’s decision. We therefore deny the Motion for lack of jurisdiction. III. CONCLUSION The judgment of the district court is affirmed. Mr. Allen’s Summary Judgment Motion is denied as moot, and his Motion on Patient’s Constitutional Rights to Confidential Medical Care is denied for lack of jurisdiction.

Entered for the Court
Gregory A. Phillips Circuit Judge