UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ TONY L. OLSON, Plaintiff - Appellant,

v. NANCY A. BERRYHILL, * Acting Commissioner of Social Security, Defendant - Appellee. No. 15-3231 (D.C. No. 2:14- CV-02474-JWL) (D. Kan.)

________________ _________________ ORDER AND JUDGMENT **

________________ _________________ Before TYMKOVICH , Chief Judge, KELLY and O’BRIEN , Circuit Judges.

________________ _________________ Tony L. Olson appeals pro se from a district court order affirming the Commissioner’s denial of disability insurance benefits (DIB) and supplemental security income (SSI). Exercising juri sdiction under 28 U. S.C. § 1291 and 42 U.S.C. § 405(g), we affirm.

* Under Fed. R. App. P. 43(c)(2), Nanc y A. Berryhill is substituted 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel.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 

### July 10, 2017
Elisabeth A. Shumaker Clerk of Court2 B ACKGROUND Olson has worked as a truck driver a nd “a union field organizer/membership solicitor.” R., Vol. I at 203. He has a high school education. In 2010, at the age of 45, he applied for DIB and SSI, claimi ng disability due to high blood pressure, an enla rged heart valve, a bilateral “[l]ung condition,” migraines, and “[v]ision problems.” Id. at 506. In 2011, Olson adde d he had fainted and fallen off of a deck, fracturing two cervical vert ebrae, but not requiring surgery. In April 2012, an administrative law ju dge (ALJ) held a hear ing and found Olson not disabled. She relied heavily on the test imony of an independen t neurologist, Gerald Winkler, M.D., who opined Olson’s neck “situation [wa]s stable,” id. at 147, and he retained “the strength to carry out normal acti vities,” but he should avoid “expos[ure] . . . to further [neck] trauma,” id. at 148. The Appeals Co uncil vacated the decision, however, and remanded for consideration of Olson’s “cardiac impairments.” Id. at 212. On remand, the ALJ obtained testimony from cardiologist David West, M.D.; pulmonologist William Houser, M.D.; Olson; and a vocational expert. Dr. West described Olson’s cardiac health as “only minimally compromised.” Id. at 121. Dr. Houser opined that Ols on has “a reduction in breath ing capacity” caused by an enlarged heart, id. at 129, as well as sleep apnea, but he “doesn’t have a pulmonary disease,” id. at 131. Olson testified he has “cons istent[ly] [passed out] over the last [several] years” and must use a wheelchair to prevent falls, id. at 87, and he needs a portable oxygen unit “[ b]ecause [his] oxygen level gets low,” id. at 86. He claimed difficulty reading and “seeing anything from center above,” id. at 99, because of an “eye3 problem . . . in the back of [his] head,” caused by his “broke[n] . . . neck,” id. at 102. A vocational expert (VE) testified a hypothetic al claimant with Olson’s age, education, and work history could perform several j obs in the national eco nomy if limited to semi-skilled and light exertional work and certain other restrictions. The ALJ again found Olson not disabled. The ALJ id entified Olson’s severe impairments as a cervical fracture, degenerativ e disc disease, obesity, bilateral hearing loss, and right ankle degenerative changes/spra in or strain. Despite these impairments, the ALJ found he had a residua l functional capacity (RFC) co mpatible with light work, with restrictions related to reaching; ambul ation; exposure to loud noises, extreme temperatures and dangerous machinery; and in teractions with others. In doing so, the ALJ relied on the Physical RFC Assessment completed by a state agency consulting physician, Kyle Timmerman, M.D., who note d Olson “had absolutely no neurological sequelae” from his cervical fracture, id. at 967, and was being treated conservatively “w/an Aspen collar,” id. at 964. The ALJ found the opinions and observ ations of Olson’s own neurologist, Timothy Stepp, M.D., were “not inconsiste nt” with the above RF C for light work. Id. at 61. In particular, the ALJ noted Dr. Stepp had observed Olso n exhibit “5/5 motor strength and nonspastic gait” just fi ve months after the fracture. Id. The ALJ did not, however, accept Dr. Stepp’s co nclusion expressed on a “Wor k Form” a year after the accident that Olson “sho uld be considered perm anently disabled.” Id. at 1265. The ALJ noted Dr. Stepp’s conclusion did not “assert any specific functional limitations, and it4 otherwise [was] conclusory to the ultimate issue of disab ility, which is a legal decision reserved to the Commissioner.” Id. at 62. The ALJ rejected a restrictive RFC because Olson had “present[e d] a false picture of himself” and “undermine[d] his allegations of being disabled.” Id. at 56. In particular, the ALJ noted Olson had owned and managed a bar for nearly six months after his alleged disability-onset date. Further, the ALJ observed Ols on had renewed his commercial driver’s license in January 2013, with a moto rcycle endorsement and no restrictions. Additionally, the ALJ recounted how an investigator from the Disability Investigation Unit (DIU) had contacted four of Olson’s neighbors and they denied ever seeing Olson (1) “being chauffeured by” anyone, id. at 1816; or (2) using a wheelchair or oxygen. Consequently, the ALJ concluded Ols on’s claimed limitations could not be fully accepted in fashioning his RFC unless they were “directly shown and supported by objective medical findings on a 12-month durational basis.” Id. at 58. The ALJ then examined th e medical records and testimonies from both hearings and concluded while Olson coul d not perform either of his prior jobs, he could perform other jobs in the national economy as identifie d by the VE: bench assembler; mail clerk; office helper; document preparer; circuit board assembler; and final assembler. The Appeals Council denied review.5 Olson, through a new attorney, then petiti oned for review in federal court. The district court affirmed, prom pting this pro se appeal. 1
D ISCUSSION I. Standards of Review We review de novo the district court’ s ruling in a social security case and “independently determine whether the ALJ’ s decision is free from legal error and supported by substantial evidence.” Wall v. Astrue , 561 F.3d 1048, 1052 (10th Cir. 2009) (internal quotation marks omitted ). “Substantial evidence is su ch relevant evidence as a reasonable mind might accept as adeq uate to support a conclusion.” Wilson v. Astrue , 602 F.3d 1136, 1140 ( 10th Cir. 2010) (internal quotati on marks omitted). Because Olson is proceeding pro se on appeal, we construe his briefs libera lly, but we do not serve as his advocate. Yang v. Archuleta , 525 F.3d 925, 927 n.1 (10th Cir. 2008). II. Treating-P hysician Rule Olson argues the ALJ erred by discoun ting Dr. Stepp’s opinions and relying on Dr. Timmerman’s and Dr. Winkle ’s opinions. We disagree. 2

1 Olson indicates “[t]his case is about back pay,” as he has been awarded benefits going forward based on recent neck and parathyr oid surgeries. Reply Br. at 13.

2 To the extent Olson compla ins the ALJ failed to take the “advice of . . . all kind [sic] of other treating doc tor [sic],” Aplt. Opening Br. at 2, he does not mention how any one of those doctors’ opinions bears on his limitations. This court “routinely . . . decline[s] to consider arguments that are . . . inadequately presented[ ] in an appellant’s opening brief,” Bronson v. Swensen , 500 F.3d 1099, 1104 (10th Cir. 2007), and we do so here as to Ols on’s unspecified treating physicians.6 A treating physician’s opinion must be given controlling weight if it “well supported by medically acceptable clinical and laboratory diagnostic techniques and is consistent with the other substa ntial evidence in the record.” Allman v. Colvin , 813 F.3d 1326, 1331 (10th Cir. 2016) (internal quota tion marks omitted). If the ALJ decides, however, that “the treating ph ysician’s opinion is not enti tled to controlling weight, the ALJ must then consider whether the opinion sh ould be rejected altogether or assigned some lesser weight.” Pisciotta v. Astrue , 500 F.3d 1074, 1077 (10th Cir. 2007). Here, the ALJ rejected Dr. Stepp’s opini on only insofar as he opined Olson was disabled and unable to work . Although a treating physic ian may offer his “judgments about the nature and severity of [the claima nt’s] impairment(s),” a treating physician may not render opinions that are e ssentially “administrative findings . . . dispositive of a case,” such as whether the claimant is disabled. SSR 96-5p, 1996 WL 37 4183, at *2. As the ALJ noted, Dr. Stepp’s disab ility opinion was not accompanie d by any discussion of the functional limitations caused by Olson’s symp toms, diagnoses, or prognoses. This omission was particularly significant given D r. Stepp’s earlier medi cal opinion that Olson “[was] continuing to progress following his complex cervical spin e injury” and “ha[d] completely weaned himself from his cervical collar.” R. , Vol. I at 1115. We conclude the ALJ did not err in his treatment of Dr. Stepp’s opinion concerning disability. III. Credibility Olson argues the ALJ erred by finding his claimed limitations were not fully credible absent corroboration. “Credibility determinations are peculiarly the province of the finder of fact, and we will not upset such determinations when supported by7 substantial evidence.” Newbold v. Colvin , 718 F.3d 1257, 1267 ( 10th Cir. 2013) (internal quotation marks omitted). In finding Olso n not fully credible, the ALJ cited multiple pieces of evidence suggesting Olson had exaggera ted his symptoms and the resulting limitations. The ALJ’s credib ility findings were “closely and affirmatively linked to substantial evidence and not just a conc lusion in the guise of findings.” Id. (internal quotation marks omitted). Thus, the ALJ did not err. IV. Waiver Olson attempts to assert multiple arguments not raised in the district court. For instance, he argues (1) the medical opinions of Dr. Timmerman and Dr. Winkle are not entitled to any weight because the doctors “h ad malpractice judgement[s]” against them, Aplt. Opening Br. at 2; (2) the ALJ was prej udiced because she tried to indict Olson and his father in 1992 when she was a federal prosecutor; (3) the ALJ “ordered a murder investigation . . . by the Metro Squad,” id. at 4; (4) the DIU investigation violated his “4th, 5th, 8th and 14th Amendment[ ]” rights, id. ; (5) the ALJ requir ed an unnecessary eye exam performed by one of her college classmates; and (6) his lawyers provided ineffective assistance “[t]hroughout this ca se” by “saying the [DIU] investigation could not be put in the case file as it was heresay [sic],” id. at 6. But if a “theory . . . wasn’t raised [in] the district court, we usually hold it forfeited.” Fish v. Kobach , 840 F.3d 710, 729 (1 0th Cir. 2016) (internal quotation marks omitted). While we may consider a forfeited th eory “if failing to do so would entrench a plainly erroneous result,” the theory’s prop onent must “argue for plain error and its application on appeal.” Id. (internal quotation marks omitte d). Because Olson has made8 no plain-error argument on appeal, the arguments he failed to raise in the district court are waived. See id. 3
C ONCLUSION The district court’s judgment is affirmed.

Entered for the Court Per Curiam

3 To the extent Olson argues he received ineffective assistan ce of counsel in the district court, Olson had no Sixth Amendment right to c ounsel as a civil litigant. See Johnson v. Johnson , 466 F.3d 1213, 1217 (10th Ci r. 2006). Therefore, such a claim is without merit.