UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

MARTIN MENDEZ, Plaintiff-Appellant,

v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant-Appellee. No. 14-1052 (D.C. No. 1:12-CV-02823-LTB) (D. Colo.)

ORDER AND JUDGMENT *

Before GORSUCH , O’BRIEN , and PHILLIPS , Circuit Judges.
Martin Mendez appeals a district court order affi rming the Commissioner’s denial of disability and s upplemental security income be nefits. Mr. Mendez contends an administrative law judge (ALJ) erred in 1) assessing his credibility and residual functional capacity (RFC); 2) discounti ng his treating physician’s opinion; and 3) finding that he could pe rform other work. For the following reasons, we affirm.

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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel.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 21, 2014
Elisabeth A. Shumaker Clerk of Court- 2 - I Mr. Mendez is a high school graduate w ith experience working as a general foreman and installer in the heating, ventilation, and ai r conditioning industry. In 2009, he stopped working and applied for benefits, claimi ng he was disabled by a bad knee, gout, and back problems. He also suffered from hy perthyroidism and later was diagnosed with diabetes. Despite these ailments, Mr. Mendez was looking for work and collecting unemployment benefits throug hout the pendency of his application. Yet in conjunction with his disability appl ication, Mr. Mendez reported that he was completely unable to work. He also testified at a hearing with the ALJ th at the most he could walk was one block with the use of a cane and that pain prevented him from doing much when he experi enced a flare-up of gout. After the hearing, the ALJ concluded at step five of the five-step sequential evaluation process, see 20 C.F.R. §§ 404.1520(a )(4), 416.920(a)(4); Lax v. Astrue , 489 F.3d 1080, 1084 (10th Cir. 2007) (explaining the pro cess), that Mr. Mendez was not disabled. The ALJ determined that Mr. Mendez had severe impairments of osteoarthritis in both of his knees, gout, a nd diabetes mellitus with neuropathy. But the ALJ observed that Mr. Mendez’s hype rthyroidism was well-controlled and his back problems were mild wi th no resulting limitations. With these conditions, the ALJ found that Mr. Mendez reta ined the RFC to perform a restricted range of light work. The ALJ also found that Mr. Mend ez was not credible and that his treating physician’s opinion was not entitled to co ntrolling weight. A dditionally, relying on- 3 - the testimony of a vocational expert (V E), the ALJ determined that Mr. Mendez could transition to other jobs , including a gate guard, a furn iture rental clerk, and a telemarketer. Thus, the ALJ concluded that Mr. Mendez was not entitled to benefits. The Appeals Council denied review, and the district court affirmed.
II “We review the Commissi oner’s decision to determine whether the factual findings are supported by s ubstantial evidence and wh ether the correct legal standards were applied.” Mays v. Colvin , 739 F.3d 569, 57 1 (10th Cir. 2014) (internal quotation marks omitted). “We consider whether th e ALJ followed the specific rules of law that must be followed in weighing particular types of evidence in disability cases, but we will not rewe igh the evidence or substitute our judgment for the Commissioner’s.” Lax , 489 F.3d at 1084 (internal quotation marks omitted).
A. ALJ’s RFC Assessment and Adverse Credibility Finding We first consider the ALJ’s RFC asse ssment and adverse credibility finding.
See Poppa v. Astrue , 569 F.3d 1167, 1171 ( 10th Cir. 2009) (“Since the purpose of the credibility evaluation is to help the ALJ assess a cl aimant’s RFC, the ALJ’s credibility and RFC determ inations are inherently intertwined.”). The ALJ determined that Mr. Mendez retained the RFC to perfo rm light work with the following restrictions:

 lifting or carrying ten pounds fre quently and twenty pounds occasionally,

 standing and/or walking for a total of two hours with normal breaks,- 4 -  sitting for a total of six hours with normal breaks,

 pushing and pulling with his arms with in his allowed wei ght restrictions but avoiding pushing and pulling with his legs,

 avoiding unprotected height s and moving machinery,

 occasional climbing, st ooping, crouching, kneeling, and crawling,

 avoiding climbing ladders, r opes or scaffolds, and

 avoiding repetitive bending and squatting. Aplt. App. at 23. In assessing this RFC, the ALJ recognized that Mr. Mendez’s impairments could cause his alleged sympto ms, but she discredited his statements concerning the intensity, persistence, a nd limiting effects of those symptoms. On appeal, Mr. Mendez argues that the ALJ’s RFC assessment fails to account for his complaints of fatigue and pain, as well as his obesity. He says the ALJ wrongly discredited him simply b ecause he was collecting une mployment benefits. “Credibility determinations are peculia rly the province of the finder of fact, and we will not upset such de terminations when supported by substantial evidence.” Wilson v. Astrue , 602 F.3d 1136, 1144 (10th Cir. 2010) (internal quotation marks omitted). Nevertheless, an ALJ’s advers e credibility finding “s hould be closely and affirmatively linked to substantial evidence and not just a conclusion in the guise of findings.” Id. (internal quotation marks omitted). Initially, Mr. Mendez seemingly stipulat es that his receipt of unemployment benefits was an appropriate fa ctor that the ALJ could cons ider with the rest of the- 5 - evidence in evaluating his credibility. He contends, however, that the ALJ erred in relying almost exclusively on that factor. But the AL J cited other substantial evidence supporting her adve rse credibility finding, incl uding that Mr. Mendez was looking for work as a foreman while claimi ng to be disabled, which was a legitimate ground for discounting his credibility, see Newbold v. Colvin , 718 F.3d 1257, 1267 (10th Cir. 2013) (obser ving that claimant’s interest in returning to work supported adverse credibility finding). Although Mr . Mendez doubted he could actually do the work, we have no authority to reweigh his testimony, which still supports the ALJ’s finding. See Lax , 489 F.3d 1084 (“The possibility of drawing two inconsistent conclusions from the evidence does not prevent an admini strative agency’s findings from being supported by substan tial evidence.” (internal quota tion marks omitted)). The ALJ also cited inconsistencies be tween Mr. Mendez’s testimony and the record, including the frequency of his gout fl are-ups and the limiting effects of his symptoms. More specifically , the ALJ observed that Mr. Mendez had stated that he experienced a gout flare-up every two to three months, though there was no evidence of any flare-ups or use of gout medicati on since his amended on set date. The ALJ also observed that while Mr. Mendez complain ed of pain in his legs and feet, his diabetes was well-controlled a nd physical examinations indicat ed that he retained full strength and a normal gait, despite his oste oarthritis. Moreover, Mr. Mendez claimed that he could stand for only five to ten minutes and c ould walk for only one block with a cane, but the ALJ c ited evidence indicating that he had lost a significant- 6 - amount of weight through diet and exercise , including riding an exercise bike and lifting weights. The ALJ found that “[t] hese activities called into question the validity of [Mr. Mendez’s] allegations that he required a cane and experienced symptoms of such seve rity as to preclude work.” Aplt. App. at 25. This substantial evidence supports the ALJ’s finding that Mr. Mendez was not fully credible. Nevertheless, and notwithstanding the ALJ’s adverse credibility finding, Mr. Mendez contends the ALJ’s RFC assessme nt fails to account for his complaints of fatigue. He says there was evidence of fatigue that the ALJ should have expressly discussed. This argument is unavailing, however, becau se although an ALJ must consider all the evid ence, she “is not required to disc uss every piece of evidence.” Clifton v. Chater , 79 F.3d 1007, 1009-10 (10th Cir. 199 6). “Rather, in addition to discussing the evidence supporting [her] deci sion, the ALJ also must discuss the uncontroverted evidence [she] chooses not to rely upon, as well as significantly probative evidence [s he] rejects.” Id. at 1010. In 2008, Mr. Mendez reported experienci ng fatigue to his doctor, who assessed mild hypothyroidism. Aplt. App. at 232- 33. His doctor increased his thyroid medication to address his fatigue, id. at 230-31, and by Februa ry 2009, she noted that Mr. Mendez was “not having symp toms of hyp[o]thyroidism,” id. at 211. Citing these records, the ALJ observed that Mr. Mendez’s medication had “been effective in managing his hypothyroidism and has not caused any side effects.” Id. at 23. She therefore concluded that “[hi s] hypothyroidism has been controlled via conservative- 7 - measures without any side effects.” Id. Although the ALJ did not expressly discuss Mr. Mendez’s interim claims of fatigue, those claims we re not significantly probative because his symptoms had resolved. Mr. Mendez also testified that he e xperienced fatigue caused by neuropathic pain, which kept him awake at night. Cont rary to Mr. Mendez’s assertion, however, the ALJ considered these symptoms, noting that Mr . Mendez was “prescribed gabapentin for management of his neuropath ic pain and later am itryptiline as it was thought some of [his] allege d nighttime pain might be attr ibutable [to] restless leg syndrome.” Id. at 25. Although the ALJ did not ex plicitly discuss his claims of fatigue as an independent, re sidual effect of his neuropath ic pain, again, she was not obligated to because those claims were not significantly probative in light of the ALJ’s adverse credibility finding. See Clifton , 79 F.3d at 1009-10. The ALJ stated she had “considered all symp toms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medica l evidence and other evidence.” Aplt. App. at 23. When an “ALJ indicates [she] has considered all the evidence[,] our practice is to ta ke the ALJ at [her] word.” Wall v. Astrue , 561 F.3d 1048, 1070 (10th Cir. 2009) (internal quotation marks omitted). 1

1 Mr. Mendez also insists th e ALJ failed to consider hi s sleep apnea, despite the fact that “[t]he diagnosis of ‘sleep apnea’ appears in the record six times.” Aplt. Br. at 27. This argument is meritless because each of Mr. Mendez’s six record citations indicates that he denied a history of sleep apnea. See Aplt. App. at 278, 282, 286, 299, 304, 308.- 8 - We are also unpersuaded that the ALJ failed to account for Mr. Mendez’s pain. As we have explained, [t]he framework for the proper analysis of Claimant’s evidence of pain is set out in Luna v. Bowen , 834 F.2d 161 (10th Cir. 1987). We must consider (1) whether Claimant esta blished a pain-pr oducing impairment by objective medical evidence; (2) if so, whether there is a ‘loose nexus’ between the proven impairment and the Claimant’s subjective allegations of pain; and (3) if so, wh ether, considering all the evidence, both objective and subjective, Claimant ’s pain is in fact disabling. Wilson , 602 F.3d at 1144 (inter nal quotation marks omitte d). In assessing the credibility of a claimant ’s complaints of pain, the ALJ should consider [t]he levels of medication and their effectiveness, the extensiveness of the attempts (medic al and nonmedical) to obtai n relief, the frequency of medical contacts, the nature of daily activities, subjective measures of credibility that are peculiarly w ith the judgment of the ALJ, the motivation of and relationship be tween the claimant and other witnesses, and the consistency or compatibility of nonm edical testimony with objective me dical evidence. Id. at 1145 (internal quot ation marks omitted). In addition to his neuropathic pain, Mr. Mendez complained of gout in his hands, elbows, wrists, knees, and toes. He said he experienced pain when he had a gout flare-up and that his kn ees were “pretty severe” and hurt even when he did not have a flare-up. Aplt. App. at 52. Mr. Me ndez also testified that the most he could sit was fifteen minutes, the mo st he could stand was five to ten minutes, and the most he could walk was one block using a cane. The ALJ acknowledged that Mr. Mend ez’s impairments could cause the symptoms he alleged, but she refused to credit his testimony concerning the limiting- 9 - effects of his pain, in part because his allegations were not corroborated by objective medical evidence. Regarding his neuropathic pain, the ALJ noted that it was treated with medication and his “physical examinat ion revealed normal reflexes and gait, along with only mild sensory ab normalities in the feet.” Id. at 25. The ALJ cited treatment records indicati ng that Mr. Mendez’s diabet es was well-controlled, id. at 288, while another doctor ha d prescribed new medication because he suspected that Mr. Mendez’s pain could have been at tributable to restless leg syndrome, id. at 305. Regarding his gout, the ALJ observed that tr eatment notes as of the amended onset date (June 19, 2009) reflected no “significant reports of fl ares or acute treatment.” Id. at 24. Although Mr. Mend ez had previously experienced an episode of gout in January 2009, by February of that year he reported that his symptoms had “nearly resolved completely.” Id. at 211. Moreover, the ALJ point ed out that this absence of any acute gout flare-ups or treatment since the June 2009 onset date was consistent with an October 2009 consultative exam ination report, which was “essentially normal” and indicated that Mr . Mendez did not require or use any assistive devices. Id. at 24. Also, the ALJ noted that his knee pain had been treated conservatively with two injections and ibuprofen and he d eclined an MRI becau se he was “feeling better,” id. at 25 (internal quotation marks omitt ed). Last, regarding Mr. Mendez’s back pain, although the ALJ overlooked two specific complaints of back pain, she considered the treatment records documen ting those complaints and observed that they had “not resulted in any voca tionally relevant limitations.” Id. at 23.- 10 - Additionally, the ALJ noted that “diagnostic imaging of [Mr. Mendez’s] back . . . revealed mild degenerative changes,” id. , which Mr. Mendez concedes the ALJ accounted for by incorporating stooping lim itations into her RFC finding. Apart from the objective evidence, th e ALJ also found that Mr. Mendez’s allegations of disabling pain were inconsistent with his activities, which included lifting weights and riding an exercise bi ke. Indeed, as the ALJ observed, one progress note described Mr. Mendez as “a highly motivated individual who ha[d] changed his diet radically, started losing we ight, [and was] exerci sing significantly.” Id. at 290. Another note indicated he ha d purchased an exercise bike, which was alleviating his knee pain a nd improving his range of moti on and blood sugar levels. Again, Mr. Mendez elected to forgo an MR I of his knees because he was “overall feeling pretty good.” Id. at 298. This all demonstr ates that the ALJ properly evaluated Mr. Mendez’s allegati ons of pain in light of th e relevant credibility factors and supported her credibility find ing with substantial evidence. As for Mr. Mendez’s obes ity, the ALJ recognized th at Mr. Mendez was “an obese individual.” Id. at 23. She determined, however, that his obesity was not a severe impairment because it “did not require treatmen t or result in vocationally relevant limitations.” Id. ; see also 20 C.F.R. §§ 404.1520(c) , 416.920(c) (requiring that an impairment or combination of impa irments significantly limit the claimant’s ability to do work activities) . Mr. Mendez correctly cont ends that the ALJ still was required to consider the combined effect s of his obesity and other impairments, see- 11 - Wells v. Colvin , 727 F.3d 1061, 1065 (10th Cir. 2013) , but the ALJ’s finding that his obesity posed no vocational li mitations obviated the need for further analysis of Mr. Mendez’s obesity in assessing his RFC, see id. at 1065 n.3 (explaining that an ALJ’s finding at step two that an impairment poses no rest riction to the claimant’s work activities obviates th e need for further anal ysis at step four); see also Burch v. Barnhart , 400 F.3d 676, 683-84 (9th Cir. 20 05) (holding that obesity without attending functional limitati ons was adequately consid ered by ALJ even though it was not expressly incorporated into RFC). Moreover, the ALJ stated that she had “careful[ly] consider[ed] . . . all the evidence,” Aplt. App. at 20, recognizing that she was required to consider all impairment s, “including impairments that are not severe,” id. at 21. Given these statements, we have no reason to doubt that the ALJ failed to consider Mr. Mendez’s obesity, pa rticularly since she recognized that it decreased in correlation to hi s increase in exercise. T hus, the ALJ properly evaluated Mr. Mendez’s impairments and credib ility in assessing his RFC. B. Treating Physician’s Opinion We next consider Mr. Mendez’s claim that the ALJ erred in discounting the opinion of his treating physician, Dr. Teresa Jarmul. Dr. Jarmul treated Mr. Mendez from April 2008 through his amended onset date, June 19, 2009. On that date, Dr. Jarmul completed a functional capacity questionnaire indicating that she first treated Mr. Mendez on February 6, 2009. On the questionnaire, Dr. Jarmul diagnosed Mr. Mendez with “[g]out, chronic foot pain,” and she stated that his- 12 - prognosis was “[g]ood but gout is a recurrent problem[. ]” Aplt. App. at 267. Dr. Jarmul did not expect his impairment to last at least twelve months, and she wrote, “I have not seen him to know if his [symptoms] are ongoing now. He could have recurrent episodes for years.” Id. She also believed he could not wear work boots, he could stand and walk for no more than two hours in an eight-hour work day, he could sit no more than four hours, a nd he frequently experienced “pain severe enough to interfere with atte ntion and concentration needed to perform even simple work tasks.” Id. The ALJ gave these opinions “lit tle, and certainly not controlling, weight,” reasoning that Dr. Jarmul had seen Mr. Mendez on only “isolated incidences” briefly before hi s amended onset date, her not es conflicted with records from another health care provi der, and her opinions were inconsistent with her own prognosis and Mr. Me ndez’s activities. Id. at 25. On appeal, Mr. Mendez insists that the ALJ improperly discounted the doc tor’s opinion, but we disagree. “Where, as here, the ALJ decides not to give controlling weight to a treating physician’s opinion, the ALJ must decide whether the opinion should be rejected altogether or assigned so me lesser weight.” Newbold , 718 F.3d at 1265 (internal quotation marks omitted). Even if an opinion is not entitled to controlling weight, the ALJ must still weigh the opinion in light of the factors set forth at 20 C.F.R. §§ 404.1527 and 416.927. Id. The ALJ discounted Dr. Jarmul’s opinion in part because her “treatment was limited to a brief period of time prior to the alleged onset da te.” Aplt. App. at 25.- 13 - Although Mr. Mendez points out that this period was ten months, between April 2008 and February 2009, Dr. Jarmul indicated on the questionnaire that she first treated Mr. Mendez in February 2009. Moreover, the ALJ recognized that Dr. Jarmul had not seen Mr. Mendez for four months befo re completing the ques tionnaire, which is presumably why the doctor wrot e, “I have not seen him to know if his [symptoms] are ongoing now.” Id. at 267. Thus, the ALJ observed that “Dr. Jarmul, by her own statement, saw [Mr. Me ndez] on isolated incidences in early 2009 relative to an acute gout flare.” Id. at 25. Because the ALJ was oblig ed to consider both the length and frequency of the treat ment relationship, see 20 C.F.R. §§ 404.1527(c)(2)(i), 416.927(c)(2)(i), this was an appropriate basis for discou nting the doctor’s opinion. The ALJ also discounted Dr. Jarmul’s opinion in part becau se it conflicted with records from Southern Colorado Family Medicine. Mr. Mendez contends that these records are not necessarily conflic ting, but he does not elaborate on his argument or provide any record citations to support it. See Aplt. Br. at 33. This fails to adequately present the issue. See Keyes-Zachary v. Astrue , 695 F.3d 1156, 1161 (10th Cir. 2012) (“We will c onsider and discuss only those . . . contentions that have been adequately briefed for our review.”). He similarly argues that Dr. Jarmul’s opinion did not significantly differ from the opinion of a consultative examiner, but the ALJ did not discount Dr. Jarmul’s opinion on that basis. Rather, the ALJ’s other grounds for discounting Dr. Ja rmul’s opinion were because it was inconsistent with- 14 - Mr. Mendez’s activities and the doctor’s admission that his prognosis was good— rationales that Mr. Mendez does not ch allenge and we need not consider. See id. C. Step Five Determination Mr. Mendez also contends that the ALJ erre d in concluding at step five that he could transition to other work . He first says that accor ding to the Dictionary of Occupational Titles (DOT) and the Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupationa l Titles (1993) (SCO), two jobs identified by the VE—gate guard and furniture rental clerk—are inconsistent with his RFC. Nothing in the DOT suggests these jobs are inconsistent with his RFC, however, and the record clearly indicates that the ALJ confirmed that the VE’s testimony was consistent with the DOT, see Aplt. App. at 59; see also SSR 00-4p, 2000 WL 1898704, at *2 (Dec. 4, 200 0) (requiring ALJ to elicit a reasonable explanation for any conflict between VE’s testimony and DOT). Although the SCO describes additional characteristics for occupational gr oups that encompass these jobs, the ALJ was entitled to rely on the VE’s testimony to clarify what the DOT indicated—that those characteristics did not appl y in this particular case. See Carey v. Apfel , 230 F.3d 131, 146 (5th Cir. 2000) (holding that ALJ ca n rely on VE’s testimony if there is adequate record s upport for doing so because “all kinds of implic it conflicts are possible and the categoric al requirements listed in the DOT do not and cannot satisfactorily answer ever y such situation”).- 15 - Finally, Mr. Mendez assert s that the ALJ improperly relied on the VE’s testimony that he could perform the sede ntary job of a telemarketer. As we understand his argument, the ALJ could no t consider sedentary jobs because the medical-vocational guidelines (grids) indicate that a pe rson of Mr. Mendez’s age, education, and experience would be disabled. See 20 C.F.R. Pt. 404, Subpt. P, App. 2 § 201.06. Mr. Mendez’s reliance on the grids is misplaced, however, because the grids should not be used wher e, as here, the claimant l acks the ability to perform the full range of work in a particular RFC category. See Thompson v. Sullivan , 987 F.2d 1482, 1488 (10th Cir. 1993). Recognizing that Mr. Me ndez lacked this ability, the ALJ correctly consulted the VE to determ ine the extent to which his limitations eroded his occupational base, and the VE test ified that he could still perform the job of a telemarketer. See SSR 83-12, 1983 WL 31253, at *2 (1983). There was no

error. III The district court’s judgment is affirmed.

Entered for the Court
Gregory A. Phillips Circuit Judge