                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                February 4, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                  Clerk of Court
                            FOR THE TENTH CIRCUIT



    KENDRA COBB,

                Plaintiff-Appellant,

    v.                                                  No. 09-3079
                                               (D.C. No. 5:07-CV-04119-JAR)
    MICHAEL J. ASTRUE, Commissioner                       (D. Kan.)
    of Social Security,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before KELLY, PORFILIO, and O’BRIEN, Circuit Judges.



         Kendra Cobb appeals from a district court judgment affirming a decision by

the Commissioner of Social Security to deny her applications for disability

insurance benefits (DIB) and supplemental security income (SSI). Ms. Cobb

raises two issues regarding an administrative law judge’s (ALJ) credibility

finding: (1) that the ALJ failed to specify which parts of her testimony he

*
       After examining the briefs and appellate record, this panel 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
credited and which parts he rejected and (2) the ALJ applied an erroneous legal

standard evidenced when he stated that Ms. Cobb’s ability to perform activities of

daily living (ADLs) “to any degree suggests that she retains some capacity to

perform activities such as sitting, standing, walking and functioning in a work

environment,” Admin R. at 29 (emphasis added). Exercising jurisdiction under

28 U.S.C. § 1291 and 42 U.S.C. § 405(g), we affirm.

                                   Background 1

      Ms. Cobb was 38 years old at the time of the Commissioner’s decision.

She completed high school, attended two years of college, and has past relevant

work experience as a sales clerk, general clerk, cashier-checker, and book sorter.

Ms. Cobb claimed disability stemming from injuries sustained in a single-car

rollover accident in December 2002 in which she fractured a number of spinal

discs and two ribs, including a compression fracture at the T3 level accompanied

by mild kyphosis, or hunchback. She was discharged from the hospital after

several days, agreeing with a neurologist’s nonsurgical option that she spend six

weeks in a cervical collar and three months in a back brace. She was prescribed

Flexeril, Motrin, and Lortab. In April 2003, she attended four sessions of

physical therapy and showed improvement, reporting that she felt remarkably



1
      Because the issues in this appeal are confined to the ALJ’s credibility
finding, our summary of the medical evidence excludes that to which the ALJ
gave no weight.

                                        -2-
better and was able to walk a mile, but she elected to forego any further sessions

because of her improvement and for financial reasons.

      Thereafter, she was seen sporadically through December 2005 by a variety

of doctors. She tried acupuncture with poor results. X-rays and MRIs generally

showed a moderately severe compression fracture at the T3 level accompanied by

accentuated kyphosis without spinal cord abnormalities. Exams indicated good

range of motion (ROM), except in her cervical spine and neck, with some pain on

thoracic extension and flexion; normal reflexes; and good strength in all

extremities. She generally presented without signs of distress and moved about

the examining room and table easily. Surgery was discussed but largely ruled

out. A one-time epidural steroid injection in the T3-4 region was considered to

provide temporary relief, but there is no indication in the record that Ms. Cobb

ever received one. A permanent 25-pound limitation on lifting was considered

reasonable, and she was advised to avoid stooping. She treated pain with

ibuprofen. One physician considered her to be at maximum medical improvement

in June 2004. A Physical Residual Functional Capacity Assessment form

completed by nonexamining state agency physicians in August 2004 indicated

that Ms. Cobb could lift and/or carry 20 pounds occasionally and 10 pounds

frequently; could stand and/or walk for about 6 hours in an 8-hour workday; could




                                         -3-
sit for about 6 hours in an 8-hour workday; and should not perform work above

her head due to limitations on reaching.

      Meanwhile, in March 2004, Ms. Cobb filed her benefits applications and

completed a form describing her ADLs dated April 15, 2004. She reported

sleeping 8 hours a night, taking Tylenol P.M. on occasion and ibuprofen for pain.

She stated she spent between 30 and 60 minutes cooking meals 10-12 times a

week; 10-15 minutes doing a load of laundry 5 times a week; 1-2 hours cleaning

the house; 1-2 hours paying bills; 2 hours a week grocery shopping; 2-3 hours a

night watching television; 2-3 hours a week reading; 7-14 hours a week using a

computer; 1 hour a week attending church; 1 hour a week visiting with friends

and relatives; and up to 1.5 hours a week dining out, seeing movies, or attending

medical appointments. She wrote: “Don’t do much lifting. Hurt a lot when

standing or walking for any length of time. Hurt when cooking [and] doing

dishes for any length of time. Hurt when doing paperwork any length of time.”

Admin. R. at 144.

      In December 2005, Ms. Cobb had the first of two hearings before the ALJ.

She testified that she had a lot of nerve problems, numbness, and tingling, and a

lot of pain if she uses her arms or bends or twists for any length of time. She

stated that if she were to lift 5 or 10 pounds for 2 or 3 minutes, her pain level

would be a 5 or 6 on a 10-point scale with a lot of tingling. Depending on the



                                           -4-
pain level when she stopped lifting the weight, she would have to wait anywhere

from 10 to 60 minutes before being able to resume, and then would have to stop

and rest again after a matter of minutes. She testified that she experienced

tingling and burning, presumably in her upper back, when standing in a fixed

position for 10 or 15 minutes or when walking any length of time, but she

estimated she could walk for up to an hour. She admitted being able to sit for

about 6 hours in an 8-hour day in a high-backed chair. Regarding her ADLs, she

testified that she vacuums or dusts once a week and cooks, but cooking for a

30-60 minute period triggers severe upper-back cramps. She went grocery

shopping once or twice a week but leans on the cart for support and can only shop

for an hour before needing a break. If she pushes herself too hard one day, she

needs the next day to rest and recover.

      At the conclusion of the hearing, the ALJ referred Ms. Cobb for an

additional consultative examination, which was performed in February 2006 by

Dr. James Shafer, who had examined her in June 2004. As in the previous exam,

Dr. Shafer noted that she was in no apparent distress, had normal gait and station,

and moved easily in the examining room without any assistive device. She had

good ROM in her back and neck, and Dr. Shafer could detect no weakness. He

completed a medical source statement, finding that she could lift and/or carry

20 pounds occasionally and 10 pounds frequently; stand about 6 hours in an



                                          -5-
8-hour workday; sit about 6 hours in an 8-hour workday; and push and pull no

more than 40-50 pounds with her arms. He limited her to only occasional

climbing.

      In July 2006, Ms. Cobb saw Dr. Raymond Grundmeyer for a neurological

evaluation. She reported her pain at level 3 and explained that her pain increases

with activity and improves with counter-pressure and heat. She described

difficulty sleeping and was taking ibuprofen for pain. On exam, Dr. Grundmeyer

found her cranial nerves intact. Motor exam revealed 5/5 in upper and lower

extremities bilaterally. Her reflexes were +2 in all extremities, her gait was

normal, and she was able to heel-toe walk without difficulty. Her straight-leg

raise and Romberg tests were negative. She had limited range of motion in her

cervical spine. Dr. Grundmeyer reviewed an MRI from November 2005 and

recommended further radiological studies in order to determine whether she might

benefit from thoracic fusion and instrumentation.

      On August 15, 2006, the ALJ held a second hearing. Ms. Cobb testified

that her condition had stayed about the same since the first hearing, and that she

recently had the MRI that Dr. Grundmeyer recommended and was awaiting a

report. The ALJ took the testimony of a vocational expert (VE). In response to a

number of hypothetical questions limiting a claimant to light work with an




                                         -6-
assortment of postural and manipulative limitations, the VE identified a number

of jobs Ms. Cobb could perform, including some of her past work.

      In a written decision, the ALJ found that Ms. Cobb had not engaged in

substantial gainful activity since her alleged onset date and that her T3 fracture

was a severe impairment but did not meet or medically equal the criteria for a

presumptively disabling impairment, see 20 C.F.R. Pt. 404, Subpt. P, App’x 1.

Moving to step 4 of the 5-step sequential process used to evaluate DIB and SSI

claims, see Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (describing the

process), the ALJ found that Ms. Cobb had the RFC to perform light work,

specifically that she could lift/carry 20 pounds occasionally and 10 pounds

frequently, and she could sit 6 hours and stand or walk 6 hours in an 8-hour

workday. But she could do no continuous reaching, including overhead; was

limited to occasional climbing, but never on ladders, ropes, or scaffolds; and her

ability to push/pull was limited to 40-50 pounds. In reaching this RFC finding,

the ALJ adopted the RFC findings of the state-agency medical consultants as well

as Dr. Shafer’s climbing and push/pull limitations.

      The ALJ also found Ms. Cobb’s statements regarding the intensity,

persistence, and limiting effects of her symptoms “not entirely credible.” Admin.

R. at 25. The ALJ stated that her ability to perform ADLs “to any degree

suggests that she retains some capacity to perform activities such as sitting,



                                         -7-
standing, walking and functioning in a work environment.” Id. at 29 (emphasis

added). The ALJ further found that Ms. Cobb’s statements regarding the severity

of her pain were inconsistent with the objective medical evidence and observed

that she “sat through two hearings with no pain behavior observed such as no

unusual posturing or stiffness, no apparent difficulty turning her head and she

walked in and out of the room normally.” Id. The ALJ concluded that Ms. Cobb

could perform her past relevant work as it is performed in the national economy.

In the alternative, the ALJ found that she had transferable skills enabling her to

perform other work that exists in significant numbers in the national economy and

therefore was not disabled under the framework of Medical-Vocational Rule

202.22.

      After the Appeals Council affirmed the ALJ’s decision, Ms. Cobb appealed

to the district court. A magistrate judge recommended that the case be reversed

because the ALJ’s observation that Ms. Cobb’s performance of ADLs “to any

degree,” id., was not a valid basis for finding her not fully credible and because

the ALJ failed to explain what parts of her testimony he found not credible. The

Commissioner filed objections, which the district court sustained, thereby

affirming the Commissioner’s decision in its entirety. This appeal followed.

                                     Discussion




                                         -8-
      “We review the Commissioner’s decision to determine whether the factual

findings are supported by substantial evidence in the record and whether the

correct legal standards were applied.” Hackett v. Barnhart, 395 F.3d 1168, 1172

(10th Cir. 2005). “Credibility determinations are peculiarly the province of the

finder of fact, and we will not upset such determinations when supported by

substantial evidence. However, findings as to credibility should be closely and

affirmatively linked to substantial evidence and not just a conclusion in the guise

of findings.” Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995) (alteration,

quotations, and citation omitted).

      On appeal, Ms. Cobb first argues that the ALJ erred in failing to specify

which parts of her testimony he did not fully credit. We reject this argument. An

ALJ generally is required to explain what parts of a claimant’s testimony he does

not accept and why. McGoffin v. Barnhart, 288 F.3d 1248, 1254 (10th Cir. 2002).

The district court reasoned that despite the ALJ’s failure to explicitly specify

which portions of Ms. Cobb’s testimony he found “not entirely credible,” Admin.

R. at 25, it was apparent from the decision read as a whole—the ALJ did not fully

credit her assertion that her pain precluded her from standing and walking for

“any length of time,” id. at 144, 377, or her hearing testimony that she could

stand for only 10-15 minutes at a time, but the ALJ did accept her claim that she

could sit for 6 hours in a high-backed chair.



                                         -9-
      This reading is supported by the fact that the ALJ relied on the finding of

the state-agency medical consultants that Ms. Cobb could stand and/or walk for

6 hours in an 8-hour day and by the ALJ’s observations of Ms. Cobb’s lack of

distress at her hearings. Also, as the district court noted, the ALJ observed that in

April 2003, she reported walking one mile, and that in June 2004, just two months

after completing her ADL report stating that she “[h]urt a lot” when standing and

walking for “any length of time,” id., she told Dr. Shafer that she could walk

30-60 minutes at a time. The court also pointed to the ALJ’s discussion of

Dr. Shafer’s objective findings in June 2004 and February 2006, which were

generally benign except for Ms. Cobb’s claim of upper back pain. Thus, we agree

with the district court that the ALJ’s credibility finding was summary, but taking

the decision as a whole, it is clear enough what portions of Ms. Cobb’s testimony

he credited and what portions he did not, and why, without “violating the general

rule against post hoc justification of administrative action recognized in SEC v.

Chenery Corp., 318 U.S. 80 (1943),” Allen v. Barnhart, 357 F.3d 1140, 1145

(10th Cir. 2004).

      We next consider Ms. Cobb’s second argument, that the ALJ applied an

erroneous legal standard when stating that Ms. Cobb’s ability to perform ADLs

“to any degree suggests that she retains some capacity to perform activities such

as sitting, standing, walking and functioning in a work environment,” Admin. R.



                                         -10-
at 29 (emphasis added). Minimal or sporadic performance of ADLs (i.e.,

performing ADLs “to any degree”) are generally insufficient to support an

adverse credibility finding. Thompson v. Sullivan, 987 F.2d 1482, 1490 (10th Cir.

1993). But the district court calculated that Ms. Cobb’s self-reported ADLs

consisted of 31-54 hours per week of activities primarily performed seated, and

7-14 hours per week of activities primarily performed standing. The extent of

Ms. Cobb’s ADLs set this case apart from Thompson and the other cases she

relies on, where minimal or sporadic performance of ADLs was held to be an

insufficient basis for an adverse credibility finding. See Reed v. Barnhart,

399 F.3d 917, 919, 923 (8th Cir. 2005) (limited ability to do crafts, household

chores, and grocery shopping); Hamlin v. Barnhart, 365 F.3d 1208, 1221

(10th Cir. 2004) (television watching); Thompson, 987 F.2d at 1489-90 (minimal

ADLs such as visiting neighbors and doing light housework). Moreover, the ALJ

did not state that Ms. Cobb’s performance of ADLs “to any degree” meant that

she had the RFC “to do sustained work activities in an ordinary work setting on a

regular and continuing basis,” which generally “means 8 hours a day, for 5 days a

week, or an equivalent work schedule,” Social Security Ruling 96-8p, 1996 WL

374184, at *2 (1996). The ALJ simply found that her ability to perform ADLs “to

any degree suggests . . . some capacity” to function in a work environment.

Admin. R. at 29 (emphasis added). As such, we consider the statement relatively



                                        -11-
benign. Accordingly, we do not think that the ALJ’s use of the phrase “to any

degree” suggests that the ALJ applied an erroneous legal standard when

determining whether Ms. Cobb’s ADLs undermined the credibility of her claimed

limitations.

      For the foregoing reasons, we conclude that substantial evidence supports

the ALJ’s credibility finding and that the ALJ applied the correct legal standards.

The judgment of the district court is AFFIRMED.


                                                    Entered for the Court


                                                    Paul J. Kelly, Jr.
                                                    Circuit Judge




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