Nielsen v. Commissioner, SSA ( 2022 )

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FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 28, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
SHIRLEY NIELSEN,
Plaintiff - Appellant,
v. No. 21-4136
(D.C. No. 2:20-CV-00666-JCB)
COMMISSIONER, SSA, (D. Utah)
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before TYMKOVICH, BALDOCK, and CARSON, Circuit Judges.
_________________________________
Shirley Nielsen appeals the district court’s judgment affirming the
Commissioner’s denial of her application for Supplemental Security Income benefits.
We have jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g) and affirm.
I. Background
Ms. Nielsen applied for Supplemental Security Income benefits in January
2018, asserting disability due to a heart condition, fibromyalgia, migraines, and
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
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anxiety. After her application was denied initially and upon reconsideration,
Ms. Nielsen had a hearing before an administrative law judge (ALJ). She told the
ALJ she could sit for 20 minutes, stand for 15 minutes, walk one block, and lift
10 pounds. She also said her hands cramp up but she has no problem with buttons or
zippers, she spends two or three days per week in her bedroom due to chronic
migraines, she does not drive because of anxiety, and she does household chores.
She further stated she has no side effects from her medications. As for social
activities, Ms. Nielsen said she goes out with her sisters, goes out to dinner,
participates in an annual parade, and camps once a year.
In a written decision, the ALJ followed the five-step sequential evaluation
process used to review disability claims. See Fischer-Ross v. Barnhart, 431 F.3d
729, 731 (10th Cir. 2005) (explaining five-step process). Pertinent here, the ALJ
found Ms. Nielsen has two severe impairments—fibromyalgia and migraine
headaches—but none of her impairments, alone or in combination, met or medically
equaled the severity of one of the impairments listed as disabling in the
Commissioner’s regulations.1 The ALJ then found that although Ms. Nielsen’s
impairments could reasonably be causing her alleged symptoms, her testimony about
the intensity, persistence, and limiting effects of those symptoms was not entirely
consistent with the medical evidence and other evidence in the record. After
1
The ALJ found Ms. Nielsen has non-severe hyperlipidemia, hypertension,
gastroesophageal reflux disease, hypothyroidism, paroxysmal supraventricular
tachycardia, depression, and anxiety.
2
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reviewing the evidence, the ALJ found Ms. Nielsen had the residual functional
capacity (RFC) to perform the full range of light work.2
Key to the RFC finding—and central to this appeal—is the ALJ’s rejection of
the opinions of Ms. Nielsen’s treating physician, Alisa Knowlton, M.D., that
Ms. Nielsen was so limited in her mental and physical functional abilities that she
was unable to work at all.3 Dr. Knowlton rendered her opinions on check-box RFC
forms—one form in January 2018 assessing physical capacity, and two forms in
August 2018 assessing physical and mental capacity. The ALJ found Dr. Knowlton’s
opinions unpersuasive for multiple reasons: (1) “Dr. Knowlton provided little
support, explanation, or rationale for her opinions”; (2) the opinions “contain[ed]
multiple internal inconsistencies”; (3) they were “not supported by her treatment
notes”; (4) they “appear[ed] to be based entirely on [Ms. Nielsen’s] subjective
complaints”; (5) they were “inconsistent with the objective results” of two
“consultative examination[s]” showing normal physical and mental abilities except
for “mildly impaired memory and concentration”; and (6) they were “inconsistent
2
Light work includes the ability to lift and carry ten pounds frequently and
twenty pounds occasionally, and to stand and walk, off and on, for about six hours in
an eight-hour workday or sit most of the time with pushing and pulling of arm-hand
or leg-foot controls. See 20 C.F.R. § 416.967(b) (explaining the physical
requirements for light work); SSR 83-10, 1983 WL 31251, at *5-6 (1983) (same).
3
We need not recount all of Dr. Knowlton’s RFC opinions, but they were
inconsistent with light work in many regards, including (at their most restrictive) that
Ms. Nielsen could sit, stand, and walk less than 2 hours in an 8-hour workday; could
never carry more than 10 pounds; had significant limitations in reaching, handling,
and fingering; and would need unscheduled breaks every 30 minutes.
3
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with the persuasive prior administrative medical findings.” Aplt. App., Vol. 1 at 49.
The ALJ instead found partly or fully persuasive other medical opinions and prior
administrative medical findings that were consistent with Ms. Nielsen’s ability to
perform the full range of light work. Accordingly, at step four, the ALJ found
Ms. Nielsen could return to her past relevant work as a cashier and therefore she was
not disabled.
Ms. Nielsen sought review in the district court, which affirmed the
Commissioner’s decision. She appeals.
II. Standard of Review
“We review the district court’s decision de novo and independently determine
whether the ALJ’s decision is free from legal error and supported by substantial
evidence.” Fischer-Ross, 431 F.3d at 731. “Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Barnett v. Apfel, 231 F.3d 687, 689 (10th Cir. 2000) (internal quotation marks
omitted). “[T]he threshold for such evidentiary sufficiency is not high,” but it is
“more than a mere scintilla.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019)
(internal quotation marks omitted). We cannot “reweigh the evidence” or “substitute
our judgment for that of the agency.” Barnett, 231 F.3d at 689 (internal quotation
marks omitted).
III. Discussion
Ms. Nielsen raises one issue on appeal—whether the ALJ evaluated the
supportability and consistency of the medical opinion evidence in accordance with
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20 C.F.R. § 416.920c. Under that regulation, which applies to claims like Ms. Nielsen’s
that were filed on or after March 27, 2017, the ALJ does “not defer or give any specific
evidentiary weight, including controlling weight, to any medical opinion(s) or prior
administrative medical finding(s), including those from [the claimant’s] medical
sources.” § 416.920c(a). Rather, the ALJ considers the persuasiveness of medical
opinions and prior administrative medical findings using five factors: supportability,
consistency, relationship with the claimant, specialization, and other factors such as
“evidence showing a medical source has familiarity with the other evidence in the claim
or an understanding of [the agency’s] disability program’s policies and evidentiary
requirements,” § 416.920c(c)(5).
The most important factors are supportability and consistency. § 416.920c(a).
“Supportability” examines how closely connected a medical opinion is to the evidence
and the medical source’s explanations: “The more relevant the objective medical
evidence and supporting explanations presented by a medical source are to support his or
her medical opinion(s) or prior administrative medical finding(s), the more persuasive the
medical opinions or prior administrative medical finding(s) will be.” § 416.920c(c)(1).
“Consistency,” on the other hand, compares a medical opinion or prior administrative
medical findings to the evidence: “The more consistent a medical opinion(s) or prior
administrative medical finding(s) is with the evidence from other medical sources and
nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior
administrative medical findings(s) will be.” § 416.920c(c)(2). An ALJ must explain how
he or she “considered the supportability and consistency factors.” § 416.920c(b)(2). An
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ALJ must consider factors three through five (relationship with the claimant,
specialization, and other factors) but is not required to explicitly discuss them unless
there are differing medical opinions on an issue and those opinions are equally
well-supported and consistent with the record. See § 416.920c(b)(2), (3).
Ms. Nielsen contends the ALJ did not adequately explain how Dr. Knowlton’s
opinions were unsupported by or inconsistent with the record. She advances multiple
arguments, including whether the ALJ erred in evaluating the opinions of other medical
sources as part of his inconsistency analysis.
A. Supportability
We begin with an internal inconsistency the ALJ noted in one of Dr. Knowlton’s
RFC forms—that Ms. Nielsen “can sit at one time” for 30 minutes but also that she
“must . . . walk” every 15 minutes. Aplt. App., Vol. 4 at 79–80. Ms. Nielsen complains
this inconsistency merely shows the difference between what she “can do with her
conditions, and what she should do with her conditions.” Aplt. Opening Br. at 24. We
are not persuaded. There is an obvious inconsistency between being able to sit for 30
minutes at a time and a requirement to walk (“must . . . walk”) every 15 minutes, and the
ALJ properly considered it. If that were the only basis for rejecting Dr. Knowlton’s
opinions regarding physical RFC, we might agree with Ms. Nielsen that the inconsistency
should call into question only the sit/walk findings, rather than undermine the
supportability of all of Dr. Knowlton’s physical RFC opinions. But it was not the only
basis.
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Ms. Nielsen takes issue with the ALJ’s findings that Dr. Knowlton’s opinions
were “not supported by her treatment notes, which show[ed] no objective evidence of
physical or mental abnormalities,” and were not supported by the course of treatment,
“which showed no evidence of referrals to specialists, orders for laboratory testing or
imaging, or more intense treatment regimens beyond conservative medication
management.” Aplt. App., Vol. 1 at 49. She observes that when a claimant has
fibromyalgia and objective medical evidence fails to substantiate the claimant’s
statements about the resulting functional limitations, Social Security Ruling 12-2P,
2012 WL 3104869 (July 25, 2012) (SSR 12-2P), instructs an ALJ to evaluate the
supportability of a medical source’s opinion based on the nature of the treatment
provided. See id. at *5. To that end, she points out that she saw Dr. Knowlton for
medication checks every few months from January 2017 through October 2018, and on
each visit Dr. Knowlton prescribed three drugs, including a narcotic, for pain
management. She also maintains that fibromyalgia is a chronic condition generally
treated by medications to limit pain and fatigue and points out that we have noted it is
error to require objective evidence of fibromyalgia because it is “a disease that eludes
such measurement,” Moore v. Barnhart, 114 F. App’x 983, 992 (10th Cir. 2004) (internal
quotation marks omitted). We disagree with these arguments for multiple reasons.
First, the ALJ did not err in relying on the lack of objective findings. SSR 12-2P
directs that objective evidence is relevant to determining whether medically determinable
fibromyalgia is disabling: “[B]efore we find that a person with [a medically determinable
impairment] of [fibromyalgia] is disabled, we must ensure there is sufficient objective
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evidence to support a finding that the person’s impairment(s) so limits the person’s
functional abilities that it precludes him or her from performing any substantial gainful
activity.” 2012 WL 3104869, at *2 (emphasis added).4 Moreover, the portion of
SSR 12-2P that Ms. Nielsen relies on directs consideration of “all of the evidence in the
case record”:
If objective medical evidence does not substantiate the person’s statements
about the intensity, persistence, and functionally limiting effects of
symptoms, we consider all of the evidence in the case record, including the
person’s daily activities, medications or other treatments the person uses, or
has used, to alleviate symptoms; the nature and frequency of the person’s
attempts to obtain medical treatment for symptoms; and statements by other
people about the person’s symptoms.
Id. at *5 (emphasis added); see also id. at *6 (“We base our RFC assessment on all
relevant evidence in the case record.” (emphasis added)). “All of the evidence in the case
record” necessarily includes, as one factor in the analysis, the objective medical evidence
(Dr. Knowlton’s treatment notes) that failed to substantiate the claimant’s statements
about what she can do despite her symptoms. It therefore was proper for the ALJ to note
the lack of objective evidence supporting Dr. Knowlton’s opinions regarding
Ms. Nielsen’s functional limitations as one of the reasons for rejecting those opinions.
Second, the ALJ did consider the evidence of Dr. Knowlton’s course of treatment
in addition to the lack of objective evidence and found that her opinion was “not
supported by her course of treatment for the claimant.” Aplt. App., Vol. 1 at 49.
4
Fibromyalgia “is a complex medical condition characterized primarily by
widespread pain in the joints, muscles, tendons, or nearby soft tissues that has
persisted for at least 3 months.” SSR 12-2p, 2012 WL 3104869, at *2.
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Although Ms. Nielsen cites medications Dr. Knowlton prescribed for pain management,
the ALJ could reasonably have concluded the prescription of such medications was
insufficient to support the limitations Dr. Knowlton found, particularly given the lack of
objective evidence of physical or mental functional limitations.
Third, Ms. Nielsen’s argument overlooks Dr. Knowlton’s observation that by
August 2018, she had gotten Ms. Nielsen’s “pain under . . . control,” id., Vol. 4 at 142,
and that in nearly every treatment note during this period, Dr. Knowlton recorded that
Ms. Nielsen either “appear[ed] in no acute distress,” id. at 65, or “appear[ed] healthy, in
no acute distress,” id. at 67, 69, 70, 72, 102, 104, 136. Dr. Knowlton also recorded the
same observation when she saw Ms. Nielsen to complete the August 2018 RFC forms.
See id. at 143. The ALJ discussed this evidence and also considered that despite
complaints “of chronic pain, fatigue, and migraines,” Ms. Nielsen had “been treated on a
stable dosage of medication,” including “opiod[s],” id., Vol. 1 at 50. And nothing in
Dr. Knowlton’s treatment notes suggests that the course of treatment supports the
extreme functional limitations she proposed in the RFC forms.
Fourth, we are not persuaded by Ms. Nielsen’s reliance on Moore for its statement
that an ALJ errs by requiring objective evidence of fibromyalgia because it is “a disease
that eludes [objective] measurement,” 114 F. App’x at 992 (internal quotation marks
omitted). Moore is unpublished and therefore not precedential, and it also predates
SSR 12-2P’s directive to consider objective evidence. Moore is further distinguishable
on its facts because the ALJ there “seemed to require that [fibromyalgia] be established
by a formalistic clinical or laboratory test.” Id. at 990 (emphasis added) (footnote
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omitted). The ALJ here found that Ms. Nielsen has fibromyalgia, and only the resulting
limitations were at issue. We therefore consider Moore unpersuasive with respect to the
facts of this case.
Ms. Nielsen also argues the ALJ erred in rejecting Dr. Knowlton’s opinions
because Dr. Knowlton relied on her subjective complaints. She premises this argument
on the holding of Arakas v. Commissioner, 983 F.3d 83, 97 (4th Cir. 2020), that “ALJs
may not rely on objective medical evidence (or the lack thereof)—even as just one of
multiple factors—to discount a claimant’s subjective complaints regarding symptoms of
fibromyalgia.” From that premise, Ms. Nielsen contends it was plausible for
Dr. Knowlton to rely on Ms. Nielsen’s subjective complaints when opining on her
functional capacity. But extending Arakas’s holding regarding the analysis of a
claimant’s subjective complaints to the evaluation of a medical opinion would require us
to ignore the dictate that supportability, which is one of the two most important factors in
evaluating a medical opinion, see § 416.920c(b)(2), rests on “the objective medical
evidence and supporting explanations presented by a medical source,” § 416.920c(c)(1).
Cf. Newbold v. Colvin, 718 F.3d 1257, 1267–68 (10th Cir. 2013) (affirming ALJ’s
adverse credibility finding in fibromyalgia case that was based in part on inconsistency
between subjective complaints and objective medical evidence). It also would require
ignoring SSR 12-2P’s tenet (discussed above) that objective evidence is relevant to
evaluating the limiting effects of fibromyalgia. Moreover, Dr. Knowlton provided no
support for her RFC opinions other than Ms. Nielsen’s subjective statements, she
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conducted no tests of Ms. Nielsen’s functional abilities, and her treatment notes contain
no findings regarding such abilities.
Although not directly implicating supportability or consistency, Ms. Nielsen faults
the ALJ for not addressing Dr. Knowlton’s opinion that she would need to take
unscheduled breaks and would likely miss at least four days of work per month. The ALJ
did not expressly discuss this specific limitation, but the reason for the ALJ’s rejection of
it (that Dr. Knowlton’s opinions were unsupported and inconsistent with other record
evidence) is evident from his analysis. No more was required. See § 416.920c(b)(1)
(“[W]hen a medical source provides multiple medical opinion(s) or prior administrative
medical finding(s), we will articulate how we considered the medical opinions or
prior administrative medical findings from that medical source together in a single
analysis . . . . We are not required to articulate how we considered each medical opinion
or prior administrative medical finding from one medical source individually.”);
Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844,
5858 (Jan. 18, 2017) (“[T]he articulation requirements in [§ 416.920c] will allow a
subsequent reviewer or a reviewing court to trace the path of an adjudicator’s reasoning,
and will not impede a reviewer’s ability to review a determination or decision, or a
court’s ability to review our final decision.”); cf. Oldham v. Astrue, 509 F.3d 1254, 1258
(10th Cir. 2007) (requiring, under predecessor to § 416.920c, that an ALJ need only
provide “good reasons” for the weight afforded to a medical opinion).
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B. Consistency
We next address Ms. Nielsen’s arguments concerning the ALJ’s findings that
Dr. Knowlton’s were inconsistent with other record evidence. We begin with the ALJ’s
reliance on the inconsistency between the extreme functional limitations in
Dr. Knowlton’s opinions and the objective findings of the consulting examiners showing
generally normal physical and mental functioning. As Ms. Nielsen observes, one of those
examiners, Joseph Fyans, M.D., found she had “tenderness to palpation over the scalp,
through the length of the spine and the posterior trunk diffusely,” and “some mild to
moderate spasming of the right lower thoracic/lumbar paraspinal muscles.” Aplt. App.,
Vol. 4 at 93. But that hardly shows Dr. Knowlton’s extreme limitations were consistent
with Dr. Fyans’s objective findings, particularly given that Dr. Fyans also found
Ms. Nielsen had normal gait, strength, coordination, range of motion, and reflexes, and
she was “able to perform all higher level ambulatory activities without difficulty,”
id. at 94. And contrary to Ms. Nielsen’s argument, Dr. Fyans’s finding of diffuse
tenderness does not call into question his qualifications to assess Ms. Nielsen’s physical
limitations through objective examination; whether she has fibromyalgia is not in dispute,
only the resulting limitations are contested.5 Nor does the absence of Dr. Fyans’s
background and certifications from the record or any lack of clarity whether he reviewed
Ms. Nielsen’s medical records cast doubt on his ability to conduct an objective
5
To find that a claimant has fibromyalgia, there must be a showing of, among
other things, “[a]t least 11 [of 18 specific] positive tender points on physical
examination . . . bilaterally . . . and both above and below the waist.” SSR 12-2P,
2012 WL 3104869, at *3.
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examination of Ms. Nielsen’s functional limitations. As a state agency consulting
physician, Dr. Fyans was required to “have a good understanding of [Social Security]
disability programs and their evidentiary requirements,” 20 C.F.R. § 416.919n, and is
viewed as an “expert[] in the evaluation of medical issues in disability claims under the
[Social Security] Act,” SSR 17-2P, 2017 WL 3928306, at *3 (Mar. 27, 2017).6 And
Dr. Fyans’s report recites Ms. Nielsen’s subjective complaints and lists multiple
conditions in the “Past Medical History” section, Aplt. App., Vol. 4 at 91, suggesting he
was familiar with Ms. Nielsen’s medical history.
Ms. Nielsen further questions reliance on Dr. Fyans’s findings because
fibromyalgia is a “condition causing pain, not loss of range of motion, strength, or ability
to ambulate.” Aplt. Opening Br. at 31.7 But the inquiry for disability purposes is
whether pain is “so severe, by itself or in conjunction with other impairments, as to
preclude any substantial gainful employment.” Brown v. Bowen, 801 F.2d 361, 362–63
(10th Cir. 1986) (internal quotation marks omitted). Range of motion, strength, and
ability to ambulate are relevant to that inquiry.
Ms. Nielsen further posits that because fibromyalgia requires consideration of the
patient’s “longitudinal record whenever possible,” SSR 12-2P, 2012 WL 3104869, at *6,
6
As the Commissioner points out, nothing in the record suggests that
Dr. Knowlton was any more qualified to assess fibromyalgia or the resulting
limitations than Dr. Fyans.
7
The ALJ found only partly persuasive Dr. Fyans’s opinion that none of his
findings would limit Ms. Nielsen’s ability to work because it was supported by his
examination results but was inconsistent with the prior administrative medical
findings that Ms. Nielsen would be limited to the full range of light work.
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the ALJ should have considered whether Ms. Nielsen was just having a good day when
she saw Dr. Fyans. The longitudinal record, however, consists primarily of
Dr. Knowlton’s treatment notes generated at Ms. Nielsen’s periodic medication-check
appointments, and as previously discussed, nothing in those notes calls into doubt the
ALJ’s reliance on Dr. Fyans’s findings and the inconsistency between those findings and
Dr. Knowlton’s RFC opinions.
Ms. Nielsen also claims that when the other consultative examiner, Michael
Schreiner, M.D., noted some errors in Ms. Nielsen’s ability to recall numbers, the ALJ
misconstrued Dr. Schreiner’s findings by stating he found “mildly impaired memory and
concentration but otherwise grossly normal results in the mental status examination,”
Aplt. App., Vol. 1 at 49. We disagree. Dr. Schreiner found Ms. Nielsen’s “[r]ecent
memory was generally fine”; her “[i]mmediate memory was a mild struggle”; and on
“digits backwards, she made errors on three and four digits” and was unable “to do serial
three’s backwards from 30,” so that task “was deemed to be too difficult for her” and
“was discontinued.” Id., Vol. 4 at 87. Ultimately, Dr. Schreiner “deemed that
[Ms. Nielsen] may have some mild struggles with attention and concentration.” Id. We
fail to see how the ALJ’s assessment of Dr. Schreiner’s findings was wrong. We also fail
to see error in the ALJ finding an inconsistency between Dr. Knowlton’s opinions that
Ms. Nielsen’s memory was moderately impaired and her ability to maintain concentration
for extended period was extremely impaired, see id. at 115, and Dr. Schreiner’s objective
findings.
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Finally, Ms. Nielsen contends the ALJ erred in relying on the opinions of
Kendrick Morrison, D.O., and Richard Nielsen, M.D., the nonexamining state agency
consultants who completed the medical portion of the initial denial of benefits and the
denial upon reconsideration, respectively. The ALJ found persuasive their opinion that
Ms. Nielsen would be limited to a full range of light work.
Ms. Nielsen contends the ALJ did not establish whether their opinions were
consistent with the record. She observes that Dr. Morrison, relying almost exclusively on
Dr. Fyans’s report, noted that fibromyalgia was not proven, but he failed to note that
Dr. Fyans did not fully assess whether Ms. Nielsen had fibromyalgia despite finding
tender points. But again, whether Ms. Nielsen has fibromyalgia is not in question; only
the resulting functional limitations are, and Ms. Nielsen fails to show the ALJ erred in
relying on Dr. Morrison’s evaluation of those limitations.
Ms. Nielsen further notes Dr. Nielsen reviewed Dr. Knowlton’s records, which
included notations of fatigue and pain, yet upheld the initial denial of benefits despite the
fact that pain and other symptoms associated with fibromyalgia “may result in exertional
limitations that prevent a person” from performing a full range of work and may also
cause “nonexertional physical and mental limitations,” SSR 12-2P, 2012 WL 3104869,
at *6. But Dr. Knowlton’s observations of fatigue and pain were simply a record of what
Ms. Nielsen told her; they do not shed light on the extent of Ms. Nielsen’s limitations.
Last, Ms. Nielsen argues that because both doctors are ear/nose/throat specialists,
their qualifications to opine on fibromyalgia are questionable. However, Ms. Nielsen
provides no concrete reason to doubt their qualifications with regard to fibromyalgia, and
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as state agency consultants, Drs. Morrison and Nielsen were required to “have a good
understanding of [Social Security] disability programs and their evidentiary
requirements,” 20 C.F.R. § 416.919n, and are viewed as “experts in the evaluation of
medical issues in disability claims under the [Social Security] Act,” SSR 17-2P,
2017 WL 3928306, at *3.8
IV. Conclusion
Our review of the record convinces us that substantial evidence supports the
ALJ’s disability determination and that the correct legal standards were applied. We
therefore affirm the district court’s judgment.
Entered for the Court
Timothy M. Tymkovich
Circuit Judge
8
In her reply brief, Ms. Nielsen advances a new argument about the ALJ’s
evaluation of her migraine headaches. See Aplt. Reply Br. at 19. We see no reason
to overlook our general rule that arguments raised for the first time in a reply brief
are waived. See Silverton Snowmobile Club v. U.S. Forest Serv., 433 F.3d 772, 783
(10th Cir. 2006).
16