UNITED STATES COURT OF APPEALS
Filed 7/18/96
FOR THE TENTH CIRCUIT
THOMAS HALLER,
Plaintiff-Appellant,
v. No. 95-5223
(D.C. No. 94-C-18-W)
SHIRLEY S. CHATER, Commissioner (N.D. Okla.)
of Social Security, *
Defendant-Appellee.
ORDER AND JUDGMENT **
Before ANDERSON, LOGAN, and MURPHY, Circuit Judges.
*
Effective March 31, 1995, the functions of the Secretary of Health and
Human Services in social security cases were transferred to the Commissioner of
Social Security. P.L. No. 103-296. Pursuant to Fed. R. App. Proc. 43(c), Shirley
S. Chater, Commissioner of Social Security, is substituted for Donna E. Shalala,
Secretary of Health and Human Services, as the defendant in this action.
Although we have substituted the Commissioner for the Secretary in the caption,
in the text we continue to refer to the Secretary because she was the appropriate
party at the time of the underlying decision.
**
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
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) and 10th Cir. R. 34.1.9. The case is
therefore ordered submitted without oral argument.
Claimant Thomas Haller appeals from the district court’s order affirming
the denial of his application for social security disability benefits by the Secretary
of Health and Human Services (Secretary). After his claim was denied
administratively, a hearing was held before an administrative law judge (ALJ)
who denied benefits at step four of the five-step sequential evaluation process.
See Williams v. Bowen, 844 F.2d 748, 750-51 (10th Cir. 1988)(discussing five
steps). The ALJ concluded that claimant could perform his past work as president
of a real estate sales company, computer consultant, and executive vice-president
of a television corporation. The Appeals Council denied review. The district
court upheld the Secretary’s decision, and claimant now appeals to this court.
The parties agree that claimant met the earnings requirements of the Social
Security Act (Act), 42 U.S.C. §§ 401-433, only through December 31, 1988.
Therefore, in order to receive benefits, claimant must establish his disability prior
to that date. See Henrie v. United States Dep’t of Health & Human Servs., 13
F.3d 359, 360 (10th Cir. 1993). On appeal, claimant contends that the ALJ
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improperly evaluated his allegations of pain, and disregarded the evidence that his
pain medication impaired his mental functioning.
We review the Secretary’s decision to determine whether the findings of
fact are supported by substantial evidence based on the entire record, and to
ascertain whether she applied the correct legal standards. Castellano v. Secretary
of Health & Human Servs., 26 F.3d 1027, 1028 (10th Cir. 1994). Substantial
evidence is “‘such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.’” Soliz v. Chater, 82 F.3d 373, 375 (10th Cir.
1996)(quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)(further quotation
omitted)). We do not reweigh the evidence. Hamilton v. Secretary of Health &
Human Servs., 961 F.2d 1495, 1498 (10th Cir. 1992).
Claimant first challenges the ALJ’s conclusion that his testimony that he
was disabled by pain was not credible. Because claimant produced medical
evidence to establish that he suffered from a pain-producing impairment, the ALJ
was required to evaluate his subjective complaints of disabling pain, and to
“decide whether he believe[d them].” Kepler v. Chater, 68 F.3d 387, 391 (10th
Cir. 1995)(quotation omitted). In evaluating claimant’s pain, an ALJ should
consider factors such as
the levels of medication and their effectiveness, the extensiveness of
the attempts (medical or nonmedical) to obtain relief, the frequency
of medical contacts, the nature of daily activities, subjective
measures of credibility that are peculiarly within the judgment of the
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ALJ, the motivation of and relationship between the claimant and
other witnesses, and the consistency or compatibility of nonmedical
testimony with objective medical evidence.
Id. (quotations omitted).
Here, the ALJ properly considered those factors, recognizing that claimant
produced no medical records from October 1, 1983, the date he alleges onset of
disability, to November 1988. In November 1988, he declined further medical
evaluation and treatment that was recommended by his physician. Further,
although prescription pain medications were prescribed for claimant during the
period between 1983 and late 1988, he declined to take them. Cf. Decker v.
Chater, No. 95-3259, 1996 WL 333119, at *2 (10th Cir. Apr. 15, 1996)(“The
failure to follow prescribed treatment is a legitimate consideration in evaluating
the validity of an alleged impairment.”). The ALJ also noted that claimant read
for several hours each day and had engaged in an active social life.
The ALJ evaluated claimant’s credibility as fair to poor. Claimant argues
that the ALJ’s credibility determination is flawed because he failed to explain
how claimant’s testimony was inconsistent with the medical evidence. To the
contrary, as noted above, the ALJ considered various factors to determine that
claimant’s allegations of disabling pain were not fully credible. The ALJ’s
credibility determination is afforded considerable deference. Gay v. Sullivan, 986
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F.2d 1336, 1339 (10th Cir. 1993). Accordingly, we conclude that substantial
evidence supports the ALJ’s findings on claimant’s credibility.
Claimant also argues that the ALJ improperly disregarded the evidence that
he was unable to work because of the side effects of his pain medication. The
record reflects that claimant took no pain medication until November 1988.
Claimant stated that the side effects included nausea and confusion, but his
treating physician did not indicate that claimant complained of side effects.
Furthermore, there was no evidence on whether the side effects could be
alleviated by changing the medication or adjusting its dosage.
The ALJ did disregard the medical expert’s testimony that claimant’s
mental functioning was adversely affected by medication. The medical expert’s
opinion, however, was based on claimant’s own statement of the type and amount
of pain medication he needed in 1988. Therefore, the ALJ properly disregarded
the medical expert’s opinion because it was based solely on claimant’s testimony
which the ALJ determined lacked credibility.
We have carefully reviewed the record and we have considered claimant’s
arguments in light of the record. We conclude that substantial evidence supports
the Secretary’s decision to deny claimant’s application for disability benefits.
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The judgment of the United States District Court for the Northern District
of Oklahoma is AFFIRMED.
Entered for the Court
Stephen H. Anderson
Circuit Judge
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