UNITED STATES COURT OF APPEALS
Filed 8/15/96
FOR THE TENTH CIRCUIT
GARLAND M. TORREZ,
Plaintiff-Appellant,
v. No. 95-2253
(D.C. No. CIV 93-0835 M/JHG)
SHIRLEY S. CHATER, Commissioner (D. N.M.)
of Social Security, *
Defendant-Appellee.
ORDER AND JUDGMENT **
Before PORFILIO, BRIGHT, *** and KELLY, 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. P. 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This order and judgment is not binding precedent, except under the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.
***
Honorable Myron H. Bright, Senior Circuit Judge, United States Court of
Appeals for the Eighth Circuit, sitting by designation.
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.
Appellant Garland Torrez was denied social security disability benefits by
the Commissioner of the Social Security Administration (“Commissioner”). Mr.
Torrez now appeals from the district court’s affirmance of the Commissioner’s
decision. For the reasons that follow, we affirm.
Mr. Torrez alleges that he is disabled because of back and leg problems.
The administrative law judge (“ALJ”) hearing the case determined that Mr. Torrez
could not perform his past relevant work. The ALJ then determined that Mr.
Torrez’s allegations of pain did not credibly establish that the pain was so severe
that he would be precluded from engaging in the full range of sedentary work.
Thus, the ALJ concluded that Mr. Torrez was not disabled. After this decision,
Mr. Torrez presented to the Appeals Council a letter from a Dr. Glover stating
that Mr. Torrez was disabled and could not perform “sedentary-type” work. Dr.
Glover allegedly was Mr. Torrez’s treating physician for his back problems. The
Appeals Council discounted Dr. Glover’s opinion because Mr. Torrez failed to
present any supporting medical records or clinical findings with the letter.
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Mr. Torrez raises two issues on appeal. First, he argues that the Appeals
Council failed to give Dr. Glover’s opinion the weight typically accorded to a
treating physician. Second, he argues that the ALJ erroneously concluded that
Mr. Torrez’s allegations of pain were not credible. We review the
Commissioner’s final decision to determine whether the correct legal standards
were applied and whether the decision is supported by substantial evidence.
Castellano v. Secretary of Health & Human Servs., 26 F.3d 1027, 1028 (10th Cir.
1994).
Mr. Torrez’s first argument concerning the validity of Dr. Glover’s opinion
is without merit. “A treating physician’s opinion may be rejected if his
conclusions are not supported by specific findings.” Id. at 1029. Here, Mr.
Torrez did not submit any medical reports from Dr. Glover although he claims
that Dr. Glover was his treating physician for back problems. Mr. Torrez
attempts to circumvent this problem by pointing out that the record did contain
medical reports from Lovelace Medical Center where Dr. Glover is employed. He
asserts that Dr. Glover may rely on medical reports from a medical institution
where he is employed in order to form his opinions. Even assuming this to be
true, Mr. Torrez’s argument still fails. We decline to give Dr. Glover’s opinion
any weight as a treating physician when there is no evidence in the record that Dr.
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Glover actually treated Mr. Torrez. The Appeals Council properly rejected Dr.
Glover’s unsupported opinion.
Mr. Torrez next argues that the ALJ erroneously concluded that his
allegations of pain were not credible. We do not reject an ALJ’s credibility
determinations where, as here, they are supported by substantial evidence. See
Diaz v. Secretary of Health & Human Servs., 898 F.2d 774, 777 (10th Cir. 1990).
First, Mr. Torrez claims that the ALJ erroneously found that Mr. Torrez was not
taking any medication when, in fact, he testified that he did not like to take the
medication because of unpleasant side effects. The record reveals, however, that
the ALJ both recognized the fact that Mr. Torrez was taking medication and that
the medication caused certain side effects. Appellant’s App. at 70, 72. It appears
that the ALJ was merely pointing out the inconsistencies in the record concerning
the amount of medication Mr. Torrez was taking. For example, although Mr.
Torrez had stated he was taking Soma tablets twice a day, a form filled out by Mr.
Torrez indicated that he was not taking any prescription medication but was using
a “TENS” unit instead. He later testified that he only took the Soma tablets on
“really bad” days. Id. at 70. In determining the credibility of pain testimony, an
ALJ may consider among other things “‘the levels of medication and their
effectiveness . . . .’” Thompson v. Sullivan, 987 F.2d 1482, 1489 (10th Cir. 1993)
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(quoting Hargis v. Sullivan, 945 F.2d 1482, 1489 (10th Cir. 1991)). This is in
fact what the ALJ did.
Mr. Torrez also argues that the ALJ should have considered Mr. Torrez’s
testimony that he could no longer afford the TENS unit. If the ALJ had relied on
Mr. Torrez’s failure to use the TENS unit in reaching his conclusion that the
allegations of pain were not credible, then the ALJ would have been required to
consider Mr. Torrez’s stated reasons for not using the unit. See id. at 1490
(setting forth analysis ALJ should use before relying on failure to pursue
treatment or medication in support of noncredibility finding). The ALJ, however,
did not consider the fact that Mr. Torrez was no longer using a TENS unit in
support of the noncredibility determination. Rather, the ALJ simply referred to
the use of the TENS unit in pointing out the inconsistencies in Mr. Torrez’s stated
uses of prescription medication. Appellant’s App. at 70. Thus, no error occurred.
The judgment of the United States District Court for the District of New
Mexico is AFFIRMED.
Entered for the Court
John C. Porfilio
Circuit Judge
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