F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
SEP 8 1999
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
CORA D. BARR,
Plaintiff-Appellant,
v. No. 98-5198
(D.C. No. 96-CV-951-EA)
KENNETH S. APFEL, Commissioner (N.D. Okla.)
of Social Security Administration,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before PORFILIO , BARRETT , and HENRY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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This order and judgment is not binding precedent, except under the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. 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.
Plaintiff Cora D. Barr appeals an order of the district court upholding the
Commissioner’s determination that she is not entitled to disability benefits and
supplemental security income. We affirm.
Plaintiff claims she has been disabled since August of 1990 due to
limitations and pain caused by a back injury she sustained at work. Following a
hearing before an administrative law judge (ALJ) in 1993, benefits were denied.
The Appeals Council remanded the matter for clarification of plaintiff’s residual
functional capacity (RFC), for clarification and reconsideration of her allegations
of disabling pain, and to obtain further medical and supplemental vocational
evidence. See Appellant’s App., Vol. II at 506-08.
Following a second hearing at which plaintiff, a medical expert and a
vocational expert testified, the ALJ determined, at step five of the sequential
process, that plaintiff retains the RFC to perform work at the light and sedentary
exertional levels, with certain limitations. Id. at 21; see also Williams v. Bowen ,
844 F.2d 748, 750-52 (10th Cir. 1988) (discussing five-step sequential process).
Before the district court and on appeal to this court, plaintiff argued that
the ALJ’s findings on plaintiff’s RFC were erroneous because he failed to
properly consider plaintiff’s subjective complaints of pain. She claimed the
ALJ’s reasons used to support his credibility determinations were not supported
by substantial evidence and that he failed to consider the side effects of her
-2-
medications, which she claims affected her ability to concentrate and made her
sleepy.
The district court 1
considered the issues in light of its limited scope of
review, i.e., whether the Commissioner’s determination was supported by
substantial evidence and whether correct legal standards were applied, which is
also the standard of review on appeal to this court. See Hargis v. Sullivan ,
945 F.2d 1482, 1486 (10th Cir. 1991). The court determined, and we agree, that
the ALJ’s assessment of plaintiff’s credibility (particularly his disbelief of the
level of plaintiff’s claimed pain) was supported by substantial evidence and is
entitled to great deference. The court noted that in discounting the severity of
plaintiff’s pain claims, the ALJ closely and affirmatively linked his findings to
specific medical evidence which did not support her claim of disabling pain. See
Kepler v. Chater , 68 F.3d 387, 390 (10th Cir. 1995).
Plaintiff also claimed the ALJ erred in rejecting her testimony as to the
side effects of her medication--even though the testimony of Dr. Goldman (the
medical expert), confirmed those side effects--based on the ALJ’s conclusion that
Dr. Reed “had modified the prescription, prescribing Alprazolomo instead,” when
in fact “Alprazolomo is the generic chemical found in Xanax.” Plaintiff’s Dist.
1
The case was heard, on consent of the parties, by a magistrate judge. See
28 U.S.C. § 636(c)(1) and (3). We have jurisdiction pursuant to 28 U.S.C. § 1291
and 42 U.S.C. § 405(g).
-3-
Court Br. at 5 (attached to Appellant’s Br.). However, the ALJ’s ultimate
determination was that it was “clear that [plaintiff’s] physicians are willing to
change her prescriptions if advised of problems with them. Yet, she apparently
has not told them of any drowsiness problems, which suggests . . . that she is not
unhappy with any side effects.” Appellant’s App., Vol. II at 24. Thus, as the
district court noted, even if the ALJ mistakenly believed the two medications
were different, the fact remains that plaintiff apparently did not complain of this
supposed drowsiness. Moreover, we agree with the district court that the ALJ’s
misapprehension did not result in an erroneous conclusion. Plaintiff’s own
testimony was inconsistent regarding her daily activities. She testified both that
she slept less than eight hours a day, id. at 103-04, and that she slept between ten
and twelve hours daily, see id. at 104.
Credibility determinations are within the province of the ALJ, and we will
not upset these determinations when supported by substantial evidence. See
Kepler , 68 F.3d at 391. In this case, the ALJ properly discussed the relevant
evidence, which included plaintiff’s medical record, frequency of medical
contacts, daily activities, pain medication, and motivation, and determined her
pain was not as severe as alleged. See id. Moreover, we agree with the district
court that the ALJ affirmatively linked his credibility findings to substantial
evidence in the record. See id. We have reviewed the entire record and conclude
-4-
that the ALJ’s determination that plaintiff retains the residual functional capacity
to perform alternative work is fully supported by substantial evidence.
Accordingly, the judgment of the United States District Court for the
Northern District of Oklahoma is AFFIRMED.
Entered for the Court
Robert H. Henry
Circuit Judge
-5-