F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 12 2003
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
DONNA J. HOLLENBACH,
Plaintiff-Appellant,
v. No. 02-2231
(D.C. No. CIV-01-0551 JP/RLP)
JO ANNE B. BARNHART, (D. N.M.)
Commissioner of Social Security
Administration,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before BRISCOE , PORFILIO , and ANDERSON , Circuit Judges.
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This order and judgment is not binding precedent, except under the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. 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.
Claimant Donna J. Hollenbach appeals the district court’s affirmance of the
decision by the Commissioner of Social Security denying her applications for
disability benefits and supplemental security income. Because the decision is
supported by substantial evidence and no legal errors occurred, we affirm.
On May 5, 1995, claimant was involved in a serious car accident. As a
result, she suffered several fractured ribs; an injury to the ligaments and soft
tissue of her neck at C6-7 with a possible small disc protrusion; pain and
weakness in her arms; headaches with dizziness and vomiting; abnormal
alignment of the thoracic spine with wedging at T-6; a probable nondisplaced
fracture of the manubriosternal joint with mild arthritis; temporomandibular joint
syndrome (TMJ); and a fractured right knee fibular head. Claimant’s x-rays also
showed mild degenerative changes in her thoracic and lumbar spine.
After receiving emergency care at the University of New Mexico Hospital
(UNMH), claimant was treated by orthopedic surgeon Swajian from May 12, 1995
until October 4, 1995. An initial physical exam of claimant revealed extensive
bruising, reduced range of motion in her neck and back, pain and popping in her
jaw, right knee abnormality, slight sensory loss in the tibial region, uneven
shoulder height, muscle spasms, and partial hearing loss. Aplt’s App., Vol. II at
157-59. Dr. Swajian opined that claimant suffered a cerebral concussion, cervical
dorsal sprain/strain, lumbar dorsal sprain/strain, TMJ syndrome, chondromalacia,
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and pelvic and scapular instability. Id. at 159-60. He disagreed with the
UNMH’s notation of a bulging disc, however. Id. at 159.
In July 1995, Dr. Swajian noted that claimant’s rib and chest pain had
subsided “markedly,” and her right fibular fracture was ninety percent healed with
good stability. Id. at 152. He prescribed an eight-week course of physical
therapy. In September 1995, the physician noted that claimant continued to have
muscle spasms in her neck and upper back, but that physical therapy had helped
resolve her subjective complaints. Id. at 149. Dr. Swajian was concerned about
claimant’s reports of increased headaches and dizziness and recommended she
return to a neurologist. Claimant did not do so, however.
On October 4, 1995, Dr. Swajian reported that plaintiff’s range of motion
had improved substantially and that her pain was reduced. Id. at 170. He noted
that the physical therapy had shown good results, and recommended sending
claimant to a spa-type program to accommodate her transportation needs. Id. at
170-71. Claimant did not return to Dr. Swajian after this date.
Claimant was evaluated by neurologist Berger in May and June 1995.
Dr. Berger noted claimant’s limited range of motion in her neck, but otherwise
found good muscle tone, bulk, and strength and sensation. After reviewing
claimant’s CT scan, EEG, MRI, EMG, and x-rays, Dr. Berger concluded that
claimant had no spinal lesions compressing neural structures; that her headaches
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were consistent with trauma; that her back pain was most likely musculoskeletal
in nature; and that her prognosis for eventual recovery was good. Id. at 146-48.
Dr. Berger concluded that no further neurological diagnostic tests were necessary.
Id. at 146.
Claimant was also treated by dentist Clifford, who diagnosed her with TMJ
syndrome, including myofascitis, cervicalgia, tinnitus, and vertigo. Id. at 165.
He treated claimant with splints and injections. In August 1995, claimant
complained to Dr. Clifford that her headaches had returned, stating that she had
been working out and may have done too much. Id. at 161.
In July 1995, claimant was seen at the UNMH emergency room with
complaints of upper right quadrant pain and cramping. Claimant was diagnosed
with gastro-esophogeal reflux disease, a small hiatal hernia in the esophagus, and
a congenital anomaly of the liver. By January 1996, claimant reported her
stomach bloating and pain had improved, but she continued to have heartburn.
In May 1996, claimant sought treatment from Dr. Merchant for back pain.
Although this family physician had treated claimant in 1993 and 1994 for colds
and sore throats, there is no evidence that he treated claimant for her accident
injuries before May 1996. Dr. Merchant noted tenderness and spasm in
claimant’s upper spine and right upper abdominal tenderness, and prescribed pain
medication and antacids. Id. at 186. In June 1996, he again noted tenderness and
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spasm in claimant’s neck and back, and tenderness in her chest wall and knee.
Dr. Merchant diagnosed claimant with cervical, thoracic and lumbar pain and
spasm, knee and anterior thigh pain, and depression. Id. at 184. He prescribed
pain medication and an antidepressant, and suggested claimant consult with
Dr. Berger to develop an at-home rehabilitation program.
Claimant filed for disability and SSI benefits in May 1996, alleging she was
unable to work after March 5, 1995, due to back and knee injuries, headaches,
depression, jaw and gastric problems. In September 1996, she was sent for a
consultative psychological examination with Dr. Mellon. Claimant denied any
former treatment for depression. She appeared tired, cried, and had a moderately
depressed mood with a decreased affect. She had normal psychomotor activity,
orientation, attention, calculation and recall, average intellectual functioning, her
thought processes were coherent, logical, and goal-directed with no looseness of
association or flight of ideas, no repetitious activity or speech impairment, and no
delusions, sustained preoccupation, or suicidal/homicidal thoughts. Her insight
was limited. Dr. Mellon diagnosed claimant with major depression, moderate,
gave her a Global Assessment of Functioning score of 48, and opined that her
prognosis was guarded without treatment. Id. at 193.
In October 1996, claimant told Dr. Merchant that she had registered for
indigent care at UNMH, and that she would seek physical therapy and depression
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medication there. Id. at 211. Claimant did not follow through on these
statements. In December 1996, claimant saw Dr. Merchant for a breast problem,
and in February 1997, she saw him for bronchitis.
In March 1997, claimant was examined at the UNMH Orthopedics
Department. She described her condition as gradually improving, and noted that
she had right leg symptoms approximately three times per year. Claimant was
using over-the-counter medication for pain. Physical examinations of her back
and knee were essentially normal, with a stable right knee, no swelling, normal
reflexes in all extremities, no loss of sensation, no loss of strength except a mild
loss in hip extension and flexion, negative straight leg raising, and a range of
motion to eighty degrees without pain. There was no evidence of cervical,
thoracic, or lumbar fracture on claimant’s 1995 x-rays, and a 1997 x-ray of her
knee was normal. Id. at 224-25.
In April 1997, claimant was seen at the UNMH with complaints of back
pain after tripping and falling. Examination revealed tenderness along the spine,
with pain on twisting and flexion. Leg and arm strength were 5/5. Although
claimant was referred to physical therapy, she again did not follow through.
In July 1997, Dr. Merchant completed a form diagnosing claimant with
“severe pain [due to] multiple disc herniations and soft tissue injury,” based on
her x-rays, CT scan, MRI and exam. Id. at 212. He indicated that he has referred
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claimant to the UNMH for pain management and psychiatric care. The physician
opined that claimant was totally disabled since May 5, 1995, and that she would
remain so for years. Id. at 213-14. Dr. Merchant limited claimant to one hour of
sitting, one hour of standing, and two hours of walking during an eight-hour day,
opining that claimant could never lift more than five pounds and that she could
not use her right arm or feet for pushing and pulling controls. Id. at 215.
In October 1998, Dr. Merchant again concluded claimant was totally
disabled, and opined that she met the clinical listings for a spine disorder. See id.
at 239-40 (Dr. Merchant’s opinion and the requirements of 20 C.F.R. Pt. 404,
Subpt. P, App. 1, § 1.05 (1998), which are now codified in § 1.04). He opined
that claimant met the criteria for osteoporosis under § 1.05(B)(2) and for a
vertebrogenic disorder under § 1.05(C).
After her applications were denied at the first and second administrative
levels, claimant participated in a hearing before an administrative law judge
(ALJ). Claimant was represented by counsel. The ALJ issued his decision in
February 1999, finding that claimant was not disabled. He found that claimant
suffered from back pain and depression, but that her conditions did not meet or
equal any of the listed impairments. Although the ALJ noted that claimant had
been noncompliant with all recommendations for treatment of her depression, he
found that she remained capable of performing simple, low-stress work, even
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without treatment. The ALJ rejected Dr. Merchant’s disability opinion as
contrary to the evidence, and concluded that claimant retained the physical
capacity to perform a significant number of jobs, including the manicurist aspect
of her prior cosmetology jobs, and thus she was not disabled. The Appeals
Council denied review, making the ALJ’s determination as the final decision of
the Commissioner. The district court affirmed.
We review the Commissioner’s decision to determine only whether it is
supported by substantial evidence and whether legal errors occurred. See
Castellano v. Sec’y of Health & Human Servs., 26 F.3d 1027, 1028 (10th Cir.
1994). Substantial “evidence is that which a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401
(1971) (quotation omitted). We may not reweigh the evidence or substitute our
judgment for that of the agency. Casias v. Sec’y of Health & Human Servs.,
933 F.2d 799, 801 (10th Cir. 1991).
Claimant argues that the ALJ committed legal error by disregarding her
treating physician’s opinion (1) that claimant met the listing for a spine disorder,
and (2) that she was totally disabled from her injuries. A treating source’s
opinion is to be given controlling weight if it is “well supported by medically
acceptable clinical . . . diagnostic techniques and is not inconsistent with the other
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substantial evidence.” 20 C.F.R. § 404.1527(d)(2). We agree with the ALJ that
Dr. Merchant’s opinion was contrary to the medical evidence.
As noted by the ALJ, Dr. Merchant concluded claimant was totally disabled
based on “multiple disc herniations,” despite the absence of any medical evidence
to support this conclusion. Aplt’s App., Vol. II at 22. None of claimant’s x-rays,
CT scans, or MRI findings demonstrated multiple herniations, and claimant’s
other treating sources found that she did not have such a condition. See id. at 148
(reporting that MRI views “reveal no significant lesions compressing neural
structures”); 159 (“I do not see any evidence of a bulging or herniated cervical or
lumbar disc, nor do I see evidence of a cervical [or] lumbar radiculitis or
radiculopathy.”). Further, the medical evidence did not show any “significant
motor loss with muscle weakness and reflex loss,” as required under the listing
for vertebrogenic disorders. See § 1.05(C)(2). The pages cited by claimant do not
contain such evidence. See Aplt’s Br. at 12; Aplt’s App., Vol. II at 138, 141, 159.
The record also contradicted Dr. Merchant’s opinion that claimant met the criteria
of listing § 1.05(B)(1), which required x-ray evidence of multiple fractured
vertebrae with no intervening trauma. See id. at 138-39, 225 (x-rays showed no
fractures of cervical, thoracic, or lumbar vertebrae).
Where, as here, the ALJ decides that a treating source’s opinion is not
entitled to controlling weight, he must determine the weight it should be given
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after considering the following factors: (1) the length of the treatment relationship
and the frequency of examination; (2) the nature and extent of the treatment
relationship, including the treatment provided and the kind of examination or
testing performed; (3) the degree to which the treating source’s opinion is
supported by objective evidence; (4) whether the opinion is consistent with the
record as a whole; (5) whether or not the treating source is a specialist in the area
upon which an opinion is given; and (6) other factors brought to the ALJ’s
attention which tend to support or contradict the opinion. Drapeau v. Massanari ,
255 F.3d 1211, 1213 (10th Cir. 2001). The ALJ concluded Dr. Merchant’s
opinion was not entitled to weight because he had only seen claimant twice for
her back condition; his last examination of claimant was more than a year before
he completed the RFC forms; his opinion was contrary to the evidence; he
provided little treatment or evaluation of claimant’s back condition; and he was a
family practitioner with no specialty in orthopedics. As these were legitimate
reasons for rejecting Dr. Merchant’s opinion, the ALJ did not err in doing so.
Claimant argues that the ALJ erred in assessing her credibility. Because
credibility findings are peculiarly within the province of the ALJ, we will not
disturb such findings if they are supported by substantial evidence. See Kepler v.
Chater , 68 F.3d 387, 391 (10th Cir. 1995). The ALJ identified numerous reasons
for rejecting claimant’s testimony regarding her limitations, including her lack of
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medical treatment or use of prescription medication; her claim that she could not
afford treatment despite her access to medical care through the UNMH indigency
program; her failure to follow through with referrals for medical and mental
health care; her daily activities; her unsupported claim that she had cervical
cancer; her 1995 reports to physicians that her condition had improved
considerably; and medical evidence that her conditions had resolved with
conservative care. As the ALJ identified specific and legitimate reasons for
doubting claimant’s credibility, we defer to his findings. See id.
Claimant argues that the ALJ applied an incorrect legal standard in
assessing her compliance with recommended care. We need not address this issue
because the ALJ specifically stated that he did not rely on claimant’s lack of
compliance as a reason to deny benefits. See Aplt’s App., Vol. II at 24.
Finally, claimant argues that the ALJ’s conclusions that she could perform
her former work as a manicurist and could perform a significant number of other
jobs in the economy were not supported by substantial evidence. Claimant argues
that the demands of such jobs are inconsistent with the limitations identified by
Dr. Merchant. As we have already held that the ALJ did not err in rejecting
Dr. Merchant’s opinion, the ALJ was not bound by the restrictions identified by
the physician. See Decker v. Chater , 86 F.3d 953, 955 (10th Cir. 1996). The
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ALJ’s conclusions were supported by the vocational expert’s hearing testimony,
and therefore the ALJ did not err in finding that claimant was not disabled.
The district court’s judgment is AFFIRMED.
Entered for the Court
John C. Porfilio
Circuit Judge
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