F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 30 2003
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
DIANE CALHOUN,
Plaintiff-Appellant,
v. No. 02-5212
(D.C. No. 01-CV-897-M)
JO ANNE B. BARNHART, (N.D. Okla.)
Commissioner, Social Security
Administration,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before TYMKOVICH , HOLLOWAY , 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This order and judgment is not binding precedent, except under the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 Diane Calhoun appeals the district court’s affirmance of the
decision by the Commissioner of Social Security denying her application for
disability benefits. Because the Commissioner’s decision was supported by
substantial evidence and no legal errors occurred, we affirm.
This is claimant’s second application for benefits. Claimant filed this
application in March 1995, alleging she was unable to work after June 30, 1989,
due to fibromyalgia, Raynaud’s disease, lung disease, depression, chronic fatigue,
and pain. Because claimant’s insured status expired on September 30, 1991, the
only issue is whether her condition was disabling before that date.
Claimant’s medical records show the following. In 1980, she fractured her
right kneecap while rollerskating, requiring surgery. In 1981, she underwent a
repair of a torn meniscus in her left knee. In June 1983, she sought treatment
from Dr. Lins for headaches, neck, leg and back pain. Claimant complained of
aching over the anterior tibial regions of her legs and pain on the bottoms of her
feet. She also reported that her legs fatigued easily, and that she had numbness
and tingling in the left lateral thigh and lower leg. Aplt. App., Vol. II at 250.
Claimant’s June 1983 EMG of her lower extremities was normal. In
July 1983, she was hospitalized for evaluation of her complaints. Claimant’s
EEG was normal, x-rays were normal, and CT scans were normal except for
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a bulging disc at L4-5 and L5-S1. Myelograms of claimant’s cervical and lumbar
spines were normal except for a questionable double density at L5-S1.
Dr. Lins diagnosed claimant with degenerative lumbar disc disease, chronic
cervical and trapezius myofascial spasm causing headaches, and chronic anxiety
depressive syndrome. Id. at 249. Claimant underwent physical therapy, was
placed on an at-home exercise regimen, and was given medication. In September
1983, she stopped all medications except for Vicodin, and was noted to have
returned to work several hours a day. Id. at 268. Claimant did not seek treatment
from Dr. Lins again after September 1983.
In November 1983, claimant was admitted to Saint Francis Hospital with
complaints of abdominal pain and fever. Claimant appeared to be mildly
depressed and in no apparent distress. Normal results were obtained from the
stool cultures, abdominal x-rays, CT scan, upper GI series, colon series, small
bowel series, and views of the bladder. Colonoscopy was also normal, other than
some irritation and spasm in the colon. Claimant was diagnosed with a functional
bowel disorder with psychological overlays, and her physician recommended that
she see a psychiatrist for antidepressants. Id. at 270.
Claimant worked full time during 1984 and part of 1985. In June 1985,
claimant filed her first application for disability benefits based on leg pain. In
August 1985, she was examined by a consulting physician, who found normal
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results except minimum osteoarthritic changes in the right knee with some
osteophyte formation and slight joint narrowing. The physician noted normal
range of motion in all joints except for a slight limitation of knee flexion, and
opined that there might be a psychological component to her pain. Id. at 280.
Claimant underwent a psychological consultative examination in October
1985. She reported increasingly severe leg pain over the previous three years,
which required her to take multiple hot baths and Vicodin. Although she had
denied any weight loss in the August consulting exam, in this exam she reported
a thirty pound weight loss during the prior five months. Claimant reported
suicidal ideation and depression. Dr. Passmore diagnosed claimant with
psychogenic pain disorder and depression, and recommended treatment with
antidepressants and a chronic pain program. Id. at 284. He opined that her
functioning had been good earlier in the year before she became depressed, which
brought her current functioning to fair.
In November 1985, claimant was treated in the Saint Francis emergency
room for chest pain. She alleged that she suffered a heart attack from mercury
vapors a day earlier when her dentist was removing a filling, and that she had
undergone CPR. Claimant’s chest x-rays and an electrocardiogram were normal.
Id. at 288.
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Claimant’s 1985 application was denied at the first two administrative
levels. In April 1986 she withdrew her application, stating that she had been
undergoing chiropractic care and she thought she could control her pain enough
to return to work. Id., Vol. III at 290.
In August 1987, claimant began treatment with her family physician,
Dr. Patton. Notes from the initial visit describe claimant’s complaints of pain in
her cervical spine, right shoulder, and down her legs, but there is no report of
a physical examination or any medical findings. Id. at 362. Claimant sought
a refill of her Vicodin prescription, and reported that she recently got a swimming
pool which seemed to help her pain. Id.
Dr. Patton’s records span from 1987 through 1998. During that period,
Dr. Patton refilled claimant’s prescription for Vicodin at least ninety-four times.
Yet, his records contain almost no medical findings regarding claimant’s
condition, and do not demonstrate any limitations on her abilities. Dr. Patton
appears to have prescribed the pain medication based on claimant’s complaints of
pain, and later, based on the Springer Clinic’s 1995 diagnosis of fibromyalgia.
The record shows that claimant saw Dr. Patton on a regular basis.
In February 1988, the physician noted the possibility that claimant suffered from
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Raynaud’s phenomenon. 1 He did not, however, indicate that this condition
affected claimant’s functional abilities. During the next few years, claimant saw
Dr. Patton for injections of estrogen, testadiol, and depo-testadiol; had blood
work done; and received treatment for menopausal syndrome, irritable bowel
syndrome, laryngitis, sore throats, coughs, and weight loss.
Before claimant’s insured status expired on September 30, 1991,
Dr. Patton’s records show only occasional complaints of pain or weakness.
Claimant reported lumbar pain in the fall of 1988, id. at 361; pain in her neck,
trapezius and shoulder in August 1989, id. at 359; pain in her neck, leg, and hip,
with burning feet in May 1990, id. at 356; extreme weakness and fatigue in
February 1991, id. at 355; and a headache, shoulder pain, and cervical spine pain,
with a “pins and needles” sensation in her arm in February 1991, id. at 354. No
functional limitations were noted by Dr. Patton during this time. To the contrary,
Dr. Patton noted in March 1991 that claimant was walking three miles a day as
part of her weight-loss regimen. Id. at 354.
After her insured status lapsed, claimant’s complaints of pain increased.
In November 1991 she reported that her knees hurt and her legs ached from the
1
Raynaud’s phenomenon is characterized by spasm of the digital arteries in
the fingers and toes, often brought on by cold, indicated by a severe pallor and
accompanied by numbness and pain. Stedman’s Medical Dictionary 1365
(27th ed. 2000).
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mid-thigh down, id. at 352. In July 1992, claimant complained that her knee
popped while walking down steps, and that she was experiencing mid-calf pain.
Id. at 351. In December 1992, she complained that the bottom of her feet hurt,
and that she had generalized pain. Id. at 350. In April 1993, claimant complained
of pain in her left lateral leg, and in the summer of 1993, she complained of pain
in her back, knees, and down her legs. Id. at 349. In December 1993, claimant
reported that the right side of her body ached, and that she was sensitive to light
touch. Id. at 348.
In May 1994, claimant sought treatment from the Springer Clinic for body
pain and problems with her fingernails and toenails. In claimant’s intake
questionnaire, she reported that she was “self-employed,” and the clinic records
noted on two separate dates that claimant was self-employed raising dogs. Id.
at 373, 376, 380. When giving her medical history, claimant reported that she
had been in severe chronic pain since she was eighteen, and denied that she was
depressed. Claimant was diagnosed with fibromyalgia, chronic obstructive
pulmonary disease, skin fungus, and Raynaud’s disease. She continued treatment
at the clinic through July 1994. When she returned to Dr. Patton in July 1994,
she reported that she had been diagnosed with fibromyalgia. Id. at 346.
In March 1995, claimant filed her current application for disability benefits,
alleging that she became unable to work on June 30, 1989. As noted, claimant’s
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insured status expired on September 30, 1991. After her application was denied
at the first and second administrative levels, she participated in a hearing before
an administrative law judge (ALJ) on March 15, 1996. Claimant was represented
by counsel. At the hearing, claimant submitted a note from Dr. Patton that stated
Diane Calhoun continues to have complaints of fibromyalgia.
Medication seems to help a little, other than pain medication. Her
condition has slowly phyically (sic) and mentality (sic) deteriorated
in the last five (5) years.
Id. at 408.
On April 5, 1996, the ALJ issued his decision finding that claimant suffered
from depression and back pain, but that she had the ability to perform her past
relevant work as a cashier. The ALJ determined that claimant was moderately
limited in her ability to understand and carry out detailed instructions; moderately
limited in her ability to complete a normal work day or week without interruptions
from psychologically-based symptoms or excessive rest periods; moderately
limited by a chronic pain syndrome which might interfere with her work schedule;
slightly limited in her activities of daily life; moderately limited in her ability to
maintain social functioning; often limited by a deficiency of concentration,
persistence and pace; but that she never had episodes of decompensation or
deterioration at work.
The Appeals Council accepted review and remanded the case to the ALJ for
further development of the record. The ALJ was directed to obtain evidence
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regarding the effects of claimant’s fibromyalgia and mental condition and to
obtain supplemental evidence from a vocational expert clarifying the effect of the
assessed limitations on claimant’s occupational base. Id. at 430.
After remand, the ALJ scheduled claimant for consultative physical and
mental examinations. Claimant, through her attorney, refused to attend either
consultation. Id. at 436, 456. Instead, claimant submitted Dr. Patton’s records
from 1995 to 1998, and a residual functional capacity form completed by
Dr. Patton in December 1998. Dr. Patton concluded that claimant could sit, stand,
or walk for up to an hour, and that she could alternate positions for two to three
hours. Claimant was limited to two to three hours of lifting up to ten pounds, and
one hour of lifting eleven to twenty-five pounds. In contrast, he opined that
claimant could carry up to ten pounds for an hour, but could carry eleven to
twenty-five pounds for two to three hours during the day. Claimant could only
use her arms for an hour, could use her hands for two to three hours, could never
stoop, but could squat, crawl or climb for an hour. During an eight-hour day,
Dr. Patton opined that claimant would have to lie down or recline frequently due
to pain and fatigue. When asked what medical findings supported his opinion,
Dr. Patton answered “Fibromyalgia.” See id. at 448-49.
After claimant refused to attend the consultative examinations, the Social
Security Administration advised claimant’s counsel that he was responsible for
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providing the information requested by the Appeals Council. Id. at 457. In May
1999, claimant’s attorney submitted a third opinion by Dr. Patton and informed
the ALJ that they could not provide a psychological assessment because claimant
was not getting psychiatric treatment. Upon learning that the hearing would not
proceed without a psychological assessment, claimant’s counsel sought to
reschedule the consultative exam. The ALJ instead elected to have a psychiatric
medical expert at the hearing.
Dr. Patton’s May 1999 letter stated that he had treated claimant for years,
that she suffered from fibromyalgia, that over the years he had noted a
deterioration in her mental and physical capabilities, that medical care had not
significantly improved her condition, that pain medication provided some relief
but could not diminish the accompanying fatigue, that claimant’s range of motion
and ambulation were not affected, that her joints showed no swelling, instability,
or atrophy, that she had no radiculopathy, neurological findings, or paresthesia,
and that her condition would remain the same because fibromyalgia was a chronic
illness. Id. at 450.
Dr. Patton’s May 1999 evaluation opined that claimant could only sit or
stand for thirty minutes and walk for ten minutes, and that she could only perform
these activities for six hours out of an eight-hour day. Id. at 451, 468. Claimant
could lift up to twenty pounds occasionally, and could never lift over twenty
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pounds. Yet, she could carry up to ten pounds frequently, and could carry eleven
to twenty-five pounds occasionally. Id. at 451. Her ability to use her feet, hands,
or fingers for repetitive movement was limited, and although she could bend and
squat occasionally, she could never crawl, climb, or reach. When requested for
the objective medical findings supporting his opinion, Dr. Patton identified that
claimant had tenderness in all muscle groups, she participated in limited physical
activities, and she was tender to light touch. Id. at 452. When asked whether
there were any objective findings to support claimant’s subjective complaints,
Dr. Patton replied “no.” Id.
In yet another report prepared by Dr. Patton in October 1999, the physician
opined that before September 30, 1991, in an eight-hour day claimant could only
sit for half an hour, stand for half an hour, walk for fifteen minutes, and lie down
or recline for four to six hours. Claimant could only lift ten pounds for an hour,
but could lift eleven to twenty pounds for two to three hours. Although the
physician opined that claimant could never lift more than twenty pounds, he also
stated that she could carry eleven to twenty-five pounds for two to three hours.
Dr. Patton opined that claimant could carry up to ten pounds for four to five
hours. She could use her arms and hands for two to three hours, stoop or squat
for two to three hours, but she could never crawl or climb. She would need to
rest due to pain and fatigue. Again, the only medical finding identified by
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Dr. Patton to support his opinion was that claimant suffered from generalized
fibromyalgia. Id. at 470-71.
On October 27, 1999, the ALJ conducted a second hearing, at which
claimant, a psychological medical expert, and a vocational expert testified. At the
hearing, the psychological medical expert stated that he was unable to assess
claimant’s mental status prior to September 30, 1991, because there was no
evidence in the record upon which he could base an opinion. Id., Vol. II at 92-93.
After claimant testified, the psychological medical expert stated that based on
claimant’s description of her condition from 1989 through 1991, her condition
would have equaled Listing § 12.04 of the social security regulations for an
affective disorder. Id. at 139-40.
On January 7, 2000, the ALJ issued his decision finding that claimant was
not disabled before her eligibility lapsed on September 30, 1991. The ALJ found
that although claimant suffered from generalized fibromyalgia before that date,
the record did not contain medical evidence that she was impaired by lung
disease, Raynaud’s disease, skin fungus, or depression during the period in
question. He found that although claimant had been treated for depression when
her mother died, there was no showing of continuous treatment, and the record
showed that claimant was capable of performing activities of daily life and social
functioning requiring significant concentration and attention.
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The ALJ found that claimant was not entirely credible based on numerous
inconsistencies in the record and her demeanor at the hearing. He determined that
Dr. Patton’s opinion of claimant’s 1989-1991 abilities did not meet the
requirements to be given controlling weight, and that it should be rejected based
on its inconsistency with the record and with Dr. Patton’s other opinions. The
Appeals Council denied review, making the ALJ’s determination the final
decision of the Commissioner. The district court affirmed, and this appeal
followed.
We review the Commissioner’s decision to determine only whether it is
supported by substantial evidence and whether legal errors occurred. Qualls v.
Apfel, 206 F.3d 1368, 1371 (10th Cir. 2000). 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 about her abilities prior to the expiration of her
insured status. 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 substantial evidence.” 20 C.F.R.
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§ 404.1527(d)(2); Drapeau v. Massanari , 255 F.3d 1211, 1213 (10th Cir. 2001);
Frey v. Bowen , 816 F.2d 508, 513 (10th Cir. 1987).
If the ALJ decides that a treating source’s opinion is not entitled to
controlling weight, he must determine the weight it should be given after
considering: (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. § 404.1527(d)(2); Drapeau , 255 F.3d at 1213. An ALJ
cannot reject a treating source’s opinion without identifying “specific, legitimate
reasons.” Frey , 816 F.2d at 513.
Here, the ALJ rejected family physician Dr. Patton’s opinion of claimant’s
limitations before September 30, 1991, because it was not supported by medical
findings, and because it was inconsistent both with the record and with his other
reports. These reasons are well-supported by the record. From June 30, 1989 to
September 30, 1991, claimant complained of body pain or weakness on five
occasions. The records do not show that Dr. Patton performed any examinations,
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and there are no functional limitations noted. He did not note any extremity
weakness or muscle atrophy, both of which may be determined objectively.
He did not perform a trigger point evaluation. Dr. Patton’s treatment of
claimant’s condition during this period is limited to recording her subjective
complaints and prescribing Vicodin.
Further, Dr. Patton’s retroactive description of claimant’s functional
capacity prior to September 30, 1991, is contradicted by his own records and
reports. In March 1991, he noted that claimant was walking three miles a day,
whereas in 1999 he opined that in 1991 she could only walk for fifteen minutes.
His 1996 report that claimant had deteriorated significantly for the prior five
years is contradicted by his later reports showing less limitations in 1998 than her
alleged condition in 1991. His several ability assessments were inconsistent,
showing claimant could carry amounts she was unable to lift, and her ability to
use her arms, crawl, climb, or reach, changed from report to report. Claimant’s
extended delay in applying for benefits and her refusal to attend a consulting
examination prevented the agency from obtaining any evidence that could support
Dr. Patton’s opinion regarding her abilities. We conclude the ALJ did not err in
rejecting Dr. Patton’s assessment of claimant’s functional capacity during the
relevant period.
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Claimant argues that the ALJ erred in finding her testimony not entirely
credible. Credibility determinations are peculiarly within the province of the
ALJ. White v. Barnhart , 287 F.3d 903, 909 (10th Cir. 2002). Such assessments
are entitled to “particular deference” when supported by substantial evidence.
Id. at 909-910. Here, the ALJ evaluated claimant’s subjective complaints of
disabling pain and fatigue in accordance with the requirements of Kepler v.
Chater , 68 F.3d 387, 391 (10th Cir. 1995). He acknowledged that claimant had
a condition that was likely to cause pain and that claimant took pain medication
which helped to relieve that pain. In considering her daily activities, the ALJ
identified numerous inconsistencies between claimant’s hearing testimony and her
descriptions of her abilities in the record. He also noted his own observations of
claimant’s demeanor at the hearing. Because the ALJ closely and affirmatively
linked his credibility findings to substantial evidence, including the many
inconsistencies in the record, we will not upset his conclusion that claimant was
not wholly credible.
Finally, claimant argues that the ALJ’s assessment of her residual
functional capacity is not supported by the evidence. Aside from claimant’s
testimony, the record does not contain any objective evidence that claimant was
functionally limited between June 30, 1989 and September 30, 1991. Claimant
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had a full range of motion, with no evidence of joint inflammation, muscle
weakness or atrophy.
The ALJ accepted that claimant suffered from fibromyalgia before her
insured status lapsed. On this basis, he precluded claimant’s ability to perform
medium or heavy work, concluding those levels would aggravate her condition.
He relied on the state physicians’ opinions at the earlier administrative levels, that
claimant could work despite her condition, in concluding that she could still
perform sedentary and light work. See 20 C.F.R. § 404.1527(f)(2)(i).
The ALJ also accepted that claimant’s condition caused her chronic pain
for which she took pain medication. He therefore found that she was moderately
limited in her ability to understand, remember and carry out detailed instructions;
moderately limited in her ability to complete a work day or week without
interruptions, and moderately limited in her ability to interact with the general
public. We conclude the ALJ’s assessment of claimant’s capabilities was
supported by substantial evidence.
The judgment of the district court is AFFIRMED.
Entered for the Court
William J. Holloway, Jr.
Circuit Judge
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