                                                                            FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                      January 31, 2011
                            FOR THE TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                         Clerk of Court

    KEITH R. BUTLER,

                Plaintiff-Appellant,

    v.                                                     No. 10-4099
                                                 (D.C. No. 1:09-CV-00108-DAK)
    MICHAEL J. ASTRUE,                                      (D. Utah)
    Commissioner of Social Security,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before KELLY and BALDOCK, Circuit Judges, and BRORBY, Senior
Circuit Judge.



         Keith R. Butler appeals the district court’s affirmance of the

Commissioner’s denial of his applications for Social Security disability and

supplemental security income benefits. Exercising jurisdiction under 28 U.S.C.

§ 1291 and 42 U.S.C. § 405(g), we AFFIRM.



*
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                          I.

      Mr. Butler, who was born in 1960, worked as a plumber until he was

injured in a car accident in August 2002. After the accident, he suffered from

pain in his back, legs, neck, and shoulders. In 2003, he underwent back and

shoulder surgery, and because of increasing pain, he had another back surgery in

2004. Later that year, he began working as a sales associate at a Home Depot

store. He kept that job until Home Depot terminated his employment for

disrespect to a supervisor in September 2006.

      Mr. Butler filed for benefits on December 27, 2006, alleging his onset date

to be September 29, 2006. An administrative law judge (ALJ) denied his

applications. The ALJ concluded that despite his severe impairments of disorders

of the back, osteoarthritis and allied disorders, and obesity, he retained the

Residual Functional Capacity (RFC) to perform sedentary work, with restrictions.

Although Mr. Butler’s RFC did not allow him to return to his past relevant work,

a vocational expert testified that there were jobs in the national economy that he

could perform. The ALJ accordingly found him not disabled. The Appeals

Council denied review, the district court affirmed, and Mr. Butler now appeals.

                                         II.

      Employing a de novo standard of review, “we independently determine

whether the ALJ’s decision is free from legal error and supported by substantial

evidence.” Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (quotation

                                         -2-
omitted). Substantial evidence “means such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” Richardson v. Perales,

402 U.S. 389, 401 (1971) (quotation omitted). “It requires more than a scintilla,

but less than a preponderance.” Wall, 561 F.3d at 1052 (quotation omitted).

      Mr. Butler contends that the ALJ erred in discounting his credibility and in

assessing the opinions of his treating physician and two examining medical

practitioners. We address each argument in turn.

                                  A. Credibility

      The ALJ concluded that Mr. Butler’s testimony about his limitations was

“not compatible with or reasonably consistent with the medical evidence of record

and other evidence.” Aplt. App. at 28. In support, the ALJ noted that a physical

therapist performing functional capacity testing (a Mr. Felix) opined that

Mr. Butler was exaggerating his limitations; that he described symptoms that he

had not reported to his medical providers and conditions that had not been

diagnosed; and that his testimony about his problems at Home Depot was

contradictory. Mr. Butler argues that these reasons are not supported by

substantial evidence.

      “Credibility determinations are peculiarly the province of the finder of fact,

and we will not upset such determinations when supported by substantial

evidence.” Diaz v. Sec’y of Health & Human Servs., 898 F.2d 774, 777 (10th Cir.

1990). But credibility determinations “must be grounded in the evidence and

                                        -3-
articulated in the determination or decision.” Soc. Sec. Rul. 96-7p, 1996 WL

374186, at *4; see also Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995)

(holding that a credibility determination “should be closely and affirmatively

linked to substantial evidence and not just a conclusion in the guise of findings.”

(quotation omitted)).

      We agree with Mr. Butler that it is not clear why the ALJ thought his

testimony about his work at Home Depot was contradictory. But we need not

address this issue, because the ALJ’s other reasons provide substantial evidence

to support the credibility determination.

      The ALJ noted that Mr. Felix opined that Mr. Butler was exaggerating his

limitations during functional capacity testing. Mr. Butler objects to considering

Mr. Felix’s opinion because his report is not in the record; rather, portions of the

report and an accompanying DVD of the testing are discussed in a rebuttal report

by Dr. Lichtblau. But a Social Security hearing places “an emphasis upon the

informal rather than the formal.” Richardson, 402 U.S. at 400. Accordingly, a

hearsay medical report may constitute substantial evidence. See id. at 402.

      Dr. Lichtblau’s report was addressed to Mr. Butler’s counsel, and evidently

Dr. Lichtblau was provided copies of Mr. Felix’s report and the DVD. Thus, it

appears that counsel had access to Mr. Felix’s report and the DVD. Counsel

submitted the rebuttal for the administrative record, but did not supply the report

or the DVD. Perhaps it would have been preferable for the ALJ to request a copy

                                            -4-
of the Felix report for the record, as Mr. Butler suggests. But in effect,

Mr. Butler’s objection to considering Mr. Felix’s opinion exploits a problem that

was created by (and that could easily have been solved by) his counsel. There is

no reason to doubt the accuracy of Dr. Lichtblau’s descriptions of Mr. Felix’s

report. Under these circumstances, we shall not preclude the ALJ from

considering Mr. Felix’s opinion. Cf. id. at 404-05 (noting that the claimant, who

objected to a lack of opportunity for cross-examination, did not avail himself of

his right to subpoena witnesses); Maes v. Astrue, 522 F.3d 1093, 1097 (10th Cir.

2008) (“Although the ALJ has the duty to develop the record, such a duty does

not permit a claimant, through counsel, to rest on the record . . . and later fault the

ALJ for not performing a more exhaustive investigation.”).

      The ALJ also indicated that Mr. Butler’s complaints to his doctors did not

support his testimony about the degree of his pain. Particularly, Mr. Butler

testified that around the end of his employment, he could not stand for more than

three to five minutes without “feel[ing] like somebody is pouring scalding water

on [his right] leg.” Aplt. App. at 49. Mr. Butler counters that from 2004 on he

did consistently report leg pain to his doctors.

      As the ALJ noted, there is no question that Mr. Butler suffers pain. The

issue is whether the ALJ had adequate grounds for discounting his testimony

about the extent of the pain. The description “scalding water” is evocative of a

high degree of (even unbearable) pain. And the ALJ correctly noted that while

                                           -5-
Mr. Butler complained of leg pain to physicians, the notes do not reflect

complaints equating his pain to anything of such degree, even in August 2006,

just weeks before his alleged onset date. There are no treatment records between

August 2006 and February 2007. In February 2007, clinical notes first state that

he was having trouble standing for more than several minutes at a time, but even

those notes do not describe pain like scalding water. It appears that his next visit

to his treating physician was in May 2008, when he complained of pain in his

right knee, and his only reported medication was a cholesterol drug. In August

2008, he complained of syncope and back pain, and he was reported as taking no

medications. The absence of medical entries reflecting complaints as severe as

his testimony at the hearing supports the ALJ’s credibility determination.

      The ALJ also concluded that Mr. Butler may exaggerate his conditions.

When being evaluated by psychologist Dr. France for a rehabilitation psychology

report, on one test (the Symptom Checklist 90) Mr. Butler reported significant or

highly significant symptoms for nine different emotional disorders. Yet the

psychologist did not conclude that he had such conditions. The ALJ concluded,

“[w]hat I find significant here is not his actual limitations, but the fact that he

endorsed a list of symptoms that indicate fairly serious mental problems, none of

which are diagnosed by the examiner and none of which show up anywhere in the

treatment records.” Id. at 32. Mr. Butler argues that Dr. France found that

“[t]here is no indication of him attempting to present himself in a more negative

                                           -6-
light than is actually the case.” Id. at 266. But this analysis reflected the results

of the Personality Assessment Inventory, not the separate Symptom Checklist 90.

The ALJ did not err in relying on the Symptom Checklist 90 results to discount

Mr. Butler’s credibility. Morevoer, contrary to Mr. Butler’s argument, this

assessment did not contradict Dr. France’s medical opinion, given that Dr. France

did not diagnose the various mental impairments implied by the test results.

                                B. Medical Evidence

      Mr. Butler next argues that the ALJ erred in evaluating the opinions of his

treating and examining physicians, namely, his treating physician Dr. Mansfield

as well as examiners Dr. France and Dr. Lichtblau. He also argues that the ALJ

erred in interpreting certain MRI results.

                                   1. Dr. Mansfield

      Dr. Mansfield treated Mr. Butler between 2003 and 2008. On September

10, 2008, he completed a RFC report in which he assessed Mr. Butler’s ability to

sit at ten to fifteen minutes at a time, for one to two hours total in a hard chair, or

up to three hours total in a soft chair; his ability to stand at five minutes at a time,

up to two hours total; and his ability to walk at fifteen minutes at a time, up to

four hours total. He opined that Mr. Butler’s symptoms would interfere with the

necessary attention and concentration to perform work, and that he would need to

take unscheduled breaks “all the time.” Id. at 392. He also opined that

Mr. Butler would be absent from work more than four times a month. And he

                                          -7-
stated that these assessments applied back to March 2003. The ALJ declined to

give Dr. Mansfield’s opinions controlling weight because (1) the RFC report was

contradicted by examination findings from 2004 and 2005 showing Mr. Butler

was able to perform light to medium work and by Mr. Butler’s actual work

activity with Home Depot during those years, (2) the report was inconsistent with

Dr. Mansfield’s own treatment notes, and (3) the report relied on Mr. Butler’s

allegations of increasing pain, which the ALJ found to be not credible. 1

      The standards for evaluating a treating physician’s opinion are familiar:

             When evaluating the opinion of a treating physician, the ALJ
      must follow a sequential analysis. In the first step of this analysis,
      he should consider whether the opinion is well supported by
      medically acceptable clinical and laboratory diagnostic techniques
      and is consistent with the other substantial evidence in the record. If
      the answer to both these questions is “yes,” he must give the opinion
      controlling weight. But even if he determines that the treating
      physician’s opinion is not entitled to controlling weight, the ALJ
      must then consider whether the opinion should be rejected altogether
      or assigned some lesser weight.

Pisciotta v. Astrue, 500 F.3d 1074, 1077 (10th Cir. 2007) (citations omitted). “An

ALJ may decline to give controlling weight to the opinion of a treating physician

where he articulates specific, legitimate reasons for his decision.” Raymond v.

Astrue, 621 F.3d 1269, 1272 (10th Cir. 2009) (alteration and quotation omitted).



1
       The ALJ also rejected Dr. Mansfield’s opinion that Mr. Butler met certain
listing criteria. Mr. Butler does not address this portion of the ALJ’s decision or
argue that he should have been found disabled at step three based on
Dr. Mansfield’s opinion, and therefore we do not consider such issues.

                                         -8-
      On appeal, Mr. Butler argues that Dr. Mansfield’s RFC report was dated

September 2008, and “[h]is opinion in September 2008[] is not inconsistent with

Mr. Butler’s ability to perform work more than two years prior.” Aplt. Opening

Br. at 22. But Dr. Mansfield did not restrict his opinion to September 2008,

instead specifically stating that “Keith has had the limitations and restrictions

outlined in the Residual Functional Capacity Questionnaire since 3/2/03.” Aplt.

App. at 394. As the ALJ noted, the actual circumstances of 2004 and 2005

clearly contradicted Dr. Mansfield’s RFC report. He did not err in concluding

that such actual circumstances undermined Dr. Mansfield’s opinion as to

Mr. Butler’s limitations.

      Mr. Butler also contends that Dr. Mansfield’s notes were not inconsistent

with the limitations he assessed. He points out that MRI results in 2004 and 2008

showed his condition to be worsening. The ALJ, however, relied on different

aspects of Dr. Mansfield’s treating notes. For example, in September 2008,

Dr. Mansfield checked a box indicating that Mr. Butler has severe burning and

painful dysesthesias, which conflicted with his own prior diagnoses of benign

meralgia paresthetica.

      Mr. Butler further argues that Dr. Mansfield opined his impairments limited

his ability to maintain gainful employment, and states, “[t]he ALJ has not

provided the substantial evidence needed to reject the opinions of a long-time

treating physician.” Aplt. Opening Br. at 23. The ultimate issue of a claimant’s

                                          -9-
ability to work is reserved to the Commissioner, however; it is not a medical

opinion entitled to controlling weight. See 20 C.F.R. §§ 404.1527(e), 416.927(e);

Soc. Sec. Rul. 96-5p, 1996 WL 374183, at *2 (“[T]reating source opinions on

issues that are reserved to the Commissioner are never entitled to controlling

weight or special significance.”).

      Finally, Mr. Butler states that the ALJ could not discount Dr. Mansfield’s

opinion based on Mr. Butler’s credibility because the ALJ improperly evaluated

his credibility. As discussed above, however, the credibility determination was

supported by substantial evidence.

                                     2. Dr. France

      Dr. France is a psychologist who examined Mr. Butler on March 31, 2006,

and April 15, 2006, to prepare a rehabilitation psychology report dated May 7,

2006. He opined that Mr. Butler had “a chronic pain problem with a concurrent

affective component” which, in combination with other impairments, had

“rendered him unemployable in his preferred occupation.” Aplt. App. at 271.

Dr. France thus classified Mr. Butler as “having a secondary employment

limitation.” Id.

      Mr. Butler contends that the ALJ committed reversible legal error by

failing to explain the weight given to Dr. France’s opinion. We agree that the

ALJ did not state what weight, if any, Dr. France’s opinion was afforded. But

under these circumstances, we do not consider this omission to require reversal.

                                         -10-
      Dr. France was an examining psychologist, not a treating medical source.

Therefore, his opinion was not entitled to controlling weight and the process

afforded a treating source’s opinion. See Doyal v. Barnhart, 331 F.3d 758, 763

(10th Cir. 2003). An ALJ is required to “review all of the evidence relevant to [a]

claim” and “make findings about what the evidence shows.” 20 C.F.R.

§§ 404.1527(c), 416.927(c). But the ALJ’s discussion of Dr. France’s opinion

shows that the ALJ obviously considered the opinion, and the decision generally

is consistent with the opinion. 2 For example, Dr. France opined that Mr. Butler

could not work in his chosen profession; that is, as a plumber. The ALJ agreed.

Dr. France also indicated that a secondary employment limitation did not preclude

all employment, but instead eroded potential earnings. Moreover, Dr. France’s

opinion was rendered while Mr. Butler was still working at Home Depot. In sum,

we are not convinced that the ALJ’s failure to assign an explicit weight to

Dr. France’s opinion amounts to reversible error.

                                 3. Dr. Lichtblau

      Dr. Lichtblau is a board-certified physiatrist who examined Mr. Butler to

prepare a medical functional capacity assessment dated August 16, 2007.

2
      Dr. France did opine that Mr. Butler was suffering “the physiological and
emotional aspects of depression.” Aplt. App. at 271. The ALJ interpreted this
opinion to be a diagnosis of “mild depression associated with pain,” consistent
with the agency psychological expert’s opinion. Id. at 25. Ultimately, the ALJ
concluded that Mr. Butler’s depression was less than severe. Mr. Butler does not
argue that the ALJ erred in finding his depression not to be a severe impairment.
Thus, this area of potential disagreement is not relevant to our analysis.

                                        -11-
Dr. Lichtblau’s tests showed that Mr. Butler could lift ninety-nine pounds from

knee to hips, eighty-three pounds from hips to shoulder, and fifty-three pounds

from shoulder to overhead. The doctor opined that Mr. Butler would not be able

to work four hours per day on an uninterrupted basis; he should have a job that

allowed him to change positions frequently, at will; he should avoid activities

such as bending, kneeling, squatting, climbing, reaching, running, and jumping;

and he would have “good days, bad days and missed days of work” due to “acute,

intermittent exacerbations of pain and discomfort.” Aplt. App. at 386. Finally,

he opined that “this patient will not be able to maintain gainful employment . . .

secondary to acute, intermittent exacerbations of pain and discomfort.” Id.

      The ALJ gave significant weight to Dr. Lichtblau’s functional test results,

but gave no weight to his opinion that Mr. Butler could not sustain full-time

work. The ALJ noted the “opinion rests heavily on the credibility of the claimant

because he finds the claimant disabled by expected exacerbations of pain in

apparent contradiction to the actual capacity as shown in his tests which appear to

show lifting capacity between light and medium.” Id. at 28; see also id. at 33.

Mr. Butler argues that Dr. Lichtblau’s opinion is based on medical records and his

own examination in addition to Mr. Butler’s reports, and thus it is misleading to

characterize the opinion as based on Mr. Butler’s descriptions of his pain.

      The ALJ recognized that there is medical evidence of impairments that can

reasonably be expected to cause pain. The extent of such pain, however, is

                                         -12-
necessarily subjective, at least in part. Dr. Lichtblau’s report indicates that his

opinions as to the extent of pain were based in large part on Mr. Butler’s reports

to him. And as discussed above, the ALJ’s decision to discount a medical opinion

based on his evaluation of Mr. Butler’s credibility is not reversible error.

      Mr. Butler also suggests that the ALJ could not accept Dr. Lichtblau’s

characterizations of Mr. Felix’s report while simultaneously discounting

Dr. Lichtblau’s opinions as to Mr. Butler’s functional capacity. These are two

separate issues, however; one is factual while the other is opinion. And as for the

factual aspect, as stated above, there is no reason to doubt the accuracy of

Dr. Lichtblau’s descriptions of the Felix report.

                                   4. MRI Results

      Finally, Mr. Butler argues that the ALJ erred in interpreting his August

2008 MRI report, which compared the 2008 results to a MRI done in 2002. The

ALJ characterized the analysis as “confusing partly because it does not make

clear which observations relate to the 2002 MRI versus the 2008 MRI.” Aplt.

App. at 34. Mr. Butler argues that if the ALJ found the report confusing, then he

should have called a medical expert. But he does not identify any error the ALJ

may have made in interpreting the report, and we see no indication of error.




                                          -13-
                               III.

The judgment of the district court is AFFIRMED.


                                          Entered for the Court



                                          Bobby R. Baldock
                                          Circuit Judge




                               -14-
