                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                                                                         MAR 10 1998
                   UNITED STATES COURT OF APPEALS

                          FOR THE TENTH CIRCUIT                      PATRICK FISHER
                                                                              Clerk


    GAYLE J. PANNELL,

              Plaintiff-Appellant,

    v.                                                 No. 97-7063
                                                   (D.C. No. 95-CV-163)
    KENNETH S. APFEL, Commissioner,                    (E.D. Okla.)
    Social Security Administration, *

              Defendant-Appellee.




                          ORDER AND JUDGMENT            **




Before BRORBY , BARRETT , and BRISCOE , 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. See Pub. L. No. 103-296. Although the Commissioner has been
substituted for the Secretary in the caption, in the text we 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      This order and judgment is not binding precedent, except under the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.
       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. 34.1.9. The case is therefore

ordered submitted without oral argument.

       Plaintiff appeals from the district court’s affirmance of the Secretary’s

determination that she is not disabled and, therefore, is not entitled to disability

benefits. On appeal, plaintiff’s arguments all concern whether the Secretary erred

in concluding she could perform a full range of unskilled sedentary work.

Exercising jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291, we

affirm.

       Plaintiff injured her back at work. After several months, she had surgery,

and her condition improved substantially. Subsequently, she was involved in an

automobile accident and had increased low back and leg pain. In applying for

disability benefits, plaintiff alleged disability due to back pain and loss of

strength. The administrative law judge (ALJ) determined at the fifth step of the

applicable five-step sequential evaluation process,   see 20 C.F.R. § 404.1520, and

after placing the burden of proof on the Secretary,   see Ragland v. Shalala ,

992 F.2d 1056, 1057 (10th Cir. 1993), that plaintiff had the residual functional

capacity (RFC) to perform a full range of unskilled sedentary work. The ALJ

therefore concluded plaintiff is not disabled. After accepting and considering


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additional medical evidence not before the ALJ, the Appeals Council denied

review. Plaintiff sought judicial review, and the district court affirmed. This

appeal followed.

       We review the Secretary’s decision to determine whether the factual

findings are supported by substantial evidence in the administrative record viewed

as a whole and whether correct legal standards were applied.      See Castellano v.

Secretary of Health & Human Servs.     , 26 F.3d 1027, 1028 (10th Cir. 1994).

       On appeal, plaintiff first contends that because the ALJ’s findings

regarding her credibility and pain were not linked to specific supportive evidence

the ALJ’s findings cannot be accepted. The ALJ found that plaintiff’s complaints

of pain were not credible based on the objective findings of treating and

examining doctors, her lack of frequent treatments for pain, her failure to take

medication for severe pain, and her failure to exhibit discomfort at the hearing.

See II Appellant’s App. at 23.

       We conclude the ALJ sufficiently set forth reasons, supported by evidence

in the record, for his credibility determination. Dr. Schoenhals stated that

plaintiff had twenty per cent permanent impairment “based on internal

derangement of one lumbar disk as well as predicted loss in range of motion as

well as residual pain.”   Id. at 143. Plaintiff does not dispute that she did not




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exhibit discomfort at the hearing. The record indicates that plaintiff pursued

some medical treatment, but did not take medication for severe pain.

       Plaintiff contends the ALJ improperly implicitly rejected her testimony that

she refused to take prescribed pain medication due to fear of addiction, and,

instead, drank three to six beers a day to control her pain. Plaintiff testified that

she only takes pain medication when her pain is very bad, because she does not

want to become addicted to pain pills.    See id. at 51-52. To relieve pain, she

stated that she drinks beer, and may drink as many as six beers a day.       See id. at

52, 57. Plaintiff admitted that she has never been addicted to pain medication,

but fears addiction.   See id. at 57-58. There is no indication in the record of

plaintiff’s addiction to pain medication or alleged side effects from such

medication other than her statements.     Cf. Saleem v. Chater , 86 F.3d 176, 178-80

(10th Cir. 1996) (consulting examiners opined plaintiff was addicted to

medication and medical evidence clearly indicated plaintiff was addicted);        Dray v.

Railroad Retirement Bd. , 10 F.3d 1306, 1313 (7th Cir. 1993) (determining

plaintiff was justified in not taking adequate pain medication if realistic chance of

addiction); Stith v. United States R.R. Retirement Bd.     , 902 F.2d 1284, 1287 (7th

Cir. 1990) (“[A]n adequate risk of addiction justifies claimant’s not taking

enough pain medication to enable him to perform regular work.”). Nothing




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indicates that she discussed medication addiction or side effects with any of her

doctors. We conclude the ALJ properly rejected her testimony.

      Next, plaintiff argues that the ALJ erred in determining she could perform

the prolonged sitting required of sedentary work. Because there was no testimony

or medical evidence from an examining doctor supporting the determination,

plaintiff believes the ALJ substituted his own opinion for medical evidence. We

disagree. The ALJ determined plaintiff’s alleged sitting limitation was not

supported by objective evidence, because the myelogram and CT scan were

negative and therefore cannot support a limitation on sitting. Also, the ALJ

determined that the results of straight leg testing and the minimal restriction on

her range of motion of the lumbar spine were consistent with a seated position.

Thus, the ALJ did not substitute his opinion for the medical evidence.

      Plaintiff further argues that the ALJ did not properly place the burden on

the Secretary until after making findings regarding her RFC. Plaintiff contends

the absence of conclusive medical evidence cannot meet the Secretary’s step five

burden. See Miller v. Chater , 99 F.3d 972, 976 (10th Cir. 1996) (determining

absence of conclusive medical evidence cannot meet step five burden even if

plaintiff found not credible because reliance on paucity of medical evidence shifts

burden back to plaintiff). Because the medical evidence indicated plaintiff could




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do prolonged sitting, we conclude the ALJ did not improperly place the burden of

proof on plaintiff.

      Finally, plaintiff argues the district court erred in relying on the

Medical-Vocational Guidelines, 20 C.F.R. pt. 404, subpt. P, app. 2 (grids)

because the Secretary failed to prove she retained the capacity to perform the

demands of a majority of unskilled sedentary jobs. Rather, plaintiff believes the

ALJ should have obtained testimony of a vocational expert to determine whether

she could work despite her impairments. Because plaintiff’s non-exertional

impairments did not restrict her from performing the full range of sedentary work,

we conclude the ALJ properly relied on the grids.    See Glass v. Shalala , 43 F.3d

1392, 1396 (10th Cir. 1994).

      The judgment of the United States District Court for the Eastern District of

Oklahoma is AFFIRMED.



                                                      Entered for the Court



                                                      Wade Brorby
                                                      Circuit Judge




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