                                                                           FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                        July 10, 2008
                     UNITED STATES COURT OF APPEALS
                                                                    Elisabeth A. Shumaker
                                                                        Clerk of Court
                            FOR THE TENTH CIRCUIT


    SHARI A. HARRIS,

                Plaintiff-Appellant,

    v.                                                    No. 07-7110
                                                (D.C. No. 6:05-cv-234-FHS-SPS)
    MICHAEL J. ASTRUE, Commissioner                       (E.D. Okla.)
    Social Security Administration,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before KELLY, McKAY, and BRISCOE, Circuit Judges.



         Shari A. Harris appeals from an order entered by the district court affirming

the Social Security Commissioner’s denial of her application for disability

insurance benefits under Title II of the Social Security Act. Exercising

jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291, 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.

      Ms. Harris protectively filed her application for disability benefits in

August 1996, almost twelve years ago. The case has been remanded for further

proceedings on two separate occasions by, first, the Appeals Council, and,

second, the district court. This lengthy procedural history is summarized by the

magistrate judge in his report and recommendation to the district court, see Aplt.

App., Vol. 2, Tab 6 at 3-4, and we need not repeat it here.

      Ms. Harris was last insured for disability benefits on December 31, 2002,

when she was forty-two years old. She has a high school education and was

previously employed as a factory worker. She alleges that she became disabled in

March 1996 due to lower back problems, and her counsel has summarized her

pertinent medical history as follows:

             1. On August 23, 1995, Harris had a MRI scan of the lumbar
      spine that showed congenital spinal stenosis, dessication of the
      lumbar discs at L3-4 and L4-5, and advanced central extruded disc
      herniation at L4-5.

            2. On September 6, 1995, Harris had a hemilaminectomy with
      foraminotomy at L3-4 and L4-5 with a diskectomy at L4-5. [The
      surgery was performed by Dr. Don F. Rhinehart, a neurosurgeon.]

            3. On November 13, 1997, Harris had a lumbar MRI that
      showed post surgical change at L4-5 with epidural fibrosis with the
      possibility of a very mild annulus rupture at L3-4.

            [4.] On August 1, 2000, Harris had a lumbar MRI that showed
      post surgical enhancing fibrosis on the posterior aspect of L4-5.




                                         -2-
             [5.] Dr. J. T. O’Connor treated Harris from August 7, 1995,
      until 2000.

             [6. In July 2000,] Dr. O’Connor completed a Medical Source
      Statement describing Harris as having significant restrictions in her
      ability to perform work-related activities.

Aplt. Br. at 5-6 (citations to the administrative record omitted). As further

background, we note that the medical records of Dr. O’Connor and Dr. Rhinehart

were thoroughly and accurately summarized by the magistrate judge in his report

and recommendation, see Aplt. App., Vol. 2, Tab 6 at 4-6, and we will assume a

working familiarity with the magistrate judge’s medical summary.

      After Ms. Harris’s application for disability benefits was denied initially

and on reconsideration, a de novo hearing was held before an Administrative Law

Judge (ALJ) in February 2004. In a decision dated April 15, 2004, the ALJ

subsequently denied Ms. Harris’s application for disability benefits at step five of

the five-step sequential evaluation process 1 for determining disability, finding

that: (1) she suffers from severe physical impairments due to her “status post

lumbar disc excision,” Aplt. App., Vol. 1, Tab 3 at 503; (2) her allegations

regarding her physical limitations are not totally credible; (3) on and before

December 31, 2002, she had the residual functional capacity (RFC) to perform the

full range of sedentary work, as defined in 20 C.F.R. § 404.1567(a); (4) because



1
      The five-step sequential evaluation process is set forth in 20 C.F.R.
§ 404.1520(a)(4).

                                         -3-
vocational testimony at her prior hearings indicated that all of her past relevant

work was performed at more than the sedentary level of exertion, she was unable

to perform any of her past relevant work; but (5) applying the Medical-Vocational

Guidelines 2 at step five to determine whether she could perform “other work” that

exists in significant numbers in the national economy, and “[b]ased on an

exertional capacity for sedentary work, and [her] age, education, and work

experience, a finding of ‘not disabled’ is directed by Medical-Vocational Rule

201.28,” Aplt. App., Vol. 1, Tab 3 at 503.

      In April 2005, the Appeals Council denied Ms. Harris’s request for review

of the ALJ’s decision. Ms. Harris subsequently filed a complaint in the district

court. In October 2007, the district court entered an order adopting the report and

recommendation of the magistrate judge, and the court therefore affirmed the

denial of Ms. Harris’s application for disability benefits. This appeal followed.

                                         II.

      Because the Appeals Council denied review, the ALJ’s decision is the

Commissioner’s final decision for purposes of this appeal. See Doyal v.

Barnhart, 331 F.3d 758, 759 (10th Cir. 2003). In reviewing the ALJ’s decision,

“we neither reweigh the evidence nor substitute our judgment for that of the

agency.” Casias v. Sec’y of Health & Human Servs., 933 F.2d 799, 800 (10th Cir.


2
       The Medical-Vocational Guidelines are set forth in 20 C.F.R. pt. 404,
subpt. P, app. 2.

                                         -4-
1991). Instead, we review the decision only to determine whether the correct

legal standards were applied and whether the ALJ’s factual findings are supported

by substantial evidence in the record. See Doyal, 331 F.3d at 760. “Substantial

evidence is such relevant evidence as a reasonable mind might accept as adequate

to support a conclusion.” Id. (quotation omitted).

      In this appeal, Ms. Harris claims the ALJ committed reversible error by:

(1) failing to properly evaluate the opinions of her treating physician,

Dr. O’Connor; and (2) failing to properly evaluate the credibility of her

allegations regarding her physical limitations. We disagree.

      First, we agree with the magistrate judge that the ALJ performed a legally

proper treating physician analysis that is supported by substantial evidence in the

administrative record. 3 We therefore adopt the following reasoning of the

magistrate judge:

            The ALJ specifically addressed the conclusions Dr. O’Connor
      expressed [in his July 2000] medical source statement and found they
      were not entitled to controlling weight. See Langley v. Barnhart,
      373 F.3d 1116, 1119 (10th Cir. 2004) (noting that a medical opinion
      from a treating physician is entitled to controlling weight “if the
      opinion is well-supported by medically acceptable clinical and
      laboratory diagnostic techniques” and “consistent with other
      substantial evidence in the record”), quoting Watkins v. Barnhart,
      350 F.3d 1297, 1300 (10th Cir. 2003) [quotations omitted]. The ALJ


3
      In his report and recommendation, the magistrate judge misspelled
Dr. O’Connor’s name, spelling it as “O’Conner.” To avoid confusion, we have
corrected this mistake in the passages that we have quoted from the report and
recommendation.

                                         -5-
      observed, for example, [that] Dr. O’Connor’s conclusions on the
      medical source statement were inconsistent with the opinions of
      Dr. Philip McCown, a medical expert who testified at the claimant’s
      1998 administrative hearing, Dr. Rhinehart’s opinion, and a formal
      functional capacity assessment the claimant underwent in 1996.
      Although all of these were prior to Dr. O’Connor’s assessment, the
      ALJ noted there was not significant change shown between the
      claimant’s MRIs from 1995 to 2000. The ALJ also discussed the
      factors set forth in 20 C.F.R. § 404.1527 and determined that
      Dr. O’Connor’s opinions were not entitled to “as much weight as the
      other evidence of record.” Id. at 1119 (“Even if a treating
      physician[’s] opinion is not entitled to controlling weight, ‘[t]reating
      source medical opinions are still entitled to deference and must be
      weighed using all of the factors provided in [§] 404.1527.’”), quoting
      Watkins, 350 F.3d at 1300 [quotation omitted]. In particular, the ALJ
      noted: (i) that Dr. Rhinehart was the claimant’s treating
      neurosurgeon for her back and that Dr. O’Connor only provided
      treatment symptomatically for the claimant’s low back pain; (ii) that
      the claimant had not seen Dr. O’Connor for several months before
      her [July] 2000 visit and that she was not examined by Dr. O’Connor
      at the visit; and, (iii) that Dr. O’Connor had knowledge of
      Dr. Rhinehart’s opinion from December 1995 that the claimant could
      perform work at a lighter capacity when he assessed the claimant’s
      limitations in [July] 2000. Thus, the ALJ clearly rejected
      Dr. O’Connor’s opinions and provided reasons for doing so.
      Watkins, 350 F.3d at 1301 (“[I]f the ALJ rejects the opinion
      completely, he must give []specific, legitimate reasons[] for doing
      so.”)[.]

Aplt. App., Vol. 2, Tab 6 at 6-8 (citations to record and footnotes omitted). 4


4
       We recognize that, as noted by the magistrate judge, “[n]ot all of the ALJ’s
reasons for rejecting Dr. O’Connor’s opinions were good ones.” Aplt. App.,
Vol. 2, Tab 6 at 8 n.3. In particular, “contrary to the ALJ’s findings,
Dr. O’Connor’s treatment notes from his [July] 2000 visit with the claimant
included objective findings from an examination.” Id.; see also id., Vol. 1, Tab 3
at 586 (medical record documenting that Dr. O’Connor saw Ms. Harris on July
27, 2000, for “a checkup” and reported that “[s]he is tender in the low back and
has a radiculopathy consistent with an L4-5, nerve root pain”). However, this
                                                                        (continued...)

                                          -6-
      Second, we agree with the magistrate judge that the ALJ’s adverse

credibility finding is supported by substantial evidence in the record. As the

magistrate judge explained after summarizing the highly deferential standard of

review that is applied to an ALJ’s credibility determinations, id. at 8-9:

             The ALJ noted the relevant factors set forth in Luna v. Bowen,
      834 F.2d 161 (10th Cir. 1987) and cited evidence in support of his
      reasons for finding the claimant’s subjective complaints not credible.
      He noted that the claimant received infrequent treatment and failed to
      return to Dr. Rhinehart when her pain became more severe even
      though he advised her to do so, and she failed to seek any other
      orthopedic or neurologic treatment. The ALJ also indicated that the
      claimant’s tests showed only mild abnormalities. Although she had a
      brief period of time in 1997 that she rated her pain as an eight on a
      scale of ten, after therapy she rated her pain at a three. The ALJ
      discussed how the claimant was not taking any pain medication and
      indicated this to her physicians. He indicated that although the
      claimant had alleged she was significantly limited in her ability to
      stand and walk and with respect to her ability to sit, her physicians
      had recommended she engage in a walking program. The ALJ



4
 (...continued)
oversight does not undercut the other valid reasons the ALJ relied on to reject
Dr. O’Connor’s opinions. In addition, it appears the ALJ understated the amount
of time that had passed between Dr. O’Connor’s last treatment of Ms. Harris and
his preparation of the July 2000 Medical Source Statement. In his decision, the
ALJ stated that “after examination on March 19, 1999, claimant did not return to
Dr. O’Connor until 16 months later, when claimant returned July 27, 2000 and
asked Dr. O’Connor to complete th[e] disability assessment.” Id., Vol. 2, Tab 6
at 498 (citing Admin. R. Exs. 14F/1 and 16F). The March 19, 1999 medical
record (Exhibit 14F/1) was not prepared by Dr. O’Connor, however. Instead, it
was prepared by a doctor with the initials “LDM.” Id. at 463. As a result, the
chronologically closest medical record of Dr. O’Connor to the July 2000 Medical
Source Statement is a medical record dated December 19, 1997, id. at 450,
although Dr. O’Connor also completed an untitled questionnaire on August 4,
1998, id. at 446-49.

                                         -7-
       viewed the claimant’s report of daily activities as performed on a
       voluntary basis and not because of any medical basis.

              As the foregoing indicates, the ALJ linked his credibility
       determination to the evidence as required by Kepler [v. Chater,
       68 F.3d 387, 391 (10th Cir. 1995)], and he provided specific reasons
       for the determination in accordance with Hardman [v. Barnhart,
       362 F.3d 676, 678 (10th Cir. 2004)]. There is no indication that the
       ALJ misread the medical evidence as a whole, so his determination
       as to the claimant’s credibility is entitled to deference. See Casias,
       933 F.2d at 801.

Id. at 10.

       The order of the district court is AFFIRMED.


                                                     Entered for the Court


                                                     Paul J. Kelly, Jr.
                                                     Circuit Judge




                                         -8-
