                                                                          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      This order and judgment is not binding precedent, except under the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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