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      This order and judgment is not binding precedent, except under the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




                                          -2-
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


                                          -3-
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.




                                           -4-
      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




                                           -5-
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).

                                         -6-
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


                                         -7-
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

                                           -8-
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


                                         -9-
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


                                        -10-
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


                                         -11-
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.


                                        -12-
      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.


                                         -13-
§ 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,


                                            -14-
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.




                                         -15-
      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




                                          -16-
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


                                         -17-
