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

                                                                         August 29, 2005
                     UNITED STATES COURT OF APPEALS

                            FOR THE TENTH CIRCUIT                     PATRICK FISHER
                                                                               Clerk


    VIRGINIA YOUNG,

                Plaintiff-Appellant,

    v.                                                    No. 04-7076
                                                    (D.C. No. 03-CV-438-P)
    JO ANNE B. BARNHART,                                  (E.D. Okla.)
    Commissioner, Social Security
    Administration,

                Defendant-Appellee.




                            ORDER AND JUDGMENT            *




Before HARTZ , McKAY , and PORFILIO , 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      This order and judgment is not binding precedent, except under the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.
      Plaintiff Virginia Young appeals from a district court order affirming the

Social Security Commissioner’s decision denying her application for disability

insurance benefits under the Social Security Act. We exercise jurisdiction under

42 U.S.C. § 405(g) and 28 U.S.C. § 1291. We affirm.

                                         I.

      Plaintiff applied for disability insurance benefits alleging inability to work

since October 1999 due to pain from arthritis in both shoulders, deteriorating

discs in her lower back, and wrist damage. 1 In her brief to this court she also

asserts other medical problems, such as migraine headaches, shortness of breath,

palpitations, digestive and urinary complaints, diverse musculoskeletal pain,

depression, and anxiety.

      Plaintiff’s application for benefits was denied initially and on

reconsideration, and a hearing was held in October 1999 before an administrative

law judge (ALJ). In a decision dated January 14, 2000, the ALJ denied Plaintiff’s

application for benefits at step four of the five-step sequential evaluation process

for determining disability. See 20 C.F.R. § 404.1520. In April 2002, however,

the District Court for the Eastern District of Oklahoma issued an order remanding


1
      Plaintiff’s application stated that she became unable to work on March 30,
1998. At the hearing held on October 28, 1999, however, she amended the
alleged onset date to October 1, 1998, the date her unemployment benefits
expired. In her appellate brief she asserts that she has been disabled since
October 28, 1999 (the same day as the hearing).

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the case to the Commissioner to re-evaluate Plaintiff’s medical records and then

make specific findings regarding her residual functional capacity (RFC) measured

against the demands of her past relevant work as a sewing machine operator.

      Upon remand the ALJ held a second hearing, with testimony from Plaintiff

and a vocational expert (VE). In a decision dated February 24, 2003, the ALJ

determined that Plaintiff has a severe impairment or combination of impairments,

particularly lumbar degenerative joint disease and generalized osteoarthritis. But

the ALJ found that her allegations concerning the degree of her limitations were

not totally credible in light of the medical record. The ALJ concluded that

Plaintiff retained the RFC to perform light work requiring stooping only

occasionally and that her past relevant work of sewing machine operator met

these requirements. 2 Accordingly, the ALJ again determined that claimant was

not disabled at step four of the five-step sequential evaluation process.

      In June 2003 the Appeals Council issued a detailed and specific denial of

Plaintiff’s request for review. Plaintiff then filed a complaint in the district court,

which affirmed the denial of her application. This appeal followed.




2
       This classification of Plaintiff’s past relevant work as sewing-machine
operator was based on the testimony of the VE. Some confusion has been
injected into the record by an examining physician’s report stating that Plaintiff
had done “heavy manual work” in the past. Aplt. App. at 177.

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                                           II.

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

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

Barnhart, 331 F.3d 758, 759 (10th Cir. 2003); 20 C.F.R. § 416.1484(b)(2). In

reviewing the Commissioner’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. 1991). Instead, we determine only

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.

         In this appeal Plaintiff claims that the ALJ committed reversible error by

(1) failing to give controlling weight to the opinions of her treating physicians

and (2) failing to determine her RFC properly. Plaintiff’s arguments are without

merit.

         A.    Treating Physicians’ Opinions

      In deciding how much weight to give the opinion of a treating physician, an

ALJ must first determine whether the opinion is entitled to “controlling weight.”

Watkins v. Barnhart , 350 F.3d 1297, 1300 (10th Cir. 2003). An ALJ is required to

give the opinion of a treating physician controlling weight if it is both (1)

“well-supported by medically acceptable clinical and laboratory diagnostic


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techniques” and (2) “consistent with other substantial evidence in the record.”       Id.

(internal quotation marks omitted). “[I]f the opinion is deficient in either of these

respects, then it is not entitled to controlling weight.”   Id.

       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 20 C.F.R. § 404.1527.”        Id. (internal

quotation marks omitted). The factors include:

       (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 physician’s opinion is
       supported by relevant evidence; (4) consistency between the opinion
       and the record as a whole; (5) whether or not the physician is a
       specialist in the area upon which an opinion is rendered; and (6) other
       factors brought to the ALJ’s attention which tend to support or
       contradict the opinion.

Id. at 1300-01 (internal quotation marks omitted). After considering these factors,

the ALJ must “give good reasons” for the weight he ultimately assigns the opinion.

20 C.F.R. § 404.1527(d)(2). “Finally, if the ALJ rejects the opinion completely,

he must then give specific, legitimate reasons for doing so.”      Watkins , 350 F.3d at

1301 (internal quotation marks omitted).

       Here, Plaintiff alleges error in the ALJ’s handling of form medical source

statements completed by Dr. Jose Pabilona on November 2, 1999, and by

Dr. Victoria Pardue on August 5, 2002. Dr. Pabilona essentially stated that


                                               -5-
beginning in 1997 Plaintiff was unable to perform full-time work at any exertional

level. In “describ[ing] the principal, clinical and laboratory findings and

symptoms or allegations (including pain)” which supported this conclusion,

Dr. Pabilona listed a hospitalization for back pain in 1997 (before Plaintiff’s

alleged onset date), “all kinds of lab and x-ray studies” showing deteriorating

discs, and prescriptions for pain medications. Aplt. App., Tab 4 at 211.

       The ALJ’s decision reviewed Plaintiff’s medical records and determined that

he could not give much weight to Dr. Pabilona’s statement. The ALJ gave quite

specific reasons for this determination: (1) that Dr. Pabilona was not the admitting

or consulting physician during the 1997 hospitalization; (2) that the attending

physician actually was concerned about kidney infection and possible bowel

disorder rather than pain of musculoskeletal etiology; (3) that x-rays showed only

mild to moderate degenerative changes; and (4) that Dr. Pabilona, as a general

practitioner and clinical gynecologist, is not particularly well-qualified to give an

assessment of Plaintiff’s orthopedic status    . The ALJ also generally noted that

“Dr. Pabilona’s records fail[ed] to reflect any specific examination findings.”

Supplemental App. at 260.

       The ALJ conducted a similar evaluation of Dr. Pardue’s disability

assessment, in which Dr. Pardue opined that Plaintiff’s “[e]xtreme pain in upper &

lower extremities” significantly limited her capabilities and required her to lie


                                              -6-
down during the normal workday.      Id. at 412. The ALJ considered the pertinent

factors in light of the medical records, noting that (1) Dr. Pardue had not often

treated Plaintiff for her complaint of back and lower extremity pain; (2)

Dr. Pardue saw Plaintiff mainly for the renewal of prescriptions (including

prescriptions for pain medications); (3) Dr. Pardue referred Plaintiff to other

physicians, resulting in unremarkable diagnostic tests and evaluations; and (4) the

primary basis for Dr. Pardue’s opinion was Plaintiff’s subjective description of her

condition.   He then determined that Dr. Pardue’s opinion was not substantiated

by the clinical and diagnostic findings reflected in her treatment records.

      The evidence supports the ALJ’s determination to assign insignificant

weight to the opinions of Dr. Pabilona and Dr. Pardue.   See Hamilton v. Sec'y of

Health & Human Servs ., 961 F.2d 1495, 1498 (10th Cir. 1992) (stating that it is

within the province of the ALJ to weigh the medical evidence and discount it for

specific and legitimate reasons). We find no basis for Plaintiff’s argument that the

ALJ ignored parts of the physicians’ medical records, interjected his own medical

opinion, or made speculative inferences. Furthermore, we conclude that the ALJ

adequately considered the requisite factors in his decision. In short, the ALJ’s

decision provides factually supported and legally sufficient reasons for rejecting

the treating physicians’ opinions.




                                           -7-
       B.     Residual Functional Capacity Assessment

       Plaintiff claims that in determining that she could perform light work

requiring only occasional stooping, the ALJ incorrectly assessed her RFC. The

determination of RFC is an administrative assessment, based upon all the evidence

of how the claimant’s impairments and related symptoms affect her ability to

perform work-related activities.   See Soc. Sec. Rul. 96-5p, 1996 WL 374183, at *2,

*5. The final responsibility for determining RFC rests with the Commissioner,

based upon all the evidence in the record, not only the relevant medical evidence.

See 20 C.F.R. §§ 404.1527(e)(2); 404.1545(a)(3); 404.1546(c).

       According to Plaintiff, the RFC assessment is in error because the ALJ

failed to include all the physical limitations set out in the opinions of her treating

physicians and the report of the examining physician, Dr. Charles T. Marrow. We

have already rejected Plaintiff’s claim that the ALJ erred in evaluating the

opinions of her treating physicians. And contrary to Plaintiff’s contention, the

ALJ carefully discussed Dr. Marrow’s report of his examination, including his

final impression that “although claimant was unsuitable for ‘heavy manual work’

she was a suitable candidate for vocational training” in “‘sedentary type work.’”

Supplemental App. at 261 (quoting Marrow report, Aplt. App., Tab 4 at 177). As

the ALJ explained, “Dr. Marrow was not asked to provide a specific functional

capacity analysis,” it was “uncertain what he meant by the term ‘sedentary,’” and


                                          -8-
there was “no compelling evidence upon which to conclude that Dr. Marrow ruled

out claimant for ‘light’ work.”   Id. See also S.S.R. 96-5p, at *5. (“Adjudicators

must not assume that a medical source using terms such as ‘sedentary’ and ‘light’

is aware of our definitions of these terms.”).

       Having reviewed the evidence concerning Plaintiff’s severe impairments,

including her lower back pain, we conclude that the ALJ’s RFC determination is

supported by substantial evidence.

       The judgment of the district court is AFFIRMED.

                                                     Entered for the Court


                                                     Harris L Hartz
                                                     Circuit Judge




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