                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                       UNITED STATES CO URT O F APPEALS
                                                                       November 17, 2006
                             FO R TH E TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                          Clerk of Court



    M ARILYN HUN TER,

              Plaintiff-Appellant,

     v.                                                    No. 06-4045
                                                   (D.C. No. 2:05-CV-329-DAK)
    JO A NN E B. BA RN HA RT,                                (D. Utah)
    Commissioner of the Social Security
    Administration,

              Defendant-Appellee.



                              OR D ER AND JUDGM ENT *


Before T YM KOV IC H, A ND ER SO N, and BALDOCK , Circuit Judges.


          Claimant M arilyn Hunter appeals the district court’s order affirming the

Commissioner’s decision to deny her application for Supplemental Security

Income (SSI) benefits. W e have jurisdiction under 42 U.S.C. § 405(g) and 28

U.S.C. § 1291, and 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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. 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.
                                  I. Background

      M s. Hunter applied for SSI benefits in June of 2003. At that time, she was

forty-eight years old and w as being treated for diabetes, degenerative disc

disease, neck and back pain, muscle spasms, and sciatica. After a hearing, an

administrative law judge (ALJ) determined that M s. Hunter was not disabled at

step five of the five-step sequential evaluation process, see Williams v. Bowen,

844 F.2d 748, 750-52 (10th Cir. 1988) (explaining the five-step process), because

she retained the residual functional capacity (RFC) to perform a significant range

of light work that existed in the national economy. The Appeals Council denied

review, and the district court affirmed the ALJ’s decision. M s. Hunter

subsequently filed this appeal.

      M s. Hunter argues on appeal that (1) the ALJ’s decision, in particular its

RFC assessment, is not supported by substantial evidence; (2) the ALJ improperly

evaluated her treating physician’s opinion and in so doing, failed to cite specific

reasons for not giving it controlling weight; and (3) the ALJ failed to identify

specific evidence supporting its finding that she was not a credible witness. W e

find each contention lacking in merit and therefore affirm the district court.

                                  II. Discussion

      W e review the Commissioner’s decision to determine whether it is

supported by substantial evidence in the record and to evaluate whether she

applied the correct legal standards. Grogan v. Barnhart, 399 F.3d 1257, 1261

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(10th Cir. 2005). In conducting our review, we neither reweigh the evidence nor

retry the case, but “meticulously examine the record as a whole, including

anything that may undercut or detract from the ALJ’s findings in order to

determine if the substantiality test has been met.” Id. at 1262.

            A. Substantial Evidence and the ALJ’s RFC Assessment

      M s. Hunter first contends the ALJ’s determination is not supported by

substantial evidence. Our review of the record compels us to conclude otherwise.

M s. Hunter was first diagnosed with diabetes in A pril 2003, and degenerative disc

disease of the lumbar spine the month following. She also had been suffering

from neck and back pain, muscle spasms, and sciatica. After M s. Hunter applied

for SSI, an agency physician reviewed her medical records and concluded that she

was not disabled. As indicated by the physician’s physical capacity assessment,

M s. Hunter was capable of lifting or carrying twenty pounds occasionally and ten

pounds frequently. She could sit, stand, or walk for a total of six hours in an

eight hour w orkday, and was unlimited in her exertional limit to push or pull.

The physician indicated that M s. Hunter could occasionally climb stairs, ramps,

ropes, ladders, and scaffolds, as w ell as occasionally balance, stoop, kneel,

crouch, or crawl. The physician also determined that she was without any

manipulative, visual, communicative, or environmental limitations.

      Shortly after the agency’s initial denial, M s. Hunter underwent an M RI and

full-body bone scan to further evaluate her condition. The M RI confirmed that

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she suffered from degenerative disc disease of the lumbar region of her spine,

while the bone scan was “completely within normal limits,” A pp. at 110. W ith

these additional diagnostics, a second agency physician reviewed M s. Hunter’s

medical record and again concluded that she was not disabled.

      Following the denial of M s. Hunter’s request for reconsideration, she was

examined by Dr. M ark Kabins. Consistent with prior diagnoses, Dr. Kabins

agreed that M s. Hunter suffered from a number of impairments, including

degenerative disc disease of the lumbar spine. Yet Dr. Kabins also believed that

M s. Hunter suffered from degenerative disc disease of the thoracic region of the

spine, and possibly fibromyalgia. M ost significantly, though, contrary to the

conclusion reached by the agency physicians, Dr. Kabins believed that

M s. Hunter was “disabled from employment, indefinitely.” Id. at 129.

Dr. Kabins based his opinion on the results of this single examination that

occurred on December 13, 2003 – the only occasion he examined M s. Hunter.

      Approximately nine months later, in September 2004, Dr. Kabins

completed a physical capacity assessment form that differed from that of the

agency physicians. Specifically, Dr. Kabins’ assessment indicated that

M s. Hunter could frequently lift less than ten pounds, occasionally lift ten

pounds, rarely lift twenty pounds, and never lift fifty pounds. He believed she

could sit in a regular chair for a total of two hours in an eight-hour work day and

a recliner for a total of four hours in an eight-hour work day. Dr. Kabins also

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indicated that M s. Hunter could stand for fifteen minutes at a time for a total of

one hour, w alk for fifteen minutes at a time for a total of one hour, and lay down

for a total of seven hours during an eight-hour work day. He further indicated

that she is fully capable of pushing and pulling, fine manipulation, and simple

grasping, but should never climb ladders or stairs, nor kneel, stoop, or bend at the

waist.

         Based on the foregoing evidence, the ALJ concluded that M s. Hunter

possessed the RFC to “perform a significant range of light work.” Id. at 31. In

arriving at this conclusion, the A LJ found that M s. Hunter could lift and carry

twenty pounds occasionally and ten pounds frequently. This finding was

consistent with that of both agency physicians. The ALJ further determined,

consistent with the findings of the agency physicians, that M s. Hunter could sit,

stand, or walk for two hours at a time for a total of six hours in an eight-hour

work day, and that she was unlimited in her ability to push and pull with her

upper extremities, aside from her lifting and carrying restrictions. The A LJ’s

determination that she could occasionally climb stairs and ramps, and was without

communicative, visual, or environmental exposure limitations, also coincides w ith

the agency physicians’ assessments. Notably, the ALJ’s finding that M s. Hunter

should never climb ladders is supported by Dr. Kabins’ assessment as well.

         In addition to these source opinions, the ALJ’s decision is supported by

objective diagnostic evidence. M s. Hunter’s M RI and x-rays indicated that she

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suffered from degenerative disc disease, while her bone scan was “completely

within normal limits,” id. at 110. The ALJ specifically cited this evidence in

assessing M s. Hunter’s RFC. Indeed, while discussing her x-rays, the ALJ

expressly noted that the x-rays suggested “some degenerative disc disease.” Id. at

25. Evaluating the M RI reports, the A LJ stated that images of M s. Hunter’s

thoracic spine were “unremarkable,” but “[i]mages of her lumbar spine taken the

same day reveal[ed] a partially degenerated disc and bulge.” Id. at 26.

Additionally, the ALJ indicated that M s. Hunter’s bone scan “did not reveal

anything significant.” Id. Citing this specific evidence, the ALJ formulated its

RFC determination. Based on the record as a whole, we conclude that the

substantial evidence test has been satisfied. M s. Hunter’s arguments to the

contrary would require us to reweigh the evidence and substitute our judgment for

that of the Commissioner’s. That we cannot do. Glass v. Shalala, 43 F.3d 1392,

1395 (10th Cir. 1994).

                             B. Dr. K abins’ O pinion

      M s. Hunter next argues the ALJ improperly evaluated Dr. Kabins’ opinion.

Characterizing Dr. Kabins as a treating physician, M s. Hunter claims the ALJ

failed to cite specific reasons for not giving controlling weight to his opinion that

she was disabled, as well as to his physical capacity assessment. This argument

fails for two reasons. First and foremost, Dr. Kabins’ opinion is not entitled to

controlling weight because he examined M s. Hunter only once, did not provide

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the only medical evidence of the relevant time frame, and consequently, does not

qualify as a treating physician. Doyal v. Barnhart, 331 F.3d 758, 762-63 (10th

Cir. 2003) (“Absent an indication that an examining physician presented the only

medical evidence submitted pertaining to the relevant time period, the opinion of

an examining physician who only saw the claimant once is not entitled to the sort

of deferential treatment accorded to a treating physician’s opinion.” (quotation

omitted)).

      Second, even if Dr. Kabins qualified as a treating physician, his opinion

that M s. Hunter was totally disabled is not controlling. A physician may opine

that a claimant is totally disabled, but that “opinion is not dispositive because

final responsibility for determining the ultimate issue of disability is reserved to

the [Commissioner].” Castellano v. Sec’y of Health & H um an Servs., 26 F.3d

1027, 1029 (10th Cir. 1994); 20 C.F.R. §§ 404.1527(e)(1)-(2), 416.927(e)(1)-(2).

      M s. Hunter contends that Dr. Kabins’ conclusions w ere improperly

discounted. But even as a non-treating physician, Dr. Kabins’ physical capacity

assessment is not substantial evidence on which the ALJ could have based its

decision. Here, Dr. Kabins’ assessment is comprised of a single-page form with

check-marks designating his conclusions w ithout any explanation. M oreover, it

was completed more than nine months after his sole examination of M s. Hunter,

and it is inconsistent with the substantial evidence in the record. Accordingly, the

ALJ summarized Dr. Kabins’ findings, and found “no objective evidence to

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support [his] conclusions.” App. at 26. The A LJ recognized that Dr. Kabins’

assessments were internally inconsistent and also conflicted with M s. Hunter’s

testimony concerning her abilities. Hence, the ALJ concluded that there was “no

objective evidence of sufficient severity of limitation to suggest that [M s. Hunter]

cannot do at least light exertional type work.” Id. at 27. W here a doctor’s report

is comprised solely of boxes checked on a form, the “evaluation form[], standing

alone, unaccompanied by thorough written reports or persuasive testimony, [is]

not substantial evidence.” Frey v. Bowen, 816 F.2d 508, 515 (10th Cir. 1987).

Under these circumstances, Dr. Kabins’ assessment of M s. Hunter’s physical

capacity does not constitute substantial evidence. The ALJ did not err in his

treatment of Dr. K abins’ opinion.

                      C. Adverse Credibility Determination

      Lastly, M s. Hunter contends the ALJ failed to identify specific evidence

supporting its adverse credibility determination. This argument is without merit.

“Credibility determinations are peculiarly within the province of the finder of

fact, and we will not upset such determinations when supported by substantial

evidence.” M cGoffin v. Barnhart, 288 F.3d 1248, 1254 (10th Cir. 2002)

(quotation omitted). W e review the ALJ’s factual findings underlying its

credibility determination to ensure that it is “closely and affirmatively linked to

substantial evidence and not just a conclusion in the guise of findings.” Hackett

v. Barnhart, 395 F.3d 1168, 1173 (10th Cir. 2005) (internal quotation omitted).

                                         -8-
      At the hearing before the ALJ, M s. Hunter testified that she believed she

was disabled. The ALJ found that M s. Hunter’s “description of her limitations

are not fully credible or consistent with the record.” A pp. at 28. To support this

finding, the A LJ cited M s. Hunter’s testimony describing her daily activities,

which included performing household chores, preparing her own meals, minimal

driving, and attending church on Sunday, and he concluded that these activities

were “consistent with the performance of light work.” Id. at 27-28. Further, the

ALJ noted that none of M s. Hunter’s physicians had placed “any functional

restrictions on her activities that would preclude light work activity.” Id. at 28.

Based on the record as a whole, w e are satisfied that the ALJ’s credibility

findings are closely and affirmatively linked to substantial evidence.

                                  III. Conclusion

      The judgment of the district court is AFFIRMED.



                                                     Entered for the Court



                                                     Timothy M . Tymkovich
                                                     Circuit Judge




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