                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                   February 7, 2012
                     UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                     Clerk of Court
                            FOR THE TENTH CIRCUIT


    WILLIAM O. MAYBERRY,

                Plaintiff-Appellant,

    v.                                                   No. 11-5058
                                               (D.C. No. 4:09-CV-00533-TLW)
    MICHAEL J. ASTRUE, Commissioner                      (N.D. Okla.)
    of Social Security Administration,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before TYMKOVICH, Circuit Judge, BRORBY, Senior Circuit Judge, and
EBEL, Circuit Judge.


         William O. Mayberry appeals from the order entered by the district court

affirming the Social Security Commissioner’s decision denying his applications

for disability insurance benefits and supplement security income benefits under

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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.

      Plaintiff applied for social security benefits based on various physical and

mental infirmities. His applications were denied initially and on reconsideration,

and a de novo hearing was held before an administrative law judge (ALJ).

      The ALJ also denied plaintiff’s applications at step five of the five-step

sequential evaluation process for determining disability. See Fischer-Ross v.

Barnhart, 431 F.3d 729, 731 (10th Cir. 2005) (describing five steps).

Specifically, the ALJ found that: (1) plaintiff has not engaged in substantial

gainful activity since February 21, 2002; (2) plaintiff suffers from the severe

medical impairments of obesity, diabetes mellitus, depression, and a pain

disorder; (3) plaintiff’s impairments do not meet or equal any listed impairment

under the controlling regulations; (4) plaintiff has the residual functional capacity

to perform sedentary work, but he cannot perform more than “simple, repetitive

tasks,” Aplt. App., Vol. 2 at 18; (5) plaintiff is not able to perform his past

relevant work as a groundskeeper since he performed that work at the medium

level of exertion; but (6) considering plaintiff’s age, education, work experience,

and residual functional capacity, there are other jobs that exist in significant

numbers in the national economy that plaintiff can perform such as bench

assembler, machine operator, and order clerk.




                                          -2-
      The Appeals Council denied plaintiff’s request for review of the ALJ’s

decision. He then filed a complaint in the district court. A magistrate judge

affirmed, and this appeal followed.

      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. 1991). Instead, we review the ALJ’s decision only “to determine

whether the factual findings are supported by substantial evidence in the record

and whether the correct legal standards were applied.” Doyal, 331 F.3d at 760.

Substantial evidence is “more than a scintilla, but less than a preponderance.”

Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). It “is such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.”

Id. (internal quotation marks omitted). A decision is not based on substantial

evidence “if it is overwhelmed by other evidence in the record.” Wall v. Astrue,

561 F.3d 1048, 1052 (10th Cir. 2009) (internal quotation marks omitted).

                                         II.

      Plaintiff claims that: (1) the ALJ failed to perform a proper evaluation of

the opinions of his treating physician, Dr. LaFromboise; (2) the ALJ’s finding

that plaintiff’s statements about his impairments were not entirely credible is not

                                        -3-
supported by substantial evidence; and (3) the ALJ’s determination of plaintiff’s

residual functional capacity is flawed because it did not include all of his relevant

impairments.

      Before addressing these issues, we note that plaintiff’s medical history is

summarized in detail in the ALJ’s decision and the parties’ briefs on appeal, and

we will not repeat that history here. In addition, because we are convinced that

the ALJ’s denial of social security benefits is supported by substantial evidence in

the administrative record and free of any legal error, we do not deem it necessary

to separately address each of the multiple sub-arguments that plaintiff has

advanced in support of his three general propositions of error. Instead, we will

limit our analysis to the points discussed below.

      A. Treating Physician

      Plaintiff first contends the ALJ erred by giving only “limited weight” to

Dr. LaFromboise’s opinions. See Aplt. App., Vol. 2 at 24. Over two years after

plaintiff filed his social security applications, Dr. LaFromboise treated him for

depression, back pain, hypertension, and other ailments. Id. at 193-200.

Dr. LaFromboise’s opinions are set forth in a letter dated March 27, 2008, in

which she stated the following:

            Since 01/17/08, William Mayberry has received outpatient
      services at Associated Centers for Therapy (ACT).




                                         -4-
            As the primary provider, it is my professional opinion that
      William is unable to perform the duties required of a job due to a
      combination of mental and physical health issues. . . .

             William is easily confused and has poor ability to concentrate
      on conversation of any depth. His current state is of permanent
      disability.

Id. at 202.

      Under the controlling regulations, the final responsibility for deciding the

ultimate issue of whether a social security claimant is “disabled” or “unable to

work” is reserved to the Commissioner. 20 C.F.R. §§ 404.1527(e)(1) and

416.927(e)(1) (internal quotation marks omitted). Consequently, an ALJ is not

bound by a treating physician’s opinion on the ultimate issue of disability, id.,

and such an opinion is never entitled to controlling weight or special significance,

see Soc. Sec. Ruling (SSR) 96-5p, 1996 WL 374183, at *1, *2, *5 (July 2, 1996).

             However, opinions from any medical source on issues reserved
      to the Commissioner must never be ignored. The adjudicator is
      required to evaluate all evidence in the case record that may have a
      bearing on the determination or decision of disability, including
      opinions from medical sources about issues reserved to the
      Commissioner. If the case record contains an opinion from a medical
      source on an issue reserved to the Commissioner, the adjudicator
      must evaluate all the evidence in the case record to determine the
      extent to which the opinion is supported by the record.

Id. at *3; see also id. at *1 (stating that a social security decision “must explain

the consideration given to a treating source’s opinion(s)” on an issue reserved to

the Commissioner).




                                          -5-
        Given this framework, Dr. LaFromboise’s opinions that plaintiff is “unable

to perform the duties required of a job” and is “permanent[ly] disabled” are “not

medical opinions, . . . but are, instead, opinions on issues reserved to the

Commissioner.” 20 C.F.R. §§ 404.1527(e) and 417.927(e). While a physician’s

opinions on issues reserved to the Commissioner are not entitled to controlling

weight or any special significance, the ALJ was still required to provide an

evaluation of the opinions and explain his reasons for either rejecting or accepting

them.

        We conclude that the ALJ sufficiently explained his decision to give “little

weight” to Dr. LaFromboise’s opinions. First, the ALJ correctly noted that “it is

not clear that the doctor was familiar with the definition of ‘disability’ contained

in the Social Security Act and regulations.” Aplt. App., Vol. 2 at 24. Second, the

ALJ stated that “[t]he course of treatment pursued by the doctor has not been

consistent with what one would expect if the claimant were truly disabled, as the

doctor has reported.” 1 Id. Although the latter statement borders on improper


1
       We note that the ALJ also gave two additional reasons for discounting
Dr. LaFromboise’s opinions. First, the ALJ stated that Dr. LaFromboise
“apparently relied quite heavily on the subjective reports of symptoms and
limitations provided by the claimant, and seemed to uncritically accept as true
most, if not all, of what the claimant reported.” Aplt. App., Vol. 2 at 24. Second,
the ALJ pointed out that, “[w]hile [Dr. LaFromboise] does have a treating
relationship with the claimant, the treatment history is quite brief, when
considering the claimant’s alleged onset date of February 2, 2002.” Id. These are
insufficient reasons for discounting Dr. LaFromboise’s opinions. The first reason
                                                                        (continued...)

                                          -6-
boilerplate language, we believe it is better construed as properly relying on

inconsistencies between Dr. LaFromboise’s opinions and her treatment records.

      In his decision, the ALJ accurately summarized the treatment that

Dr. LaFromboise provided to plaintiff as follows:

             Treatment records from Associated Centers for Therapy cover
      the period from January 17, 2008 through June 26, 2008. Initial
      evaluation showed an assessment of rule out post traumatic stress
      disorder, which could be a mood disorder secondary to multiple
      health problems, rule out diabetes, possible sleep apnea,
      hypertension, lower back pain and rectal bleeding. The claimant was
      prescribed Rozerem, Provigil, Flexeril and Lisinopril, as well as
      laboratory blood tests. The claimant was followed by Dawn
      LaFromboise, M.D. for his mental health needs. The claimant
      reported that he was still having problems with the medications not
      getting him to sleep and the depression medication made him jittery
      during the day. The claimant reported the Flexeril worked to help
      relieve back pain but tended to make him a little sleepy during the
      day. The claimant continued to complain of depression despite
      taking the Provigil. [Dr. LaFromboise therefore discontinued the
      Provigil and instead prescribed Amitriptyline, an anti-depressant.]
      The claimant’s affect was irritable and mood was described as
      “depressed.” Insight was fair and behavior was appropriate. The
      diagnostic assessment was mood disorder secondary to multiple
      health problems, rule out post traumatic stress disorder, and major
      depressive disorder. On April 30, 2008 the claimant reported for his
      monthly appointment and reported his blood pressure medication
      working and the Amitriptyline helped him to sleep. He also reported
      the depression was getting better. The claimant’s mood was
      congruent and affect was stressed due to family problems on May 29,
      2008. The assessment was major depressive disorder, recurrent and


1
 (...continued)
is conclusory and relies on improper boilerplate language, while the second
reason ignores the fact that Dr. LaFromboise saw plaintiff seven times over the
course of a six-month period and prepared detailed treatment records concerning
each visit.

                                         -7-
      possible post traumatic stress disorder. He was to continue taking
      the medications of Flexeril 10mg, Lisinopril 20 mg, and
      Amitriptyline raised to 100mg. He was scheduled to return in one
      month. On June 26, 200[8] the claimant’s behavior was more
      sociable and made good eye contact. Dr. LaFromboise reported the
      claimant seemed grateful that he was coming to therapy and he
      realized his depression was clearing up. The affect was euthymic
      and mood was better.

Id. at 21-22.

      With the exception of his consultative examinations in 2005 and 2007, two

mental and two physical, the record indicates that plaintiff received no medical

treatment for any physical or mental impairment between his alleged onset date in

February 2002 and this six-month period in 2008. Further, Dr. LaFromboise’s

treatment records do not document any particular functional limitations associated

with plaintiff’s mental and physical ailments; nor do they contain a single medical

opinion regarding plaintiff’s ability to mentally or physically perform the normal

tasks associated with working. Instead, Dr. LaFromboise’s treatment of

plaintiff’s mental and physical ailments was primarily limited to prescribing

medications. Id. at 193-200. Moreover, Dr. LaFromboise’s records show that, as

a result of her short-term treatment, plaintiff’s depression was “clearing up” and

“getting closer to euthymic” 2 as of June 2008. Id. at 193.




2
      “Euthymic” is defined as “[r]elating to, or characterized by, euthymia,” and
“euthymia” means “[m]oderation of mood, not manic or depressed.” Stedman’s
Medical Dictionary 627 (27th ed. 2000).

                                         -8-
      In sum, all we have from Dr. LaFromboise is a general conclusion that

plaintiff is “permanently disabled,” without any supporting residual functional

capacity assessments 3 or other specific findings regarding actual functional

limitations. 4 This conclusion provides little guidance because of its uncertain

medical meaning, and extends into an assessment of interrelated medical,

educational, and vocational factors beyond the expertise of most physicians.

Given these shortcomings, the ALJ did not err in assigning only “limited weight”

to Dr. LaFromboise’s opinions.

      B. Adverse Credibility Determination

      The ALJ found that plaintiff was not credible to the extent that his

statements concerning his symptoms were inconsistent with the residual

functional capacity determined by the ALJ. See Aplt. App., Vol. 2 at 20.

“Credibility determinations are peculiarly the province of the finder of fact, and

we will not upset such determinations when supported by substantial evidence.”

3
       At the hearing before the ALJ, plaintiff’s counsel told the ALJ that he was
“anticipating” that Dr. LaFromboise would provide a mental residual functional
capacity assessment form for plaintiff. See Aplt. App., Vol. 2 at 230-31. As a
result, the ALJ left the administrative record open for ten days following the
hearing “to receive that record.” Id. at 231. However, there is no such record in
the administrative record that is before this court.
4
       As noted above, Dr. LaFromboise did state that plaintiff is “easily confused
and has poor ability to concentrate on conversation of any depth.” Aplt. App.,
Vol. 2 at 202. The ALJ took into account the former limitation by limiting
plaintiff’s residual functional capacity to “simple, repetitive tasks,” id. at 18,
while the latter limitation finds no support in Dr. Lafromboise’s treatment records
as the doctor never mentioned any difficulties in maintaining a conversation.

                                        -9-
Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995) (internal quotation marks

omitted). But “[f]indings as to credibility should be closely and affirmatively

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

Id. (internal quotation marks omitted).

      The ALJ’s main findings in support of his adverse credibility determination

were as follows:

      The claimant has described daily activities which are not limited to
      the extent one would expect, given the complaints of disabling
      symptoms and limitations. At one point or another in the record,
      either in forms completed in connection with the application and
      appeal, medical records or reports, or in the claimant’s testimony, the
      claimant has reported the following activities of caring for his own
      personal needs, fixing meals for himself, performing the household
      chores for himself, mowing the lawn and visiting with close friends.

             As far as medical care, the claimant has not generally received
      the type of medical treatment one would expect for a totally disabled
      individual, and the treatment the claimant has received for the
      allegedly disabling impairments has been essentially routine and
      conservative in nature. With regard to medication side effects,
      although the claimant has alleged various side effects from the use of
      the medications, the medical records, such as office treatment notes,
      do not corroborate those allegations. . . . The record fails to
      demonstrate the presence of any pathological clinical signs,
      significant medical findings, or any neurological abnormalities which
      would establish the existence of a pattern of pain of such severity as
      to prevent the claimant from engaging in any work on a sustained
      basis.

Aplt. App., Vol. 2 at 23.

      Because the medical evidence in this case is so sparse, we do not need to

delve into plaintiff’s allegations regarding his activities of daily living or his


                                          -10-
medication side effects to affirm the ALJ’s adverse credibility determination.

Simply put, there are only two limited periods of time since plaintiff’s onset date

in February 2002 when he has received medical treatment: (1) the treatment he

received from Dr. LaFromboise from January 2008 until June 2008, see

Aplt. App., Vol. 2 at 193-200; and (2) the treatment he received from “OU

Physicians -Tulsa Family Medicine” from September 2008 until January 2009,

id. at 211-27. None of these medical records document any specific physical or

mental functional limitations that would preclude the sedentary residual

functional capacity, limited to simple, repetitive tasks, found by the ALJ. Rather,

as the ALJ found, plaintiff’s medical treatment “has been essentially routine and

conservative.” 5 Aplt. App., Vol. 2 at 23. Thus, we conclude that substantial

evidence supports the ALJ’s adverse credibility determination.




5
       According to plaintiff, the lack of medical evidence in this case is
attributable to the fact that “he couldn’t afford to go to the doctor.” Aplt.
Opening Br. at 33; see also id. (“The ALJ ignores that affordability may explain
Claimant’s failure to seek a physician’s advice and receive less conservative
treatment.”). This argument is without merit. Plaintiff succeeded in obtaining
extensive medical treatment from Dr. LaFromboise and the OU physicians, and he
has provided no evidence that he “sought to obtain [additional] low-cost medical
treatment” or that he has “been denied medical care because of [his] financial
condition,” Murphy v. Sullivan, 953 F.2d 383, 386-87 (8th Cir. 1992); cf. Threet
v. Barnhart, 353 F.3d 1185, 1191 n.7 (10th Cir. 2003) (indicating “that inability
to pay may provide a justification for [the] claimant’s failure to seek treatment”
when there is evidence that the claimant sought and was refused treatment).

                                        -11-
      C. Residual Functional Capacity Determination

      Finally, plaintiff claims the ALJ erred by not including certain additional

impairments in his residual functional capacity determination. See Aplt. Opening

Br. at 20-22 (discussing diminished and painful range of motion of spine, weak

heel/toe walking, weak grip strength, hypertension, history of rectal bleeding, dry

mouth from medications, and headaches). We agree with the Commissioner,

however, that plaintiff “has failed to show that any of the [additional]

impairments impact his ability to perform sedentary work. . . . Nor has [plaintiff]

pointed to medical evidence which would support his allegations of work-related

limitations.” Aplee. Br. at 29-30. Accordingly, we see no error in the ALJ’s

residual functional capacity determination.

      The judgment of the district court is AFFIRMED.


                                                    Entered for the Court


                                                    Timothy M. Tymkovich
                                                    Circuit Judge




                                        -12-
