                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                       UNITED STATES CO URT O F APPEALS
                                                                          June 13, 2006
                             FO R TH E TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                          Clerk of Court

    LEROY S. LOPEZ,

              Plaintiff-Appellant,

     v.                                                   No. 05-1341
                                                   (D.C. No. 04-CV-1885-EW N)
    JO A NN E B. BA RN HA RT,                               (D . Colo.)
    Commissioner of Social Security,

              Defendant-Appellee.



                              OR D ER AND JUDGM ENT *


Before H E N RY, BR ISC OE, and M U RPH Y, Circuit Judges.




          Plaintiff Leroy S. Lopez appeals from the district court’s order affirming

the Social Security Commissioner’s denial of his application for disability and

supplemental security income benefits. Exercising our jurisdiction under

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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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

      Plaintiff applied for disability benefits on M arch 11, 2002, claiming

disability as of November 28, 2001, due to gouty arthritis and back pain. After

his claim was denied, Plaintiff requested a hearing before an Administrative Law

Judge (ALJ), which took place on April 29, 2004. The ALJ issued a decision on

M ay 24, 2004. He concluded that Plaintiff was not disabled at step four of the

sequential evaluation process, see 20 C.F.R. § 404.1520, because he found that

despite Plaintiff’s severe impairments, Plaintiff retained the residual functional

capacity (RFC) to perform a full range of sedentary work, including his past

relevant work as a telemarketer. In making his decision, the ALJ rejected

Plaintiff’s treating physician’s opinion regarding Plaintiff’s physical limitations.

The ALJ also found Plaintiff’s own description of his limitations inconsistent

with other evidence in the record and therefore not credible.

      Plaintiff’s appeal challenges the ALJ’s RFC determination. Specifically, he

argues that the ALJ did not have a valid reason for rejecting his treating

physician’s opinion or his own testimony concerning his physical limitations.

Instead of relying on the medical evidence, he claims that the ALJ erroneously

substituted his own opinion for that of Plaintiff’s doctors and made an RFC

determination without any record support.




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                                 Standard of Review

      “The standard of review in a Social Security appeal is whether the

Commissioner’s final decision is supported by substantial evidence, and whether

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

1261 (10th Cir. 2005). “Substantial evidence . . . is such relevant evidence as a

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

review entails a meticulous examination of the record to ensure that the

substantiality test has been met, but “we may neither reweigh the evidence nor

substitute our judgment for that of the agency.” White v. Barnhart, 287 F.3d 903,

905 (10th Cir. 2001) (quotation omitted).

                           Treating Physician’s Opinion

      Dr. Donald Primer was Plaintiff’s treating physician. The ALJ found,

based partly on Dr. Primer’s treatment notes, that “[the] medical evidence

establish[ed] a history of gouty arthritis and disorders of the cervical and lumbar

spine.” Admin. R. at 16. He further found these impairments to be severe. Thus,

it appears that Dr. Primer’s medical opinion was not wholly rejected. Rather, the

ALJ accepted his medical diagnoses, at least in part, but rejected his opinion

concerning the physical limitations that Plaintiff’s impairments imposed.

      W e have held that “[t]he ALJ must give controlling weight to the treating

physician’s opinion, provided that opinion is well-supported [ ] and is not

inconsistent with other substantial evidence.” White, 287 F.3d at 907 (quotation

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and alteration omitted). The type of opinion typically accorded controlling

weight concerns the “nature and severity of the claimant’s impairments including

the claimant’s symptoms, diagnosis and prognosis, and any physical or mental

restrictions.” See Castellano v. Sec’y of Health & H um an Servs., 26 F.3d 1027,

1029 (10th Cir. 1994). Sometimes, as happened in this case, the treating

physician also offers an opinion that the claimant is totally disabled, but we have

held that such an opinion “is not dispositive because final responsibility for

determining the ultimate issue of disability is reserved to the [Commissioner].”

Id. W ith this legal framew ork in mind, we turn to Dr. Primer’s opinion

concerning Plaintiff’s physical limitations.

      Dr. Primer first treated Plaintiff on April 19, 2002. His treatment notes

reveal that he observed lumps on Plaintiff’s elbows caused by gout, but that

Plaintiff was otherwise in no acute distress. That same day, Dr. Primer completed

an Initial Examination Report for the Colorado Department of Human Services.

He indicated that Plaintiff had a history of polyarthritis, pain, redness, and

sw elling in the joints, but that his prognosis was “good.” Admin. R. at 134. H e

opined that Plaintiff should be restricted to sedentary work (involving lifting no

more than 10 pounds and sitting with occasional walking and standing) and that

Plaintiff would be employable with certain medication and adequate treatment of

his gout. Curiously, however, Dr. Primer checked a box indicating that Plaintiff

would be totally unable to work for a period of 6-8 months. As the ALJ noted,

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there is no explanation for Dr. Primer’s inconsistent opinions that Plaintiff

(1) could engage in sedentary work with adequate treatment but (2) could not

work at all for a period of 6-8 months.

      Plaintiff was examined by a radiologist on or about July 17, 2002. The

x-rays revealed “[m]oderate degenerative disc change from C3 through C6” and

“[m]oderately severe degenerative disc narrowing at L2-3.” Id. at 150.

On July 18, 2002, Dr. Primer filled out a questionnaire at the request of Plaintiff’s

attorney, stating that Plaintiff could lift only 10 pounds on an occasional basis

due to “severe degenerative disc disease of lumbar spine.” Id. at 151. He also

opined that Plaintiff could not engage in any repetitive activity with his upper

extremities and could only sit and stand for 10-15 minutes before needing to

change positions. There is nothing in the record to indicate that Dr. Primer

examined Plaintiff at the time he provided this opinion. Rather, the opinion

appears to be based solely on the July 17 radiological report.

      According to the record, Dr. Primer last saw Plaintiff on October 30, 2002.

His treatment notes state, “[e]xamination of [Plaintiff’s] cervical and lumbar

spine are unchanged with considerable tenderness and some limitation in range of

motion. His deep tendon reflexes, strength and sensation are normal.” Id. at 166.

He also completed another medical form for the Colorado Department of Human

Services, describing Plaintiff’s prognosis as “chronic” and stating that in addition

to gout, Plaintiff had been diagnosed with “DDD of spine - found on xray.” Id. at

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155-56. Like before, he indicated that Plaintiff could perform sedentary work,

but also checked a box indicating that Plaintiff was disabled and unable to work

at any job for a period of 12 months or more.

      On appeal, Plaintiff challenges primarily the ALJ’s disregard of

Dr. Primer’s opinion expressed in the July 18, 2002, questionnaire that Plaintiff

can only sit and stand for 10-15 minutes at a time. Plaintiff argues that the ALJ

had no basis to reject this opinion because there was no contrary medical

evidence. Plaintiff relies heavily on M cGoffin v. Barnhart, 288 F.3d 1248

(10th Cir. 2002), to support his argument. In that case, we stated that an ALJ

“may reject a treating physician’s opinion outright only on the basis of

contradictory medical evidence and not due to his or her own credibility

judgments, speculation or lay opinion.” Id. at 1252 (quotation omitted).

      Plaintiff’s argument is flaw ed in several respects. First, it fails to

acknowledge that Dr. Primer’s opinion concerning Plaintiff’s physical limitations

conflicts with his ow n finding that Plaintiff, properly treated, could perform

sedentary work. In April and October of 2002, Dr. Primer noted on the Colorado

Department of Human Services examination form that Plaintiff could engage in

sedentary work. “Sedentary” is defined on the form as the ability to lift no more

that 10 pounds and sit with occasional walking and standing. Plaintiff fails to

reconcile Dr. Primer’s opinion that he cannot sit and stand for more than 10-15

minutes with his concurrent opinion that Plaintiff can engage in sedentary work.

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      Second, the ALJ properly evaluated Dr. Primer’s opinion in the context of

the record as a whole. See 20 C.F.R. § 404.1527(b) (stating that medical opinions

must be considered with all the relevant evidence); White, 287 F.3d at 907

(explaining that a treating physician’s opinion should be consistent with other

substantial evidence). In particular, the ALJ noted that although Plaintiff had not

performed substantial gainful activity, he had engaged in fairly significant work

during the time period of his alleged disability. Some of this w ork apparently

involved “a lot of lifting and working in the back.” Admin. R. at 164. The ALJ

also found that despite Plaintiff’s gout and back pain, he was able to do his

laundry, fish on w arm days, shop for groceries, pay his bills, and go downtown

two to three times a week. The ALJ also pointed to medical evidence in the

record from Dr. M ichael Evans, who examined Plaintiff in January 2002. At that

time, Plaintiff’s neck was “nontender, with full range of motion.” Id. at 105.

Plaintiff was experiencing swelling in his elbow and hands caused by gout, but he

had good range of motion and was neurologically intact. Dr. Evans found no

sensory deficits and noted that Plaintiff had a normal gait.

      Additionally, the ALJ expressed doubt as to Dr. Primer’s credibility in light

of his inconsistent opinions and his apparent willingness to report that Plaintiff

was completely disabled during a time period when Plaintiff was in fact working,

albeit part-time.




                                         -7-
      In light of the foregoing, we cannot hold that the ALJ’s disregard of

Dr. Primer’s opinion was in error. In addition to the substantial contradictory

evidence, other factors counseled against the ALJ according Dr. Primer’s opinion

controlling weight. The record reveals that Plaintiff only saw Dr. Primer between

April and October of 2002, and during that brief period, Dr. Primer examined

Plaintiff at most four times. The brief, infrequent nature of the treatment

relationship lends support to the ALJ’s decision. See White, 287 F.3d at 907.

      Finally, M cGoffin is inapposite. In that case, we held that it was error for

the ALJ to disregard the treating physician’s opinion based on “unfounded doubt”

that the physician agreed with a statement bearing his signature. 288 F.3d at

1252. M oreover, the opinion at issue was amply supported by the record, unlike

Dr. Primer’s opinion here, which is at odds with much of the record evidence.

W e conclude that the ALJ adequately considered the correct legal factors in

disregarding Dr. Primer’s opinion and that the ALJ’s decision was factually

supported by the record.

                           Adverse Credibility Determination

      Plaintiff next contends that the ALJ had no valid reason for disregarding

his own testimony concerning his physical limitations. Here, the ALJ found the

following:

      [C]laimant’s allegation that his impairments, either singly or in
      combination, produce symptoms and limitations of sufficient severity



                                          -8-
       to prevent all sustained work activity is inconsistent with the medical
       and other evidence of record and is not considered to be credible.

Admin. R. at 17. “W e have emphasized that credibility determinations are

peculiarly the province of the finder of fact, and should not be upset if supported

by substantial evidence.” White, 287 F.3d at 909 (quotations omitted). As we

explained in White, the ALJ’s credibility determinations are entitled to particular

deference because, unlike appellate courts, they have the ability to meet the

claimants and assess their physical abilities “in a direct and unmediated fashion.”

Id. at 910.

       Here, the ALJ concluded that Plaintiff’s testimony concerning his physical

limitations w as internally inconsistent and that his claim of complete disability

was contradicted by other evidence in the record. Specifically, the ALJ noted that

Plaintiff experienced normal reflexes, strength, and sensation, and required no

on-going treatment besides prescription pain medication. The ALJ also pointed to

Plaintiff’s daily activities, finding them to be inconsistent with disabling pain,

and to Plaintiff’s regular part-time work during the time period of his alleged

disability. W e conclude that the ALJ employed the correct legal standard in

disregarding Plaintiff’s testimony concerning his physical limitations.




                                          -9-
      In sum, based on our careful review of the record, we hold that the A LJ’s

RFC determination is supported by substantial evidence. Therefore, the judgment

of the district court is A FFIR ME D.

      In addition, because we hold that Plaintiff has failed to raise any reasoned,

non-frivolous arguments on the law and facts in support of his appeal, his request

to proceed in forma pauperis is DENIED.



                                                    Entered for the Court



                                                    M ary Beck Briscoe
                                                    Circuit Judge




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