                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

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


 BRIAN D. PAYTON,

             Plaintiff-Appellant,

 v.                                                    No. 11-6199
                                               (D.C. No. 5:10-CV-00253-HE)
 MICHAEL J. ASTRUE, Commissioner                       (W.D. Okla.)
 of the Social Security Administration,

             Defendant-Appellee.


                          ORDER AND JUDGMENT *


Before KELLY, MURPHY, and MATHESON, Circuit Judges.



      Brian D. Payton appeals from the district court’s order affirming the Social

Security Commissioner’s denial of his application for disability insurance

benefits. Mr. Payton argues that (1) the Administrative Law Judge (ALJ) failed

to evaluate the medical evidence properly; (2) the ALJ erred in finding that he




      *
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
had the residual functional capacity (RFC) 1 to perform substantial gainful

activity; and (3) the ALJ erred in her credibility analysis. “We independently

review the Commissioner’s decision to determine whether it is free from legal

error and supported by substantial evidence.” Krauser v. Astrue, 638 F.3d 1324,

1326 (10th Cir. 2011). “Substantial evidence is such relevant evidence as a

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

Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (internal quotation marks omitted).

Our review is limited to those matters preserved in the district court proceedings

and therefore properly presented on appeal. Krauser, 638 F.3d at 1326.

Exercising jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291, we

affirm.

                                I. BACKGROUND

      Mr. Payton sought disability benefits based on back, foot, and ankle

problems. Benefits were denied initially and on reconsideration. Upon

Mr. Payton’s request, the ALJ held a hearing. The ALJ then denied benefits 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) Mr. Payton had not engaged in



      1
       RFC is “the maximum degree to which the individual retains the capacity
for sustained performance of the physical-mental requirements of jobs.”
20 C.F.R. pt. 404, subpt. P, app. 2, § 200.00(c).

                                         -2-
substantial gainful employment since May 2, 2007, his alleged disability onset

date; (2) he has severe impairments of degenerative disc disease of the lumbar

spine and back and left ankle/foot pain; (3) these impairments, singly or in

combination, did not meet the medical listings; (4) he cannot perform his past

relevant work; and (5) he has the RFC to perform various light and sedentary jobs

that exist in significant numbers in the national economy.

      After the Appeals Council denied Mr. Payton’s request for review, the

ALJ’s decision became the Commissioner’s final decision. See Doyal v.

Barnhart, 331 F.3d 758, 759 (10th Cir. 2003). On judicial review, the district

court adopted the magistrate judge’s thorough report and recommendation to

affirm the Commissioner’s denial of benefits. This appeal followed.

                                II. DISCUSSION

      A. Evaluation of the Medical Evidence

      Mr. Payton first argues that the ALJ did not properly evaluate the medical

evidence because she did not adequately consider the opinion of Dr. Babb, his

treating doctor of sixteen years. According to Mr. Payton, Dr. Babb’s opinion

that Mr. Payton suffered from significant limitations was supported by the

medical evidence from other doctors. In addition, Mr. Payton faults the ALJ for

failing to indicate the amount of weight she gave to Dr. Babb’s opinion.

      When analyzing a treating doctor’s opinion, the ALJ first considers

“whether the opinion is well supported by medically acceptable clinical and

                                         -3-
laboratory diagnostic techniques and is consistent with the other substantial

evidence in the record.” Pisciotta v. Astrue, 500 F.3d 1074, 1077 (10th Cir.

2007). If so, the ALJ must give the opinion controlling weight. Id. But if the

ALJ decides “the treating physician’s opinion is not entitled to controlling weight,

the ALJ must then consider whether the opinion should be rejected altogether or

assigned some lesser weight.” Id. Relevant factors the ALJ may consider

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.

Watkins v. Barnhart, 350 F.3d 1297, 1301 (10th Cir. 2003) (internal quotation

marks omitted); see also 20 C.F.R. § 404.1527(d).

      “Under the regulations, the agency rulings, and our case law, an ALJ must

give good reasons . . . for the weight assigned to a treating physician’s opinion.”

Langley v. Barnhart, 373 F.3d 1116, 1119 (10th Cir. 2004) (internal quotation

marks omitted). The reasons must be “sufficiently specific to make clear to any

subsequent reviewers the weight the adjudicator gave to the treating source’s

medical opinion and the reason for that weight.” Id. (internal quotation marks

omitted). “If the ALJ rejects the opinion completely, [s]he must then give

                                         -4-
specific, legitimate reasons for doing so.” Id. (internal quotation marks omitted).

      In this case, the ALJ expressly did not give controlling weight to

Dr. Babb’s opinion:

      [Dr. Babb] apparently relied quite heavily on the subjective report of
      symptoms and limitations provided by [Mr. Payton], and seemed to
      uncritically accept as true most, if not all, of what [Mr. Payton]
      reported. Furthermore, Dr. Babb’s opinion contrasts sharply with his
      own objective record and treatment history and the other evidence of
      record. Moreover, the doctor’s opinion is not supported by a
      longitudinal basis and [is] inconsistent with the other substantial
      evidence in this case record; therefore, controlling weight cannot be
      given to his opinion as a treating source.

Aplt. App. at 27.

      We conclude the ALJ’s decision not to give controlling weight to

Dr. Babb’s opinion is supported by substantial evidence and is free from legal

error. And she adequately explained her decision. As the ALJ determined,

Dr. Babb’s opinion was not “supported by medically acceptable clinical and

laboratory diagnostic techniques,” and it was not “consistent with the other

substantial evidence in the record.” Pisciotta, 500 F.3d at 1077.

      Mr. Payton first saw Dr. Babb for back and ankle problems nearly a year

after Mr. Payton injured his back. Dr. Babb’s treatment notes of April 22, 2008,

indicate, apart from a recitation of Mr. Payton’s subjective complaints, that he

had tenderness to the lumbar spine with limited range of motion with extension

and flexion, pain with bending and twisting and straight leg raising, good strength

to the lower extremities, difficulty changing position from sitting to lying and the

                                         -5-
reverse, difficulty getting up from a chair, tenderness over his left foot and ankle,

no foot or ankle deformity, and good foot strength. Dr. Babb recommended that

Mr. Payton see a back specialist and an orthopedist.

      Three months later, on July 24, 2008, Dr. Babb again reported that

Mr. Payton had tenderness and pain in his low back and right hip. Dr. Babb gave

Mr. Payton a back book and prescribed Flexeril and Ibuprofen. On March 13,

2009, Dr. Babb again noted tenderness.

      On May 7, 2009, Dr. Babb noted that he had “filled out [Mr. Payton’s]

paperwork for his disability. He is unable to work.” Aplt. App. at 297.

Dr. Babb provided a disability assessment in the Medical Source Statement that

Mr. Payton is unable to work; can lift frequently or occasionally less than five

pounds; can stand, walk, or sit for less than one hour of an eight hour day; must

lie down during a normal work day; can never climb, balance, stoop, kneel,

crouch, or crawl; and can occasionally reach. As the ALJ concluded, Dr. Babb’s

opinions were not based on a sufficient treatment history or testing, and his

treatment notes do not indicate Mr. Payton is disabled. Our review of the record

confirms that the ALJ’s conclusions are supported by substantial evidence.

      The ALJ also found that Dr. Babb’s opinion was inconsistent with the other

medical evidence in the record. Dr. Richards saw Mr. Payton soon after he

sustained work-related injuries to his left foot and ankle in March 2006, and in

April 2007 for his back injury. Dr. Richards treated the foot and ankle sprain

                                          -6-
with rest, exercises, and Ibuprofen. He released Mr. Payton to return to work two

weeks after the injury.

      In his May 1, 2007, treatment notes for the back injury, Dr. Richards

diagnosed lumbar strain and lumbago, with tenderness, soreness, and swelling.

He took Mr. Payton off work and told him to take Ibuprofen. The following

week, on May 8, Dr. Richards noted that Mr. Payton still had soreness and

stiffness in his back and assessed him with lumbar spondylolysis with lumbar

strain and a bulging disc at L5-S1. On May 15, Mr. Payton informed

Dr. Richards that he was doing well, his pain was at a five on a scale of one to

ten, and he had no difficulty except when squatting or bending to the right – a

movement duplicating his injury. Dr. Richards again diagnosed a lumber sprain

and an underlying congenital defect to Mr. Payton’s back.

      On May 19, Dr. Richards reported that Mr. Payton’s back was much better,

he had a normal range of motion, and the lumbar sprain had resolved.

Dr. Richards released Mr. Payton to return to work with restrictions and

encouraged him to wear a back brace. By June 7, Mr. Payton’s pain had

decreased to a three or four, but he still had some tenderness and decreased range

of motion in his right lumbar spine. Dr. Richards again noted that Mr. Payton

could return to work with restrictions. He encouraged Mr. Payton to continue

with physical therapy. In his final treatment note, dated June 21, Dr. Richards

reported that Mr. Payton continued to improve and that Mr. Payton felt he was

                                         -7-
doing well and could do most activities without increased pain or symptoms.

Dr. Richards again recommended that Mr. Payton return to work with restrictions.

      Dr. Rosson saw Mr. Payton two months later on August 2, 2007, for a

workers compensation examination. With respect to the back, Dr. Rosson noted

tenderness in the lumbosacral region. As to the ankle and foot, Dr. Rosson, noted

tenderness, decreased muscle strength, persistent and chronic pain and weakness,

range of motion abnormalities, chronic tendinitis, tenosynovitis, and ligamentous

instability. He attributed a thirty percent permanent partial impairment to the

back and a forty percent permanent partial impairment to the left foot and ankle.

Dr. Rosson recommended that Mr. Payton undergo vocational rehabilitation for

work that was more sedentary than the heavy work he had performed previously.

      Dr. Stow, a consulting doctor, examined Mr. Payton on April 3, 2008.

Dr. Stow reported that Mr. Payton had a left limp, used no assistance devices,

stood slowly from a chair, mounted the examination table with minor difficulty,

had normal strength and mostly unrestricted range of motion, right hip pain, and

left ankle pain and stiffness.

      Finally, Dr. Woodcock, a state medical consultant, reviewed the medical

reports of Drs. Richards, Rosson, and Stow when considering Mr. Payton’s initial

request for benefits. Dr. Woodcock concluded that Mr. Payton was not disabled. 2


      2
      The ALJ gave significant weight to Dr. Woodcock’s opinion that
Mr. Payton was not disabled, noting that his decision was consistent with the

                                         -8-
      Based on all of the medical evidence, which the ALJ considered in her

decision, no doctor, other than Dr. Babb, believed Mr. Payton was disabled.

Dr. Richards and Dr. Rosson both indicated that Mr. Payton was capable of

working, and Dr. Stow’s report does not indicate otherwise. Thus, the ALJ

appropriately declined to give controlling weight to Dr. Babb’s opinion.

      Even assuming the ALJ properly failed to give Dr. Babb’s opinion

controlling weight, Mr. Payton contends that Dr. Babb’s opinion was entitled to

some weight, but the ALJ failed to discuss what lesser weight she gave his

opinion. From her decision, we conclude she gave no weight to Dr. Babb’s

opinion. Although an explicit statement to that effect would be preferable, she

did state that she had considered the medical evidence in accordance with the

regulations and applicable Social Security Ruling that discuss the weight to give a

treating doctor’s opinion. See generally SSR 96-2p, 1996 WL 374188, at *5

(requiring ALJ to be “sufficiently specific to make clear to any subsequent

reviewers the weight [given] to the treating source’s medical opinion and the

reasons for that weight”). In accordance with our general practice, we take her at

her word. See Hackett v. Barnhart, 395 F.3d 1168, 1173




medical record.

                                        -9-
(10th Cir. 2005) (“[O]ur general practice . . . is to take a lower tribunal at its

word when it declares that it has considered a matter.”).

      Upon review, we conclude the ALJ appropriately gave Dr. Babb’s opinion

no weight. The ALJ’s reasons for declining to give controlling weight to

Dr. Babb’s opinion also support her giving the opinion no weight. See Oldham v.

Astrue, 509 F.3d 1254, 1258 (10th Cir. 2007) (noting that ALJ need not discuss

all six factors). Dr. Babb’s opinion lacked consistency with the record as a

whole. He did not treat Mr. Payton for his back or foot and ankle problems over a

long and continuous period of time and did not begin treating him for nearly a

year after the back injury and nearly two years after the foot and ankle injury.

Also, his disability opinion contrasts with his treatment notes and history. Thus,

because the record supports giving Dr. Babb’s opinion no weight, a remand for

further proceedings is not warranted.

      Mr. Payton also contends the ALJ failed to identify what weight, if any, she

gave to Dr. Rosson’s opinion that Mr. Payton could only perform sedentary work

after receiving vocational training. Dr. Rosson, however, did not state that

Mr. Payton could do only sedentary work. He indicated that Mr. Payton needed

to do work that was more sedentary than the heavy work he had been performing.

      Finally, Mr. Payton argues that the ALJ erred by failing to re-contact

Dr. Babb for clarification. Because he makes this argument for the first time on




                                          -10-
appeal, we will not consider it. See Crow v. Shalala, 40 F.3d 323, 324 (10th Cir.

1994).

         B. Residual Functional Capacity Determination

         Mr. Payton also argues that his RFC, with limited ability to sit, stand, and

lift, prevents him from engaging in substantial gainful activity. He points out that

when the vocational expert (VE) responded to a hypothetical question including

these three limitations from Dr. Babb’s Medical Source Statement, the VE

concluded Mr. Payton could not perform any jobs. We, however, have concluded

that the ALJ properly afforded no weight to Dr. Babb’s opinion and instead gave

weight to the supported medical records of Drs. Richards, Rosson, and Stow,

which establish Mr. Payton’s ability to perform light work and do not establish

sitting, standing, and lifting limitations. Thus, we conclude that substantial

evidence supports the ALJ’s determination that Mr. Payton has the RFC to

perform the various light duty jobs identified by the VE.

         C. Credibility Analysis

         Mr. Payton argues that the ALJ failed to make a proper credibility

assessment and should have found him to be credible. He contends the ALJ did

not properly evaluate his complaints of pain and based her determination on

mistaken observations of the medical record. “Credibility determinations are

peculiarly the province of the finder of fact, and we will not upset such




                                           -11-
determinations when supported by substantial evidence.” Kepler v. Chater,

68 F.3d 387, 391 (10th Cir. 1995) (internal quotation marks omitted).

      The ALJ determined that Mr. Payton’s medically determinable impairments

could reasonably cause the symptoms he alleges, including pain, but the ALJ also

determined that his statements concerning their intensity, persistence, and limiting

effects were exaggerated and therefore not credible because they were

inconsistent with her RFC assessment. In so determining, the ALJ found that

(1) the medical evidence set forth above did not support Mr. Payton’s assertion

that he is unable to work; (2) his daily performance of household chores and

activities was inconsistent with his complaints of pain; (3) he had never been

hospitalized and had never undergone surgery for his severe impairments; (4) at

the hearing, his gait and walking speed were normal, and he moved, sat, and rose

with no signs of distress; (5) although he has some mild to moderate pain, no

medical evidence supports his allegation that he must lie down throughout the day

and therefore cannot work; and (6) although he complains of side effects from his

medication, the record does not establish a significant or ongoing problem, and he

never reported any side effects to his physicians.

      Our review of the record convinces us that substantial evidence supports

the ALJ’s credibility determination. The ALJ properly evaluated Mr. Payton’s

complaints of pain and based her credibility decision upon the medical record.




                                        -12-
                       III. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the district court.

                                           ENTERED FOR THE COURT



                                           Scott M. Matheson, Jr.
                                           Circuit Judge




                                -13-
