                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                          SEP 4 1997
                             FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    BILLY W. JAMES,

                Plaintiff-Appellant,

    v.                                                No. 96-7115
                                                  (D.C. No. CIV-95-166)
    JOHN J. CALLAHAN, Acting                           (E.D. Okla.)
    Commissioner of Social Security, *

                Defendant-Appellee.




                             ORDER AND JUDGMENT **



Before BRORBY, BARRETT, and MURPHY, Circuit Judges.




*
       Effective March 31, 1995, the functions of the Secretary of Health and
Human Services in social security cases were transferred to the Commissioner of
Social Security. P.L. No. 103-296. Pursuant to Fed. R. App. P. 43(c), John J.
Callahan, Acting Commissioner of Social Security, is substituted for Donna E.
Shalala, Secretary of Health and Human Services, as the defendant in this action.
Although we have substituted the Commissioner for the Secretary in this caption,
in the text we continue to refer to the Secretary because she was the appropriate
party at the time of the underlying decision.
**
      This order and judgment is not binding precedent, except under the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.
      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. 34.1.9. The case is therefore

ordered submitted without oral argument.

      Plaintiff-appellant Billy James appeals the Commissioner’s denial of his

application for social security disability benefits. Because we find that the

decision of the Administrative Law Judge (ALJ) is supported by substantial

evidence, and that the law was correctly applied, we affirm.

      Plaintiff filed an application for disability benefits in October 1990, listing

proximal tachycardia and hypertension as his disabling conditions. Appellant’s

App. at 25. A previous agency determination of May 14, 1984, finding plaintiff

not disabled was not pursued on appeal; it thus became res judicata as to the

question of any disability before that time. See McCoy v. Chater, 81 F.3d 44, 46

(6th Cir. 1995), cert. denied, 116 S. Ct. 2527 (1996). Plaintiff’s last insured date

is December 31, 1989. Thus, the issue is whether substantial evidence supports

the ALJ’s conclusion that plaintiff was not disabled between May 15, 1984 and

December 31, 1989, because he retained the residual functional capacity to

perform his past relevant work as an oil and gas head pumper.




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      “This court reviews the [Commissioner’s] decision to determine only

whether his findings are supported by substantial evidence and whether the

[Commissioner] applied correct legal standards . . . .” Hargis v. Sullivan,

945 F.2d 1482, 1486 (10th Cir. 1991). “Substantial evidence is such relevant

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

Id. We will not reweigh the evidence or substitute our judgment for that of the

Commissioner. Id.

      "Disability" is defined in the Social Security Act as the "inability to engage

in any substantial gainful activity by reason of any medically determinable

physical or mental impairment . . . ." 42 U.S.C. § 423(d)(1)(A). The Social

Security Act further provides that “[a]n individual shall be determined to be under

a disability only if his physical or mental impairment or impairments are of such

severity that he is not only unable to do his previous work but cannot, considering

his age, education, and work experience, engage in any other kind of substantial

gainful work which exists in the national economy . . . ." 42 U.S.C.

§ 423(d)(2)(A).

      The Social Security Act provides that, in considering whether a person is

disabled under Title II,

      [a]n individual’s statement as to pain or other symptoms shall not
      alone be conclusive evidence of disability . . . ; there must be
      medical signs and findings, established by medically acceptable
      clinical or laboratory diagnostic techniques, which show the

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      existence of a medical impairment . . . reasonably . . . expected to
      produce the pain or other symptoms alleged and which . . . would
      lead to a conclusion that the individual is under a disability.

42 U.S.C. § 423(d)5(A).

      Plaintiff makes several related arguments to establish error in the ALJ’s

determination. The evidence relied on with regard to plaintiff’s heart condition,

however, comes down to two basic sources: (1) a form statement of disability,

completed by plaintiff’s treating physician, Dr. Rose, and prepared for submission

to an insurance company apparently in connection with plaintiff’s claim for

disability insurance, and (2) plaintiff’s own testimony.

      The ALJ discounted Dr. Rose’s assessment of plaintiff’s disability and gave

extensive reasons for doing so. We find no error in his conclusion. A treating

physician is free to offer an opinion about a claimant’s condition and about the

nature and severity of any impairments. See Castellano v. Secretary of Health &

Human Servs., 26 F.3d 1027, 1029 (10th Cir. 1994). However, controlling weight

will be given to such an opinion only “if it is well supported by clinical and

laboratory diagnostic techniques and if it is not inconsistent with other substantial

evidence in the record.” Id. Additionally, because the determination of disability

is the ultimate responsibility of the Commissioner, a treating physician’s opinion

as to a claimant’s disability is not dispositive. See id. If a treating physician’s

opinion is not supported by specific findings, it may be rejected, see id., as long


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as specific and legitimate reasons for doing so are given. See Washington v.

Shalala, 37 F.3d 1437, 1440 (10th Cir. 1994). Our review of the record reveals

no objective clinical or laboratory findings to support any of Dr. Rose’s

conclusions. There is thus substantial evidence supporting the ALJ’s decision to

disregard the opinion of plaintiff’s treating physician. Moreover, the ALJ

properly and thoroughly explained his reasons for discounting this evidence, and

we will not reiterate that analysis here. See Appellant’s App. at 129-130.

      With respect to the condition of plaintiff’s right knee during the relevant

period, the ALJ correctly observed that there is no evidence of disabling knee

problems prior to September 1990, nine months after plaintiff’s insured status

expired. We also note, parenthetically, that plaintiff did not even list his knee

problem as a source of disability in his initial application and raised the issue only

at the time of the supplemental hearing upon a remand from the district court.

      Plaintiff had a complete knee replacement in October 1990, and, while we

agree with plaintiff that it is unlikely his knee deteriorated in the relatively short

time between December 1989 and October 1990 to such an extent that this

aggressive procedure was necessary, we also note that it is plaintiff’s burden to

prove that his knee problem was disabling before December 31, 1989. There is

no such evidence in this record. We have no doubt that plaintiff experienced knee

pain prior to the expiration of his insured status. However, “[d]isability requires


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more than mere inability to work without pain. To be disabling, pain must be so

severe, by itself or in conjunction with other impairments, as to preclude any

substantial gainful employment.” Gossett v. Bowen, 862 F.2d 802, 807 (10th Cir.

1988). While there is a retrospective opinion by a treating physician in the record

that plaintiff probably had degenerative changes in his right knee during the

relevant time period, there is no evidence in the record that plaintiff’s knee pain,

either alone or in combination with his heart problem, had reached a disabling

degree of severity before December 31, 1989. Plaintiff’s own testimony, without

more, is insufficient to establish such disability. Musgrave v. Sullivan, 966 F.2d

1371, 1376 (10th Cir. 1992).

      Plaintiff argues that the vocational expert (VE) who testified at his hearing

should have been asked about plaintiff’s ability to tolerate stress. We disagree.

The only evidence in the record that plaintiff suffered from the effects of stress is

a box checked on the form filled out by Dr. Rose, mentioned above. This

conclusion is unsupported by objective findings and was properly rejected by the

ALJ. Because plaintiff’s allegation of a stress-related impairment was not

supported by substantial evidence, the ALJ was under no obligation to include

that alleged impairment in the hypothetical posed to the VE. See Jordan v.

Heckler, 835 F.2d 1314, 1317 (10th Cir. 1987).




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      Plaintiff’s contention that the ALJ overstepped his bounds in concluding

that plaintiff is capable of light work is without merit. It is the duty of the ALJ to

determine the residual functional capacity of a claimant. See Williams v. Bowen,

844 F.2d 748, 751-52 (10th Cir. 1988) (assigning to decision maker the task of

determining the type of work, based on physical requirements, the claimant can

perform). The ALJ properly considered all the evidence of record here and his

conclusion that plaintiff can engage in light work is supported by substantial

evidence. Further, the hypothetical posed to the VE properly included factors and

characteristics supported by the evidence and no more.

      Plaintiff also argues that it was error for the ALJ to conclude that he could

return to his past relevant work without some allowance for his need to avoid

heights or dangerous machinery. We note that the evidence establishes that

plaintiff had been taking regular and carefully monitored dosages of medication to

control his hypertension and tachycardia. He had not had an episode of syncope

since 1985. To the extent that the ALJ’s conclusion implies no need for plaintiff

to avoid heights and dangerous machinery, we find that conclusion supported by

substantial evidence. We further note that there is no evidence in the record to

establish that the job of head pumper would be compromised by a need to abide

by height restrictions and a need to avoid dangerous machinery.




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      Plaintiff’s position that he should be disabled as per the regulations set out

at Rule 201.1, Table No. 1, Part 404, subpt. p, Appendix 2 of 20 C.F.R., Ch. III

(“the grids”), is without merit. The ALJ’s conclusion that plaintiff can engage in

light work is supported by substantial evidence, making that regulation

inapplicable.

      Finally, the ALJ’s determination finding plaintiff’s allegation of disabling

pain to be not fully credible is supported by the record and properly discussed and

analyzed by the ALJ. We accord deference to an ALJ’s credibility determination,

see Casias v. Secretary of Health & Human Servs., 933 F.2d 799, 801 (10th Cir.

1991), and will not reverse on the basis of this record.

      The judgment of the United States District Court for the Eastern District of

Oklahoma is AFFIRMED.



                                                     Entered for the Court



                                                     James E. Barrett
                                                     Senior Circuit Judge




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