                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          OCT 20 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    TED E. MANGOLD,

                Plaintiff-Appellant,

    v.                                                   No. 99-3090
                                                  (D.C. No. 97-CV-1091-JTM)
    KENNETH S. APFEL, Commissioner,                        (D. Kan.)
    Social Security Administration,

                Defendant-Appellee.




                            ORDER AND JUDGMENT            *




Before ANDERSON , BARRETT , and BRISCOE , Circuit Judges.



         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      This order and judgment is not binding precedent, except under the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.
      Plaintiff Ted E. Mangold appeals the district court’s order affirming the

Commissioner’s denial of social security disability benefits at step five of the

sequential evaluation process.    See 20 C.F.R. §404.1520; Williams v. Bowen ,

844 F.2d 748, 750-52 (10th Cir. 1988) (describing five-step evaluation process

in detail). We have jurisdiction pursuant to 42 U.S.C. § 405(g) and 28 U.S.C.

§ 1291 and affirm.

      We review the Commissioner’s decision for substantial evidence in the

record and to ascertain whether the Commissioner applied the correct legal

standards. See Hawkins v. Chater , 113 F.3d 1162, 1164 (10th Cir. 1997). “[W]e

neither reweigh the evidence nor substitute our judgment for that of the agency.”

Casias v. Secretary of Health & Human Servs.     , 933 F.2d 799, 800 (10th Cir.

1991). “Substantial evidence is ‘such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.’”    Soliz v. Chater , 82 F.3d 373,

375 (10th Cir. 1996) (quoting    Richardson v. Perales , 402 U.S. 389, 401 (1971)

(further quotation omitted)).

      Plaintiff was born in 1956, is a high school graduate, has two years of

vocational training, and, on the day of the administrative law judge’s (ALJ)

decision on review here, was forty years old. In 1991, plaintiff applied for social

security disability benefits pursuant to Title II of the Social Security Act.

He claimed disability based on carpal tunnel syndrome (connected to a 1988


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work-place accident), depression, seizure disorder, and reflex sympathetic

dystrophy.

      The Commissioner denied plaintiff’s application at the administrative level

and again on reconsideration. After a de novo hearing, the ALJ issued a partially

favorable decision, finding plaintiff disabled by the combination of his

impairments from April 26, 1988 through November 11, 1991, but not thereafter.

The ALJ concluded that, after November 11, 1991, while plaintiff was not able to

return to his past work as a flight line mechanic and hydraulic plumber, he

retained the residual functional capacity (RFC) to undertake limited sedentary and

light exertional work. Based on the testimony of a vocational expert (VE), the

ALJ found that, even with only limited use of his right arm, plaintiff could work

as a ticket seller, order clerk, security monitor, photo finisher, or doorkeeper, jobs

that exist in significant numbers in Kansas and the national economy.

      On review, the district court reversed and remanded for further

consideration of the side effects of plaintiff’s medication, which allegedly make

him drowsy and require him to sleep during the day. On remand, the ALJ held

a supplemental hearing limited to the medication issue, at which plaintiff and

a medical expert testified. Plaintiff, a self-described “night person,” testified that

he goes to sleep around 1:00 a.m. and rises at 9:00 a.m. He further testified that




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he rests and/or sleeps approximately four hours during the day in two hour

increments after taking his medication.

      The medical expert, a neurologist, testified that plaintiff’s medication

would not cause drowsiness when taken in normal dosages.    1
                                                                Although the

medical expert testified that a combination of drugs can exaggerate mild side

effects, he opined that the combination of drugs--at the levels plaintiff was

taking--would not cause his described drowsiness. The medical expert questioned

why plaintiff was continuing to take anti-seizure and muscle relaxant medication.

      Thereafter, the ALJ confirmed the Commissioner’s initial determination,

concluding that plaintiff “has no medically determinable impairment regarding

significant sleepiness/lethargy.” Appellant’s App., Vol. II at 512. The ALJ

reviewed plaintiff’s medical history in detail and found that his testimony

concerning pain and limitations was disproportionate to the medical evidence in

the record and not credible. In doing so, the ALJ set forth and considered the

relevant factors as required under 20 C.F.R. § 404.1529. In addition, the ALJ did

not credit plaintiff’s testimony that his increased fatigue precluded work. The

ALJ acknowledged but explicitly rejected plaintiff’s treating physician’s opinion

that he was completely disabled.


1
      At the time of the hearing, plaintiff was taking Dilantin for seizures, Esgic
Plus for pain, and Soma and Ultram (muscle relaxants). At earlier relevant times,
he was also taking Flexeril and Procardia.

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       Plaintiff alleges on appeal that the ALJ’s decision, which became the

Commissioner’s final determination of nondisability, is erroneous because: (1) the

ALJ failed to follow the treating physician rule; (2) the ALJ arbitrarily rejected

his subjective complaints of pain; and (3) the ALJ’s denial of benefits is not

supported by substantial evidence.

       A treating physician may proffer an opinion about the claimant’s

impairments and the Commissioner will accord “controlling weight to that type

of opinion if it is well supported by clinical and laboratory diagnostic techniques

and if it is not inconsistent with other substantial evidence in the record.”

Castellano v. Secretary of Health & Human Servs.        , 26 F.3d 1027, 1029 (10th Cir.

1994). A treating physician may also opine that a claimant is totally disabled,

however, “[t]hat opinion is not dispositive because final responsibility for

determining the ultimate issue of disability is reserved to the Secretary.”      Id. ;

see also 20 C.F.R. § 404.1527(e)(2). “The ALJ must give specific, legitimate

reasons for disregarding the treating physician’s opinion that a claimant is

disabled.” Goatcher v. United States Dep’t of Health & Human Servs.           , 52 F.3d

288, 290 (10th Cir. 1995).

       Dr. Charles Marable, a neurologist, has been treating plaintiff since 1989

and has consistently maintained that plaintiff is completely disabled. In August




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1996, shortly before the supplemental hearing, Dr. Marable stated in a letter to

plaintiff’s attorney as follows:

       With [the prescribed] medications and his above medical problem, he
       is 100% disabled due to the fact that he is not able to use his right
       hand and has significant pain and problems with it, requiring all
       these above medications. With the use of these medications it would
       render him quite sedated and [he] would have difficulty working and
       obtaining a good, cognitive view of his situation in the work force.

Appellant’s App., Vol. II at 620.

       Substantial evidence in the record supports the ALJ’s rejection of the

treating physician’s opinion. The ALJ accorded Dr. Marable’s opinion

appropriate weight in light of the medical record. Throughout the course of his

treatment, plaintiff has been examined by a number of physicians. The ALJ’s

conclusion that plaintiff has not been disabled since November 11, 1991, is

supported by the examining physicians’ contrary conclusions which outweigh

Dr. Marable’s opinion.    See Goatcher , 52 F.3d at 290 (reiterating principle that

when inconsistent with treating physician’s opinion, it is the ALJ’s task to

examine other physicians’ reports and adduce if they outweigh that of the treating

physician, not vice versa);   see also 20 C.F.R. § 404.1527(d)(4) (“Generally, the

more consistent an opinion is with the record as a whole, the more weight [the

Commissioner] will give to that opinion.”).

       In addition, the ALJ’s decision not to credit plaintiff’s testimony as to his

pain and limitations, as well as his testimony that medication-induced fatigue

                                           -6-
prevents him from working, is likewise supported. In particular, the ALJ

articulated the reasons for doubting plaintiff’s testimony and linked his credibility

determination to the evidence.    See Kepler v. Chater , 68 F.3d 387, 391 (10th Cir.

1995) (requiring link between evidence and credibility determination). Hence,

we will not disturb these findings on appeal.     See Diaz v. Secretary of Health &

Human Servs. , 898 F.2d 774, 777 (10th Cir. 1990) (“Credibility determinations

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

determinations when supported by substantial evidence.”). Accordingly, the

Commissioner’s determination is supported by substantial evidence in the record.

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

is AFFIRMED.



                                                       Entered for the Court



                                                       James E. Barrett
                                                       Senior Circuit Judge




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