                      UNITED STATES COURT OF APPEALS
Filed 10/28/96
                            FOR THE TENTH CIRCUIT



    CAROLYN CALDRON,

                Plaintiff-Appellant,

    v.                                                 No. 96-5078
                                                   (D.C. No. 95-C-217-J)
    SHIRLEY S. CHATER,                                 (N.D. Okla.)
    Commissioner, Social Security
    Administration, *

                Defendant-Appellee.




                            ORDER AND JUDGMENT **




*
       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), Shirley S.
Chater, 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 the 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      This order and judgment is not binding precedent, except under the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.
Before BALDOCK and BRISCOE, Circuit Judges, and LUNGSTRUM, *** District
Judge.




      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) and 10th Cir. R. 34.1.9. The case is

therefore ordered submitted without oral argument.

      Plaintiff Carolyn Caldron appeals from an order of the district court 1

affirming the Secretary’s determination that she is not entitled to disability

benefits. We affirm.

      "We review the Secretary's decision to determine whether her factual

findings are supported by substantial evidence in the record viewed as a whole

and whether she applied the correct legal standards. Substantial evidence is such

relevant evidence as a reasonable mind might accept as adequate to support a

conclusion." Castellano v. Secretary of Health & Human Servs., 26 F.3d 1027,

1028 (10th Cir. 1994)(citations and quotation omitted).

***
       Honorable John W. Lungstrum, District Judge, United States District Court
for the District of Kansas, sitting by designation.
1
       The parties agreed to have this case heard pursuant to 28 U.S.C. § 636(c).
Therefore, the appeal is properly taken from the magistrate judge's order. We
refer to this order as being issued by the district court.

                                         -2-
      Ms. Caldron initially claimed disability due to a herniated disc with

radiculopathy, arthritis, bronchitis, and plantar fascitis. At the hearing, she stated

that she had voluntarily entered a Methadone treatment center because she was

worried she was addicted to her prescription pain medication. The fact that she

had been evaluated by a mental health specialist was also raised at the hearing.

Ms. Caldron had not claimed any disabling addiction or mental impairment prior

to the hearing.

      The administrative law judge (ALJ) determined at step five of the five-step

sequential process, see Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir.

1988), that Ms. Caldron could perform sedentary work. Ms. Caldron asserts that

this determination is in error because the ALJ did not properly evaluate either her

pain or her mental impairment. She also argues the ALJ ignored the treating

physician rule and the standards for sedentary work. Finally, she asserts the ALJ

did not tell the vocational expert (VE) all of her unrebutted medical impairments

and ignored the VE’s opinion that she could not work.

      Ms. Caldron argues the ALJ improperly evaluated her complaints of

disabling pain. She does not appear to argue that the ALJ failed to follow the

analysis set forth in Luna v. Bowen, 834 F.2d 161 (10th Cir. 1987) for evaluating

pain, but rather argues because (1) she is in a Methadone program for treatment of




                                          -3-
a drug addiction, (2) the Methadone relieves her pain in part, and (3) she receives

a very high dosage of Methadone, she has proved her pain is disabling.

      The record shows that Ms. Caldron entered the Methadone treatment

program voluntarily because she was worried she was taking too much of her

prescription pain medication and, having read about the possibility of addiction

from prescription medications, she decided to seek treatment. The record does

not support, and Ms. Caldron does not allege, that any addiction she may suffer is

disabling. Instead, Ms. Caldron contends that her belief that she was addicted to

prescription drugs proves that her pain is disabling. Ms. Caldron points to no

evidence in the record that supports her assertion. In fact, it is generally accepted

that persons may become addicted to prescription drugs regardless of the level of

pain experienced. Nothing in the record supports Ms. Caldron’s assertion that she

is receiving high doses of Methadone or that, if so, the reason for the high dosage

is her extreme pain.

      The record supports the ALJ’s determination of Ms. Caldron’s credibility as

to the severity of her pain. “[A] claimant's subjective complaint of pain is by

itself insufficient to establish disability." Talley v. Sullivan, 908 F.2d 585, 587

(10th Cir. 1990)(quotation omitted). Several physicians have noted that objective

medical evidence does not support Ms. Caldron’s claims of disabling pain. See R.

Vol. I at 176 (Dr. Fielding noted in 1992 that she did not appear to be in acute


                                          -4-
distress and stood and walked with a relatively normal gait); 237 (Dr. Hendricks

noted that the physical examination did not suggest objective injury as severe as

the complaints); 247 (Dr. Dandridge noted that his examination failed to disclose

objective findings to substantiate the subjective complaints); 277 (Dr. Fielding

noted in 1994 that while she acted as if experiencing pain, her back was

“unremarkable to inspection”).

      Further, a claimant’s inability to work pain-free is not sufficient reason to

support a finding of disability. Gossett v. Bowen, 862 F.2d 802, 807 (10th Cir.

1988). While Ms. Caldron undoubtedly does experience pain and may have a low

pain threshold, the ALJ’s conclusion that her pain is not disabling is supported by

the record.

      Ms. Caldron also asserts the ALJ improperly evaluated her mental

impairment. Ms. Caldron has not received any psychiatric treatment. She did

have one evaluation. The MMPI showed some results consistent with those found

among individuals with classic conversion symptoms. No diagnosis was made

that she suffers from conversion syndrome or that her conversion symptoms

impacted her ability to work. In fact, the report concluded that individuals with

conversion symptoms “are likely to continue functioning but at a reduced level of

efficiency.” R. Vol. I at 283. The determination that Ms. Caldron showed some




                                         -5-
moderate elevations on the anxiety scale also does not indicate disability due to

anxiety.

      Ms. Caldron argues the ALJ ignored the treating physician rule because her

treating physician stated that she was disabled and the ALJ rejected that opinion

without setting forth specific reasons. Ms. Caldron’s treating physician, Dr.

Black, did state that Ms. Caldron would be disabled until she had corrective

surgery on her back. Id. at 178. More specifically, however, he stated both that

she was “at least temporarily, disabled from the type of work she does,” id. at

180, and was limited in her ability to work, id. at 232. He restricted her to ten

pounds of lifting, pulling, or pushing. Id. at 182, 185, 232. Dr. Black’s one

statement that she is disabled is clarified by his other statements, made before and

after the date of that statement.

      Dr. Black recommended corrective surgery which Ms. Caldron has not had.

The only reason contained in the record for not having surgery is Ms. Caldron’s

statement to Dr. Black indicating she could not have surgery until litigation

connected with her worker’s compensation claim had been completed. Id. at 180.

A claimant’s failure to follow a prescribed course of treatment which could

restore the ability to work is grounds to deny benefits. 20 C.F.R. § 404.1530(b);

Pacheco v. Sullivan, 931 F.2d 695, 697-98 (10th Cir. 1991).




                                         -6-
      Ms. Caldron also asserts the ALJ ignored the standards for sedentary work

because he did not establish that she could sit for prolonged periods of time. The

ruling addressing sedentary work states that a claimant must be able to sit for

about six hours of an eight hour workday. Soc. Sec. Rul. 96-9p, 1996 WL

374185, at *3 (Jul. 2, 1996). A claimant who must alternate sitting with standing

and/or walking may still be able to perform sedentary work. Id. at *6. Here, the

VE opined that Ms. Caldron could work with the alternating sitting, standing, and

walking restrictions found by the ALJ.

      Ms. Caldron asserts the ALJ did not tell the VE of all her unrebutted

medical impairments in formulating the hypothetical question because he did not

mention her drug addiction, conversion disorder, and anxiety. In determining

whether a claimant can return to a past line of work, the ALJ must include in his

hypothetical to the VE only those impairments he accepts as true. See Talley, 908

F.2d at 588. We have already affirmed the ALJ’s determination that the record

does not show that Ms. Caldron’s possible drug addiction, conversion symptoms,

and anxiety had any significant impact on her ability to work.

      Finally, Ms. Caldron argues that the ALJ ignored the VE’s opinion that she

could not work. The VE proffered this opinion upon being asked if Ms. Caldron

would be able to work if her testimony were accepted as fully credible and were




                                         -7-
substantially verified by the medical evidence. Clearly, the ALJ did not find all

of Ms. Caldron’s testimony credible.

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

of Oklahoma is AFFIRMED.



                                                    Entered for the Court



                                                    John W. Lungstrum
                                                    District Judge




                                         -8-
