                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                    February 22, 2008
                     UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                       Clerk of Court
                            FOR THE TENTH CIRCUIT




    WENDY L. TAYLOR,

                Plaintiff-Appellant,

    v.                                                   No. 07-4165
                                                 (D.C. No. 2:06-CV-908-DAK)
    MICHAEL J. ASTRUE,                                     (D. Utah)
    Commissioner of Social Security,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before BRISCOE, BALDOCK, and LUCERO, Circuit Judges.



         Plaintiff Wendy Taylor appeals from a district court order affirming the

Commissioner’s decision denying her application for Social Security Disability

benefits. She applied for benefits in January 2004, claiming an inability to work

since June 2002 due to severe lower-back, hip, and joint pain caused by



*
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
degenerative disc disease and osteoporosis. The Social Security Administration

denied her application initially and on reconsideration, but granted Ms. Taylor’s

request for a de novo hearing before an administrative law judge (“ALJ”), which

took place on January 30, 2006.

      The ALJ concluded that Ms. Taylor was not disabled within the meaning of

the Social Security Act. Although he found that she suffered from degenerative

disc disease of the lumbar spine, which he concluded was a severe impairment, he

nonetheless determined that she retained the residual functional capacity (“RFC”)

to perform the full range of light and sedentary unskilled work with some

important limitations, which we discuss below. On appeal, Ms. Taylor argues the

ALJ did not apply the correct legal standards in analyzing the opinions of her

orthopedic surgeon, Dr. Leslie Harris. Had the ALJ given proper weight to

Dr. Harris’s opinion regarding her functional limitations, she argues, he would

have concluded that Ms. Taylor is completely disabled. She also accuses the ALJ

of relying too heavily on his own observations during the hearing and argues

generally that the ALJ’s RFC determination was not supported by substantial

evidence.

      We have jurisdiction over this appeal under 42 U.S.C. § 405(g). Because

we conclude the ALJ applied the correct legal standards in evaluating the medical

evidence and that substantial evidence supports his decision, we AFFIRM.




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                                   I. Background

A. Medical Evidence

      Because Ms. Taylor argues that the ALJ’s RFC assessment is unsupported

by medical evidence, we discuss the medical records relating to her back

condition in some detail. The record reveals that she began experiencing back

pain sometime in 2002 after she left a desk job and began working at the customer

service deli department at Wal-Mart. Her family doctor, Robert Williams,

referred her to a sports medicine doctor, Paul Pilgram, who diagnosed “Grade II

spondylolisthesis at L5-S1 with secondary spinal stenosis,” “disc herniation at

T10-T11 with mild cord compression,” and “disc bulge L4-5 without thecal sac

compression.” App. at 117.

      In October 2002, Dr. Pilgram referred Ms. Taylor to Dr. Harris, an

orthopedic surgeon. Since extensive conservative treatment had failed to alleviate

Ms. Taylor’s back pain, Dr. Harris recommended surgery, and on May 19, 2003,

he performed an L4-L5 and L5-S1 decompression and fusion. Ms. Taylor

reported having some pain immediately after the surgery, but by July 18, 2003,

Dr. Harris’s notes indicate that she was “actually doing quite well.” Id. at 164.

By September, he reported that her back was non-tender, and straight leg raising

tests were negative. By November 2003, however, Ms. Taylor’s pain had

resurfaced. Dr. Harris’s notes indicate that she was doing “reasonably well,” but

that she was experiencing “occasional soreness in her back” and “poor sitting

                                         -3-
tolerance” plus “occasional numbness and tingling in her feet.” Id. On

examination, her back was tender over the sacral screw areas bilaterally and

x-rays revealed that “[t]he left pedicle screw bar . . . appear[ed] prominent

distally.” Id. Dr. Harris advised Ms. Taylor to continue with her medication

(Lortab, Soma, and Neurontin) and return in two months for repeat x-rays.

      Over the next six months, Ms. Taylor’s back pain persisted. She did,

however, experience some relief with medication, particularly injections, and she

lost weight because she was able to exercise on a treadmill. On May 4, 2004, five

months after she filed her disability application, she was examined by Dr. Brian

Staley, an agency consulting physician. She reported to Dr. Staley that “she

continue[d] to have chronic aching back pain which is present all of the time.”

Id. at 142. But she also told him that she could perform her own activities of

daily living without assistance; that she could do the dishes; lift and carry

approximately 20 pounds; climb a flight of stairs; and drive a car. She said that

she could not, however, vacuum, sweep, or mop; sit for more than 20 minutes at a

time; stand for more than 60 minutes; or carry laundry up a flight of stairs.

      Dr. Staley observed that Ms. Taylor was “in no acute distress” and was

“using no supportive devices to ambulate.” Id. at 143. His musculoskeletal exam

revealed “2+ tenderness to palpation of the left SI joint area, but . . . no apparent

tenderness in the vertebrae [and] [n]o muscle spasms.” Id. at 144. He also noted

that she had “mild difficulty” negotiating the exam table and that despite her

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ability to sit for 20-30 minutes, “she appeared to be somewhat uncomfortable.”

Id. Ultimately, Dr. Staley concluded that Ms. Taylor had “put forth a good effort

on the exam.” Id. at 145. He indicated he would need her bone scan results and

recent x-rays to fully understand the current state of her lower back, including the

effects of osteoporosis. His general impression was as follows:

      She does appear to have pain to palpation of the left SI joint area.
      She seemed uncomfortable while sitting. She has good [range of
      motion] in her spine, and there is no evidence of nerve root
      impingement. She is steady on her feet, and she does not require a
      supportive device to ambulate.

Id. He further noted that he did not detect any strength deficits. He did not,

however, offer an opinion regarding the functional limitations imposed by

Ms. Taylor’s impairments.

      Two weeks later on May 19, 2004, another agency consulting physician,

Dr. Burrows, completed an RFC questionnaire based on his review of the medical

records. His most notable conclusion was that Ms. Taylor could stand, walk,

and/or sit for a total of six hours in an eight-hour work day. He also noted that

“[t]he severity or duration of [her] symptom(s), in [his] judgment, [was]

disproportionate to the expected severity or expected duration on the basis of

[Ms. Taylor’s] medically determinable impairment(s).” Id. at 151. This opinion

conflicts directly with a subsequent opinion of Dr. Harris. In a June 8, 2004,

letter, Dr. Harris stated that Ms. Taylor “ha[d] been unable to work for the past 11

months and most likely [would] be unable to work for the next year.” Id. at 160.

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As a basis for this conclusion, he cited the persistent back pain that she

experienced “about the sacral screws” implanted during her surgery, noting that

she could not “tolerate sitting for more than 15 or 20 minutes at a time.” Id. He

opined that she likely would need a second surgery to remove the hardware. Id.

       Dr. Harris expounded upon this opinion in an October 7, 2004, RFC

questionnaire. There he indicated that Ms. Taylor could sit and stand for only 30

minutes at a time for a total of two hours each in an eight-hour work day.

Moreover, he indicated that she would need to lie down or sit in a recliner for two

hours a day and likely would be absent from work three or four times a month due

to her impairments. Dr. Harris further concluded, in direct conflict with Dr.

Burrows, that Ms. Taylor’s “impairments . . . [were] reasonably consistent with

the symptoms and functional limitations described in [his] evaluation.” Id. at

171.

       There is no evidence that Dr. Harris actually examined Ms. Taylor between

July 2004 and May 2005. However, on May 5, 2005, he performed a second

surgery to remove the hardware in her back. The reports following this second

surgery mimic those from before. Ms. Taylor continued to experience some back

pain, particularly with prolonged sitting, but the pain was alleviated to some

degree with local injections. The record contains a second RFC questionnaire

from Dr. Harris dated January 6, 2006, bearing the same conclusions that he

reached in October 2004. He again stated that Ms. Taylor would need to lie down

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or recline for two hours in an eight-hour work day and that she could sit and stand

or walk for only 30 minutes at a time. In this second questionnaire, however,

Dr. Harris opined that Ms. Taylor had the ability to sit and to stand or walk for a

total of four hours each in an eight-hour work day, as compared to the two-hour

limitation that he imposed before.

B. The ALJ’s Decision

      The ALJ concluded at step four of the sequential evaluation process, see

Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988), that the medical

evidence did not support a finding of disability, particularly in light of

Ms. Taylor’s testimony and demeanor at the hearing. Most importantly, with

respect to this appeal, the ALJ concluded that Dr. Harris’s opinion was not

worthy of controlling weight. More specifically, he accepted his opinion

concerning “the medical issues relating to the nature and severity of the

claimant’s impairments” but not his opinion concerning Ms. Taylor’s residual

functional capacity or ability to work, matters that the ALJ noted were expressly

reserved to the Commissioner. App. at 32. He went on to state: “Dr. Harris’

statements have been carefully considered but are not given ‘controlling weight’

as they indicate extreme limitations that are unsupported by objective evidence

and inconsistent with the claimant’s activities of daily living.” Id.

      The ALJ concluded that Ms. Taylor’s activities of daily living were not

significantly restricted as a result of her back condition. Referring to

                                          -7-
Ms. Taylor’s testimony, the ALJ noted that she was able to travel for relatively

long periods of time without lying down and that she was able to do light

housework, tend to her personal needs, attend church, and prepare church lessons.

The ALJ further found, based on the hearing testimony, that the side effects of

Ms. Taylor’s medication were not so disruptive as to prevent her from performing

work activities in any significant manner. Finally, he found that Ms. Taylor

“betrayed no real evidence of pain or discomfort while testifying at the hearing.”

Id. In this regard, he noted that Ms. Taylor declined the opportunity to stand

during her testimony and instead sat for about one hour without a break.

      Based on the medical and non-medical evidence, the ALJ concluded that

Ms. Taylor had the RFC to perform the full range of light and sedentary unskilled

work, with several important limitations. As relevant here, those limitations

included a prohibition on jobs requiring the following: (i) standing or walking

more than 45 minutes at a time, or more than six hours in an eight-hour workday;

(ii) sitting more than 45 minutes at a time, or more than six hours in an eight-hour

workday; and (iii) sitting, standing, or walking more than 15-20 minutes at a time.

The ALJ referred to this third limitation as a “sit/stand option,” which, he held,

must be available to Ms. Taylor “on bad days.” Id. at 30.

                                   II. Discussion

      “We review the Commissioner’s decision to determine whether the factual

findings are supported by substantial evidence in the record and whether the

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correct legal standards were applied.” Pisciotta v. Astrue, 500 F.3d 1074, 1075

(10th Cir. 2007). We consider substantial evidence to be “such relevant evidence

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

v. Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004) (quotation omitted). Evidence

is not substantial “if it is overwhelmed by other evidence in the record,” and a

decision cannot be upheld if “there is a mere scintilla of evidence supporting it.”

Id. (quotation omitted). We have also held that “[t]he agency’s failure to apply

correct legal standards, or show us it has done so, is . . . grounds for reversal.”

Id. Finally, it is not this court’s job to reweigh the evidence or substitute our

discretion for that of the Commissioner. Our task is simply to review the

Commissioner’s legal analysis and examine the record to ensure that the evidence

supporting the agency’s decision is substantial. See id.

      Ms. Taylor focuses her appeal primarily on the ALJ’s refusal to give

controlling weight to the opinion of her orthopedic surgeon regarding her

functional limitations. She also argues, however, that as a result of this decision,

the ALJ ultimately formulated an RFC that was not supported by substantial

medical evidence. Finally, she claims the ALJ placed too much significance on

her demeanor and apparent lack of pain at the hearing. We address each of these

arguments in turn.




                                          -9-
A. Treating Physician Rule

      Generally, the “treating physician rule” requires the ALJ to give greater

weight to the opinions of doctors who have treated the claimant than those who

have not. Hackett v. Barnhart, 395 F.3d 1168, 1173 (10th Cir. 2005). Moreover,

we have held that “[t]he ALJ is required to give controlling weight to the opinion

of a treating physician as long as the opinion is supported by medically acceptable

clinical and laboratory diagnostic techniques and is not inconsistent with other

substantial evidence in the record.” Hamlin, 365 F.3d at 1215. If either of these

requirements is not met, the ALJ is not required to give the opinion controlling

weight but he must still decide whether to reject the opinion altogether or assign

it some lesser weight. Pisciotta, 500 F.3d at 1077. If he rejects it, the ALJ “must

articulate specific, legitimate reasons for his decision.” Hamlin, 365 F.3d at 1215

(quotation omitted). And if he merely assigns it a lesser weight, the ALJ must

consider specific regulatory factors in doing so. These include,

      the length and nature of the treatment relationship, frequency of
      examinations, the degree to which the opinion is supported by
      relevant evidence, the opinion’s consistency with the record as a
      whole, and whether the opinion is that of a specialist.

Id. n.7; see also 20 C.F.R. § 404.1527(d)(2)-(6).

      The ALJ complied with the above requirements in this case. First, he did

not reject the opinion altogether. In fact, he accepted completely Dr. Harris’s

medical diagnoses and his opinion concerning the severity of Ms. Taylor’s


                                        -10-
condition. His RFC determination also incorporated the “sit/stand option,” which

further narrowed the acceptable pool of “light work” jobs to those jobs that would

permit Ms. Taylor to sit and stand at will. This is consistent with Dr. Harris’s

most recent opinion that Ms. Taylor can only sit, stand, or walk for 30 minutes at

a time. The ALJ also explained that he could not accept Dr. Harris’s “extreme

limitations,” presumably the need to lie down and be absent from work, because

they were “unsupported by objective evidence and inconsistent with the

claimant’s activities of daily living.” App. at 32. Support for these conclusions

can be found earlier in his opinion where he discussed Ms. Taylor’s long car

trips; her ability to do light housekeeping, attend church, and prepare church

lessons; and the fact that her level of pain fluctuates daily. See id. at 31-32. The

ALJ also relied on medical evidence, including Dr. Staley’s report that

Ms. Taylor had “good range of motion in her spine, . . . no evidence of nerve root

impingement and [her] strength was within normal limits.” Id. at 28. He also

noted that Ms. Taylor’s pain was relieved somewhat by injections and that she

apparently did not see Dr. Harris at all from July 2004 to May 2005.

      We do not mean to imply this was a clear-cut case. Ms. Taylor certainly

adduced evidence consistent with Dr. Harris’s functional limitations, including

her own testimony concerning her level of pain. And as she points out,

Dr. Staley’s report was not exactly rosy. He did note that she “had mild difficulty

getting up onto and down from the exam table,” and that “she appeared to be

                                         -11-
somewhat uncomfortable” during the 20 to 30 minutes that it took to discuss her

medical history. Id. at 144. The record also reveals consistent complaints of pain

to Dr. Harris following both surgeries. But it is not the province of this court to

reweigh the evidence. “We review only the sufficiency of the evidence, not its

weight . . . .” Oldham v. Astrue, 509 F.3d 1254, 1257 (10th Cir. 2007). In

keeping with this task, we conclude that the ALJ relied on sufficient evidence in

rejecting Dr. Harris’s opinion concerning Ms. Taylor’s functional limitations. See

Pisciotta, 500 F.3d at 1080 (holding that substantial evidence supported ALJ’s

treatment of treating physician’s opinion).

      His decision was also “sufficiently specific to make clear to [us] the weight

[he] gave to [Dr. Harris’s] medical opinion and the reasons for that weight.”

Oldham, 509 F.3d at 1258 (quotation omitted). Moreover, we are satisfied that

the ALJ relied on the relevant factors even if he did not specifically discuss them.

See id. (explaining that explicit discussion of all the § 404.1527(d) factors is not a

prerequisite to meaningful review). In short, this case is not like those cited by

Ms. Taylor, involving a wholesale failure on the part of the ALJ to give any

reasons for his decision. Cf. Hamlin, 365 F.3d at 1217 (noting that ALJ “failed to

provide any sufficiently specific reasons as to why he was rejecting [treating

physician’s] opinion”); Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir.

2003) (remanding where ALJ “offered no explanation for the weight, if any, he

gave to the opinion of [claimant’s] treating physician”).

                                         -12-
B. The RFC Determination

      This same reasoning convinces us that the ALJ’s RFC determination was

supported by substantial evidence. He concluded that Ms. Taylor could work in a

job that generally required her to stand or walk no more than 45 minutes at one

time for no more than a total of six hours a day. And he placed the same

limitation on the requirements as to sitting. These finding are not vastly

divergent from those of Dr. Harris, who opined that Ms. Taylor could sit, stand,

and walk for up to 30 minutes at a time for a total of 4 hours a day. Moreover,

with the “sit/stand option,” the ALJ made explicit his expectation that Ms. Taylor

would have days of extremely limited sitting tolerance. This RFC assessment is

fully consistent with the medical evidence in the record, much of which is

summarized above, as well as Ms. Taylor’s own description of her lifestyle. We

therefore reject this challenge to the ALJ’s opinion.

C. The ALJ’s Observations As Evidence

      Finally, Ms. Taylor claims the ALJ erred in relying on her apparent comfort

at the hearing to bolster his credibility findings. This argument is without merit.

“Although an ALJ may not rely solely on his personal observations to discredit a

plaintiff’s allegations, he may consider his personal observations in his overall

evaluation of the claimant’s credibility.” Qualls v. Apfel, 206 F.3d 1368, 1373

(10th Cir. 2000). The ALJ specifically explained that his decision was not based

solely on Ms. Taylor’s demeanor at the hearing:

                                         -13-
      While the hearing was short-lived and cannot be considered a
      conclusive indicator of the claimant’s overall level of pain on a day
      to day basis, the apparent lack of discomfort during the hearing is
      given some weight in reaching the conclusion regarding the
      credibility of the claimant’s allegations and the claimant’s residual
      functional capacity.

App. at 32 (emphasis added). Even without the prefatory remark, the ALJ’s

opinion, considered as a whole, makes clear that he relied on more than his own

observations in concluding that Ms. Taylor is not disabled. He acted well within

his discretion in considering Ms. Taylor’s demeanor, particularly in light of her

claim that she cannot sit comfortably for more than 15 to 20 minutes at a time. In

sum, “the ALJ properly considered his personal observations of plaintiff as part of

his overall assessment of plaintiff’s credibility.” Qualls, 206 F.3d at 1373.

                                  III. Conclusion

      For the foregoing reasons, the judgment of the district court affirming the

Commissioner’s denial of benefits is AFFIRMED.


                                                    Entered for the Court



                                                    Mary Beck Briscoe
                                                    Circuit Judge




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