                    UNITED STATES COURT OF APPEALS
Filed 7/18/96
                           FOR THE TENTH CIRCUIT



    THOMAS HALLER,

              Plaintiff-Appellant,

    v.                                                 No. 95-5223
                                                   (D.C. No. 94-C-18-W)
    SHIRLEY S. CHATER, Commissioner                    (N.D. Okla.)
    of Social Security, *

              Defendant-Appellee.




                           ORDER AND JUDGMENT **



Before ANDERSON, LOGAN, 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. Proc. 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      This order and judgment is not binding precedent, except under the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.
      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.

      Claimant Thomas Haller appeals from the district court’s order affirming

the denial of his application for social security disability benefits by the Secretary

of Health and Human Services (Secretary). After his claim was denied

administratively, a hearing was held before an administrative law judge (ALJ)

who denied benefits at step four of the five-step sequential evaluation process.

See Williams v. Bowen, 844 F.2d 748, 750-51 (10th Cir. 1988)(discussing five

steps). The ALJ concluded that claimant could perform his past work as president

of a real estate sales company, computer consultant, and executive vice-president

of a television corporation. The Appeals Council denied review. The district

court upheld the Secretary’s decision, and claimant now appeals to this court.

      The parties agree that claimant met the earnings requirements of the Social

Security Act (Act), 42 U.S.C. §§ 401-433, only through December 31, 1988.

Therefore, in order to receive benefits, claimant must establish his disability prior

to that date. See Henrie v. United States Dep’t of Health & Human Servs., 13

F.3d 359, 360 (10th Cir. 1993). On appeal, claimant contends that the ALJ




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improperly evaluated his allegations of pain, and disregarded the evidence that his

pain medication impaired his mental functioning.

      We review the Secretary’s decision to determine whether the findings of

fact are supported by substantial evidence based on the entire record, and to

ascertain whether she applied the correct legal standards. Castellano v. Secretary

of Health & Human Servs., 26 F.3d 1027, 1028 (10th Cir. 1994). 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)). We do not reweigh the evidence. Hamilton v. Secretary of Health &

Human Servs., 961 F.2d 1495, 1498 (10th Cir. 1992).

      Claimant first challenges the ALJ’s conclusion that his testimony that he

was disabled by pain was not credible. Because claimant produced medical

evidence to establish that he suffered from a pain-producing impairment, the ALJ

was required to evaluate his subjective complaints of disabling pain, and to

“decide whether he believe[d them].” Kepler v. Chater, 68 F.3d 387, 391 (10th

Cir. 1995)(quotation omitted). In evaluating claimant’s pain, an ALJ should

consider factors such as

      the levels of medication and their effectiveness, the extensiveness of
      the attempts (medical or nonmedical) to obtain relief, the frequency
      of medical contacts, the nature of daily activities, subjective
      measures of credibility that are peculiarly within the judgment of the

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      ALJ, the motivation of and relationship between the claimant and
      other witnesses, and the consistency or compatibility of nonmedical
      testimony with objective medical evidence.

Id. (quotations omitted).

      Here, the ALJ properly considered those factors, recognizing that claimant

produced no medical records from October 1, 1983, the date he alleges onset of

disability, to November 1988. In November 1988, he declined further medical

evaluation and treatment that was recommended by his physician. Further,

although prescription pain medications were prescribed for claimant during the

period between 1983 and late 1988, he declined to take them. Cf. Decker v.

Chater, No. 95-3259, 1996 WL 333119, at *2 (10th Cir. Apr. 15, 1996)(“The

failure to follow prescribed treatment is a legitimate consideration in evaluating

the validity of an alleged impairment.”). The ALJ also noted that claimant read

for several hours each day and had engaged in an active social life.

      The ALJ evaluated claimant’s credibility as fair to poor. Claimant argues

that the ALJ’s credibility determination is flawed because he failed to explain

how claimant’s testimony was inconsistent with the medical evidence. To the

contrary, as noted above, the ALJ considered various factors to determine that

claimant’s allegations of disabling pain were not fully credible. The ALJ’s

credibility determination is afforded considerable deference. Gay v. Sullivan, 986




                                         -4-
F.2d 1336, 1339 (10th Cir. 1993). Accordingly, we conclude that substantial

evidence supports the ALJ’s findings on claimant’s credibility.

      Claimant also argues that the ALJ improperly disregarded the evidence that

he was unable to work because of the side effects of his pain medication. The

record reflects that claimant took no pain medication until November 1988.

Claimant stated that the side effects included nausea and confusion, but his

treating physician did not indicate that claimant complained of side effects.

Furthermore, there was no evidence on whether the side effects could be

alleviated by changing the medication or adjusting its dosage.

      The ALJ did disregard the medical expert’s testimony that claimant’s

mental functioning was adversely affected by medication. The medical expert’s

opinion, however, was based on claimant’s own statement of the type and amount

of pain medication he needed in 1988. Therefore, the ALJ properly disregarded

the medical expert’s opinion because it was based solely on claimant’s testimony

which the ALJ determined lacked credibility.

      We have carefully reviewed the record and we have considered claimant’s

arguments in light of the record. We conclude that substantial evidence supports

the Secretary’s decision to deny claimant’s application for disability benefits.




                                         -5-
     The judgment of the United States District Court for the Northern District

of Oklahoma is AFFIRMED.



                                                  Entered for the Court



                                                  Stephen H. Anderson
                                                  Circuit Judge




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