* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 13 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

MARY L. QANTU,

Plaintiff-Appellant,

v. JO ANNE BARNHART,

Defendant-Appellee. No. 02-1314 (D.C. No. 99-MK-1935 (PAC))

(D. Colo.)

ORDER AND JUDGMENT *

Before TACHA , Chief Judge, HARTZ , and O’BRIEN , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision 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. Claimant Mary Qantu appeals the district court’s affirmance of the decision by the Commissioner of Social Security denying her applications for disability2--

benefits and supplemental security income. Because the agency’s decision is supported by substantial evidence and no legal erro rs occurred, we affirm. On January 10, 1995, claimant tripped on a rug at w ork and fell down a flight of stairs. Aplt’s App., Vol. I at 121, 132. As a result, she suffered pain in her neck and back, numbness in her arms, and freque nt headaches. See id. at 116-18, 119-120, 122-23. Claimant underwent severa l months of physical therapy and chiropractic treatment under the supervision of treating physician Hine, of the Southern Colorado Clinic. See id. at 114, 116; Vol. II at 280-81, 303-313. In April 1995 Dr. Hine determined that claimant hadreached maximum medical improvement and released her for work, limi ted by the requirements that she not lift more than thirty pounds, carry no more than twenty-five pounds, and lift no more than twenty pounds over her shoulders. Id. , Vol. I at 146, 148, 158. In May 1995 Dr. Hine referred claimant to Dr. Herre rra, at the Southern Colorado Clinic, for her headaches. Id. at 159. Upon initial examination, Dr. Herrerra agreed that claimant could return to work. Id. at 158. He prescribed medication and requested a CT scan of the head, which showed no abnormalities. Id. at 156, 158. Claimant continued to see Dr. Herrerra monthly fo r her headaches, and started monthly maintenance visits with Dr. Campbel l after Dr. Hine left the clinic. See id. at 157. Dr. Campbell reiterated that claimant cou ld return to work, subject to lifting restrictions. Id. at 146, 152, 157.3--

In April 1996 claimant experienced an exacerbation of her symptoms and returned to the Southern Colorado Clinic for treatm ent. See id. at 139-140. Claimant was sent back to physical therapy. See id. , Vol. II at 299-302. By the end of April, claimant reported to her physical the rapist that she had no specific complaints of pain and that she had gone hiking in the mountains. Id. at 292. In May 1996 treating physician Campbell reiterated that claimant could return to work limited only by the restrictions described abo ve. Id. at 273-74. In July 1996 claimant began treatment with Kevin Bo ehle at the Southern Colorado Clinic. Id. at 386-387. Examination revealed tissue texture c hanges and muscle spasms in claimant’s neck; trigger point s along her spine, and tenderness in the lumbar spine with chronic tissue changes consistent with chronic muscle spasm and irritation. Id. at 386. Current x-rays showed some chronic arthritic changes in the neck and lower spine. Id. at 385, 387. Claimant was referred to Dr. Crawford for trigger-point injectio ns and an EMG to evaluate her left arm numbness. Id. at 386-87. Dr. Crawford’s physical examination of claimant’s b ack showed normal gait; negative Romberg; normal spine curvature withno thoracic or lumbosacral tenderness; full lumbar flexion and extension; and twenty-five degrees of lateral bending without pain. Id. at 282. She had a tender nodule in the left mid-g luteal muscle, and bilateral tenderness, but no sciatic no tch or posterior thigh4--

tenderness. Id. Her cervical spine was tender, but without spasm or nodules, her cervical flexion and extension were limited, and ri ght and left rotation caused pain. Id. Claimant had a scapular myofascial pain nodule an d mild right lateral scapular tenderness. Id. Her shoulders had a full range of motion without pain, normal strength in her upper extremities except forsome weakness of pinch of the left fifth finger and thumb, and her lower extremit ies were normal. Id. Dr. Crawford opined that claimant had bilateral par ascapular and left gluteal myofascial pain syndrome, and that the myofascial p ain syndrome was causing her headaches, but that her subjective symptoms seemed out of proportion to the physical findings. Id. at 283. The EMG showed left carpal tunnel, recurr ent, or possible residual changed from her original surgeryin 1980. Id. at 285. Dr. Boehle treated claimant through the end of Augu st 1996. Based on his treatment of claimant, Dr. Boehle concurred with th e opinion that claimant could return to full-time work subject only to the liftin g restrictions described above. Id. at 372-73, 378. He opined that she had reached maximum medical improvement for all medical conditions stemming fro m her accident, and that any other problems she was having were from previous orunderlying conditions. Id. at 367. He also opined that claimant was showing s trong tendencies of drug-seeking and inappropriate behavior with the st aff. Id.5--

In March 1997 claimant presented at the Parkview Ep iscopal Medical Center for a headache with nausea and photophobia. Id. , Vol I. at 194. She underwent a CT scan which was negative, and was giv en medication which resolved her headache. Id. at 195, 196. In April 1997 she returned for a lumbar spine x-ray, which showed some evidence of degenerative disc disease with space narrowing at L4-5 and L5-S1, but no acute abnormali ty. Id. at 192. In April 1997 claimant underwent a consultative examination with Dr. Gaudio. See id. at 160-64. Physical examination revealed that all ranges of motion were within normal limits; straight leg rais ing was negative; Phalen’s and Tinel’s tests were negative; there were no joint ef fusions or abnormalities; and claimant had normal muscle tone and strength, with no spasms or loss of sensation Id. at 162-63. Claimant showed no abnormalities on th e mini-mental status test, and did not appear to have any deficit s in concentration. Id. at 163. Dr. Gaudio found “no evidence of impairment-relatedphysical limitation with regard to her low back pain or left shoulder blade pain”; “no evidence to support the diagnosis of carpal tunnel syndrome”; and no ev idence to support claimant’s complaint that she has trouble concentrating. Id. He concluded that based on the objective evidence, claimant had no physical or pos tural limitations. Id. at 164. Claimant also began treatment for depression at the Spanish Peaks Mental Health Center (SPMHC) in April 1997. Id. at 185-86. Claimant was assessed6--

with a Global Assessment of Functioning score of 70 , id. at 186, which is defined as “[s]ome mild symptoms (e.g. depressed mood and m ild insomnia) OR some difficulty in social, occupational, or school funct ioning (e.g. occasional truancy, or theft within the household), but generally funct ioning pretty well, has some meaningful interpersonal relationships.” American Psychiatric Assoc., Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) , (4th ed. 1994), p. 32 (emphasis deleted). Claimant was treated with antidepressants and th erapy, first weekly and then every other week, through February 1998. Aplt’s App., Vol. I at 166-186; 201-215. Treatment notes indicated that h er depression stemmed primarily from domestic issues including a custody battle with her ex-husband and difficulties with her children. See e.g., id. at 168, 174, 177, 185, 206-212. In February 1998 claimant underwent a consultative psychological examination with John Clarke, who administered psyc hological tests known as the MMPI and the Zung Self-Rating Depression Scale. Id. at 217. Dr. Clarke reviewed claimant’s physical and mental health reco rds and interviewed claimant. Id. Based on his review and the test results, Clarke opined that claimant’s depression was severe to extreme, and that she was “presently psychologically disabled.” Id. at 219-20. Claimant filed for benefits in the spring of 1996, alleging an inability to work after January 10, 1995, due to a cervical stra in, fibromyalgia, depression,7--

and headaches. Id. at 72. After her applications were denied at the first and second administrative levels, she participated in ahearing before an administrative law judge (ALJ) in April 1998. See id. , Vol. II at 397-453. Claimant was represented by counsel at the hearing. On August 21, 1998, the ALJ issued her decision, fi nding that although claimant could not return to her former work as a nurse’s aide, she retained the ability to perform a significant number of jobs andtherefore was not disabled. See id. , Vol. I at 15-23. The ALJ found that claimant ret ained the physical ability to do light work that did not require lifting more than thirty pounds, carrying more than twenty-five pounds, or lifting more than twenty pound above the shoulders. Id. at 22. She found that claimant was mentally limit ed to simple unskilled work involving occasional interactions wi th the public. Id. The ALJ also determined that claimant’s mental condition sl ightly limited her daily activities, moderately limited her ability to maint ain social relationships, seldom caused deficiencies of concentration, persistence, or pace, and never caused an episode of deterioration or decompensation in work or a work-like setting. Id. at 25-26. The Appeals Council denied review, making the ALJ’s determination the final decision of the Commissioner. The district c ourt affirmed, and this appeal followed.8--

We review the Commissioner’s decision to determine only whether it is supported by substantial evidence and whether legal errors occurred. See Castellano v. Sec’y of Health & Human Servs. , 26 F.3d 1027, 1028 (10th Cir. 1994). Substantial evidence is “that which a reaso nable mind might accept as adequate to support a conclusion.” Richardson v. Perales , 402 U.S. 389, 401 (1971) (internal quotation marks omitted). We may not reweigh the evidence or substitute our judgment for that of the agency. Casias v. Sec’y of Health & Human Servs. , 933 F.2d 799, 801 (10th Cir. 1991). Claimant argues that the ALJ committed legal error by disregarding her objective medical evidence of carpal tunnel syndrom e, left ankle neuropathy, and back spasms, and her psychological test results. W e have held that “[t]he record must demonstrate that the ALJ considered all of the evidence, but an ALJ is not required to discuss every piece of evidence.” Clifton v. Chater , 79 F.3d 1007, 1009-10 (10th Cir. 1996). Here, it is clear the AL J considered the evidence identified by claimant, but concluded that it did n ot support a finding of disability. See Aplt’s App., Vol. I at 17 (finding the medical evi dence did not establish that claimant’s carpal tunnel compromisedher residual functional capacity); at 18 (considering reports by Dr. Boehle , who noted claimant’s spasms but concluded that she could return to full-time wo rk with certain lifting and carrying restrictions); at 19 (considering psycholo gical test results but rejecting9--

the consulting psychologist’s conclusion). Although the ALJ did not specifically refer to claimant’s ankle neuropathy, there is no e vidence that this condition limited claimant’s abilities. Claimant next challenges the ALJ’s assessment of he r nonexertional impairments of pain, depression, and reduced grip s trength in her left hand. Our review of the ALJ’s decision reveals that she prope rly discussed the relevant evidence, including claimant’s medical records, fre quency of medical contacts, daily activities, pain medication, and motivation, in determining that claimant’s pain, depression, and weakness were not disabling. See Kepler v. Chater , 68 F.3d 387, 391 (10th Cir. 1995) (discussing factors ALJ s hould consider). The ALJ’s primary reason for rejecting claimant’s c omplaints was that they were not fully credible. See Aplt’s App., Vol. I at 17-18, 20-21 (rejecting complaints of disabling pain, weakness, and depress ion because they conflicted with record evidence and claimant’s other statement s). As required, the ALJ affirmatively linked her credibility findings to substantial evidence in the record. See id. at 18 (complaints conflicted with treating physici ans’ consistent opinions that claimant could return to work); at 19 (treatin g mental health source’s records assessed claimant’s functional limitations as mild, noted claimant’s half-hearted attempt to find work, and described claimant’s own reports of improvement); at 20 (describing claimant’s reports to several source s that her conditions had-10-

improved with only occasional problems); and at 20- 21 (relying on treating physician’s opinion that claimant’s symptomology wa s not consistent with her clinical presentation, that claimant was showing strong tendencies of drugseeking behavior; and that further treatment was no t indicated). Because credibility determinations are within the province of the ALJ, we will not upset such findings where, as here, they are supported by substantial evidence. Kepler , 68 F.3d at 391. Further, it is clear from the ALJ’s decision that s he accepted that claimant suffered some pain, but found that her pain was notdisabling. We emphasize that a claimant’s inability to work pain-free, standing alone, is not a sufficient reason to find her disabled. Gossett v. Bowen , 862 F.2d 802, 807 (10th Cir. 1988). Claimant also argues that the ALJ erred in rejectin g the opinion of consulting psychologist Clarke. The ALJ rejected the opinion that claimant was “psychologically disabled” because Dr. Clarke did n ot provide any functional assessment of claimant’s abilities; because the opi nion was contrary to the opinion of claimant’s treating source; and because Dr. Clarke was a consulting source who only saw claimant one time. Aplt’s App. , Vol. I at 19-20. As these are legitimate bases for rejecting a source’s opinion, we find no erro r.-11-

The judgment of the district court is AFFIRMED.

Entered for the Court

Harris L Hartz Circuit Judge