* 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** This order and judgment is not binding precedent, except under the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. 

*** Honorable Myron H. Bright, Senior Circuit Judge, United States Court of

Appeals for the Eighth Circuit, sitting by designation. 

UNITED STATES COURT OF APPEALS

Filed 8/15/96

FOR THE TENTH CIRCUIT

GARLAND M. TORREZ,

Plaintiff-Appellant,

v.

SHIRLEY S. CHATER, Commissioner

of Social Security,*

Defendant-Appellee.

No. 95-2253

(D.C. No. CIV 93-0835 M/JHG)

(D. N.M.)

ORDER AND JUDGMENT**

Before PORFILIO, BRIGHT,*** and KELLY, Circuit Judges.
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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. 

Appellant Garland Torrez was denied social security disability benefits by

the Commissioner of the Social Security Administration (“Commissioner”). Mr.

Torrez now appeals from the district court’s affirmance of the Commissioner’s

decision. For the reasons that follow, we affirm.

Mr. Torrez alleges that he is disabled because of back and leg problems. 

The administrative law judge (“ALJ”) hearing the case determined that Mr. Torrez

could not perform his past relevant work. The ALJ then determined that Mr.

Torrez’s allegations of pain did not credibly establish that the pain was so severe

that he would be precluded from engaging in the full range of sedentary work. 

Thus, the ALJ concluded that Mr. Torrez was not disabled. After this decision,

Mr. Torrez presented to the Appeals Council a letter from a Dr. Glover stating

that Mr. Torrez was disabled and could not perform “sedentary-type” work. Dr.

Glover allegedly was Mr. Torrez’s treating physician for his back problems. The

Appeals Council discounted Dr. Glover’s opinion because Mr. Torrez failed to

present any supporting medical records or clinical findings with the letter.
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Mr. Torrez raises two issues on appeal. First, he argues that the Appeals

Council failed to give Dr. Glover’s opinion the weight typically accorded to a

treating physician. Second, he argues that the ALJ erroneously concluded that

Mr. Torrez’s allegations of pain were not credible. We review the

Commissioner’s final decision to determine whether the correct legal standards

were applied and whether the decision is supported by substantial evidence. 

Castellano v. Secretary of Health & Human Servs., 26 F.3d 1027, 1028 (10th Cir.

1994).

Mr. Torrez’s first argument concerning the validity of Dr. Glover’s opinion 

is without merit. “A treating physician’s opinion may be rejected if his

conclusions are not supported by specific findings.” Id. at 1029. Here, Mr.

Torrez did not submit any medical reports from Dr. Glover although he claims

that Dr. Glover was his treating physician for back problems. Mr. Torrez

attempts to circumvent this problem by pointing out that the record did contain

medical reports from Lovelace Medical Center where Dr. Glover is employed. He

asserts that Dr. Glover may rely on medical reports from a medical institution

where he is employed in order to form his opinions. Even assuming this to be

true, Mr. Torrez’s argument still fails. We decline to give Dr. Glover’s opinion

any weight as a treating physician when there is no evidence in the record that Dr.
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Glover actually treated Mr. Torrez. The Appeals Council properly rejected Dr.

Glover’s unsupported opinion.

Mr. Torrez next argues that the ALJ erroneously concluded that his

allegations of pain were not credible. We do not reject an ALJ’s credibility

determinations where, as here, they are supported by substantial evidence. See

Diaz v. Secretary of Health & Human Servs., 898 F.2d 774, 777 (10th Cir. 1990). 

First, Mr. Torrez claims that the ALJ erroneously found that Mr. Torrez was not

taking any medication when, in fact, he testified that he did not like to take the

medication because of unpleasant side effects. The record reveals, however, that

the ALJ both recognized the fact that Mr. Torrez was taking medication and that

the medication caused certain side effects. Appellant’s App. at 70, 72. It appears

that the ALJ was merely pointing out the inconsistencies in the record concerning

the amount of medication Mr. Torrez was taking. For example, although Mr.

Torrez had stated he was taking Soma tablets twice a day, a form filled out by Mr.

Torrez indicated that he was not taking any prescription medication but was using

a “TENS” unit instead. He later testified that he only took the Soma tablets on

“really bad” days. Id. at 70. In determining the credibility of pain testimony, an

ALJ may consider among other things “‘the levels of medication and their

effectiveness . . . .’” Thompson v. Sullivan, 987 F.2d 1482, 1489 (10th Cir. 1993)
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(quoting Hargis v. Sullivan, 945 F.2d 1482, 1489 (10th Cir. 1991)). This is in

fact what the ALJ did.

Mr. Torrez also argues that the ALJ should have considered Mr. Torrez’s

testimony that he could no longer afford the TENS unit. If the ALJ had relied on

Mr. Torrez’s failure to use the TENS unit in reaching his conclusion that the

allegations of pain were not credible, then the ALJ would have been required to

consider Mr. Torrez’s stated reasons for not using the unit. See id. at 1490

(setting forth analysis ALJ should use before relying on failure to pursue

treatment or medication in support of noncredibility finding). The ALJ, however,

did not consider the fact that Mr. Torrez was no longer using a TENS unit in

support of the noncredibility determination. Rather, the ALJ simply referred to

the use of the TENS unit in pointing out the inconsistencies in Mr. Torrez’s stated

uses of prescription medication. Appellant’s App. at 70. Thus, no error occurred.

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

Mexico is AFFIRMED.

Entered for the Court

John C. Porfilio 

Circuit Judge