* Effective March 31, 1995, the functions of the Secr etary of Health and

Human Services in social security cases were transf erred to the Commissioner of Social Security. P.L. No. 103-296. Pursuant to Fe d. 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 defe ndant 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 b ecause she was the appropriate party at the time of the underlying decision.

** This order and judgment is not binding precedent, e xcept under the doctrines of law of the case, res judicata, and col lateral estoppel.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.

*** Honorable Myron H. Bright, Senior Circuit Judge, Un ited States Court of Appeals for the Eighth Circuit, sitting by designat ion.

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.-2-

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) and 10th Cir. R. 34.1.9. Th e case is therefore ordered submitted without oral argument. Appellant Garland Torrez was denied social securitydisability benefits by the Commissioner of the Social Security Administrat ion (“Commissioner”). Mr. Torrez now appeals from the district court’s affirm ance of the Commissioner’s decision. For the reasons that follow, we affirm. Mr. Torrez alleges that he is disabled because of b ack and leg problems. The administrative law judge (“ALJ”) hearing the ca se 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 estab lish that the pain was so severe that he would be precluded from engaging in the ful l range of sedentary work. Thus, the ALJ concluded that Mr. Torrez was not dis abled. After this decision, Mr. Torrez presented to the Appeals Council a lette r 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 bec ause Mr. Torrez failed to present any supporting medical records or clinical findings with the letter.-3-

Mr. Torrez raises two issues on appeal. First, he argues that the Appeals Council failed to give Dr. Glover’s opinion the wei ght 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 validityof 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 backproblems. Mr. Torrez attempts to circumvent this problem by pointing outthat 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 declin e to give Dr. Glover’s opinion any weight as a treating physician when there is no evidence in the record that Dr.-4-

Glover actually treated Mr. Torrez. The Appeals Co uncil properly rejected Dr. Glover’s unsupported opinion. Mr. Torrez next argues that the ALJ erroneously con cluded that his allegations of pain were not credible. We do not re ject an ALJ’s credibility determinations where, as here, they are supported b y 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 f ound that Mr. Torrez was not taking any medication when, in fact, he testified t hat 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 wa s taking medication and that the medication caused certain side effects. Appell ant’s App. at 70, 72. It appears that the ALJ was merely pointing out the inconsiste ncies in the record concerning the amount of medication Mr. Torrez was taking. Fo r 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 prescri ption 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 tes timony, 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)-5-

(quoting Hargis v. Sullivan , 945 F.2d 1482, 1489 (10th Cir. 1991)). This is i n fact what the ALJ did. Mr. Torrez also argues that the ALJ should have con sidered Mr. Torrez’s testimony that he could no longer afford the TENS u nit. If the ALJ had relied on Mr. Torrez’s failure to use the TENS unit in reachi ng 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 relyi ng 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 lo nger using a TENS unit in support of the noncredibility determination. Rathe r, the ALJ simply referred to the use of the TENS unit in pointing out the incons istencies 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 fo r the District of New Mexico is AFFIRMED. Entered for the Court

John C. Porfilio Circuit Judge