UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

WADLEY DEERE, Plaintiff-Appellant,

v. CAROLYN W. COLVIN, Acting Commissioner, Social Security Administration, Defendant-Appellee. No. 13-5129 (D.C. No. 4:12-CV-00365-FHM) (N.D. Okla.)

ORDER AND JUDGMENT *

Before LUCERO and McKAY , Circuit Judges, and BRORBY , Senior Circuit Judge.

Wadley Deere appeals the district c ourt’s order affirming the Commissioner’s denial of disability insuran ce benefits. Mr. Deere contends that an administrative law judge (ALJ) erred in rejecting the opinion of a medical expert and discrediting his testimony. We exercise juri sdiction under 42 U.S.C. § 40 5(g) and 28 U.S.C. § 1291

and affirm.

* After examining the briefs and appella te record, this pa nel 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 a nd 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### July 25, 2014

Elisabeth A. Shumaker Clerk of Court- 2 - I Mr. Deere sought benefits for a cl osed period dating from April 1, 2003 through December 31, 2003 due to post-trauma tic stress disorder, diabetes, low-back problems, and a cardiac condition. After th e district court twice remanded the case for further administrative proceedings, an ALJ determined at step four of the five-step sequential evaluation process, see 20 C.F.R. § 404.1520; Wall v. Astrue , 561 F.3d 1048, 1052 (10th Ci r. 2009) (explaining the five-step process), that

Mr. Deere was not disabled because he retained the residua l functional capacity (RFC) to perform his past work as a case manager. Alte rnatively, the ALJ concluded at step five that Mr. Deere could perform other sedentary and light work as an admissions clerk, information clerk, or mo tel clerk. Mr. Deere did not seek review with the Appeals Council but instead initiated this action in the district court. Proceeding before a magistrate judge, see 28 U.S.C. § 636(c), Mr. Deere raised two issues, both of which he advances in this court. 1 Mr. Deere first argued that the ALJ improperly rejected the opinion of Dr . Subramanian Krishnamurthi, a medical expert who testified at Mr. Deere’s prior administrative hearings held in 2007 and 2010. At the 2007 hearing, Dr. Krishnamurthi stated that Mr. Deere could stand or walk for two hours in an eight -hour work day, but in 2010 he testified that Mr. Deere

could stand or walk for four hours in an eight-hour work day. The ALJ gave the

1 Mr. Deere also raised a third issue challenging the ALJ’s RFC assessment, but he has abandoned that argument on appeal.- 3 - 2010 opinion some weight, but he gave the more restrictiv e 2007 opinion little weight because it “focused on a time peri od well after [December 31, 2003].” Aplt. App., Vol. IX at 2143. Mr. Deere asserted that Dr. Krishnamurthi clearly considered his abilities during the relevant time period, but the magistrate judge rejected that argument. The magistrate judge explained that Dr. Krishnamurthi’s testimony from 2007 was “a somewhat rambling summary of [M r. Deere’s] medica l history, including records from 2003, 2004, 2006, and 2007.” Id. , Vol. I at 51. Moreover, the magistrate judge observed that while Dr. Kr ishnamurthi stated he was “going to give a RFC during, before 2003,” id. , Vol. III at 530, he al so provided the following confusing testimony: Dr.: [Mr. Deere] will be able to sit six hours out of an eight-hour day; he would be able to stand a nd sit together a maximum of – ALJ: Stand and walk you mean?

Dr.: Huh?

ALJ: Stand and walk? Dr.: Walk, yeah, actua lly, two hours would be – and he could be – but, but then he can, there’s no problem w ith the kind of lift or the grasping and, yeah, I’m going to put positi onal, postural limitations for occasional and the bending, stooping, crawling and the reaching would be frequent and doing th at could cause him – cau se a little fatigue and which is he had he was telling us. And also he had high blood pressure, so I think – and the, also it is possible that it is reasonable to say that he might need during an eight-hour peri od, the regular period one or two breaks due to the tiredness, sit down to 15 minutes, it might cause fatigue and low blood sugar can cause that. It’s possible.- 4 - Id. at 530-31. Given this testimony, the ma gistrate judge determ ined that the ALJ’s evaluation of the 2007 opinion was s upported by substantial evidence. The magistrate judge also concluded th at substantial evidence supported the ALJ’s decision to give some weight to Dr. Krishnamurthi’s 2010 opinion. Dr. Krishnamurthi attempte d to explain the discrepa ncy between his opinions by noting that Mr. Deere had an arteri al stent placed in August of 2003. 2 See id. , Vol. VIII at 2092. Thereafter, as the AL J recognized, a cardiolo gist reported that Mr. Deere was free of chest pa in, without shortness of br eath, and had returned to

usual activities without restrictions. Id. , Vol. IX at 2129; id. , Vol. VII at 1745. Although Dr. Krishnamurthi re verted to his previous opi nion that Mr. Deere could

stand and walk for two hours based on an x-ray showing degenera tive disc disease,

the ALJ refused to cr edit that opinion, stating, “[a]ft er a considered analysis of [Mr. Deere’s] medical record s, the undersigned finds no r eason to limit [Mr. Deere] to standing or walking less than as supplied in the above -RFC. This finding is based upon [Mr. Deere’s] level of physical activities . . . .” Id. , Vol. IX at 2143. Given this rationale, the magistrate j udge concluded there was no error in the ALJ’s decision according some weight to Dr. Krishnamurthi ’s 2010 opinion but little weight to his 2007 opinion. See Lax v. Astrue , 489 F.3d 1080, 1084 (10t h Cir. 2007) (“We may

2 That Mr. Deere had a stent placed in 2003 does not explai n the discrepancy between Dr. Krishnamurthi’s opinions. Th e doctor recognized at the 2007 hearing that Mr. Deere underwent stenting. See Aplt. App., Vol. III at 529. This lends further support for the ALJ’s assessme nt of Dr. Krishnamurthi’s opinions.- 5 - not displace the agency’s choice between two fairly c onflicting views, even though the court would justifiably ha ve made a different choice ha d the matter been before it de novo.” (brackets and internal quotation marks omitted)).

As for Mr. Deere’s second issue—th at the ALJ wrongly discredited his testimony—the magistrate judge rejected th at argument as well. Mr. Deere testified that he had significant difficu lty with standing and walking, yet he also described his activities, which included bow-hunting for deer, rabbit, and squi rrel, serving as a deacon at his church, assisting disabled veterans, and playing golf. The ALJ found that Mr. Deere was not credible in part due to his participation in these activities, which the ALJ described as “elucidating.” Aplt. App., Vol. IX at 2136. Mr. Deere argued that the ALJ incorrect ly assumed these were neces sarily strenuous activities, but the magistrate judge ruled that even if the ALJ was wrong about the effort required to participate in these activities, th e ALJ discussed other factors relevant to the credibility analys is, including Mr. Deere’s failure to seek ongoing treatment for his low-back problems, his inconsistent te stimony at each admini strative hearing, and

inconsistencies between his testimony and the objective medical evidence. See Poppa v. Astrue , 569 F.3d 1167, 1171 (10th Ci r. 2009) (holding that ALJ completed proper credibility analysis by c iting relevant credibility factors and identifying evidence relating to those factor s to support his cred ibility assessment). The magistrate judge therefore concl uded that the ALJ properly evaluated Mr. Deere’s credibility.- 6 - II

“We review the Commissioner’s decision to determine whether the factual findings are supported by s ubstantial evidence and wh ether the correct legal standards were applied.” Mays v. Colvin , 739 F.3d 569, 57 1 (10th Cir. 2014) (internal quotation marks omitted) . “We consider whethe r the ALJ followed the specific rules of law that must be followed in weighing particular types of evidence in disability cases, but we will not rewe igh the evidence or substitute our judgment

for the Commissioner’s.” Lax , 489 F.3d at 1084 (internal quotation marks omitted). On appeal, Mr. Deere reiterates the same contentions—at times verbatim—as those rejected by the magistrate judge. He insists the ALJ improperly rejected Dr. Krishnamurthi’s opinion and wrongly discredited his testimony. But the magistrate judge correctly analyzed these arguments unde r the same standard that governs our review, and we s ee no reason to recreate that analysis here. Thus, having reviewed the parties’ briefs , the relevant legal author ities, and the administrative record, we affirm th e Commissioner’s decision for su bstantially the same reasons stated in the magistrate judge’s order dated August 16, 2013.

Entered for the Court

Wade Brorby Senior Circuit Judge