* This order and judgment is not binding precedent, e xcept under the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

### MAR 15 1999 

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

RANDALL L. NICHOLS,

Plaintiff-Appellant,

v. KENNETH S. APFEL, Commissioner, Social Security Administration,

Defendant-Appellee. No. 98-5059 (D.C. No. CV-96-1088) (N.D. Okla.)

ORDER AND JUDGMENT *

Before TACHA , BARRETT , and MURPHY , 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.-2-

Plaintiff Randall L. Nichols appeals from the denia l of social security disability and supplemental security income (SSI) b enefits. He argues that the administrative law judge (ALJ): (1) erroneously co ncluded at step four that he could return to his past relevant work without maki ng the required findings to support that conclusion; (2) erroneously discredite d his credibility and pain testimony without considering all of the relevant f actors; and (3) erroneously relied on incomplete and improper expert vocational testimony at step five. We have jurisdiction under 42 U.S.C. § 405(g) and 28 U .S.C. § 1291. Plaintiff was born on March 15, 1955. He complete d eleven years of schooling and obtained a GED. He alleges he has be en disabled since September 30, 1989, due to severe pain in his back, leg, and shoulders; headaches; vision problems; muscle spasms; and limited mobility. He has had six surgeries: in 1977, to remove a bone spur on his right ankle; in 1981, for a herniated disk; in1982, to remove 60% of a disk; in 1983, to fuse two levels on his spine; in 1984, to redo the fusion; and, in 1992, to remove his gal l bladder. His past work includes a number of jobs: telephone solicitor, m aintenance man, butcher, convenience store cashier, shipping and receiving c lerk, window washer, gas station attendant, motel manager, and Salvation Army bell ringer. A vocational expert characterized plaintiff’s past work as unski lled or low semi-skilled and requiring light or medium exertion.-3-

The ALJ denied plaintiff’s claim at step four of th e evaluation sequence. See generally Williams v. Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988). He decided that plaintiff retains the residual functio nal capacity (RFC) to perform light work, except for jobs that require overhead r eaching. Relying on vocational testimony, he determined that plaintiff can return to his past work as a telephone solicitor, motel operator, or service station atten dant. He therefore concluded that plaintiff is not disabled. The Appeals Council den ied review, making the ALJ’s decision the final agency decision. Plaintiff thenbrought this suit. The parties consented to disposition by a magistrate judge, see 28 U.S.C. § 636(c), who affirmed the agency’s decision. We review the agency’s decision on the whole recordto determine only whether the factual findings are supported by subst antial evidence and the correct legal standards were applied. See Goatcher v. United States Dep’t of Health
& Human Servs. , 52 F.3d 288, 289 (10th Cir. 1995). We may not re weigh the evidence or substitute our judgment for that of the agency. See Kelley v. Chater , 62 F.3d 335, 337 (10th Cir. 1995). We are not pers uaded by plaintiff’s claims of

error. Plaintiff’s contention that the ALJ erroneously con cluded that he could return to his past relevant work without making the required findings to support that conclusion subtends several other issues. Pla intiff argues that the ALJ:-4-

(a) ignored or misconstrued evidence in the record, in that he ignored that plaintiff had undergone several back surgeries; (b) purportedto make findings based on evidence not in the record, in that he disregarded a doctor’s opinion because the doctor consistently overrated disabilities in other cases ; (c) improperly determined that plaintiff’s jobs as a telephone solicitor and motel manager were past relevant work when plaintiff did not earn enough money from these jobs for either to qualify as past relevant work; (d) improperly determined that plaintiff could perform the job of motel manager–a skilled job requ iring medium exertion according to the Dictionary of Occupational Titles (DOT); and (e) improperly determined that plaintiff could perform the job of service station attendant–a semi-skilled job requiring medium exertion accordin g to the DOT. The last three of these issues are raised for the first time on ap peal and, therefore, will not be addressed. See Crow v. Shalala , 40 F.3d 323, 324 (10th Cir. 1994). At step four, a social security claimant bears the burden of proving that his medical impairments prevent him from returning to his past relevant work. See 42 U.S.C. § 423(d)(5)(A); 20 C.F.R. § 404.1520(e). A claimant is therefore not disabled if he fails to prove that he does not reta in the RFC to perform the duties of his past work. In order to make the ultimate fi nding that a claimant is not disabled at step four, however, the ALJ is requiredby the agency’s own ruling to make specific findings concerning the physical and mental demands of the-5-

claimant’s past jobs, and how these demands mesh wi th the claimant’s particular exertional and nonexertional limitations. See Social Security Ruling 82-62, 1982 WL 31386, at *4; see also Winfrey v. Chater , 92 F.3d 1017, 1024-25 (10th Cir. 1996); Henrie v. United States Dep’t of Health & Human Servs. , 13 F.3d 359, 361 (10th Cir. 1993). The ALJ is bound by the agency’s rulings. See 20 C.F.R. § 402.35(b)(1). In this case, the ALJ found that plaintiff is capab le of light work except for jobs that require overhead reaching. See Appellant’s App. at 21-22. Specifically, he found that plaintiff “is not able to lift and ca rry more than 20 pounds or more than ten pounds on a regular basis . . . [and] sign ificant nonexertional limitations . . . affect his ability to perform tasks requiring overhead reaching.” Id. Plaintiff complains that the ALJ failed to consider his two b ack fusions in this RFC assessment. However, the event of each surgery, by itself, is not relevant to the ALJ’s determination. What matters are the limitati ons, if any, resulting from plaintiff’s surgeries. Plaintiff points to no evid ence of any limitation caused by his two back fusions, however. Therefore, we find plaintiff’s challenge to the RFC assessment to be without merit. The ALJ further found that “[i]n his former job as telephone solicitor, as motel operator, and as service station attendant, [ plaintiff] was not required to lift more than 20 pounds or perform tasks requiring overhead reaching.” Id. at 22.-6-

Although these findings as to the requirements of p laintiff’s former jobs and how they mesh with his impairments are brief, they are sufficient to satisfy the ALJ’s duty at step four in this case. We are concerned that the ALJ mentioned his distrus t of Dr. Martin’s opinion in this case based on the ALJ’s opinion of that doctor’s medical findings in other cases. The regulations do not clearly pro vide for an ALJ to disregard a physician’s opinion on this basis. See 20 C.F.R. § 404.1527(d)(1)-(6); 20 C.F.R. § 416.927(d)(1)-(6). Nevertheless, the ALJ also no ted that Dr. Martin examined plaintiff on only one occasion, which is an acceptable reason to discount his opinion that plaintiff is 100% disabled. See 20 C.F.R. § 404.1527(d)(2); 20 C.F.R. § 416.927(d)(2). The ALJ’s review of the medical e vidence also demonstrated that Dr. Martin’s opinion was inconsistent with other do ctors’ opinions regarding the extent of plaintiff’s impairments. This inconsiste ncy provided another valid reason for the ALJ to give Dr. Martin’s opinion less weight. See 20 C.F.R. § 404.1527(d)(4); 20 C.F.R. § 416.927(d)(4). Plaintiff next contends that the ALJ erroneously di scredited his credibility and pain testimony by not making required findings, see Social Security Ruling 96-7p, 1996 WL 374186, at *4-*5, and by not closelyand affirmatively linking the evidence to his decision, Kepler v. Chater , 68 F.3d 387, 391 (10th Cir. 1995). Plaintiff also argues that the ALJ improperly discr edited his claimed inability to-7-

afford medical treatment by assuming that plaintiff’s several worker’s compensation awards included medical provisions, wh en no evidence to that effect is in the record. With respect to the first point, plaintiff is askin g us to reweigh the evidence. This, we cannot do. See Kelley , 62 F.3d at 337. The ALJ thoroughly explained that he disbelieved plaintiff’s complaints of sever e pain because the medical evidence, and plaintiff’s own testimony, showed that he did not pursue medical treatment or take much medication other than aspiri n. Moreover, although plaintiff argues that the ALJ improperly assumed hi s various worker’s compensation awards included medical benefits, he d oes not contend that the ALJ’s assumption was wrong. For this reason, we de cline to call the ALJ’s conclusion an error. Because we find that the ALJ’s conclusion that plai ntiff is not disabled at step four is supported by substantial evidence and the correct legal standards were applied, it is unnecessary to reach plaintiff’s ste p-five argument. The judgment of the United States District Court fo r the Northern District of Oklahoma is AFFIRMED. Entered for the Court

Michael R. Murphy Circuit Judge