* This order and judgment is not binding precedent, except under the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

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, 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); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.
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Plaintiff Randall L. Nichols appeals from the denial of social security

disability and supplemental security income (SSI) benefits. He argues that the

administrative law judge (ALJ): (1) erroneously concluded at step four that he

could return to his past relevant work without making the required findings to

support that conclusion; (2) erroneously discredited his credibility and pain

testimony without considering all of the relevant factors; 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 completed eleven years of

schooling and obtained a GED. He alleges he has been 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 gall bladder. His past work

includes a number of jobs: telephone solicitor, maintenance man, butcher,

convenience store cashier, shipping and receiving clerk, window washer, gas

station attendant, motel manager, and Salvation Army bell ringer. A vocational

expert characterized plaintiff’s past work as unskilled or low semi-skilled and

requiring light or medium exertion.
-3-

The ALJ denied plaintiff’s claim at step four of the evaluation sequence. 

See generally Williams v. Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988). He

decided that plaintiff retains the residual functional capacity (RFC) to perform

light work, except for jobs that require overhead reaching. Relying on vocational

testimony, he determined that plaintiff can return to his past work as a telephone

solicitor, motel operator, or service station attendant. He therefore concluded that

plaintiff is not disabled. The Appeals Council denied review, making the ALJ’s

decision the final agency decision. Plaintiff then brought 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 record to determine only

whether the factual findings are supported by substantial 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 reweigh 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 persuaded by plaintiff’s claims of

error.

Plaintiff’s contention that the ALJ erroneously concluded that he could

return to his past relevant work without making the required findings to support

that conclusion subtends several other issues. Plaintiff argues that the ALJ: 
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(a) ignored or misconstrued evidence in the record, in that he ignored that plaintiff

had undergone several back surgeries; (b) purported to 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 requiring 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 according to the DOT. The last three

of these issues are raised for the first time on appeal 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 retain the RFC to perform the duties

of his past work. In order to make the ultimate finding that a claimant is not

disabled at step four, however, the ALJ is required by the agency’s own ruling to

make specific findings concerning the physical and mental demands of the
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claimant’s past jobs, and how these demands mesh with 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 capable 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 carry more than 20 pounds or more

than ten pounds on a regular basis . . . [and] significant nonexertional limitations

. . . affect his ability to perform tasks requiring overhead reaching.” Id. Plaintiff

complains that the ALJ failed to consider his two back 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 limitations, if any, resulting from

plaintiff’s surgeries. Plaintiff points to no evidence 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. 
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Although these findings as to the requirements of plaintiff’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 distrust 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 provide 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 noted 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 evidence also demonstrated that

Dr. Martin’s opinion was inconsistent with other doctors’ opinions regarding the

extent of plaintiff’s impairments. This inconsistency 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 discredited 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 closely and 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 discredited his claimed inability to
-7-

afford medical treatment by assuming that plaintiff’s several worker’s

compensation awards included medical provisions, when no evidence to that effect

is in the record. 

With respect to the first point, plaintiff is asking 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 severe pain because the medical

evidence, and plaintiff’s own testimony, showed that he did not pursue medical

treatment or take much medication other than aspirin. Moreover, although

plaintiff argues that the ALJ improperly assumed his various worker’s

compensation awards included medical benefits, he does not contend that the

ALJ’s assumption was wrong. For this reason, we decline to call the ALJ’s

conclusion an error.

Because we find that the ALJ’s conclusion that plaintiff 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 step-five argument.

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

Oklahoma is AFFIRMED.

Entered for the Court

Michael R. Murphy

Circuit Judge