* This order and judgment is not binding precedent, e xcept under the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

### AUG 12 2003 

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

DONNA J. HOLLENBACH,

Plaintiff-Appellant,

v. JO ANNE B. BARNHART, Commissioner of Social Security Administration,

Defendant-Appellee. No. 02-2231 (D.C. No. CIV-01-0551 JP/RLP)

(D. N.M.)

ORDER AND JUDGMENT *

Before BRISCOE , PORFILIO , and ANDERSON , 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-

Claimant Donna J. Hollenbach appeals the district court’s affirmance of the decision by the Commissioner of Social Security denying her applications for disability benefits and supplemental security incom e. Because the decision is supported by substantial evidence and no legal erro rs occurred, we affirm. On May 5, 1995, claimant was involved in a serious car accident. As a result, she suffered several fractured ribs; an inj ury to the ligaments and soft tissue of her neck at C6-7 with a possible small di sc protrusion; pain and weakness in her arms; headaches with dizziness and vomiting; abnormal alignment of the thoracic spine with wedging at T-6 ; a probable nondisplaced fracture of the manubriosternal joint with mild art hritis; temporomandibular joint syndrome (TMJ); and a fractured right knee fibular head. Claimant’s x-rays also showed mild degenerative changes in her thoracic an d lumbar spine. After receiving emergency care at the University of New Mexico Hospital (UNMH), claimant was treated by orthopedic surgeon Swajian from May 12, 1995 until October 4, 1995. An initial physical exam of claimant revealed extensive bruising, reduced range of motion in her neck and b ack, pain and popping in her jaw, right knee abnormality, slight sensory loss inthe tibial region, uneven shoulder height, muscle spasms, and partial hearing loss. Aplt’s App., Vol. II at 157-59. Dr. Swajian opined that claimant suffered a cerebral concussion, cervical dorsal sprain/strain, lumbar dorsal sprain/strain, TMJ syndrome, chondromalacia,-3-

and pelvic and scapular instability. Id. at 159-60. He disagreed with the UNMH’s notation of a bulging disc, however. Id. at 159. In July 1995, Dr. Swajian noted that claimant’s rib and chest pain had subsided “markedly,” and her right fibular fracture was ninety percent healed with good stability. Id. at 152. He prescribed an eight-week course of phy sical therapy. In September 1995, the physician noted th at claimant continued to have muscle spasms in her neck and upper back, but that physical therapy had helped resolve her subjective complaints. Id. at 149. Dr. Swajian was concerned about claimant’s reports of increased headaches and dizzi ness and recommended she return to a neurologist. Claimant did not do so, h owever. On October 4, 1995, Dr. Swajian reported that plaintiff’s range of motion had improved substantially and that her pain was re duced. Id. at 170. He noted that the physical therapy had shown good results, and recommended sending claimant to a spa-type program to accommodate her t ransportation needs. Id. at 170-71. Claimant did not return to Dr. Swajian aft er this date. Claimant was evaluated by neurologist Berger in Mayand June 1995. Dr. Berger noted claimant’s limited range of motion in her neck, but otherwise found good muscle tone, bulk, and strength and sens ation. After reviewing claimant’s CT scan, EEG, MRI, EMG, and x-rays, Dr. Berger concluded that claimant had no spinal lesions compressing neural s tructures; that her headaches-4-

were consistent with trauma; that her back pain was most likely musculoskeletal in nature; and that her prognosis for eventual reco very was good. Id. at 146-48. Dr. Berger concluded that no further neurological d iagnostic tests were necessary. Id. at 146. Claimant was also treated by dentist Clifford, who diagnosed her with TMJ syndrome, including myofascitis, cervicalgia, tinni tus, and vertigo. Id. at 165. He treated claimant with splints and injections. I n August 1995, claimant complained to Dr. Clifford that her headaches had r eturned, stating that she had been working out and may have done too much. Id. at 161. In July 1995, claimant was seen at the UNMH emergen cy room with complaints of upper right quadrant pain and crampin g. Claimant was diagnosed with gastro-esophogeal reflux disease, a small hiat al hernia in the esophagus, and a congenital anomaly of the liver. By January 1996 , claimant reported her stomach bloating and pain had improved, but she continued to have heartburn. In May 1996, claimant sought treatment from Dr. Mer chant for back pain. Although this family physician had treated claimantin 1993 and 1994 for colds and sore throats, there is no evidence that he treated claimant for her accident injuries before May 1996. Dr. Merchant noted tende rness and spasm in claimant’s upper spine and right upper abdominal te nderness, and prescribed pain medication and antacids. Id. at 186. In June 1996, he again noted tenderness a nd-5-

spasm in claimant’s neck and back, and tenderness i n her chest wall and knee. Dr. Merchant diagnosed claimant with cervical, thor acic and lumbar pain and spasm, knee and anterior thigh pain, and depression

. Id. at 184. He prescribed pain medication and an antidepressant, and suggeste d claimant consult with Dr. Berger to develop an at-home rehabilitation pro gram. Claimant filed for disability and SSI benefits in M ay 1996, alleging she was unable to work after March 5, 1995, due to back and knee injuries, headaches, depression, jaw and gastric problems. In September1996, she was sent for a consultative psychological examination with Dr. Mel lon. Claimant denied any former treatment for depression. She appeared tire d, cried, and had a moderately depressed mood with a decreased affect. She had no rmal psychomotor activity, orientation, attention, calculation and recall, ave rage intellectual functioning, her thought processes were coherent, logical, and goal- directed with no looseness of association or flight of ideas, no repetitious acti vity or speech impairment, and no delusions, sustained preoccupation, or suicidal/hom icidal thoughts. Her insight was limited. Dr. Mellon diagnosed claimant with ma jor depression, moderate, gave her a Global Assessment of Functioning score o f 48, and opined that her prognosis was guarded without treatment. Id. at 193. In October 1996, claimant told Dr. Merchant that sh e had registered for indigent care at UNMH, and that she would seek phys ical therapy and depression-6-

medication there. Id. at 211. Claimant did not follow through on these statements. In December 1996, claimant saw Dr. Mer chant for a breast problem, and in February 1997, she saw him for bronchitis. In March 1997, claimant was examined at the UNMH Orthopedics Department. She described her condition as gradual ly improving, and noted that she had right leg symptoms approximately three time s per year. Claimant was using over-the-counter medication for pain. Physic al examinations of her back and knee were essentially normal, with a stable rig ht knee, no swelling, normal reflexes in all extremities, no loss of sensation, no loss of strength except a mild loss in hip extension and flexion, negative straight leg raising, and a range of motion to eighty degrees without pain. There was n o evidence of cervical, thoracic, or lumbar fracture on claimant’s 1995 x-r ays, and a 1997 x-ray of her knee was normal. Id. at 224-25. In April 1997, claimant was seen at the UNMH with c omplaints of back pain after tripping and falling. Examination reveale d tenderness along the spine, with pain on twisting and flexion. Leg and arm str ength were 5/5. Although claimant was referred to physical therapy, she agai n did not follow through. In July 1997, Dr. Merchant completed a form diagnos ing claimant with “severe pain [due to] multiple disc herniations and soft tissue injury,” based on her x-rays, CT scan, MRI and exam. Id. at 212. He indicated that he has referred-7-

claimant to the UNMH for pain management and psychi atric care. The physician opined that claimant was totally disabled since May5, 1995, and that she would remain so for years. Id. at 213-14. Dr. Merchant limited claimant to one h our of sitting, one hour of standing, and two hours of wal king during an eight-hour day, opining that claimant could never lift more than fi ve pounds and that she could not use her right arm or feet for pushing and pulli ng controls. Id. at 215. In October 1998, Dr. Merchant again concluded claim ant was totally disabled, and opined that she met the clinical list ings for a spine disorder. See id. at 239-40 (Dr. Merchant’s opinion and the requireme nts of 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.05 (1998), which are now codi fied in § 1.04). He opined that claimant met the criteria for osteoporosis und er § 1.05(B)(2) and for a vertebrogenic disorder under § 1.05(C). After her applications were denied at the first and second administrative levels, claimant participated in a hearing before a n administrative law judge (ALJ). Claimant was represented by counsel. The A LJ issued his decision in February 1999, finding that claimant was not disabl ed. He found that claimant suffered from back pain and depression, but that he r conditions did not meet or equal any of the listed impairments. Although the ALJ noted that claimant had been noncompliant with all recommendations for treatment of her depression, he found that she remained capable of performing simpl e, low-stress work, even-8-

without treatment. The ALJ rejected Dr. Merchant’s disability opini on as contrary to the evidence, and concluded that claima nt retained the physical capacity to perform a significant number of jobs, i ncluding the manicurist aspect of her prior cosmetology jobs, and thus she was notdisabled. The Appeals Council denied review, making the ALJ’s determinati on as the final decision of the Commissioner. The district court affirmed. We review the Commissioner’s decision to determine only whether it is supported by substantial evidence and whether legal errors occurred. See Castellano v. Sec’y of Health & Human Servs. , 26 F.3d 1027, 1028 (10th Cir. 1994). Substantial “evidence is that which a reaso nable mind might accept as adequate to support a conclusion.” Richardson v. Perales , 402 U.S. 389, 401 (1971) (quotation omitted). We may not reweigh the evidence or substitute our judgment for that of the agency. Casias v. Sec’y of Health & Human Servs. , 933 F.2d 799, 801 (10th Cir. 1991). Claimant argues that the ALJ committed legal error by disregarding her treating physician’s opinion (1) that claimant met the listing for a spine disorder, and (2) that she was totally disabled from her inju ries. A treating source’s opinion is to be given controlling weight if it is “well supported by medically acceptable clinical . . . diagnostic techniques and is not inconsistent with the other-9-

substantial evidence.” 20 C.F.R. § 404.1527(d)(2). We agree with the ALJ that Dr. Merchant’s opinion was contrary to the medical evidence. As noted by the ALJ, Dr. Merchant concluded claimant was totally disabled based on “multiple disc herniations,” despite the a bsence of any medical evidence to support this conclusion. Aplt’s App., Vol. II at 22. None of claimant’s x-rays, CT scans, or MRI findings demonstrated multiple herniations, and claimant’s other treating sources found that she did not have such a condition. See id. at 148 (reporting that MRI views “reveal no significant le sions compressing neural structures”); 159 (“I do not see any evidence of a bulging or herniated cervical or lumbar disc, nor do I see evidence of a cervical [o r] lumbar radiculitis or radiculopathy.”). Further, the medical evidence di d not show any “significant motor loss with muscle weakness and reflex loss,” a s required under the listing for vertebrogenic disorders. See § 1.05(C)(2). The pages cited by claimant do not contain such evidence. See Aplt’s Br. at 12; Aplt’s App., Vol. II at 138, 141 , 159. The record also contradicted Dr. Merchant’s opinionthat claimant met the criteria of listing § 1.05(B)(1), which required x-ray evide nce of multiple fractured vertebrae with no intervening trauma. See id. at 138-39, 225 (x-rays showed no fractures of cervical, thoracic, or lumbar vertebra e). Where, as here, the ALJ decides that a treating sou rce’s opinion is not entitled to controlling weight, he must determine t he weight it should be given-10-

after considering the following factors: (1) the le ngth of the treatment relationship and the frequency of examination; (2) the nature an d extent of the treatment relationship, including the treatment provided and the kind of examination or testing performed; (3) the degree to which the treating source’s opinion is supported by objective evidence; (4) whether the op inion is consistent with the record as a whole; (5) whether or not the treating source is a specialist in the area upon which an opinion is given; and (6) other facto rs brought to the ALJ’s attention which tend to support or contradict the opinion. Drapeau v. Massanari , 255 F.3d 1211, 1213 (10th Cir. 2001). The ALJ conc luded Dr. Merchant’s opinion was not entitled to weight because he had o nly seen claimant twice for her back condition; his last examination of claiman t was more than a year before he completed the RFC forms; his opinion was contrary to the evidence; he provided little treatment or evaluation of claimant ’s back condition; and he was a family practitioner with no specialty in orthopedic s. As these were legitimate reasons for rejecting Dr. Merchant’s opinion, the A LJ did not err in doing so. Claimant argues that the ALJ erred in assessing hercredibility. Because credibility findings are peculiarly within the prov ince of the ALJ, we will not disturb such findings if they are supported by substantial evidence. See Kepler v. Chater , 68 F.3d 387, 391 (10th Cir. 1995). The ALJ ident ified numerous reasons for rejecting claimant’s testimony regarding her li mitations, including her lack of-11-

medical treatment or use of prescription medication ; her claim that she could not afford treatment despite her access to medical care through the UNMH indigency program; her failure to follow through with referra ls for medical and mental health care; her daily activities; her unsupported claim that she had cervical cancer; her 1995 reports to physicians that her con dition had improved considerably; and medical evidence that her conditi ons had resolved with conservative care. As the ALJ identified specific and legitimate reasons for doubting claimant’s credibility, we defer to his findings. See id. Claimant argues that the ALJ applied an incorrect l egal standard in assessing her compliance with recommended care. We need not address this issue because the ALJ specifically stated that he did notrely on claimant’s lack of compliance as a reason to deny benefits. See Aplt’s App., Vol. II at 24. Finally, claimant argues that the ALJ’s conclusions that she could perform her former work as a manicurist and could perform asignificant number of other jobs in the economy were not supported by substanti al evidence. Claimant argues that the demands of such jobs are inconsistent withthe limitations identified by Dr. Merchant. As we have already held that the ALJ did not err in rejecting Dr. Merchant’s opinion, the ALJ was not bound by th e restrictions identified by the physician. See Decker v. Chater , 86 F.3d 953, 955 (10th Cir. 1996). The-12-

ALJ’s conclusions were supported by the vocational expert’s hearing testimony, and therefore the ALJ did not err in finding that c laimant was not disabled. The district court’s judgment is AFFIRMED.

Entered for the Court

John C. Porfilio Circuit Judge