* This order and judgment is not binding precedent, e xcept under the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

### August 29, 2005 

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

VIRGINIA YOUNG,

Plaintiff-Appellant,

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

Defendant-Appellee. No. 04-7076 (D.C. No. 03-CV-438-P) (E.D. Okla.)

ORDER AND JUDGMENT *

Before HARTZ , McKAY , and PORFILIO , 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.1 Plaintiff’s application stated that she became unab le to work on March 30,

1998. At the hearing held on October 28, 1999, ho wever, she amended the alleged onset date to October 1, 1998, the date herunemployment benefits expired. In her appellate brief she asserts that s he has been disabled since October 28, 1999 (the same day as the hearing). -2- Plaintiff Virginia Young appeals from a district co urt order affirming the Social Security Commissioner’s decision denying herapplication for disability insurance benefits under the Social Security Act. W e exercise jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291. We affirm

. I. Plaintiff applied for disability insurance benefits alleging inability to work since October 1999 due to pain from arthritis in bo th shoulders, deteriorating discs in her lower back, and wrist damage. 1 In her brief to this court she also asserts other medical problems, such as migraine he adaches, shortness of breath, palpitations, digestive and urinary complaints, div erse musculoskeletal pain, depression, and anxiety. Plaintiff’s application for benefits was denied ini tially and on reconsideration, and a hearing was held in October 1999 before an administrative law judge (ALJ). In a decision dated January 14, 2 000, the ALJ denied Plaintiff’s application for benefits at step four of the five-s tep sequential evaluation process for determining disability. See 20 C.F.R. § 404.1520. In April 2002, however, the District Court for the Eastern District of Okla homa issued an order remanding2 This classification of Plaintiff’s past relevant wo rk as sewing-machine

operator was based on the testimony of the VE. So me confusion has been injected into the record by an examining physician’ s report stating that Plaintiff had done “heavy manual work” in the past. Aplt. Ap p. at 177. -3- the case to the Commissioner to re-evaluate Plainti ff’s medical records and then make specific findings regarding her residual funct ional capacity (RFC) measured against the demands of her past relevant work as a sewing machine operator. Upon remand the ALJ held a second hearing, with tes timony from Plaintiff and a vocational expert (VE). In a decision dated February 24, 2003, the ALJ determined that Plaintiff has a severe impairment o r combination of impairments, particularly lumbar degenerative joint disease and generalized osteoarthritis. But the ALJ found that her allegations concerning the d egree of her limitations were not totally credible in light of the medical record . The ALJ concluded that Plaintiff retained the RFC to perform light work re quiring stooping only occasionally and that her past relevant work of sew ing machine operator met these requirements. 2 Accordingly, the ALJ again determined that claima nt was not disabled at step four of the five-step sequenti al evaluation process. In June 2003 the Appeals Council issued a detailed and specific denial of Plaintiff’s request for review. Plaintiff then fil ed a complaint in the district court, which affirmed the denial of her application. This appeal followed.-4- II. Because the Appeals Council denied review, the ALJ ’s second decision is the Commissioner’s final decision for purposes of this appeal. See Doyal v. Barnhart , 331 F.3d 758, 759 (10th Cir. 2003); 20 C.F.R. § 4 16.1484(b)(2). In reviewing the Commissioner’s decision, “we neither reweigh the evidence nor substitute our judgment for that of the agency.” Casias v. Sec’y of Health &
Human Servs. , 933 F.2d 799, 800 (10th Cir. 1991). Instead, we determine only whether the correct legal standards were applied an d whether the ALJ’s factual findings are supported by substantial evidence in t he record. See Doyal , 331 F.3d at 760. In this appeal Plaintiff claims that the ALJ committed reversible error by (1) failing to give controlling weight to the opini ons of her treating physicians and (2) failing to determine her RFC properly. Pla intiff’s arguments are without merit. A. Treating Physicians’ Opinions In deciding how much weight to give the opinion of a treating physician, an ALJ must first determine whether the opinion is ent itled to “controlling weight.” Watkins v. Barnhart , 350 F.3d 1297, 1300 (10th Cir. 2003). An ALJ is required to give the opinion of a treating physician controllin g weight if it is both (1) “well-supported by medically acceptable clinical an d laboratory diagnostic-5-

techniques” and (2) “consistent with other substantial evidence in the record.” Id. (internal quotation marks omitted). “[I]f the opin ion is deficient in either of these respects, then it is not entitled to controlling weight.” Id. Even if a treating physician’s opinion is not entit led to controlling weight, “[t]reating source medical opinions are still entit led to deference and must be weighed using all of the factors provided in 20 C.F.R. § 404.1527.” Id. (internal quotation marks omitted). The factors include: (1) the length of the treatment relationship and th e frequency of examination; (2) the nature and extent of the treat ment relationship, including the treatment provided and the kind of ex amination or testing performed; (3) the degree to which the phys ician’s opinion is supported by relevant evidence; (4) consistency between the opinion and the record as a whole; (5) whether or not the p hysician is a specialist in the area upon which an opinion is ren dered; and (6) other factors brought to the ALJ’s attention which tend t o support or contradict the opinion. Id. at 1300-01 (internal quotation marks omitted). Af ter considering these factors, the ALJ must “give good reasons” for the weight he ultimately assigns the opinion. 20 C.F.R. § 404.1527(d)(2). “Finally, if the ALJ r ejects the opinion completely, he must then give specific, legitimate reasons for doing so.” Watkins , 350 F.3d at 1301 (internal quotation marks omitted). Here, Plaintiff alleges error in the ALJ’s handling of form medical source statements completed by Dr. Jose Pabilona on Novemb er 2, 1999, and by Dr. Victoria Pardue on August 5, 2002. Dr. Pabilo na essentially stated that-6-

beginning in 1997 Plaintiff was unable to perform f ull-time work at any exertional level. In “describ[ing] the principal, clinical an d laboratory findings and symptoms or allegations (including pain)” which sup ported this conclusion, Dr. Pabilona listed a hospitalization for back pain in 1997 (before Plaintiff’s alleged onset date), “all kinds of lab and x-ray st udies” showing deteriorating discs, and prescriptions for pain medications. Apl t. App., Tab 4 at 211. The ALJ’s decision reviewed Plaintiff’s medical rec ords and determined that he could not give much weight to Dr. Pabilona’s statement. The ALJ gave quite specific reasons for this determination: (1) that D r. Pabilona was not the admitting or consulting physician during the 1997 hospitalization; (2) that the attending physician actually was concerned about kidney infec tion and possible bowel disorder rather than pain of musculoskeletal etiolo gy; (3) that x-rays showed only mild to moderate degenerative changes; and (4) thatDr. Pabilona, as a general practitioner and clinical gynecologist, is not part icularly well-qualified to give an assessment of Plaintiff’s orthopedic status

. The ALJ also generally noted that “Dr. Pabilona’s records fail[ed] to reflect any spe cific examination findings.” Supplemental App. at 260. The ALJ conducted a similar evaluation of Dr. Pardu e’s disability assessment, in which Dr. Pardue opined that Plainti ff’s “[e]xtreme pain in upper & lower extremities” significantly limited her capabi lities and required her to lie-7-

down during the normal workday. Id. at 412. The ALJ considered the pertinent factors in light of the medical records, noting that (1) Dr. Pardue had not often treated Plaintiff for her complaint of back and low er extremity pain; (2) Dr. Pardue saw Plaintiff mainly for the renewal of prescriptions (including prescriptions for pain medications); (3) Dr. Pardue referred Plaintiff to other physicians, resulting in unremarkable diagnostic te sts and evaluations; and (4) the primary basis for Dr. Pardue’s opinion was Plaintif f’s subjective description of her condition. He then determined that Dr. Pardue’s opinion was not substantiated by the clinical and diagnostic findings reflected i n her treatment records. The evidence supports the ALJ’s determination to as sign insignificant weight to the opinions of Dr. Pabilona and Dr. Pardue. See Hamilton v. Sec'y of Health & Human Servs ., 961 F.2d 1495, 1498 (10th Cir. 1992) (stating th at it is within the province of the ALJ to weigh the medical evidence and discount it for specific and legitimate reasons). We find no basis for Plaintiff’s argument that the ALJ ignored parts of the physicians’ medical record s, interjected his own medical opinion, or made speculative inferences. Furthermo re, we conclude that the ALJ adequately considered the requisite factors in his decision. In short, the ALJ’s decision provides factually supported and legally s ufficient reasons for rejecting the treating physicians’ opinions.-8-

B. Residual Functional Capacity Assessment Plaintiff claims that in determining that she coul d perform light work requiring only occasional stooping, the ALJ incorre ctly assessed her RFC. The determination of RFC is an administrative assessment, based upon all the evidence of how the claimant’s impairments and related sympt oms affect her ability to perform work-related activities. See Soc. Sec. Rul. 96-5p, 1996 WL 374183, at *2, *5. The final responsibility for determining RFC r ests with the Commissioner, based upon all the evidence in the record, not only the relevant medical evidence.
See 20 C.F.R. §§ 404.1527(e)(2); 404.1545(a)(3); 404.1 546(c). According to Plaintiff, the RFC assessment is in error because the ALJ failed to include all the physical limitations set out in the opinions of her treating physicians and the report of the examining physicia n, Dr. Charles T. Marrow. We have already rejected Plaintiff’s claim that the AL J erred in evaluating the opinions of her treating physicians. And contrary to Plaintiff’s contention, the ALJ carefully discussed Dr. Marrow’s report of his examination, including his final impression that “although claimant was unsuit able for ‘heavy manual work’ she was a suitable candidate for vocational trainin g” in “‘sedentary type work.’” Supplemental App. at 261 (quoting Marrow report, Ap lt. App., Tab 4 at 177). As the ALJ explained, “Dr. Marrow was not asked to pro vide a specific functional capacity analysis,” it was “uncertain what he meantby the term ‘sedentary,’” and-9-

there was “no compelling evidence upon which to con clude that Dr. Marrow ruled out claimant for ‘light’ work.” Id. See also S.S.R. 96-5p, at *5. (“Adjudicators must not assume that a medical source using terms s uch as ‘sedentary’ and ‘light’ is aware of our definitions of these terms.”). Having reviewed the evidence concerning Plaintiff’s severe impairments, including her lower back pain, we conclude that the ALJ’s RFC determination is supported by substantial evidence. The judgment of the district court is AFFIRMED. Entered for the Court

Harris L Hartz Circuit Judge