* This order and judgment is not binding precedent, e xcept under the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

### December 13, 2005

Clerk of Court UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

ELLIE E. SHUBARGO,

Plaintiff-Appellant,

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

Defendant-Appellee. No. 05-7003 (D.C. No. CIV-04-08-W) (E.D. Okla.)

ORDER AND JUDGMENT *

Before HENRY, ANDERSON , and TYMKOVICH , 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. Claimant Ellie E. Shubargo appeals from an order of the district court affirming the Commissioner’s denial of her claim fo r Social Security benefits.-2-

We exercise jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291 and reverse and remand. I. Background Mrs. Shubargo injured her back in April 1997 and ha s not worked since. In June 1998, she filed an initial application for dis ability benefits. After conducting a hearing, the Administrative Law Judge (ALJ) found that Mrs. Shubargo had a mild-to-moderate cervical/thora cic spinal sprain and functioned at the borderline level of intellectual functioning. He concluded, however, that she had no impairment meeting the cri teria of any of the listed impairments described in Appendix 1 of the Regulati ons. See 20 C.F.R., part 404, subpart P, app. 1. The ALJ also found that objecti ve clinical and laboratory diagnostic findings did not support Mrs. Shubargo’s claims of disabling pain and that her pain did not preclude the performance of at least light work. Her request for benefits was denied in September 1999. Mrs. Sh ubargo did not judicially appeal from that decision, and it is binding in thi s appeal. See 20 C.F.R. § 404.955

. The appeal at bar arises out of Mrs. Shubargo’s sec ond disability application, filed in August 2001. There, she agai n claimed disability resulting from the same incident occurring in 1997, asserting that her condition had worsened. Her claim was denied at the initial stag e and on reconsideration, and a-3-

second hearing was held on March 26, 2003. Followi ng that hearing, the ALJ concluded once again that Mrs. Shubargo, who was fo rty-five years old at that time, was not disabled. The ALJ found that Mrs. Sh ubargo suffers from degenerative disc disease and an anxiety-related di sorder and is unable to read. But he nevertheless concluded at step four of the s equential evaluation process, see Williams v. Bowen, 844 F.2d 748, 750-51 (10th Cir. 1988) (discussing the five-step process set forth in 20 C.F.R. § 404.1520 ), that she could return to her past light work as a housekeeper. Alternatively, a fter consulting a vocational expert, the ALJ concluded at step five that, even i f Mrs. Shubargo could not return to her past work as a housekeeper, there was other light and sedentary work existing in substantial numbers in the national eco nomy that she could perform. The Appeals Council denied Mrs. Shubargo’s request for administrative review, making the ALJ’s decision the final decision of the Commissioner. See Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir. 2003). Mrs. Shubargo appealed the decision to the district court, which affirmed the decision of the Commissioner. In her appeal to this court, Mrs. Shubargo asserts that the ALJ erred by (1) failing to explain why her impairments do not m eet the criteria of a listed impairment; (2) failing to either properly weigh th e opinion of Dr. Kinney, who Mrs. Shubargo listed as a treating physician, or to contact him to determine whether he had actually treated her; (3) failing to perform a proper credibility-4-

analysis; and (4) ignoring a medical report prepare d by a consulting physician that opines that Mrs. Shubargo can only perform sedentary work.
II. Standard of review “[T]he burden to prove disability in a social secur ity case is on the claimant.” Hawkins v. Chater, 113 F.3d 1162, 1164 (10th Cir. 1997). We review the Commissioner’s decision “to determine whether the factual findings are supported by substantial evidence in the record andwhether the correct legal standards were applied.” Hamlin v. Barnhart, 365 F.3d 1208, 1214 (10th Cir. 2004) (quotation marks omitted). “[B]ecause our re view is based on the record taken as a whole, we will meticulously examine the record in order to determine if the evidence supporting the agency’s decision is su bstantial,” but we “neither reweigh the evidence nor substitute our discretion for that of the Commissioner.” Id. (quotation marks and brackets omitted). When dete rmining whether correct legal standards were applied and evidence is substantial, we examine whether the ALJ followed the agency’s specific rules. See Frey v. Bowen, 816 F.2d 508, 512 (10th Cir. 1987). With these standards in mind, we address each of Mrs. Shubargo’s claims of error. III. Analysis 1. Step three analysis. At step three of the sequential evaluation, a claimant must establish that her impairment is so s evere that it is equivalent to all-5-

of the criteria of a specific listed impairment. See Sullivan v. Zebley , 493 U.S. 521, 530 (1990). A finding that an impairment meet s a listing creates a presumption of disability. Id. at 532. Mrs. Shubargo contends that the ALJ erred in failing to discuss why she did not meet a listed impairment. See Clifton v. Chater , 79 F.3d 1007, 1009 (10th Cir. 1996) (holding that an ALJ is “required to discuss the evidence and explain why he found that appellant was not disabled at step three”). We conclude that Clifton’s step three analysis is factually distinguishable.
In Clifton the court specifically noted that the ALJ failed t o “discuss the evidence or his reasons for determining that appellant was n ot disabled at step three.” Id. Here, in contrast, the ALJ evaluated all of the med ical evidence (including evidence from Mrs. Shubargo’s first application, wh ich was submitted for historical purposes) and explained what weight he g ave to it. He obtained a medical expert’s testimony that Mrs. Shubargo did n ot meet a spinal disorder listing. The ALJ explained why he rejected the rec ords from Dr. Kinney’s office and why he had doubts as to Mrs. Shubargo’s credibi lity. He discussed the psychiatric review technique forms in the medical r ecord and accepted two medical opinions stating that Mrs. Shubargo is onlymoderately limited in understanding and remembering detailed instructions and interacting appropriately with the general public. While our review would have been easier if the ALJ had-6-

set forth the specific criteria in the listings that he concluded Mrs. Shubargo did not meet, we hold that the ALJ sufficiently explain ed why he believed that Mrs. Shubargo is not presumptively disabled. 2. Physician assistant evidence. Mrs. Shubargo submitted medical records from three visits she made to Dr. Kinney’s office over the course of ten months. Mrs. Shubargo admits, and the medical reco rds show, that she was treated by Dr. Kinney’s physician’s assistant (PA), Bill Evans each time. Aplt. Br. at 22. In the first of these records, Mrs. Shu bargo complained only of difficulty in sleeping because of stress. In the s econd, she complained of chronic lumbar pain. No X-rays or MRIs of Mrs. Shubargo’s lumbar spine are in the medical record, and the PA ordered none. But the P A noted positive straight leg raising signs in both legs, weakness in the left le g, decreased patellar reflexes, and decreased sensation in the lower left leg. He diagnosed low back pain with radiculopathy. One month later, the PA saw Mrs. Shubargo for the p urpose of filling out a residual functional capacity (RFC) form, and he pre scribed Darvocet. Although he conducted no further diagnostic tests, PA Evans changed his diagnosis on the RFC form to herniated lumbar disc. PA Evans opinedthat Mrs. Shubargo could walk less than one block and sit and stand no more than two hours in an eighthour workday for no more than ten minutes at a time . He stated that she would-7-

have to shift positions at will between sitting, st anding, and walking, and that she would need unscheduled breaks. She would have to e levate her left leg at times when sitting, and would have to use a cane when wal king or standing. And she could occasionally lift less than ten pounds, and w as limited in performing repetitive reaching, handling, or fingering. Mrs. Shubargo asserts that the ALJ erred by failing to give this report, which she characterizes as Dr. Kinney’s opinion, co ntrolling weight. See 20 C.F.R. § 404.1527(d)(2); Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003) (stating that an ALJ is required to give the opinion of a treating physician controlling weight if it is both (1) “well-supporte d by medically acceptable clinical and laboratory diagnostic techniques” and (2) “consistent with other substantial evidence in the record”) (quotation mar ks omitted). The ALJ rejected the medical report from Dr. Kinney ’s office, concluding that “little or no weight can be given to the recor ds” because the PA, and not Dr. Kinney, actually treated Mrs. Shubargo. Aplt. App. Vol. 2 at 25. The ALJ also found that the restrictions provided by PA Evans were inconsistent with the medical evidence in the record. The medical opinions of a PA are not entitled to co ntrolling weight under the statutes. “Sources who can provide evidence to establish an impairment” that may be entitled to controlling weight include only licensed physicians,-8-

optometrists, and podiatrists; licensed or certifie d psychologists; and qualified speech-language pathologists. 20 C.F.R. § 404.1513 (a). The ALJ should use a PA’s medical observations to assist him in determin ing the severity of a claimant’s impairments and how they affect her abil ity to work, see § 404.1513(d) (allowing consideration of other medical-source evi dence and defining “other sources” to include physicians’ assistants), but a PA’s opinion does not carry the same weight as the medical opinion of a licensed physician. The ALJ was not required to give controlling weight to PA Evans’ op inion. We also reject Mrs. Shubargo’s claim that the ALJ s hould have contacted Dr. Kinney to determine whether he treated her. Th e medical records, on their face, showed that PA Evans conducted all tests and prepared the RFC forms (even though Dr. Kinney also placed his signature on themtwo years later), and Mrs. Shubargo never asserted that Dr. Kinney actual ly treated her. Under these facts, the ALJ had no duty to contact Dr. Kinney. See 20 C.F.R. § 404.1512(e) (ALJ must recontact medical source for additional i nformation when evidence is inadequate for the ALJ to make a determination of d isability); cf. White v. Barnhart , 287 F.3d 903, 908-09 (10th Cir. 2001) (noting that rejection of physician’s opinion does not trigger duty to recont act when record is adequate for consideration).-9-

Finally, we conclude that the ALJ’s statement that PA Evans’ opinion and limitations are inconsistent with the medical recor d is supported by substantial evidence. Dr. Anagnost, who treated Mrs. Shubargo at the end of 1999 (before she saw PA Evans during 2001), stated that Mrs. Shu bargo could walk without difficulty and had essentially “good range of motio n” and only “mild evidence of cervical spondylosis.” Aplt. App. Vol. 2 at 396-97 . He recommended physical therapy. Dr. Grubb, who examined Mrs. Shubargo in October 2001 after PA Evans prepared his RFC, stated that the records ind icated that she had only a mildly bulging disc in her cervical spine (even tho ugh Mrs. Shubargo told him that her MRI revealed disc disease in both her lumb osacral spine and cervical spine). He found that her gait was normal, and she did not appear to be in need of a cane. She had normal grip strength and dexterity , and had no tenderness or muscle spasms. Consulting physicians stated in var ious assessments that Mrs. Shubargo should be able to do simple, repetiti ve work in a low stress environment and that she is able to adapt to work s ituations even with her mental impairments. 3. Credibility analysis . Mrs. Shubargo next challenges the ALJ’s assessment of her credibility, asserting that he di d not properly discuss all the factors set forth in Luna v. Bowen , 834 F.2d 161, 165-66 (10th Cir. 1987). She claims that the ALJ used only boilerplate language that is impermissible, citing-10-

Hardman v. Barnhart , 362 F.3d 676, 679-80 (10th Cir. 2004). The recor d belies this assertion. The ALJ specifically noted that Mrs. Shubargo’s cla ims of limited range of motion were not consistent with medical records that at times showed her range of motion to be “largely normal.” Aplt. App. Vol. 2 at 24. The ALJ noted that her treating physician recommended only routine and con servative treatment (physical therapy) even though she claimed to have severe, un relenting pain. See Kepler v. Chater, 68 F.3d 387, 390 (10th Cir. 1995) (noting that it is difficult for a claimant “[t]o establish disabling pain without the explicitconfirmation of treating physicians”) (quotation marks omitted). He stated that her description of her pain was so “extreme as to appear implausible,” noting t hat she did not take medications very often or use a cane or other assis tive device. Aplt. App. Vol. 2 at 24. The ALJ noted evidence indicating that one physician thought Mrs. Shubargo did not put forth maximal effort duri ng examinations and that she told them that her MRI indicated lumbosacral disc d isease, when that was not true. We generally defer to an ALJ’s evaluation of credibility as long as the findings are linked to substantial evidence. Kepler , 68 F.3d at 391. The ALJ’s findings were sufficiently linked to such evidence. Mrs. Shubargo next argues that the ALJ “missed, ign ored, or miscast evidence that reflected well upon Claimant’s credib ility.” Aplt. Br. at 30. Our-11-

job as a reviewing court, however, is to determine whether the ALJ’s credibility determination is sufficiently detailed and supporte d by substantial evidence. The fact that he may have missed, ignored, or misunders tood certain evidence that might support Mrs. Shubargo’s claims of disabling p ain does not mandate reversal as long as, on the whole record, substantial eviden ce supports his credibility determination. See Hamlin , 365 F.3d at 1214. Further, the evidence Mrs. Shubargo claims the ALJ missed, ignored, or misinterpreted is inconsistent or nonexistent. Forexample, although Mrs. Shubargo appeared to be weak at toe walking inone examination, two other examinations indicated that she could toe walk norm ally. The medical records Mrs. Shubargo cites to support her claim that she h as asymmetrical circumferential calf and thigh measurements and atr ophy that the ALJ ignored do not contain such measurements. Further, the cited records specifically state that she “has no muscle atrophy.” Aplt. App. Vol. 2 at 252. The medical reports note both a normal gait and grip strength. Thus the ALJ did not ignore a finding of atrophy. Mrs. Shubargo asserts that the ALJ misstated her te stimony when he said that she claimed her pain symptoms are present “‘co nstantly’ or all of the time.” Id. at 24. She asserts that she never “stated her pain was constant.” Aplt. Br. at 34. But this assertion is also belied by the recor d. Mrs. Shubargo claimed to be-12-

“in a state of constant pain” in her application fo r reconsideration in 1999, Aplt. App. at 108, and at the hearing she testified that, because of her pain, she lay down “most of the time . . . that’s all I do,” id. at 83. She claimed that moving caused her pain. Id. at 85. These statements support the ALJ’s interpr etation that Mrs. Shubargo complained of constant pain. Mrs. Shubargo’s claim that the ALJ omitted the alle ged fact that “she had a dangerously low drop in her blood pressure during [ a trigger-point] injection procedure,” which would explain why there were no f urther attempts to perform injections, Aplt. Br. at 33, is contradicted by the record. The statement regarding Mrs. Shubargo’s blood pressure is a pre-admission n ote about anesthesia history made before the injection procedure. See Aplt. App. Vol. 2 at 170. Mrs. Shubargo actually “tolerated the [trigger poin t] procedure well” with “no adverse reactions,” id. at 175, 174, and chose not to have further injecti ons because she said they did not help her, see id. at 244. Finally, we reject Mrs. Shubargo’s claim that the A LJ erred by ignoring a medical note limiting her activity and a vocational report from 1997. The medical note was prepared before Mrs. Shubargo underwent physical therapy and other palliative treatment and was for a limited six-day period in May 1997. And both the note and the vocational report were considered in the September 1999 adjudication in which the ALJ found that Mrs. Shubargo could still perform light-13-

work. The ALJ had no duty to again discuss them inthe adjudication that covered the period from September 1999 through September 20 01. 4. Step four and step five analysis. Three non-examining, non-treating medical experts, one who is a state DDS physician a nd two who are employed by the agency, prepared RFC forms or opinions for Mrs. Shubargo. One of the agency experts, Dr. Woodcock, stated that Mrs. Shub argo could occasionally lift and/or carry ten pounds, frequently lift and/or car ry less than ten pounds, stand and/or walk at least two hours in an eight-hour workday, and sit a total of about six hours in an eight-hour workday. He based his o pinion on the medical records from PA Evans and Dr. Grubb. These exertional limi tations indicate that Mrs. Shubargo has the capacity to perform only sede ntary work. See 20 C.F.R. § 404.1567(a). But based on these same medical records, the DDS physician and the second agency expert stated that Mrs. Shubargo coul d perform light work. The ALJ briefly mentioned the existence of Dr. Woodcock ’s report in his decision, but he did not discuss Dr. Woodcock’s RFC findings. The ALJ asked the second non-examining agency medic al expert, Dr. Krishnamurthi, to attend the hearing, review th e medical records, and testify regarding Mrs. Shubargo’s RFC. Dr. Krishnamurthi t estified that, based on the medical records and the hearing testimony, Mrs. Shu bargo could perform light-14-

work, with no restrictions on pushing, pulling, or reaching. The ALJ concluded that Mrs. Shubargo can perform light work, includin g returning to her past light work as a housekeeper. Citing Clifton , 79 F.3d at 1010 (stating that an ALJ “must discus s the uncontroverted evidence he chooses not to rely upon , as well as significantly probative evidence he rejects”), and Doyal , 331 F.3d at 764 (noting that Social Security rulings provide that medical source opinio ns “must never be ignored”) (quotation marks omitted), Mrs. Shubargo asserts th at the ALJ erred in failing to consider and discuss Dr. Woodcock’s RFC report stat ing that she can perform only sedentary work. She further contends that, h ad the ALJ accepted Dr. Woodcock’s opinion that she can perform only se dentary work, given her age, lack of transferrable skills, and illiteracy, the M edical-Vocational Guidelines direct a finding of disability. See 20 C.F.R. pt. 404, subpt. P, app. 2 § 201.00(h)(1) (providing that “a finding of ‘disab led’ is warranted for individuals age 45-49 who . . . [a]re restricted to sedentary work, . . . [a]re unskilled or have no transferable skills, . . . can no longer perform past relevant work, and . . . [a]re unable to . . . read or write in English”). Under 20 C.F.R. § 416.927(f)(2)(i) and (ii), an ALJ “must consider findings of State agency medical . . . consultants . . . as opinion evidence, except for the ultimate determination about whether you are disabl ed,” and, “[u]nless the-15-

treating source’s opinion is given controlling weig ht, the administrative law judge must explain in the decision the weight given to th e opinions of a State agency medical . . . consultant . . . .” The Commissionerasserts that, because of the discrepancies in the medical opinions from state ag ency experts, the ALJ engaged Dr. Krishnamurthi to assist him in resolving the is sue of Mrs. Shubargo’s RFC capacity. But the Commissioner does not contend th at the ALJ had no duty to discuss Dr. Woodcock’s medical opinion, and the age ncy requires ALJs to weigh all medical source opinion evidence and explain in their decision why they rely on a particular non-examining agency expert’s opinion when opinions are conflicting. See § 404.1527(f); Hamlin , 365 F.3d at 1223 (“If an ALJ intends to rely on a nontreating physician or examiner’s opini on, he must explain the weight he is giving to it.”). We conclude that this case must be remanded for the ALJ to consider and discuss Dr. Woodcock’s medical opinionand to explain why he rejected it in favor of other non-examining consult ative opinions. See Clifton , 79 F.3d at 1009-1010 (explaining that courts “should n ot properly engage in the task of weighing evidence in cases before the Social Sec urity Administration” and remanding for ALJ to weigh evidence and give reason s for rejecting medical evidence). We reject, however, Mrs. Shubargo’s contention thatthe ALJ also erred by failing to discuss a statement by an agency clerk t hat Mrs. Shubargo had difficulty-16-

understanding, concentrating, and maintaining coher ency during an interview. In the note explaining the three checkmarks placed in boxes with those headings, the clerk explained that Mrs. Shubargo “stated that she was mentally retarded and did have trouble remembering dates and names.” Aplt. App. Vol. 2 at 355. The ALJ listened to Mrs. Shubargo’s testimony and considere d the opinions of psychological and medical experts who later opined that she is able to follow simple instructions; that she is only moderately li mited in the ability to work with instructions and interact appropriately with the pu blic; and that she has only mild difficulties in the areas of concentration, persist ence, and pace. An ALJ is not required to discuss every piece of evidence that he rejects; he must only discuss evidence that is “significantly probative.” Clifton , 79 F.3d at 1010. In light of the uncontroverted opinion evidence garnered from p sychologists and the clerk’s explanation, the clerk’s observations were not sign ificantly probative and the ALJ was not required to discuss why he did not rely on them. In conclusion, because the ALJ did not state whethe r he considered Dr. Woodcock’s medical opinion that Mrs. Shubargo i s capable only of sedentary work and did not weigh the medical experts’ conflic ting opinions, this case must be remanded to the Commissioner. The remand is forthe limited purpose of reconsidering whether Mrs. Shubargo is disabled in light of Dr. Woodcock’s RFC-17-

evaluation and the applicable medical-vocational gu idelines, and to issue a decision explaining the weight he gives the conflic ting medical opinions. The judgment of the district court is REVERSED withinstructions to remand to the Commissioner for further development consistent with this order and judgment.

Entered for the Court

Timothy M. Tymkovich Circuit Judge