UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

ALTHEA YVONNE BARNHILLSTEMLEY, 

 Plaintiff - Appellant, 

v. 

CAROLYN W. COLVIN, Acting 

Commissioner of the Social Security 

Administration, 

 Defendant - Appellee. 

No. 14-1163 

(D.C. No. 1:12-CV-02334-REB) 

(D. Colo.)

 

ORDER AND JUDGMENT*

 

Before GORSUCH, O’BRIEN, and HOLMES, Circuit Judges. 

 

 The Commissioner of the Social Security Administration (Commissioner) 

denied Althea Yvonne Barnhill-Stemley’s application for social security disability 

insurance benefits. She now appeals for relief from this court arguing, as she did in 

the district court, the Administrative Law Judge (ALJ) failed to evaluate properly all 

 

*

 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. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

April 23, 2015

Elisabeth A. Shumaker 

Clerk of Court

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of the medical-source evidence and the ALJ’s credibility determination regarding her 

headaches was flawed resulting in an assessment of her residual functional capacity 

(RFC) assessment not supported by substantial evidence. We affirm.1

BACKGROUND

The parties are familiar with the facts and the medical record in this case so we 

discuss the evidence only as necessary to address Barnhill-Stemley’s claims on 

appeal. Her last insured date for disability benefits was December 31, 2009; she 

alleged disability making her unable to work since July 8, 2005. At steps one and 

two of the requisite sequential analysis, the ALJ found during this time period she 

had not engaged in substantial gainful activity and had severe impairments from 

coronary artery disease with history of myocardial infarction and angina, asthma, 

chronic obstructive pulmonary disease (COPD), obesity, degenerative disc disease of 

the lumbar spine, and degenerative joint disease of the knees. See Wall v. Astrue, 

561 F.3d 1048, 1052 (10th Cir. 2009) (describing the five-step sequential analysis). 

At step three, the ALJ determined none of her severe impairments met or equaled a 

disabling impairment described in the Listings, 20 C.F.R. Pt. 404, Subpt. P, App. 1. 

The ALJ then determined, through her date last insured, she had the RFC 

to perform a range of light work as defined in 20 C.F.R 404.1567(b) 

with the following limitations: she was able to sit for 6 hours total in an 

8-hour workday; stand and/or walk for 15 minutes at one time and for 4 

hours total in an 8-hour workday; occasionally stoop and kneel; 

frequently reach, handle and finger; and should avoid exposure to 

 

1

 Our jurisdiction derives from 28 U.S.C. § 1291 and 42 U.S.C. § 405(g). 

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concentrated dust, fumes and odors, and temperature extremes of heat 

and cold. 

Aplt. App., Vol 1 at 19. 

Based on the record and testimony from a vocational expert, the ALJ made the 

dispositive step-four determination: Barnhill-Stemley’s RFC did not preclude her 

from returning to her past relevant work as a telephone interviewer, quality assurance 

coordinator, supervisor and manager. The Appeals Council denied review, and the 

district court affirmed. 

DISCUSSION

We review the agency’s decision to determine whether substantial evidence 

supports its factual findings and whether it applied the correct legal standards. Wall, 

561 F.3d at 1052. “Substantial evidence is such relevant evidence as a reasonable 

mind might accept as adequate to support a conclusion.” Id. (internal quotation 

marks omitted). “We may neither reweigh the evidence nor substitute our judgment 

for that of the agency.” Barnett v. Apfel, 231 F.3d 687, 689 (10th Cir. 2000) (internal 

quotation marks omitted). 

I. MEDICAL OPINION EVIDENCE

Barnhill-Stemley argues the ALJ erred by not accounting for all of the 

restrictions identified by a consulting examiner, Dr. Qutub, and by giving very little 

weight to the opinion of two of her treating physicians, Drs. Radley and Fairbairn. 

“Where, as here, the ALJ decides not to give controlling weight to a treating 

physician’s opinion, the ALJ must decide whether the opinion should be rejected 

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altogether or assigned some lesser weight.” Newbold v. Colvin, 718 F.3d 1257, 1265 

(10th Cir. 2013) (internal quotation marks omitted). Even if an opinion is not 

entitled to controlling weight, the ALJ must still weigh the opinion in light of the 

factors set forth at 20 C.F.R. § 404.1527. Id. 

Dr. Qutub. Qutub made a detailed functional assessment, which the ALJ 

described as extensive and supportive of the ALJ’s RFC determination. Qutub’s 

assessment allowed as how she might need “[i]ncreased frequency of breaks” based 

on her respiratory and angina symptoms, “likely in 15 minute intervals per her 

history.” Aplt. App. at 436. He also noted his “[p]hysical exam suggests she might 

be able to do more.” Id. 

The ALJ’s RFC determination (Barnhill-Stemley was limited to work in which 

she could stand or walk for no more than fifteen minutes at a time) quoted Qutub’s 

opinion. But Barnhill-Stemley tells us the ALJ erred by failing to include Qutub’s 

express statement that Barnhill-Stemley might need breaks in 15 minute intervals. 

According to her, the omission means the ALJ improperly relied only on evidence 

from the consulting examiners’ reports favoring his decision. See Hardman v. 

Barnhart, 362 F.3d 676, 681 (10th Cir. 2004) (“It is improper for the ALJ to pick and 

choose among medical reports, using portions of evidence favorable to his position 

while ignoring other evidence.”). She is splitting hairs; the ALJ’s RFC limitation of 

standing or sitting for no more than fifteen minutes at a time in his RFC 

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determination adequately accounts for Qutub’s statement about breaks at fifteen 

minute intervals. 

Dr. Radley. In a March 2008 RFC questionnaire, Radley said 

Barnhill-Stemley could not walk any city blocks and could only stand or walk for ten 

minutes at a time. According to Radley, in an eight-hour workday, Barnhill-Stemley 

needed to recline or lie down two hours, could sit for only four hours, could stand or 

walk for zero hours and could stoop and crouch for zero hours. Radley went on: she 

needed to take ten to fifteen minute unscheduled breaks every thirty minutes and 

would be absent from work more than four times a month. In later (April 2008) 

cardiac and pulmonary RFC questionnaires, Radley imposed even more severe 

functional limitations: in an eight-hour workday, she needed to recline or lie down 

for five hours, and could sit for no more than a total of two hours, thirty minutes at a 

time. Moreover, she was incapable of performing even low stress jobs and her 

symptoms would interfere with her attention and concentration. 

The ALJ concluded Radley’s medical treatment records from office visits did 

not support the severity of these restrictions. The notes from the office visits did not 

identify any need for her to lie down or recline for five hours in an eight-hour 

workday, any inability to sit, stand, and walk for more than three hours in a workday, 

or any breathing attacks leaving her so incapacitated she needed to miss four days of 

work a month. Interestingly, the ALJ noted, Radley’s opinion dated severe 

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restrictions as beginning in 2003, which was inconsistent with her gainful 

employment at that time. 

Barnhill-Stemley takes issue with this last comment. Her income declined by 

twenty percent in 2003 and she had no income in 2004. That, she says, supports 

Radley’s RFC opinions. But a claimant’s annual income is not a criteria to be 

considered when evaluating a medical source opinion. See 20 C.F.R. § 404.1527. 

She was gainfully employed in skilled full-time work in 2003, during a time period 

when Radley considered her restrictions to be so severe as to require her to lie down 

five hours in an eight-hour workday. The evidence supports the ALJ’s assertion. 

Barnhill-Stemley also points to Radley’s medical records describing her 

symptoms, such as chest pain, dyspnea, and shortness of breath, which supports 

Radley’s RFC opinion. But the ALJ did not discount Radley’s opinion because the 

office records lack evidence of her impairments, but because they did not support the 

severity of limitations the doctor described in her RFC opinions. Our review of 

Radley’s records reveals substantial evidence supporting the ALJ’s conclusion. 

Discrepancies between a treating physician’s very restrictive functional assessment 

and that physician’s contemporaneous treatment notes are a legitimate factor for 

discounting a medical opinion. White v. Barnhart, 287 F.3d 903, 907-08 (10th Cir. 

2002). 

Dr. Fairbairn. Barnhill-Stemley saw Fairbairn three times. She first saw him 

in November 2009, complaining of migraine headaches and dizziness. He ordered a 

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CT scan and noted her refusal of medication for her headaches. The CT scan results 

were normal. She saw Fairbairn in February 2010, when she asked him to complete 

disability forms. His report noted her complaints, but his examination notes report 

she was in no acute distress, her breathing was comfortable, without wheezing, and 

her heart rate was regular. The doctor referred her to a neurologist and a pulmonary 

specialist. In June 2010, she went back to Dr. Fairbairn, again requesting him to 

complete disability forms. But his examination again found no acute distress; she 

constantly stood up and sat down; her lungs were clear; her breathing comfortable 

without any diminished breath sounds or wheezing; her asthma was controlled; there 

was no evidence that day of her COPD; and her heart had a regular rate and rhythm 

and no murmurs. His notes indicate she would be seeing a neurologist that day. He, 

completed her disability forms during the office visit. 

The specialists to whom she was referred by Fairbairn all found mild or no 

impairments. As the ALJ discussed in detail, these specialists found no focal 

neurological abnormalities, no movement disorder, clear lungs, normal spirometry 

tests, and mild cardiologic findings. One of the specialists found no nerve root 

compression on examination, found no reason for surgery, and recommended she 

begin conservative treatment for her symptoms of musculoskeletal pain because she 

had never tried any physical or chiropractic therapy nor had injections for pain. 

According to Fairbairn, in an eight-hour workday Barnhill-Stemley was 

limited to sitting for only two hours total; standing or walking for one hour; and 

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would need five to ten minute unscheduled breaks every ten to twenty minutes. He 

said she should never lift more than ten pounds, never use her right hand or her right 

or left fingers, could only use her right and left arms for thirty percent of the 

workday, and could only use her left hand for five percent of the workday. The ALJ 

gave very little weight to Fairbairn’s opinion because it was not supported by the 

reports of the medical specialists to whom Fairbairn had referred her. See 20 C.F.R. 

§ 404.1527(c)(5) (“We generally give more weight to the opinion of a specialist 

about medical issues related to his or her area of specialty than to the opinion of a 

source who is not a specialist.”). Fairbairn’s opinion was also discounted because it 

was not supported by his own examination records and was inconsistent with 

well-supported examinations by three consultative physicians. 

Barnhill-Stemley first asserts it was error for the ALJ to regard Fairbairn’s 

opinion as based only her subjective complaints, rather than on medical evidence. 

She counts that as a prohibited speculative inference. Of course an ALJ may not 

speculate but must have a legal or evidentiary basis for asserting a medical source 

report was based on subjective complaints. See Langley v. Barnhart, 373 F.3d 1116, 

1121 (10th Cir. 2004). Here, the ALJ had, and articulated, the evidentiary basis for 

his conclusion about subjective complaints: Fairbairn’s examination notes did not 

support his RFC opinion and the only evidence in Fairbairn’s records supporting his 

RFC opinion were Barnhill-Stemley’s descriptions of her symptoms. Raymond v. 

Astrue, 621 F.3d 1269, 1272 (10th Cir. 2009); White, 287 F.3d at 907-08 (a treating 

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physician’s opinion may be discounted when it is based on the claimant’s subjective 

assertions rather than objective medical evidence). 

Next, Barnhill-Stemley complains of the ALJ’s failure to discuss some 

probative evidence from the specialists to whom she was referred by Fairbairn. The 

ALJ cited a normal Electromyography (EMG) test, which evaluates muscle nerve 

health, but failed to cite evidence in the record of the tingling she felt at her right and 

left wrist when tapped (positive Tinel’s signs) or allow as how a normal EMG test 

results does not exclude other possible diagnoses. She complains of the failure to 

note her 2008 complaint of hand and wrist pain, for which she was given a splint. 

But the ALJ did acknowledge both the positive Tinel’s signs and her 2008 wrist-pain 

complaint in his decision, but noted an absence of any medical signs or findings 

relating to her wrists and in follow-up records. Actually, she was found to have a 

good grip. We have repeatedly made clear that an ALJ need not discuss every piece 

of evidence in the record; it is enough to discuss the evidence supporting his 

decision, “the uncontroverted evidence he chooses not to rely upon, as well as 

significantly probative evidence he rejects.” Hendron v. Colvin, 767 F.3d 951, 955 

(10th Cir. 2014) (internal quotation marks omitted). Our review of the medical 

record reveals consideration of all the evidence by the ALJ. His discussion of 

Fairbairn’s records and the medical evidence as a whole was legally sufficient. 

Finally, we turn to the discounting of Fairbairn’s opinion because it was 

inconsistent with examination reports from consulting examiners. Generally an ALJ 

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should give greater weight to the opinion of a treating physician than to that of a 

consultant or non-examining physician, see Langley, 373 F.3d at 1119, but opinions 

from treating physicians are not dispositive, Castellano v. Sec’y of Health & Human 

Servs., 26 F.3d 1027, 1029 (10th Cir. 1994). Here, legitimate reasons were given 

both for assigning very little weight to Fairbairn’s opinion, as discussed above, and 

for giving more weight to the reports of consultative examiners, namely, they were 

well-supported. The ALJ noted Qutub’s very extensive medical examination of 

Barnhill-Stemley and that all of the examining physicians’ RFC opinions were 

consistent with the objective medical findings in Barnhill-Stemley’s record. 

The specific, legitimate reasons for discounting Fairbairn’s RFC opinion are 

sufficient as is the ALJ’s discussion of the medical evidence is legally sufficient and 

supported by substantial evidence in the record. We conclude substantial evidence 

supports the ALJ’s decision to afford Dr. Fairbairn’s opinion very little weight.

II. CREDIBILITY DETERMINATION

Barnhill-Stemley says the ALJ’s credibility finding regarding the severity of 

her headaches is not supported by substantial evidence. “Credibility determinations 

are peculiarly the province of the finder of fact, and we will not upset such 

determinations when supported by substantial evidence in the record, provided the 

determinations are closely and affirmatively linked to that evidence.” Adams ex rel. 

D.J.W. v. Astrue, 659 F.3d 1297, 1302 (10th Cir. 2011) (alteration and internal 

quotation marks omitted). 

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Barnhill-Stemley testified to experiencing migraine headaches causing a 

constant ringing in her ears and causing her to black out twice a day, every day, and 

having headaches with syncope (brief loss of consciousness) since she was fourteen. 

In concluding her complaints were not fully persuasive as to the intensity, persistence 

and limiting effect of her headaches the ALJ discussed numerous parts of the 

evidence. He noted (1) the first medical record in which she stated her headaches 

caused blackouts was in November 2009, when she told Radley she blacked out ten 

days a month and had since she was fourteen; (2) the clinical findings at that time 

showed no abnormalities; (3) treatment records from before November 2009 did not 

contain references to complaints about blackouts, nor any clinical signs, findings, or 

symptoms describing headaches of such severity, which is inconsistent with her 

testimony about frequent blackouts since she was fourteen; (4) in February 2010 she 

reported her headache-related blackouts had begun six-to-eight months earlier, which 

is inconsistent with her testimony about blackouts since she was fourteen; (5) she did 

not mention she experienced migraines, blackouts or even severe headaches during 

Qutub’s extensive examination in January 2009; and (6) her allegations as to the 

severity of her headaches was not consistent with her work history or her reports of 

daily activities. 

Barnhill-Stemley contends the ALJ misstated the medical record with respect 

to blackouts until November 2009. But the records she cites do not support her 

assertion. The August 2005 records show her denial of dizziness and syncope (loss 

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of consciousness). Aplt. App. Vol. 2 at 447. The March 2007 records report her 

complaints of headaches twice a month, lasting for a week, but do not mention 

blackouts or syncope. Id. at 354. According to the August 2007 records she 

complained of having a headache for three weeks with nausea, photophobia, ringing 

in ears, and vision turning black, but do not describe loss of consciousness or 

blackouts. Id. at 349. She complained of the “worst headache ever” in May 2008, 

but did not mention blackouts or loss of consciousness. Id. at 421. In short, although 

she complained of migraine headaches to her medical providers during the covered 

period, she did not tell any medical provider she suffered from headache blackouts 

until November 2009, nor did she describe having headaches as severe or as limiting 

as her hearing testimony relates. Again, the ALJ did not question the fact of her 

headaches; he only discounted her descriptions their severity and disabling effect. 

He did so because of the lack of medical evidence to support the subjective nature of 

her reported symptoms and discrepancies between her statements and the medical 

evidence. 

The ALJ gave specific and legitimate reasons for discounting her subjective 

complaints and statements and he closely and affirmatively linked his determination 

to substantial evidence in the record. See White, 287 F.3d at 909-10. 

 Finding no error, we AFFIRM. Barnhill’s request to proceed on appeal in

forma pauperis or ifp is denied as moot. The relevant statute, 28 U.S.C. § 1915 (a) 

does not permit litigants to avoid payment of fees; only prepayment of fees may be 

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excused. Since we have reached the merits of this appeal, prepayment of fees is no 

longer an issue. Barnhill is, nevertheless, required to pay all filing and docketing 

fees. Payment must be made to the Clerk of the District Court. 

 Entered for the Court 

 Terrence L. O’Brien 

 Circuit Judge 

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