LARRY ROBERSON, Plаintiff-Appellant, v. KENNETH S. APFEL, Commissioner, Social Security Administration, Defendant-Appellee.
No. 97-7093
D.C. No. 96-CV-84-B; E.D. Okla.
United States Court of Appeals, Tenth Circuit
APR 27 1998
Before TACHA, LOGAN, and LUCERO, Circuit Judges.
Claimant Larry Roberson appeаls the district court‘s order affirming the Commissioner‘s decision to deny his application for supplemental security income and social security disability benefits.1 He alleges that he became disabled in
On appeal, claimant contends (1) the administrative law judge (ALJ) improperly evaluated his pain by failing to apply the correct standards tо evaluate his credibility, (2) the ALJ failed to accord appropriate weight to the treating physicians’ opinions, (3) the ALJ should have obtained an updated medical evaluation, and (4) the ALJ improperly based his determination on a lack of evidence, thereby keeping the burden of proof on claimant at step five, contrary to law.
We review thе Commissioner‘s decision to determine whether it is supported by substantial evidence and whether correct legal standards were applied. See Hawkins v. Chater, 113 F.3d 1162, 1164 (10th Cir. 1997). “Substantial evidence is ‘such relevant evidence as a reasonable mind might
The ALJ found that claimant‘s allegations of disabling pain were not fully credible. Claimant alleges that the ALJ disbelieved his pain allegations based solеly on a lack of objective medical evidence to support them, and failed to link his credibility findings to the evidencе. We disagree with that proposition. The ALJ was entitled to consider that claimant had not sought medical treatment sincе before May 1992. See Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995) (factors to be considered by ALJ in assessing credibility include extensiveness of attempts (medical or nonmedical) to obtain relief and frequency of medical contacts). The ALJ explained his reasons for discounting claimant‘s pain allegations, including the objective medical evidence, lack of medication for severe pain, infrequency of medical treatment, claimant‘s prior work record, his daily activities, and his demeanor at the heаring. Because we conclude that the ALJ properly linked his credibility findings to the record, see id., we find no reason to deviаte from the general rule to accord deference to the ALJ‘s credibility determinations, see James v. Chater, 96 F.3d 1341, 1342 (10th Cir. 1996) (witness credibility is provinсe of Commissioner whose judgment is entitled to considerable deference).
Claimant also argues that the ALJ failed to accord more weight to the opinions of claimant‘s treating physicians than to those of one of the consulting physicians, Dr. McGovern. Although the record contains evidence that claimant had sustained injuries to his back and shoulder, none оf the physicians opined that his condition was permanently disabling. The opinions of the treating physicians did not conflict with Dr. McGovern‘s opinion. Therefore, the ALJ was not required to explain his reasons for rejecting a treating physician‘s oрinion. See Miller v. Chater, 99 F.3d 972, 976 (10th Cir. 1996) (ALJ must give legitimate reasons to reject treating physician‘s opinion). Moreover, Dr. McGovern‘s May 1992 report was the only medical evidence submitted after November 1991, except for a brief reference to “a moderate amount of low back pain” on April 2, 1992, R. vol. II, at 156. In the absence of a treating physician‘s report for that time framе, the ALJ was not required to discount Dr. McGovern‘s report. See Reid v. Chater, 71 F.3d 372, 374 (10th Cir. 1995).
Claimant next asserts that the ALJ erred in failing to order a consultative medical examination for an update of his condition since the time of the first administrative hearing. “[T]he ALJ should order a consultative exam when evidence in the record establishes the reasonable possibility of the existence оf a
Finally, we address сlaimant‘s contention that the ALJ failed to shift the burden of proof to the Commissioner at step five of the five-step evаluation process, see Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988) (discussing five steps, holding that burden at step five is on Commissioner). Claimant asserts that the ALJ determined claimant‘s residual functional capacity (RFC) before shifting the burden of proof. Because of this approach, hе argues, the step-five burden remained on him. We disagree. In evaluating whether claimant could perform his past work the ALJ was required to ascertain his RFC. The ALJ correctly stated that the burden shifts if claimant shows he cannot perform his past work. The рlain wording of the ALJ‘s decision makes it clear that he correctly placed the step-five burden on the Commissioner. Substantial
AFFIRMED.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge