FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  February 5, 2010
                     UNITED STATES COURT OF APPEALS
                                                                Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                   Clerk of Court



    JOSE U. GONZALEZ,

                Plaintiff-Appellant,

    v.                                                   No. 09-1205
                                               (D.C. No. 1:07-CV-02342-RPM)
    MICHAEL J. ASTRUE, Commissioner                       (D. Colo.)
    of Social Security,

                Defendant-Appellee.



                             ORDER AND JUDGMENT *


Before KELLY, PORFILIO, and O’BRIEN, Circuit Judges.



         Jose U. Gonzalez appeals from a judgment of the district court affirming

the Commissioner’s denial of his application for Social Security disability

benefits and supplemental security income payments. Exercising jurisdiction

under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g), we affirm.



*
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
                                  I. Background

      On December 8, 1998, while working for a cleaning service stripping

floors, Mr. Gonzalez slipped on a wet surface and fell to the ground, sustaining a

blow to his right temple. He claims he has been unable to work since this

accident due to the residual effects of his head injury. Specifically, he claims that

he suffers from intense, throbbing headaches; memory loss; anxiety; depression;

neck pain; jerking spasms on the left side of his body; and humming in his ears.

In addition, he has Type II diabetes and suffers from occasional numbness and

tingling in his legs and feet. In October 2004 and January 2005, he filed

applications for disability insurance benefits and supplemental security income

payments based on these conditions. The applications were denied at the initial

stage, and Mr. Gonzalez was granted a hearing before an administrative law judge

(“ALJ”), which took place on May 7, 2007.

      The ALJ heard testimony from Mr. Gonzalez, his son, Tyson, and a

vocational expert (“VE”) before concluding at step five of the sequential

evaluation process, see 20 C.F.R. § 404.1520(a)(4); Wall v. Astrue, 

, 1052 (10th Cir. 2009), that Mr. Gonzalez was not disabled within the

meaning of the Social Security Act. The ALJ agreed that he suffered from a

number of severe impairments possibly stemming from his accident, including a

mild closed-head injury; neck pain; post-traumatic headaches; and cognitive,

mood, anxiety, and chronic pain disorders. But the ALJ found that despite these

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impairments, Mr. Gonzalez retained the residual functional capacity (“RFC”) to

perform a reduced range of unskilled light work. He offered as examples the jobs

of cafeteria attendant and cleaner/housekeeper, which the VE testified exist in

significant numbers in the national and regional economies.

      In reaching this conclusion, the ALJ considered seven years’ worth of

medical records, which had been amassed in part to support Mr. Gonzalez’s claim

for workers’ compensation benefits. Hence, the ALJ had the benefit of numerous

opinions from doctors and psychologists concerning the precise question of

Mr. Gonzalez’s ability to work, albeit under a different legal framework than the

Social Security Act. There is a difference of opinion among Mr. Gonzalez’s

doctors concerning the residual effects of his head injury, which the ALJ

acknowledged. The judge concluded, however, that the opinions most supportive

of Mr. Gonzalez’s disability claim were entitled to little weight because he found

them to be inconsistent with the objective medical evidence and the record as a

whole. The crux of Mr. Gonzalez’s appeal challenges this determination. He also

takes issue with the ALJ’s credibility analysis and treatment of the VE’s opinion.

We address his arguments below.

                                  II. Discussion

      In reviewing the ALJ’s decision, we ask only whether “the factual findings

are supported by substantial evidence” and “whether the correct legal standards

were applied.” Bowman v. Astrue, 

, 1272 (10th Cir. 2008)

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(quotation omitted). In making these determinations, “we will not reweigh the

evidence or retry the case.” 

(quotation omitted). Our role

is to “meticulously examine the record as a whole, including anything that may

undercut or detract from the ALJ’s findings[,] in order to determine if the

substantiality test has been met.” 

“Substantial evidence

is such relevant evidence as a reasonable mind might accept as adequate to

support a conclusion. It requires more than a scintilla, but less than a

preponderance.” 

      A. The ALJ’s Rejection of Dr. Hall’s Opinion

      Mr. Gonzalez complains that the ALJ unjustifiably rejected opinions

expressed by Dr. Timothy Hall, an independent medical examiner for the State of

Colorado who evaluated Mr. Gonzalez in connection with his workers’

compensation claim. Dr. Hall’s notes from two examinations, in June 2002 and

September 2004, constitute the primary evidence in support of Mr. Gonzalez’s

claim. During those exams, Mr. Gonzalez complained of memory loss, throbbing

headaches, and a humming in his ear. Dr. Hall found him to be both pleasant and

believable, but he noted that Mr. Gonzalez was “slow to respond” and “seem[ed]

a bit distant.” Admin. R. at 284. He also noted that Mr. Gonzalez was easily

confused and provided “wandering” answers to his questions. 

diagnosed Mr. Gonzalez with a mild traumatic brain injury with probable visual

and cognitive dysfunction, post traumatic headaches, and myofascial pain of the

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cervicothoracic area. He acknowledged that these diagnoses conflicted with other

opinions in Mr. Gonzalez’s records. But Dr. Hall believed the “marked change in

[Mr. Gonzalez’s] functional status” following a significant blow to the head to be

more than a mere coincidence. 

noted after his second examination

that despite the “difference of opinion between providers about [Mr. Gonzalez’s]

closed head injury diagnosis,” he was “fairly convinced” that Mr. Gonzalez had

such an injury and “continue[d] to suffer from consequences of it.” 

      This opinion conflicts with earlier opinions from Drs. John Tyler, Michael

Schmidt, and Zvi Kalisky. Dr. Tyler first met Mr. Gonzalez in August 2001. He

was sufficiently concerned with Mr. Gonzalez’s inability to concentrate during

the exam that he sent him for a psychological evaluation with Dr. Schmidt in

December 2001. Dr. Schmidt submitted Mr. Gonzalez to a series of cognitive

tests. He concluded that the results “[did] not reflect normal functioning” but

also that they were “not a perfect fit for residual effects of [a] mild closed head

injury.” 

He did allow it was possible Mr. Gonzalez was experiencing

residual head injury symptoms.

      In January 2002, however, after conferring with Dr. Tyler and reviewing

additional medical records, Dr. Schmidt changed his mind due to inconsistencies

in Mr. Gonzalez’s case. Specifically, Dr. Schmidt noted that despite regular

check-ups after the accident, Mr. Gonzalez did not complain of cognitive

symptoms until over nine months later—at a time when most patients would have

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fully recovered from a mild head injury. Dr. Schmidt observed that if

Mr. Gonzalez’s “symptoms were bad enough to be reported nine months post

injury, they would have been considerably worse earlier on and would very likely

have been cause for significant concern.” 

He also noted that

Mr. Gonzalez had been inconsistent in reporting whether he had lost

consciousness when he fell. Two days after the accident, he told his treating

physician, Dr. Patrick Higgins, that he had not lost consciousness, but he later

told Dr. Schmidt that he had lost consciousness. Based in part on the new

information, Dr. Schmidt determined that the neuropsychological evaluation he

conducted was “substantially influenced by inconsistent test-taking effort” and

was therefore unreliable. 

He therefore concluded that Mr. Gonzalez

was not suffering from any residual effects of a closed head injury, an opinion

that was shared by Dr. Tyler.

      Dr. Kalisky’s opinion is also in accord with this conclusion, although he

did not personally examine Mr. Gonzalez. Upon reviewing the claimant’s

medical file, Dr. Kalisky concluded that his subjective complaints were not

“substantiated by objective physical, radiological, or electrophysiological

findings.” 

Dr. Kalisky found “no objective medical reason which

would preclude [Mr. Gonzalez] from working . . . full time, without restrictions.”

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      The most voluminous records are from Dr. Jeffrey Jenks and Dr. Glenn

Kaplan, who treated Mr. Gonzalez in tandem throughout 2004. In January of that

year, Mr. Gonzalez saw Dr. Jenks for headaches, cognitive difficulties and neck

pain. Dr. Jenks noted that his patient presented with questionable symptoms

related to a head injury and probable depression. He prescribed physical therapy

and referred Mr. Gonzalez to Dr. Kaplan for psychological treatment. Upon

meeting Mr. Gonzalez, Dr. Kaplan noted that although he had seen other

psychologists, Mr. Gonzalez had yet to receive any treatment beyond testing. In

January 2004, he diagnosed Mr. Gonzalez with a pain disorder and unspecified

cognitive and anxiety disorders. After four additional sessions with

Mr. Gonzalez, Dr. Kaplan concluded that he did “not appear to have any

permanent psychological problems related to his work injury.” Admin. R. at 213.

In March 2004, he remarked that Mr. Gonzalez was “motivated to return to

work,” but was not sure he would be able to do construction-type work. 

During their last session, Mr. Gonzalez reported he was thinking about

looking for a job. Throughout his treatment with Dr. Kaplan, Mr. Gonzalez

reported that his headaches, mood swings, and anxiety were all improving.

      Dr. Jenks’s treatment records reflect similar improvement. After his course

of physical therapy, Mr. Gonzalez demonstrated an increased cervical range of

motion and reported that he was in less pain. Based on a Functional Capacity

Evaluation (“FCE”) completed on April 19, 2004, the physical therapist placed

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Mr. Gonzalez in the light-medium work classification and noted in a letter to

Dr. Jenks that he was able to work an eight-hour day. Dr. Jenks fully endorsed

this FCE in June 2004, noting that in his opinion, Mr. Gonzalez was “in the

light/medium work category.” 

         There is a lone entry in Mr. Gonzalez’s medical records from Dr. Anthony

Ricci, a psychologist, whom he saw in January 2003. According to Dr. Ricci,

Mr. Gonzalez was “manifesting very evident features of [p]ost-[c]oncussion

sequelae;” was “clearly moderately to severely dysfunctional; and . . . unable to

sustain consistent employment.” 

He diagnosed chronic pain syndrome

and mood disorder, and “strongly endorse[d]” the treatments recommended by

Dr. Hall. 

gave this opinion little weight, emphasizing that it came

from an examining, not a treating source, and that it was inconsistent with the

opinions of Mr. Gonzalez’s treating physicians. He also noted that the ultimate

issue of a claimant’s ability to work is reserved to the Commissioner. See

Castellano v. Sec’y of Health & Human Servs., 

, 1029 (10th Cir.

1994).

         As for the weight given to Dr. Hall’s opinion, we have held that “[m]edical

evidence may be discounted if it is internally inconsistent or inconsistent with

other evidence.” Pisciotta v. Astrue, 

, 1078 (10th Cir. 2007)

(internal quotation marks omitted). And we have reminded ALJs that in

determining how to weigh an opinion, they “must consider the consistency

                                           -8-
between that opinion and the record as a whole.” 

his opinion,

Dr. Hall intentionally departed from the opinions of Dr. Tyler, Dr. Schmidt, and

Dr. Kalisky. But the ALJ was not persuaded, noting that Dr. Hall’s opinion was

not supported by the treatment records or the examination findings; was

inconsistent with other more persuasive medical opinions in the record, including

the later opinions by Mr. Gonzalez’s treating physicians; and was inconsistent

with the results of the functional capacity evaluation. We see no error in the

ALJ’s treatment of Dr. Hall’s opinion. Taken as a whole, we agree with the

ALJ’s assessment of the medical evidence and conclude it does not support a

claim of total disability under the Social Security Act.

      B.     The ALJ’s Credibility Determination

      Mr. Gonzalez’s secondary argument focuses on the ALJ’s determination

that neither his nor his son’s testimony was entirely credible. Both gentlemen

testified that the claimant is essentially a changed person since the accident.

Mr. Gonzalez told the ALJ that since the accident, his mind has been hazy, he

suffers from debilitating headaches three or four times a week, takes multiple

naps a day, and basically has no short-term memory. Tyson agreed, telling the

ALJ that his father cannot function without notes that remind him what to do.

But the ALJ found this testimony to be incredible, explaining that the statements

concerning the intensity, persistence, and limiting effects of the claimant’s

symptoms was inconsistent with the evidence of record. We are not at liberty to

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upset this determination unless we conclude it is not supported by substantial

evidence. Kepler v. Chater, 

, 391 (10th Cir. 1995). After examining

the record as a whole, however, we are persuaded that the ALJ’s findings were

“closely and affirmatively linked to substantial evidence” and hence free of legal

error. 

      Contrary to his hearing testimony, Mr. Gonzalez told his treating

psychologist on numerous occasions that his headaches were helped significantly

by medication and that he experienced no other pain. He reportedly could handle

a number of household chores and walked daily up to two miles. More

importantly, on multiple occasions, Mr. Gonzalez expressed an interest in

returning to work. Dr. Kaplan’s notes reveal he had trepidations about returning

to construction work, but the very fact that he would consider such labor supports

the ALJ’s ultimate conclusion that he is capable of performing a limited range of

unskilled light work. In our view, the ALJ’s analysis of the objective medical

findings combined with Mr. Gonzalez’s statements to his treating physicians

forms the necessary link between the evidence and the ALJ’s credibility

determinations.

      C.     The ALJ’s Treatment of the VE’s Testimony

      Finally, Mr. Gonzalez complains that the ALJ improperly formulated his

RFC without considering the VE’s testimony that all jobs would be eliminated for

a hypothetical claimant who napped twice during the workday. For reasons just

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explained, however, the ALJ justifiably concluded that Mr. Gonzalez’s testimony

was not entirely credible. Therefore the ALJ was not obliged to accept this

hypothetical as representative of the claimant’s condition and committed no error

in disregarding it for purposes of formulating Mr. Gonzalez’s RFC.

      The judgment of the district court is AFFIRMED.


                                                   Entered for the Court



                                                   John C. Porfilio
                                                   Circuit Judge




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