FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                  October 14, 2011
                            FOR THE TENTH CIRCUIT               Elisabeth A. Shumaker
                                                                    Clerk of Court

    TERESA L. FREEMAN,

                Plaintiff-Appellant,

    v.                                                    No. 11-5017
                                                (D.C. No. 4:09-CV-00554-TLW)
    MICHAEL J. ASTRUE, Commissioner                       (N.D. Okla.)
    of the Social Security Administration,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before MURPHY, ANDERSON, and HARTZ, Circuit Judges.



         Theresa L. Freeman appeals from the denial of her applications for social

security disability insurance benefits under Title II of the Social Security Act and

supplemental security income benefits under Title XVI of the Act. We have

jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291, and 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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

      Ms. Freeman applied for benefits in June 2007, alleging she was unable to

work as the result of obesity and an on-the-job back injury that had occurred in

February 2007. Her applications were denied at the administrative level, on

reconsideration, and after a hearing before an administrative law judge (ALJ).

The ALJ found that Ms. Freeman’s degenerative disk disease and obesity were

severe impairments, but that none of her impairments, either alone or in

combination, met or equaled one of the listings. Admin. R. at 284. The ALJ

further found that Ms. Freeman had “has the residual functional capacity to

perform less than the full range of light work . . . is able to lift/carry 20 pounds

occasionally or 10 pounds frequently, . . . can stand and/or walk up to 6 hours

total, sit approximately 6 hours during an 8-hour workday, and she can only

occasionally stoop.” 

      A vocational expert (VE) testified at the hearing that, even if Ms. Freeman

were limited only to sedentary work, she could still perform the jobs of order

clerk or clerical mailer. 

Relying on this testimony and medical

opinions from an examining physician and a reviewing physician, the ALJ denied

benefits at step five of the sequential evaluation process. See 20 C.F.R.

§§ 404.1520, 416.920 (describing five-step evaluation process); Williams v.

Bowen, 

, 750-52 (10th Cir. 1988) (same). The ALJ found that, based

on her “age, education, work experience, and residual functional capacity,

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[Ms. Freeman was] capable of making a successful adjustment to other work that

exists in significant numbers in the national economy.” 

      After the Appeals Council denied her request for review, Ms. Freeman filed

her complaint in the district court, and the parties consented to the jurisdiction of

a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). The magistrate

judge affirmed the Commissioner’s denial of benefits, and Ms. Freeman now

appeals.

                                    II. Discussion

      In reviewing the ALJ’s decision, we neither reweigh the evidence nor
      substitute our judgment for that of the agency. Instead, we review
      the ALJ’s decision only to determine whether the correct legal
      standards were applied and whether the ALJ’s factual findings are
      supported by substantial evidence in the record. Substantial evidence
      is such relevant evidence as a reasonable mind might accept as
      adequate to support a conclusion. A decision is not based on
      substantial evidence if it is overwhelmed by other evidence in the
      record or if there is a mere scintilla of evidence supporting it.

Branum v. Barnhart, 

, 1270 (10th Cir. 2004) (citations and internal

quotation marks omitted). Ms. Freeman raises two issues: whether the ALJ

failed to properly evaluate the opinion of Dr. Martin, whom she characterizes as a

treating physician, and whether the ALJ’s credibility determination was proper.

                     A. Consideration of Physicians’ Opinions

      Regarding her back injury, Ms. Freeman relied, among other things, on

reports from two physicians, Dr. Jim Martin and Dr. David Traub, who saw her

solely in connection with her workers’-compensation claim. According to


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Ms. Freeman, the ALJ erred because she failed to explain what weight she gave

Dr. Martin’s opinion or to determine whether either doctor was a treating

physician.

      Ms. Freeman first saw Dr. Martin on February 12, 2007, some nine

days after her injury. In a letter to her workers’-compensation attorney,

Dr. Martin stated that Ms. Freeman had:

      marked spasm and tenderness over the thoracic and lumbar
      musculature with extreme tenderness to palpation over the left
      sacroiliac joint and left mid buttocks. She has limited and very
      painful range of motion of her lumbar spine with flexion at only 40
      degrees, and she exhibits a positive straight leg raising test on the
      left at 40 degrees, and on the right at 60 degrees in the supine
      position. . . . The patient appears to have pain and difficulty when
      getting up and down from the sitting position, as well as on and off
      the table.

Admin. R. at 179. Dr. Martin further opined that, in all probability, Ms. Freeman

had a bulging, as opposed to a herniated disk. He recommended conservative

treatment to include physical therapy and medication. If that proved

unsuccessful, he planned to obtain an MRI of her lumbar spine and considered

referring her to an orthopedic specialist for a consultation. For

workers’-compensation purposes, Dr. Martin rated her at “100% temporarily

totally disabled” with “[h]er future period of temporary disability []

undetermined.” 

saw Dr. Martin again a week later. He reported to her

attorney that she was still having “severe pain, limited and painful motion of her


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lumbar spine with evidence of radiculopathy affecting her left hip and lower

extremity.” 

Dr. Martin hoped to schedule an MRI for Ms. Freeman to

determine whether she had a herniated disk. He again rated her at “100%

temporarily totally disabled, and will be for an indefinite period of time.” 

not markedly changed when Dr. Martin saw Ms. Freeman for

the last time on June 15, 2007. At that time, Ms. Freeman was attempting to get a

CT scan of her lumbar spine through an “Indian Clinic.” 

Dr. Martin

refilled her medications and urged her to get the CT scan “to determine the nature

of her back injury.” 

rated her at 100% temporarily totally disabled.

Ms. Freeman saw Dr. David Traub once in March 2007. He also rated her as

temporarily totally disabled. 

      In her decision, the ALJ thoroughly summarized the medical evidence

including the opinions from Dr. Martin and Dr. Traub. She stated three specific

reasons for rejecting them: (1) both doctors “were using a different worker’s

compensation standard of disability when they opined Ms. Freeman was

temporarily totally disabled”[;] 

1 (2) both doctors had examined

Ms. Freeman within a few days or months of her injury and their opinions

contrasted with the opinion of Dr. Boyd, who had examined Ms. Freeman

1
       The Social Security Administration “will not consider an acceptable
medical source to be [a claimant’s] treating source if [a claimant’s] relationship
with the source is not based on [the] medical need for treatment or evaluation, but
solely on [the] need to obtain a report in support of [a] claim for disability.”
20 C.F.R. §§ 404.1502, 416.902.

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eighteen months after the injury and who did not find her to be disabled; (3) and,

finally, the agency was not required to show the workers’-compensation

examiners any deference.

      It is clear from reading the ALJ’s opinion as a whole that she did not

consider either Dr. Martin or Dr. Traub to be a treating physician. 2 The ALJ

noted the short duration and infrequency of Ms. Freeman’s visits with these

doctors and that they were contacted as part of her workers’-compensation claim.

The ALJ was therefore not required to give any more reasons than she did as to

the weight accorded their opinions. To be sure, the regulations require an ALJ to

“give good reasons” in a decision as to the weight applied to a treating

physician’s opinion. 20 C.F.R. § 416.927(d)(2). But to trigger this requirement,

Drs. Martin and Traub must in fact have been treating physicians. Because they

were not, the ALJ did not have to explain the reasons for the weight she gave

their opinions; instead she need only have considered them, which she did. Doyal

v. Barnhart, 

, 764 (10th Cir. 2003). The ALJ’s analysis of the

2
      The regulations define a treating physician as someone

      who provides you, or has provided you, with medical treatment or
      evaluation and who has, or has had, an ongoing treatment
      relationship with you. Generally, we will consider that you have an
      ongoing treatment relationship with [a physician] when the medical
      evidence establishes that you see, or have seen, the source with a
      frequency consistent with accepted medical practice for the type of
      treatment and/or evaluation required for your medical condition(s).

20 C.F.R. §§ 404.1502, 416.902.

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opinions of Dr. Martin and Dr. Traub is supported by substantial evidence.

Accordingly, we hold that the ALJ did not err in rejecting those opinions.

      Further, the fact that two doctors, retained for workers’–compensation

purposes, found Ms. Freeman to be totally temporarily disabled is not a

conclusion binding on the ALJ. See Baca v. Dep’t of Health & Human Servs.,

, 480 (10th Cir. 1993). The determination of disability is solely the

province of the commissioner. 20 C.F.R. §§ 404.1527(e), 416.927(e).

                           B. Credibility Determination

      Ms. Freeman next argues that the ALJ failed to perform a proper credibility

determination. The ALJ found that Ms. Freeman’s “statements concerning the

intensity, persistence and limiting effects of these symptoms are not credible to

the extent they are inconsistent with the [already established] residual functional

capacity assessment.” Admin. R. at 286. If this were the extent of the ALJ’s

credibility analysis, we would agree with Ms. Freeman that such boilerplate does

not fulfill the ALJ’s duty to support credibility findings with substantial evidence.

See Hardman v. Barnhart, 

, 678-79 (10th Cir. 2004) (“It is well

established that an ALJ’s findings with respect to a claimant’s credibility should

be closely and affirmatively linked to substantial evidence and not just a

conclusion in the guise of findings.” (internal quotation marks omitted)).

      At the hearing, Ms. Freeman testified that she had problems with her hands

and was “dropping stuff.” Admin. R. at 20. She also testified that “a gallon of


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milk is hard for me to do to lift or carry.” 

Referring to this testimony

in her credibility analysis, the ALJ correctly noted that there was no objective

medical evidence to support Ms. Freeman’s complaints regarding the degree of

hand impairment. 3 In addition to noting the paucity of the record, the ALJ cited

the opinion of an examining physician, Dr. Boyd, who concluded, after finding

her grip strong and equal bilaterally, that Ms. Freeman was able to use her hands

for gross and fine manipulation. 

      The ALJ also stated that she gave great weight to an opinion from

Dr. Fiegel, a reviewing physician, who examined Ms. Freeman’s MRI results.

See 

Dr. Fiegel concluded that Ms. Freeman could occasionally lift

twenty pounds, frequently lift ten pounds, stand and/or walk and sit for six hours

in an eight-hour day, and do unlimited pulling or pushing within the lifting

restrictions. In explaining how the evidence supported her conclusion, Dr. Fiegel

noted that Ms. Freeman is morbidly obese and has “deg[enerative] disease of

lumbar by imaging. Has no surgery of spine done or suggested. Complains of

knee pain also. Has full motion. Has no nerve–root compression.” 

The reports of both Dr. Boyd and Dr. Fiegel support the ALJ’s credibility

determination and constitute substantial evidence.




3
       In fact, the only medically-related mention of hand problems we could find
in the record is Ms. Freeman’s report to a physician assistant, in November 2007,
of numbness and tingling of both feet and hands at times. Admin. R. at 256.

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      Ms. Freeman takes exception to Dr. Boyd’s conclusions and argues that

Dr. Fiegel was wrong to find no nerve-root compression. To the extent

Ms. Freeman wants this court to reweigh the evidence or substitute its judgment

for that of the commissioner, we are unable to oblige her. See Cowan v. Astrue,

, 1185 (10th Cir. 2008).

      Ms. Freeman’s motion for leave to proceed on appeal without prepayment

of costs or fees is GRANTED. The judgment of the district court is AFFIRMED.


                                                  Entered for the Court


                                                  Michael R. Murphy
                                                  Circuit Judge




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