Filed: Patrick Fisher

F I L E D
UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT
United States Court of Appeals

Tenth Circuit
FEB 1 2005
PATRICK FISHER
Clerk
JOHN L. VAKAS, M.D.,

Plaintiff-Appellant,
v.
JO ANNE B. BARNHART,
Commissioner of Social Security,
No. 04-3161
(D.C. No. 03-CV-1149-WEB)
(D. Kan.)
Defendant-Appellee.
ORDER AND JUDGMENT
Before TACHA , Chief Judge, HENRY , and OBRIEN , Circuit Judges.
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.
Plaintiff-appellant John L. Vakas appeals from an order of the district court
affirming the Social Security Commissioners decision denying his application for
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
disability insurance benefits under the Social Security Act. We exercise

jurisdiction under 42 U.S.C. 405(g) and 28 U.S.C. 1291. We affirm.
I.
Plaintiff claims that he has been unable to work since December 2, 1986
due to degenerative disc disease of the cervical spine and other problems with his
cervical spine. It is undisputed that plaintiff was last insured for disability
insurance benefits on December 31, 1991. Consequently, to obtain disability
insurance benefits, plaintiff [must] establish that he became disabled on or before
that date. 1 Washington v. Shalala, 37 F.3d 1437, 1440 n.2 (10th Cir. 1994).
Plaintiffs application for benefits was denied initially and on
reconsideration, and de novo hearings were held in April and November 2002
before an administrative law judge (ALJ). Subsequently, in a decision dated
December 11, 2002, the ALJ denied plaintiffs application for benefits at step five
of the five-step sequential evaluation process for determining disability. See 20
C.F.R. 404.1520. The ALJ concluded that plaintiff was not disabled on or
The administrative record indicates that plaintiff has also been diagnosed as
suffering from diabetes and depression. The administrative law judge found that
plaintiffs diabetes and depression were not severe impairments on or before
December 31, 1991. See R., Supp. Vol. I at 21-22. Plaintiff is not appealing the
administrative law judges ruling regarding his diabetes and depression. In
addition, although the record indicates that plaintiff has suffered from coronary
artery disease and kidney failure in recent years, those conditions did not develop
until after December 31, 1991. Thus, they are not relevant to this appeal.
1
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before December 31, 1991 because: (1) while the problems with his cervical spine
were severe impairments which prevented him from performing his past relevant
work as a medical doctor, he retained the residual functional capacity (RFC) to
perform a significant range of sedentary and light work; and (2) based on the
testimony of the vocational expert, he was capable of performing other jobs that
existed in significant numbers in the national economy.
In March 2003, the Appeals Council denied plaintiffs request for review of
the ALJs decision. Plaintiff then filed a complaint in the district court. In
March 2004, the district court entered a comprehensive and well-reasoned order
affirming the denial of plaintiffs application for disability insurance benefits.
This appeal followed.
In its order, the district court set forth a detailed summary of plaintiffs
medical history prior to 1992.
See Aplt. App. at A17-A23. Because the district
court has accurately summarized plaintiffs medical history, we do not need to

repeat it here.
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II.
Because the Appeals Council denied review, the ALJs decision is the
Commissioners final decision for purposes of this appeal. See Doyal v.
Barnhart, 331 F.3d 758, 759 (10th Cir. 2003). In reviewing the ALJs decision,
we neither reweigh the evidence nor substitute our judgment for that of the
agency. Casias v. Secy of Health & Human Servs., 933 F.2d 799, 800
(10th Cir. 1991). Instead, we review the ALJs decision only to determine
whether the correct legal standards were applied and whether the ALJs factual
findings are supported by substantial evidence in the record. See Doyal, 331 F.3d
at 760.
In this appeal, plaintiff claims that the ALJ committed reversible error by:
(1) failing to give controlling weight to the opinions of his treating physicians;
(2) failing to properly assess his credibility; and (3) failing to properly determine
his RFC. Having carefully reviewed the administrative record and the pertinent
legal authorities, we conclude that plaintiffs arguments are without merit.
1. Treating Physicians Opinions.
In deciding how much weight to give the opinion of a treating physician, an
ALJ must first determine whether the opinion is entitled to controlling weight.
Watkins v. Barnhart , 350 F.3d 1297, 1300 (10th Cir. 2003). An ALJ is required
to give the opinion of a treating physician controlling weight if it is both:
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(1) well-supported by medically acceptable clinical and laboratory diagnostic

techniques; and (2) consistent with other substantial evidence in the record.
Id. (quotation omitted). [I]f the opinion is deficient in either of these respects,
then it is not entitled to controlling weight.
Id.
Even if a treating physicians opinion is not entitled to controlling weight,

[t]reating source medical opinions are still entitled to deference and must be
weighed using all of the factors provided in 20 C.F.R. 404.1527.
Id.
(quotation omitted). Those factors are:

(1) the length of the treatment relationship and the frequency of
examination; (2) the nature and extent of the treatment relationship,
including the treatment provided and the kind of examination or
testing performed; (3) the degree to which the physicians opinion is
supported by relevant evidence; (4) consistency between the opinion
and the record as a whole; (5) whether or not the physician is a
specialist in the area upon which an opinion is rendered; and (6)
other factors brought to the ALJs attention which tend to support or
contradict the opinion.
Id. at 1300-01 (quotation omitted). After considering these factors, the ALJ must
give good reasons for the weight he ultimately assigns the opinion. 20 C.F.R.
404.1527(d)(2). Finally, if the ALJ rejects the opinion completely, he must
then give specific, legitimate reasons for doing so.
Watkins , 350 F.3d at 1301
(quotations omitted).
We conclude that the district court correctly determined that the ALJ did
not err in refusing to give controlling weight or otherwise credit the opinions of
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plaintiffs treating physicians that he was disabled, because those opinions were
not well-supported by clinical evidence and there is substantial evidence in the
record to contradict them. Aplt. App. at A23. Specifically, we agree with the
following analysis of the district court:
Plaintiffs [treating physician] argument relies almost exclusively on
the fact that his physicians completed statements certifying that he
was disabled. . . . As an initial matter, the ALJ correctly observed
that the forms completed prior to 1992 (with one exception) appear
to have certified only that plaintiff was unable to perform his former
occupation. . . . The ALJ in fact credited those opinions by finding
that plaintiff was no longer able to work as a physician. To qualify
for social security disability benefits, however, a plaintiff also has to
prove that he was unable to engage in any substantial gainful
activity. The cryptic disability forms completed by plaintiffs
physicians fail to provide such evidence. They consist almost
entirely of conclusory statements (or check marks) that plaintiff was
disabled. Cf. Knipe v. Heckler , 755 [F.2d] 141, 145 (10th Cir.
1985) (evidence is not substantial if it [is] merely conclusory);
Castellano [v. Secy of Health & Human Servs. , 26 F.3d 1027, 1029
(10th Cir. 1994)] (A treating physicians opinion may be rejected if
his conclusions are not supported by specific findings). Absent are
supporting test results or specific findings showing or stating the
actual restrictions, limitations, or residual abilities that plaintiff had
during this period. Plaintiff cites no such restrictions in his
physicians findings to indicate that his degenerative disc disease and
stenosis would have precluded him from performing sedentary or
light work prior to 1992. . . . Nor does he show that the findings of
his treating physicians are inconsistent in any particular respect with
the RFC as determined by the ALJ . . . .
Id. at A23-A24. Accordingly, like the district court, we reject plaintiffs
argument that the ALJ erred by declining to give controlling weight to [the]
opinions [of his treating physicians].
Id. at A24.
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2. Plaintiffs Credibility.
Credibility determinations are peculiarly the province of the finder of fact,
and we will not upset such determinations when supported by substantial
evidence. McGoffin v. Barnhart,
288 F.3d 1248, 1254 (10th Cir. 2002)
(quotation omitted). Nonetheless, [f]indings as to credibility should be closely

and affirmatively linked to substantial evidence and not just a conclusion in the
guise of findings.
Id. (quotation omitted).
We agree with the district court that [t]he ALJ complied with these
standards in the instant case. Aplt. App. at A25. As explained by the district
court,
[The ALJ] cited and applied the regulation governing evaluation of
symptoms, including pain.
See 20 C.F.R. 404.1529. He noted the
absence of objective medical evidence to support plaintiffs
testimony that he was unable to do any work or perform even routine
daily tasks prior to expiration of his insured status, and he linked his
findings to specific evidence in the record. For example, he noted
that although plaintiff testified he was unable to walk or do postural
activities prior to his last insured date, there was evidence that as
recently as 2000 plaintiff was able to go on long walks for exercise
three times per week. Plaintiff also testified that he could not grip or
write, but the ALJ noted there was evidence that he was able to read
extensively, he was able to take post-graduate courses by
correspondence in 1993, and he engaged in non-paying
administrative work in 1997. Additionally, as the ALJ noted,
plaintiffs testimony was undercut by medical evidence such as Dr.
Hereds findings of no clear cut anatomical weakness, and Dr.
Drazeks records from 1990 reflecting the substantial improvement
plaintiff made after physical therapy, including reduced pain,
improved cervical range of motion, improved grip strength, and
complete resolution of paresthesia in his upper extremities. Dr.
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Drazek noted in October of 1990 that plaintiff was contemplating a

return to part-time work, and in December she discharged him from
her care, finding that a continuation of his therapy program was not
warranted. As the ALJ noted, no doctor has ever validated the
rather severe limitations in standing, walking, sitting, lifting and
carrying which [plaintiff] alleged at the hearing. R. 23.
Id. at A25-A26.
Because the ALJs credibility determination is affirmatively linked to
substantial evidence and not just a conclusion in the guise of findings,
288 F.3d at 1254, there is no reversible error here.
McGoffin,
3. RFC Determination.
In his opening brief, plaintiff asserts that [w]hen proper weight is given to
the reports of Dr. Vakas treating physicians and his credibility regarding his
limitations due to pain, the conclusions to be drawn from the [vocational experts]
testimony will be different than those previous[ly] found by the ALJ. Aplt. Br.
While we are not permitted to rely on extra-record facts and will not do so
here, we nonetheless feel obliged to disclose to the parties that we have also
discovered extra-record facts that would appear to raise additional concerns
regarding plaintiffs credibility. First, [i]n 1985, the [Kansas State Board of
Healing Arts] issued an emergency order prohibiting [John L. Vakas, M.D.] from
selling, dispensing, administering, or prescribing controlled substances.
Vakas
v. Kansas State Bd. of Healing Arts , 941 P.2d 381, 383 (Kan. Ct. App. 1997).
Second, [i]n 1988, the Board revoked [Dr. Vakas] license to practice medicine
and surgery. Id. In addition, while Dr. Vakas has applied on two separate
occasions to have his license to practice medicine reinstated, both applications
were denied. Id. Given this background, unless there are two individuals in the
State of Kansas named John L. Vakas, M.D, it would appear that plaintiff has
not been entirely candid regarding the reasons why he has not practiced medicine
since the late 1980s.
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at 23. Having rejected plaintiffs claims that the ALJ erred by failing to properly
evaluate the opinions of his treating physicians and his credibility, we conclude
that this argument must likewise fail.
The judgment of the district court is AFFIRMED.
Entered for the Court
Per Curiam
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F I L E D

UNITED STATES COURT OF APPEALS

United States Court of Appeals

JOHN L. VAKAS, M.D.,

Before TACHA , Chief Judge, HENRY , and OBRIEN , Circuit Judges.

disability insurance benefits under the Social Security Act. We exercise

See Aplt. App. at A17-A23. Because the district

court has accurately summarized plaintiffs medical history, we do not need to

(1) well-supported by medically acceptable clinical and laboratory diagnostic

Even if a treating physicians opinion is not entitled to controlling weight,

(quotation omitted). Those factors are:

Watkins , 350 F.3d at 1301

288 F.3d 1248, 1254 (10th Cir. 2002)

(quotation omitted). Nonetheless, [f]indings as to credibility should be closely

Id. (quotation omitted).

Drazek noted in October of 1990 that plaintiff was contemplating a

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