F I L E D
United States Court of Appeals
UNITED STATES COURT OF APPEALS
APR 14 2004
FOR THE TENTH CIRCUIT
v. No. 03-7032
(D.C. No. 02-CV-003-P)
JO ANNE B. BARNHART, (E.D. Okla.)
Commissioner of Social Security,
ORDER AND JUDGMENT *
Before O'BRIEN and BALDOCK , Circuit Judges, and BRORBY , Senior Circuit
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This order and judgment is not binding precedent, except under the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. 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.
Sherry Zachary appeals from an order of the district court affirming the
Commissioner's decision denying her application for Social Security benefits.
Ms. Zachary filed for these benefits on December 21, 1999. She alleged
disability based on fibromyalgia, irritable bowel syndrome, and depression with
underlying anxiety and panic attacks. The agency denied her application initially
and on reconsideration.
On January 22, 2001, Ms. Zachary received a de novo hearing before an
administrative law judge (ALJ). The ALJ determined that Ms. Zachary had the
residual functional capacity (RFC) to perform a significant range of sedentary
work. The ALJ denied Ms. Zachary's application for benefits concluding that
she was not disabled at step five of the analysis because she could perform
a significant number of jobs in the national economy. See Williams v. Bowen ,
844 F.2d 748
, 750-52 (10th Cir. 1988) (explaining five-step process for
evaluating claims for disability benefits). The Appeals Council denied review,
making the ALJ's decision the Commissioner's final decision.
We review the Commissioner's decision to determine whether the factual
findings are supported by substantial evidence in the record and whether the
correct legal standards were applied. Winfrey v. Chater , 92 F.3d 1017
(10th Cir. 1996). On appeal, Ms. Zachary contends that the ALJ erred in the
following ways: by failing to properly consider the treating source and by failing
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to provide specific, legitimate reasons for rejecting opinions and assessments
regarding Ms. Zachary's physical and mental impairments as identified by the
medical evidence. We affirm.
Ms. Zachary argues that the ALJ failed to properly consider the opinion of
Dr. Lewis, her treating physician. A treating source opinion is to be given
controlling weight only if it is "well supported by medically acceptable clinical
and laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence in [the] record . . . ." 20 C.F.R. § 404.1527(d)(2); see also
Watkins v. Barnhart , 350 F.3d 1297
, 1300 (10th Cir. 2003) (outlining framework
for ALJ's controlling weight determination). The ALJ acknowledged this
standard in his decision and then went on to find that Dr. Lewis's opinion was not
entitled to controlling weight because it was unsupported by medical evidence and
it was inconsistent with other evidence in the record. Specifically, the ALJ found
that Dr. Lewis's account of Ms. Zachary's limitations did not appear to be a
"genuine medical assessment of discrete functional limitations based upon
clinically established pathologies." Admin. R. at 31. The ALJ found also that
"the degree [Ms. Zachary] is found to be limited in [Dr. Lewis's] consultative
examination is quite different from the limitations cited in [Dr. Lewis's] medical
source statement." Id. In addition to being inconsistent with his own
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examination, the ALJ concluded that Dr. Lewis's opinion was also inconsistent
with other record evidence, including the analysis of the state agency's reviewing
physicians. Based on the inconsistencies in Dr. Lewis's examination and medical
source statement, the lack of specific tests and objective evidence to support the
opinion and the fact that the opinion was inconsistent with the record as a whole,
the ALJ found that Dr. Lewis's opinion was entitled to little weight. Because the
ALJ considered the appropriate factors and explained the reasons for the weight
he was giving Dr. Lewis's opinion, no legal error occurred. See Watkins ,
350 F.3d at 1300-01.
Ms. Zachary couches her second issue very broadly, but her argument
refers solely to the ALJ's consideration of the opinion of one of her consulting
physicians, Dr. Mynatt. Ms. Zachary argues that the ALJ erred because he did not
consider Dr. Mynatt's opinion and he did not give specific, legitimate reasons for
rejecting Dr. Mynatt's opinion. Based on our review of the record, however, the
ALJ did not reject Dr. Mynatt's opinion and he gave it the proper consideration.
Ms. Zachary's assertion that the ALJ rejected Dr. Mynatt's opinion appears
to be based largely on the fact that Dr. Mynatt assessed Ms. Zachary's present
level of functioning at 45 on the Global Assessment Function (GAF) scale.
Ms. Zachary argues that "a GAF rating of 45 coupled with other physical
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impairments seriously interferes with Zachary's ability to work." Aplt. Br. at 16.
A GAF of 45 indicates "[s]erious symptoms . . . OR any serious impairment in
social, occupational, or school functioning." American Psychiatric Assoc.,
Diagnostic and Statistical Manual of Mental Disorders 34 (4th ed. 2000).
Dr. Mynatt's finding that Ms. Zachary's present level of functioning was 45 did
not include any explanation for giving her that rating and did not indicate that
Ms. Zachary was unable to work. Ms. Zachary's GAF score of 45 may indicate
problems not necessarily related to her ability to hold a job, see id. , and therefore
standing alone, without any further narrative explanation, this rating does not
support an impairment seriously interfering with her ability to work.
Moreover, the ALJ specifically noted and summarized Dr. Mynatt's
report, with no indication that he was rejecting the opinion. Admin. R. at 30.
Dr. Mynatt's report reflects that Ms. Zachary was oriented in all spheres; she
takes no medications; she has some memory problems; she has difficulty in social,
recreational and occupational areas, and she is mentally competent to handle her
own funds. Id. at 165-67. Dr. Mynatt diagnosed Ms. Zachary with dysthymic
disorder and generalized anxiety disorder. The ALJ's RFC reflects consideration
of Dr. Mynatt's evaluation that Ms. Zachary has some memory difficulties and
difficulty with social interaction because the ALJ found that she should be
"limited to simple, routine instructions and cannot have contact with the general
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public." Id. at 29. Although the ALJ did not discuss Ms. Zachary's GAF rating
in his RFC determination, he was not required to do so. See Howard v. Comm'r
of Soc. Sec. , 276 F.3d 235
, 241 (6th Cir. 2002) ("While a GAF score may be of
considerable help to the ALJ in formulating the RFC, it is not essential to the
The ALJ included in his findings that he had "carefully considered all of
the medical opinions in the record regarding the severity of claimant's
impairments (20 CFR § 404.1527)," Admin. R. at 34 and his RFC is not
inconsistent with Dr. Mynatt's report. Because Dr. Mynatt is not one of
Ms. Zachary's treating sources his opinion "is not entitled to the sort of
deferential treatment accorded to a treating physician's opinion." Doyal v.
Barnhart , 331 F.3d 758
, 763 (10th Cir. 2003). Accordingly, the ALJ properly
considered the opinion of Dr. Mynatt in making his disability determination.
The judgment of the district court is AFFIRMED. Entered for the Court
Senior Circuit Judge
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