Cathey v. Barnhart

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 25 2003
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
NEVA CATHEY,
Plaintiff-Appellant,
v. No. 02-7100
(D.C. No. 01-CV-439-P)
JO ANNE B. BARNHART, (E.D. Okla.)
Commissioner, Social Security
Administration,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before LUCERO , McKAY , and BALDOCK , Circuit Judges.
Neva Cathey appeals from an order of the district court affirming the
determination of the Commissioner of Social Security (“Commissioner”) that she
is not entitled to Social Security disability benefits. We affirm.
*
The case is unanimously ordered submitted without oral argument pursuant to
Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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.
In an application for Social Security benefits filed in July 1998, Cathey
alleged that she has been unable to work since May 1998 due to several alleged
impairments, including diabetes, low back pain, obesity, and carpel tunnel
syndrome in her left dominant hand. Her application was denied by the agency.
Reviewing the denial of benefits, the administrative law judge (“ALJ”)
determined that Ms. Cathey was not disabled at step five of the five-step
sequential process, see Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir.
1988), as she could perform the full range of sedentary work. The ALJ reached
this conclusion by applying the Medical-Vocational Guidelines (“the grids”), 20
C.F.R. pt. 404, subpt. P, app. 2.
Because the Appeals Council declined to review the ALJ’s decision, that
decision became the final decision of the Commissioner, see 20 C.F.R. § 404.984,
which Cathey then appealed to the district court. In a summary order, the district
court affirmed the denial of benefits. Cathey v. Barnhart, No. CIV 01-439-P
(E.D. Okla. filed July 15, 2002). On appeal to this court, Cathey argues that the
ALJ should not have used the grids to determine if she could work. She also
asserts that the ALJ improperly evaluated the medical evidence and that testimony
should have been obtained from a vocational expert (“VE”).
We review the Commissioner’s decision to determine whether her factual
findings were supported by substantial evidence in the record viewed as a whole
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and whether she applied the correct legal standards. See Castellano v. Sec’y of
Health & Human Servs., 26 F.3d 1027, 1028 (10th Cir. 1994). “Substantial
evidence is such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Id. (quotations omitted). In the course of our review,
we may “neither reweigh the evidence nor substitute our judgment for that of the
agency.” Casias v. Sec’y of Health & Human Servs., 933 F.2d 799, 800 (10th Cir.
1991).
Cathey maintains that the ALJ should not have applied the grids in making
his determination that she could work, because she has nonexertional impairments
of pain, obesity, and carpal tunnel syndrome, as well as depression. While
nonexertional limitations may preclude use of the grids, the grids can be used if
the impact of those impairments does not significantly reduce the underlying job
base. See Evans v. Chater, 55 F.3d 530, 532 (10th Cir. 1995) (noting that an
ability to perform a “substantial majority” of the work in the designated residual-
functional-capacity category justifies use of the grids). The ALJ determined that
Ms. Cathey met these parameters. See Thompson v. Sullivan, 987 F.2d 1482,
1488 (10th Cir. 1993).
A review of the record shows that Cathey’s alleged nonexertional
limitations do not preclude her working in a broad range of jobs. A consultative
examination showed that Cathey had some tenderness in her lower back but had
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no restrictions on her ability to ambulate. She received no treatment for her back
pain and does not require assistive devices. Although Cathey is quite heavy, she
has not been diagnosed as obese and no medical source has noted any limitations
due to her weight. Cathey has shown signs of carpal tunnel syndrome, but that
impairment has not been positively diagnosed.
As to her depression, Cathey is taking antidepressant medication prescribed
by her nurse practitioner. She has not received any treatment for depression from
a specialist “in years.” (1 Appellant’s App. at 71.) Cathey’s alleged
nonexertional impairments either require no treatment or have been treated
successfully. Cf. Pacheco v. Sullivan, 931 F.2d 695, 698 (10th Cir. 1991)
(suggesting that an “impairment that can be remedied by treatment” is not
disabling); Bernal v. Bowen , 851 F.2d 297, 301 (10th Cir. 1988) (“The mere fact
that [claimant] was diagnosed as suffering from major depression does not
automatically mean that he is disabled.”). In short, Cathey has failed to show that
her alleged nonexertional impairments necessarily interfere with her ability to
work, and thus the ALJ properly relied on the grids.
Cathey asserts that the ALJ did not properly evaluate the medical evidence
because he did not consider her left shoulder problems, left adhesive capsulitis,
cellulitis, hallux valgus deformity, depression, and limitations due to her obesity.
No physician has indicated that Cathey is significantly limited in her ability to
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work due to any of these impairments. Although her primary care provider, a
nurse practitioner, determined that she could not work, this determination is not
binding on the ALJ. A physician’s opinion that a claimant is totally disabled is
not dispositive, because the final responsibility for determining whether a
disability exists is reserved for the Commissioner . Castellano , 26 F.3d at 1029.
Under the appropriate regulations, the opinion of a nurse practitioner is entitled to
even less weight. See 20 C.F.R. § 404.1513(a) (listing “acceptable medical
sources” who can provide evidence of an impairment, and excluding nurse
practitioners); Barnett v. Apfel, 231 F.3d 687, 690 (10th Cir. 2000) (noting that
reports from “other” medical sources are not entitled to the same significant
weight). Further, in the instant case, the nurse practitioner’s office notes
contradict her opinion.
Lastly, Cathey argues that the ALJ should have obtained VE testimony. As
we have determined that the ALJ properly relied on the grids, no VE testimony
was required. See Daniels v. Apfel , 154 F.3d 1129, 1132 (10th Cir. 1998)
(noting that use of the grids, in appropriate circumstances, “obviat[es] the need
for a vocational expert’s testimony”) .
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We conclude that there is substantial evidence in the record to support the
Commissioner’s denial of benefits, and that the Commissioner made no legal error
in reaching her decision. Accordingly, the judgment of the district court is
AFFIRMED .
Entered for the Court
Carlos F. Lucero
Circuit Judge
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