                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          OCT 29 1998
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    LINDA L. MARTIN,

                Plaintiff-Appellant,

    v.                                                    No. 98-7036
                                                    (D.C. No. CV-96-594-B)
    KENNETH S. APFEL, Commissioner                        (E.D. Okla.)
    of Social Security Administration,

                Defendant-Appellee.




                            ORDER AND JUDGMENT            *




Before BALDOCK, EBEL, and MURPHY , 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) and 10th Cir. R. 34.1.9. 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      This order and judgment is not binding precedent, except under the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.
      Plaintiff appeals the district court’s decision upholding the Commissioner’s

denial of supplemental security income. Plaintiff alleged that she was disabled

due to depression and other mental health problems. The administrative law

judge (ALJ) found, at the fifth step of the applicable analysis, see 20 C.F.R.

§ 416.920, that plaintiff was not disabled because she retained the ability to

perform some work existing in the national economy. The Appeals Council

denied review, making the ALJ’s determination the Commissioner’s final

decision.

      This court reviews the Commissioner’s decision to determine only whether

he applied the law correctly and whether the record contains substantial evidence

to support the decision. See Bean v. Chater, 77 F.3d 1210, 1213 (10th Cir. 1995).

At step five, the burden is on the Commissioner to establish that plaintiff is

capable of performing work existing in the national economy. See Daniels v.

Apfel, 154 F.3d 1129, 1132 (10th Cir. 1998).

      On appeal, plaintiff argues that the ALJ erred in rejecting the opinion of

plaintiff’s treating physicians, applied incorrect legal standards, and erred in

determining that plaintiff was not disabled, and that the record does not contain

substantial evidence to support the Commissioner’s denial of benefits. Upon

consideration of the record and the parties’ briefs, we affirm.




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      Two of plaintiff’s treating physicians did indicate that plaintiff was

disabled because she met the listing of impairments for affective disorders, see 20

C.F.R. Pt. 404, Subpt. P, App. 1, § 12.04, and one of these treating physicians

also indicated that plaintiff met the listing for anxiety-related disorders, see id.

§ 12.06. A treating physician’s opinion that a claimant is disabled, however, is

not dispositive. See Castellano v. Secretary of Health & Human Servs., 26 F.3d

1027, 1029 (10th Cir. 1994). Nonetheless, an ALJ is required to give controlling

weight to a treating physician’s well-supported opinion, so long as it is not

inconsistent with other substantial evidence in the record. See 20 C.F.R.

§ 416.927(d)(2); see also Bean, 77 F.3d at 1214. In this case, however, the

opinion of plaintiff’s two treating physicians that plaintiff met the listings is

contrary to their own treatment notes and is inconsistent with other substantial

evidence in the record. See Castellano, 26 F.3d at 1029. The ALJ, therefore, did

not err in rejecting those opinions.

      Further, to the extent that the various “Psychiatric Review Technique”

forms and the mental residual functional capacity assessment forms in the record

conflict as to their determination of the limitations plaintiff’s mental impairments

impose on her ability to function, it was within the ALJ’s province to determine

the appropriate weight to be given this contradictory evidence. See Casias v.

Secretary of Health & Human Servs.     , 933 F.2d 799, 801 (10th Cir. 1991). Lastly,


                                           -3-
because the hypothetical questions posed to the vocational expert (VE) included

the limitations supported by the record, the ALJ did not err in determining that

plaintiff possessed the ability to perform work existing in the national economy.

See Decker v. Chater , 86 F.3d 953, 955 (10th Cir. 1996).

      The judgment is AFFIRMED.



                                                      Entered for the Court



                                                      Bobby R. Baldock
                                                      Circuit Judge




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