                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUN 24 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    HARRY D. FLOYD,

                Plaintiff-Appellant,

    v.                                                   No. 98-5153
                                                   (D.C. No. 97-CV-321-M)
    KENNETH S. APFEL, Commissioner                       (N.D. Okla.)
    of Social Security Administration,

                Defendant-Appellee.




                            ORDER AND JUDGMENT            *




Before ANDERSON and KELLY , Circuit Judges, and           BROWN , ** Senior
District Judge.




         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




*
      This order and judgment is not binding precedent, except under the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.
**
      Honorable Wesley E. Brown, Senior District Judge, United States District
Court for the District of Kansas, sitting by designation.
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

      Plaintiff Harry D. Floyd appeals from an order of the district court

affirming the Commissioner’s determination that he is not entitled to Social

Security benefits. We affirm.

      We review the Commissioner’s decision to determine whether his factual

findings were supported by substantial evidence in light of the entire record and

to determine whether he applied the correct legal standards. See Castellano v.

Secretary 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. Secretary of Health & Human Servs., 933 F.2d 799,

800 (10th Cir. 1991).

      Mr. Floyd alleged disability as of March 1994 due to back problems

resulting from lumbar sprain and spina bifida, a congenital condition; heart

problems; mental impairments; rib pain; and carpal tunnel syndrome.    The

administrative law judge (ALJ) determined that Mr. Floyd 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 he could perform sedentary work.


                                          -2-
       On appeal, Mr. Floyd contends the ALJ’s hypothetical to the vocational

expert was too limited and he failed to discuss the evidence he considered in

reaching the conclusions noted on the psychiatric review technique form. He also

argues that the ALJ, at step three, failed to discuss the evidence he considered in

determining that Mr. Floyd was not disabled as to his mental impairment.   1
                                                                                In his

reply brief, Mr. Floyd specifically states that he has abandoned any issues

involving his “pain and limited mobility” as his argument on appeal specifically

concerns his mental impairments.      Reply Br. at 3.

       The record shows that Mr. Floyd’s treating physician has twice opined that

Mr. Floyd is totally disabled.    See App. Vol. II at 309, 388. However, this

opinion was based in part on Mr. Floyd’s physical condition and in part on his

depression. Mr. Floyd does not contest the ALJ’s determination that his pain and

restricted mobility limited him to sedentary work. The ALJ properly rejected

Dr. Collins’ opinion that Mr. Floyd was totally disabled. Dr. Collins’ opinion is

not “well–supported by medically acceptable clinical . . . diagnostic techniques

and is . . . inconsistent with the other substantial evidence in” the record. 20

C.F.R. § 404.1527(d)(2); see also Castellano, 26 F.3d at 1029. Thus, it was not

entitled to controlling weight.



1
      This argument was not raised to the district court and will not be discussed
here. See Crow v. Shalala, 40 F.3d 323, 324 (10th Cir. 1994).

                                           -3-
       Dr. Collins’ medical notes show that he thought Mr. Floyd’s depression was

improving. Further, Mr. Floyd was seen at a mental health clinic where no one

was of the opinion that Mr. Floyd was unable to work. Indeed, referral to

vocational rehabilitation was recommended should Mr. Floyd wish to explore new

career opportunities.   See App. Vol. II at 327. A specialist’s opinion is entitled to

more weight than that of a nonspecialist.    See 20 C.F.R. § 404.1527(d)(5).

       We see no reversible error in the ALJ’s completion of the    psychiatric

review technique form . In his opinion, the ALJ discussed the evidence in the

record concerning Mr. Floyd’s mental impairment. This discussion related

directly to the mental health clinic’s evaluation and treatment record thus

complying with our directives in    Washington v. Shalala , 37 F.3d 1437, 1442 (10th

Cir. 1994).

       Due to the fact that we have held that the ALJ’s determination of the

severity of Mr. Floyd’s mental impairment is supported by the record, the

hypothetical presented to the   vocational expert met the applicable standard.    See

Evans v. Chater , 55 F.3d 530, 532 (10th Cir. 1995) (ALJ’s hypothetical questions

to vocational expert “must include all (and only) those impairments borne out by

the evidentiary record”).




                                            -4-
      As the ALJ properly rejected Dr. Collins’ opinion, the judgment of the

United States District Court for the Northern District of Oklahoma is

AFFIRMED.



                                                   Entered for the Court



                                                   Stephen H. Anderson
                                                   Circuit Judge




                                        -5-
