                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           JAN 30 1998
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    CARLA M. NOFFSINGER,

                Plaintiff-Appellant,

    v.                                                   No. 97-7051
                                                    (D.C. No. CV-96-35-S)
    KENNETH S. APFEL, Commissioner,                      (E.D. Okla.)
    Social Security Administration, *

                Defendant-Appellee.




                            ORDER AND JUDGMENT **



Before ANDERSON, McKAY, and LUCERO, 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




*
      Pursuant to Fed. R. App. P. 43(c), Kenneth S. Apfel is substituted for
John J. Callahan, former Acting Commissioner of Social Security, as the
defendant in this action.
**
      This order and judgment is not binding precedent, except under the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.
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

      Claimant Carla M. Noffsinger appeals an order of the district court

affirming the denial of social security disability benefits and supplemental

security income benefits at step five of the disability determination, see Williams

v. Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988) (explaining the five-step

analysis set out in 20 C.F.R. §§ 404.1520, 416.920). We affirm.


                                 BACKGROUND

      Ms. Noffsinger alleges disability from July 6, 1988, due to multiple

impairments, including impingement syndrome of the right shoulder, patellar

malalignment of the left knee, recurrent bowel obstruction, a seizure disorder, and

the resulting pain and limitations. Ms. Noffsinger, who was 35 years old at the

time of her last hearing before the Administrative Law Judge (ALJ), 1 has

completed the twelfth grade, taken college courses, and trained as a licensed

practical nurse.




1
       Plaintiff testified at two hearings before the ALJ. After the first hearing,
held May 20, 1992, the ALJ issued an order denying benefits. The Appeals
Council reversed and remanded with instructions for the ALJ to obtain additional
evidence concerning Ms. Noffsinger’s seizure disorder and knee injury and to
take testimony from a vocational expert. The hearing on remand was held
November 18, 1993.

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      At the hearing, Ms. Noffsinger described difficulties in sitting, standing,

walking, reaching, and lifting, in spite of surgery on her shoulder and knee. She

also gave an account of her bowel obstruction condition, which she said caused

chronic abdominal pain, cramping, nausea, and vomiting. Concerning her seizure

disorder, Ms. Noffsinger and her husband testified that, in December 1991, she

began to have seizures, and, as of the date of the second hearing, she experienced

between five and twelve major motor seizures a month, mostly at night.

      The vocational expert identified a number of sedentary jobs available in

significant numbers in the national economy for a person of Ms. Noffsinger’s age,

experience, and education, who had restrictions on the use of the right hand, a

need to sit or stand at will, and, as seizure precautions, the need to avoid

climbing, heights, and moving equipment. The vocational expert testified that the

working ability of a person with a seizure disorder is an individualized

determination but that, if controlled, such a disorder would not prevent

performance as a sales clerk, cashier, bench assembler, production inspector,

checker, or examiner. According to the vocational expert, the effect of abdominal

problems on the ability to work would also be dependent on the number of

episodes a person has during a work day or work week.

      Medical records confirm that Ms. Noffsinger has undergone medical and

surgical treatment for knee and shoulder impairments and that she has limited


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motion in these joints. Ms. Noffsinger’s seizure disorder is also documented, in

that the records show a history of childhood petit mal seizures, an abnormal EEG

indicating epileptiform discharges in the right posterior hemisphere, and treatment

for seizures. In addition, there is evidence of abdominal problems possibly

attributable to small bowel obstruction, for which Ms. Noffsinger was

hospitalized in the summer and fall of 1993.

      The ALJ found that Ms. Noffsinger had severe impairments “due to status

postoperative internal derangement of the left knee and right shoulder, possible

recurrent bowel obstruction and seizure activity.” II Appellant’s App. at 28.

Further, he found that the medical evidence did not support the testimony and

statements concerning the severity and frequency of her seizure activity and that

the testimony on the extent of her limitations and severity of her pain was not

wholly credible. He decided that Ms. Noffsinger retained the residual functional

capacity to do sedentary, semiskilled or unskilled work that did not require more

than a minimal amount of standing and walking or involve exposure to dangerous

machinery, unprotected heights, or motor vehicle-type equipment.

      Considering the testimony of the vocational expert, and using the medical-

vocational guidelines, 20 C.F.R., Pt. 404, Subpt. P, App. 2 (the grids), as a

guideline, the ALJ concluded that, during the relevant time period, Ms.




                                         -4-
Noffsinger was not disabled. Upon Ms. Noffsinger’s request for review, the

Appeals Council adopted the ALJ’s findings and conclusions.


                                  DISCUSSION

      On appeal, Ms. Noffsinger argues that the ALJ erred by: (1) assessing her

residual functional capacity without giving appropriate weight to the opinions of

her treating physicians, and (2) relying on the medical vocational guidelines and

the vocational expert’s responses to incomplete hypothetical questions to decide

that she was not disabled. 2 We review the record to determine whether substantial

evidence supports the decision and whether correct legal standards were applied.

We do not reweigh the evidence. See Castellano v. Secretary of Health & Human

Servs., 26 F.3d 1027, 1028 (10th Cir. 1994).

      Ms. Noffsinger argues that the ALJ did not give sufficient weight to the

opinions of her treating physicians at the Rowland Ellis Flatt Clinic on her

residual functional capacity. Primarily, she attacks the ALJ’s implicit assumption

that her seizure disorder was controlled by medication. Ms. Noffsinger points out



2
       We note that Ms. Noffsinger did not present these issues to the Appeals
Council. Nonetheless, the court will not apply a waiver rule in this case because,
at the time she appealed to the Appeals Council, Ms. Noffsinger did not have
notice of James v. Chater, 96 F.3d 1341, 1344 (10th Cir. 1996) (holding “[i]ssues
not brought to the attention of the Appeals Council on administrative review may,
given sufficient notice to the claimant, be deemed waived on subsequent judicial
review”).

                                        -5-
a November 1992 letter from a clinic physician’s assistant which states that she

continued to have seizures despite treatment and that she was being referred to a

seizure clinic. See II Appellant’s App. at 322.

      The ALJ, however, viewed this statement in context. He observed that the

record contained no indication of seizure activity during the seventeen days in

1993 that Ms. Noffsinger was hospitalized for abdominal problems. In fact, the

August 10, 1993, discharge summary prepared by Dr. Ted Rowland showed the

diagnosis of “SEIZURE DISORDER, CONTROLLED.” Id. at 363.

      Dr. Sherman Lawton, a consulting physician, examined Ms. Noffsinger on

September 1, 1993, reviewed her medical records, noted that nothing in the

records reflected the seizure frequency reported by Ms. Noffsinger and that it

would be “highly unusual” for a patient with her history to have this number of

seizures, but acknowledged that he had no way of confirming the frequency of

seizures. Id. at 333-35. On October 5, 1993, Dr. Herbert Rowland wrote a letter,

apparently in response to Dr. Lawton’s report, repeating Ms. Noffsinger’s medical

history and stating that he did “not believe that an exam would determine if a

person had a seizure disorder or not.” II Appellant’s App. at 343.

      The ALJ also evaluated the evidence on Ms. Noffsinger’s abdominal

problems and other impairments. This evidence included her hospitalization

records and Dr. Lawton’s summary of these records, as well as two letters from


                                         -6-
Dr. Herbert Rowland. On August 17, 1993, he wrote a letter advising of Ms.

Noffsinger’s recent hospitalization for recurrent bowel obstruction and stating

that she “will be disabled for an indefinite period of time.” Id. at 332. In his

October 5, 1993 letter, however, he stated only that she “will possibly have

recurrent problems in the future.” Id. at 343. He also proffered a general opinion

that he “think[s] that in general, [Ms. Noffsinger] is a poor candidate for

employment.” Id. at 344.

      There is substantial medical evidence, including statements from Drs. Ted

and Herbert Rowland, to support the ALJ’s findings on the nature and severity of

Ms. Noffsinger’s impairments. As to a claimant’s disability, opinions from

treating physicians are not dispositive. Under the applicable regulations, the final

responsibility for the determination of residual functional capacity lies with the

agency, not a treating or examining source. See 20 C.F.R. §§ 404.1527(e)(2);

416.927(e)(2); Castellano, 26 F.3d at 1029. Because the ALJ considered the

opinions expressed by Ms. Noffsinger’s treating physicians and provided specific

and legitimate reasons for discounting them, he was within his province in

declining to give them controlling weight.

      Turning to Ms. Noffsinger’s second argument, we do not agree that the ALJ

improperly relied on the medical vocational guidelines or posed incomplete

hypothetical questions to the vocational expert. The ALJ did not decide the


                                          -7-
disability issue solely on the basis of the guidelines; he considered all relevant

evidence, including the testimony of a vocational expert. See Trimiar v. Sullivan,

966 F.2d 1326, 1332-33 (10th Cir.1992) (explaining role of grids in cases with

nonexertional impairments). Further, because the ALJ found that Ms.

Noffsinger’s testimony on the extent of her limitations was neither completely

credible nor supported by substantial evidence, he was not required to include all

her complaints in his hypothetical questions. See Evans v. Chater, 55 F.3d 530,

532 (10th Cir.1995) (ALJ’s hypothetical questions to vocational expert need only

reflect impairments and limitations borne out by the evidentiary record.).

      After careful examination of the record, we, like the ALJ, recognize that

Ms. Noffsinger does have severe functional limitations. However, the ALJ’s

determination that she was not disabled within the meaning of the Social Security

Act is supported by substantial evidence and based on the application of correct

legal standards. Accordingly, the judgment of the United States District Court for

the Eastern District of Oklahoma is AFFIRMED.



                                                     Entered for the Court



                                                     Monroe G. McKay
                                                     Circuit Judge



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