                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAR 26 1998
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    DELBERT E. NASH,

                Plaintiff-Appellant,

    v.                                                   No. 97-5164
                                                   (D.C. No. 96-CV-223-M)
    KENNETH S. APFEL, Commissioner                       (N.D. Okla.)
    of Social Security, *

                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      This order and judgment is not binding precedent, except under the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) and 10th Cir. R. 34.1.9. The case is

therefore ordered submitted without oral argument.

      Plaintiff Delbert E. Nash appeals from an order of the district court

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

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. Nash alleged disability due to malignant hypertension, headaches,

depression, and fatigue secondary to malignant hypertension. The administrative

law judge (ALJ) determined that Mr. Nash 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), finding that he could perform the full range of sedentary work.




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      On appeal, Mr. Nash argues that the ALJ’s determination is not supported

by substantial evidence. He also contends that the ALJ disregarded the treating

physician’s opinion and the Appeals Council gave no reasons for disregarding

new evidence submitted to it. Finally, Mr. Nash asserts that the ALJ failed to

consider his nonexertional impairments and thus, erroneously relied on the grids.

      Mr. Nash argues that the ALJ’s determination that he could perform the full

range of sedentary work is not supported by substantial evidence. The record

shows that Mr. Nash’s hypertension is well controlled when he complies with the

prescribed medical regime. However, he admitted, and the record supports his

statement, that he does not always fully comply with the regime. Mr. Nash

admitted that his headaches are due to his hypertension and stated he had no

severe mental disability and had never sought psychiatric treatment. Mr. Nash

testified to disabling fatigue, but the record does not show that he ever sought

treatment for it. The ALJ’s determination that Mr. Nash could perform sedentary

work is supported by the record.

      Mr. Nash contends that the ALJ disregarded the treating physician’s

opinion and the Appeals Council gave no reasons for disregarding the new

evidence he submitted. The ALJ held that the treating physician’s opinion, as

expressed in a letter, was not supported by his own records or objective evidence

and, thus, could not be accorded the weight usually given a treating physician’s


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opinion. The treating physician wrote two letters in 1994, both concluding that

Mr. Nash was unemployable due to his headaches, shortness of breath, and

enlarged heart. Mr. Nash submitted another letter from his physician to the

Appeals Council in which his physician opined that Mr. Nash was unemployable

due either to cardiomegaly or congestive heart failure.

      We agree with the ALJ and the Appeals Council that no medical evidence

supports the treating physician’s opinions. In fact, the last chest x-ray Mr. Nash

had showed that his heart was borderline normal in size. Neither the ALJ nor the

Appeals Council erred in not crediting the treating physician’s opinion that Mr.

Nash was disabled. See Castellano, 26 F.3d at 1029 (while Commissioner will

give controlling weight to treating physician’s opinion if supported by objective

medical evidence, treating physician’s opinion that claimant is disabled is not

dispositive, as final responsibility for determining disability rests with

Commissioner).

      Finally, Mr. Nash asserts that the ALJ failed to consider his nonexertional

impairments of headaches, dizziness, and fatigue and, as a result, erroneously

relied on the grids. The record contains no evidence that these impairments affect

Mr. Nash’s residual functioning. See Glass v. Shalala, 43 F.3d 1392, 1396 (10th

Cir. 1994) (grids may be used where non-exertional impairments do not affect




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residual functioning capacity). The ALJ acted correctly in not departing from the

grids.

         The judgment of the United States District Court for the Northern District

of Oklahoma is AFFIRMED.



                                                      Entered for the Court



                                                      Monroe G. McKay
                                                      Circuit Judge




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