                                                                           F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            APR 14 2004
                            FOR THE TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                 Clerk

    SHERRY ZACHARY,

                Plaintiff-Appellant,

    v.                                                    No. 03-7032
                                                    (D.C. No. 02-CV-003-P)
    JO ANNE B. BARNHART,                                  (E.D. Okla.)
    Commissioner of Social Security,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before O’BRIEN and BALDOCK , Circuit Judges, and              BRORBY , Senior Circuit
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

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). 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      This order and judgment is not binding precedent, except under the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.
       Sherry Zachary appeals from an order of the district court affirming the

Commissioner’s decision denying her application for Social Security benefits.

Ms. Zachary filed for these benefits on December 21, 1999. She alleged

disability based on fibromyalgia, irritable bowel syndrome, and depression with

underlying anxiety and panic attacks. The agency denied her application initially

and on reconsideration.

       On January 22, 2001, Ms. Zachary received a de novo hearing before an

administrative law judge (ALJ). The ALJ determined that Ms. Zachary had the

residual functional capacity (RFC) to perform a significant range of sedentary

work. The ALJ denied Ms. Zachary’s application for benefits concluding that

she was not disabled at step five of the analysis because she could perform

a significant number of jobs in the national economy.   See Williams v. Bowen ,

844 F.2d 748, 750-52 (10th Cir. 1988) (explaining five-step process for

evaluating claims for disability benefits). The Appeals Council denied review,

making the ALJ’s decision the Commissioner’s final decision.

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

findings are supported by substantial evidence in the record and whether the

correct legal standards were applied.   Winfrey v. Chater , 92 F.3d 1017, 1019

(10th Cir. 1996). On appeal, Ms. Zachary contends that the ALJ erred in the

following ways: by failing to properly consider the treating source and by failing


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to provide specific, legitimate reasons for rejecting opinions and assessments

regarding Ms. Zachary’s physical and mental impairments as identified by the

medical evidence. We affirm.

                                              I

       Ms. Zachary argues that the ALJ failed to properly consider the opinion of

Dr. Lewis, her treating physician. A treating source opinion is to be given

controlling weight only if it is “well supported by medically acceptable clinical

and laboratory diagnostic techniques and is not inconsistent with the other

substantial evidence in [the] record . . . .” 20 C.F.R. § 404.1527(d)(2);   see also

Watkins v. Barnhart , 350 F.3d 1297, 1300 (10th Cir. 2003) (outlining framework

for ALJ’s controlling weight determination). The ALJ acknowledged this

standard in his decision and then went on to find that Dr. Lewis’s opinion was not

entitled to controlling weight because it was unsupported by medical evidence and

it was inconsistent with other evidence in the record. Specifically, the ALJ found

that Dr. Lewis’s account of Ms. Zachary’s limitations did not appear to be a

“genuine medical assessment of discrete functional limitations based upon

clinically established pathologies.” Admin. R. at 31. The ALJ found also that

“the degree [Ms. Zachary] is found to be limited in [Dr. Lewis’s] consultative

examination is quite different from the limitations cited in [Dr. Lewis’s] medical

source statement.”    Id. In addition to being inconsistent with his own


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examination, the ALJ concluded that Dr. Lewis’s opinion was also inconsistent

with other record evidence, including the analysis of the state agency’s reviewing

physicians. Based on the inconsistencies in Dr. Lewis’s examination and medical

source statement, the lack of specific tests and objective evidence to support the

opinion and the fact that the opinion was inconsistent with the record as a whole,

the ALJ found that Dr. Lewis’s opinion was entitled to little weight. Because the

ALJ considered the appropriate factors and explained the reasons for the weight

he was giving Dr. Lewis’s opinion, no legal error occurred.   See Watkins ,

350 F.3d at 1300-01.

                                           II

      Ms. Zachary couches her second issue very broadly, but her argument

refers solely to the ALJ’s consideration of the opinion of one of her consulting

physicians, Dr. Mynatt. Ms. Zachary argues that the ALJ erred because he did not

consider Dr. Mynatt’s opinion and he did not give specific, legitimate reasons for

rejecting Dr. Mynatt’s opinion. Based on our review of the record, however, the

ALJ did not reject Dr. Mynatt’s opinion and he gave it the proper consideration.

      Ms. Zachary’s assertion that the ALJ rejected Dr. Mynatt’s opinion appears

to be based largely on the fact that Dr. Mynatt assessed Ms. Zachary’s present

level of functioning at 45 on the Global Assessment Function (GAF) scale.

Ms. Zachary argues that “a GAF rating of 45 coupled with other physical


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impairments seriously interferes with Zachary’s ability to work.” Aplt. Br. at 16.

A GAF of 45 indicates “[s]erious symptoms . . . OR any serious impairment in

social, occupational, or school functioning.” American Psychiatric Assoc.,

Diagnostic and Statistical Manual of Mental Disorders 34 (4th ed. 2000).

Dr. Mynatt’s finding that Ms. Zachary’s present level of functioning was 45 did

not include any explanation for giving her that rating and did not indicate that

Ms. Zachary was unable to work. Ms. Zachary’s GAF score of 45 may indicate

problems not necessarily related to her ability to hold a job,   see id. , and therefore

standing alone, without any further narrative explanation, this rating does not

support an impairment seriously interfering with her ability to work.

       Moreover, the ALJ specifically noted and summarized Dr. Mynatt’s

report, with no indication that he was rejecting the opinion. Admin. R. at 30.

Dr. Mynatt’s report reflects that Ms. Zachary was oriented in all spheres; she

takes no medications; she has some memory problems; she has difficulty in social,

recreational and occupational areas, and she is mentally competent to handle her

own funds. Id. at 165-67. Dr. Mynatt diagnosed Ms. Zachary with dysthymic

disorder and generalized anxiety disorder. The ALJ’s RFC reflects consideration

of Dr. Mynatt’s evaluation that Ms. Zachary has some memory difficulties and

difficulty with social interaction because the ALJ found that she should be

“limited to simple, routine instructions and cannot have contact with the general


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public.” Id. at 29. Although the ALJ did not discuss Ms. Zachary’s GAF rating

in his RFC determination, he was not required to do so.        See Howard v. Comm'r

of Soc. Sec. , 276 F.3d 235, 241 (6th Cir. 2002) (“While a GAF score may be of

considerable help to the ALJ in formulating the RFC, it is not essential to the

RFC’s accuracy.”).

       The ALJ included in his findings that he had “carefully considered all of

the medical opinions in the record regarding the severity of claimant’s

impairments (20 CFR § 404.1527),” Admin. R. at 34 and his RFC is not

inconsistent with Dr. Mynatt’s report. Because Dr. Mynatt is not one of

Ms. Zachary’s treating sources his opinion “is not entitled to the sort of

deferential treatment accorded to a treating physician’s opinion.”      Doyal v.

Barnhart , 331 F.3d 758, 763 (10th Cir. 2003). Accordingly, the ALJ properly

considered the opinion of Dr. Mynatt in making his disability determination.

       The judgment of the district court is AFFIRMED.


                                                          Entered for the Court



                                                          Wade Brorby
                                                          Senior Circuit Judge




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