                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          OCT 14 1998
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    LINDA D. TOOMBS,

                Plaintiff-Appellant,

    v.                                                    No. 98-7018
                                                    (D.C. No. CV-96-445-S)
    KENNETH S. APFEL, Commissioner,                       (E.D. Okla.)
    Social Security Administration, *

                Defendant-Appellee.




                            ORDER AND JUDGMENT           **




Before BRORBY , McKAY , and BRISCOE , 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      This order and judgment is not binding precedent, except under the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.

      Plaintiff Linda D. Toombs filed a claim for supplemental security income

benefits on July 8, 1986, alleging a disability since December 31, 1984, due to

back problems. After a hearing, an administrative law judge (ALJ) ruled against

plaintiff on December 23, 1987, but on review, the Appeals Council remanded her

case for further consideration on July 20, 1989. After a second hearing, an ALJ

denied plaintiff’s claim at step five of the evaluation sequence on October 24,

1989. See generally Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988).

The ALJ decided that plaintiff could not return to any of her past work, but

nevertheless retained the residual functional capacity (RFC) to perform the full

range of light work available in the national economy, and thus, was not disabled.

The Appeals Council denied review on July 5, 1996, making the ALJ’s decision

the final agency decision.

      Plaintiff then brought this suit. The district court adopted the magistrate

judge’s recommendation that the agency’s decision be affirmed. Plaintiff appeals.

We have jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291.

On appeal, plaintiff asserts that the ALJ (1) failed to accord the proper weight to

her treating physician’s findings and opinion, (2) failed in his duty to develop the




                                         -2-
record, and (3) failed to evaluate the evidence at step five under the correct legal

standard.

      Our job on appeal is to “closely examine the record as a whole to determine

whether the [Commissioner’s] decision is supported by substantial evidence and

adheres to applicable legal standards.” Evans v. Chater, 55 F.3d 530, 531

(10th Cir. 1995). We may not reweigh the evidence or substitute our judgment

for that of the agency. See Kelley v. Chater, 62 F.3d 335, 337 (10th Cir. 1995).

                      Weight Given to Dr. Sureddi’s Opinion.

      One of plaintiff’s treating physicians, Dr. Sureddi, reported in October

1987 that he had treated plaintiff “on and off” since June 1986 for low back pain,

peptic ulcer disease with abdominal pain, pancreatitis with abdominal pain, neck

pain, and anxiety and depression. He stated that x-rays of plaintiff’s spine

showed narrowing at L4-5 indicating some degenerative disc disease. He

concluded that, as a result of these medical problems, it was his opinion that

plaintiff was totally disabled for any gainful employment. In September 1989, Dr.

Sureddi repeated his findings, stating that plaintiff’s condition had not improved

since 1987. Dr. Sureddi listed his areas of practice as general surgery and ear,

nose and throat diseases.

      Plaintiff saw another treating physician in 1986, Dr. Grillo, an orthopedic

surgeon. Dr. Grillo reported that he considered plaintiff’s spinal x-rays to be


                                          -3-
normal, and that plaintiff’s muscle tone and strength were intact and normal, as

were her sensation and deep tendon reflexes. Dr. Grillo diagnosed plaintiff with

low back pain without objective signs of disease. Dr. Grillo noted that he could

not obtain a CT scan because plaintiff lacked the necessary funds. He returned

plaintiff to work on November 7, 1986. Plaintiff was also seen by Dr. Knapp,

a chiropractor, in September 1986, who found that plaintiff had a full range of

motion in her lower back.

      The ALJ found that Dr. Sureddi did not provide any explanation or clinical

or diagnostic support for his opinion that plaintiff was totally disabled, nor did his

examination notes reveal any significant clinical findings to support this

conclusion. The ALJ considered the evidence from Dr. Sureddi and Dr. Grillo,

and concluded that overall, the medical evidence suggested that plaintiff has

little, if any, functional limitations as a result of her lower back complaints. The

ALJ credited Dr. Grillo’s opinion that plaintiff suffered from low back pain, but

that her complaints are unsupported by significant clinical or diagnostic findings,

explaining that, as an orthopedic specialist, Dr. Grillo was better qualified than

Dr. Sureddi to assess the severity of plaintiff’s back condition and ability to work.

The ALJ noted that Dr. Grillo’s negative examination findings were consistent

with Dr. Knapp’s evaluation that plaintiff had a full range of motion in her back.




                                          -4-
       Plaintiff argues that the ALJ failed to accord controlling weight to

Dr. Sureddi’s opinion that she was totally disabled. Dr. Sureddi’s opinion was

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

1027, 1029 (10th Cir. 1994) (holding that a treating physician’s opinion that

claimant is disabled is not dispositive because final responsibility for determining

disability is reserved to the Commissioner). The ALJ concluded, with record

support, that Dr. Sureddi’s opinion was unsupported and outweighed by the other

medical evidence in the record. “It is error to give an opinion controlling weight

simply because it is the opinion of a treating source if it is not well-supported by

medically acceptable clinical and laboratory diagnostic techniques or if it is

inconsistent with the other substantial evidence in the case record.” SSR-96-2p,

1996 WL 374188, at *2; see also 20 C.F.R. § 416.927(d)(2). The ALJ provided

specific, legitimate reasons for the weight given to Dr. Sureddi’s opinion.      See 20

C.F.R. § 416.927(d)(2);   Goatcher v. United States Dep’t of Health & Human

Servs. , 52 F.3d 288, 290 (10th Cir. 1995) (ALJ must give specific, legitimate

reasons for disregarding a treating physician’s disability opinion). The ALJ

correctly noted that because Dr. Grillo is an orthopedic specialist, his opinion

regarding plaintiff’s back complaints is entitled to more weight than that of a

nonspecialist such as Dr. Sureddi.    See 20 C.F.R. § 416.927(d)(5) (specialist’s

opinion entitled to more weight than nonspecialist’s). Thus, the ALJ accorded the


                                            -5-
appropriate weight to Dr. Sureddi’s opinion.     Contrary to plaintiff’s assertion,

nothing indicates the ALJ rejected plaintiff’s treating physician’s opinion and

substituted his own opinion for the medical evidence.

                         Need for Consultative Examination      .

       Plaintiff next argues that the ALJ should have ordered a consultative

mental examination based on the evidence in the record that she suffered from

depression. The only evidence in the record concerning depression consists of

Dr. Sureddi’s statement in his medical report that he had treated plaintiff for

chronic anxiety and depression. Plaintiff did not list anxiety or depression as

a basis for disability in her applications for benefits. Moreover, plaintiff did not

mention having anxiety or depression, nor did she claim that these symptoms

contributed to her disability, during either of her hearings.

       In order to raise an issue requiring further investigation, the claimant must

first present some objective evidence suggesting the existence of a condition

which could have a material impact on the disability decision requiring further

investigation.   See Hawkins v. Chater , 113 F.3d 1162, 1167 (10th Cir. 1997).

Isolated and unsupported comments by plaintiff are insufficient to raise the

suspicion of the existence of a nonexertional impairment.       See id. Plaintiff did

not present objective evidence supporting the claim that she suffers from

depression, nor does the record suggest a reasonable possibility of severe


                                           -6-
impairment. Because plaintiff was “represented by counsel at the administrative

hearing, the ALJ [was] entitled to rely on [plaintiff’s] counsel to structure and

present [her] case in a way that [plaintiff’s] claims [were] adequately explored.”

Id. Consequently, the ALJ was not required to obtain a consultative examination

based upon the unsupported statement that Dr. Sureddi had treated plaintiff for

depression, which was never asserted by plaintiff as a basis for her disability.     See

Diaz v. Secretary of Health & Human Servs.         , 898 F.2d 774, 778 (10th Cir. 1990)

(refusing to remand for consultative examination where claimant had failed to

present “objective evidence supporting the conclusion that he suffers from

depression”). Contrary to plaintiff’s assertion, the fact that this case was resolved

at step five does not alter our analysis in this case with respect to the ALJ’s duty

to develop the record.

                               Step Five Burden of Proof.

       Finally, plaintiff contends that, because the ALJ failed to give controlling

weight to Dr. Sureddi’s opinion or to obtain a consultative examination with

respect to her alleged depression, the ALJ failed to shift the burden of proof to

the Commissioner at step five of the five-step evaluation process. See Williams,

844 F.2d at 751 (holding that burden at step five is on Commissioner). As we

explained above, the ALJ accorded Dr. Sureddi’s opinion the proper weight and

was not obligated to obtain a consultative examination; thus, this contention is


                                             -7-
without merit. In finding that plaintiff retains the RFC to perform the full range

of light work, the ALJ considered the findings and opinions of her treating

physicians, according them appropriate weight. There is no objective evidence in

the record to indicate functional limitations on plaintiff’s ability to perform light

work. The ALJ’s finding that plaintiff retains the RFC to perform light work is

supported by substantial evidence. Therefore, the Commissioner’s decision must

stand. See 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 390 (1971).

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

Oklahoma is AFFIRMED.



                                                      Entered for the Court



                                                      Wade Brorby
                                                      Circuit Judge




                                          -8-
