                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAY 17 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    JULIA WHITETREE,

                Plaintiff-Appellant,

    v.                                                    No. 99-5166
                                                    (D.C. No. 98-CV-461-H)
    KENNETH S. APFEL, Commissioner,                       (N.D. Okla.)
    Social Security Administration,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before KELLY , McKAY , and HENRY , 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

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      This order and judgment is not binding precedent, except under the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.
      Plaintiff Julia Whitetree appeals from an order of the district court

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

Security 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).

      Ms. Whitetree alleged disability as of January 21, 1994,   due to myofascitis,

injuries to her shoulder and arms, and depression   . The administrative law judge

(ALJ) determined that Ms. Whitetree 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 she could perform light work that did not require repetitive overhead

reaching.

      On appeal, Ms. Whitetree argues that the ALJ’s determination of her

residual functional ability is not supported by substantial evidence because the


                                           -2-
ALJ stated she was restricted from only repetitive overhead reaching, while she

maintains she cannot do repetitive reaching of any sort. She asserts that all of the

jobs identified by the vocational expert (VE) as ones she could perform require

repetitive reaching.

      The record shows that one physician observed intrinsic shoulder pathology

on the X-rays of her left arm. Later, her treating physician saw no objective

abnormality which would lead him to a diagnosis. He released her to “moderate”

work noting that she could not return to her normal job which involved heavy

duty repetitive activities which aggravated her condition. Two examining

physicians determined that Ms. Whitetree had some impairments due to shoulder

problems. One examining psychologist noted that she had repetitive motion

impairments. A different examining psychologist stated that she may have

over-reported her symptoms and she was likely to brood on her problems which

would result in greater symptomatology. No physician has restricted her from all

repetitive reaching.

      The VE opined that Ms. Whitetree could perform the jobs of sedentary

order clerk, sedentary cashier, light food service work, or light stock and

inventory clerk. These jobs are listed in the light and sedentary categories.

Ms. Whitetree’s treating physician specifically restricted her from repetitive




                                         -3-
reaching as performed in her prior job which involved heavy duty activities.

He released her to light work.

      Substantial evidence supports the determination that Ms. Whitetree can

perform light or sedentary work that does not require repetitive reaching. The

ALJ’s misstatement that Ms. Whitetree is restricted from repetitive overhead

reaching rather than from all repetitive reaching was harmless. The VE clearly

understood that the hypothetical was changed to include no repetitive reaching as

she pointed out the error to the ALJ prior to discussing which jobs Ms. Whitetree

could perform. The ALJ’s correction of the hypothetical was in response to the

VE’s observation.

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

of Oklahoma is AFFIRMED.



                                                   Entered for the Court



                                                   Paul J. Kelly, Jr.
                                                   Circuit Judge




                                        -4-
