                                                                           F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                             FEB 9 2004
                            FOR THE TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                 Clerk

    AVA SAWYER,

                Plaintiff-Appellant,

    v.                                                    No. 03-7014
                                                    (D.C. No. 01-CV-629-S)
    JO ANNE B. BARNHART,                                  (E.D. Okla.)
    Commissioner, Social Security
    Administration,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




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



         After examining the briefs and appellate records, 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      This order and judgment is not binding precedent, except under the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.
      Claimant Ava Sawyer appeals the district court’s affirmance of the decision

by the Commissioner of Social Security denying her application for disability

benefits and supplemental security income. Because the Commissioner’s decision

was supported by substantial evidence and no legal errors occurred, we affirm.


                                  Background

      In July 1995, claimant sought emergency treatment for right-sided

abdominal pain. She was diagnosed with entiritis and was given medication.

Later that month, she was diagnosed with a small ovarian cyst. In August 1985,

claimant was diagnosed with minimal diverticulosis of the lower left colon. CT

scans of her stomach and abdominal organs were unremarkable.

      On February 14, 1996, claimant injured her lower back at work. The

workers’ compensation carrier sent claimant to Dr. Wood, who diagnosed

claimant with a lumbar sprain. Aplt’s App. at 188. Claimant underwent physical

therapy during March and April 1996, with significant improvement noted. Id. at

244. She was discharged from physical therapy on April 26, 1996. Id.

      On May 14, 1996, claimant returned to Dr. Wood complaining of continued

pain and right leg weakness. Examination revealed some loss of muscle tone in

the hip flexors and adductors, with some decrease in muscle strength. Id. at 187.

Because of the possibility of radiculopathy, Dr. Wood referred claimant to

Dr. Duncan in June 1996.

                                        -2-
       In June 1996, Dr. Duncan’s examination revealed symmetrical reflexes, and

normal motor, sensory, and cerebellar exams. Claimant’s range of motion in her

lumbar spine was restricted, but she did not have a definitive positive straight leg

raising test. Id. at 152. Dr. Duncan ordered a lumbar spine series of x-rays which

showed unremarkable results. Id. at 151. Claimant’s EMG did not reveal any

abnormalities, although Dr. Duncan noted that the findings did “not entirely

exclude a radiculopathy.” Id. at 148. An MRI “didn’t show dramatic changes,”

id. at 146, showing “[d]egenerative disc disease at L4/L5 and L5-S1 with minimal

posterior disc protrusion. . . . No evidence of central canal stenosis or neural

foraminal narrowing.” Id. at 140. In July 1996, Dr. Duncan suggested physical

therapy as he did not “see a specific indication for surgery.” Id. at 146.

       In August 1996, claimant received an epidural steroid injection at Valley

View Regional Hospital. Discharge notes reported that claimant was in no

apparent distress. Id. at 143. She underwent physical therapy from July through

September 1996. Notes show that claimant’s condition improved, and during

September, she began canceling her appointments. Id. at 153-56. On

September 13, 1996, Dr. Duncan opined that claimant could perform light duty

without lifting more than fifteen pounds, and released her from his care. Id. at

145.




                                         -3-
       On October 3, 1996, claimant returned to Dr. Wood. Claimant reported that

she had good days and bad days with her back, that standing for long periods

caused pain, and that sitting for long periods caused stiffness. Id. at 187.

Regarding Dr. Duncan’s recommendation that she return to work on light duty,

claimant felt that there was “no light duty she could perform in her job class.” Id.

at 187. Claimant saw Dr. Wood a last time on October 31, 1996. Dr. Wood

diagnosed claimant with a lumbar strain that was improving slowly, and released

her for light duty with very little lifting, and with the ability to alternate sitting,

standing, and walking. Id. at 186. Dr. Wood advised that claimant should be

limited to thirty hours of work for the first month. Id. Although claimant was

supposed to make another appointment with Dr. Wood in three weeks, she failed

to do so.

       On November 5, 1996, claimant was examined by Dr. Hastings of

Professional Medical Services. He reported claimant’s complaints of pain and

stiffness in the low back that worsened with bending, stooping, lifting, or

twisting. Id. at 179. Claimant also complained of pain radiating into the legs

bilaterally, with the right leg worse than the left, and pain when getting in and out

of chairs. Physical examination showed spasm in claimant’s paravertebral

muscles from T-10 to T-12 bilaterally and in her lumbosacral region. Id. at 180.

Claimant had reduced range of motion and positive straight leg raising bilaterally.


                                            -4-
She had deep tendon reflexes of 2/4, with normal strength and a normal gait. Id.

The physician found claimant temporarily totally disabled from her usual

occupation, and recommended that she be evaluated by an orthopedic surgeon. Id.

      Claimant was re-examined by Dr. Hastings on January 29, 1997. Although

claimant still had pain in the paravertebral muscles and lumbosacral area

bilaterally, Dr. Hastings did not note any muscle spasm. Id. at 183. Claimant’s

range of motion was limited to twenty-five degrees of flexion, ten degrees of

extension, ten degrees lateral flexion bilaterally, and straight leg raising at thirty

degrees bilaterally. Id. Dr. Hastings rated claimant as having sustained a

permanent partial impairment of thirty-two percent to the whole person. Id. He

recommended that claimant “undergo vocational rehabilitation in order to learn a

more sedentary type of employment.” Id. at 184. Claimant’s workers’

compensation case was closed in April 1997, at which time she received a $9,000

settlement. Id. at 58.

      The record also contains the treatment records of claimant’s family

physician, Dr. Carpenter, from 1991 through 1999. Id. at 190-94, 235. Although

Dr. Carpenter’s records show a long history of treating claimant with

antidepressants, sleep aids, and for gynecological needs, there are no references to

claimant’s back and leg condition until November 1998, where a single note

reports that claimant had good days and bad days with her back. Id. at 235.


                                           -5-
      Claimant filed her application for benefits in May 1998, alleging she

became unable to work on February 14, 1996, due to bulging discs in her back,

migraine headaches, hypoglycemia, tunnel vision, ulcers, and nervousness.

Claimant’s insured status expired on September 30, 1997.

      On August 4, 1998, claimant underwent a mental status examination with

Dr. Mynatt, who diagnosed claimant as having a major depressive episode, which

was moderate and recurring, and unresolved post traumatic stress disorder. Id. at

198. He opined that claimant was functioning at a level of 60, which meant she

either had moderate physical symptoms of depression or moderate difficulty in

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

Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 1994).

      On August 15, 1998, claimant was examined by consulting physician

McClimans. Claimant reported headaches; no visual disorders other than those

corrected by glasses; occasional symptoms of a spastic colon, but no ulcers or

other abdominal conditions; weakness and paresthesias in her right leg; and

depression and nervousness. Aplt’s App. at 201-02. Physical examination

showed decreased sensation on the right leg, back pain upon palpitation but no

spasms; slight decrease in lumbar motion, but full range of motion in all

extremities; slight decrease in right leg strength; normal gait; and positive right

leg raising in both the seated and supine positions. Id. at 202-03. Dr. McClimans


                                          -6-
diagnosed claimant with chronic low back pain with radiculopathy of the right

leg, and noted her history of other medical conditions. Id. at 203. His range of

motion evaluation showed that other than a slight restriction in claimant’s back

extension and flexion, she had normal range of motion, and she experienced no

pain during the evaluation. Id. at 204-06.

      After claimant’s application was denied at the first and second

administrative levels, family physician Carpenter submitted an evaluation of

claimant’s residual functional capabilities in March 1999. Dr. Carpenter opined

that claimant could not lift more than ten pounds, could only stand and walk for

two hours total out of an eight-hour day, and could stand and walk continuously

for an hour and fifteen minutes. Id. at 233. She opined that claimant could sit

continuously for an hour, for a total of three hours out of the eight-hour day, and

that claimant’s ability to push and pull controls was limited. Id. She also opined

that claimant was limited in her abilities to climb, balance, stoop, kneel, crouch,

crawl, and reach, and that claimant had environmental restrictions. Id. at 234.


                                     Discussion

      On April 7, 1999, claimant participated in a hearing before an

administrative law judge (ALJ). Claimant was represented by counsel. On

June 23, 1999, the ALJ issued his decision, finding that claimant was not disabled

before her insured status expired in September 1997, and that she had not become

                                         -7-
disabled thereafter. Although she could not return to her former employment, the

ALJ found that claimant retained the ability to perform sedentary work. The

Appeals Council denied review, making the ALJ’s decision the final

determination of the Commissioner. The district court affirmed.

      We review the Commissioner’s decision to determine only whether it is

supported by substantial evidence and whether legal errors occurred. See Qualls

v. Apfel, 206 F.3d 1368, 1371 (10th Cir. 2000). Substantial evidence is that

which “a reasonable mind might accept as adequate to support a conclusion.”

Casias v. Sec’y of Health & Human Servs., 933 F.2d 799, 801 (10th Cir. 1991)

(quotation omitted). We may not reweigh the evidence or substitute our judgment

for that of the agency. Id.

      Claimant argues that the ALJ erred in not giving controlling weight to

Dr. Carpenter’s opinion of her abilities and that the ALJ’s finding that claimant

could perform sedentary work was contrary to the record.   Claimant also argues

that the ALJ erred in concluding that her depression was not a severe impairment.

      A treating physician’s opinion is to be given controlling weight when it is

well-supported by clinical evidence and is not inconsistent with the record. See

Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003). Here, the ALJ

refused to give controlling weight to Dr. Carpenter’s assessment of claimant’s

abilities because it was not supported by clinical evidence and it was contrary to


                                          -8-
the medical record. Noting the limited back treatment provided by Dr. Carpenter

and her cursory treatment notes, the ALJ refused to give any weight to the family

physician’s limitation on claimant’s ability to sit because it was totally

unsupported by any clinical findings and was contrary to the record, including

Dr. Carpenter’s own notes. Aplt’s App. at 22. As the ALJ considered the

appropriate factors and gave specific, legitimate reasons for rejecting

Dr. Carpenter’s opinion, no legal error occurred. See id. at 1301. Moreover, the

ALJ’s conclusion that claimant can perform sedentary work is well-supported by

the findings and opinions of the doctors who treated claimant’s back in 1996 and

1997.

        With regard to claimant’s mental condition, the ALJ agreed that claimant

suffered from depression, but found that her depression was not severe enough to

affect her ability to work. This finding was based on the opinion of agency

medical consultants who reviewed claimant’s file. To support his finding that

claimant’s depression was not severe, the ALJ noted her lack of treatment with a

mental health professional; her activities showing that she had the ability to

interact with others and to concentrate and stay on task; and the absence of

episodes of decompensation.    See Aplt’s App. at 23-24. The ALJ rejected

consulting psychiatrist Mynatt’s opinion based on the paucity of his underlying




                                          -9-
findings. Id. at 23. Because the ALJ’s factual finding regarding the severity of

claimant’s depression is supported by substantial evidence, it must be affirmed.

      The judgment of the district court is AFFIRMED.



                                                   Entered for the Court



                                                   Bobby R. Baldock
                                                   Circuit Judge




                                        -10-
