* Pursuant to Fed. R. App. P. 43(c), Kenneth S. Apfel is substituted for

John J. Callahan, former Acting Commissioner of Soc ial Security, as the defendant in this action.

** This order and judgment is not binding precedent, e xcept under the doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 26 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

DELBERT E. NASH,

Plaintiff-Appellant,

v. KENNETH S. APFEL, Commissioner of Social Security, *

Defendant-Appellee. No. 97-5164 (D.C. No. 96-CV-223-M) (N.D. Okla.)

ORDER AND JUDGMENT **

Before ANDERSON , McKAY , and LUCERO , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral-2-

argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. Th e 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 s tandards. 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 no r 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 hypert ension, headaches, depression, and fatigue secondary to malignant hype rtension. The administrative law judge (ALJ) determined that Mr. Nash was not di sabled 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.-3-

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 as serts 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 h e could perform the full range of sedentary work is not supported by substantial evidence. The record shows that Mr. Nash’s hypertension is well controll ed when he complies with the prescribed medical regime. However, he admitted, a nd the record supports his statement, that he does not always fully comply wit h the regime. Mr. Nash admitted that his headaches are due to his hyperten sion and stated he had no severe mental disability and had never sought psych iatric 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 fordisregarding the new evidence he submitted. The ALJ held that the treat ing physician’s opinion, as expressed in a letter, was not supported by his ownrecords or objective evidence and, thus, could not be accorded the weight usuallygiven a treating physician’s-4-

opinion. The treating physician wrote two letters in 1994, both concluding that Mr. Nash was unemployable due to his headaches, sho rtness 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 fail ure. We agree with the ALJ and the Appeals Council that no medical evidence supports the treating physician’s opinions. In fac t, 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 opi nion if supported by objective medical evidence, treating physician’s opinion thatclaimant is disabled is not dispositive, as final responsibility for determinin g disability rests with Commissioner). Finally, Mr. Nash asserts that the ALJ failed to co nsider his nonexertional impairments of headaches, dizziness, and fatigue an d, as a result, erroneously relied on the grids. The record contains no eviden ce 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-5-

residual functioning capacity). The ALJ acted corr ectly in not departing from the grids. The judgment of the United States District Court fo r the Northern District of Oklahoma is AFFIRMED.

Entered for the Court

Monroe G. McKay Circuit Judge