* Effective September 29, 1997, Kenneth S. Apfel became the Commissioner

for the Social Security Administration. Pursuant t o Fed. R. App. P. 43(c), Mr. Apfel is substituted for Shirley S. Chater, former Commissioner of Social 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** This order and judgment is not binding precedent, e xcept under the doctrines of law of the case, res judicata, and col lateral estoppel.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 

### FEB 5 1998 

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

KARYN M. WINSLOW,

Plaintiff-Appellant,

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

Defendant-Appellee. No. 97-2123 (D.C. No. CIV-95-503-SC) (D. N.M.)

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); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Karyn M. Winslow appeals an order of the district c ourt affirming the decision of the Commissioner of Social Security denying her request for social security disability benefits and supplemental secur ity income benefits. Our review of the Commissioner’s decision is limited to determining whether the decision is supported by substantial evidence, and whether the Commissioner applied correct legal standards. See Castellano v. Secretary of Health & Human
Servs. , 26 F.3d 1027, 1028 (10th Cir. 1994). In light of these standards, and after a thorough review of the record, we affirm. In order to determine whether a claimant is under adisability, the Commissioner applies a five-step process. 20 C.F.R . §§ 404.1520, 416.920; see Williams v. Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988) (discussing five steps in detail). Here, claimant alleged disability as o f November 27, 1991 due to migraine headaches, back, neck, shoulder and arm pa in, and Scheurmann’s disease. The ALJ found that claimant suffers from postural back pain, headaches, obesity, and a personality disorder. The ALJ determined at step five of the applicable analysis, that, although claimant was un able to return to her past relevant work as a nursing assistant, cashier, and manager of a fast-food restaurant, she had the residual functional capacity (RFC) to perform a full range-3-

of sedentary work at an unskilled level. The ALJ r elied on the medical-vocational guidelines (grids), 20 C.F.R., Pt. 404, Subpt. P, App. 2, to find that a significant number of jobs exist that claimant could perform, c ompelling a conclusion that claimant was not disabled. The Appeals Council denied review, and claimant fil ed suit in federal district court. The district court, adopting the r ecommendation and findings of the magistrate judge, affirmed the agency’s decisio n. This appeal followed. On appeal, claimant alleges 1) the record does not con tain substantial evidence supporting the ALJ’s determination that she had the RFC to perform a full range of sedentary work; 2) the ALJ erred in basing his f inding that her pain does not preclude the performance of sedentary work partiall y on his observation about her demeanor during the hearing; and 3) the ALJ failed to indicate what evidence he relied upon to conclude claimant’s mental impairment does not affect her ability to work.

I. Claimant first contends that the Commissioner erredin finding that she has the RFC to perform sedentary work because the ALJ l acked positive evidence to support such a finding and should have ordered a co nsultative examination of her RFC. She also challenges the ALJ’s RFC determinati on, arguing that the ALJ improperly relied on her daily activities in reachi ng his decision.1 “Sedentary work involves lifting no more than 10 po unds at a time and

occasionally lifting or carrying articles like dock et files, ledgers, and small tools. Although a sedentary job is defined as one which in volves sitting, a certain amount of walking and standing is often necessary i n carrying out job duties. Jobs are sedentary if walking and standing are requ ired occasionally and other sedentary criteria are met.” 20 C.F.R. § 404.1567( a).

-4- The ALJ was under no duty to obtain any consultativ e examinations. The ALJ has broad latitude in determining whether to or der a consultative examination. See Diaz v. Secretary of Health & Human Servs. , 898 F.2d 774, 778 (10th Cir. 1990). Consultative examinations are ne cessary only to resolve conflicts in the medical evidence or to secure addi tional evidence needed to support a decision. See 20 C.F.R. §§ 404.1519a & 416.919a. Contrary to claimant’s contention, this is not a ca se in which the ALJ had “no evidence upon which to make a finding as to RFC .” See Thompson v. Sullivan , 987 F.2d 1482, 1491 (10th Cir. 1993). The ALJ de scribed the evidence in the record upon which he based his conclusion th at claimant could perform work at the sedentary exertional level. 1 This evidence included several physical examinations of claimant’s back and spine that reve aled no sensory or motor abnormalities and good flexibility, and indicated c laimant was able to continue her work as a nursing assistant. Medical evidence also showed that claimant was exercising at a health club and that her back pain was relieved by exercise and activity. This evidence supports the ALJ’s determi nation that claimant retained-5-

the RFC to perform work at a sedentary exertional l evel. The medical evidence also revealed that claimant reported that she had h ad migraine headaches since childhood and that her migraines were “minimal” at present compared to the past. We also reject counsel’s contention that the ALJ improperly relied on claimant’s daily activities to reach his RFC determ ination. The ALJ did note that claimant was attending a vocational school and gett ing excellent grades, though he also noted that claimant reported having trouble sitting in classes that last longer than an hour and a quarter and that her teac hers allowed her to change positions. The ALJ also recognized that claimant h ad been looking for work. However, it is clear that the ALJ relied on numerou s factors in reaching his RFC determination, particularly the medical evidence, a nd the fact that claimant was able to attend and perform well in school and was l ooking for work were not the only factors he took into consideration. See Gay v. Sullivan , 986 F.2d 1336, 1339 (10th Cir. 1993) (while not conclusive, such activi ties as school attendance may be considered, along with medical testimony, in det ermining the right of a claimant to disability benefits). Further, stateme nts regarding daily activities are evidence properly considered under the Commissioner ’s regulations. See 20 C.F.R. §§ 404.1529(a); 416.929(a).-6- II. Next, claimant contends that the ALJ erred in basin g his finding that her complaints of pain did not preclude the performance of sedentary work on his observation that claimant “did not appear to be in any distress during the hearing.” Appellant’s App. Vol. II at 19. We heldin Teter v. Heckler , 775 F.2d 1104, 1106 (10th Cir.1985), that if the uncontroverted evidence corroborates the claimant’s assertions of disabling pain, the ALJ “m ay not reject [those] assertions on the basis of demeanor alone.” Although the ALJ did comment that claimant did not appear to be in distress during the hearing , it is clear that he considered the medical evidence and her testimony in evaluatin g her allegations of pain, and it cannot be said that the uncontroverted evidence in this case corroborates claimant’s assertions of disabling pain.

III. Finally, claimant contends that the ALJ did not setforth the evidence he relied upon to reach his conclusion that claimant’s depression would not affect her ability to work. We disagree. The ALJ decisio n discusses in detail the psychologists’ opinions and a description of the in formation he relied upon. Claimant complains that the ALJ did not give contro lling weight to the disability opinion of Dr. Goncalves, a psychologist who met wi th her four or five times over a two-month period and concluded that “due to a num ber of factors, both medical-7-

and psychological, it is . . . quite unrealistic to expect that [claimant] is capable of successfully interviewing, being hired, and holding down a job at this time.” Appellant’s App. Vol. II at 131. Controlling weight will be given to a treating phys ician’s opinion only “if it is well supported by clinical and laboratory diagno stic techniques and if it is not inconsistent with other substantial evidence in the record.” Castellano , 26 F.3d at 1029. Additionally, because the determination of d isability is the ultimate responsibility of the Commissioner, a treating phys ician’s opinion as to a claimant’s disability is not dispositive. See id. If a treating physician’s opinion is not supported by specific findings, it may be re jected as long as specific and legitimate reasons for doing so are given. See 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 tre ating physician’s disability opinion). The ALJ pointed out that Dr. Goncalves acknowledgedthat he had not administered any psychological tests on claimant, and noted that Dr. Goncalves’ opinion was contradicted by the comprehensive psych ological evaluation given to claimant by Dr. Polk. The ALJ provided specific an d legitimate reasons for rejecting Dr. Goncalves’ opinion. Contrary to clai mant’s contentions, Dr. Polk’s evaluation did provide evidence of claimant’s abili ty to work. Dr. Polk’s global-8-

assessment of claimant’s mental functional abilitie s concludes that claimant has mild symptoms of functional difficulties, but gener ally good functioning, and Dr. Polk noted that claimant’s cognitive functioning ap peared intact, with no apparent deficits in concentration or memory. The judgment of the United States District Court fo r the District of New Mexico is AFFIRMED.

Entered for the Court

Stephen H. Anderson Circuit Judge