* This order and judgment is not binding precedent, e xcept under the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 

### OCT 16 2003 

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

DAVID LOPEZ,

Plaintiff-Appellant,

v. JO ANNE B. BARNHART, Commissioner of Social Security,

Defendant-Appellee. No. 03-2035 (D.C. No. CIV-02-303 LH/LCS)

(D.N.M.)

ORDER AND JUDGMENT *

Before HARTZ , BALDOCK , and McCONNELL , 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 argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. Claimant David Lopez appeals from a district court order affirming the Commissioner’s decision denying his application forsupplemental security-2-

income and disability insurance benefits. The Comm issioner concluded that claimant was not disabled within the meaning of the Social Security Act because, despite his limitations, he was able to perform a s ignificant number of jobs that exist in the national economy. We affirm in part, and reverse and remand in part for further proceedings. Claimant filed applications for benefits in 1999 an d 2000, alleging inability to work due to arthritis, gastroesophageal reflux d isease and depression. His applications were denied initially and on reconside ration. Following a hearing before an administrative law judge (ALJ), the ALJ f ound that claimant was impaired by chronic low back pain, arthritis, majordepression with anxiety, and gastroesophageal reflux, and that these impairments precluded him from doing his past relevant work. The ALJ further found that cla imant retained the residual functional capacity (RFC) to perform simple, non-pu blic, light work with occasional postural limitations and not involving c oncentrated exposure to heights. The ALJ determined that claimant 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), because he could perform substantially the full range of light work. Although the ALJ questioned a vocational expert (VE ), he used Rule 202.17 from1 Rule 202.17 directs a conclusion of not disabled wh ere a claimant’s

relevant medical and vocational characteristics pre cisely match those identified in the table incorporating the rule (Table No. 2 of Ap pendix 2), namely, a residual functional capacity to perform light work, a younge r individual (age 45-49), a limited education or less (at least literate and ab le to communicate in English), and no or only unskilled previous work experience. -3- the Medical-Vocational Guidelines (the “grids”), 20 C.F.R. pt. 404, subpt. P, app. 2, to conclude that claimant was not disabled. 1
This court reviews the Commissioner’s decision to d etermine only whether the relevant findings are supported by substantial evidence in light of the entire record, and whether the Commissioner applied the correct legal standards. O'Dell v. Shalala , 44 F.3d 855, 858-59 (10th Cir. 1994). “Substanti al evidence is such relevant evidence as a reasonable mind might acceptas adequate to support a conclusion.” Id . at 858 (quotation omitted). “Evidence is insubst antial if it is overwhelmingly contradicted by other evidence.” Id . In the course of our review, we may “neither reweigh the evidence nor substitute our judgment for that of the [Commissioner].” Casias v. Sec'y of Health & Human Servs. , 933 F.2d 799, 800 (10th Cir. 1991). “Failure to apply the correct le gal standard or to provide this court with a sufficient basis to determine that app ropriate legal principles have been followed is grounds for reversal.” Byron v. Heckler , 742 F.2d 1232, 1235 (10th Cir. 1984) (quotation omitted).-4-

On appeal, claimant first contends the ALJ’s assess ment of his mental impairment is unsupported by substantial evidence and is legally erroneous. Based largely upon the mental RFC assessment reportand Psychiatric Review Technique Form completed by Dr. Walker, a reviewing psychiatrist, the ALJ found that claimant had marked limitations in his a bilities to understand, remember, and carry out detailed instructions, and to interact appropriately with the general public, but that claimant would still b e capable of performing simple, non-public, light work. Claimant contends the ALJ’s assessment of his menta l impairment is not supported by substantial evidence because it ignore d Dr. Walker’s conclusion that claimant required a solitary work setting. We disa gree. Dr. Walker concluded that claimant could “work in a relatively solitary work setting such as his prior custodial work.” Appellant’s App., Vol. II, at 162 . The ALJ’s finding that claimant could work in a simple, non-public work se tting fully takes into account the limitations found by Dr. Walker. We also disagree with claimant’s assertion that either the ALJ or Dr. Walker failed to give sufficient weight to the report of Dr. Sacks, a one-time examining physician. The ALJ accurately noted Dr. Sacks’ observation that claimant would have great difficulty dealing with f ellow workers and supervisors, could not drive himself, and would have difficulty adapting to changes in the-5-

work place, understanding even simple instructions, with maintaining the attention required to perform simple tasks and with standing the stress and pressure associated with day-to-day work activities . The ALJ also noted Dr. Sacks’ observation that claimant had only triedone anti-depressant because he had previously refused to take anti-depressant medi cation. The ALJ did not specifically discuss Dr. Sacks’ con clusion that claimant’s Global Assessment of Functioning (GAF) score “durin g the last year and currently is about 40.” Id ., at 158. The GAF scale is used by clinicians to report an individual’s overall level of functioning. See American Psychiatric Assoc., Diagnostic and Statistical Manual of Mental Disorde rs 32 (Text Revision 4th ed. 2000). A GAF of 31-40 indicates “[s]ome impairmentin reality testing or communication . . . OR major impairment in several areas, such as work. . ., family relations, [or] judgment,” while a GAF of 41 -50 indicates “[s]erious symptoms . . . OR any serious impairment in social or occupational . . . functioning.” Id ., at 34. Contrary to claimant’s contention, a GAF score of 4 0 may indicate problems that do not necessarily relate to the ability to hold a job. See id . Thus, standing alone, the GAF score does not evidence an impairment seriously interfering with claimant’s ability to work. “Whil e a GAF score may be of considerable help to the ALJ in formulating the RFC , it is not essential to the-6-

RFC’s accuracy.” Howard v. Comm’r of Soc. Sec . 276 F.3d 235, 241 (6th Cir. 2002) (holding that “ALJ’s failure to reference the GAF score in the RFC, standing alone, does not make the RFC inaccurate”). Dr. Sacks did not indicate that claimant could not work. His assessment of cl aimant’s GAF score, standing alone, does not undermine, nor is it “significantlyprobative” evidence in opposition to, the ALJ’s ultimate conclusions conce rning the seriousness of claimant’s mental status or ability to work. Briggs ex rel. Briggs v. Massanari , 248 F.3d 1235, 1239 (10th Cir. 2001) (holding that ALJ “may not ignore evidence that does not support his decision, especially whenthat evidence is significantly probative” (quotation omitted)). Claimant also appears to argue that the ALJ failed to give proper consideration to the reports of Dr. Vega, his treat ing physician. It is, however, clear that the ALJ thoroughly considered Dr. Vega’s findings. Indeed, it appears that the ALJ based much of his conclusion that clai mant’s depression and anxiety was related to situational stressors and that he co uld function without medication on Dr. Vega’s reports that claimant declined any tr eatment for his depression, reported feeling better once he opened a car detail ing shop, was able to function and did not require medication for his mental condi tion, and was managing rather well on Xanax for his anxiety, which he took only o n an as-needed basis.-7-

We conclude that the ALJ properly considered all of the medical evidence and that substantial evidence supports the ALJ’s as sessment of claimant’s mental impairment. The ALJ did not misinterpret or misapp ly the medical evidence, and it is clear from our review of the evidence that th e ALJ’s assessment of claimant’s mental RFC was based on his consideration of the re cord as a whole. What claimant is essentially asking is that this court r eweigh the evidence relating to his depression and anxiety, and to substitute our j udgment for that of the ALJ, which, of course, we cannot do. See Casias , 933 F.2d at 800. Next, claimant asserts that the ALJ erred in relyin g on the grids to find that he was not disabled, arguing that his nonexertional mental impairment of major depression with anxiety prevented reliance on the g rids. As a general rule, the grids may not be used conclusively if the claimant has nonexertional impairments that limit the ability to do the full range of work within a classification. See Thompson v. Sullivan , 987 F.2d 1482, 1488 (10th Cir. 1993). In the cas e of a claimant who suffers from nonexertional impairments , or a combination of exertional and nonexertional impairments, that prev ent him from performing a full range of work at a given exertional level, the grid s may be used only as a guide, and the Commissioner must prove through expert vocational testimony that jobs exist in the national economy which the claimant can perform. See Channel v.-8-

Heckler , 747 F.2d 577, 581-83 (10th Cir. 1984); 20 C.F.R. §§ 404.1569a(c)(2), 416.969a(c)(2). In this case, the ALJ found that claimant has a non exertional mental impairment of major depression with anxiety and that this impairment is severe. Appellant’s App., Vol. II, at 14. See 28 C.F.R. §§ 404.1569a(c)(1)(i)-(iii), 416.969a(c)(1)(i)-(iii) (stating that nonexertional limitations include difficulty in functioning due to anxiety or depression, handling detailed instructions, or maintaining attention and concentration). “[R]esort to the grids is particularly inappropriate when evaluating nonexertional limitat ions such as . . . mental impairments.” Hargis v. Sullivan , 945 F.2d 1482, 1490 (10th Cir. 1991). The ALJ also concluded that claimant could not perf orm all light work jobs. Consistent with the evidence that the claima nt has marked limitations in his abilities to understand, remember, and carry out de tailed instructions, and to interact appropriately with the general public, the ALJ determined that claimant was restricted to light work that was simple and n on-public. Appellant’s App., Vol. II, at 17, 19. Although the ALJ determined that the range of lightwork jobs claimant could perform was restricted to simple, non-public work, he found that claimant’s restrictions did not significantly compromise his ability to perform light work. Admittedly, the grids may be used to direct a concl usion if the claimant’s-9-

nonexertional impairments do not significantly redu ce the underlying job base. See Evans v. Chater , 55 F.3d 530, 532 (10th Cir. 1995) (holding that ability to perform a “substantial majority of the work in the designated RFC category” justifies use of the grids). “The ALJ, however, m ust back such a finding of negligible effect with the evidence to substantiate it.” Talbot v. Heckler , 814 F.2d 1456, 1465 (10th Cir. 1987). We find insu bstantial support in the record for the ALJ’s determination of that finding, howeve r. The ALJ’s conclusion that claimant could perform most light work jobs was notsupported by the VE’s testimony or any other source. Accordingly, we rem and the case for the limited purpose of obtaining vocational expert testimony orother additional evidence of the effect of the identified nonexertional limitati ons on claimant’s ability to do substantially the full range of light work. The judgment of the district court is AFFIRMED in p art and REVERSED in part, and the cause is REMANDED to the district court with directions to remand the action to the Commissioner for further p roceedings consistent with this order and judgment.

Entered for the Court

Bobby R. Baldock Circuit Judge