* This order and judgment is not binding precedent, e xcept under the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

### APR 14 2004 

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

SHERRY ZACHARY,

Plaintiff-Appellant,

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

Defendant-Appellee. No. 03-7032 (D.C. No. 02-CV-003-P) (E.D. Okla.)

ORDER AND JUDGMENT *

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

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.-2-

Sherry Zachary appeals from an order of the distric t court affirming the Commissioner’s decision denying her application forSocial Security benefits. Ms. Zachary filed for these benefits on December 21 , 1999. She alleged disability based on fibromyalgia, irritable bowel s yndrome, and depression with underlying anxiety and panic attacks. The agency d enied her application initially and on reconsideration. On January 22, 2001, Ms. Zachary received a de novo hearing before an administrative law judge (ALJ). The ALJ determined that Ms. Zachary had the residual functional capacity (RFC) to perform a sig nificant range of sedentary work. The ALJ denied Ms. Zachary’s application forbenefits concluding that she was not disabled at step five of the analysis b ecause she could perform a significant number of jobs in the national economy. See Williams v. Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988) (explaining f ive-step process for evaluating claims for disability benefits). The Ap peals Council denied review, making the ALJ’s decision the Commissioner’s final decision. We review the Commissioner’s decision to determine whether the factual findings are supported by substantial evidence in the record and whether the correct legal standards were applied. Winfrey v. Chater , 92 F.3d 1017, 1019 (10th Cir. 1996). On appeal, Ms. Zachary contends that the ALJ erred in the following ways: by failing to properly consider th e treating source and by failing-3-

to provide specific, legitimate reasons for rejecti ng opinions and assessments regarding Ms. Zachary’s physical and mental impairm ents as identified by the medical evidence. We affirm.
I Ms. Zachary argues that the ALJ failed to properly consider the opinion of Dr. Lewis, her treating physician. A treating sour ce opinion is to be given controlling weight only if it is “well supported bymedically acceptable clinical and laboratory diagnostic techniques and is not inc onsistent with the other substantial evidence in [the] record . . . .” 20 C.F.R. § 404.1527(d)(2); see also Watkins v. Barnhart , 350 F.3d 1297, 1300 (10th Cir. 2003) (outlining f ramework for ALJ’s controlling weight determination). The A LJ acknowledged this standard in his decision and then went on to find t hat Dr. Lewis’s opinion was not entitled to controlling weight because it was unsup ported by medical evidence and it was inconsistent with other evidence in the reco rd. Specifically, the ALJ found that Dr. Lewis’s account of Ms. Zachary’s limitatio ns did not appear to be a “genuine medical assessment of discrete functional limitations based upon clinically established pathologies.” Admin. R. at 31. The ALJ found also that “the degree [Ms. Zachary] is found to be limited in [Dr. Lewis’s] consultative examination is quite different from the limitations cited in [Dr. Lewis’s] medical
source statement.” Id. In addition to being inconsistent with his own-4-

examination, the ALJ concluded that Dr. Lewis’s opi nion was also inconsistent with other record evidence, including the analysis of the state agency’s reviewing physicians. Based on the inconsistencies in Dr. Le wis’s examination and medical source statement, the lack of specific tests and objective evidence to support the opinion and the fact that the opinion was inconsist ent with the record as a whole, the ALJ found that Dr. Lewis’s opinion was entitledto little weight. Because the ALJ considered the appropriate factors and explaine d the reasons for the weight he was giving Dr. Lewis’s opinion, no legal error occurred. See Watkins , 350 F.3d at 1300-01.
II Ms. Zachary couches her second issue very broadly, but her argument refers solely to the ALJ’s consideration of the opi nion of one of her consulting physicians, Dr. Mynatt. Ms. Zachary argues that th e ALJ erred because he did not consider Dr. Mynatt’s opinion and he did not give s pecific, legitimate reasons for rejecting Dr. Mynatt’s opinion. Based on our revie w of the record, however, the ALJ did not reject Dr. Mynatt’s opinion and he gave it the proper consideration. Ms. Zachary’s assertion that the ALJ rejected Dr. Mynatt’s opinion appears to be based largely on the fact that Dr. Mynatt ass essed Ms. Zachary’s present level of functioning at 45 on the Global AssessmentFunction (GAF) scale. Ms. Zachary argues that “a GAF rating of 45 coupled with other physical-5-

impairments seriously interferes with Zachary’s abi lity to work.” Aplt. Br. at 16. A GAF of 45 indicates “[s]erious symptoms . . . OR any serious impairment in social, occupational, or school functioning.” Amer ican Psychiatric Assoc., Diagnostic and Statistical Manual of Mental Disorde rs 34 (4th ed. 2000). Dr. Mynatt’s finding that Ms. Zachary’s present lev el of functioning was 45 did not include any explanation for giving her that rat ing and did not indicate that Ms. Zachary was unable to work. Ms. Zachary’s GAF score of 45 may indicate problems not necessarily related to her ability to hold a job, see id. , and therefore standing alone, without any further narrative expla nation, this rating does not support an impairment seriously interfering with he r ability to work. Moreover, the ALJ specifically noted and summarize d Dr. Mynatt’s report, with no indication that he was rejecting th e opinion. Admin. R. at 30. Dr. Mynatt’s report reflects that Ms. Zachary was o riented in all spheres; she takes no medications; she has some memory problems; she has difficulty in social, recreational and occupational areas, and she is men tally competent to handle her own funds. Id. at 165-67. Dr. Mynatt diagnosed Ms. Zachary with dysthymic disorder and generalized anxiety disorder. The ALJ ’s RFC reflects consideration of Dr. Mynatt’s evaluation that Ms. Zachary has som e memory difficulties and difficulty with social interaction because the ALJ found that she should be “limited to simple, routine instructions and cannothave contact with the general-6-

public.” Id. at 29. Although the ALJ did not discuss Ms. Zachary’s GAF rating in his RFC determination, he was not required to do so. See Howard v. Comm'r of Soc. Sec. , 276 F.3d 235, 241 (6th Cir. 2002) (“While a GAF s core may be of considerable help to the ALJ in formulating the RFC , it is not essential to the RFC’s accuracy.”). The ALJ included in his findings that he had “caref ully considered all of the medical opinions in the record regarding the se verity of claimant’s impairments (20 CFR § 404.1527),” Admin. R. at 34 and his RFC is not inconsistent with Dr. Mynatt’s report. Because Dr. Mynatt is not one of Ms. Zachary’s treating sources his opinion “is not entitled to the sort of deferential treatment accorded to a treating physician’s opinion.” Doyal v. Barnhart , 331 F.3d 758, 763 (10th Cir. 2003). Accordingly, the ALJ properly considered the opinion of Dr. Mynatt in making his disability determination. The judgment of the district court is AFFIRMED.

Entered for the Court

Wade Brorby Senior Circuit Judge