UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

CARMEN I. JELITTO, 

 Plaintiff-Appellant, 

v. 

MICHAEL J. ASTRUE, 

Commissioner of Social Security, 

 Defendant-Appellee. 

No. 12-4087 

(D.C. No. 2:11-CV-00235-SA) 

(D. Utah)

 

ORDER AND JUDGMENT*

 

Before HARTZ, EBEL, and GORSUCH, Circuit Judges. 

 

 Claiming disability, Carmen Jelitto sought supplemental security benefits. 

After a hearing, an administrative law judge (ALJ) concluded that Ms. Jelitto is able 

to perform light work despite chronic back pain and depression. Because the types of 

jobs she can perform exist in significant numbers in the national economy, the ALJ 

 

*

 After examining the briefs and appellate record, 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. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

January 31, 2013

Elisabeth A. Shumaker 

Clerk of Court
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denied benefits. Ms. Jelitto appealed, but the Social Security Administration upheld 

the ALJ’s decision and, later, so did the district court. 

Before us, Ms. Jelitto claims the ALJ gave inadequate weight to the testimony 

of two of her doctors, Dr. Kelton Lundsberg (her primary care physician and treating 

doctor) and Dr. Gerald Manwill (a psychologist who performed a single evaluation). 

Turning first to Dr. Lundsberg’s opinion, a treating doctor’s opinion ordinarily 

deserves “controlling weight.” See 20 C.F.R. § 416.927 (c)(2). Controlling weight, 

however, is appropriate only if the treating doctor’s opinion “is well-supported by 

medically acceptable clinical and laboratory diagnostic techniques.” Watkins v. 

Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003) (internal quotation marks omitted). 

The ALJ held Dr. Lundsberg’s opinion failed to meet this standard and we cannot 

disagree. As the ALJ noted, Dr. Lundsberg’s progress notes showed that he 

examined Ms. Jelitto’s back only twice in the past four years, and there’s no evidence 

in the record that Dr. Lundsberg conducted any other examinations. The ALJ found 

this “infrequency of back examinations” to be “striking.” Aplt. App., Vol. I at 28. 

Ms. Jelitto replies by arguing that Dr. Lundsberg reviewed and relied on work 

performed by two other doctors, doctors who conducted a number of tests on her 

back — including an x-ray, two CT scans, an MRI, and a lumbar discography. The 

difficulty is, Dr. Lundsberg’s notes only once reference a CT scan and make no 

mention of the other tests. See Aplt. App., Vol. II at 281. The record thus simply 
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does not support Ms. Jelitto’s claim that he based his opinion on the tests other 

doctors performed. 

 At the very least, Ms. Jelitto says the ALJ should have given Dr. Lundsberg’s 

opinion more than the “little weight” he did. In assessing what weight to give a noncontrolling medical opinion, an ALJ usually must consider the six factors enumerated 

in 20 C.F.R. § 416.927(c). See Watkins, 350 F.3d at 1300-01. Although Ms. Jelitto 

disagrees with the outcome of this process, it is apparent that the ALJ considered 

each of the relevant factors before reaching a final decision. For example, the ALJ 

noted that Dr. Lundsberg is not a specialist, his opinions are inconsistent with each 

other, his opinions and functional limitations are not supported by his progress notes, 

and his reports were prepared for another agency and don’t demonstrate an 

understanding of the Social Security disability program. We see no error in the 

process or outcome of the ALJ’s assessment. 

 Turning to Dr. Manwill, Ms. Jelitto argues the ALJ didn’t give enough weight 

to Dr. Manwill’s psychological opinion. Dr. Manwill diagnosed Ms. Jelitto with a 

major depressive disorder and post-traumatic stress disorder (PTSD) and concluded 

she couldn’t work at all. The ALJ reviewed Dr. Manwill’s evaluation and ordered 

another examination by Dr. Tanya Colledge, also a psychologist. Dr. Colledge 

agreed that Ms. Jelitto had a major depressive disorder, but Dr. Colledge believed the 

depression didn’t affect Ms. Jelitto’s ability to do work-related activities. Relying on 

Dr. Colledge’s opinion, the ALJ concluded Ms. Jelitto had “slight mental limitations” 
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— up to a 10% reduction in her ability to concentrate, make complex work decisions, 

and carry out detailed instructions. Aplt. App., Vol. I at 22. Ms. Jelitto says the 

ALJ’s conclusion was wrong and the ALJ should have used Dr. Manwill’s opinion 

instead. 

We cannot agree. The ALJ evaluated both opinions in light of the factors set 

forth in 20 C.F.R. § 416.927. The ALJ then concluded Dr. Colledge’s assessment 

was entitled to more weight and gave colorable reasons for the decision. For 

example, Dr. Colledge’s opinion was supported by more extensive testing and 

examination — she performed a more detailed mental status examination and 

administered three tests to Dr. Manwill’s one. Dr. Colledge tested Ms. Jelitto three 

months after Dr. Manwill, by which time Ms. Jelitto didn’t show any specific 

symptoms of PTSD and scored much higher on the one test Dr. Manwill did 

administer. Dr. Colledge’s tests showed Ms. Jelitto was “able to remember and carry 

out simple as well as multi-step instructions” and didn’t indicate Ms. Jelitto had any 

particular memory difficulties. Aplt. App., Vol. III at 746. 

 One might disagree with the ALJ’s assessments, but our job is not to reweigh 

the evidence or substitute our judgment for the ALJ’s. Only substantial, not 

compelling or incontrovertible, evidence is required to sustain an administrative 

agency’s findings. See Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). That is 

 
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present here and it is equally clear the ALJ followed the correct legal standards in 

evaluating the evidence. See id. In these circumstances, we must and do affirm. 

 Entered for the Court 

 Neil M. Gorsuch 

 Circuit Judge