* The case is unanimously ordered submitted withoutoral argument pursuant to

Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

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

### MAR 25 2003 

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

NEVA CATHEY,

Plaintiff-Appellant,

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

Defendant-Appellee. No. 02-7100 (D.C. No. 01-CV-439-P) (E.D. Okla.)

ORDER AND JUDGMENT *

Before LUCERO , McKAY , and BALDOCK , Circuit Judges.

Neva Cathey appeals from an order of the district court affirming the determination of the Commissioner of Social Security (“Commissioner”) that she is not entitled to Social Security disability benef its. We affirm.-2-

In an application for Social Security benefits file d in July 1998, Cathey alleged that she has been unable to work since May 1998 due to several alleged impairments, including diabetes, low back pain, obe sity, and carpel tunnel syndrome in her left dominant hand. Her application was denied by the agency. Reviewing the denial of benefits, the administrativ e law judge (“ALJ”) determined that Ms. Cathey 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), as she could perform the full range of seden tary work. The ALJ reached this conclusion by applying the Medical-Vocational Guidelines (“the grids”), 20
C.F.R. pt. 404, subpt. P, app. 2. Because the Appeals Council declined to review the ALJ’s decision, that decision became the final decision of the Commissio ner, see 20 C.F.R. § 404.984, which Cathey then appealed to the district court. In a summary order, the district court affirmed the denial of benefits. Cathey v. B arnhart , No. CIV 01-439-P (E.D. Okla. filed July 15, 2002). On appeal to thi s court, Cathey argues that the ALJ should not have used the grids to determine if she could work. She also asserts that the ALJ improperly evaluated the medic al evidence and that testimony should have been obtained from a vocational expert (“VE”). We review the Commissioner’s decision to determine whether her factual findings were supported by substantial evidence in the record viewed as a whole-3-

and whether she applied the correct legal standards . See Castellano v. Sec’y 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 nor substitute our judgment for that of the agency.” Casias v. Sec’y of Health & Human Servs. , 933 F.2d 799, 800 (10th Cir. 1991). Cathey maintains that the ALJ should not have applied the grids in making his determination that she could work, because she has nonexertional impairments of pain, obesity, and carpal tunnel syndrome, as we ll as depression. While nonexertional limitations may preclude use of the g rids, the grids can be used if the impact of those impairments does not significan tly reduce the underlying job base. See Evans v. Chater , 55 F.3d 530, 532 (10th Cir. 1995) (noting that an ability to perform a “substantial majority” of the work in the designated residualfunctional-capacity categoryjustifies use of the grids). The ALJ determined t hat Ms. Cathey met these parameters. See Thompson v. Sullivan , 987 F.2d 1482, 1488 (10th Cir. 1993). A review of the record shows that Cathey’s alleged nonexertional limitations do not preclude her working in a broad range of jobs. A consultative examination showed that Cathey had some tenderness in her lower back but had-4-

no restrictions on her ability to ambulate. She re ceived no treatment for her back pain and does not require assistive devices. Altho ugh Cathey is quite heavy, she has not been diagnosed as obese and no medical sour ce has noted any limitations due to her weight. Cathey has shown signs of carpa l tunnel syndrome, but that impairment has not been positively diagnosed. As to her depression, Cathey is taking antidepressa nt medication prescribed by her nurse practitioner. She has not received any treatment for depression from a specialist “in years.” (1 Appellant’s App. at 71 .) Cathey’s alleged nonexertional impairments either require no treatme nt or have been treated successfully. Cf. Pacheco v. Sullivan , 931 F.2d 695, 698 (10th Cir. 1991) (suggesting that an “impairment that can be remedie d by treatment” is not disabling); Bernal v. Bowen , 851 F.2d 297, 301 (10th Cir. 1988) (“The mere fact that [claimant] was diagnosed as suffering from maj or depression does not automatically mean that he is disabled.”). In short, Cathey has failed to show that her alleged nonexertional impairments necessarily i nterfere with her ability to work, and thus the ALJ properly relied on the grids

. Cathey asserts that the ALJ did not properly evaluate the medical evidence because he did not consider her left shoulder probl ems, left adhesive capsulitis, cellulitis, hallux valgus deformity, depression, an d limitations due to her obesity. No physician has indicated that Cathey is significa ntly limited in her ability to-5-

work due to any of these impairments. Although herprimary care provider, a nurse practitioner, determined that she could not w ork, this determination is not binding on the ALJ. A physician’s opinion that a c laimant is totally disabled is not dispositive, because the final responsibility f or determining whether a disability exists is reserved for the Commissioner . Castellano , 26 F.3d at 1029. Under the appropriate regulations, the opinion of anurse practitioner is entitled to even less weight. See 20 C.F.R. § 404.1513(a) (listing “acceptable medic al sources” who can provide evidence of an impairment, and excluding nurse practitioners); Barnett v. Apfel , 231 F.3d 687, 690 (10th Cir. 2000) (noting that reports from “other” medical sources are not entitl ed to the same significant weight). Further, in the instant case, the nurse p ractitioner’s office notes contradict her opinion. Lastly, Cathey argues that the ALJ should have obta ined VE testimony. As we have determined that the ALJ properly relied on the grids, no VE testimony was required. See Daniels v. Apfel , 154 F.3d 1129, 1132 (10th Cir. 1998) (noting that use of the grids, in appropriate circu mstances, “obviat[es] the need for a vocational expert’s testimony”)

.-6-

We conclude that there is substantial evidence in t he record to support the Commissioner’s denial of benefits, and that the Com missioner made no legal error in reaching her decision. Accordingly, the judgmen t of the district court is
AFFIRMED

.

Entered for the Court

Carlos F. Lucero Circuit Judge