* Effective March 31, 1995, the functions of the Secr etary of Health and

Human Services in social security cases were transf erred to the Commissioner of Social Security. Pub. L. No. 103-296. Pursuantto Fed. R. App. P. 43(c), Kenneth S. Apfel, Commissioner of Social Security, is substituted for Donna E. Shalala, Secretary of Health and Human Services, as the defendant in this action. Although we have substituted the Commissioner for the Secretary in the caption, in the text we continue to refer to the Secretary b ecause she was the appropriate party at the time of the underlying decision.

** This order and judgment is not binding precedent, e xcept under the doctrines of law of the case, res judicata, and col lateral estoppel.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 

### DEC 9 1997 

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

FRANCISCO LOPEZ,

Plaintiff-Appellant,

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

Defendant-Appellee. No. 97-2133 (D.C. No. CIV-95-13-MV) (D. N.M.)

ORDER AND JUDGMENT **

Before BALDOCK, BARRETT, and MURPHY, Circuit Judges

.1 The record indicates that plaintiff raised the foll owing issues before the

appeals council: (1) the ALJ did not give full con sideration to his nonexertional psychological limitations or to the vocational expe rt’s testimony; (2) he was not given an opportunity to cross examine the medical a dvisor; and (3) the ALJ was biased. Plaintiff did not raise all of the argumen ts he raises in federal court to the appeals council. Nonetheless, we do not apply the waiver rule in this case because the parties did not have notice of James v. Chater , 96 F.3d 1341, 1343-44 (10th Cir. 1996) (holding “issues not brought to th e attention of the appeals council on administrative review may, given suffici ent notice to the claimant, be deemed waived on subsequent judicial review”), at the time plaintiff appealed to the appeals council. -2- After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Plaintiff appeals from the district court’s affirmance of the Secretary’s determination that he is not disabled and is, there fore, not entitled to disability benefits or supplemental security income benefits. On appeal, plaintiff argues (1) the administrative law judge (ALJ) failed to gi ve controlling weight to the opinion of his treating physician that he is disabl ed by pain; (2) the ALJ erred in applying the Medical-Vocational Guidelines (grids), 20 C.F.R. pt. 404, subpt. P, app. 2, because he suffers from nonexertional impai rments; and (3) the ALJ erred in disregarding the vocational expert’s testimony that he was disabled. 1 “We review the Secretary’s decision to determine whethe r [the] factual findings are supported by substantial evidence in the record vie wed as a whole” and whether-3-

correct legal standards were applied. Castellano v . Secretary of Health & Human
Servs. , 26 F.3d 1027, 1028 (10th Cir. 1994). We affirm. Plaintiff alleges disability due to a back injury, causing pain and depression. The ALJ denied benefits after determin ing that although plaintiff has “severe impairments consisting of a bulging L3-4 di sc and a herniated L5-[S]1 disc,” I Admin. R. at 26, he retains the residual f unctional capacity (RFC) to perform a full range of light work. The ALJ furthe r determined that plaintiff’s nonexertional pain does not impose any restrictions on performing light work. Accordingly, the ALJ concluded plaintiff is not dis abled and denied benefits at step five of the controlling five-step analysis. S ee 20 C.F.R. §§ 404.1520,
416.920. Plaintiff first argues that the ALJ erred in not gi ving controlling weight to his treating doctor’s finding of disability and fai led to give specific and legitimate reasons for discounting the doctor’s opinion. Alth ough the Secretary will give controlling weight to the treating doctor’s opinionregarding the nature and severity of the claimant’s impairments if the opini on is well supported by medical evidence and “is not inconsistent with other substantial evidence in the record,” the treating doctor’s opinion on the ultimate quest ion of disability is not dispositive because the Secretary has the final res ponsibility to determine disability. Castellano , 26 F.3d at 1029.-4-

In a short, undated, “[t]o whom it may concern” not e, Dr. Baten, the treating doctor, stated as follows: “This is to ve rify that [plaintiff] continues to be under [m]y care and is totally disabled. He suf fers from intractable back pain and is currently on medication and rest.” II Admin . R. at 397. Dr. Baten’s treatment notes for nearly three and one half years , however, are not consistent with this brief, conclusory statement of disability . In addition, Dr. Baten indicated in an RFC form he filled out at the Secre tary’s request that plaintiff can occasionally lift twenty-five pounds three to four hours a day, has unlimited ability to stand and walk, could sit if he is allow ed to change positions, and has no limitations on pushing or pulling. This RFC ass essment indicates plaintiff does, as the ALJ found, have the ability to perform a full range of light work, which involves lifting no greater than twenty pound s at a time, frequent lifting or carrying of ten pounds, and a good deal of stand ing or walking or some pushing or pulling of arm or leg controls when it i nvolves sitting most of the time. See 20 C.F.R. §§ 404.1567(b), 416.967(b). Furthermore, no other doctors stated that plaintiff was disabled. The medical advisor who examined plaintiff’s medical re cords and testified at the ALJ hearing stated that he disagreed with Dr. Baten ’s conclusion of disability. A consulting doctor, after examining plaintiff, ind icated only that plaintiff should avoid heavy lifting and repetitive bending and twis ting of his back. Another-5-

consulting doctor reported that plaintiff was not m otivated to work and his major problem was psychological. A consulting clinical p sychologist noted that plaintiff exaggerated his symptoms. See Talley v. Sullivan , 908 F.2d 585, 587 (10th Cir. 1990) (exaggerated complaints of pain ar e not taken lightly). Plaintiff believes the ALJ improperly relied on the reports of the consulting doctors and medical advisor. We disagree. General ly, the opinions of nonexamining doctors are given less weight than tho se of examining doctors, but that does not mean opinions of medical advisors are entitled to no weight.
See Andrews v. Shalala , 53 F.3d 1035, 1041 (9th Cir. 1995); see also Talbot v. Heckler , 814 F.2d 1456, 1463 (10th Cir. 1987) (reports of reviewing doctors are given less weight than those of examining doctors). Although the treating doctor’s opinion regarding the severity of a claimant’s impairments is generally favored over that of a consulting doctor, see Reid v. Chater , 71 F.3d 372, 374 (10th Cir. 1995), the ALJ did not give inappropriat e weight to the consulting doctors. Considering the lack of consistency betwe en Dr. Baten’s brief, conclusory opinion and the record as a whole, we co nclude the ALJ did not err in rejecting Dr. Baten’s opinion that plaintiff is dis abled. See Goatcher v. United States Dep’t of Health & Human Servs. , 52 F.3d 288, 290 (10th Cir. 1995). Plaintiff next argues the ALJ erred in applying the grids, because his nonexertional impairments of pain and psychological symptoms do not fit-6-

precisely within the grids. The ALJ may apply the grids without relying on vocational testimony if the ALJ determines the plai ntiff has no significant impairments affecting his RFC. See Evans v. Chater , 55 F.3d 530, 532 (10th Cir. 1995); see also Thompson v. Sullivan , 987 F.2d 1482, 1488 (10th Cir. 1993) (mere presence of nonexertional impairment does notpreclude reliance on grids if nonexertional impairment would not impair plaintiff’s ability to work). The ALJ determined plaintiff’s complaints of disabl ing pain lacked credibility and his pain was not so severe as to pr eclude him from performing a full range of light work. In evaluating complain ts of pain, this court considers (1) whether the plaintiff proved by objective medic al evidence an impairment causing pain; (2) whether there was a nexus betweenthe impairment and the subjective complaints of pain; and (3) considering all of the evidence, whether the pain was disabling. See Musgrave v. Sullivan , 966 F.2d 1371, 1376 (10th Cir. 1992). It is undisputed that plaintiff suffered fr om a medical impairment likely to cause pain and that there was a nexus between the i mpairments and his subjective complaints of pain. Considering all of the evidenc e, however, there was not substantial evidence to prove the pain was disablin g, and plaintiff’s testimony alone was not enough to establish he suffered from disabling pain. See id. Plaintiff stopped going to the pain clinic to which he was referred by Dr. Baten for treatment after settling his worker’s compensat ion claim even though his-7-

medical benefits continued for two years under the terms of the settlement agreement. Nothing in the record indicates plainti ff’s pain is so severe that it precludes him from performing light work. We there fore defer to the ALJ’s credibility finding regarding plaintiff’s pain. Se e Kepler v. Chater , 68 F.3d 387, 391 (10th Cir. 1995). Although plaintiff suffers from some psychological problems, the evidence does not indicate that he has a psychological impai rment of such severity that it prevents him from working. See Coleman v. Chater , 58 F.3d 577, 580 (10th Cir. 1995). Thus, the ALJ did not err, as plaintiff sug gests, in failing to order another consulting psychological examination to evaluate hi s RFC. Cf. Thompson , 987 F.2d at 1491 (when there is no evidence upon wh ich ALJ could make RFC assessment, ALJ should exercise discretionary powerto order consultative examination). We conclude the ALJ correctly relied on the grids a fter finding that plaintiff did not have significant nonexertional impairments and could perform a full range of light work. See id. at 1488. Plaintiff argues the ALJ erred in disregarding the vocational expert’s testimony that plaintiff is disabled, because the A LJ asked the hypothetical questions setting forth plaintiff’s impairments. T he ALJ, however, determined the hypothetical questions contained functional lim itations plaintiff did not have.-8-

Because plaintiff did not have significant nonexert ional impairments, as indicated above, the ALJ properly relied on the grids and voc ational expert testimony was not needed. Also, as indicated above, the ALJ alon e has the final responsibility for determining disability. Cf. Castellano , 26 F.3d at 1029 (treating doctor). The Secretary argues that plaintiff is precluded fr om raising an argument concerning a somatoform pain disorder because he di d not first raise the argument in the district court. We are unable to determine exactly what plaintiff raised in the district court because plaintiff failed to prov ide us with a copy of his brief to that court. See 10th Cir. R. 10.3 (counsel bears responsibility to ensure record on appeal is complete); see also Rubner & Kutner, P.C. v. United States Trustee (In re Lederman Enters., Inc.) , 997 F.2d 1321, 1323 (10th Cir. 1993) (same). Plaintiff did not argue a somatoform pain disorder in his objections to the magistrate judge’s report and recommendation, whichhas been provided to this
court. See Soliz v. Chater , 82 F.3d 373, 375-76 (10th Cir. 1996) (specific is sues not raised in objections to magistrate judge’s repo rt and recommendation are deemed waived and are not to be addressed on appeal unless in interests of justice to do so). It appears the argument was not first r aised in the district court. Unless there are compelling reasons to consider new ly raised arguments, we decline to do so. See Crow v. Shalala , 40 F.3d 323, 324 (10th Cir. 1994). Here, there are no compelling reasons to consider asomatoform pain disorder.-9-

Any indication in the administrative record of suchan impairment is merely conclusory, as are plaintiff’s arguments to this co urt regarding a somatoform pain disorder. The judgment of the United States District Court fo r the District of New Mexico is AFFIRMED.

Entered for the Court

Michael R. Murphy Circuit Judge