* This order and judgment is not binding precedent, e xcept under the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

### JUL 16 1999 

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

LARRY L. PHILLIPS,

Plaintiff-Appellant,

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

Defendant-Appellee. No. 98-7112 (D.C. No. 97-CV-203-S) (E.D. Okla.)

ORDER AND JUDGMENT *

Before PORFILIO , BARRETT , and HENRY , 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.-2-

Claimant Larry L. Phillips appeals the district court’s order affir ming the Commissioner’s decision to deny his application forsocial security disability benefits and supplemental security income benefits. He claims disability since October 8, 1992, due to back impairments, pain in h is back, neck, legs, hands and feet, depression, personality disorders, and chroni c obstructive pulmonary disease. Claimant’s case was remanded for additional finding s after an Administrative Law Judge (ALJ) denied benefits. Following a secon d administrative hearing, a different ALJ denied benefits. Claimant submitted additional psychological evidence which was considered by the Appeals Counci l. The Commissioner then determined at step five of the five-step analysis, see Williams v. Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988) (discussing five steps ), that claimant could perform a limited number of sedentary jobs that exist in si gnificant numbers in the national and local economies, and therefore, he was not disabled within the meaning of the Social Security Act. On appeal, cla imant contends that substantial evidence does not support the Commissioner’s determ ination and the ALJ did not pose a proper hypothetical question to the vocation al expert witness. We review the Commissioner’s decision to determine whether it is supported by substantial evidence in the entire rec ord and whether correct legal standards were applied. See Hawkins v. Chater , 113 F.3d 1162, 1164 (10th Cir. 1997). Substantial evidence is “‘such relevant evi dence as a reasonable mind-3-

might accept as adequate to support a conclusion.’ ” Soliz v. Chater , 82 F.3d 373, 375 (10th Cir. 1996) (quoting Richardson v. Perales , 402 U.S. 389, 401 (1971) (further quotation omitted)). We may neither rewei gh the evidence nor substitute our judgment for that of the Commissioner. See Casias v. Secretary of Health & Human Servs. , 933 F.2d 799, 800 (10th Cir. 1991). Claimant argues that the Commissioner’s decision is not based on substantial evidence in the record as a whole. He first alleges that the ALJ erred in evaluating claimant’s credibility as it related to allegations of disabling pain. He claims that the ALJ failed to consider appropriate factors in evaluating his pain allegations. The record reflects, however, th at the ALJ considered the following factors in evaluating claimant’s pain: m inimal objective medical findings, his daily activities, his abilities to dr ive and walk, his pain medications, the absence of other methods to alleviate pain, andhis infrequent medical visits. See Kepler v. Chater , 68 F.3d 387, 391 (10th Cir. 1995) (listing factor s to consider when evaluating pain claim). The ALJ thenlinked his finding that claimant’s pain was not disabling to the evidence. See id. The ALJ properly evaluated claimant’s credibility as it related to h is allegations of disabling pain. We find no reason to deviate from the general rule that credibility determinations are within the province of the ALJ when supported by substantial evidence. See id.-4-

Claimant next alleges that the ALJ improperly disre garded the opinions of Dr. Pennington. The ALJ properly discounted Dr. Pe nnington’s conclusory remarks because they were not based on any objectiv e tests or other medical procedures. See Castellano v. Secretary of Health & Human Servs. , 26 F.3d 1027, 1029 (10th Cir. 1994) (“A treating physician' s opinion may be rejected if his conclusions are not supported by specific find ings.”). The ALJ provided “specific, legitimate reasons” for rejecting Dr. Pennington’s statements. See Miller v. Chater , 99 F.3d 972, 976 (10th Cir. 1996) (quotation omitted). Claimant’s purported authority for his argument that the Commissioner was required to contact Dr. Pennington to ascertain whe ther he did, in fact, perform any medical tests does not impose such a requirement. See Thompson v. Sullivan , 987 F.2d 1482 (10th Cir. 1983). Claimant further contends that the ALJ improperly e valuated his mental impairments. He charges that the ALJ did not expla in why he concluded that claimant “did not suffer from any mental symptoms.” Appellant’s Br. at 32. The ALJ did not conclude that claimant did not suffer f rom mental symptoms; rather, he found that claimant could perform a limited rang e of sedentary work despite his mental impairments, a finding that is supportedby substantial evidence. Claimant also alleges error because the ALJ did notdiscuss the reports from Carl Albert Mental Health Clinic, even though those reports were not issued-5-

until after the ALJ’s decision. The reports were c onsidered by the Appeals Council which determined that the new evidence did not provide a basis for changing the ALJ’s decision. Evidence presented to the Appeals Council is considered only to the extent that it is new, mater ial and relevant to the pertinent time period. See 20 C.F.R. §§ 404.970(b), 416.1470(b); O’Dell v. Shalala , 44 F.3d 855, 859 (10th Cir. 1994). Here, the new evid ence does not require a change in the ALJ’s determination because it “remains supp orted by substantial evidence.” O’Dell , 44 F.3d at 859. The ALJ accepted claimant’s alle gations that he suffered from mental impairments. The new evide nce is further evidence of those impairments, but it does not contradict the A LJ’s conclusions. Based on a review of the administrative record, we conclude th at substantial evidence supports the Commissioner’s determination that clai mant is not disabled within the meaning of the Social Security Act. For his second argument on appeal, claimant asserts that the ALJ erred by failing to pose a proper hypothetical question to the vocational expert (VE). He claims the hypothetical question on which the VE ba sed his opinion did not include all of his mental impairments and, therefor e, did not correctly reflect his limitations. Our review of the record reveals thatthe hypothetical question posed by the ALJ included the limitations relevant to the unskilled, sedentary employment which the ALJ found claimant could perfo rm. The ALJ was not-6-

required to include further restrictions that were not supported by substantial evidence. See Gay v. Sullivan , 986 F.2d 1336, 1341 (10th Cir. 1993). Therefore, the hypothetical question was proper. The judgment of the United States District Court fo r the Eastern District of Oklahoma is AFFIRMED.

Entered for the Court

James E. Barrett Senior Circuit Judge