* Pursuant to Fed. R. App. P. 43(c), Kenneth S. Apfel is substituted for

John J. Callahan, former Acting Commissioner of Soc ial Security, as the defendant in this action.

** This order and judgment is not binding precedent, e xcept under the doctrines of law of the case, res judicata, and col lateral estoppel.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 10 1998 

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

RUDY GALLEGOS,

Plaintiff-Appellant,

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

Defendant-Appellee. No. 97-2267 (D.C. No. CIV-96-0510 JP/WWD)

(D. N.M.)

ORDER AND JUDGMENT **

Before BALDOCK , EBEL , and MURPHY , 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-2-

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Plaintiff Rudy Gallegos appeals from an order of th e district court that affirmed the Commissioner’s denial of his claim forsocial security disability and supplemental security income benefits. We have jur isdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291, and affirm. Plaintiff alleged a disability beginning on April 1 6, 1986, due to head, neck, and back injuries and a hearing loss sufferedin a fall from scaffolding at work. Although he has a high school education, pla intiff is of borderline intelligence with a full-scale IQ of seventy-eight since his accident. His past work was heavy, unskilled work as a construction laborer and janitor. He was thirty-five years old at the time the administrativ e law judge (ALJ) issued her final decision on June 26, 1995. Plaintiff’s claim for benefits was denied initiallyand upon reconsideration. He requested a hearing before an ALJ, who also deni ed his claim. Upon review, the Appeals Council remanded the case for further d evelopment of the record. The ALJ conducted another hearing and again denied benefits. The Appeals Council denied review of the ALJ’s second decision, making it the final decision of the Commissioner.-3-

Plaintiff asserts on appeal that the ALJ erred: (1 ) by failing to obtain additional consultative examinations, as directed b y the Appeals Council in its initial remand order; (2) in finding that plaintiff did not meet the listing for organic mental disorders, 20 C.F.R. pt. 404, subpt. P., app. 1, § 12.02; (3) in relying on a hypothetical question to the vocationa l expert (VE) that did not include all of plaintiff’s limitations; (4) in disc rediting plaintiff’s testimony as to the frequency and severity of his symptoms; and (5) in determining that plaintiff retained the residual functional capacity (RFC) forwork. We review the Commissioner’s decision on the whole record to dete rmine only whether the factual findings are supported by substantial evide nce and the correct legal standards were applied. See Goatcher v. United States Dep’t of Health & Human Servs. , 52 F.3d 288, 289 (10th Cir. 1995). Plaintiff’s challenge to the ALJ’s adherence to the Appeals Council’s remand order is not cognizable by this court. By s tatute, our jurisdiction extends only to the Commissioner’s final decision, which inthis case is the ALJ’s second decision. See 42 U.S.C. § 405(g); see also Browning v. Sullivan , 958 F.2d 817, 822 (8th Cir. 1992). Plaintiff does not argue thatthe ALJ failed to adhere to a legal requirement to obtain additional medical evid ence in reaching her second, final decision, but only that the ALJ did not follo w the Appeals Council’s direction. Therefore, plaintiff’s first issue is n ot within our jurisdiction.-4-

Plaintiff has not shown that the ALJ erred in decid ing that he did not meet the listing for organic mental disorders, 20 C.F.R. pt. 404, subpt. P., app. 1, § 12.02. The ALJ found that plaintiff met the “A” criteria of the listing, but not the “B” criteria. See II Appellant’s App. at 32-34. Substantial evidenc e supports the ALJ’s conclusion that plaintiff does not meet the “B” criteria of the listing because he suffers only “slight” restrictions of ac tivities of daily living and “slight” difficulties in maintaining social functio ning, he “seldom” suffers deficiencies of concentration, persistence, or pace resulting in failure to complete tasks in a timely manner, and he “never” suffers ep isodes of deterioration or decompensation in work or work-like settings. Id. at 33-34. We therefore find no error in the ALJ’s conclusion that plaintiff does n ot meet the listing. Plaintiff next argues that the ALJ erred in relyingon the VE’s response to a hypothetical question that did not include all of h is alleged mental impairments. A hypothetical question need only include those imp airments the ALJ accepts as true. See Talley v. Sullivan , 908 F.2d 585, 588 (10th Cir. 1990). The ALJ followed the correct procedure in rejecting plainti ff’s claims of mental impairments other than dizziness with bending and s tooping, occasional headaches, and susceptibility to stress. See Cruse v. United States Dep’t of Health & Human Servs. , 49 F.3d 614, 617 (10th Cir. 1995). Therefore, th e ALJ-5-

did not err in relying on the VE’s testimony that p laintiff can work in spite of these impairments. Plaintiff also contends that the ALJ erred in discr editing his testimony as to the frequency and severity of his symptoms. “Credi bility determinations are peculiarly the province of the [ALJ], and we will n ot upset such determinations when they are supported by substantial evidence.” Diaz v. Secretary of Health & Human Servs. , 898 F.2d 774, 777 (10th Cir. 1990). The ALJ thor oughly discussed her reasons for discounting plaintiff’s c omplaints in light of the medical evidence, see II Appellant’s App. at 24-28, and we therefore wil l not disturb her conclusions. Cf. Kepler v. Chater , 68 F.3d 387, 391 (10th Cir. 1995) (remanding where ALJ did not give reasons for his decision). Finally, plaintiff contends that the ALJ erred in d etermining that he retained the RFC for work. He argues, again, that the ALJ did not obtain additional medical evidence required by the Appeals Council in its remand order, and also that the ALJ improperly discounted evidenc e from Goodwill Industries, where plaintiff worked briefly, that his capabiliti es were significantly limited. We disagree. We have already pointed out that plai ntiff has not argued that the ALJ was legally obligated to obtain additional medi cal evidence on remand. In addition, it is apparent that the ALJ interpreted the report from Goodwill Industries differently than plaintiff. We have rev iewed it and find no error in the-6-

ALJ’s conclusion that Goodwill Industries found pla intiff unmotivated to work, not incapable of work. 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