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

John J. Callahan, former Acting Commissioner of Social Security, as the

defendant in this action.

** This order and judgment is not binding precedent, except under the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

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, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral
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argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument. 

Plaintiff Rudy Gallegos appeals from an order of the district court that

affirmed the Commissioner’s denial of his claim for social security disability and

supplemental security income benefits. We have jurisdiction under 42 U.S.C.

§ 405(g) and 28 U.S.C. § 1291, and affirm.

Plaintiff alleged a disability beginning on April 16, 1986, due to head,

neck, and back injuries and a hearing loss suffered in a fall from scaffolding at

work. Although he has a high school education, plaintiff 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 administrative law judge (ALJ) issued her

final decision on June 26, 1995. 

Plaintiff’s claim for benefits was denied initially and upon reconsideration. 

He requested a hearing before an ALJ, who also denied his claim. Upon review,

the Appeals Council remanded the case for further development 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. 
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Plaintiff asserts on appeal that the ALJ erred: (1) by failing to obtain

additional consultative examinations, as directed by 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 vocational expert (VE) that did not

include all of plaintiff’s limitations; (4) in discrediting plaintiff’s testimony as to

the frequency and severity of his symptoms; and (5) in determining that plaintiff

retained the residual functional capacity (RFC) for work. We review the

Commissioner’s decision on the whole record to determine only whether the

factual findings are supported by substantial evidence 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 statute, our jurisdiction extends

only to the Commissioner’s final decision, which in this 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 that the ALJ failed to adhere to a

legal requirement to obtain additional medical evidence in reaching her second,

final decision, but only that the ALJ did not follow the Appeals Council’s

direction. Therefore, plaintiff’s first issue is not within our jurisdiction.
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Plaintiff has not shown that the ALJ erred in deciding 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 evidence supports

the ALJ’s conclusion that plaintiff does not meet the “B” criteria of the listing

because he suffers only “slight” restrictions of activities of daily living and

“slight” difficulties in maintaining social functioning, he “seldom” suffers

deficiencies of concentration, persistence, or pace resulting in failure to complete

tasks in a timely manner, and he “never” suffers episodes 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 not meet the listing.

Plaintiff next argues that the ALJ erred in relying on the VE’s response to a

hypothetical question that did not include all of his alleged mental impairments. 

A hypothetical question need only include those impairments 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 plaintiff’s claims of mental

impairments other than dizziness with bending and stooping, 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, the ALJ
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did not err in relying on the VE’s testimony that plaintiff can work in spite of

these impairments.

Plaintiff also contends that the ALJ erred in discrediting his testimony as to

the frequency and severity of his symptoms. “Credibility determinations are

peculiarly the province of the [ALJ], and we will not 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 thoroughly

discussed her reasons for discounting plaintiff’s complaints in light of the medical

evidence, see II Appellant’s App. at 24-28, and we therefore will 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 determining 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 evidence from Goodwill Industries,

where plaintiff worked briefly, that his capabilities were significantly limited. 

We disagree. We have already pointed out that plaintiff has not argued that the

ALJ was legally obligated to obtain additional medical evidence on remand. In

addition, it is apparent that the ALJ interpreted the report from Goodwill

Industries differently than plaintiff. We have reviewed it and find no error in the
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ALJ’s conclusion that Goodwill Industries found plaintiff unmotivated to work,

not incapable of work.

The judgment of the United States District Court for the District of New

Mexico is AFFIRMED.

Entered for the Court

Michael R. Murphy 

Circuit Judge