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** This order and judgment is not binding precedent, e xcept under the doctrines of law of the case, res judicata, and col lateral estoppel.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

### NOV 5 1998 

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

JUSTA GARZA,

Plaintiff-Appellant,

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

Defendant-Appellee. No. 98-5016 (D.C. No. 96-CV-980-W) (N.D. Okla.)

ORDER AND JUDGMENT **

Before BALDOCK, EBEL, and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of-2-

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 Justa Garza filed a claim for disability insurance benefits and supplemental security income in October 1992, alleg ing disability since September 15, 1991, due to right shoulder and wristproblems. After a hearing, at which a vocational expert (VE) testified, an admini strative law judge (ALJ) ruled against plaintiff on November 23, 1993. On review, the Appeals Council remanded plaintiff’s case for further considerationon August 17, 1994. The Appeals Council noted that the record included a di agnoses that plaintiff suffered from depression and concluded that the record neede d further development. The Appeals Council ordered the ALJ to obtain additiona l evidence to clarify the nature and severity of plaintiff’s mental condition , including obtaining a consultative examination with psychological testing and medical source statements as to the work plaintiff could do despit e her mental impairment, and to obtain testimony from a VE about the effect of plai ntiff’s assessed limitations on her ability to work. On remand, the ALJ obtained additional medical evid ence from Dr. Gordon, a psychologist, and Dr. Goodman, a psychiatrist, regarding plaintiff’s mental status. Dr. Gordon described plaintiff as attentive and alert, but having a depressed mood. His report stated plaintiff had lo w to average intelligence, and-3-

good short and long term memory, but he could not rule out a learning disability. Dr. Gordon concluded that plaintiff was capable of performing some type of routine repetitive tasks on a regular basis. With regard to making occupational, performance, personal and social adjustments, Dr. G ordon indicated that plaintiff had a “good” ability to follow work rules, deal wit h stresses, maintain attention and concentration, follow detailed instructions, ma intain personal appearance, behave in an emotionally stable manner, relate pred ictably in social situations, and demonstrate reliability. See Appellant’s App. at 291-92. However, Dr. Gordon rated plaintiff as having only a “fair” abil ity to relate to coworkers, deal with the public, use judgment, interact with superv isors, function independently, and follow complex instructions. See id. Dr. Goodman’s report stated that he found no past h istory suggestive of any significant depressive disorder, though perhaps som e emotional instability. He stated that plaintiff’s mood, affect and speech wer e normal, though her mood fluctuated at times and she seemed to embellish hersymptoms. He concluded that there was no clinical evidence of a significant moo d disturbance or other psychiatric disorder and found no psychological rea son why plaintiff was not capable of returning to her past work. With regard to making occupational, performance, personal and social adjustments, Dr. G oodman indicated that plaintiff had an “unlimited or very good” ability t o follow work rules and a-4-

“good” ability to relate to coworkers, deal with th e public, use judgment, interact with supervisors, deal with work stresses, functionindependently, maintain concentration and attention, follow detailed or simple instructions, maintain personal appearance, behave in an emotionally stabl e manner, relate predictably in social situations, and demonstrate reliability. Se e id. at 298-99. The ALJ held a second hearing at which another VE t estified. The ALJ asked the VE two hypothetical questions: the firstassumed the mental limitations described in Dr. Gordon’s evaluation and report, th e second fully credited all of plaintiff’s complaints. The VE testified there wer e no jobs available in the national economy for a person with the physical and mental limitations described in either hypothetical. The ALJ denied plaintiff’s claim at step five of th e evaluation sequence on November 13, 1995. See generallyWilliams v. Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988). He determined that plaintiff cou ld not return to any of her past work, but nevertheless retained the residual functi onal capacity (RFC) to perform light work, limited by a significant limitation of motion of her right shoulder. In reaching this decision, the ALJ determined that pla intiff’s mental impairment was not severe. As required, the ALJ completed a Psych iatric Review Technique (PRT) form, on which he concluded that plaintiff ha d depression, but that her mental condition caused only slight restrictions inher daily living and difficulty-5-

in maintaining social functioning; seldom resulted in deficiencies in concentration, persistence or pace resulting in fai lure to complete tasks in a timely manner; and never caused episodes of deterio ration or decompensation in work or work-like settings. See Appellant’s App. at 21-22. The ALJ determined that plaintiff’s RFC had not changed since the firs t hearing and incorporated the testimony of the VE from that hearing into the reco rd. Taking into account plaintiff’s impairment, RFC, age, education, work e xperience and the testimony of the VE from the first hearing, the ALJ concluded that there were jobs available in the national economy that plaintiff could do, an d thus, she was not disabled. The Appeals Council denied review on August 27, 199 6, making the ALJ’s decision the final agency decision. On appeal from the magistrate judge’s order affirmi ng the agency decision, plaintiff asserts that the ALJ took action inconsis tent with the Appeal Council’s order on remand when he ignored the VE’s testimony at the second hearing. She further argues the ALJ erred in relying upon the VE ’s testimony from the first hearing because that testimony was two years old an d did not include the mental limitations set forth in Dr. Gordon’s evaluation. We have jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291, and we aff irm. The regulations provide that “[t]he administrative law judge shall take any action that is ordered by the Appeals Council and m ay take any additional action-6-

that is not inconsistent with the Appeals Council’s remand order.” 20 C.F.R. §§ 404.977(b); 416.1477(b). The Appeals Council di rected the ALJ to obtain additional medical testimony to clarify the nature and severity of plaintiff’s mental condition and to obtain testimony from a VE as to the effect of her limitations on her occupational base. The ALJ foll owed this mandate by obtaining additional medical testimony and VE testi mony. The fact that the ALJ did not adopt the VE’s testimony from the second he aring is not inconsistent with the remand order. Cf. Campbell v. Bowen , 822 F.2d 1518, 1522 (10th Cir. 1987) (declining to constrain the ALJ on remand in a mann er not mandated by the regulations). The VE testimony from the second hea ring was not binding on the ALJ because the hypotheticals posed to the second V E did not set forth only impairments which had been accepted as true by the ALJ. See Talley v. Sullivan , 908 F.2d 585, 588 (10th Cir. 1990) (the ALJ is not bound by the VE’s opinion in response to a hypothetical question which includes impairments that are not accepted as true by the ALJ). So long as the ALJ’s findings about plaintiff's phy sical and mental limitations were reflected in the hypothetical ques tion propounded to the VE at the first hearing, the ALJ could rely upon the firs t VE’s testimony in determining at step five of the sequential analysis that plaintiff was not disabled. See Decker v. Chater , 86 F.3d 953, 955 (10th Cir. 1996) (hypothetical q uestions to the VE-7-

need only reflect impairments and limitations that are borne out by the evidentiary record). The ALJ determined from the additional me dical evidence that plaintiff’s mental impairments did not alter the or iginal RFC determination, and thus, determined that the original VE testimony inc luded all of plaintiff’s physical and mental limitations. We are satisfied from our review of the record thatthe hypothetical question the ALJ propounded to the VE at the first hearing contained all the limitations found by the ALJ following the remand. We are also satisfied that the ALJ’s findings as to plaintiff’s physical and menta l impairments are supported by the evidence; indeed, plaintiff does not dispute th e ALJ’s determination that the additional medical evidence concerning plaintiff’s mental impairment did not alter the original RFC determination. Plaintiff mistakenly assumes that the ALJ fully cre dited the occupational limitations described by Dr. Gordon in his report b ecause one of the hypothetical questions to the VE at the second hearing included those limitations. However, the ALJ thoroughly discussed plaintiff’s mental imp airment and all of the mental evaluations of plaintiff, and it is clear from his decision that the ALJ considered all of the medical evidence concerning plaintiff’s mental impairments, but did not fully credit Dr. Gordon’s assessment of plaintiff’s occupational limitations. The ALJ’s determination that plaintiff’s mental impairm ent was not severe is-8-

consistent with the psychiatric evidence from Dr. Goodman, who found no clinical evidence of a significant mood disturbance or other psychiatric disorder and found no psychological reason why plaintiff was not capable of returning to her past work. Although plaintiff suffers from som e mental impairment, substantial evidence supports the ALJ’s determinati on that the impairment is not of such severity that it prevents her from working. See Coleman v. Chater , 58 F.3d 577, 580 (10th Cir. 1995). The ALJ did not take any action that was inconsiste nt with the Appeals Council remand order, and he properly considered al l of the medical evidence in the record. T he ALJ’s finding that plaintiff retains the RFC to perform light work limited only by her limitations of motion in her ri ght shoulder is supported by substantial evidence. Therefore, the Commissioner’ s decision must stand. See 42 U.S.C. § 405(g); Richardson v. Perales , 402 U.S. 389, 390 (1971). The judgment of the United States District Court fo r the Northern District of Oklahoma is AFFIRMED.

Entered for the Court

Bobby R. Baldock Circuit Judge