### *The Honorable Lyle E. Strom, United States Senior District

Judge for the District of Nebraska, sitting by designation. The Honorable Charles R. Wolle, United States District 1 

### Judge for the Southern District of Iowa. No. 96-1982

Damian Flynn, * * Appellant, * * v. * Appeal from the United States * District Court for the Southern Shirley S. Chater, * District of Iowa Commissioner of Social * Security, * * Appellee. *

Submitted: December 13, 1996 Filed: February 27, 1997

Before BOWMAN, Circuit Judge, LAY, Senior Circuit Judge, and STR OM, Senior * District Judge. STROM, District Judge.
Flynn appeals the district court's decision granti ng the defendant's 1 motion for an order affirming the Commissioner of the Social Securit y Administration's decision denying him disability benefits. We affirm.

### -2- I. Claimant Damian Flynn was born March 29, 1974. On August 27, 1978, he was hit by a car a nd hospitalized. Flynn sustained a head injury, and at first, doctors tho ught he did not suffer permanent injuries. However, doctors advised Flynn to return for follow-up checkups because of th e nature of the accident.
About a y ear after the accident, Flynn began complaining about pain in his c alf. Since then, Flynn has suffered from sporadic pain in hi s foot, ankle, leg, hip, back, and neck. He also has a leg-lengt h discrepancy. Admin. Tr. at 150. Flynn, though, does not take medication for the se physical impairments, and he is not presently receiving an y medical treatment for these impairments.

Inaddition to these physical impairments, Flynn has a learnin g disability. Admin. T r. at 191; but see id . at 275 (suggesting that Flynn does not have a learning disability but rather he has long-ter m consequences from his head injury). During his school career, Flynn has had difficulty with reading, writing, and arithmetic, and was placed i n special education classes. See id . at 153, 160- 61, 250. Flynn eventually dropped out of school when he was in the tenth grade. Id . at 59.

The record is consistent as to the extent of Flynn’s learnin g impairm ents. Tests throughout the years have shown that Flynn score s poorly on auditory memory and association tests. Id . at 190; see also id
. at 153-54, 238. Thes e test scores explain Flynn’s problems with reading, writing, and arithmetic.
In addition to scoring low on certain tests, and having problem s with reading and writing, Flynn scores low on timed tasks, id . at 165, and has difficulty following more than two verbal

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directions at a time. Id . at 61-62, 243. At least one doctor ha s concluded that Flynn has poor executive ability, bad adaptability, and slo w mental processing spe ed. Id . at 275. Finally, in social settings, Flynn tends to be a loner w ith low self-confidence. Id . at 273. He also lacks certain social skills. Id . at 191.
A review of the record, however, is not complete without noting that Flynnis an intelligent young man with specific talents and skills. For example, he has an above average IQ, and he scor es very high on tests that measure visual and creative abilities. Id . at 1 64, 166, 238. As a child, he had a very good vo cabulary, id . at 244, and good comprehension skills. Id
. at 2 50. Furthermore, Flynn is a talented artist who is aware tha t there is at least a small market for his work. Id . at 65-66, 272.

Th roughout the years, evaluating psychologists and teachers hav e noted that Flynn work s diligently on tasks that interest him, and becomes fru strated at tasks that are more difficult for him. Id . at 160. A t times, teachers have described Flynn as “lazy and not motivated.” Id . at 160; see also id . at 184. Teachers also have attributed part of Flynn’s learning problems in school to his poor attendance record. Id . at 185 , 187.
Since quitting school, Flynn has sta rted working on his GED. Id . at 60. In his free time, he reads comic books and TV Guide, but wit h difficulty. Id . at 38-39. He also watches television, draws pictures, an d visits his friends. He often meets his friends downtown by taking a bus. While at first he has difficulty getting around a new city using publi c transportation, after he learns the routes, he h as little difficulty. Id
. at 67. He also knows how to read bus maps and timetables. Id . at 44-45. At home, Flynn performs household chores such as vacuuming, cooking, takin g out

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the garbage, mowing t he lawn, and taking care of his cat. Id . at 46, 53, 62.
Again st this background, Flynn’s mother initially filed a child’ s supplement security income (SSI) claim on his behalf on March 19, 1980
. The agency denied the application. Flynn’s mother subsequently filed a secon d application on October 2, 1985. This time, the agency approve d ben efits through March 1986 at which time the agency terminated Flynn’ s benefits because of his mother’s excess income.
The instant case began when Flynn’s mother filed a third application
onJuly 22, 1987. The agency denied this application; however, the case
was reopened after the Supreme Court modified the analysis required t o determine whether a child is disabled. Subsequently, Flynn filed a ne w application for benefits as an adult on January 27, 1993. Th e Administrative Law Judge (ALJ) considered the tw o pending applications and denied benefits. The Appeals Council denied review on January 9, 1994
. The district court affirmed, and Flynn filed this appeal.

We review the ALJ’s decision in which he found that Flynn was no t dis abled as a child and was not disabled as an adult. Pursuant to 2 0 C.F.R. § 416.924, the ALJ found that Flynn had s evere impairments but that they were not comparable to those which would have disabled an adult
. Accordingly, the ALJ found that Flynn was not disabled as a child. Next, the ALJ considered whether Flynn was disabled as an adult. Pursuant to 20 C.F.R. § 416.920, the ALJ again found that Flynn’s impairments were severe
. The ALJ then found that Flynn’s impairments did not meet or equal th e criteria of any impai rment listed in Appendix 1. The ALJ next found that Flynn had no past relevant work, and, therefore, he had to

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determine whether Flynn’s impairments prevented him from doing any other work. Th e ALJ concluded that Flynn could perform work found in th e national economy, and that Flynn’s main problem was that he was no t motivated. Accordingly, the ALJ found that Flynn was not disabled as an adult.

II. In review ing the decision of the ALJ, we must affirm if it i s supported by substantial evidence based on the record as a whole. Smith v. Shalala , 31 F.3d 715, 717 (8th Cir. 1994); se e also 42 U.S.C. § 405(g). “Substantial evidence is less than a preponderance, but enough so that a reasonable mind might find it adequate to suppor t the conclusion.” Oberst
v. Shalal a , 2 F.3d 249, 250 (8th Cir. 1993). Therefore, “[w]e do no t rew eighthe evidence or review the factual record de novo.” Naber v
. Shalala , 22 F.3d 186, 188 (8th Cir. 1994)(citati on omitted). Rather, “‘if it is possible to draw two inconsistent positions from the evidence and on e of those positions represents the agency’s findings, we must affirm th e decision.’” Oberst , 2 F.3d at 250 (quoting Robi nson v. Sullivan , 956 F.2d 836, 838 (8th Cir. 1992)).

A. On appea l, Flynn makes four arguments. First, Flynn contends tha t the ALJ failed to make specific findings of fact regarding claimant’ s impairments.
Flynn concedes he raises this issue for the first time on appeal
. Ord inarily, issues raised for the first time on appeal will not b e consid ered unless the claimant can show that manifest injustice woul d otherwise result. See Misner v. Chater , 79 F.3d 745, 746 (8th Cir
. 1996)(citing Novotny v. Chater , 72 F.3d 669, 670 (8th Cir. 1995); Ownbey v. Shalala , 5 F.3d 342, 345 (8th Cir.

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1993)). Flynn has no t made this showing. However, even if we considered the merits of Flynn’s argument, we would not disturb the ALJ’s decision, as his findings of fa ct are adequately set forth in his decision. Admin. Tr. 20-22. Therefore, we find Flynn’s first arg ument to be without merit.

B. Flynn’ s second argument is that the ALJ failed to include all o f Flynn’ s impairments in questioning the vocational expert. Again, w e disagree.

Avoc ational expert’s testimony “based on a properly-phrase d hy pothetical question constitutes substantial evidence.” See Roe v
. Chater , 92 F.3d 672, 675 (8th Cir. 1996)(citatio ns omitted). In contrast,
a hy pothetical question that does not take into account all relevan t impairments does not constitute substantial evidence to support the ALJ’s decisi on. See Hinchey v. Shalala , 29 F.3d 428, 432 (8th Cir
. 1994)(citation omitted). Finally, a properly-phrased hypothetical questio n only has to include those impairments that the A LJ finds are substantially supported by the record as a whole. Id . (citation omitted).

Inthis case, the ALJ’s hypothetical question to the vocationa l expert only included those impairments that the ALJ accepted as true. The ALJ found that many o f Flynn’s problems were due to a lack of motivation. Admin. Tr. at 20 (stating Flynn “engages in any number of activities and presents mo re as an idle teen rather than a young man with any rea l disability”). Furthermore, the ALJ concluded that Flynn did not present any evidence to show that the lack of motivation was related to a disablin g mental impairment. Id . Significantly, other th an pointing to Dr. Gersh’s report, Flynn presents little evidence to

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connect his lack of motivation to any disabling impairment. Therefore, it was not error for the ALJ to limit his hypotheti cal question to only those impairments which he accepted as true.

C. Flynn’s third argument is that the ALJ improperly applied the P olaski
v. Heckler , 739 F.2d 1320, 1322 (8th Cir. 1984), credibility analysis to this cas e. In a nutshell, Flynn argues that “[t]he ALJ found that th e testimonyregarding daily activities was credible. His rejection of his disability claim was therefore erroneous.” Br. of Appellant at 19.
Although the ALJ’s decision may have been improved with respect t o applyi ng the Polaski credibility analysis, we cannot agree with Flynn’ s pre mise. It is perfectly appropriate for an ALJ to find a claimant’ s testim onyto be credible, but disagree with the claimant’s ultimat e conclus ionof disability as derived from that testimony. Here, Flyn n simply d isagrees with the ALJ’s ultimate finding that Flynn is no t disabled. Accordingly, we find this argument without merit.

D. Finally, Flynn argues that we shouldconsider Dr. Gersh’s report and award benefits based on this report when considered along with the record
as a whole. The ALJ did not have the benefit of reviewing Dr. Gersh’ s report. However, the Appeals Council did review Dr. Gersh’s report an d determ ined that the ALJ’s decision was still supported by substantia l evidence. The issue presented here is two-fold. First, we must determine whether it is proper to consider Dr. Gersh’s report in ruling on this case
. Second, assuming that we should consider Dr. Gersh’s report, we must

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determi ne how the report should be viewed in context of the record as a whole.
This Cour t previously considered this issue in Riley v. Shalala , 18 F.3d 619 (8th Cir. 19 94). In Riley , the claimant argued “first, that the Appeals Council improperly failed to consider [n ewly submitted evidence in the form of medical reports] and, second, that e ven if the Appeals Council considered them, it wrongly concluded that they provided no basis for a grant of review of th e administrative law judge’s decision.” Id . at 622. The Appeals Council in Riley considered the newly submitted medical report s but concluded that the ALJ’s conclusion should not be disturbed. The Cour t conc luded that remand to the ALJ for consideration of the report wa s inappropriate. Id . at 622 (citations omitted). The Court further found that once it was clear that the Appeals Council considered the new report, then the Court’s role was to factor in the new report and determine whethe r the ALJ’s decision was still supported by substantial evidence. Id
. (citation omitted). This required the Court to speculate on how the ALJ would have weighed th e newly submitted reports had they been available at the initial hearing. See id
.
We are in the same position here. We must consider Dr. Gersh’ s report and also consider how the ALJ would have weighed Dr. Gersh’s report inmaking a final ruling. However, even considering Dr. Gersh’s report, the ALJ’s decision is supported by substantial evidence in the record as
a whole. Other than restating Flynn’s strengths and weaknesses based on int elligence tests, the only new relevant information is that Dr. Gers h opines that Flynn “may not be able to work in a competitive employmen t situation.” Id . at 275. The Commissioner, however, attacks Dr. Gersh’s “work” opinion, arguing that we should ignore his opinion. While we do

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not completely ignore Dr. Gersh’s opinion on this issue, we note that Dr. Gersh’s opinion is not a medical opinion but an opinion on the application of the statute. Howe ver, applying the statute is a task “assigned solely to the discretion of the [Commissioner].” See Nelson v. Sullivan , 946 F.2 d 1314, 1316 (8th Cir. 1991). The Commissioner is correct; therefore, we do not give weight to Dr. Gersh’s work opinion. We also note that except for his work opinion, the report contains little, if any, additional evidence not alr eady contained in the record. Therefore, even considering Dr
. Gersh’s report, we find that the ALJ’s decision is supported by substantia l evidence.

In review ing the record as a whole, it does not appear that Flynn’s problems are as limiting or as severe as he alleges, especially when i t comes to activities that interest him. For example, despite a poo r attendance record in high school, Flynn wants to attend art school, Admin. Tr. at 275, an activity that interests him. Flynn also goes to the movies almost every weekend. Id . at 52. He reads the TV Guide to determine when television shows are on that he wants to watch. The record reflects that if motivated, Flynn participates in activities t hat require attendance and punctuality.
For the reasons discussed in this op inion, we affirm the decision of the district court.
A true copy.

Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.