*

John J. Callahan, Acting Commissioner of the Social Security

Adminstration, is substituted for the former commissioner, Shirley S. Chater. See

Fed. R. App. P. 43(c). 

** This order and judgment is not binding precedent, except under the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

JUL 1 1997

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

MABLE DIANNE TROBAUGH,

Plaintiff-Appellant,

v.

JOHN J. CALLAHAN, Acting

Commissioner of Social Security,*

Defendant-Appellee.

No. 96-7117

(D.C. No. 95-CV-527-S)

(E.D. Okla.)

ORDER AND JUDGMENT**

Before ANDERSON, LOGAN, and EBEL, 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

argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is

therefore ordered submitted without oral argument.
-2-

Plaintiff appeals the district court’s affirmance of the Commissioner’s

denial of supplemental security income benefits. Plaintiff asserted that she had

been disabled, since January 1, 1994, due to her mild mental retardation, in

addition to chronic vertigo, hypertension, anxiety, and chest pain caused by a

hiatal hernia. The administrative law judge (ALJ) determined, at step five of the

applicable five-step analysis, see 20 C.F.R. § 416.920, that plaintiff remained

capable of performing unskilled work, at all exertional levels, and that such work

existed in significant numbers in the national economy. The Appeals Council

denied review, making the ALJ’s determination the final decision of the

Commissioner.

This court reviews the Commissioner’s decision only to insure that the

record contains substantial evidence supporting his factual findings and that he

applied the law correctly. See Bean v. Chater, 77 F.3d 1210, 1213 (10th Cir.

1995). At step five, the Commissioner bears the burden of establishing that there

is work existing in the national economy that plaintiff remains capable of

performing. See Saleem v. Chater, 86 F.3d 176, 178 (10th Cir. 1996).

On appeal, plaintiff argues 1) the ALJ erred, at step three, in determining

that plaintiff did not meet the listing for disability due to mental retardation, see

20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05(C); 2) the record does not contain

substantial evidence to support the ALJ’s determination that plaintiff could
-3-

perform unskilled work; and, 3) the record does not contain substantial evidence

that plaintiff could perform a significant number of jobs existing in the national

economy because the vocational expert’s testimony, upon which the ALJ relied,

was based on an inaccurate hypothetical question. Upon consideration of the

record and the parties’ arguments, we affirm the denial of benefits.

Section 12.05(C) requires that a claimant establish that she has an IQ 

between 60 and 70, and “a physical or other mental impairment imposing

additional and significant work-related limitations of function.” See also Ellison

v. Sullivan, 929 F.2d 534, 536 (10th Cir. 1990). While plaintiff meets the first

prong of § 12.05(C), the ALJ found that plaintiff does not “have any restriction in

her daily activity secondary to a physical . . . impairment.” II Appellant’s App. at

13; see, e.g., Warren v. Shalala, 29 F.3d 1287, 1290-91 (8th Cir. 1994) (for

purposes of § 12.05(C), a significant limitation is one that has more than a slight

or minimal effect on claimant’s ability to perform basic work). The record

contains substantial evidence supporting this finding. 

The record also contains substantial evidence supporting the ALJ’s

determination that plaintiff remains capable of performing unskilled work at all

exertional levels. Further, the hypothetical question posed to the vocational

expert (VE), eliciting the testimony upon which the ALJ relied to deny benefits,

accurately included all of the impairments from which the ALJ found plaintiff
-4-

suffered. The VE’s testimony, therefore, provided substantial evidence

supporting the ALJ’s denial of benefits. See, e.g., Decker v. Chater, 86 F.3d 953,

955 (10th Cir. 1996). 

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

Oklahoma is, therefore, AFFIRMED.

Entered for the Court

Stephen H. Anderson

Circuit Judge