* John J. Callahan, Acting Commissioner of the Social Security

Adminstration, is substituted for the former commis sioner, Shirley S. Chater. See Fed. R. App. P. 43(c).

** This order and judgment is not binding precedent, e xcept under the doctrines of law of the case, res judicata, and col lateral estoppel.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

### 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, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. Th e case is therefore ordered submitted without oral argument.-2-

Plaintiff appeals the district court’s affirmance o f the Commissioner’s denial of supplemental security income benefits. P laintiff asserted that she had been disabled, since January 1, 1994, due to her mi ld 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 exerti onal levels, and that such work existed in significant numbers in the national econ omy. The Appeals Council denied review, making the ALJ’s determination the f inal decision of the Commissioner. This court reviews the Commissioner’s decision onlyto 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 bu rden 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 st ep three, in determining that plaintiff did not meet the listing for disabil ity 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 notcontain substantial evidence that plaintiff could perform a significant number o f 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 de nial of benefits. Section 12.05(C) requires that a claimant establishthat 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 plaint iff meets the first prong of § 12.05(C), the ALJ found that plaintiff d oes 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 findi ng. The record also contains substantial evidence suppo rting the ALJ’s determination that plaintiff remains capable of per forming unskilled work at all exertional levels. Further, the hypothetical quest ion posed to the vocational expert (VE), eliciting the testimony upon which the ALJ relied to deny benefits, accurately included all of the impairments from whi ch 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 fo r the Eastern District of Oklahoma is, therefore, AFFIRMED.

Entered for the Court

Stephen H. Anderson Circuit Judge