                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                                                                         JAN 27 2000
                     UNITED STATES COURT OF APPEALS
                                                                    PATRICK FISHER
                            FOR THE TENTH CIRCUIT                             Clerk



    ELIZABETH G. DABBS,

                Plaintiff-Appellant,

    v.                                                   No. 99-2117
                                                (D.C. No. CIV 98-414 BB/DJS)
    KENNETH S. APFEL,                                     (D. N.M.)
    COMMISSIONER of SOCIAL
    SECURITY; DEPARTMENT OF
    HEALTH AND HUMAN SERVICES,

                Defendants-Appellees.


                            ORDER AND JUDGMENT            *




Before EBEL , KELLY , and BRISCOE , 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); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.



*
      This order and judgment is not binding precedent, except under the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.
       Claimant Elizabeth G. Dabbs appeals from        the district court’s order

affirming the decision of the Commissioner of Social Security. In that decision,

the Commissioner denied claimant’s applications for disability insurance benefits

and supplemental security income benefits made under Titles II and XVI of the

Social Security Act. See 42 U.S.C. §§ 423, 1382. We exercise jurisdiction under

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

       Claimant asserts that she has been disabled since December 10, 1992,         1



because of lupus-like syndrome, chronic fatigue, arthritis, myalgia, and memory

and cognitive problems. She has a degree in architecture and a juris doctorate.

Her past work includes working as an attorney, law clerk, architectural plan

reviewer, plumber’s helper, and convenience store clerk. After a hearing held in

August 1995, the administrative law judge (ALJ) found that claimant has a

personality disorder, dizziness, some fatigue and cognitive thinking problems of

an unknown etiology, and lower back pain that all caused significant vocationally

relevant limitations but that did not meet a listed impairment.      See Appellant’s

App., Vol. II at 17-18. He further found that these limitations prevented claimant



1
       It is difficult to determine when claimant asserts she became disabled.
She has listed the date from which she was no longer able to work as some time in
1991, see Appellant’s App., Vol. II at 32; June 1, 1992,   see id. at 35;
December 10, 1992, see id. at 81; October 1991, see id. at 85; and early 1992,
see id. at 100. After claimant testified at the hearing, the ALJ understood that
her asserted disability began on or about June 2, 1992.    See id. at 16.

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from performing her past relevant work.       See id. at 17. The ALJ found claimant’s

subjective complaints and her testimony about “their impact on her ability to work

[to be] not entirely credible in light of the degree of medical treatment required,

discrepancies between the claimant’s assertions and information contained in the

documentary reports, the reports of the treating and examining practitioners, the

findings made on examination and the medical history.”          Id. at 18. He also based

his credibility finding on claimant’s appearance and performance at the hearing,

on the statements of two psychological examiners who believed that she may tend

to overstate her memory recall and other cognitive problems, and on the fact that

she had been able to function well as a law student and attorney while suffering

with most if not all of her symptoms.      See id. at 18-19. The ALJ noted that

claimant had been able to prepare a letter contesting the medical conclusions of a

psychological examiner that demonstrated her clarity of thought and syntax, thus

indicating that claimant retained greater cognitive abilities than she alleged.     See

id. at 19.

       At step five of the sequential evaluation,    see generally Williams v. Bowen ,

844 F.2d 748, 750-52 (10th Cir. 1988), the ALJ determined that claimant has the

residual functional capacity (RFC) to perform light work, reduced by an inability

to stand or walk for long periods without intermittent resting or to use foot

pedals. See Appellant’s App., Vol. II at 19. He also concluded that claimant’s


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ability to do light work was diminished by significant nonexertional limitations

that made it impossible for her to engage in complex thought processes on a

sustained basis, climb in hazardous places, or be around hazardous machinery.

See id. He found that claimant’s ability to understand, remember, and carry out

detailed instructions, to maintain concentration for extended periods, and to

perform at a consistent pace without an unreasonable number and length of rest

periods were moderately limited.     See id. at 354.

      The ALJ elicited vocational expert testimony as to the jobs claimant could

do in the national economy given these limitations. The vocational expert opined

that claimant could perform unskilled work as a parking lot attendant and jewelry

assembly worker.    See id. at 354-55. The ALJ concluded that claimant is not

disabled within the meaning of the Social Security Act because she is able to

make an adjustment to other work that exists in significant numbers in the

national economy.   See id. at 17.

      On review of the Commissioner’s decision, the district court adopted the

magistrate judge’s analysis and recommended disposition. Claimant raised four

issues: (1) whether the ALJ’s finding that claimant’s impairments did not meet

a listing was supported by substantial evidence; (2) whether the ALJ’s RFC

determination is based on substantial evidence because the ALJ failed to give the

vocational expert hypothetical questions based upon claimant’s actual abilities


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and limitations; (3) whether the ALJ’s credibility findings are supported by

substantial evidence; and (4) whether the ALJ erred as a matter of law by failing

to accord weight to claimant’s receipt of general assistance benefits from the

State of New Mexico. The proposed analysis and disposition thoroughly reviewed

the medical record and determined that the ALJ’s findings and conclusions were

supported by substantial evidence.     See Appellant’s App., Vol. I at 50-55. The

court also determined that the ALJ did not err in failing to consider the state’s

disability finding because claimant had not submitted any evidence regarding that

finding (except for the fact of receipt of benefits) and because the record is clear

that claimant is not disabled within the meaning of the Social Security Act.     See

id. at 56. Our review is limited to determining whether the ALJ’s decision is

supported by substantial evidence on the whole record and comports with relevant

legal standards.   See Casias v. Secretary of Health & Human Servs.      , 933 F.2d

799, 800-01 (10th Cir. 1991).

       We have carefully reviewed the entire record, the parties’ arguments, and

the relevant law. For substantially the same reasons as set forth in the magistrate

judge’s analysis and recommended disposition adopted by the district court on

February 19, 1999, we conclude that the Commissioner’s decision is supported by




                                            -5-
substantial evidence on the whole record and comports with the relevant legal

standards.

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

New Mexico is AFFIRMED.



                                                   Entered for the Court



                                                   Paul J. Kelly, Jr.
                                                   Circuit Judge




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