                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                  December 21, 2010
                     UNITED STATES COURT OF APPEALS
                                                                 Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                    Clerk of Court



    GEORGE V. WILSON,

                Plaintiff-Appellant,

    v.                                                  No. 10-5036
                                              (D.C. No. 4:08-CV-00643-FHM)
    MICHAEL J. ASTRUE, Commissioner                     (N.D. Okla.)
    of the Social Security Administration,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before TYMKOVICH, Circuit Judge, PORFILIO, Senior Circuit Judge, and
GORSUCH, Circuit Judge.


         The administrative law judge (ALJ) denied George Wilson’s application for

disability benefits and supplemental security income payments. After the ALJ’s

decision became the final agency decision and the district court affirmed,

Mr. Wilson appealed to this court. Exercising jurisdiction under 42 U.S.C.

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


*
       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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      To obtain benefits under the Social Security Act, Mr. Wilson must establish

that he is “disabled” as that term is defined for social security purposes. See

20 C.F.R. §§ 404.1501, 416.901; 42 U.S.C. § 423(d)(1)(A). After holding a

hearing, the ALJ determined at step five of the sequential evaluation process, see

20 C.F.R. § 404.1520(a)(4); Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009),

that Mr. Wilson was not disabled even though he suffered from a number of

severe mental impairments. The ALJ acknowledged that Mr. Wilson also suffers

from obesity and hypertension, and that he was hospitalized briefly in 2005 with

complaints of chest pain. But the ALJ held that this evidence did not support a

finding of any severely limiting exertional impairment.

      The majority of the ALJ’s opinion was devoted to Mr. Wilson’s mental

capacity. The ALJ concluded that he suffered from several unlisted impairments, 1

including borderline intellectual functioning and mood and affective disorders.

But despite these impairments, the ALJ assessed his residual functional capacity

(RFC) as the ability “to perform a full range [of] routine repetitive work related

functions, and some more complex job tasks, under routine instruction.” Aplt.

App. Vol. 2 at 33. The ALJ characterized the work that Mr. Wilson can perform

as “unskilled and low skilled work dealing primarily with objects rather than with

data or people.” Id. With the assistance of a vocational expert (VE), the ALJ

determined that, while Mr. Wilson was not able to return to his past relevant

1
      See Listing of Impairments, 20 C.F.R. Pt. 404, Subpt. P, App’x 1.

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work, his RFC would allow him to perform other work that exists in significant

numbers in the national economy. Consequently, the ALJ concluded that he was

not disabled and not entitled to benefits.

      The Appeals Council denied review, making the ALJ’s decision the final

agency decision. Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir. 2003). The

district court, with the magistrate judge presiding by designation pursuant to

28 U.S.C. §§ 636(c)(1), affirmed in a thorough decision. On appeal Mr. Wilson

argues that the ALJ failed to properly weigh the medical evidence and, as a result,

erroneously concluded that his mental impairments did not meet listings 12.04

and 12.05, which delineate disabling affective disorders and mental retardation.

In addition, he challenges the hypothetical question that the ALJ posed to the VE

because it did not include any exertional limitations. He also complains about the

ALJ’s credibility determination and claims his due process rights were violated by

the ALJ’s reliance on medical sources outside of the administrative record, such

as the DSM-IV.

      “We review the [Commissioner’s] decision to determine whether the factual

findings are supported by substantial evidence in the record and whether the

correct legal standards were applied.” Salazar v. Barnhart, 468 F.3d 615, 621

(10th Cir. 2006) (quotation omitted). “Because our review is based on the record

taken as a whole, we will meticulously examine the record in order to determine

if the evidence supporting the agency’s decision is substantial, but we neither

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reweigh the evidence nor substitute our discretion for that of the Commissioner.”

Id. (alteration and quotations omitted). With regard to credibility determinations,

“[w]e have emphasized that [they] are peculiarly the province of the finder of

fact, and should not be upset if supported by substantial evidence.” White v.

Barnhart, 287 F.3d 903, 909 (10th Cir. 2002) (quotation omitted). Having

applied these standards of review, we affirm for substantially the reasons stated

by the magistrate judge in his decision dated January 14, 2010.

      The judgment of the district court is AFFIRMED.


                                                    Entered for the Court



                                                    Neil M. Gorsuch
                                                    Circuit Judge




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