* This order and judgment is not binding precedent, e xcept under the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

### APR 5 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

LARRY D. SCARBROUGH,

Plaintiff-Appellant,

v. KENNETH S. APFEL, Commissioner of Social Security Administration,

Defendant-Appellee. No. 98-5099 (D.C. No. 96-CV-440-EA) (N.D. Okla.)

ORDER AND JUDGMENT *

Before BRORBY , EBEL , and LUCERO , 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); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.-2-

Plaintiff Larry D. Scarbrough appeals from an order of the district court affirming the Commissioner’s determination that he is not entitled to benefits. We affirm. We review the Commissioner’s decision to determine whether his factual findings were supported by substantial evidence in light of the entire record and to determine whether he applied the correct legal s tandards. See Castellano v. Secretary of Health & Human Servs. , 26 F.3d 1027, 1028 (10th Cir. 1994). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (quotations omitted). In the course of our review, we may “neither reweigh the evidence no r substitute our judgment for that of the agency.” Casias v. Secretary of Health & Human Servs. , 933 F.2d 799, 800 (10th Cir. 1991). Mr. Scarbrough alleged disability due to back probl ems arising from an on-the-job accident. The administrative law jud ge (ALJ) determined that Mr. Scarbrough was not disabled at step five of the five-step sequential process,

see Williams v. Bowen , 844 F.2d 748, 750-52 (10th Cir. 1988), as he reta ined the residual functional capacity to perform light work. On appeal, Mr. Scarbrough argues that t he ALJfailed to shift the burden to the Commissioner at step five and thus failed to require the Commissioner to prove that Mr. Scarbrough could perform light work. He also contends that the-3-

ALJ relied on an incorrect onset date, failed to co nsider his preexisting neck impairment, ignored the treating physician’s opinio n, and “lumped” all the evidence together rather than considering Mr. Scarb rough’s impairments in distinct periods of time. Finally, he asserts thatthe ALJ’s pain and credibility determinations were not based on substantial eviden ce. We decline to address Mr. Scarbrough’s contention that t he ALJfailed to shift the burden to the Commissioner at step fiv e as he did not raise that argument to the district court. See Crow v. Shalala , 40 F.3d 323, 324 (10th Cir. 1994) . We also decline to address Mr. Scarbrough’s cont entions that the ALJ applied the wrong onset date and “lumped” all the e vidence together. Those arguments also were not raised below. Mr. Scarbrough argues the ALJ ignored his treating physician’s opinion regarding his disability status. The record shows that Mr. Scarbrough’s treating physician, Dr. Vosburg, did not see Mr. Scarbrough after his laminectomy nor did he opine that Mr. Scarbrough was disabled from all work. We issued a show cause order to counsel regarding whether sanctions should be imposed due to counsels’ misstatements of the facts. Upon conside ration of counsels’ response, the order is discharged. However, counsel are caut ioned about misstating the facts in briefs to this court and drawing unwarrant ed conclusions from the facts in an effort to benefit their client. Advocacy fortheir client must be tempered by-4-

counsels’ responsibilities as officers of this court. Sanctions may be imposed for future violations. Mr. Scarbrough contends the ALJ failed to consider the impact of his neck impairment. Mr. Scarbrough broke his neck in 1983. He later returned to heavy labor and performed that work until 1990 when he fi rst injured his back. In 1991, a physician noted that Mr. Scarbrough had no evidence of degenerative disc disease or arthritis of the neck. As he prese nted no evidence that his neck injuries had worsened since he last performed heavylabor, the ALJ had no need to consider whether Mr. Scarbrough’s neck injury wa s disabling. Mr. Scarbrough asserts the ALJ erred in his credibi lity assessment and thereby erred in his pain determination and in the hypothetical he presented to the vocational expert

. “Credibility determinations are peculiarly the pr ovince of the finder of fact, and we will not upset such determin ations when supported by substantial evidence.” Diaz v. Secretary of Health& Human Servs. , 898 F.2d 774, 777 (10th Cir. 1990). The record shows that Mr. Scarbrough made excellentprogress after his laminectomy in 1993. The record supports the ALJ’s determination that Mr. Scarbrough’s complaints of pain were not fully credible. See Kepler v. Chater , 68 F.3d 387, 391 (10th Cir. 1995) (ALJ should con sider extensiveness of-5-

medical and nonmedical attempts to obtain relief an d frequency of medical contacts in assessing credibility). As the ALJ found Mr. Scarbrough’s testimony on the extent of his limitations was neither completely credible nor sup ported by substantial evidence, he was not required to accept all his testimony as to his physical limitations in his hypothetical. See Evans v. Chater , 55 F.3d 530, 532 (10th Cir. 1995) (ALJ’s hypothetical questions to vocational expert “must i nclude all (and only) those impairments borne out by the evidentiary record”). Upon review of the record, we determine that the AL J’s decision was supported by substantial evidence and no error occu rred. The judgment of the United States District Court for the Northern D istrict of Oklahoma is AFFIRMED. The show cause order of March 18, 1999 i s DISCHARGED.

Entered for the Court

Wade Brorby Circuit Judge