* Effective March 31, 1995, the functions of the Secr etary of Health and

Human Services in social security cases were transf erred to the Commissioner of Social Security. P.L. No. 103-296. The Acting Com missioner has been substituted for the Secretary in the caption; in th e text, however, we continue to refer to the Secretary because she was the appropri ate party at the time of the underlying administrative decision.

** This order and judgment is not binding precedent, e xcept under the doctrines of law of the case, res judicata, and col lateral estoppel.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

### JUN 6 1997 

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

CARL WAGNER,

Plaintiff-Appellant,

v. JOHN J. CALLAHAN, Acting Commissioner, Social Security Administration, *

Defendant-Appellee. No. 96-5198 (D.C. No. 94-CV-58-J) (N.D. Okla.)

ORDER AND JUDGMENT ***** Honorable Michael Burrage, Chief Judge, United Stat es District Court for

the Eastern District of Oklahoma, sitting by design ation. -2- Before PORFILIO and LOGAN, Circuit Judges, and BURRAGE, District Judge. ***

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. 34.1.9. The c ase is therefore ordered submitted without oral argument. Plaintiff Carl J. Wagner appeals from the district court’s order affirming the denial of his application for disability benefi ts for the period of January 15, 1990, to January 15, 1993, by the Secretary of Heal th and Human Services (Secretary). After his claim was denied administratively, a hearing was held before an administrative law judge (ALJ) who deniedbenefits at step four of the five-step sequential evaluation process. See Williams v. Bowen , 844 F.2d 748, 750-51 (10th Cir. 1988) (discussing five steps). T he ALJ concluded that plaintiff could perform his past work as a vice president andsales manager of a wholesale flooring company. The Appeals Council considered a dditional medical evidence and denied review. The parties consented to procee d before a federal magistrate judge, see 28 U.S.C. § 636(c), who affirmed the Secretary’s d ecision.-3-

Plaintiff alleges disability due to pain in his bac k and legs. He asserts that the ALJ and the Appeals Council erred in (1) failin g to consider how pain affected his ability to work, (2) assessing plainti ff’s credibility, (3) determining that he had the residual functional capacity to per form light work, and (4) failing to make the required findings as to the physical de mands of his past work. We review the decision to determine whether the fin dings of fact are supported by substantial evidence based on the enti re record, and to ascertain whether correct legal standards were applied. See Castellano v. Secretary of Health & Human Servs. , 26 F.3d 1027, 1028 (10th Cir. 1994). Substantial evidence is “‘such relevant evidence as a reasonabl e mind might accept as adequate to support a conclusion.’” Soliz v. Chate r , 82 F.3d 373, 375 (10th Cir. 1996) (quoting Richardson v. Perales , 402 U.S. 389, 401 (1971) (further quotation omitted)). Even though plaintiff did not allege that he suffer ed from totally disabling pain, he asserts that the ALJ was required to consi der his significant pain as a nonexertional impairment. We agree. See Thompson v. Sullivan , 987 F.2d 1482, 1490-91 (10th Cir. 1993) (“Pain, even if not disabl ing, is still a nonexertional impairment to be taken into consideration, unless there is substantial evidence for the ALJ to find that the claimant’s pain is insigni ficant.”). The ALJ did consider the effect of plaintiff’s pain on his ability to wo rk, however, concluding that his-4-

pain did not prevent him from performing his past w ork in the flooring business. As the ALJ correctly noted, a finding of disabilityrequires more than the inability to work without pain. See Gossett v. Bowen , 862 F.2d 802, 807 (10th Cir. 1988). Plaintiff alleges that the ALJ’s credibility determ ination is not supported by the evidence. He argues that the medical evidence refutes the ALJ’s determinations that he was able to work from 1988 u ntil he had surgery in January 1990, that the surgery alleviated his pain, and that his medical history indicated that he was not suffering from severe pain; he obje cts to the ALJ’s conclusion that his daily activities were inconsistent with hi s claim of pain. Contrary to plaintiff’s argument, the ALJ did not d etermine that plaintiff’s daily activities were inconsistent with pain. See Thompson , 987 F.2d at 1490 (“ALJ may not rely on minimal daily activities as s ubstantial evidence that a claimant does not suffer disabling pain.”). Rather , the ALJ considered plaintiff’s conflicting statements about his daily activities i n evaluating his credibility. The record contains documentation of plaintiff’s compla ints of pain. But it also supports the ALJ’s finding that plaintiff did not s eek medical attention at various times when he claims he suffered severe pain, and that he benefited from surgery and physical therapy. We cannot reweigh the eviden ce. Hamilton v. Secretary of Health & Human Servs. , 961 F.2d 1495, 1498 (10th Cir. 1992). Accordingl y, we cannot disturb the ALJ’s determinations of credibi lity or evidentiary weight. See-5-

James v. Chater , 96 F.3d 1341, 1342 (10th Cir. 1996) (“Questions o f evidentiary weight and witness credibility are the province of the Secretary, whose judgment on such matters is entitled to considerable deferen ce.”). Plaintiff asserts that the record does not support a finding that he has the residual functional capacity for light work. Becau se the ALJ found that plaintiff could return to his former job in the flooring busi ness, we need only address that issue and not whether there is substantial evidence that plaintiff could perform a full range of light work. Plaintiff had the burden to show that he could not return to his former job or his former type of work. See Andrade v. Secretary of Health
& Human Servs. , 985 F.2d 1045, 1051-52 (10th Cir. 1993). Plaintiff argues that the ALJ failed to ascertain t he physical demands, particularly the lifting and carrying requirements, of his former job, and that this undermined the finding that plaintiff could performhis past work. He submitted a disability report on which he described the physica l demands of his past work, but he left blank the request for information about the lifting and carrying requirements of his work. “The burden is on the cl aimant to show that [his] impairment renders [him] unable to perform [his pas t relevant] work.” Henrie v. United States Dep’t of Health & Human Servs. , 13 F.3d 359, 360 (10th Cir. 1993). Here, unlike Henrie , 13 F.3d at 361, the ALJ had information about the demands of plaintiff’s past job, as well as information about his physical-6-

capabilities. The ALJ found that plaintiff had lim itations on his ability to lift and carry. After review of the record, we are satisfie d that the ALJ made sufficient findings of the physical demands of plaintiff’s pas t work and that substantial evidence supports the ALJ’s determination that plai ntiff could perform such work.
AFFIRMED. Entered for the Court James K. Logan Circuit Judge