* Pursuant to Fed. R. App. P. 43(c), Kenneth S. Apfel is substituted for

John J. Callahan, former Acting Commissioner of Soc ial Security, as the defendant in this action.

** This order and judgment is not binding precedent, e xcept under the doctrines of law of the case, res judicata, and col lateral estoppel.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

*** The Honorable J. Thomas Marten, District Judge, Uni ted States District Court for the District of Kansas, sitting by design ation. 

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

### DEC 4 1997 

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

EDDIE M. PITTSER,

Plaintiff-Appellant,

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

Defendant-Appellee. No. 97-5027 (D.C. No. 95-CV-402) (N.D. Okla.)

ORDER AND JUDGMENT **

Before PORFILIO and LUCERO, Circuit Judges, and MARTEN, *** District Judge.-2-

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. Plaintiff-appellant Eddie M. Pittser appeals the Co mmissioner’s denial of his application for social security disability bene fits. Because we find the decision of the Administrative Law Judge (ALJ) to b e supported by substantial evidence, and that the law was correctly applied, w e affirm. Plaintiff contends he is disabled because of back p ain stemming from an on-the-job injury to his back in 1987. Plaintiff h as since undergone three surgical procedures in an attempt to alleviate his pain, the last of these surgeries occurring in March 1992. After a hearing, the ALJ determinedplaintiff was disabled from April 1, 1987 through May 17, 1993, but not thereaf ter. He concluded, at step five of the sequential evaluation process, see Williams v. Bowen , 844 F.2d 748, 751 (10th Cir. 1988), that “there do exist occupati ons in the regional economy in significant numbers that claimant can perform regar dless of claimant’s impairments,” Appellant’s App. Vol. II at 26, thus precluding a finding of disability. “This court reviews the [Commissioner’s] decision t o determine only whether his findings are supported by substantial e vidence and whether the-3-

[Commissioner] applied correct legal standards . . . .” Hargis v. Sullivan , 945 F.2d 1482, 1486 (10th Cir. 1991). “Substantial evi dence is such relevant evidence as a reasonable mind might accept as adequ ate to support a conclusion.” Id. We will not reweigh the evidence or substitute ou r judgment for that of the Commissioner. See id. “Disability” is defined in the Social Security Act as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . .” 42 U.S.C. § 423(d)(1)(A). “An individual shall be determined to be under a disability only i f his physical or mental impairment or impairments are of such severity thathe is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy . . . .” Id. , § 423(d)(2)(A). Plaintiff argues mainly that the ALJ, in determinin g plaintiff was not disabled, erred in failing to consider the fact that he cannot sit for more than thirty minutes at a time. Other than plaintiff’s t estimony, however, there is no evidence in the record of his inability to sit. Pl aintiff’s statements of pain alone cannot be conclusive evidence of disability. See id. , § 423(d)(5)(A). Because back injury could reasonably be expected to produce some pain, the ALJ was required to consider all relevant evide nce when evaluating plaintiff’s1 This explanation adequately supports the ALJ’s cred ibility determination as

required by Kepler v. Chater , 68 F.3d 387, 391 (10th Cir. 1995). -4- allegation of disabling pain. See Luna v. Bowen , 834 F.2d 161, 164 (10th Cir. 1987). Contrary to plaintiff’s view, however, we f ind the ALJ properly considered the relevant evidence in this case. In concluding plaintiff’s allegation of disabling p ain was not fully credible, the ALJ noted: the primary reasons that I find claimant’s allegati ons not to be fully credible are, but not limited to, the lack of objec tive findings by claimant’s treating physicians, the lack of objecti ve findings by examining physicians, the lack of medication for se vere pain, the lack of frequent treatments for pain, the lack of d iscomfort shown by claimant at the hearing. Appellant’s App. Vol. II at 23. 1 While we agree with plaintiff that, under the circu mstances of this case, plaintiff’s lack of medication for severe pain and lack of frequent treatments for pain may not be as dispositive as in the typical ca se, the lack of objective findings from plaintiff’s physicians regarding any inabilityto sit is determinative. Indeed, the opinion of plaintiff’s treating physician that plaintiff could benefit from vocational rehabilitation and the indications on th e residual functional capacity forms that plaintiff can sit for six out of eight h ours undermines plaintiff’s attempt to establish disability because of an inabi lity to sit.-5-

After having thoroughly studied the record, we identify the following evidence from the record as substantial support forthe ALJ’s determination: Eight months after plaintiff’s last surgery, plaint iff’s treating physician noted: [Plaintiff] no longer has any shooting pain into hi s legs but continues to have pain of [sic] his back which is aggravated by walking or standing for long periods of time. Weather changes also aggravates [sic] his pain and in general the pain is a throbbi ng type of pain with episodes of sharper symptoms. Id. at 238. After noting that, despite the two broken screws inhis back, plaintiff’s last surgical procedure may well have resulted in “a sol id union,” the doctor went on
to state: With respect to his future work capability, I do no t feel he will ever get back to that activity requiring manual work and would favor vocational rehabilitation in order to allow him to get into an occupation which he can do without manual stress to his back. Id. We note that, while the doctor believed plaintiff to be bothered by walking or standing for long periods, no mention is made o f any limitation on sitting. Further, the treating physician’s opinion that plai ntiff would benefit from vocational rehabilitation is inconsistent with plai ntiff’s claim that he is unable to sit for more than thirty minutes and undermines his effort to prove his disability on this basis. One year after his last surgery, plaintiff’s treati ng physician reported that:-6-

[Plaintiff] has known fracture of the screws bilate rally at the sacrum and a pseudarthrosis [sic] of the lumbosacral fusio n. He has intermittent throbbing back pain which is aggravate d by bending, stooping, standing. He also has occasional radiati on down the posterior thighs to the knees but not distal to the knees. He is not able to work at manual labor as a consequence of th e fact that any time he stretches his back his pain is markedly agg ravated.

. . . . His x-rays today demonstrate what I feel is a solidfusion at the L4-5 level but a persistent pseudarthrosis [sic] at the lumbosacral level. There are no other screws which are fractured.
. . . I do not feel he will ever be able to get bac k to an occupation which requires manual stress to his back; therefore , I have recommended vocational rehabilitational training to allow him to get into an occupation that does not apply stress to hi s back. Id. at 236. Two months later, the doctor was of the s ame opinion regarding plaintiff’s occupational prospects. After reportin g that plaintiff had stated his back pain was aggravated “by standing or sitting fo r any period of time and he is unable to work at any type of manual occupation as a consequence of his occupation [sic],” the doctor observed: I still feel the patient is unable to be involved i n any type of manual labor, stressing his back, and therefore recommend vocational rehabilitation training in order to allow him to ge t into an occupation that does not apply stress to his back. He does have a pseudoarthrosis at the LS level.

. . . . . . . I feel he should be involved in vocational re habilitation training.-7-

Id. At 235. An RFC assessment was completed in June 1993 by a c onsulting physician. That doctor was of the opinion plaintiff could sit for about six hours in an eighthour workday, see id. at 90, and pain did not further limit his exertion al limitation, see id. at 91. After reviewing all the evidence in the fi le, the same assessment was affirmed by a second consultative physician in August 1993. See id. at 96. We view this evidence as sufficiently substantial t o support the decision of the ALJ to deny disability benefits to plaintiff. While it is clear plaintiff’s condition worsens with bending, stooping, or standi ng, the only reference to a problem with sitting is the doctor’s repetition of plaintiff’s own statement. The fact that plaintiff’s treating physician repeatedlydeclared plaintiff to be a good candidate for vocational rehabilitation is substant ial evidence he is not totally disabled. While we acknowledge the near certainty that plaintiff suffers back pain even while sitting, an inability to work pain- free is not sufficient reason to find plaintiff disabled. See Gossett v. Bowen , 862 F.2d 802, 807 (10th Cir. 1988). As for plaintiff’s other arguments, we do not agree that the ALJ improperly relied on the Medical-Vocational Guidelines or pose d an improper hypothetical to the vocational expert. The ALJ did not rely solelyon the guidelines in arriving at-8-

his decision but considered all relevant evidence, including the testimony of a vocational expert. See Trimiar v. Sullivan , 966 F.2d 1326, 1332-33 (10th Cir. 1992) (explaining role of grids in cases with nonex ertional impairments). Further, because the ALJ found plaintiff’s allegati on of inability to sit was not supported by substantial evidence, he was under no obligation to include that alleged impairment in the hypothetical. See Jordan v. Heckler , 835 F.2d 1314, 1316 (10th Cir. 1987). Even if the ALJ had include d claimant’s unsupported complaint in the hypothetical, the vocational expert’s opinion based on this hypothetical would not be binding on the ALJ. See Talley v. Sullivan , 908 F.2d 585, 588 (10th Cir. 1990) (vocational expert’s opin ion based on unsubstantiated impairments in hypothetical not binding on ALJ). Finally, plaintiff incorrectly argues that, after t he ALJ found a closed period of disability, the burden should have shifte d to the Commissioner to prove plaintiff’s disability had ceased. While the Commi ssioner must consider medical improvement in a true termination case, see Richardson v. Bowen , 807 F.2d 444, 445 (5th Cir. 1987), this is not a termination case , see Camp v. Heckler , 780 F.2d 721, 721-22 (8th Cir. 1986). Plaintiff cites no law to support his argument; the burden to prove disability rested at all times withplaintiff.-9-

The judgment of the United States District Court fo r the Northern District of Oklahoma is AFFIRMED.

Entered for the Court

J. Thomas Marten District Judge