* This order and judgment is not binding precedent, except under the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. 

F I L E D

United States Court of Appeals

Tenth Circuit

AUG 5 2002

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

ROGER D. KILLIAN,

Plaintiff - Appellant,

v.

JO ANNE B. BARNHART,

Commissioner of Social Security,

Defendant - Appellee.

No. 01-3385

(D.C. No. 99-CV-4044-SAC)

(D. Kansas)

ORDER AND JUDGMENT *

Before SEYMOUR , PORFILIO , and O’BRIEN , 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.
1

In its memorandum and order remanding the case, the district court

concluded that the ALJ’s finding that Mr. Killian had engaged in gainful activity

between May 30, 1991, and April 30, 1992, was not based on substantial evidence

and that this finding likely had an impact on the ALJ’s decisions concerning

Mr. Killian’s credibility and his ability to return to his past relevant work. Also,

(continued...)

-2-

Claimant Roger D. Killian appeals from the order of the district court

affirming the Commissioner’s denial of his application for social security

disability and supplemental security income (SSI) benefits. The district court

concluded substantial evidence supported the administrative law judge’s (ALJ)

finding that Mr. Killian was not disabled within the meaning of the Social

Security Act because, despite his limitations, he was still able to perform work

within the national economy. We affirm.

I.

In 1993, Mr. Killian filed his applications alleging disability beginning

May 30, 1991, due to an injury to his left shoulder and vision problems in his

right eye. The applications were denied initially and on reconsideration. After

a hearing in 1995, the ALJ denied benefits, finding Mr. Killian was not disabled

because he was able to perform his past relevant work as a quality control tester

and lab worker. The Appeals Council denied Mr. Killian’s request for review. 

On appeal, however, the district court remanded Mr. Killian’s action to the

Commissioner for further proceedings. 1
1

(...continued)

the district court concluded that many of the reasons the ALJ gave for rejecting

Mr. Killian’s allegations of subjective pain were either not supported by

substantial evidence or not relevant.

2 Reflex sympathetic dystrophy is defined by “a series of changes caused by

the sympathetic nervous system, marked by pallor or rubor, pain, sweating,

edema, or osteoporosis, following muscle sprain, bone fracture, or injury to

nerves or blood vessels.” Dorland’s Illustrated Medical Dictionary 560 (29th Ed.

2000). Pronator teres syndrome is defined as “an entrapment neuropathy in which

the median nerve . . . is compressed . . . causing pain in the forearm and weakness

or sensory deficits in the radial aspect of the hand.” Id. at 1765.

-3-

Following a second administrative hearing in 1998, a new ALJ issued his

decision denying benefits, which was affirmed by the Appeals Council and the

district court. Mr. Killian has appealed, alleging that the ALJ (1) failed to

properly evaluate Mr. Killian’s credibility and subjective complaints of pain;

(2) improperly evaluated the weight given to treating and examining sources;

and (3) erred in his Residual Functional Capacity (RFC) determination and

adopted hypothetical posed to the vocational expert.

II.

In the second decision, the ALJ found that Mr. Killian suffered from reflex

sympathetic dystrophy of the upper left extremity with mild pronator teres, 2

 and

that his impairments prevented him from performing his past relevant work as

a machine packager, warehouse clerk, production worker, forklift driver, and

warehouse supervisor. The ALJ concluded, however, that despite his limitations,
-4-

Mr. Killian was capable of making an adjustment to work at a number of

sedentary and unskilled jobs that exist in the national economy. Thus, the ALJ

found Mr. Killian not disabled at step five of the Commissioner’s five-step

process for determining disability. See 20 C.F.R. §§ 404.1520(f), 416.920(f). 

While the burden of proving a prima facie case of disability at step one through

four of that process is on the claimant, the burden shifts to the Commissioner at

step five to show that the claimant retains sufficient RFC to perform work in the

national economy, given his age, education, and work experience. See Williams v.

Bowen , 844 F.2d 748, 751 (10th Cir. 1988).

This court reviews the Commissioner’s decision to determine only whether

the relevant findings are supported by substantial evidence in light of the entire

record, and whether the Commissioner applied the correct legal standards. Hargis

v. Sullivan , 945 F.2d 1482, 1486 (10th Cir. 1991). “Substantial evidence is

such relevant evidence as a reasonable mind might accept as adequate to support

a conclusion.” Id. “Evidence is insubstantial if it is overwhelmingly contradicted

by other evidence.” O’Dell v. Shalala , 44 F.3d 855, 858 (10th Cir. 1994). In the

course of our review, we may “neither reweigh the evidence nor substitute our

judgment for that of the [Commissioner].” Casias v. Sec’y of Health & Human

Servs. , 933 F.2d 799, 800 (10th Cir. 1991).
-5-

III.

In light of these governing legal standards, and after careful review of

the record in this case, we conclude that the ALJ’s decision is supported by

substantial evidence. As the ALJ found, Mr. Killian’s medical records

demonstrate limiting but not disabling pain resulting from his shoulder injury in

1991. Despite Mr. Killian’s complaints of unbearable physical pain, the record

reveals little, if any objective medical evidence supporting the existence of

disabling pain before 1995, and no objective evidence substantiating disabling

pain between January 1995 and the date of the ALJ’s decision. Applying the

appropriate legal standard for evaluating Mr. Killian’s subjective complaints of

severe pain, the ALJ found those complaints not credible. The ALJ considered

several factors that were relevant to Mr. Killian’s credibility and made detailed

findings that were affirmatively linked to substantial evidence. We will not upset

those findings now on appeal. See Kepler v. Chater , 68 F.3d 387, 391 (10th Cir.

1995) (“Credibility determinations are peculiarly the province of the finder of

fact, and we will not upset such determinations when supported by substantial

evidence.”) (quotation omitted). Contrary to Mr. Killian’s assertion that the ALJ

rejected findings and opinions of his treating and examining sources, our review

of the record convinces us that the ALJ considered and accurately summarized the

medical evidence in Mr. Killian’s case, and ultimately adopted the relevant and
-6-

acceptable medical source conclusions in the findings. The ALJ used all of the

credible evidence of record, including the objective medical evidence, to

accurately assess Mr. Killian’s RFC and to form the basis of a hypothetical

question posed to the vocational expert that properly reflected only those

limitations supported by the record. See 20 C.F.R. §§ 404.1545, 416.945; see

also Kepler, 68 F.3d at 392.

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

is AFFIRMED.

Entered for the Court

John C. Porfilio

Circuit Judge