* This order and judgment is not binding precedent, e xcept under the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

### 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, 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.1 In its memorandum and order remanding the case, the district court

concluded that the ALJ’s finding that Mr. Killian h ad engaged in gainful activity between May 30, 1991, and April 30, 1992, was not b ased 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 returnto 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 applicat ion for social security disability and supplemental security income (SSI) b enefits. The district court concluded substantial evidence supported the admini strative law judge’s (ALJ) finding that Mr. Killian was not disabled within th e meaning of the Social Security Act because, despite his limitations, he w as still able to perform work within the national economy. We affirm.

I. In 1993, Mr. Killian filed his applications allegin g disability beginning May 30, 1991, due to an injury to his left shoulderand vision problems in his right eye. The applications were denied initially and on reconsideration. After a hearing in 1995, the ALJ denied benefits, findingMr. Killian was not disabled because he was able to perform his past relevant wo rk as a quality control tester and lab worker. The Appeals Council denied Mr. Kil lian’s request for review. On appeal, however, the district court remanded Mr. Killian’s action to the Commissioner for further proceedings. 11 (...continued)

the district court concluded that many of the reaso ns the ALJ gave for rejecting Mr. Killian’s allegations of subjective pain were e ither not supported by substantial evidence or not relevant.

2 Reflex sympathetic dystrophy is defined by “a serie s of changes caused by the sympathetic nervous system, marked by pallor orrubor, pain, sweating, edema, or osteoporosis, following muscle sprain, bo ne fracture, or injury to nerves or blood vessels.” Dorland’s Illustrated Me dical Dictionary 560 (29th Ed. 2000). Pronator teres syndrome is defined as “an e ntrapment 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 th e 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 treati ng 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. Kill ian suffered from reflex sympathetic dystrophy of the upper left extremity with mild pronator teres, 2and 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 nati onal 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 d isability at step one through four of that process is on the claimant, the burdenshifts to the Commissioner at step five to show that the claimant retains suffici ent 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 d etermine 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). “Substanti al evidence is such relevant evidence as a reasonable mind might a ccept 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 e vidence 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 af ter 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 resulti ng from his shoulder injury in 1991. Despite Mr. Killian’s complaints of unbearab le physical pain, the record reveals little, if any objective medical evidence s upporting the existence of disabling pain before 1995, and no objective eviden ce substantiating disabling pain between January 1995 and the date of the ALJ’s decision. Applying the appropriate legal standard for evaluating Mr. Killi an’s subjective complaints of severe pain, the ALJ found those complaints not cre dible. The ALJ considered several factors that were relevant to Mr. Killian’s credibility and made detailed findings that were affirmatively linked to substant ial 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 whe n supported by substantial evidence.”) (quotation omitted). Contrary to Mr. K illian’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 ultimat ely adopted the relevant and-6-

acceptable medical source conclusions in the findin gs. The ALJ used all of the credible evidence of record, including the objectiv e medical evidence, to accurately assess Mr. Killian’s RFC and to form the basis of a hypothetical question posed to the vocational expert that proper ly 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 fo r the District of Kansas is AFFIRMED.

Entered for the Court

John C. Porfilio Circuit Judge