* On March 29, 2001, Larry G. Massanari became the Ac ting Commissioner

of Social Security. In accordance with Rule 43(c)( 2) of the Federal Rules of Appellate Procedure, Mr. Massanari is substituted f or Kenneth S. Apfel as the appellee 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** This order and judgment is not binding precedent, e xcept under the doctrines of law of the case, res judicata, and col lateral estoppel.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. 

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

### AUG 30 2001 

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

ROBERT ROTUNNO,

Plaintiff-Appellant,

v. LARRY G. MASSANARI, * Acting Commissioner of the Social Security Administration ,

Defendant-Appellee. No. 00-2373 (D.C. No. CIV-99-1011-MV/LCS)

(D. N.M.)

ORDER AND JUDGMENT **

Before TACHA , Chief Judge, BALDOCK , Circuit Judge, and BRORBY , Senior Circuit 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-2-

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. Robert Rotunno appeals from the district court’s ju dgment affirming the Commissioner’s decision denying Mr. Rotunno’s appli cation for Social Security disability insurance benefits. Like the district c ourt, we review the Commissioner’s decision to determine whether his fa ctual findings are supported by substantial evidence and whether he applied the correct legal standards. Castellano v. Secretary of Health & Human Servs. , 26 F.3d 1027, 1028 (10th Cir. 1994). For the reasons explained below, we affirm. Mr. Rotunno applied for benefits in January 1995 al leging that he became disabled in October 1985 due to injuries to his rig ht shoulder, right knee and back. His insured status expired in March 1987, so he had to show that he was totally disabled prior to that date. See Henrie v. United States Dep’t of Health &
Human Servs. , 13 F.3d 359, 360 (10th Cir. 1993). In May 1996, an administrative law judge determined, at step five of the five-part sequential process, see 20 C.F.R. § 404.1520, that Mr. Rotunno was not disabled. On appeal to the district court, the court granted the Commissioner’ s motion to remand the case for a supplemental hearing to obtain vocational expert testimony and to allow Mr. Rotunno the opportunity to submit additional ev idence.1 The Commissioner incorrectly contends that Mr. Rotu nno waived this issue

by failing to raise it in the district court. See Appellant’s App. Vol. 1 at 17-20. -3- Following the supplemental hearing, a different ALJ again determined that Mr. Rotunno was not disabled during the relevant pe riod. The ALJ found him severely impaired primarily due to right shoulder p roblems, and apparently also due to a problem with his right knee, but that the severity of his impairments did not meet a listing requirement. The ALJ determined that he could not return to his past relevant work as a carpenter, but that he retained a residual functional capacity which suppo rted work activities which allowed him to alternate sitting, standing and walking throughout the workday, which required no o verhead use of his right upper extremity, and which required no li fting of more than 45 pounds. Nonexertional factors did not significantly alter this work capacity. Appellant’s App. Vol. II at 239-40. Relying on the testimony of a vocational expert, the ALJ determined that Mr. Rotunno could p erform the job of security or gate guard and that this job existed in significantnumbers in the national or regional economy. The ALJ therefore concluded thatMr. Rotunno was not disabled. The Appeals Council denied review, makin g the ALJ’s decision the final decision of the Commissioner. On appeal, Mr. Rotunno first contends that the ALJ erred in concluding that he had the residual functional capacity (RFC) to perform the job of guard. 1 This argument takes two tacks. In one, Mr. Rotunno cont ends that the ALJ ignored2 The ALJ rejected the first and last of these claime d limitations based on his

determination Mr. Rotunno lacked credibility in ass erting these limitations, a determination we affirm below. -4- vocational expert testimony that demonstrates he co uld not perform this job. He relies, however, on answers to questions that conta ined hypothetical impairments that the ALJ ultimately did not accept, i.e., the n eed to use a cane, an inability to stand for more than twenty minutes or pick up more than five pounds, and a need to lie down two to three hours a day. 2 The ALJ based his decision on responses to hypothetical questions that reflected the impairments the ALJ did accept, and those responses provided an adequate basis for the ALJ’s decision. See Qualls v. Apfel , 206 F.3d 1368, 1373 (10th Cir. 2000). Mr. Rotunno also contends, in challenging the ALJ’s determination regarding his ability to perform the guard job, that the Dictionary of Occupational Titles classifies this job at the light exertional level, that he cannot perform the full range of light work because of his need to alt ernate sitting and standing, and that the ALJ failed to elicit vocational expert tes timony reconciling the difference, citing Haddock v. Apfel , 196 F.3d 1084, 1089 (10th Cir. 1999). To the contrary, the vocational expert specifically testif ied that while the guard job was classified as light work, it could be performed sitting or standing at will, again providing adequate evidence for the ALJ’s decision.-5-

Mr. Rotunno next contends that the ALJ should have found him disabled under the Medical-Vocational Guidelines, 20 C.F.R. pt. 404, subpt. P, app. 2, also know as the “grids.” In particular, he contends he met the requirements for a determination of disability under Rule 201.10 of th e grids. This rule, however, applies to someone whose maximum exertional level i s sedentary. The ALJ determined that Mr. Rotunno’s maximum exertional le vel was light, with a sit/stand option and limited use of his upper rig ht extremity. Rule 201.10 therefore does not apply to Mr. Rotunno. See Daniels v. Apfel , 154 F.3d 1129, 1132 (10th Cir. 1998) (grids direct conclusion whether claimant disabled or not when relevant vocational and RFC findings “coincide with all of the criteria of a particular rule”) (quotation omitted). The rule that covers an RFC limited to light work, given the relevant vocational factors, directs a finding of not disabled.
See Rule 202.11. Finally, Mr. Rotunno contends the ALJ erred in find ing that he lacked credibility generally and in a number of specific a reas affecting his ability to work. “Credibility determinations are peculiarly t he province of the finder of fact, and we will not upset such determinations whe n supported by substantial evidence.” Kepler v. Chater , 68 F.3d 387, 391 (10th Cir. 1995) (quotation omitted). First, Mr. Rotunno argues that the ALJ e rred in rejecting his contention that he used a cane or crutches during the relevantperiod. Mr. Rotunno-6-

underwent knee surgery in January 1986, and the ALJ noted that one doctor, in conjunction with an examination of his shoulder, in dicated in August 1986 that he had had good results from his knee surgery thus far . The ALJ further stated that there was no indication Mr. Rotunno required furthe r medical attention for his knee before his insured status ended. Additionally , the ALJ pointed to activities he was performing in 1995, connected with buying an d fixing up rental properties, and stated that there was no evidence his knee cond ition had deteriorated from the date last insured to 1995. This is sufficient evid ence to support the ALJ’s conclusion. Mr. Rotunno next contends the district court erred in using his lack of medical treatment as evidence that his impairments were not as serious as he contended. See id. (noting that frequency of medical contacts is rele vant to subjective complaints of severity of impairment). He contends that he could not afford medical treatment during the relevant period because his Worker’s Compensation insurer had stopped paying his medical bills when he settled with the insurer and he could not afford medical treatme nt on his own. The Commissioner points out that the settlement include d a $60,000 cash payment. We see no error in the ALJ’s reliance on this credi bility factor. Mr. Rotunno claims the ALJ erred by finding he did not need to “nap” for several hours a day when in fact he claimed only th at he needed to lie down-7-

frequently. It is clear, however, that the ALJ was referring to his alleged need to lie down. The ALJ found this allegation not credib le because Mr. Rotunno never reported this need to lie down to any doctor, and n o doctor indicated he had any condition requiring such rest. This is a sufficient basis for the ALJ’s decision. Finally, Mr. Rotunno argues that the ALJ erred in r ejecting his claim of limited manual dexterity in his right hand. In Dec ember 1986, one of his doctors indicated that Mr. Rotunno reported occasional numb ness in his right hand, but the doctor’s subsequent notes do not further reflec t this complaint, and an examination revealed no neurological deficits in hi s right arm. Again, we see no error in the ALJ’s rejection of Mr. Rotunna’s alleg ation of an impairment in manual dexterity.
AFFIRMED.

Entered for the Court

Wade Brorby Senior Circuit Judge