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

John J. Callahan, former Acting Commissioner of Social Security, as the

defendant in this action.

** This order and judgment is not binding precedent, except under the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

JUN 4 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

JON W. SHAFFER,

Plaintiff-Appellant,

v.

KENNETH S. APFEL, Commissioner,

Social Security Administration,*

Defendant-Appellee.

No. 97-5174

(D.C. No. 96-CV-586-J)

(N.D. Okla.)

ORDER AND JUDGMENT**

Before TACHA, LOGAN, and LUCERO, 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
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argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

Plaintiff Jon W. Shaffer appeals from an order of the district court

affirming the Commissioner’s determination that he is not entitled to disability

benefits. We affirm.

We review the Commissioner’s decision to determine whether his factual

findings were supported by substantial evidence in light of the entire record and

to determine whether he applied the correct legal standards. See Castellano v.

Secretary of Health & Human Servs., 26 F.3d 1027, 1028 (10th Cir. 1994).

Substantial evidence is “such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion.” Id. (quotations omitted). In the course of

our review, we may “neither reweigh the evidence nor substitute our judgment for

that of the agency.” Casias v. Secretary of Health & Human Servs., 933 F.2d 799,

800 (10th Cir. 1991).

Mr. Shaffer alleged disability due to the effects of a back injury and

arthritis affecting multiple joints. The administrative law judge (ALJ) determined

that Mr. Shaffer was not disabled at step five of the five-step sequential process,

see Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir. 1988), finding that he

could perform light work with only temperature and humidity restrictions.
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On appeal, Mr. Shaffer argues the ALJ erred in finding that Mr. Shaffer

could do the prolonged standing necessary to perform light work and he failed to

properly link his credibility findings to Mr. Shaffer’s complaints of pain. He also

asserts the ALJ erroneously failed to shift the burden of proof to the

Commissioner before he made the residual functional capacity (RFC)

determination.

Light work requires that the claimant be able to do a “good deal of walking

or standing or . . . sitting most of the time with some pushing and pulling of arm

or leg controls.” 20 C.F.R. § 404.1567(b). Mr. Shaffer has been diagnosed with

degenerative joint disease in his knees. He testified that he drives 200 miles a

week to run errands, although he is house bound when the temperature gets below

forty degrees. He can walk under a mile or for about thirty minutes before his

knees swell. He does housework, some gardening, and can carry three one-liter

bottles of soda. The medical evidence shows that he has normal range of motion

and gait.

Mr. Shaffer argues that even if the ALJ is correct that he was not disabled

in 1992 and 1993, by 1994, his condition had deteriorated due to marked arthritic

changes in his knees. The record shows that, in 1994, various physicians noted

Mr. Shaffer had some osteostatic changes, his knees were slightly tender, and he

had marked creptitus. No physician has placed any restrictions on Mr. Shaffer’s
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ability to stand. Indeed, one physician noted that Mr. Shaffer was “experiencing

satisfactory relief of his symptoms,” App. Vol. II at 267; another suggested that

he begin a walking program, id. at 259; and a third reported that Mr. Shaffer

stated that he “occasionally” has “continual pain” in his knee which is affected

by stair climbing, id. at 268. The vocational expert opined that jobs exist in the

light work category which Mr. Shaffer can perform with his limitations. The

record supports the ALJ’s determination that Mr. Shaffer can perform light work.

Mr. Shaffer asserts the ALJ failed to make the proper linkage between his

credibility findings and Mr. Shaffer’s complaints of pain. In evaluating a

claimant’s pain, the ALJ must consider the level of medication the claimant uses

and its effectiveness, the claimant’s attempts to obtain relief, the frequency of his

medical contacts, the nature of his daily activities, his credibility, and the

consistency or compatibility of nonmedical testimony with objective medical

evidence. 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.” Diaz v.

Secretary of Health & Human Servs., 898 F.2d 774, 777 (10th Cir. 1990).

While the ALJ could have discussed these factors more extensively, we see

no legal error. Mr. Shaffer’s daily activities are fairly comprehensive. He takes

pain medication, but his treating physicians have indicated that the medication
1 We note, although the ALJ did not consider this fact, that Mr. Shaffer told

his treating physician in 1991 that he quit his job because of unsatisfactory work

conditions, not because of any physical impairment. See App. Vol. II at 121.

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controls his pain effectively. He seeks regular medical intervention, but no

physician has indicated that intervention has been ineffective or that Mr. Shaffer

has been incapacitated by his medical problems. The ALJ’s credibility

determination is well supported by the record.1

Finally, Mr. Shaffer contends the ALJ erroneously failed to shift the burden

of proof to the Commissioner until after he made the RFC determination. The

RFC determination is initially part of the step four evaluation and, thus, is made

before the burden of proof shifts at step five. See Hinkle v. Apfel, 132 F.3d

1349, 1352 (10th Cir. 1997); 20 C.F.R. § 1520(e), (f). No error occurred.

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

of Oklahoma is AFFIRMED.

Entered for the Court

Deanell Reece Tacha

Circuit Judge